Castillo, Ex Parte Thomas Edward

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
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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,
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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).
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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.
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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.
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*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
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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
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[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).
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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.
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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
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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.
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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.
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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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