Guadalupe De Leon Acuna v. State

Opinion

ACCEPTED 13-13-00633-CR FILED THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS IN THE 13TH COURT OF APPEALS 9/3/2015 5:12:04 PM CORPUS CHRISTI Dorian E. Ramirez CLERK 9/3/15 DORIAN E. RAMIREZ, CLERK NO. 13-13-0633-CR BY DTello RECEIVED IN 13th COURT OF APPEALS In the CORPUS Thirteenth Court of CHRISTI/EDINBURG, TEXAS Appeals 9/3/2015 5:12:04 PM Edinburg, Texas DORIAN E. RAMIREZ Clerk

GUADALUPE DELEON ACUNA Appellant

v.

State of Texas Appellee

On Appeal from Cause Number CR-4071-11-H 389TH Judicial District Court of Hidalgo County, Texas Hon. Jaime Garza Presiding

AMENDED APPELLANT’S BRIEF

NO ORAL ARGUMENT REQUESTED O. RENE FLORES State Bar Number 24012637 O. Rene Flores, P.C. 1308 S. 10th Avenue Edinburg, Texas 78539 (956) 383-9090 Telephone (956) 383-9050 Facsimile Counsel for Appellant

1|Page IDENTITY OF PARTIES AND COUNSEL

Appellant Appellate Counsel Guadalupe DeLeon Acuna Oscar Rene Flores O. Rene Flores, P.C. 1308 S. 10th Avenue Edinburg, Texas 78539 (956) 383-9090 Tel. (956) 383-9050 Fax

Trial Counsel Rogelio Garza 310 West University McAllen, Texas 78539 (956) 316-1375 Tel.

And

Abiel Flores 10213 N. 10th Street McAllen, Texas 78504 (956) 386-0642 Tel.

Appellee Trial Counsel State of Texas Hope Davis Palacios Hidalgo County DA Asst. Crim. D.A. 100 N. Closner Edinburg, Texas 78539 (956) 318-2300 Tel. (956) 318-2301 Fax

Appellate Counsel Theodore “Ted” Hake Hidalgo County DA Appellate Division 100 N. Closner Edinburg, Texas 78539 (956) 318-2300 Tel. (956) 318-2301 Fax

2|Page TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL……………………………………………………………2

TABLE OF CONTENTS…………………………………………………………………………………………………3

INDEX OF AUTHORITIES…………………………………………………………………………………………4

NOTE RGARDING CITATION…………………………………………………………………………………10

STATEMENT OF THE CASE……………………………………………………………………………………12

STATEMENT REGARDING ORAL ARGUMENT……………………………………………………13

ISSUES PRESENTED…………………………………………………………………………………………………14

STATEMENT OF FACTS……………………………………………………………………………………………14

SUMMARY OF THE ARGUMENT………………………………………………………………………………17

ARGUMENT………………………………………………………………………………………………………………………18

Issue One……………………………………………………………………………………………………………………18

Issue Two……………………………………………………………………………………………………………………19

Issue Three………………………………………………………………………………………………………………19

CONCLUSION………………………………………………………………………………………………………………119

PRAYER…………………………………………………………………………………………………………………………124

CERTIFICATE OF SERVICE………………………………………………………………………………125

3|Page INDEX OF AUTHORITIES

CASES

 Abbate v. United States, 359 U.S. 187 (1959)…………………44

 Abney v. U.S., 431 U.S. 651, 660-62 (1977)………………………21

 Ashe v. Swenson, 397 U.S. 436, 445 n. 10 (1970)……………

………………………………………………………………………………………23, 27, 28, 29,30, 52

 Bartkus v. Illinois, 359 U.S. 121 (1959)……………………………44

 Blockburger v. United States, 284 U.S. 299, 304

(1932)……………………………………………………………………………………………………………19, 39

 Brown v. Ohio, 432 U.S. 161 (1977)……………………………………38,39

 Crist v. Bretz, 437 U.S. 28,29 (1978)…………………………20, 48

 Ex Parte Lange, 85 U.S. 163, 168-169 (1873)……………………20

 Flittie v. Solem, 775 F.2d 933 (8th Cir. 1985), cert.

denied, 475 U.S. 1025 (1986)………………………………………37, 39, 43

 Green v. United States, 355 U.S. 184, 187-88 (1957)

…………………………………………………………………………………………………………38, 43,47, 51

 Harris v. Washington, 404 U.S. 55 (1971)……………………………35

 Heath v. Alabama, 474 U.S. 82 (1985)………………………………………44

 Hicks v. Unied States, 108 S.Ct. 95 (1987)………………………36

4|Page  Hoag v. New Jersey, 356 U.S. 464 (1958)………………………………27

 Iannelli v. United States, 420 U.S. 770 (1975)……………39

 Illinois v. Vitale, 447 U.S. 410

(1980)………………………………………………………………………………39, 40, 41, 42,46

 Illinois v. Somerville, 410 U.S. 458, 463

(1973)………………………………………………………………………………………………………………………50

 People v. Goodman, 69 N.Y. 2d 32, 36-44, 503 N.E.2d35

996, 999-1003, 511 N.Y.S.2d 565, 568-72 (1986)……………37

 Pinkerton v. United States, 328 U.S. 640, 66 S. Ct.

1180, 90 L. Ed. 1489…………………………………………………………………………………57

 Riley v. State, 181 Ga. App. 667, 353 S.E.2d 598

(1987)………………………………………………………………………………………………………………………36

 Sanabria v. United States, 437 U.S. 54, 64 (1978)……50

 Sealfon v. United States, 332 U.S. 575, 579, 68 S.

Ct. 237, 92 L. Ed. 180 (1947)………………………………25, 26,50,77

 Simpson v. Florida, 403 U.S. 384 (1971)………………………………35

 Standefer v. United States, 447 U.S. 10 (1980)……………35

 The Evergreens v. Nunan, 141 F.2d 927 (2d Cir. 1944)

cert. denied, 323 U.S. 720 (1944)……………………………………………37

5|Page  Turner v. Arkansas, 407 U.S. 366 (1972)………………………………35

 United States v. Adams, 281 U.S. 202 (1930)……………………25

 United States v. Addington, 471 F.2d 560, 566 (10th

Cir. 1973)……………………………………………………………………………………………………………44

 United States v. Crispino, 586 F.Supp. 1525 (D.N.J.

1984)…………………………………………………………………………………………57, 58, 59,60

 United States v. Day, 591 F.2d 861 (D.C. Cir.

1978)…………………………………………………………………………………………………………………………36

 United States v. Deerman, 837 F.2d 684, 690 (5th

Cir.1988)………………………………………………………………………………………………………………20

 United States v. Gentile, 816 F.2d 1157 (7th Cir.

1987)…………………………………………………………………………………………………………………………37

 United States v. Gornto, 792 F.2d 1028 (11th Cir.

1986)3………………………………………………………………………………………………………………………36

 United States v. Johnson, 697 F.2d 735 (6th Cir.

1983), cert. denied sub nom. …………………………………………………………36

 United States v. Keller, 624 F.2d 1154 (3d Cir. 1980)

………………………………………………………………………………………………………………………………………36

 United States v. Kills Plenty, 466 F.2d 240 (8th Cir.

1972), cert. denied, 410 U.S. 916 (1973) 6|Page ………………………………………………………………………………………………………43, 44, 45,46

 United States v. Larkin, 605 F.2d 1360, 1361 (5th Cir.

1979), cert. denied, 446 U.S. 939 (1980)……………………………25

 United States v. Levy, 803 F.2d 1390, 1397 (5th Cir.

1986)…………………………………………………………………………………………………………………………39

 United States v. Mespoulede, 597 F.2d 329 (2d Cir.

1979)…………………………………………………………………………………………………………………36,37

 United States v. Mock, 640 F.2d 629 (5th Cir.

1981)…………………………………………………………………………………………………………………………59

 United States v. Mock,604 F.2d 341 (5th Cir.

1979)…………………………………………………………………………………………………………………………58

 United States v. One Assortment of 89 Firearms, 465

U.S. 354 (1984) ……………………………………………………………………………………………36

 United States v. Oppenheimer, 242 U.S.85

(1916)………………………………………………………………………………………………………………………25

 United States v. Scott, 437 U.S. 82 (1978)……………50, 51

 United States v. Sutton, 732 F.2d 1483 (10th Cir.

1984)…………………………………………………………………………………………………………………………37

 United States v. Van Cleave, 599 F.2d 954 (10th Cir.

1979)…………………………………………………………………………………………………………………………37

7|Page  United States v. Watts, 519 U.S. 148, 117 S. Ct.633,

136 L.Ed.2d 554 (1991)……………………………………………………………………………77

 United States v. Wheeler, 435 U.S. 313, 328 (1978)…43

 Wingate v. Wainwright, 464 F.2d 209 (5th Cir.

1972)…………………………………………………………………………………………………………………………36

 Yawn v. United States, 244 F.2d 235 (5th Cir.

1957)…………………………………………………………………………………………………………………………54

 Yates v. United States, 354 U.S. 298 (1957)……………………37

STATUTES

 Texas Rules of Appellate Procedure 43 (O’Connor’s

Texas Criminal Codes Plus (2014-2015)

 TEX. Penal. Code Ann. Section 15.02 O’Connor’s Texas

Criminal Codes Plus (2010-2011)

 TEX. Penal. Code Ann. Section 19.02 (O’Connor’s Texas

8|Page Secondary Sources

 Black’s Law Dictionary 6th Edition………………………………………………78

 W. LAFAVE & J. ISRAEL, CRIMINAL PROCEDURE § 17.4

(1985)………………………………………………………………………………………………………………………27

 Lugar, Criminal Law, Double Jeopardy and Res

Judicata, 39 IOWA L. REV. 317 (1954)………………………………………27

 Mayers & Yarbrough, Bis Vexari: New Trials and

Successive Prosecutions, 74 HARV. L. REV. 1

(1960)………………………………………………………………………………………………………………………27

 Comment, Twice in Jeopardy, 75 YALE L.J. 262

(1965)………………………………………………………………………………………………………………27,29

 Note, The Double Jeopardy Clause as a Bar to

Reintroducing Evidence, 89 YALE L.J. 962 (1980)…………27

 Case Comment, The Use of Nonmutual Collateral

Estoppel by Criminal Defendants: United States v.

Standefer, 93 HARV. L. REV. 804 (1980)…………………………………35

 Vestal, Issue Preclusion and Criminal Prosecutions,

65 IOWA L. REV. 281 (1980)…………………………………………………………………36

9|Page  Note, Evidentiary Use of Prior Acquitted Crimes: The

“Relative Burdens of Proof” Rationale, 64 WASH.

U.L.Q. 189 (1986)……………………………………………………………………………………….37

 E. Imwinkelried, Uncharged Misconduct Evidence §

10.06 at 12 (1984)…………………………………………………………………………………….37

 Note, Collateral Estoppel Effect of Prior Acquittals:

United States v. Mespoulede, 46 BROOKLYN L. REV. 781

(1980)………………………………………………………………………………………………………………………37

 Note, Perjury by Defendants: the Uses of Double

Jeopardy and Collateral Estoppel, 74 HARV. L. REV.

752, 758-59 (1961)………………………………………………………………………………………37

 Model Rules Of Professional Conduct Rule 3.8(A)

………………………………………………………………………………………………………………………………………55

 Thomas, The Prohibition of Successive Prosecutions

for the Same Offense: In Search of a Definition, 71

IOWA L. REV. 323 (1986)Comment, supra note

12…………………………………………………………………………………………………………………………………39

 Westen & Drubel, Toward a General Theory of Double

Jeopardy, 1978 SUP. CT. REV. 81 (1979)…………………………………50

10 | P a g e CONSTITUTUIONAL PROVISIONS

 Fifth Amendment to the Constitution of the United

States of America ……………………………………………………18, 34, 35,122

 Fourteenth Amendment to the Constitution of the

United States of America…………………………………………………………19, 122

Note regarding citation

This appeal involves a double jeopardy challenge

and as such required the undersigned to review the

record on appeal in this case but also required review

of the record from the previous trial ending in

acquittal. As such, throughout this brief, counsel

refers to both at different times. In an effort to

assist this Honorable Court, the following citations

are explained for easier reference throughout:

For the Clerk’s Record in Trial Court Cause number

CR-2725-10-H, counsel cites for example 1CR@_, whereas

reference to the second trial – the instant case – will

be cited for example as 2CR@_.

In addition, any reference to the Reporter’s Record

from the first trial will be cited for example as

11 | P a g e 1RR_@_, whereas any reference to the Reporter’s Record

in the second trial – this case - will be cited for

example as “2RR_@_.”

12 | P a g e TO THE HONORABLE JUSTICES OF THE THIRTEENTH COURT OF APPEALS:

Appellant, Guadalupe DeLeon Acuna, files this brief

requesting reversal of the trial court’s judgment,

rendering a judgment of acquittal on Count One.1

Appellant Acuna respectfully shows:

STATEMENT OF THE CASE

A. Course of Proceedings/Disposition in the Court Below.

This was a criminal case brought pursuant to

Indictment in Hidalgo County Texas accusing Guadalupe

Acuna (hereinafter referred to as Appellant Acuna) of

Conspiracy to Commit Murder in trial court cause number

CR-4760-11-H.

Prior to the instant prosecution, Appellant Acuna

was indicted for the offense of murder and acquitted in

Cause Number CR-2725-10-H. That case was tried to a

jury and Appellant Acuna was acquitted.2

Then Appellant Acuna was indicted by a Hidalgo

1 Count Two was dismissed by the State - (First Trial Clerk's Transcript) 1CR@204, 205 2 (First Trial Clerk's Transcript) 1CR@206

13 | P a g e County Grand Jury for the offense of Conspiracy to

Commit Murder in Trial Court Cause Number CR-4071-11-H.3

This case was tried to a jury which convicted Appellant

Acuna and sentenced her to imprisonment in the

Institutional Division of the Texas Department of

Corrections for a period of twenty (20) years. This

appeal ensued.4

STATEMENT REGARDING ORAL ARGUMENT

Appellant Acuna is not requesting Oral Argument at this

time.

3 1CR@3-4; This new indictment was based on the same criminal episode as that relied upon in the previous case, trial court cause number CR-2725-10-H, where Appellant Acuna was acquitted; 1CR@8, 200 4 See TRAP 43; TEX. Penal. Code Ann. Section 15.02 & 19.02; CR@3, 304

14 | P a g e ISSUES PRESENTED

ISSUE ONE:

Appellant Acuna’s acquittal on the murder charge in

Cause number CR-2725-10-H bars a subsequent trial on a

charge of Conspiracy to Commit Murder - the same

murder.

