Briefly, defendant enters a residence with the intent to kill his ex-girlfriend who lives there. When she arrives, he assaults her, causing serious bodily injury. Approximately 24 hours later, victim dies. Defendant has admitted entering the residence with the intent to kill. So, the question is, can the murder be used BOTH as the element of burglary (entering with the intent to commit a felony) AND as committing murder in the course of a burglary under PC 19.03(a)(2), making the offense a capital murder? If so, wouldn't these facts also support a charge of felony murder? Before indicting need to be sure that the facts support a charge of capital murder, when without the murder there is no other felony (or theft) to prove up the burglary. The statute looks to me like it was written to apply to a defendant who, while committing burglary THEN commits murder as a SEPARATE felony during comission of the burglary. Clear as mud, or am I just over-analyzing?

A good place to start:
Langs V. State 183 SW3d 680

Thanks - I have printed that case and should be able to get what I need.

your issue sounds analogous to the merger issue that sometimes comes up in the murder/aggravated sexual assault capital cases - whether the death can be the serious bodily injury that makes the sexual assault into an aggravated sexual assault. Lots of cases have said there is no merger problem. I don't have them handy (I think one is named Meraz, I had it on appeal once but mine was an unpublished case) but they should be pretty easy to find. I would think the analysis should be the same.