¶1OPINION ON APPELLANTS PETITION FOR DISCRETIONARY REVIEW
¶2delivered the opinion of the Court,
¶3The case at bar presents a double jeopardy issue. The State filed an initial indictment that alleged that appellant committed certain acts of unlawful sexual conduct “on or about” June 1, 1991. Under our precedent, “on or about” means within the statute of limitations and before the return of the indictment. See Sledge v. State, 958 S.W.2d 253 (Tex.Crim.App.1997). At trial, the State offered the complainant’s testimony concerning conduct occurring in June of 1991.
¶4For Double Jeopardy purposes, “[t]he same offense means the identical criminal act, not the same offense by name.” Luna v. State, 493 S.W.2d 854 (Tex.Crim.App.1973). In Luna, we held that, when one cannot determine from the State’s pleadings whether the offenses prosecuted are the same, the court must look to the proof offered at trial. Id. at 855. Lunainvolved prosecutions for sale of heroin. Id.The defendant in that ease made two separate sales of heroin three months apart to the same individual. Id.He was tried for one of the sales and convicted. The State later prosecuted him for the other sale, and the defendant attempted to plead the prior conviction as a jeopardy bar to the second prosecution. Id.We rejected that contention despite the fact that the second offense could have been prosecuted under the first indictment:
The fact that the indictment in the first case would support a conviction for the sale of heroin in the present case, because both were within the statute of limitations of three years, does not prevent the prosecution in the instant case. The controlling factor is the proof that they were different offenses. Id.
¶5While Lunacontemplated a single offense per indictment, we have also recognized the State’s ability to place a defendant in jeopardy for multiple offenses by failing to elect after presenting proof of multiple instances of conduct that conform to the indictment:
If evidence of more than one offense is admitted and a conviction for either could be had under the indictment, and neither the State nor the court elects, a plea of former conviction is good upon a prosecution based upon one of said offenses, it being uncertain for which one the conviction was had.
¶6Walker v. State, 473 S.W.2d 499, 500 (Tex.Crim.App.1971). But, as Walkerprovides, *861Double Jeopardy bars only offenses for which proof was offered at trial.
¶7Hence, under Lunaand Walker, trial upon an indictment does not bar every offense that could be prosecuted under its language; instead, trial upon the indictment bars prosecution only for offenses for which proof was offered at trial. And even for the latter category, the State or the trial court can exclude an instance of conduct from the jeopardy bar through an election.
¶8When an indictment permits the State to obtain only one conviction, a defendant is not placed in jeopardy for more than one criminal act unless the State offers multiple instances of conduct in support of the indictment. Every instance of sexual assault is a separate crime and may be prosecuted in separate trials. Vernon v. State, 841 S.W.2d 407, 410 (Tex.Crim.App.1992). Hence, in this case the Double Jeopardy bar applies only to the two instances of conduct offered by the State at trial: the conduct brought out in the complainant’s testimony and the conduct brought out in the testimony of the outcry witness.
¶9The judgment of the Court of Appeals is affirmed.
¶10. This was actually the second trial on the initial indictment. The first trial ended in a mistrial on appellant’s motion and is, therefore, of no moment in our consideration of appellant's double jeopardy claim. See Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089-90, 72 L.Ed.2d 416 (1982)(a defendant’s motion for mistrial constitutes a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact).
¶11. An "election” would generally be some action that excludes or limits the jury’s consideration of an offense: for example, by instructing the jury to disregard the evidence or by limiting the purpose for which the evidence is offered.
¶12. The State contends that only the offense in the complainant's testimony is barred. But the offense in the outcry testimony is also barred because the State failed to elect before obtaining a dismissal of the prosecution.
¶13concurring.
¶14The prevailing legal principle to be remembered in this context is that the Double Jeopardy Clause does not prohibit
... successive prosecutions or multiple punishments for repeated discrete violations of the same penal statute. Rather it prohibits successive prosecutions or multiple punishments for conduct which necessarily violates a penal statute only once or, presumably, for conduct which necessarily violates more than one penal statute at a time.