ISSUE TWO:

The trial court erred in denying defendant’s Special

Plea of Double Jeopardy.5

ISSUE THREE:

The doctrine of collateral estoppel bars the re-

introduction of evidence previously admitted against

Appellant Acuna where Appellant Acuna was acquitted of

the same murder.6

STATEMENT OF FACTS

Appellant Acuna submits the following facts

pertinent to the issues on appeal. In trial Court

Cause Number CR-2725-10-H, Appellant Acuna was indicted

for the offense of Murder.7 The facts at trial were as

5 2CR@345, 327 6 2CR@199; RR2@4-14 7 1CR@8-9

15 | P a g e follows. On July 3, 2010, at the Donna Lakes in Donna,

Texas, Jose Guadalupe Fiscal was murdered. He was

stabbed approximately 45 times and his body was burned

as was his vehicle.8 The investigation identified

Antonio DeLeon and Juan Manuel Salazar as the “actual

killers.” They stabbed Fiscal; they burned his body.9

The investigation identified Appellant Acuna as

DeLeon’s mother and Salazar’s sister-in-law. They

lived in Donna, Texas together with the victim,

Fiscal.10

Fiscal, upon reconciling with his wife, Alma

Fiscal, was attempting to break up with Appellant

Acuna, who he’d been seeing and living with for some

time.11 The State alleged at trial that Appellant

Acuna, in a fit of jealous rage, orchestrated a plan to

kill Fiscal.12 She was accused of “asking DeLeon and

Salazar to kill Fiscal.” It was the State’s theory

that Appellant Acuna wanted Fiscal dead and that she

8 2RR7@24-25; 1RR5@22-24 9 1RR3@41-42; 1RR4@53; 2RR7@110 10 2RR7@94-96; 1RR4@47 11 1RR5@160-161, 185; 2RR9@104 12 1RR2@98,128

16 | P a g e was “criminally responsible” for acts committed by

DeLeon and Salazar and the actual killing. According

to the State, she was the one who “asked” Fiscal to

take a drive to the crime scene; she was the one who

“asked” DeLeon and Salazar to kill Fiscal.13 These

facts came out during a trial in the 389th District

Court in trial court cause number CR-2725-10-H, where

the jury, after deliberating on the Law of Parties,

acquitted Appellant Acuna of Murder in April of 2011.14

Then in September of 2011, Appellant Acuna was

indicted for “Conspiracy to Commit Murder.” She once

again was charged with the murder of Jose Guadalupe

Fiscal, only this time charged with conspiracy to

commit the same murder.15 The defense entered a Special

Plea in Bar claiming Appellant Acuna was being twice

placed in jeopardy for the same offense citing the

acquittal in CR-2725-10-H. That Special Plea was denied

13 The first jury was asked to find that Appellant Acuna “asked” the victim to drive to the crime scene, whereas the second jury was asked to find that Appellant Acuna “lured Jose Guadalupe Fiscal to the location where he was killed.” 1CR@196; 2CR@82 14 1CR@200 15 2CR@3-4

17 | P a g e and Appellant Acuna was forced to run the gauntlet

again.16

At trial, the State presented the same theory,

witnesses and evidence as was presented to the first

jury. Here, Appellant Acuna was accused of “performing

over acts in furtherance of the conspiracy” to commit

the murder by “luring” Fiscal to the place where was to

be killed; She was accused of “directing” DeLeon and

Salazar to kill Fiscal. This time, the jury convicted

Appellant Acuna of Conspiracy to Commit Murder and the

jury assessed punishment at imprisonment in the

Corrections for a period of Twenty (20) years and a fin

e of $10,000.17

SUMMARY OF THE ARGUMENT

Appellant Acuna was twice put in jeopardy for the

“same offense” in violation of her rights under the

Fifth Amendment and the Due Process Clause of the

16 2CR@327,345 17 2CR@87, 94

18 | P a g e Fourteenth Amendment to the Constitution of the United

States of America.

The Double-Jeopardy Clause does not necessarily bar

subsequent prosecution for acts that can be proven and

punished under different statutory provisions requiring

proof of different elements.18

However, Collateral Estoppel guarantees “when an

issue of ultimate fact has once been determined by a

valid and final judgment, the issue cannot again be

litigated between the same parties in any future

lawsuit.

Collateral estoppel affects successive criminal

prosecutions in two ways. First, it completely bars

subsequent prosecution if a fact necessarily determined

in the former trial is an essential element of the

subsequent prosecution.19 Second, where subsequent

prosecution is allowed to proceed, collateral estoppel

bars introduction or argumentation of facts necessarily

18 Blockburger v. United States, 284 U.S. 299, 304 (1932). 19 The first jury was instructed to deliberate on the Law of Parties; the second trial requires the element of an "agreement.”

19 | P a g e decided in the prior proceeding.20 In this appeal, both

applications of collateral estoppel are at issue.21

ARGUMENT AND AUTHORITIES

ISSUE NUMBER ONE (Re-stated)

Appellant Acuna’s acquittal on the murder charge in Cause number CR-2710-10-H bars a subsequent trial on a charge of conspiracy to commit the same murder.

ISSUE NUMBER TWO (Re-stated)

The trial court erred in denying defendant’s motion to dismiss indictment on double jeopardy grounds.

ISSUE NUMBER THREE (Re-stated)

The doctrine of collateral estoppel bars the re- introduction of evidence previously admitted against Appellant Acuna where Appellant Acuna was acquitted of the same murder.

Appellant Acuna respectfully asks this Court to

consider Issues 1, 2 and 3 together. Appellant Acuna

submits the following Argument and Authorities in

support of her argument for all three.

The Double Jeopardy Clause protects a defendant

20 See i.e. United States v. Deerman, 837 F.2d 684, 690 (5th Cir. 1988) 21 The Double Jeopardy Clause bars a second prosecution for the same offense once jeopardy attaches. Ex Parte Lange, 85 U.S. 163, 168-169 (1873). Since the case in Cause No. CR-2725-10-H was actually litigated to a verdict of acquittal, jeopardy attached. Crist v. Bretz, 437 U.S. 28,29 (1978).

20 | P a g e from the risk of being punished twice for the same

offense.22 In this case the jury found Appellant Acuna

guilty based entirely on the conduct for which she was

already tried and acquitted.23 In the Application

paragraph of the Jury Charge from the first trial, the

jury was instructed:

Now, if you find from the evidence beyond a

reasonable doubt that on or about JULY 3, 2010, in

Hidalgo County, Texas, Juan Manuel Salazar or

Antonio DeLeon, did then and there intentionally or

knowingly cause the death of an individual, namely,

Jose Guadalupe Fiscal, by stabbing him with a

deadly weapon, to wit: a knife, and that the

Defendant, GUADALUPE DE LEON ACUNA, acted with

intent to promote or assist the commission of the

offense by Juan Manuel Salazar or Antonio DeLeon by

encouraging, directing, aiding, or attempting to

aid Juan Manuel Salazar or Antonio DeLeon to commit 22 Abney v. U.S., 431 U.S. 651, 660-62 (1977). 23 2CR@199, 341, 345; The facts, evidence and theory of prosecution of the instant for Conspiracy to Commit Murder are the same facts, evidence and theory used by the prosecution in the first trial. The first jury was instructed to consider the principles of the Law of Parties and in doing so found in Appellant Acuna’s favor as evidenced by their verdict of not guilty. 1CR@195-196, 206

21 | P a g e the offense of MURDER, by asking Jose Guadalupe

Fiscal to drive to the crime scene,24 or by texting

Juan Manuel Salazar to give notice that she and

Jose Guadalupe Fiscal were on their way to the

crime scene,25 or by texting Antonio DeLeon that she

wanted Jose Guadalupe Fiscal six feet under, or by

texting Antonio DeLeon that she wanted Jose

Guadalupe Fiscal down so so bad, or by asking Juan

Manuel Salazar or Antonio DeLeon to kill Jose

Guadalupe Fiscal,26 then you will find the Defendant

"Guilty" of the offense of MURDER as charged in the

indictment.

Unless you so find beyond a reasonable doubt,

or if you have a reasonable doubt thereof, you will

acquit the Defendant and say by your verdict, "Not 24 The first jury was asked to find that Appellant Acuna “asked” the victim to drive to the crime scene, whereas the second jury was asked to find that Appellant Acuna “lured Jose Guadalupe Fiscal to the location where he was killed.” 1CR@196; 2CR@82 25 Note in the first trial, the jury was asked to find that Appellant Acuna “gave notice” to Juan Manuel Salazar that she and the victim were on the way to the crime scene, whereas the second jury charge was asked to find beyond a reasonable doubt that Appellant Acuna “notified” Juan Manuel Salazar that she and the victim were traveling to the location where he was to be killed.” 1CR@196; 2CR@82-83 26 Note in the first trial, the jury was asked to find that Appellant Acuna “asked” Juan Manuel Salazar or Antonio DeLeon to kill the victim, whereas the second jury was asked to find beyond a reasonable doubt that Appellant Acuna “dircetd or told” Juan Manuel Salazar or Antonio DeLeon to kill the victim.” 1CR@196; 2CR@83

22 | P a g e Guilty."27

Reviewing the indictment in the instant case,

Appellant Acuna is charged with “conspiracy” where

specifically, she’s indicted for having an intent that

a murder be committed and entering into an agreement

with Antonio DeLeon and Juan Manuel Salazar that they

commit the murder. The State’s theory in this case was

Appellant Acuna’s “overt acts” in furtherance of the

conspiracy were that 1) she lured Jose Guadalupe Fiscal

to the location where he was killed; 2) that she

notified Salazar that she and the victim were on the

way to the location where the victim was to be killed;

3) that she directed or told Juan Manuel Salazar to

kill Fiscal; 4) that she directed or told Antonio

DeLeon to kill Fiscal.28

As stated by the United States Supreme Court in

Ashe v. Swenson:

“In more recent times with the advent of

specificity in draftsmanship and the extraordinary

27 1CR@195, 196, 200; 2CR@82-83, 87 28 2CR@3-4; See also 1CR@196 (the jury charge from the first trial where the jury was instructed to consider these exact ultimate facts.)

23 | P a g e proliferation of overlapping and related statutory

offenses, it became possible for prosecutors to

spin out a startling numerous series of offenses

from a single alleged criminal transaction.“29

Based on the facts and the law, Appellant Acuna

prays this Court find that the State of Texas by and

through its District Attorney of Hidalgo County should

have been barred from trying Appellant for the offense

of “Conspiracy to Commit Murder” after her acquittal

for the offense of the same Murder. Accordingly,

Appellant Acuna avers this case should result in a

judgment of acquittal as it violated Appellant Acuna’s

rights against double jeopardy, collateral estoppel and

issue preclusion.

“Cases involving the arcane principles of double

jeopardy and collateral estoppel are not

susceptible of bright-letter law or black-letter

law; these areas are most often gray, and dimly to

be seen. Needless to say, one entering this field

29 397 U.S. 436, 445 n. 10 (1970)

24 | P a g e must do so with trepidation.”30

A. Collateral Estoppel in Criminal Cases

The Supreme Court first applied “collateral

estoppel” to a criminal proceeding in United States v.

Oppenheimer.31 The claim there was not based on a prior

acquittal, but rather on a pre-trial legal ruling

favorable to the defendant.32 Subsequently, in United

States v. Adams33 and Sealfon v. United States,34 the

Court recognized that collateral estoppel could apply

30 United States v. Larkin, 605 F.2d 1360, 1361 (5th Cir. 1979), cert. denied, 446 U.S. 939 (1980) 31 242 U.S.85 (1916) 32 Id. at 86 The defendant in Oppenheimer obtained a ruling that his prosecution for violating the Federal Bankruptcy Act was barred by the Act’s statute of limitations. After the statute of limitations ruling was held to be wrong in an unrelated case, the government again filed charges against the defendant. In response, the defendant invoked the prior determination that his prosecution was barred by the statute of limitations as a defense to the subsequent prosecution. The Court explained that because the defendant had never been in “jeopardy” on the charges, the double jeopardy clause did not protect him from the subsequent prosecution. Id at 87. At any rate, the Court stated that “it cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt.” While the Court ultimately held that the second prosecution was barred, it did not base its decision on constitutional considerations. Rather, the Court based its decision on the notion that “a plea of the statute of limitations is a plea to the merits” (citation omitted), and stated: The safeguard provided by the Constitution against the gravest abuses has tended to give the impression that when it did not apply in terms, there was no other principle that could. But the fifth amendment was not intended to do away with what in the civil law is a fundamental principle of justice (citation omitted), in order, when a man once has been acquitted on the merits, to enable the government to prosecute him a second time. Id at 88 33 281 U.S. 202 (1930) 34 332 U.S. 575 (1948)

25 | P a g e to bar prosecution after acquittal on related charges.

In Adams, the Court held that the collateral estoppel

doctrine did not bar the second prosecution because the

acquittal was ambiguous.35 In Sealfon, the Court held

that the defendant’s acquittal on conspiracy charges

barred prosecution for aiding and abetting his alleged

co-conspirator in perpetrating the substantive

offense.36 The Court acknowledged that the two crimes

were not “the same offense within the meaning of the

double jeopardy clause,” so basic double jeopardy

protection did not prevent the defendant from being

prosecuted and punished for both. Nevertheless, the

Court barred the second prosecution on the basis of the

collateral estoppel doctrine.37

35 Adams, 281 U.S. at 204. The defendant was being prosecuted for making a false entry in a report on the defendant’s bank. Id. at 203. The Court found that the defendant’s prior acquittal on false entry charges relating to conduct that had occurred earlier in the course of the same allegedly fraudulent transaction was not broad enough to foreclose the later prosecution. Id. at 205. The Court concluded that the acquittal could reflect the jury’s determination that, although the entries were false, the defendant believed them to be true or justified. Id. The Court also concluded that, despite such a determination by the acquitting jury, another jury could conclude that the defendant had “acquired more accurate knowledge” before he made the later report, which was the subject of the second prosecution. Id. 36 Sealfon, 332 @580 37 Id. at 578-80. The defendant in Sealfon had concededly written a letter which furthered the goals of the alleged conspiracy. Id. at 576. The Court noted that acquittal on the conspiracy charges could only reflect a decision

26 | P a g e None of the early collateral estoppel decisions

were decided on constitutional grounds.38 Because the

Court had previously applied the double jeopardy clause

only to protect against re-prosecution for the same

offense, and the courts had not yet construed “same

offense” broadly enough, commentators noted the need to

supplement double jeopardy protection.39

The Supreme Court provided that additional

that the defendant “did not do so pursuant to an agreement with [the alleged coconspirator] Greenberg to defraud.” Id. at 580. Yet, the government’s only theory in the second trial was that the defendant had written the letter pursuant to an agreement with Greenberg and had thereby aided and abetted him to defraud the government. The Court therefore held that once the first jury had refused to find such an agreement, collateral estoppel barred the government from a second attempt to establish an agreement between the defendant and Greenberg. With no alternate theory on which to proceed, the government was barred from conducting the second prosecution. 38 See Hoag v. New Jersey, 356 U.S. 464 (1958) overruled by Ashe v. Swenson, 397 U.S. 436 (1970). In Hoag the Court rejected a claim for constitutional protection. The Court approached the question as one of fundamental fairness. The Court stated “[d]espite its wide employment, we entertain grave doubts whether collateral estoppel can be regarded as a constitutional requirement. Certainly this Court has never so held.” Id. at 471. See also W. LAFAVE & J. ISRAEL, CRIMINAL PROCEDURE § 17.4 (1985)

39 See e.g., Lugar, Criminal Law, Double Jeopardy and Res Judicata, 39 IOWA L. REV. 317 (1954) (discussing inadequacy of “same transaction” test); Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 HARV. L. REV. 1 (1960) (discussing problems with defining offense) [hereinafter Mayers]; Comment, Twice in Jeopardy, 75 YALE L.J. 262 (1965) (discussing problems in determining what constitutes “same offense”); see also Note, The Double Jeopardy Clause as a Bar to Reintroducing Evidence, 89 YALE L.J. 962 (1980) (discussing the inadequacy of the “same offense” test and collateral estoppel).

