            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                          NO. PD-0545-14



               EX PARTE THOMAS EDWARD CASTILLO, Appellant



            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FOURTH COURT OF APPEALS
                            BEXAR COUNTY

      H ERVEY, J., delivered the opinion of the Court in which K ELLER, P.J., and
M EYERS, J OHNSON, K EASLER, A LCALA, R ICHARDSON, and N EWELL, JJ., joined.
Y EARY, J., did not participate.

                                           OPINION

       The question in this case is whether the successive prosecution of Thomas Edward

Castillo, Appellant, for burglary and aggravated assault is jeopardy barred because of his

prior acquittal for capital murder. Because we hold that the burglary charge is jeopardy

barred, but the aggravated assault is not, we will affirm the judgment of the court of

appeals in part and reverse it in part.

                             F ACTS AND PROCEDURAL HISTORY

       In 2000, Appellant married Carol Sanchez. About ten years later, Sanchez met a
                                                                                       Castillo–2

man named Rogelio “Ray” Nava, whom she moved in with after separating from

Appellant.1 In the early morning hours of August 15, 2010, after Nava and Sanchez

returned to Nava’s home and went to bed, Appellant, who had been hiding in Nava’s

bedroom, stabbed Nava and then Sanchez. The evidence showed that Nava likely died

instantly, but that Sanchez survived the encounter despite being stabbed eleven times in

total, among other injuries she suffered that night.

       Appellant was charged in two separate indictments returned on the same day. All

of the charges stemmed from the same incident. The first indictment alleged that

Appellant committed capital murder when he intentionally caused the death of Nava

while “in the course of committing or attempting to commit the offense of burglary of a

habitation owned by” Nava.2 The second indictment charged Appellant with aggravated

assault and burglary.3 The first count stated that Appellant intentionally, knowingly, or


       1
         Approximately four weeks after Sanchez moved in with Nava, she moved back in with
Appellant. However, she lived with him again for only a few days before she left to stay with her
sister and, ultimately, moved back in with Nava.
       2
           The capital-murder allegation stated,

       [O]n or about the 15th Day of August, 2010, THOMAS CASTILLO, hereinafter
       referred to as defendant, did intentionally cause the death of an individual,
       namely, Rogelio Nava, hereinafter referred to as complainant, by CUTTING AND
       STABBING THE COMPLAINANT WITH A DEADLY WEAPON, NAMELY,
       A KNIFE, THAT IN THE MANNER OF ITS USE AND INTENDED USE WAS
       CAPABLE OF CAUSING DEATH AND SERIOUS BODILY INJURY, and the
       defendant was in the course of committing or attempting to commit the offense of
       BURGLARY OF A HABITATION owned by Rogelio Nava[.]
       3
           That second indictment alleged,
                                                                                       Castillo–3

recklessly caused serious bodily injury to Sanchez using a deadly weapon. The second

count alleged that Appellant intentionally or knowingly entered the habitation of Nava

without his effective consent and “attempted to commit and committed the felony offense

of aggravated assault[] against” Sanchez.

       Before the capital-murder trial began, Appellant moved to consolidate the

indictments and for the State to specify how the predicate burglary for the capital-murder

charge was committed.4 The State objected, and the trial court denied Appellant’s

motions. At the charge conference, Appellant asked for lesser-included-offense

instructions on murder and manslaughter, which the trial court denied. Appellant was

subsequently acquitted of capital murder. After his acquittal, and before Appellant’s

second trial for burglary and aggravated assault, Appellant filed a pretrial writ application

arguing that the second prosecution was barred by double jeopardy. The trial court denied



       [O]n or about the 15th Day of August, 2010, THOMAS CASTILLO, hereinafter
       referred to as defendant, did intentionally, knowingly and recklessly cause serious
       bodily injury to Carol Sanchez by CUTTING AND STABBING THE
       COMPLAINANT WITH A DEADLY WEAPON, NAMELY, A KNIFE, THAT
       IN THE MANNER OF ITS USE AND INTENDED USE WAS CAPABLE OF
       CAUSING DEATH AND SERIOUS BODILY INJURY, and Carol Sanchez was
       a member of the defendant’s family[.]

