EX PARTE Thomas Edward CASTILLO, Appellant
NO. PD-0545-14
Court of Criminal Appeals of Texas.
Delivered: June 3, 2015
Rehearing Denied October 7, 2015
469 S.W.3d 165
Accordingly, without hearing oral argument, we reverse the court of appeals’ judgment and remand this case to the trial court for proceedings consistent with this opinion.
Jay Brandon, Assistant District Attorney, 101 W. Nueva, 3rd Floor, San Anto-
OPINION
Hervey, J., delivered the opinion of the Court in which Keller, P.J., and Meyers, Johnson, Keasler, Alcala, Richardson, and Newell, JJ., joined.
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.
FACTS AND PROCEDURAL HISTORY
In 2000, Appellant married Carol Sanchez. About ten years later, Sanchez met a 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 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 com-
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 chargе 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 рretrial writ application arguing that the second prosecution was barred by double jeopardy. The trial court denied 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.
DISCUSSION
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 successivе prosecutions for the same offense after an acquittal or conviction.
If the offenses are legally the same, the next step is to determine whether the offenses are factually the same. Ex parte Benson, 459 S.W.3d 67, 72 (Tex.Crim.App.2015). We determine factual sameness by determining the allowable unit of prosecution and rеviewing 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 sucсessive 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, frоm 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 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 сapital murder, the State needed to “prove no more than the [burglary] (or attempted [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, аn allegation of a completed offense is the same as alleging an attempt to commit the same offense. See id. at n. 18 (citing
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 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 proseсution for aggravated assault is not barred by double jeopardy
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 burglаry. See
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 рlus 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).
Furthermore, Appellant was not in jeopardy of being convicted for committing 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 aggrаvated assault against Nava.
THE STATE‘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 Appеllant 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.
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 thе 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 Appеllant‘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.
Yeary, J., did not participate.