27 | P a g e protection in Ashe v. Swenson.40 In Ashe, the Supreme

Court held collateral estoppel constitutes an aspect of

double jeopardy protection and, therefore, is binding

on the states.41

There, Ashe was not prosecuted twice for the “same

offense” as defined by the Court, but the circumstances

of his re-prosecution after acquittal illustrated the

potential for prosecutorial abuse and circumvention of

double jeopardy protection.42

So, the Ashe Court confronted the need for

additional protection to further the overall purpose of

the double jeopardy clause. In Ashe, six participants

in a poker game were robbed by three or four masked

gunmen.43 After the robbery, the gunmen stole a car and

fled.44 Four men, one of whom was Bobby Ashe, were

charged with seven separate offenses-the armed robbery

of each of the six poker players and the theft of the

40 397 U.S. 436 (1970). 41 Id. at 445. 42 Id. at 439-40. 43 Id. at 437. 44 Id. The car belonged to one of the six robbery victims and was later found abandoned in a field. Id.

28 | P a g e car.45 At Ashe’s first trial, the evidence established

clearly the named victim, Knight, was indeed a victim

of armed robbery and that his personal property, as

well as that of the other players, was taken in the

robbery.46 The evidence connecting Ashe to the incident,

however, was unconvincing because it was not clear that

there had been four robbers and the three other

defendants had been arrested together.47 Further, the

evidence identifying Ashe as one of the robbers was

weak.48 The jury acquitted Ashe.49 Six weeks later, the

state brought Ashe to trial for the robbery of a second

participant in the same poker game. This second

proceeding did not place Ashe twice in jeopardy for the

“same offense” because each offense required proof of a

fact the other did not - the identity of the robbery

victim and his loss of property. Although the

45 Id. at 438 46 Id. The Court noted that the proof was “unassailable.” 47 Id. at 437. Three of the four defendants were arrested in the vicinity of where police had found the stolen car, whereas Ashe was arrested “some distance away” from that area. Id. 48 Id. at 438. Two of the victims could not identify Ashe as one of the robbers, while two other victims could identify Ashe only by the sound of his voice or certain mannerisms. Id. 49 Id. at 439.

29 | P a g e prosecution failed to persuade the initial jury beyond

a reasonable doubt that Ashe was one of the robbers,

traditional double jeopardy protection as contemplated

at that time would not shield him from the successive

prosecutions. The state was thus afforded six

additional opportunities to prove that Ashe had

participated in the robbery. At the second trial, the

State presented more convincing evidence that Ashe had

been one of the robbers.50 As a result of this stronger

presentation, the second jury convicted Ashe for his

participation in the robbery.51

As will by discussed further below, Appellant Acuna

urges this Court to recognize the similarity here. In

this case, the State presented a wealth of testimony

and evidence in the first trial. However, that first

jury found in favor of Appellant Acuna and acquitted

her. The State then was afforded the opportunity to

“refine” their case and re-present the testimony and 50 Id. at 439-40. The two victims who were unable to identify Ashe as one of the robbers in the first trial were able in the second trial to identify him through his physical features and mannerisms. Id. at 440. Moreover, one of the witnesses who had not been helpful to the prosecution’s case in the first trial was not called to testify in the re-prosecution. Id. 51 Id. Ashe was sentenced to 35 years in the Missouri State Penitentiary. The Missouri Supreme Court affirmed the conviction. Id.

30 | P a g e evidence. The State was afforded to a “do-over” since

the first trial revealed its weaknesses. The State,

while presenting the same case, presented it

differently after seeing what worked and what didn’t

work the first time around.

Ultimately, the Supreme Court in Ashe held the

conviction could not stand.52 holding specifically the

initial acquittal resolved the issue of whether Ashe

was one of the robbers and resolved it in Ashe’s

favor.53 The doctrine of collateral estoppel therefore

precluded the prosecution from re-litigating the

question of Ashe’s identity as one of the robbers in

the second trial.54 Since proof of identity was

essential to the second prosecution, and was therefore

an “issue of ultimate fact,” Ashe could not be

convicted unless the prosecution could re-litigate that

issue. As a result, the collateral estoppel doctrine

shielded him from further prosecution for his alleged

52 Id. at 445 53 Id. at 446. 54 Id.

31 | P a g e involvement in the criminal episode.55

Similarly, in the instant case, the first jury

considered the ultimate fact of whether Appellant

Acuna, Juan Manuel Salazar and Antonio DeLeon

“conspired” or “agreed” that Fiscal be killed. The

record on appeal is clear that the State’s theory in

the first trial was one of conspiracy. Although they

didn’t call it “conspiracy,”56 the State’s theory was

that Appellant Acuna wanted Fiscal dead; that Appellant

Acuna directed or “orchestrated” the murder; that

Appellant Acuna “called upon DeLeon and Salazar to

commit the murder for her; that Appellant Acuna

performed these “overt acts” in furtherance of her

orchestration. Argument regarding these assertions are

set out more specifically below.57

The Ashe Court acknowledged the difficulty in

determining the issues resolved by a general verdict of

“not guilty” and called on earlier decisions applying

55 Id. 56 Note that Appellant Acuna was originally charged with “conspiracy” to commit murder in Count Two of the first indictment – CR-2725-10-H. This Count was dismissed by the State. 1CR204 57 1CR@8, 196; 2CR@8

32 | P a g e the collateral estoppel doctrine in federal criminal

cases for guidance:

“The federal decisions have made clear that the

rule of collateral estoppel in criminal cases is

not to be applied with the hyper-technical and

archaic approach of a 19th century pleading book,

but with realism and rationality. Where a previous

judgment of acquittal was based upon a general

verdict, as is usually the case, this approach

requires a court to 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.58

The Court further stated:

“any test more technically restrictive would, of

course, simply amount to a rejection of the rule of

collateral estoppel in criminal proceedings, at 58 Id. at 444

33 | P a g e least in every case where the first judgment was

based upon a general verdict of acquittal.”59

Because neither the fact that a robbery had

occurred nor the identity of the victims was open to

question, the Court easily concluded that the first

trial had settled the question of whether Ashe had been

one of the robbers.60 Again, here, given the first

jury’s “general verdict” after having been instructed

to consider the language in the jury charge, any

agreement or “conspiracy” between Appellant Acuna, Juan

Salazar and Antonio DeLeon to commit this murder was no

longer open to question.61 This “ultimate fact” was

settled by the first jury.

Further, the Ashe Court addressed the relationship

of the collateral estoppel doctrine to the Fifth

Amendment guarantee against double jeopardy. Noting the

potential for “unfair and abusive” re-prosecutions

presented by the excess number of overlapping statutory

offenses and the resultant utilization of the

59 Id. 60 Id. at 446 61 1CR@3, 196, 200; 2CR@8;

34 | P a g e collateral estoppel doctrine as a federal rule of law

to curb these abuses,62 the Ashe Court concluded

collateral estoppel was indeed among the protections

afforded by the Fifth Amendment.63

Since its decision in Ashe, the Supreme Court has

declined several invitations to limit the collateral

estoppel protection afforded criminal defendants.64 On

other fronts, however, the Supreme Court has refused to

extend the protection and has even restricted it

somewhat.65 In Standefer v. United States,66 for example,

the Court refused to apply collateral estoppel to bar

prosecution of an alleged aider and abettor merely

because the alleged principal had been acquitted.67 The

Court has also limited the extent of protection

62 Id. at 445-46 n.10. 63 Id. at 445. 64 See, e.g., Turner v. Arkansas, 407 U.S. 366 (1972) (acquittal bars re- prosecution even though offenses could not have been tried jointly under state law); Harris v. Washington, 404 U.S. 55 (1971) (acquittal bars re- prosecution even though acquitting jury did not hear all the relevant evidence); Simpson v. Florida, 403 U.S. 384 (1971) (acquittal absolutely bars re-prosecution even though it was preceded by a conviction). 65 Appellant Acuna avers that neither of these “limitations” apply in the instant case, but for a more complete discussion of the doctrine of collateral estoppel, points them out. 66 447 U.S. 10 (1980) 67 Id. at 25-26. For a discussion of Standefer, see Case Comment, The Use of Nonmutual Collateral Estoppel by Criminal Defendants: United States v. Standefer, 93 HARV. L. REV. 804 (1980)

35 | P a g e afforded by the collateral estoppel doctrine in civil

cases.68 An issue may be re-litigated in a civil

proceeding after acquittal on criminal charges as long

as the goal is remedial rather than punitive. Thus,

despite the counter-vailing interest in enforcing the

criminal laws, the Court has applied collateral

estoppel strictly in criminal cases to give the

defendant the benefit of an acquittal.69 The Court

relaxes the protection only when defendants seek a

benefit of someone else’s acquittal and when the

doctrine has been invoked in civil cases.

The Supreme Court has not recently addressed the

use of collateral estoppel regarding use of the

doctrine to restrict the prosecution’s evidence/theory.

Some courts permit this use.70 Many courts hold the

68 See, e.g., United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984) (acquittal on criminal charges involving firearms not preclusive of subsequent in rem proceeding against firearms) 69 1CR@200 70 See, e.g., United States v. Gornto, 792 F.2d 1028 (11th Cir. 1986); United States v. Johnson, 697 F.2d 735 (6th Cir. 1983), cert. denied sub nom. Hicks v. Unied States, 108 S.Ct. 95 (1987); United States v. Mespoulede, 597 F.2d 329 (2d Cir. 1979); United States v. Day, 591 F.2d 861 (D.C. Cir. 1978); Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972); Riley v. State, 181 Ga. App. 667, 353 S.E.2d 598 (1987); see also United States v. Keller, 624 F.2d 1154 (3d Cir. 1980) (discussing the question and restating that circuit’s position that the evidence is barred by non-constitutional doctrine of collateral estoppel which prohibits re-litigation of decided facts); Vestal, Issue Preclusion and Criminal Prosecutions, 65 IOWA L. REV. 281 (1980)

36 | P a g e doctrine is limited to those cases where an ultimate

fact was resolved in the defendant’s favor in a prior

proceeding.71 The Supreme Court ultimately agrees. In

Yates v. United States,72 over a decade before its

decision in Ashe, the Supreme Court stated: “The normal

rule is a prior judgment need be given no conclusive

effect at all unless it establishes one of the ultimate

facts in issue in the subsequent proceeding. So far as

merely evidentiary or ‘mediate’ facts are concerned,

the doctrine of collateral estoppel is inoperative.”73

If Courts limit the doctrine in this manner, the

(courts more willing to use preclusion doctrine to foreclose repetitive litigation); Note, Evidentiary Use of Prior Acquitted Crimes: The “Relative Burdens of Proof” Rationale, 64 WASH. U.L.Q. 189 (1986) (suggests that courts should exclude evidence from prior acquitted crimes only if it is necessary to prove same ultimate fact); but see United States v. Gentile, 816 F.2d 1157 (7th Cir. 1987) (acquittal on charge of interstate commerce violation not preclusive of use of same testimony on retrial to prove charge of cocaine possession). 71 See, e.g., Flittie v. Solem, 775 F.2d 933 (8th Cir. 1985), cert. denied, 475 U.S. 1025 (1986); United States v. Sutton, 732 F.2d 1483 (10th Cir. 1984); United States v. Van Cleave, 599 F.2d 954 (10th Cir. 1979); see also People v. Goodman, 69 N.Y. 2d 32, 36-44, 503 N.E.2d 996, 999-1003, 511 N.Y.S.2d 565, 568-72 (1986) (declining to adopt the “evidentiary fact rule” in that case); E. IMWINKELRIED, UNCHARGED MISCONDUCT EVIDENCE § 10.06 at 12 (1984) (“The majority view is that the collateral estoppel doctrine does not apply to the subsequent use of evidence of the act as uncharged misconduct.”); Note, Collateral Estoppel Effect of Prior Acquittals: United States v. Mespoulede, 46 BROOKLYN L. REV. 781 (1980) (advocating that collateral estoppel be limited to ultimate facts); Note, Perjury by Defendants: the Uses of Double Jeopardy and Collateral Estoppel, 74 HARV. L. REV. 752, 758-59 (1961) (discussing various approaches used by courts in applying collateral estoppel in criminal cases); Note, supra note 39. 72 354 U.S. 298 (1957). 73 Id. at 338 (citing The Evergreens v. Nunan, 141 F.2d 927 (2d Cir. 1944)) (other citations omitted), cert. denied, 323 U.S. 720 (1944)).

37 | P a g e doctrine will never act to bar evidence. The harm

against which collateral estoppel protects cannot be

prevented if the protection applies only when the fact

determined in the first trial is also an ultimate fact

in the second trial. Appellant Acuna advocates the

broader construction of collateral estoppel discussed

hereinbelow.

B. Double Jeopardy Protection: “Same Offense” and Re- use of Evidence

Collateral estoppel is not the principal

constitutional protection against re-prosecution.