                                          .      .     .

       [O]n or about the 15th Day of August, 2010, THOMAS CASTILLO did
       intentionally and knowingly enter a habitation, and therein attempted to commit
       and committed the felony offense of AGGRAVATED ASSAULT, against Carol
       Sanchez, without the effective consent of Rogelo Nava, the owner[.]
       4
           See TEX . PENAL CODE § 30.02(a)(1)–(3).
                                                                                          Castillo–4

Appellant’s application, and he appealed. The San Antonio Court of Appeals reversed the

decision of the trial court and remanded the cause for the second indictment to be

dismissed. Castillo v. State, 432 S.W.3d 457, 470 (Tex. App.—San Antonio 2014, pet.

granted). The State then filed a petition for discretionary review on three grounds,5

arguing that the court of appeals erred when it decided that the second prosecution of

Appellant was jeopardy barred. We granted review.

                                           D ISCUSSION

       The Double Jeopardy Clause of the United States Constitution is applicable to the

states through the Fourteenth Amendment, and it protects an accused from impermissible

multiple punishments or successive prosecutions for the same offense after an acquittal or

conviction. U.S. C ONST. amend. V, cl. 2; see Ex parte Amador, 326 S.W.3d 202, 205

(Tex. Crim. App. 2010). When two distinct statutory provisions are at issue, we ordinarily

determine legal sameness by applying the same-elements test to determine whether “each




       5
           The grounds for review state,

       (1) The Court of Appeals erred by reviving Grady v. Corbin (overruled by the
       Supreme Court), and applying a cognate evidence analysis (rejected by this court)
       in reviewing a double jeopardy claim.

       (2) The Court of Appeals erred by finding that an aggravated assault on a victim
       not named in a capital murder indictment was a lesser included offense of the
       capital murder.

       (3) The Court of Appeals misapplied the law by finding that an offense was
       subsumed within the greater if the State ‘could have’ used that offense to prove
       the greater, rather than that it was required to do so.
                                                                                       Castillo–5

provision requires proof of a fact which the other does not.”6 See United States v. Dixon,

509 U.S. 688, 697 (1993); Blockburger v. United States, 284 U.S. 299, 304 (1932). Under

that test, lesser-included offenses are legally the same as a greater offense, and are wholly

subsumed by the elements of the greater offense, unless the potential lesser-included

offense requires proof of a fact not required to establish the greater offense. See Harris v.

Oklahoma, 433 U.S. 682 (1977) (per curiam); Brown v. Ohio, 432 U.S. 161, 168 (1977);

see also T EX. C ODE C RIM. P ROC. art. 37.09(1). To determine if an offense is a lesser

included of another, we employ the cognate-pleading approach adopted in Hall v. State,

225 S.W.3d 524 (Tex. Crim. App. 2007), which requires us to compare the elements of

the greater offense as pled to the statutory elements of the potential lesser-included

offense in the abstract. Id. This analysis is a legal question and does not depend on the

evidence offered at trial.7 See id. at 535.

       If the offenses are legally the same, the next step is to determine whether the

offenses are factually the same. Ex parte Benson, WR–81,764-01, 2015 WL 1743459, at

       6
         The same-elements test is used in both multiple-punishment and successive-prosecution
cases, but in a multiple-punishments analysis, which is not at issue in this case, we also must
discern whether the Legislature intended to authorize multiple punishments for the same act.
Dixon, 509 U.S. 696–97 (same-elements test applies in the multiple-punishment and successive-
prosecution context); Missouri v. Hunter, 459 U.S. 359, 368 (1983) (multiple-punishment
analysis, in part, asks whether a defendant who violates multiple statutory provisions should be
subject to multiple punishments); see Ex parte Ervin, 991 S.W.2d 804 (Tex. Crim. App. 1999)
(applying Hunter to Texas).
       7
         Although we compare the indictments in this case to facilitate the same-elements
analysis, that comparison does not rely on evidence adduced at trial, unlike the same-conduct test
utilized by the Supreme Court in Grady v. Corbin, 495 U.S. 508, 521–22 (1990), overruled by
Dixon, 509 U.S. at 704.
                                                                                      Castillo–6

                                                            *3 (Tex. Crim. App. Apr. 15,

2015). We determine factual sameness by determining the allowable unit of prosecution

and reviewing the trial record to establish how many units have been shown. Id. The

allowable unit of prosecution of an offense turns on statutory construction and usually

requires ascertaining the gravamen, or gravamina, of the offense. See id. After reviewing

the record, if a court concludes that the offenses are based on the same unit of

prosecution, then the offenses are factually the same for successive prosecution purposes.

