Ex Parte Mathes

830 S.W.2d 596, 1992 WL 79205

• Court: Court of Criminal Appeals of Texas
• Decided: April 22, 1992
• Docket: 685-88
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

The question in this capital case is whether, after a jury has previously found guilt for killing one victim, but determined that there is no probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society, the State could constitutionally hale him before a new jury to litigate that issue again in another capital murder case for killing a second victim in the same transaction. See Ashe v. Swenson, 397 U.S. 436, at 446, 90 S.Ct. 1189, at 1195, 25 L.Ed.2d 469, at 477 (1970); Padgett v. State, 717 S.W.2d 55, at 57 (Tex.Cr.App.1986).

Appellant was charged in separate indictments with capital murder of two individuals, respectively, alleging that he killed each victim while in the course of committing and attempting to commit robbery of both.¹ In his first trial appellant was convicted of capital murder of Debra Davis; the jury found he acted deliberately, but then answered “No” to the second special issue. Mathes v. State, 765 S.W.2d 853, at 855 (Tex.App.—Beaumont 1989), PDR refused.

When the State announced its intention to try appellant for capital murder of John Vandiver and to seek the death penalty once again, appellant filed his application for writ of habeas' corpus, invoking the doctrines of Double Jeopardy, Res Judicata and Collateral Estoppel. Tr. 2-5. After hearing thereon, the habeas court denied relief on findings fact and conclusions of law. Id., at 11, 13-14.²

Relying on Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), and Ashe v. Swenson, supra, the Beaumont Court of Appeals held “the jury’s negative determination of the continuing threat issue in [appellant’s] first trial collaterally estops the state from relit-igating the issue in [appellant’s] upcoming trial,” and overruled the order denying relief (with one justice dissenting). Ex parte Mathes, 755 S.W.2d 161, at 164 (Tex.App.— Beaumont 1988).

We granted review of the sole ground presented by the State substantially in terms of the question framed above. PDR, at 3. There and in its brief the State advances the “qualitatively different” theory espoused by the habeas court, see note 2, ante, and accepted by the dissenting justice below, see Ex parte Mathes, supra, at 165. Like the Beaumont Court of Appeals, id., at 164, we also reject that theory for the reasons about to be developed.

“ ‘Collateral estoppel’ ... means simply that when an issue of ultimate fact has once been determined in a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.”

Ashe v. Swenson, supra, 397 U.S. at 443, 90 S.Ct., at 1194, 25 L.Ed.2d, at 475.

Whether there is a probability that a defendant found guilty of capital murder would constitute a continuing threat to society is an issue of ultimate fact, the resolution of which in a bifurcated proceeding is determinative of the judgment and sentence of the trial court. A negative answer to special issue two means the prosecution has “failed to prove its case,” and thus is the functional equivalent of an “acquittal” of the death penalty. Arizona v. Rumsey, 467 U.S. 203, at 209-212, 104 S.Ct. 2305, at 2309-2310, 81 L.Ed.2d 164, at 181-182 (1984); Bulli6ngton v. Missouri, 451 U.S. 430, at 433-444, 101 S.Ct. 1852, at 1860, 68 L.Ed.2d 270, at 282 (1981). Therefore, the doctrine of collateral estoppel is indeed applicable to the punishment phase of a capital murder trial. Once a reviewing court determines that “the jury actually decided Special Issue No. 2 in appellant’s first capital murder trial ..., then the State would be estopped from relitigating the issue, thus preventing it from seeking the death penalty in the instant case.” Padgett v. State, 717 S.W.2d 55, at 57 (Tex.Cr.App.1986).³

The Collateral Estoppel doctrine precludes the State from relitigating an ultimate issue on punishment even though it contends that because a different victim was killed in the same transaction its evidence at the second proceeding may be “qualitatively different.” As the Supreme Court pointed out in Ashe v. Swenson, that is “precisely what the constitutional guarantee forbids,” viz:

“After the first jury had acquitted [Ashe] of robbing [one victim], Missouri could certainly not have brought him to trial again on that charge. Once a jury has determined on conflicting testimony that there was at least a reasonable doubt that [Ashe] was one of the robbers, the State could not present the same or different identification evidence in a second prosecution for the robbery of [the victim in the first trial] in the hope that a different jury might find that evidence more convincing. The situation is constitutionally no different here, even though the second trial related to another victim.”