Double jeopardy bars re-prosecution for the same

offense.74 Double jeopardy applies equally whether the

initial prosecution ended in conviction or acquittal.75

Collateral estoppel therefore must be viewed against

the backdrop of basic double jeopardy protection.76

The role that re-use of evidence, as opposed to

overlap of statutory elements, plays in defining the

“same offense” for purposes of double jeopardy is

74 See Brown v. Ohio, 432 U.S. 161 (1977); Green v. United States, 355 U.S. 184, 187-88 (1957) 75 Brown, 432 U.S. 161, 165; LAFAVE, supra note 11, § 24.1 76 2CR@199, 341, 345

38 | P a g e unclear. The Supreme Court defined “same offense” in

Block-burger v. United States77 and has never departed

from that basic definition. “Where the same act or

transaction constitutes a violation of two distinct

statutory provisions, the test to be applied to

determine whether there are two offenses or only one,

is whether each provision requires proof of an

additional fact which the other does not.”78 In most

cases, comparing the statutory elements will determine

whether the offenses are the same under the Blockburger

test.79 Thus, the Blockburger definition of the “same

offense,” renders the role of the evidence in the

successive trials insignificant to that determination.80

However, the Supreme Court’s decision in Illinois

v. Vitale suggests a broader definition of the “same

77 284 U.S. 299 (1932) 78 Id. at 304 (citations omitted). 79 See, e.g., Flittie v. Solem, 775 F.2d 933, 937 (8th Cir. 1985), cert. denied, 475 U.S. 1025 (1986). See generally Thomas, The Prohibition of Successive Prosecutions for the Same Offense: In Search of a Definition, 71 IOWA L. REV. 323 (1986)(general review and analysis of tests applied by various courts); Comment, supra note 12. 80 See Iannelli v. United States, 420 U.S. 770 (1975), overruled by Brown v. Ohio, 432 U.S. 161 (1977); United States v. Levy, 803 F.2d 1390, 1397 (5th Cir. 1986); Note, supra note 12. In Iannelli the Court noted that “the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.” Iannelli, 420 U.S. at 785 n.17.

39 | P a g e offense.”81 Under that definition, two offenses which

have no overlapping elements could be the same offense

for double jeopardy purposes if the prosecution relied

on the same evidence or theory in both. Prosecution of

the second offense would be barred by the core of

double jeopardy because reliance on the same evidence

would make it the “same offense.” Adopting this

definition of the “same offense” will operate

regardless of whether the first verdict is an acquittal

or a conviction; it will operate independently of

collateral estoppel protection and will eliminate the

need for collateral estoppel protection in some

cases.

In Vitale the Court confronted a claim of double

jeopardy protection where two offenses did not have

overlapping elements; the prosecution was likely to

rely on the same theory in the second proceeding.82

81 447 U.S. 410 (1980); See Eisenberg, Multiple Punishments for the “Same Offense” in Illinois, 11 S. ILL. U.L.J. 217, 244-46 (1987); Thomas, supra note 47, at 382-88. 82 Vitale, 447 U.S. at 418. The second proceeding had not yet occurred because of the litigation concerning the defendant’s double jeopardy claim, therefore the prosecution had never had to commit itself to a theory of prosecution or introduce evidence to support its claim. Nevertheless, as the dissenting

40 | P a g e Vitale was convicted of failing to slow his automobile

at the time of a fatal accident. The state prosecuted

him for involuntary manslaughter, and Vitale claimed

the double jeopardy clause barred further prosecution.83

The statutory elements were not the same, but Vitale

argued the prosecution intended to establish

manslaughter by demonstrating he failed to slow. The

Supreme Court discussed, without entirely settling,

whether double jeopardy protection bars prosecution for

an offense that has different statutory elements but

will be established in part by proving all the elements

of an offense of which the defendant has already been

convicted and for which he has been punished. Because

the first prosecution led to conviction rather than

acquittal, the question of collateral estoppel did not

arise.84 Vitale contended the offenses were the same for

purposes of double jeopardy. However, comparing the

justices pointed out, throughout the lengthy process of litigating the double jeopardy claim, the prosecution had never suggested that it had any other theory on which to pursue the manslaughter charge. Id. at 423 (Stevens, J., dissenting). 83 Id. at 413; Id. at 416-19.

84 Id. at 418-19.

41 | P a g e statutory elements of the two crimes did not establish

that they were the same offense.85 The resolution of

Vitale’s double jeopardy argument turned on his

prediction that the prosecution would rely on his

“failure to slow” to establish an essential element of

the manslaughter offense. The Court’s majority stated

if the prosecution could establish the manslaughter

offense only by proving Vitale’s “failure to slow,” the

defendant’s claim that the second prosecution violated

his double jeopardy protection “would be substantial.”86

Similarly, in the instant case, the first jury settled

the issue of whether Appellant Acuna, Juan Salazar and

Antonio DeLeon acted together pursuant to an agreement

to kill Fiscal.87 Yet, the State’s only theory

presented at the second trial was that in fact

Appellant Acuna, Juan Salazar and Antonio DeLeon acted

together pursuant to an agreement to kill Fiscal.

Vitale thus suggests if elements of an offense

85 Vitale, 447 U.S. at 418; In a given case the prosecution could establish manslaughter by automobile without establishing failure to slow. Id. at 416- 419. 86 Id. 87 1CR@196, 200

42 | P a g e already disposed of would be proven as ultimate facts

in the subsequent prosecution, the two are the “same

offense” and further prosecution and punishment is

foreclosed.88

C. Collateral Estoppel and Double Jeopardy - Preventing Re-use of Evidence

If the first proceeding ends in acquittal

collateral estoppel comes into play as well as basic

double jeopardy protection.89 United States v. Kills

Plenty90 illustrates a situation in which either

collateral estoppel or the conclusion that the two

crimes were the “same offense” would have barred the

second prosecution if brought by the same sovereign.91

88 See generally Flittie v. Solem, 775 F.2d 933 (8th Cir. 1985), cert. denied, 475 U.S. 1025 (1986); Eisenberg, supra note 50, at 244-46; Thomas, supra note 47, at 382-88. 89 See Green v. Ohio, 455 U.S. 976, 980-81 (1982) (White, J., dissenting) (in order denying certiorari dissent described collateral estoppel as an “independent safeguard”); Ashe v. Swenson, 397 U.S. 436 (1970); United States v. Williams, 341 U.S. 58, 64 n.64 (1951); Flittie, 775 F.2d 933; United States v. Castro, 629 F.2d 456, 464-65 (7th Cir. 1980) (collateral estoppel does not bar re-prosecution after a conviction; it only operates after acquittal); LAFAVE, supra note 11, § 17.4 90 466 F.2d 240 (8th Cir. 1972), cert. denied, 410 U.S. 916 (1973) 91 At the time Kills Plenty was decided, it was unclear whether double jeopardy operated to preclude federal prosecution after prosecution by tribal authorities. In Kills Plenty the court did not resolve that issue, holding instead that double jeopardy protection would not foreclose the second prosecution because it was not the same offense as the first and collateral estoppel did not operate. Kills Plenty, 466 F.2d at 243. The Supreme Court has since decided that tribal authorities are a separate sovereign from the state and federal authorities. See United States v. Wheeler, 435 U.S. 313,

43 | P a g e In Kills Plenty the defendant was tried and acquitted

in tribal court on a charge of driving while under the

influence of intoxicating liquor.92 He was then charged

in federal court with involuntary manslaughter.93 The

second jury was given the option of convicting on the

same theory and same evidence rejected in the first

proceeding. To establish involuntary manslaughter the

second prosecution had to prove the defendant killed

the victim without malice and “that such killing was

done in the commission of a lawful act which might

produce death and that such act was done either in an

unlawful manner or without due caution or

circumspection.”94 In the first trial, the question of

whether the defendant was intoxicated at the time of

the accident was resolved in his favor, providing a

328 (1978). Therefore, double jeopardy protection would not actually operate on the facts of the case. This gap in protection illustrates an important limitation of double jeopardy protection. It operates only when both prosecutions are brought by the same sovereign authority and, therefore, has no impact on successive prosecutions by different states or by state and federal authorities. See Heath v. Alabama, 474 U.S. 82 (1985); Abbate v. United States, 359 U.S. 187 (1959); Bartkus v. Illinois, 359 U.S. 121 (1959); United States v. Addington, 471 F.2d 560, 566 (10th Cir. 1973). 92 Kills Plenty, 466 F.2d at 241. 93 Id. at 241-42. 94 Id. at 242.

44 | P a g e basis on which he could invoke collateral estoppel.95

However, intoxication was not necessarily essential to

conviction in the second proceeding; the prosecution

could potentially establish involuntary manslaughter

without proving intoxication. Therefore, the narrowest

application of collateral estoppel, to bar prosecution

by precluding re-litigation of issues of ultimate fact,

did not help the defendant. At the manslaughter trial,

the Kills Plenty court admitted evidence showing

defendant was intoxicated at the time of the fatal

collision and instructed the jury “that it is unlawful

to operate a motor vehicle upon a public highway while

in a state of intoxication.”96 Thus, although the jurors

might have based their guilty verdict on an unlawful

act different from that rejected in the first

proceeding, they might equally have convicted because

they were convinced beyond a reasonable doubt that the

defendant had killed the victim while committing the

unlawful act of driving while intoxicated. The evidence

95 Id 96 Id. at 242.

45 | P a g e and the jury instructions permitted, even invited, that

latter resolution of the case. The double jeopardy

clause should protect against the possibility the

prosecution will obtain a conviction by re-litigating

an issue previously resolved in the defendant’s favor –

an acquittal.

Like Vitale, the defendant in Kills Plenty could

have prevailed had he persuaded the court the second

charge was the “same offense” as the first. The second

charge in Kills Plenty could be viewed as the “same

offense” under the double jeopardy clause because the

prosecution relied on proof of intoxication. Under that

view, basic double jeopardy protection would bar the

second prosecution. In Kills Plenty, however, this was

merely an alternative argument. Because the initial

trial led to an acquittal, collateral estoppel would

also protect the defendant against further prosecution

on the basis of the same evidence and theory.

Acquittal on the substantive charge does not

necessarily preclude or limit prosecution on the

46 | P a g e conspiracy charges unless collateral estoppel comes

into play. In such cases, therefore, protection will

not flow from basic double jeopardy protection. The

defendant will be protected by the doctrine of

collateral estoppel or not at all. Therefore, the

protection of the Collateral Estoppel doctrine must be

expanded to exclude evidentiary facts.97

II. EXTENDING COLLATERAL ESTOPPEL TO EXCLUDE EVIDENTIARY FACTS

If an issue resolved in the defendant’s favor by an

acquittal is essential to the second prosecution, the

entire prosecution is foreclosed on grounds of

collateral estoppel, as it was in Ashe.98 In such a

case, a verdict could be achieved only by re-litigating

the previously resolved issue using the same facts,

evidence and prosecution theory.99

A. The Purpose of Collateral Estoppel

Assessing whether and how collateral estoppel

operates to preclude re-use of evidence after acquittal

97 2CR@199 98 Ashe, 397 U.S. at 446. 99 2CR@199, 345

47 | P a g e must focus on the purpose of collateral estoppel. In

Ashe, the Court did not speak at length to the purpose

of the doctrine. The Court merely stated: “Whatever

else double jeopardy may embrace ... it surely protects

a man who has been acquitted from having to ‘run the

gantlet’ a second time.”100 A clearer sense of the role

and function of the protection must incorporate

decisions dealing with other aspects of the double

jeopardy clause and reasons why collateral estoppel is

constitutionally mandated.

“A primary purpose served by the double jeopardy

clause is akin to that served by doctrines of res

judicata and collateral estoppel - to preserve the

finality of judgments.”101 In a frequently quoted

passage from Green v. United States,102 the Supreme

Court explained the reasons for providing that

protection to the criminal defendant:

The State with all its resources and power

should not be allowed to make repeated 100 Id. (citing Green v. United States, 355 U.S. 184, 190 (1957)). 101 Crist v. Bretz, 437 U.S. 28, 33 (1978) 102 355 U.S. 184 (1957).

48 | P a g e attempts to convict an individual for an

alleged offense, thereby subjecting him to

embarrassment, expense and ordeal and

compelling him to live in a continuing state

of anxiety and insecurity, as well as

enhancing the possibility that even though

innocent he may be found guilty.103

Although there are situations where a defendant,

having once been put in jeopardy, may be tried again,104

the Supreme Court insists on unflagging double jeopardy

protection when the first proceeding ends in acquittal.

After conviction, a defendant is protected only from

further prosecution and punishment for the same

offense. When double jeopardy is invoked by a defendant

who has been in jeopardy and has not won an acquittal,

the Court will balance the defendant’s double jeopardy

interest against the public interest in enforcing

criminal laws to determine the extent of the

103 Id. at 187-88. 104 LAFAVE, supra note 11, § 24.4.

49 | P a g e protection.105

But an acquittal occupies a particularly exalted

position in our system of criminal justice and commands

the greatest double jeopardy protection.106 After

acquittal, the constitution not only prohibits further

proceedings on the same offense, but also, through the

doctrine of collateral estoppel, prohibits re-

litigation of individual issues resolved in the

defendant’s favor by the acquittal.107 The protection

flowing from an acquittal is absolute; it’s not subject

to compromise through application of balancing tests.108

Even a clearly erroneous acquittal is allowed to stand

as an absolute bar to further prosecution.109

It’s clear once a defendant wins an acquittal,

105 See Illinois v. Somerville, 410 U.S. 458, 463 (1973). See generally Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 SUP. CT. REV. 81 (1979) [hereinafter Westen]. 106 See generally Westen, supra note 83; See Sanabria v. United States, 437 U.S. 54, 64 (1978); but cf. United States v. Scott, 437 U.S. 82, 101 (1978) (defendant seeks termination of trial without determination of guilt, government’s appeal is not barred); see also Westen, supra note 83, at 84 (of three interests served by double jeopardy, the most important is the “interest in nullification,” an absolute interest in allowing the jury to acquit against the evidence). 107 1CR@200; 2CR@199, 327, 345; See, e.g., Sealfon v. United States, 332 U.S. 575 (1948) 108 See Sanabria, 437 U.S. at 64; see generally Westen, supra note 83. 109 See Sanabria, 437 U.S. at 64; see generally Westen, supra note 83.

50 | P a g e additional double jeopardy concerns come into play.

After acquittal, if further proceedings are allowed,

the concern the prosecution will convict an innocent

person by presenting the same case to a new fact finder

is paramount.110 The prosecution, having failed in its

initial effort to convict a defendant cannot appeal to

correct any perceived unfairness to the prosecution’s

interest. The prosecution therefore may have a strong

incentive to seek an alternate way to achieve its goal

of conviction. A key purpose of collateral estoppel is

to avoid this risk.111 Protection against harassment by

successive prosecutions also comes into play in some

cases where collateral estoppel is the only source of

constitutional protection.112 If a theory or evidence

already found wanting by the acquitting fact finder is

an important aspect of the prosecution’s case, the

110 2CR@199; See United States v. Scott, 437 U.S. 82 (1978). In Scott, the Court explained why protection against further prosecution is particularly important after an acquittal: “To permit a second trial after an acquittal, however, mistaken the acquittal may have been, would present an unacceptably high risk that the government, with its vastly superior resources, might wear down the defendant so that ‘even though innocent he may be found guilty.” Id. at 91 (quoting Green v. United States, 355 U.S. 184, 188 (1957)). See Thomas, supra note 47, at 337-340. 111 See Comment, supra note 12. 112 See Mayers, supra note 12; Vestal, supra note 39

51 | P a g e chance of conviction may not be great, but permitting

the prosecution to proceed imposes on a defendant the

stress, embarrassment, and expense of the second trial.