To prevail, the claimant must prove legal sameness and factual sameness. See id.

                                          1. Burglary

       The State argues that burglary is not the same as capital murder as pled in this case

because, under a strict application of the same-elements test, each offense requires proof

of a fact that the other does not. It also asserts that it is impossible, from reading the

pleadings alone, to determine that the State charged Appellant with the same burglary

twice. Appellant responds that, based on the same-elements test, the burglary offenses are

legally and factually the same in accordance with our decision in Littrell v. State, 271

S.W.3d 273 (Tex. Crim. App. 2008).

       In Littrell, the appellant was charged, in part, with felony murder and aggravated

robbery, both of which were “committed against the same victim on the same date.” Id. at

274. The felony-murder count alleged that, while committing or attempting to commit

aggravated robbery, the appellant “committed an act clearly dangerous to human life that
                                                                                   Castillo–7

caused the complainant’s death during the commission (or attempted commission) of

aggravated robbery.” Id. at 276. The aggravated-robbery count charged the same

aggravated robbery. Id. Littrell was convicted of both offenses, and on appeal, he argued

that his convictions impermissibly punished him twice for the same offense. Id. at

274–75. The court of appeals disagreed and held that there was no double-jeopardy

violation because felony murder as alleged and aggravated robbery are not the “same”

under Blockburger. Id. at 275. We reversed the judgment of the court of appeals and

reasoned that the offenses were legally the same because the stand-alone aggravated-

robbery charge was a lesser-included offense of felony murder as pled in that case:

       The State’s theory of felony murder, as expressed in Count One of the
       indictment, is that the appellant committed an act clearly dangerous to
       human life that caused the complainant’s death during the commission (or
       attempted commission) of aggravated robbery. Count Two of the indictment
       alleges that self-same predicate aggravated robbery. In order to establish
       felony murder as alleged in Count One, the State need prove no more than
       the aggravated robbery (or attempted aggravated robbery) alleged in Count
       Two, plus additional facts. In order to prove the aggravated robbery, the
       State need prove no additional fact that is not already contained in Count
       One. As they are pled in the indictment, then, Count Two is clearly
       subsumed within, and therefore constitutes a lesser-included offense of,
       Count One, both as a matter of state law and for double-jeopardy purposes.

Id. at 276–77 (footnote omitted).

       Applying the reasoning of our decision in Littrell to Appellant’s case, the burglary

charge is a lesser-included offense of capital murder as pled because, to establish capital

murder, the State needed to “prove no more than the [burglary] (or attempted
                                                                                       Castillo–8

[burglary]) . . . plus additional facts.”8 Id. We also disagree with the State’s argument that,

in this case, capital murder and burglary are not legally the same because the burglary

charge alleged a completed burglary and the other did not. When faced with an almost

identical situation in Littrell, we stated that, as a matter of state law, an allegation of a

completed offense is the same as alleging an attempt to commit the same offense. See id.

at n.18 (citing T EX. C ODE C RIM. P ROC. art. 37.09(4)). On that basis, we held that the

felony-murder charge, which alleged a completed or attempted aggravated robbery, still

subsumed the stand-alone aggravated-robbery charge alleging only a completed offense.

When that same principle is applied to Appellant’s case, the capital-murder charge still

subsumes the burglary count, despite the fact that one charge alleges a completed burglary

and the other does not.