Id., 397 U.S. at 446, 90 S.Ct., at 1195-1196, 25 L.Ed.2d, at 477.

Just as held in Ashe v. Swenson, supra, and this Court opined in Padgett v. State, supra, so also here “the situation is constitutionally no different.” In the first trial the jury “acquitted” appellant on an essential ultimate fact determinative of the death penalty, therefore the State could not constitutionally require appellant to “run the gantlet” a second time in the hope that a different jury might find that evidence stipulated to be the same as in the first trial more convincing.⁴

Accordingly, the judgment of the Beaumont Court of Appeals granting relief is affirmed.

1 . Both indictments were returned the same day. In trial court case no. 18556, the indictment charged in pertinent part appellant (and other named parties)

"on or about the 22nd day of February 1985 ... did then and there while in the course of committing and attempting to commit robbery of John Vandiver and Debra Davis, intentionally cause the death of John Vandiver by shooting him with a firearm [.]"

In case no. 18557, the indictment charged in pertinent part that appellant (and same other named parties)

"on or about the 22nd day of February 1985 ... did then and there while in the course of committing and attempting to commit robbery of John Vandiver and Debra Davis, intentionally cause the death of Debra Davis by shooting her with a firearm and cutting her with a knife [.]”

Tr. 16 and 17. (All emphasis here and throughout is supplied by the writer of this opinion unless otherwise indicated.)

2 . The habeas court found, inter alia:

"4. The offenses alleged in this cause occurred at the same time and place and during the course of the same criminal incident as that for which the defendant was convicted in cause no. 18,557.

5. The evidence which would be presented by the State in the trial of this case would be virtually identical to the evidence presented in the defendant’s trial in cause no. 18,557.”

Tr. 13. Those findings are fully supported by the record in that the parties so stipulated to those facts and more, viz:

"[Prosecutor]: Essentially, [appellant’s statement] is correct, Your Honor_ The evidence that we would introduce in the trial of Cause No. 18556 would be in all material respects exactly the same evidence that the jury heard [in no. 18557] to which and based on which they answered no answer [sic] to the second punishment question.”

S.F. 7. The verdict clearly shows the jury foreman printed "NO” in answer to the second special issue. Tr. 20.

From the trial record in cause no. 18557 the habeas court made an additional factual finding, viz:

"6. * * * * The court finds that the state's evidence in the case would be susceptible of an interpretation that the role of the defendant in causing the death of John Vandiver was qualitatively different from his role in causing the death of Debra Davis.”

Tr. 13. Accordingly, as a matter of law the court concluded that the negative answer to special issue two in the first trial “does not collaterally estop the State from prosecuting the defendant for capital murder or the Court from submitting Special Issue No. 2 to the jury in this case.” Id., at 14.

3 . In Ashe v. Swenson, supra, the Supreme Court cautioned that “the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationally.” The dissenting judge below, Mathes, at 163, and now State, Brief, at 7, argue that the same approach charted by the Supreme Court where the previous judgment of acquittal was based on a general verdict is applicable here, viv

"[A reviewing court must] ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an ISSUE other than that which the defendant seeks to foreclose from consideration.’ [note omitted].”

Id., 397 U.S. at 444, 90 S.Ct., at 1194, 25 L.Ed.2d, at 475-76.

In the instant case, of course, we do not deal with a general verdict. Instead we have the same specific essential ultimate issue on which appellant prevailed in the first trial and now seeks to foreclose a second prosecution of that issue. Thus we need not look beyond identity of the controlling issues under Article 37.071(b) to conclude that a rational jury could not have grounded a complete punishment verdict upon any other issue.

4 . We observe, however, the Supreme Court recognizes "that when application of our traditional double jeopardy analysis would bar a subsequent prosecution, ‘[an] exception may exist where ... the additional facts necessary to sustain that [first] charge have not occurred or have not been discovered despite the exercise of due diligence. See ... Ashe v. Swenson, [397 U.S. 436, 453, n. 7, 90 S.Ct. 1189, 1194, n. 7, 25 L.Ed.2d 469 (1970)] (Brennan, J., concurring).' ” Grady v. Corbin, 495 U.S. 508, 516, n. 7, 110 S.Ct. 2084, 2090, n. 7, 109 L.Ed.2d 548 (1990).