Ashe illustrates these risks well. In Ashe, by using

the first trial, where defendant Ashe was acquitted, as

a dry run for the second, the prosecutor was able to

refine and improve the evidence that was presented to

the jury - precisely what the constitution forbids.113

What’s more, the prosecution was able to harass the

defendant by forcing him to trial again on charges he’d

fully defended. The scope of collateral estoppel

protection must be defined with reference to these

double jeopardy concerns and to the specially protected

character of an acquittal. The protection of an

acquittal is absolute.

Two concerns are most pertinent to collateral

estoppel protection. First, collateral estoppel

protects a defendant against the risk of conviction or

113 Much the way the State was able to do in this case, where the DNA analyst testified there was no affirmative link to Appellant Acuna through her analysis of the evidence – this witness was not called to testify at the second trial; Ashe v. Swenson, 397 U.S. 436, 447 (1970) (Black, J., concurring).

52 | P a g e punishment because the prosecution was able to present

the case against the defendant to another fact-finder.

The risk to the defendant flows both from the

prosecutor’s opportunity to present the evidence in a

more convincing fashion, having evaluated the

weaknesses in the prosecution case, and from the simple

opportunity to persuade another fact-finder, who may

prove more prone to convict than the first. Second,

collateral estoppel protects the defendant against the

harassment and accompanying emotional and financial

expense of successive prosecutions.114 The prosecution

can inflict a significant, and constitutionally

prohibited, burden on the defendant merely by again

holding him to answer charges, even if ultimate

conviction is unlikely. These two concerns should guide

the courts in defining the scope of collateral estoppel

and determining its role in restricting the prosecution

in a criminal proceeding following an acquittal.

114 Appellant Acuna retained counsel to defend her against these charges in the first trial, however was unable to retain counsel to defend her in the second trial. Her financial resources depleted, Appellant Acuna settled for appointed counsel at the second trial and of course on appeal. 1CR@97; 2CR@110, 127, 155, 244, 247, 249, 252, 318-319

53 | P a g e B. The Application of Collateral Estoppel to Exclude Evidence

When the risks against which the doctrine of

collateral estoppel protects are present, collateral

estoppel must shield the defendant by restricting the

prosecution. In some cases, reuse of evidence creates

those risks. Appellant Acuna asserts the instant case

is one of those cases.

Yawn v. United States115 is typical of the cases

raising this question and illustrates the need for a

collateral estoppel doctrine broad enough to provide a

remedy even if no issue of ultimate fact has been

resolved in the defendant’s favor. In Yawn the

defendant was first tried and acquitted for several

charges, all arising from his alleged possession of an

illegal still.116 The defendant was then tried on an

indictment charging conspiracy to violate the liquor

tax laws.117 The conspiracy indictment alleged

possession of the still as one overt act in furtherance

115 244 F.2d 235 (5th Cir. 1957). 116 Id. at 236 117 Id.

54 | P a g e of the conspiracy.118 The acquittal foreclosed further

attempts to convict the defendant of a charge which had

possession of the still as an essential element.

Because the conspiracy charge could be established

without proving that the defendant possessed the still,

possession was not an issue of ultimate fact in the

conspiracy prosecution.119 Therefore, collateral

estoppel was not a complete bar to prosecution for the

conspiracy. But possession was alleged as an overt act

in furtherance of the conspiracy and the evidence

demonstrating the defendant’s possession was presented

to the second jury.120 Consequently, the defendant’s

double jeopardy protection under the doctrine of

collateral estoppel was threatened in two ways. First,

expecting to rely on the evidence demonstrating

possession, the prosecution was able to bring charges

that it might otherwise not have been able to bring,121

thus the prosecution was able to harass the defendant

118 Id. 119 Id. at 237 120 Id. 121 It is unethical for a prosecutor to bring charges without probable cause. MODEL RULES OF PROFESSIONAL CONDUCT RULE 3.8(a) (Proposed Final Draft 1981).

55 | P a g e by relying on its re-introduction of the same evidence

and theory in support of the conspiracy charge. Second,

the jury may have convicted the defendant of conspiracy

because the jury was convinced the defendant agreed to

violate the tax laws and was convinced beyond a

reasonable doubt that he possessed the still in

furtherance of that goal. Thus, the prosecution may

have prevailed by re-litigating the issue resolved

against it by the previous acquittal and presenting

that issue to a second fact finder for resolution. The

prosecution may have convinced the second fact finder

to accept the proposition already rejected by the

acquitting jury. Collateral estoppel should have

protected Yawn by excluding the evidence, thereby

eliminating that aspect of the government’s conspiracy

case. That remedy would defeat the case unless the

prosecution had some other evidence against the

defendant and would also ensure that the prosecution

could not obtain a conviction by re-litigating the

previously rejected proposition. The Yawn Court

56 | P a g e stated:

“In the present case the Government had, and has,

every right to establish the guilt of the accused

of the separate offense of conspiracy to violate

the liquor tax laws despite the acquittal of

unlawful possession of the still.122 But to allow

the Government to have a second opportunity to

establish the precise fact of possession decided by

another Court of competent jurisdiction in favor of

the accused is to ignore the rule that ‘ ... the

same facts cannot be twice litigated by the same

sovereign against the same defendant.“123

United States v. Mock124 and United States v.

Crispino125 illustrate other instances where collateral

estoppel should provide protection even though the

second proceeding does not depend on an issue of

ultimate fact resolved by the acquittal. In Mock and

Crispino the defendants were charged with narcotics

122 See also Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489. 123 Id. at 237 124 640 F.2d 629 (5th Cir. 1981). 125 586 F.Supp. 1525 (D.N.J. 1984).

57 | P a g e trafficking. After they were acquitted on the narcotics

charges, the defendants were charged with tax

violations. In each of the tax cases, the government

relied on the theory that Mock and Crispino didn’t

report income derived from narcotics activity. To

convict them the jury in each tax case would have to be

convinced beyond a reasonable doubt of the “likely

source” of the unreported income. In Mock, the

government’s main theory was that the defendant had

received and failed to report income from precisely the

conspiracy of which he had been acquitted; the

prosecution even relied on the same witness who had

implicated Mock in the conspiracy trial.126 After Mock’s

conspiracy conviction was reversed and remanded, the

government re-prosecuted him, relying on evidence that

did not tend to establish the previously charged

conspiracy, and obtained a conviction which withstood a

126 United States v. Mock, 604 F.2d 341 (5th Cir. 1979) Prosecution introduced testimony of Sandra Scott, testifying about Mock’s involvement with drugs at a time close to but not covered by the first charges. The court rejected the prosecution’s harmless error argument and reversed and remanded. Id. at 346- 47. The court concluded that both the extent of the duplicative testimony and the prosecution’s reliance on proof of the same conspiracy made it unlikely the jury would’ve convicted the defendant on the basis of proof of drug activity independent of the acquitted conspiracy. Id. at 347.

58 | P a g e collateral estoppel challenge.127 In Crispino, the court

ruled before trial that the government could not rely

on proof of the drug conspiracy to establish the likely

source of income, but refused to dismiss the

indictment. The prosecution was free to introduce other

evidence supporting its tax charges, if it had any.

In each case, the issues of ultimate fact resolved

by the acquittal of conspiracy charged in the first

trial were not issues of ultimate fact in the second.128

Nevertheless, the prosecution’s reliance on the theory

and evidence rejected in the prior drug trials

presented significant risks to the defendants’

interests. The threat in each case was that the second

jury would re-evaluate the defendant’s involvement in

the drug conspiracy, finding it the likely source of

income and thus base the conviction on the conclusion

already rejected in the initial acquittal. In Crispino,

the court even commented that its decision was

“strongly bolstered by its conclusion the government, 127 United States v. Mock, 640 F.2d 629, 632 (1981) 128 United States v. Mock, 640 F.2d 629, 632 (1981)

59 | P a g e disappointed by the results in the first trial, simply

polished and refined its evidence from that trial in an

effort to find some way, any way, of convicting this

defendant of criminal charges.”129 Collateral estoppel

should protect a defendant against the re-presentation

of a theory and evidence by the prosecution. If the

prosecution wants to continue to pursue a defendant who

has won an acquittal, collateral estoppel requires that

the prosecution find a new basis on which to proceed.

The prosecution should not be able to avoid that

prohibition by fitting the rejected theory and evidence

to new charges.

Cases like Yawn, Mock, and Crispino demonstrate the

need for collateral estoppel protection to limit the

scope of re-prosecution after acquittal even where the

second prosecution does not involve the “same offense”

and no issue of ultimate fact in the second case has

been resolved in the defendant’s favor.

IV. Application of these principles to the instant case

129 Crispino, 586 F.Supp. at 1535 (emphasis in original).

60 | P a g e A. The State’s Theory in Both Prosecutions130

In trial court cause number CR-2725-10-H, Appellant

Acuna was charged by indictment as follows:

“on or about the 3rd day of July, 2010 … did then

and there intentionally and knowingly cause the

death of an individual, namely Jose Guadalupe

Fiscal, by stabbing him with a deadly weapon, to

wit: a knife.131

The Prosecution gave the following Opening

Statement in that first case:

Thank you, Your Honor. May it please the Court,

ladies and gentlemen of the jury, defense counsel

and co-counsel? Good afternoon, ladies and

gentlemen. Ladies and gentlemen, the evidence that

we will present to you will show you that this

defendant was responsible for the death of Jose

130 Note that the prosecution admits the State needs to have proven an agreement to commit a conspiracy and overt acts in furtherance of that conspiracy. The State goes further and admits prior to the trial starting that the evidence that will be presented this second tie around is “similar.” RR2@13 As discussed herein, the evidence submitted to the first jury and that submitted to the second jury is identical. 131 Note that Count Two charging Appellant Acuna with Conspiracy to Commit Murder was dismissed. 1CR@8, 204-205

61 | P a g e Guadalupe Fiscal.132 The evidence will show that Mr.

Fiscal was hit over the head. He was struck so

violently that he was probably rendered

unconscious. After which, he was stabbed multiple

times. And as if that weren't enough, Mr. Fiscal's

body was set on fire. Now, ladies and gentlemen,

the State is not going to bring a witness to you

who will tell you that this defendant personally

struck that blow to the victim's head. Not one

witness will come into this courtroom and tell you

that she held the knife that was used to stab Jose.

But what the State will prove to you beyond a

reasonable doubt is that this woman is completely

responsible for Jose Fiscal's death, that she

orchestrated the entire -- the entire situation

that occurred on July 3rd, 2010.133 You'll hear

132 Right off the bat in the first case, the State concedes in its opening remarks the evidence would show Appellant Acuna was “responsible” for the death of the victim. This first jury is told they would not hear evidence Appellant Acuna committed the murder herself. The jury was later instructed they were to convict if they believed Appellant Acuna was “criminally responsible” for the death if she acted with intent that the offense occur and aided, assisted or directed another in the commission of the offense. 1CR@196; TEX.PEN.CODE Section 7.02 133 Here, the State’s theory becomes clear: that Appellant Acuna was the one directing the killing – that she “orchestrated it.” This becomes even clearer when the indictment of the second trial is reviewed to reveal the

62 | P a g e evidence that Jose and Alma Fiscal began dating

years ago. Eventually they married and they raised

four children, and you'll hear testimony that there

were good times and there were bad times just as

any marriage. Eventually the bad times outnumbered

the good times and Jose and Alma went their

separate ways. Alma moved to the state of

Louisiana where she worked in a refinery and Jose

stayed behind in the Valley where he worked in a

cabinetry business with his family. And you'll hear

testimony that their children were a priority

between the two of them, that Alma would come down.

She would bring her children. Jose will spend time

with his children. During the summer he spent time

with them. You'll hear testimony that he also

shared time with another individual, and that's the

defendant who sits before you today, Guadalupe

Acuna, also known as Lupita. And you'll hear

evidence -- testimony that Jose spent a great deal

State charged Appellant Acuna with Conspiracy to Commit Murder alleging the exact same “overt acts” alleged to have committed by her in the application paragraph of the first jury charge.

63 | P a g e of time with Lupita. Lupita lived in a home in

Donna and she's raising five children. She had a

daughter by the name of -- or has a daughter by the

name of Alejandra, a son by the name of Antonio,

another daughter named Maria and two smaller

children and Jose spent time with Lupita and the

children. You'll also hear testimony that she had

a brother-in-law by the name of Juan Manuel Salazar

who also stayed at her house off and on. But,

ladies and gentlemen, Jose came to a point in his

life when he realized who the person was that he

wanted to wake up in bed next to every morning.

And that's when the problems arose because Lupita

wasn't that person. She wasn't that woman. It was

Alma. And Jose called his wife and he told her I

want to make a fresh start. I want to make this

right. And Jose purchased a home for that fresh

start, and he asked her to come home. But he also

told her that he needed a little bit of time

because Jose knew this woman and he knew that it

64 | P a g e wouldn't be easy to walk away from her. Now, Alma

was scheduled to return to the Valley July 3rd but

she needed a few days early and she walked into

that home that Jose had purchased for her with that

fresh start and she had an unexpected surprise

because when Alma returned to that home, Lupita was

there.134 And, of course, this angered Alma and she

told Jose you need to get her out of here. And

that's when Jose made a very important decision.

He looked at Lupita and he told her to leave but he

wasn't the only person making a decision that day.

Because she left but she too had made a decision.

Jose Fiscal would not walk away from her. She

would make sure of it, and who would she look to?

She would look to the two closest men in her life -

- her brother-in-law, Juan Manuel Salazar, and her

own son, Antonio. She wanted Jose down. She wanted

him six feet under. And you'll have an opportunity

134 Although not necessary to prove, the State lays out the motive for the killing…the same motive relied upon in the second trial.

65 | P a g e to read the text messages135 that occurred between

Lupita and her brother-in-law and her son.136 July

3rd, 2010 was a hot, windy day. Fireworks were

being sold on the side of the road. People were

making plans to enjoy the holiday. Lupita was

making plans too. On July 3rd, 2010 she lured Jose

Fiscal to Donna Lakes. And when she was there and

she was ready, she sent word to her brother-in-law

and to her son and they came and they did exactly

what Lupita wanted them to do.137 You'll also see

that through a statement, several statements that

this defendant gave to the investigators at the

sheriff's department, and she'll tell you in her

own words, exactly what happened and why it

happened. At the close of the evidence, the State

will ask that you find this defendant guilty of

135 The text messages proved to be the “cornerstone” piece of evidence used in the first trial by prosecutors to show the communication which the State relied on in showing there was collaboration between Appellant Acuna, DeLeon and Salazar. 136 Here, during the first trial, the State shows how important the text messages were to show the communication between Appellant Acuna and the co- defendants in order to prove the “criminal responsibility.” 137 Again, the State relying on the theory that Appellant Acuna and the co- defendants collaborated to kill the victim.