       We now turn to a units analysis to determine whether the burglary allegations

relied on an “identical criminal act.”9 We have often held that the unit of prosecution for




       8
        See Langs v. State, 183 S.W.3d 680, 686 (Tex. Crim. App. 2006) (stating that, when an
offense requires alleging an underlying felony, “the State must prove all of the elements of the
underlying felony”); Whitaker v. State, 977 S.W.2d 595, 598–99 (Tex. Crim. App. 1998)
(examining the elements of both capital murder alleging burglary and the burglary statute to
determine if the evidence was sufficient to sustain the conviction); Bethard v. State, 767 S.W.2d
423, 427 (Tex. Crim. App. 1989) (to sustain a conviction for capital murder alleging a predicate
burglary, the jury had to believe beyond a reasonable doubt that the predicate felony was
committed as defined in the burglary statute).
       9
        Ex parte Goodbread, 967 S.W.2d 859, 860 (Tex. Crim. App. 1998) (citing Luna v. State,
493 S.W.2d 854, 855 (Tex. Crim. App. 1973)) (stating that offenses are the same only if they rely
on the same criminal act and not merely because they share the same name).
                                                                                        Castillo–9

burglary is each unlawful entry,10 and after examining the record, it is indisputable that

the State sought to prosecute Appellant twice for a single unlawful entry.11 We affirm the

judgment of the court of appeals that Appellant’s prosecution for burglary is jeopardy

barred because he has shown that the burglary allegation is legally and factually the same

as the capital-murder charge for which he was previously acquitted.

                                     2. Aggravated assault

       The State argues that Appellant’s subsequent prosecution for aggravated assault is

not barred by double jeopardy because, each offense requires proof of a fact the other

does not, and the court of appeals erred by relying on the trial record to determine that the

offenses are the same. The State also contends that the unit of prosecution for assault and

capital murder is each victim, and because two different victims are alleged, the offenses

are factually different.

       First, we must answer whether aggravated assault in the abstract is legally the

same as the capital-murder charge as pled in this case. To establish capital murder, the

State had to show that Appellant intentionally caused the death of Nava by cutting and

stabbing him with a deadly weapon while in the course of committing or attempting to

commit burglary. See T EX. P ENAL C ODE § 19.03(a)(2). To prove aggravated assault, the

State had to show that Appellant intentionally, knowingly, or recklessly caused serious


       10
            See Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006).
       11
          The State does not argue that the burglary alleged in the capital-murder indictment was
factually different from the burglary allegation in the second indictment.
                                                                                           Castillo–10

bodily injury to a person or used or exhibited a deadly weapon while causing bodily injury

to another. See id. § 22.01(a)(1), 22.02(a)(1). As a matter of state law, an offense is a

lesser included of another if “it differs from the offense charged only in the respect that a

less culpable mental state suffices to establish its commission.” See T EX. C ODE C RIM.

P ROC. art 37.09(3). That is the case here. To establish the murder component of capital

murder, the State must show that the defendant intentionally or knowingly caused the

death of an individual. The State, however, need only prove that a defendant intentionally,

knowingly, or recklessly committed aggravated assault. Thus, with respect to the

necessary mens rea for capital murder and aggravated assault, the offenses differ only in

that aggravated assault can be established with a less culpable mental state than capital

murder. Compare T EX. P ENAL C ODE § 19.03(a) (citing T EX. P ENAL C ODE § 19.02(b)(1)),

with T EX. P ENAL C ODE § 22.02(a) (citing T EX. P ENAL C ODE § 22.01(a)(1)). Furthermore,

because death is a type of serious bodily injury and serious bodily injury is a type of

bodily injury, it necessarily follows that death is a type of bodily injury.12 Consequently,

aggravated assault is within the proof necessary for the State to establish capital murder

as charged in this case and both offenses are legally the same.13


       12
          This logic is simply an application of the transitive property of equality that if a = b, and
b = c, then a = c. See Jackson v. State, 992 S.W.2d 469, 475 (Tex. Crim. App. 1999) (death is a
form of serious bodily injury); see also TEX . CODE CRIM . PROC. art. 37.09(2) (an offense is a
lesser included of another if the only difference from the offense charged is that “a less serious
injury or risk of injury to the same person . . . suffices to establish its commission”).
       13
        See also Jackson, 992 S.W.2d at 474–75 (aggravated assault was within the proof
necessary to establish capital murder, but the appellant was not entitled to a lesser-included
                                                                                        Castillo–11