¶15State v. Houth, 845 S.W.2d 853, 870-71 (Tex.Crim.App.1992)(Benevides, J., concurring).
¶16The majority says we do so by looking to the proof offered at trial:
... trial upon an indictment does not bar every offense that could be prosecuted under its language; instead, trial upon the indictment bars prosecution only for offenses for which proof was offered at trial. And even for the latter category, the State or the trial court can exclude an instance of conduct from the jeopardy bar through an election.
¶17Majority opinion at 860-61. But if we have to look to the proof at trial to determine what is jeopardy barred, then to what has jeopardy “attached” before proof is offered? After all, we know jeopardy attaches in a jury trial the moment the jury is empaneled and sworn. E.g., Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Ortiz v. State, 933 S.W.2d 102 (Tex.Crim.App.1996). Is the majority suggesting jeopardy does not *862attach until proof is offered? Certainly not, but we are not enlightened in this regard.
¶18In my view, jeopardy most likely attaches to the indictment and all that can be known for certain from its face at the point at which the jury is empaneled and sworn. For instance, jeopardy attaches to the elements and factual matters pled in the indictment, but not to any specific date, since the State is not bound to prove the date alleged. See Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim.App.1997). As trial proceeds, jeopardy attaches more specifically to those offenses that otherwise fit the indictment and for which proof is offered.
¶19While I believe this explanation to be reasonable and logical, I fear I may be overlooking á tidier resolution of this problem.
¶20Otherwise agreeing jeopardy attached in the instant case to the two instances of conduct offered by the State at the previous trial, and in the absence of evidence that those instances will be prosecuted under the new indictments, I concur in affirming the judgment of the Court of Appeals.
¶21. For this reason, Judge Baird’s analysis fails. Under his view of things, jeopardy would ultimately bar prosecution for a defendant’s repeated but like offenses against the same victim, all occurring during the same statutory period. This is surely wrong.
¶22. It might be more precisely stated that jeopardy had already attached in a broad sense, but the specific incident to which it attached becomes more clear upon proof at trial.
¶23. In other words, jeopardy "un-attaches” to those offenses which would otherwise fall within the terms of the indictment, but are designated as extraneous. It remains attached to the offense the State "elects” as the one upon which it will seek a conviction. The notion that jeopardy may attach and un-attach is not novel. The “un-attaching” of jeopardy should, however, remain largely within the control of the defendant except in extraordinary circumstances. Cf. Brown v. State, 907 S.W.2d 835 (Tex.Crim.App.1995)(jeop-ardy does not bar retrial when defendant essentially waives it by requesting mistrial or when there is manifest necessity). For this reason, it would seem that election should be a right to be asserted only by the defendant. In other words, the State can be forced to elect, and thus un-attach jeopardy, only upon objection (to evidence as extraneous) and/or request (for election) by the defendant. Cf Proctor v. State, 841 S.W.2d 1 (Tex.Crim.App.1992)(criminal charge abandoned or dismissed on prosecution’s motion after jeopardy attaches may not be retried); Ex parte Preston, 833 S.W.2d 515, 517 (Tex.Crim.App.1992)(if State dismisses, waives, or abandons portion of indictment after jeopardy attaches, State is barred from later relitigating those allegations).
¶24. I have previously suggested that jeopardy may attach to anything conceivably, but not certainly, within the terms of the indictment, but I now conclude this view is overly broad. See Proctor and Lemell, at 3-4 (Meyers, J., concurring)(suggesting that indictment alleging "on or about” places defendant in jeopardy for any such alleged offense within applicable statutory period).
¶25. The Court of Appeals held the thirteen new indictments were not jeopardy barred “because they each refer to a separate occurrence and not to the occurrence made the subject of the dismissed trial.” This conclusion is premature. It cannot be ascertained from the faces of the thirteen new indictments what specific occurrences are referred to. For this reason, appellant fails to prove a jeopardy bar. The majority does not mention the Court of Appeals' opinion, other than to say its judgment is “affirmed.”