66 | P a g e murder. Thank you.138

The first jury rejected this theory and by way of

its Verdict expressed this rejection.139 This acquittal

in Cause No. CR-2725-10-H conclusively established

Appellant Acuna did not commit the substantive offense

of “Murder.” Note the jury charge in the first trial

instructed the jury to convict if they believed beyond

a reasonable doubt that she was responsible for the

death of Fiscal under the Law of Parties.140 In fact,

the jury charge specifically instructed the jury to

convict if they found Appellant Acuna acted in the

identical way with which she was charged by indictment

in the second case – this case.141 In other words, the

jury charge from the first trial actually presented the

jury with an opportunity to deliberate, consider and/or

“find” ultimate facts showing Appellant Acuna entered

into an agreement with Juan Manuel Salazar and Antonio

138 State’s Opening Statement at first trial; 1RR2@98 139 1CR@195-200, 206 140 1CR@195-196 141 1CR@196; 2CR@8-3-4

67 | P a g e 142 DeLeon to kill Fiscal. The jury, by their verdict of

“not guilty” clearly rejected that notion and found in

favor of Appellant Acuna.143

Five (5) months after her acquittal, Appellant

Acuna was again placed in jeopardy in trial court cause

number CR-4071-11-H.144 Here, charging Appellant Acuna

as follows:

On or about the 3rd day of July, 2010, with the

intent that murder, a felony, be committed, agree

with Juan Manuel Salazar and Antonio Rodriguez De

Leon that one of them would engage in conduct that

would constitute said offense, and the said

defendant performed an overt act in pursuance of

said agreement, to wit: luring Jose Guadalupe

Fiscal to the location where he was killed.

142 Note that the first jury was instructed on the definition of the Law of Parties. That definition included that “all persons are parties to an offense who are guilty of acting together in the commission of an offense.” 1CR196; TEX.PEN.Code Section 7.02; See Also Wooden v. State, 101 S.W.3d542, 546 (Tex.App.-Fort Worth 2003, pet. ref’d.)(The evidence must shpw at the time of the offense the parties were acting together, each contributing some part towards their common purpose.) Obviously then whether one calls it “acting together toward a common purpose” or they call it “conspiracy,” it’s the same thing. 143 1CR@196, 200 144 The first jury returned an acquittal on the murder charge on April 20, 2011; the indictment charging Appellant Acuna with this Conspiracy to Commit Murder was filed September 13, 2011. 1CR@200; 2CR@3-4

68 | P a g e And………… On or about the 3rd day of July, 2010, with

the intent that murder, a felony, be committed,

agree with Juan Manuel Salazar and Antonio

Rodriguez De Leon that one of them would engage in

conduct that would constitute said offense, and the

said defendant performed an overt act in pursuance

of said agreement, to wit: notifying Juan Manuel

Salazar that the said defendant and Jose Guadalupe

Fiscal were traveling to the location where Jose

Guadalupe Fiscal was killed.

And………… On or about the 3rd day of July, 2010, with

of said agreement, to wit: directing or telling

Juan Manuel Salazar to kill Jose Guadalupe Fiscal.

69 | P a g e agree with Juan Manuel Salazar and Antonio

Antonio Rodriguez De Leon to kill Jose Guadalupe

Fiscal.145

This second time around,146 the State stated in its

opening remarks:

The man that was found on that dirt road had been

struck over the head. He had been stabbed 45

times, and his body had been set on fire. His name

was Jose Fiscal. He was a son. He was a brother. He

was a father. Now, Mr. Fiscal had met a young woman

named Alma, and the two of them had a relationship

when they were young. It resulted in the birth of a

child, and the two of them married. They would go

on to have three more children, and, as in most

relationships, the evidence is going to show that

145 CR@3-4 146 CR-4071-11-H, the instant case.

70 | P a g e there were good times and there were bad times.

And, at some point, the two decided to move their

separate ways. You'll hear evidence or testimony

that Alma relocated to the state of Louisiana to

work. And you'll hear that Jose stayed behind and

worked with his family. There was visitation of the

child. There was communication between the two. But

Jose has entered into another relationship. And the

evidence is going to show that, in fact, he entered

into this relationship with the Defendant during

the time that he was still with Alma. And as Alma

moved away, he carried on this relationship with

the Defendant. Now, the evidence will show that, at

some point, Jose realized that he had made a

mistake. He realized that he wanted to have his

family and he wanted to be with his wife. He had

made a mistake. That mistake was the Defendant.

Now, Jose began to communicate with his wife, Alma,

and the evidence will show that she decided to come

back, to come back to the Valley, but Jose knew who

71 | P a g e he was dealing with it. The evidence is going to

show that Jose couldn't just walk away from Lupita

because he knew what she was capable of doing. Now,

Alma made her way back to the Valley. Jose had

purchased a new home for them to share with their

children. And the evidence will show that when Alma

walked into that house, the Defendant was still

there. Why? Because Jose hadn't gotten away from

her yet because he knew who he was dealing with.

He knew what she was capable of. But Jose made an

important decision in that home that day. That

decision would result in the loss of his life, the

decision that he made that day, telling this woman

to leave. He asked her to leave that house. And the

evidence will show that this angered Lupita. She

would make him pay for that choice. Now, Lupita

lived in a home with several of her children. She

had a daughter by the name of Alejandra, and

Alejandra had a boyfriend who was sharing the home,

named Ezekiel Gamez. The Defendant had a son living

72 | P a g e in that home. His name was Antonio De Leon. He had

a girlfriend he would date at times named Rene

Mejia. The Defendant also had her brother-in-law,

Juan Manuel Salazar, who was living in that home at

that time because he was estranged from her sister.

The evidence will show that Lupita ran that house.

She made the decisions on what was going to happen

in that home. And when Jose asked her to leave his

new home, she had made a decision, but she knew she

wasn't capable of carrying out that decision by

herself. So what did she do? She turned to two men

that she controlled, her son and her brother-in-

law. And you will hear, through her own words,

text messages147 that she shared with the two of

them, a statement of accused or a confession that

she gave investigators.148 You will hear what she

did. In her own words, she tells her son, "I want

147 The text messages are revealed to be a critical component of the prosecution…again. 148 The Same statements and/or confessions that were used against Appellant Acuna in the first trial.

73 | P a g e him down."149 The evidence will show that this

Defendant lured the victim to Donna Lakes and that

she contacted her son and her brother-in-law and

told them to come, and that she knew Jose would be

murdered out there that day.150 She knew because

she is the one person who wanted it done. Now,

you're going to hear this presented by way of

witnesses. You're going to see text messages.

You're going to see the Defendant's statement.

And, at the close of all the evidence that's

presented, I'm confident that you will have no

other choice but to find this defendant guilty.

Thank you.

By way of these “opening statements,” it’s apparent

the prosecution had every intent of presenting the same

case to both juries, using the same evidence, the same

witnesses and the same theory.151

The first jury, by finding Defendant was not guilty

149 Yet another critical piece of evidence that was used when Appellant Acuna was tried the first time. 150 This passage in the prosecution second opening statement is almost word for word from the State’s opening statement in the first trial. 151 2RR2@13; 2RR7@9 and 1RR2@98

74 | P a g e in Cause No. CR-2725-10-H of “knowingly or

intentionally “causing the death of Jose Guadalupe

Fiscal,” decided reasonable doubt existed Appellant

Acuna committed the offense of murder.152 Further, in

reaching this verdict, the jury considered the Law of

Parties, as they were instructed.153 Therefore, not only

did the first jury decide Appellant Acuna was “not

guilty” as a principal, their verdict illustrates

reasonable doubt Appellant Acuna acted as a party. But

more specifically, by their verdict, the first jury

rejected the notion that Appellant Acuna “asked Jose

Guadalupe Fiscal to drive to the crime scene” as part

of her agreement154 with Antonio DeLeon and Juan Manuel

Salazar that Fiscal be killed; they rejected the notion

that Appellant Acuna “texted Juan Manuel Salazar to

give him notice that she and Fiscal were on their way

152 TEX.PEN.CODE Section 19.02 (O’Connor’s Texas Criminal Codes Plus (2010- 2011); 1CR@196, 206; 7.02 153 1CR@196 154 Note the first paragraph of the indictment in CR-4071-11-H is the same as the application paragraph (paragraph 5) of the jury charge in CR-2725-10-H; the jury found in favor of Appellant Acuna in the first trial regarding this issue, while the indictment in the second case charges the same conduct already rejected by that first jury. 1CR@196; 2CR@3

75 | P a g e to the crime scene” as part of her agreement155 with

DeLeon and Salazar that Fiscal be killed; they rejected

the notion that she texted Antonio DeLeon that she

wanted Fiscal “six feet under” or that she texted

Deleon that she wanted Fiscal “down so so bad;” they

rejected the notion that she “asked Juan Manuel Salazar

or Antonio DeLeon to kill Fiscal.”156 We know the first

jury in fact deliberated specifically on these notions

because these very notions were included in the

application paragraph of the jury charge in the first

case.157 They believed by their verdict there was

“reasonable doubt” Appellant Acuna, acted alone in this

endeavor. They believed by the verdict a reasonable

doubt existed Appellant Acuna acted together with Juan

Salazar and/or Antonio DeLeon with intent to promote or

assist the commission of the murder by Salazar and/or

155 Note the second paragraph of the indictment in CR-4071-11-H is the same as the application paragraph (paragraph 5) of the jury charge in CR-2725-10-H; the jury found in favor of Appellant Acuna in the first trial regarding this issue, while the indictment in the second case charges the same conduct already rejected by that first jury. 1CR@196; 2CR@3-4 156 Note the third and fourth paragraph of the indictment in CR-4071-11-H charges the same conduct as that contained in the application paragraph (paragraph 5) of the jury charge in CR-2725-10-H; the jury found in favor of Appellant Acuna in the first trial regarding this issue, while the indictment in the second case charges the same conduct already rejected by that first jury. 1CR@196; 2CR@8-9 157 1CR@196

76 | P a g e Deleon. The first jury believed by their verdict that

a reasonable doubt existed Appellant Acuna encouraged,

directed, aided or even attempted to aid Salazar or

DeLeon in their efforts to kill Fiscal.158

The jury’s verdict of acquittal cannot necessarily

be said to be a finding of any “fact.”159 Because that

is the rule of law, Ashe requires a reviewing court:

“to examine the record of the prior

evidence, charge, and other relevant

matter160in order to assess the applicability

of collateral estoppel. The inquiry must be

set in a practical frame and viewed with an

eye to all circumstances of the

proceedings.”161

In each case where collateral estoppel barred re-

litigation of facts, there’s been an acquittal, which

in and of itself is not a finding of fact. However, in

158 TEX.PEN.CODE Section 7.02 (O’Connor’s Texas Criminal Codes Plus (2010- 2011); 1CR@ 196, 200, 202, 206, 159 United States v. Watts, 519 U.S. 148, 117 S. Ct.633, 136 L.Ed.2d 554 (1991) 160 397 U.S. at 444, 90 S. Ct. at 1194 (footnote omitted), 161 Id. quoting Sealfon v. United States, 332 U.S. 575, 579, 68 S. Ct. 237, 92 L. Ed. 180 (1947).

77 | P a g e determining whether collateral estoppel applies, Courts

have looked beyond the verdict and examined the record

of a prior proceeding and not based rulings on the

verdict of acquittal.

It is noteworthy that in both cases against

Appellant Acuna, the prosecution’s theory was one of

conspiracy162 - arguing that in order to convict

Appellant Acuna, the jury would need to find Appellant

162 According to Black’s Law Dictionary, Conspiracy is defined as a confederation between two or more persons formed for the purpose of committing, by their joint efforts, some unlawful or criminal act, or some act which is lawful in itself, but becomes unlawful when done by the concerted efforts of the conspirators. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: (a) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation of to commit such crime; or (b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime. Compare this to the Parties Charge in the Charge of the Court in the first trial: All persons are parties to an offense who are guilty of acting together in the commission of an offense. A person is criminally responsible as a party to an offense if the offense is committed by her own conduct, by the conduct of another for which she is criminally responsible, or both. A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, she solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Mere presence alone will not constitute one a party to an offense. 1CR@196; TEX.PEN.CODE Section 7.02 (O’Connor’s Texas Criminal Codes Plus (2010-2011); See Also Wooden v. State, 101 S.W.3d542, 546 (Tex.App.-Fort Worth 2003, pet. ref’d.)(The evidence must show at the time of the offense the parties were acting together, each contributing some part towards their common purpose.) Compare further with the definition of Conspiracy given the second jury in the jury charge. 2CR81 Obviously then whether one calls it an agreement, acting together toward a common purpose or they call it “conspiracy,” it’s the same thing.

78 | P a g e Acuna agreed, directed, texted the co-conspirators

and/or facilitated the common goal of murdering Fiscal

by luring the victim to a location where the co-

defendants were to cause the death of Jose Guadalupe

Fiscal, pursuant to some “agreement.”

In its closing remarks the second time around the

State argued:163

MS. PALACIOS: May it please the Court, ladies

and gentlemen of the jury, Defense Counsel. Good

morning, ladies and gentlemen. I'm going to have

two opportunities to address you this morning

because, as the State, I have the burden of proof,

okay? So the first thing that I want to talk to

you-all about is the Charge of the Court. And I

think that, if you think back to voir dire, you

will remember me talking about the Charge of the

Court, and that is what Judge Garza has just read

to you. These are your instructions, okay? When

you go back into the jury room, you will take this

with you, and you can reference it. Now, we talked 163 2RR10@14

79 | P a g e about a lot of this information during voir dire.

The definition of what "criminal conspiracy" is

given to you in here.164 And if you want to go back

and look at it, you should. "With intent that a

felony be committed, she agreed with one or more

persons or they or one or more of them engaged in

conduct that would constitute the offense and she

or one or more of them performed an overt act in

pursuance of this agreement."165 That was the

definition that you heard in voir dire. And we

broke it down and we talked about the different

elements of that definition. We talked about the

fact that an agreement constituting a conspiracy

may be inferred from the acts of the parties. Now,

why do I bring that up? Because you're not going

to have any type of language saying, "I agree with

you. I am going to kill Jose Fiscal." That is not

164 Again, obviously the State relied on evidence of a “conspiracy” in the second trial the same way the State relied on the law of parties in the first trial to show that Appellant Acuna should’ve been held responsible for the murder because she “orchestrated it.” See Opening statement of first trial 165 Obviously right off the bat, the State in the second trial is relying on a theory of conspiracy…. Compare this to the jury charge in the first trial where the jury was instructed they were to convict if they found that Appellant Acuna……_____________

80 | P a g e -- that's not what the State's burden is. You need

to infer from the communications that were

occurring between the parties that an agreement was

made.166 Now, what type of act are we talking about?