       Turning to a unit analysis, we first must answer what the allowable unit of

prosecution is for capital murder as pled in this case. When the charge is capital murder

under Section 19.03(a)(2) of the Texas Penal Code, as it is here, we have stated that a

defendant may be charged once for each time he causes the death of another plus the

applicable aggravated circumstance that elevate the offense from murder to capital

murder.14 See Gardner v. State, 306 S.W.3d 274, 302 (Tex. Crim. App. 2009). Thus, the

relevant unit of prosecution under Section 19.03(a)(2) in this case is the requisite murder

of a person plus proof of one of the required aggravating circumstances available under

the statute. See T EX. P ENAL C ODE §§ 19.03(a)(2), 30.02(a)(2). Furthermore, we have held

the unit of prosecution for assaultive offenses is each victim. See Shelby v. State, 448

S.W.3d 431, 439 (Tex. Crim. App. 2014). When the victims alleged in the capital-murder

and aggravated-assault charges are compared, we conclude that they allege two different

units of prosecution: Nava and Sanchez.

       Furthermore, Appellant was not in jeopardy of being convicted for committing




instruction because there was no proof that if the appellant was guilty, he was guilty of only
aggravated assault).
       14
         We have noted that “[s]ome offenses, such as capital murder, may contain both result of
conduct and nature of conduct elements,” but we also stated that “the question becomes which
aspect of the statute predominates, or possibly whether both aspects are equally important for
determining the separateness of offenses.” Huffman v. State, 267 S.W.3d 902, 907 (Tex. Crim.
App. 2008); see also Byrd v. State, 336 S.W.3d 242, 250–51 (Tex. Crim. App. 2011) (stating that
the gravamen of theft is “two-pronged” because ownership and appropriation of the property “are
both important”). For purposes of our aggravated-assault double-jeopardy analysis, the predicate
murder unit of prosecution aspect predominates.
                                                                                    Castillo–12

aggravated assault against Sanchez during his capital-murder trial because the State did

not have to prove that Appellant committed aggravated assault against Sanchez to

establish capital murder. There was no set of facts that the jury could have believed that

required it to return a guilty verdict based on a belief that Appellant committed

aggravated assault against Sanchez. That is, if the jury convicted Appellant of capital

murder, it must have also believed that Appellant committed aggravated assault against

Nava.

                           T HE S TATE’S GROUNDS FOR REVIEW

        We now expressly turn to the State’s grounds for review. In its first ground for

review, the State asks whether “[t]he Court of Appeals erred by reviving Grady v. Corbin

(overruled by the Supreme Court), and applying a cognate evidence analysis (rejected by

this court) in reviewing a double jeopardy claim.” As we have explained, there are two

relevant inquiries in a double-jeopardy analysis. The legal-sameness inquiry depends on

only the pleadings and statutory law—not the record—to ascertain whether two offenses

are the same. The factual-sameness inquiry requires a reviewing court to examine the

entire record to determine if the same offenses have been alleged. We disavow the

reasoning of the court of appeals to the extent that it appears to have granted Appellant

relief from his prosecution for burglary on only factual-sameness grounds. Castillo, 432

S.W.3d at 466–67. Nonetheless, having found that capital murder as pled and burglary are

the same offenses, we overrule the State’s first ground for review.
                                                                                   Castillo–13

        In its second and third grounds for review the State urges that “[t]he Court of

Appeals erred by finding that an aggravated assault on a victim not named in a capital-

murder indictment was a lesser included offense of the capital murder,” and “[t]he Court

of Appeals misapplied the law by finding that an offense was subsumed within the greater

if the State ‘could have’ used that offense to prove the greater, rather than that it was

required to do so.” On the facts of this case and for the reasons explained, we sustain the

State’s second and third ground for review.

                                         Conclusion

        Because we agree with the court of appeals that Appellant’s prosecution for

burglary is jeopardy barred, but we conclude that his prosecution for aggravated assault

conviction is not, we affirm the judgment of the court of appeals in part and reverse it in

part.

                                                          Hervey, J.

Delivered: June 3, 2015

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