An "act" means a bodily movement, whether voluntary

or involuntary, and includes speech, okay? One of

the ways that we can prove an act is through

speech, the communication, the talking, the

instructions that were given. And I'm going to go

into more detail about these instructions later.

What is an "overt act"? It's any act knowingly

committed by one of the conspirators in an effort

to effect or accomplish some object or purpose of

the conspiracy. The act need not be criminal in

nature. The fact that Lupita took Jose out to Donna

Lake isn't in itself a criminal act, but she was

doing that to accomplish what? The death of Jose.

166 The same way the State argued Appellant Acuna was responsible for the murder in the first trial. In the first trial the Jury was charged with finding that Appellant Acuna asked the victim to drive to the crime scene; whereas in the second trial State argued that she lured the victim to the crime scene. In both cases, the State relied on the same text messages in support of the State’s theory that Appellant Acuna, De Leon and Salazar had reached an agreement and had a plan to kill Fiscal, because she communicated through the text messages and she lured the victim and she ultimately “orchestrated the murder.” 1CR@196; 2CR@83

81 | P a g e Now, you have heard talk about other individuals in

this case, and I do not want you to get sidetracked

when you go back into that jury room. You are not

here today, you haven't been here this week, to

decide the fate of Antonio De Leon. That is not

your concern. He either will have or has had his

day in court with a jury. You are not here to

decide the fate of Juan Manuel Salazar. The same

thing. He has his own day in court or he had it or

he will have it. You are here today to focus on

this defendant. Keep your focus on her. Now, Page

Two of the charge, under No. 4, begins what we call

our "application paragraph," and when you look at

that application paragraph, you're going to

recognize the wording that you saw in the

indictment, okay? Remember, we had four paragraphs

in our indictment, and I told you we have four ways

that we can prove that this defendant is guilty of

this offense. And if you read through Paragraph 4

-- I'm sorry -- No. 4, there's four paragraphs. In

82 | P a g e the first paragraph, we're alleging that she's

guilty because she took Jose to the location where

he would be killed.167 That's one way we can do it.

You'll see the word "or." Okay? And what that

means is if you think that I haven't proven that,

which I am going to disagree very, very

strenuously, go to the next paragraph. You can

find that she's guilty by notifying Juan Manuel

Salazar that she and Jose Fiscal were traveling to

the location where he would be killed.168 Go back to

those text messages. I'll go back into them in

more detail later. Again, you're going to see "or."

By directing or telling Juan Salazar to kill Jose

Guadalupe Fiscal or by directing or telling Antonio

Rodriguez De Leon to kill Jose Guadalupe Fiscal.169

167 The first jury was charged with finding that Appellant Acuna “asked the victim to drive to the crime scene;” the second jury was charged with finding that Appellant Acuna “lured the victim to the place where he would be killed.” 1CR@196; 2CR@82-83 168 The first jury was charged with finding that Appellant Acuna “gave notice that she and the victim were on their way to the crime scene;” the second jury was charged with finding that Appellant Acuna “notified that she and the victim were traveling to the location where the victim was killed.” 1CR@196; 2CR@82-83 169 The first jury was charged with finding that Appellant Acuna “asked Juan Salazar and Antonio DeLeon to kill victim;” the second jury was charged with finding that Appellant Acuna “directed or told Juan Salazar or Antonio DeLeon to kill victim.” 1CR@196; 2CR@82-83

83 | P a g e Okay? You can feel that she committed this offense

by committing each and every one of these acts, and

the argument that I'm going to make to you is she

most certainly did, or you can feel that she

committed one of those or two of them. Or you can

disagree amongst yourselves, but it's the same

result. It's still guilty of criminal conspiracy

to commit murder. Paragraph 6. You are allowed to

consider the previous relationship existing between

the accused and the deceased. I'm going to point

your attention to the text messages between the

Defendant and Jose. That's what this paragraph is

talking about. You're allowed to consider, based

on the evidence that's been presented to you, what

was happening between these two parties. And I'm

going to make an argument to you that that's

motive. I told you the State doesn't have to prove

motive, but we have. What was happening? Why was

this defendant angry? Go to those text messages and

read them. The last thing that I want to address

84 | P a g e with you before I give Defense Counsel an

opportunity to make their arguments is the

"reasonable doubt" language, okay? I want you to

think back to voir dire and how we talked about

reasonable doubt, and we gave a hypothetical about

the rain that had occurred in the parking lot. And

I urge you, please use your common sense. Okay?

We are not required to prove this case beyond all

doubt. Just rely on your common sense and look at

the evidence that's been presented to you. And

don't look at it piece by piece by piece, as

Defense Counsel will probably ask you to do. But

look at the totality of the evidence. The witness'

affidavits or the witness' statements, the

testimony that you heard in the courtroom the text

messages that you saw, the Statement of Accused,

all of those things together. Look at all of it

together. Thank you.

Then:

MS. PALACIOS: Defense Counsel wants to remind you

85 | P a g e that you are holding Lupita's life in your hands.

What I want you to remember, what I need you to

remember is that on July 3rd, 2010, she held Jose's

life in her hands. And I want you to remember the

choice that she made on that day. She could have

stopped what she had set in motion. And was there

a plan? Yes, there was a plan. And who was in

charge of that plan? This woman. Using your common

sense, think about it. Was she going to have him

murdered in her home? Would that be a very good

plan? No. She had to get him out. Could she --

could she have him murdered in the middle of the

night? Based on the evidence that you heard, she

couldn't get him near her at night because Alma was

back in that house. Now, on July 3, 2010, a man's

smoldering body was found beside Donna Lakes. When

officers responded, they found that he had been

stabbed 45 times. In addition to that, his throat

had been slashed. He had been struck over the

head; a blow so strong that that alone could have

86 | P a g e taken his life. And if that weren't enough, but

you add insult to injury, most of his body was

burnt. He was left there like a piece of trash.

And, yes, you had to see the pictures. You had to

know about it because we're here today because this

woman is accused of murder. And surprise,

surprise, that's exactly what happened. Now, when

investigators arrived at the scene, the first step

that they took, just as in the course of any

investigation, is to determine who this man was.

And they found his identification on his body, and

they were able to learn that this man was Jose

Guadalupe Fiscal. He was 38 years old. Now, the

very first thing you do during the course of an

investigation, you work your way backwards. Now we

know who he is. We need to know who he surrounds

himself with. So they got his phone records, and

they made notification with the family. And what

did they learn? He had a wife named Alma, and they

went to her. And he had a girlfriend by the name of

87 | P a g e Lupita, and they found her, and they spoke to her.

And when you -- let's not get sidetracked. She gave

-- we heard three statements and three statements

of accused are what's in front of you, but there

were four statements. The first one was an

affidavit, and what do we know about that

affidavit? Investigator Palacios told you, she

didn't mention knowing anything about what had

happened to Joe. She didn't talk about any

problems she was having with Joe. She didn't say

anything about that. So what did investigators do?

They continued to talk to the people that Jose

knew. They talked to Renee Mejia. Renee Mejia --

remember, Renee is the girlfriend of Antonio, wife

now. And she had been at that home and Rene came

forward and she told you, "I went to the police

department and I lied when I spoke to them at

first." But they spoke to her again, and what did

they learn from Renee? They're starting to get an

understanding of what type of woman we're dealing

88 | P a g e with. Renee told you that she was at the house with

Tony; that they were lying in the bedroom together

and Juan came in and said, "Let's go." They left.

They came back, and what did she say? What did she

notice? What happened when they came back? What

did she smell? Burnt, something burnt, like trash.

She saw Lupe and Juan come into the house, Lupe

telling them, "Stay in the room." Who is calling

the shots? Lupita. Renee notices Tony's hand.

Later, they're over to grandma's house, and what

does Renee tell you? What is she told? What is she

told, and who tells her? "Keep to the story. Stick

together. We were together." And Lupita doesn't

say it once. She says it twice. But Defense

Counsel would like you to believe that she's

scared, she's frozen. If she's frozen, why is this

woman continuing to give directions? Because she

is in charge of the plan. She's giving the

directions before it happened and after it

happened. And what else does Renee tell you? Who's

89 | P a g e cleaning the Expedition? Well, it's not Lupita.

Who is it? Her boys, Juan and Tony. And Defense

Counsel wants you to think, oh, well, she's not

involved because she wasn't cleaning it. Guess

what? She's not involved in the cleanup. Why

isn't she involved in the cleanup? Because she's

the boss. The boss doesn't get their hands dirty.

The workers get their hands dirty. Jessica. You

heard testimony from Jessica. That is this

defendant's own sister. She was with her the day

before she came to court to testify. What did her

own sister tell you? Again, Lupita wasn't cleaning

the Expedition. But what did she say about her?

She was feeling something. She was hurting. But

it wasn't for this guy. This isn't who she was

hurting for. She was worried about herself. She

was worried about what was going to happen to her

because, remember, this is all about her. She's

thinking, what about me? What's going to happen to

me? Am I going to go to jail? Because it's all

90 | P a g e about her. Alma Fiscal told you that that phone

kept buzzing and buzzing and buzzing all night

long, and you know that's true because you have the

records. The text messages were coming over and

over and over again, so much that what did Jose do?

He went and parked his truck somewhere else. Why?

Because he knows this woman. He knows what she's

capable of doing. Why he had to slowly remove

himself from her. He parked his car somewhere else

and walked to his house, ladies and gentlemen, so

this woman wouldn't see his truck there. And what

does he tell his wife to do? "Get your car in the

garage. Put the door down." What did Jose know?

Jose, Jr. When Jose didn't answer those text

messages, she had the audacity to involve his

child. I mean, as a parent, you think about that.

She was so desperate to talk to Jose, to get him to

answer her phone calls, that she could cross a line

and bring a child into it. But wait a minute.

Let's not forget who we're talking about, right?

91 | P a g e Because we're talking about a woman who would be so

cold and so calculating, so manipulative that she

would put a knife in her own son's hand. That is

the kind of woman that you're talking about. That

is this defendant. As the officers continue their

investigation, they get to the text messages. And

I implore you, please, go back and read these. And

the first text messages that I want you to read are

the ones from this defendant to Jose. Close your

eyes and you can just almost imagine her, how angry

she was sitting there on that phone, message after

message after message with no response. She was

boiling. She was enraged, and she was done. And

then look at the last text messages. She's so --

she's so afraid, right? She's so not in control.

What does she do at the end, because it's all about

her. The last messages that she sends, Jose is

dead. She knows that because she was there. But

she sends him messages. "Amor, where are you?"

"Where are you, señor?" She knows exactly where

92 | P a g e he's at. Those messages are coming in at 1:40,

2:14. She knows where he's at. So what is she

doing? She's taking care of the one person that

she always takes care of. Is it Jose? Is it her

own flesh and blood; her son, Tony? Or, no. Who is

it? It's Lupita because that's what it's always

all about. The communication between her, her son,

her brother-in-law, use your common sense, and you

take that and you apply it to what you heard from

the witnesses, from what they saw, what they

experienced. The Defendant's Statement of Accused.

Remember, she gave one affidavit where she said she

didn't know anything, and then she gave three

statements. We're not talking about a rush to

judgment. We're talking about a murder that took

place on July 3rd. We didn't have an arrest until

the early morning hours of July 7th. A rush to

judgment? This woman came in and gave a statement

and took off and was off for a couple of days.

That's not a rush to judgment. The investigators

93 | P a g e are getting information. They're picking up leads.

They're learning new information. That is their

job. That is what they're supposed to do. That's

what we want them to do. When those statements are

taken, what Defense Counsel wants you to do is they

want you to believe that when an officer,

investigator, knows that someone is lying, that's

it. They're just going to stop talking to them.

Especially when that person wants to keep talking.

What do they expect you to do? "You want to tell

me the truth? No, no, no, no. Don't tell me the

truth. Don't tell me the truth. You want to give

it to me, but, no, no, no. I don't want to hear it

because I already got a statement. We're done."

We're not done. You know, that statement is very --

all of them are very, very telling, but the last

one, you know, Defense Counsel wants you to believe

that they're putting words in her mouth; they're

making her say things. Why include that statement

saying, "I regret it. I loved Jose." Why include

94 | P a g e that statement? I mean, you want this woman;

you've got her. Why are you going to put in -- why

put in language of love now? You're not going to

do that. That language is there because that's what

the Defendant said, and so that's what they put in

her statement. You know, Jose Fiscal will always be

remembered as this 38-year-old man. Always. And

his family has many, many, many beautiful moments

that they're going to remember with them. But

there are some moments that they will never share.

Jose, Jr., will walk across the aisle and receive

his college degree, and when he does that, his

father will not be sitting in the audience beaming

with pride. When Abby falls in love, her father

won't walk her down the aisle and give her away.

When little Gyselle grows up, she probably won't

remember the sound of her father's voice. She

won't remember the warmth of his hug. And why?

Because this woman would not allow it. She was not

going to let it happen. She was tired of it. She

95 | P a g e was sick of it. Nobody else was going to have

Jose. If she couldn't have him, no one would. She

showed him no mercy. And just stop and think what

45 stab wounds means. If she would have found

someone to shoot him in the back of the head, that

would have been an execution, but it would have

been more merciful than what happened to Jose that

afternoon. And I'm going to ask that of you go back

into that jury room and that you hold her

responsible for her actions. Thank you.

Clearly in both opening statements and the closing

argument in the last trial, the prosecution relied on

the same evidence to prove the offense. Further the

jury was instructed in the first trial - in Cause No.

CR-2725-10-H - that the guilt of a defendant in a

criminal case may be proved without evidence that he

personally did every act involved in the commission of

the crime charged. The law recognizes that ordinarily

anything a person can do for himself may also be

accomplished through the direction of another person as

96 | P a g e an agent or acting together with or under the direction

of another person of persons in a joint effort.170

The jury, in order to find the Defendant not guilty

in Cause No. CR-2725-10-H of “knowingly or

intentionally” committing the murder, after considering

the charge, necessarily decided those facts in favor of

Appellant Acuna. The first jury decided there was a

reasonable doubt Appellant Acuna acting alone or in

concert or joint effort knowingly or intentionally

caused the death of Jose Guadalupe Fiscal.171

Knowledge, intent, any agreement, any “overt act”

performed in furtherance of that agreement were

ultimate issues of fact and, because the jury has

considered them, the State cannot re-litigate this

issue.

B. State’s Evidence in Cause Number CR-2725-10-H

State’s witness Eduardo Aleman from the Hidalgo

County District Attorney’s Office was called to testify

at both trials. Aleman testified in his capacity as a

170 TEX.PEN.CODE Section 7.02 (O’Connor’s Criminal Codes Plus (2010-2011); 1CR@196, 2RR10@14,33 171 1CR@200

97 | P a g e crime scene specialist with the Hidalgo County

Sheriff’s Department at both trials regarding the

“evidence.”172 In both trials, he testified about the

scene of a homicide at the Donna Lakes on July 3, 2010;

he testified regarding observations upon his arrival

and described what he observed for both juries.173,174

Aleman described video-taping and photographing the

crime scene, which video and photos were ultimately

entered into evidence at both trials and published to

both juries.175,176,177 Aleman is then walked through the

photos as both juries are allowed to review them once

they are admitted. Note the prosecutor takes her time

in both trials to go through each of the photos with

this witness. Although numbered differently, these 172 1RR5@20,21; 2RR7@20-22 173 Included in his testimony was how and what he observed at the crime scene as regarding the victim’s vehicle, the victim’s body and the condition of each. He testified he observed the body to be slightly burned or not completely burned. Some of the victims clothing was burned off. He observed the victim’s body, which was face down, to have stab wounds. He testified he observed a blood trail between the burnt vehicle and the lake. The victim’s hair was burned off of the victim’s head. There was blood around the body. 2RR7@24-25; 1RR5@22-24 174 1RR5@22-24; 2RR7@22-26 175 State’s Exhibits 46-88 at the first trial represent photos of the crime scene at the Donna Lakes – the crime scene. State’s Exhibit 1-31 at the second trial represent photos of the crime scene at the Donna Lakes – the crime scene. 176 At the first trial, the video of the crime scene is represented by Exhibit 89. 1RR5@33-34; At the second trial, the crime scene video is represented by Exhibit 32. 2RR7@37-38 177 1RR5@24-35; 2RR7@29-41

98 | P a g e exhibits are the same photos used at both trials.

Aleman’s testimony served to show the victim was

stabbed multiple times and the victim was burned.178,179

State’s Witness Fernando Tanguma is called in his

capacity as an investigator with the Hidalgo County

Sheriff’s Department and his association with this

investigation.180 His initial duty here was to interview

Appellant Acuna at the Sheriff’s Office.181 The

statement taken by Tanguma on July 6, 2010 is published

to both juries and the Affidavit, represented by

State’s Exhibit 6 in the first trial and State’s

Exhibit 55 in the second trial, is read aloud to both

juries.182

Next Tanguma described a “body search warrant”

178 This evidence will prove critical at both trials as the State sought both times to show Antonio De Leon and Juan Salazar actually stabbed the victim. Aleman’s testimony also served the State’s theory in both trials by showing that a gas can was found at a canal after receiving “information” from Antonio De Leon – co-defendant. The State’s theory at both trials was in fact this gas can was tied to the crime since Aleman has now provided both juries evidence of the victim being burned. 179 1RR5@51-52; 2RR7@25-26 180 1RR2@102-104; 2RR8@95-96 181 1RR2@105; 2RR8@96 Note that before Tanguma even spoke with Appellant Acuna, he already had a theory regarding her involvement: that Appellant Acuna was a jilted lover and that she somehow had some involvement in the killing of Fiscal. 1RR2@128 After Appellant Acuna gave Tanguma the initial affidavit on July 6, 2010, he left her in the custody of Leonor Garcia. 1RR2@122, 131 182 1RR2@115-121; 2RR@111-115

99 | P a g e executed on Antonio Rodriguez De Leon, Juan Manuel

Salazar, Guadalupe Acuna and Ezequiel Gamez.183 Note

the testimony regarding body search warrants is not

covered by the prosecution with this witness in the

second trial.184 This is important to note as the DNA

evidence/testimony that was adduced at the first trial

served to “exclude” Appellant Acuna’s DNA from any and

all evidence in this case subjected to analysis. In

other words, the DNA evidence didn’t do the State any

good the first time around; it was not necessary the

second time around.

State’s Witness Leonor Garcia testified in her

capacity as an investigator with the Sheriff’s

Department; she testified at both trials.185 Garcia

obtained phone records of Appellant Acuna and the

alleged co-conspirators, Juan Manuel Salazar and

183 1RR2@123-124 DNA Analyst Edna Zavala would be called to testify at the first trial. Her testimony is discussed herein below. Interestingly, her testimony would serve to show that Appellant Acuna was excluded from all evidence submitted for analysis. This is important to consider since she was NOT called to testify at the second trial - an example of the State getting another shot at Appellant Acuna and “fixing” their case. 184 Rather, since the DNA proved to exclude evidence of Appellant Acuna at the first trial and the first jury obviously found in favor of Appellant Acuna the first time around, the State noticeably left this evidence out the second time around. 185 1RR2@143; 2RR9@27

100 | P a g e Antonio De Leon.186

She helped Tanguma interview Appellant Acuna; she

told both juries Appellant Acuna wasn’t being

truthful.187 Garcia suggested Appellant wanted to “come

clean,” and another statement was given by Appellant

Acuna.188 This statement was read aloud to both

juries.189 Then, Garcia testified about yet another

statement,190 represented in the record on appeal as

State’s Exhibit 8 in the first trial and State’s

Exhibit 57 at the second trial. This was entered into

evidence at both trials and read aloud to both

juries.191

On cross examination at the first trial, Garcia

admitted the investigation relied on a theory Appellant

186 1RR2@144; 2RR9@29; At both trials, there were “summaries” of text messages between Appellant Acuna, Jose Fiscal, Antonio De Leon and Juan Salazar published to the juries. They were identified as State’s Exhibits 20, 21 and 22 at the first trial.________________________ At the second trial, these same “summaries” are identified as State’s Exhibits 37, 38 and 39. 2RR8@6-7 187 1RR2@146-149; 2RR9@33-36 188 1RR2@150-151, 164; 2RR9@37-38 By this time, Appellant Acuna has given an initial statement to Investigator Palacios; she’s given one to Investigator Tanguma and now she gives another to Investigator Leonor Garcia. This 3rd statement was identified as State’s Exhibit 7 at the first trial. 1RR2@150- 151 It was designated as State’s Exhibit 56 at the second trial. 2RR9@39-40 189 1RR2@165-169; 2RR9@42-46 190 This statement will be the 4th statement given by Appellant Acuna and the second statement given to Leonor Garcia. This statement was identified as Exhibit 8 at the first trial and Exhibit 57 at the second trial. 1RR2@172- 175; 2RR9@48-50 191 1RR2@175; 2RR9@52

101 | P a g e Acuna knew what she’d done and she’d planned it. In

other words, “they were going to go.” “She knew that

they were going to kill him.” “She lured him to where

she was at.”192 Garcia admitted at the first trial, by

the time she took the second statement, investigators

already had this theory of the crime.193 She admitted

the “phone records” cemented the investigators’ theory

Appellant was involved.194 State’s Exhibit 8 at the

first trial and State’s Exhibit 57 at the second trial

(same exhibit) was heavily relied upon by the State at

both trials to show Appellant Acuna knew “they” were

going to do it because she had asked them to do it.

“On Saturday, July 3, 2010, I knew Jose was going

to be killed. I regret asking anyone to kill Jose.

I loved him.”195

Then at the second trial, again, Garcia admits the

evidence used to arrest Appellant Acuna was the same

text messages and same confession. And before that

192 1RR2@186 193 1RR2@188-189 194 1RR2@190 195 State’s Exhibit 8 at the first trial and State’s Exhibit 57 at the second trial; 1RR2@190; 2RR9@48-50

102 | P a g e statement represented by State’s Exhibit 8 in the first

trial and State’s Exhibit 57 in the second trial was

taken where Garcia admitted she’d already received the

text message evidence from the phone records. She also

admitted that investigators “had all talked.”196 Clearly

then, at both trials, the evidence by this witness was

identical. Further, this witness admitted at both

trials that the evidence heavily relied upon in

supporting the theory Appellant Acuna was involved was

the text message evidence and Appellant Acuna’s

statements.

At the first trial, Garcia responds to the

prosecutor that Appellant Acuna was not charged with

murder because she knew about the killing of Jose

Fiscal. Rather, she was charged with Murder because

she “asked and planned it.”197

Garcia then admitted on cross examination at the

first trial that the investigation revealed and she

believed Appellant Acuna’s son, Antonio De Leon and

196 2RR9@54, 57-58 197 States Exhibit 8 at First Trial ; State’s Exhibit 57 at Second Trial; 1RR2@200

103 | P a g e Appellant Acuna’s brother-in-law, Juan Salazar were the

ones who stabbed Jose Fiscal.198 Garcia advised she

corroborated Appellant Acuna communicated with Antonio

Rodriguez De Leon and Juan Salazar; that she was “going

to the beach; that her vehicle had been seen at the

crime scene.”199 This was further driven home to the

first jury on re-direct by the prosecutor where she

called on Garcia to confirm with regards to the

statements Appellant Acuna provided, Antonio Rodriguez

De Leon and Juan Salazar were acting on Appellant

Acuna’s request.

“And the actions that they (Antonio De Leon and

Juan Salazar) took on July 3rd, 2010 were requested

by Appellant Acuna.”200

Then at the second trial, this portion of Appellant

Acuna’s statement was read in response to the

prosecutor’s questioning of Garcia.

“I regret asking anyone to kill Jose. I loved him.”

The prosecutor made it a point to ask this witness,

198 1RR2@203-204 199 1RR2@203 200 1RR2@205-206

104 | P a g e “who said that?” Garcia responded “Appellant Acuna said

that.”201

CLEARLY, the State’s theory of prosecution in the

first case was one of conspiracy even though Appellant

Acuna was charged with the substantive offense of

Murder.202 It is equally clear the same theory of

prosecution was implemented and relied upon by the

State at the second trial, using this witness’

testimony.

State’s Witness Aaron Reyes Garcia testified he

worked and lived close to the Donna Lakes. While

eating lunch on July 3, 2010, this witness noticed a

plume of smoke coming from the Donna Lakes.203 He

testified upon discovering the plume of smoke, he went

to the street to get a closer look; that’s when he says

he saw a “light brown SUV,” possibly an Expedition.

This witness identified State’s Exhibit 16 as possibly

201 2RR9@99 202 TEX.PEN.CODE Section 19.02 (O’Connor’s Texas Criminal Codes Plus (2010- 2011)….and acquitted… 203 1RR3@7-9; 2RR7@46-47

105 | P a g e being the same light brown SUV he saw that day.204

State’s Exhibit 16 at the first trial represented a

photo of Appellant Acuna’s vehicle.205 CLEARLY, this

witness served both prosecutions by placing Appellant

Acuna and/or her vehicle at the scene of the murder.

State’s Witness Jonathan Palacios testified in his

capacity as the lead investigator in this case.206

Preliminarily, he talks about what he observed at the

crime scene and then turned to what his role was in the

investigation.207 Palacios then talked about how he

made it to an address on King Drive, an address where

the victim’s family advised Jose Fiscal was living with

his girlfriend, “Lupita.”208 “Lupita” was identified as

Appellant Acuna.209 Palacios takes a statement from

Appellant.210 After, Palacios returned to 2510 King

Drive and confirmed the occupants; “Lupita’s” son,

204 State’s Exhibit 16 in the first trial. 1RR3@11-12 Note that no exhibit was sponsored by this witness at the second trial although he described the same vehicle at the second trial as a brownish/cream SUV like an expedition. 2RR7@48; A photo referred to as State’s Exhibit 35 depicting the victim’s vehicle would later be sponsored by state’s witness Renee Mejia. 2RR7@62-63 205 1RR3@10-11 206 1RR3@27-29, 30; 1RR4@64-65; 2RR7@89-90 207 1RR3@30-33, 35-37; 2RR7@91-92 208 2510 King Drive in Donna, Texas was the residence where Appellant Acuna and the victim lived together. 2RR7@94-96 209 1RR3@37-38 210 1RR3@39-40

106 | P a g e Antonio De Leon and brother-in-law, Juan Salazar were

among the occupants of the home.211 These two were named

as co-conspirators and were also the subject of the

State’s theory; they were the actual killers.212

Palacios advised the jury he called upon fellow

investigators, Joshua Kaltenbach, Leonor Garcia and

even the FBI to assist in obtaining phone records.

Phone records were obtained for Appellant Acuna,

Antonio De Leon, Juan Salazar and Jose Fiscal.213 These

records were admitted at the first trial as State’s

Exhibits 19, 19A, 19B and 19C at the first trial amd

State’s Exhibits 40, 41 and 42 at the second trial

representing the phone records of Appellant Acuna, Juan

Salazar and Antonio De Leon.214 These exhibits contained

numerous records of communications between various

individuals.215

“But based on the State’s theory that these three

211 The testimony at both trials was developed to identify these two individuals as Co-defendants; they were identified at both trials as the ones with whom Appellant Acuna agreed to kill Jose Fiscal. 212 1RR3@41-42; (See Leonor Garcia’s testimony) 213 1RR3@43-44, 50-51, 54-55; 1RR4@19; 2RR7@105-107 214 1RR3@53-54; Three disks containing phone records and text messages. A “significant” amount of information is contained on these three disks. 1RR4@22; 2RR8@5-6 215 1RR4@22; 2RR8@5

107 | P a g e individuals were involved in this killing, we were

looking for communications between them and these

three numbers were ‘filtered’ out – those belonging

to Appellant Acuna, Juan Salazar and Antonio De

Leon. We filtered their numbers out and further

filtered by date concentrating on the dates July 1-

3, 2010, given that the victim was found July 3,

2010.216

Investigators included filters of the victim’s

phone number.217 Given the voluminous nature of these

phone records,218 Palacios testified it would be helpful

to present the text messages in a summarized format.219

State’s Exhibit(s) 20, 21 and 22 are offered and

admitted representing “summaries” of State’s Exhibits

19, 19A, 19B and 19C, given that they were very

voluminous.220

216 1RR4@22-23; 2RR8@7-8 217 1RR4@23; 2RR8@8-23 218 State’s Exhibit 19, 19A, 19B, and 19Cat the first trial. State’s Exhibits 40, 41 and 42 at second trial. 2RR8@5-6 219 1RR4@24; Investigator and the prosecution actually go through the texts from the victim and Appellant Acuna at both trials. 2RR8@8-23 220 2RR8@7-8; 1RR4@24; The summary contained in State’s Exhibit 20 at the first trial and State’s Exhibit 37 at the second trial contains the text messages between Appellant Acuna and the victim Fiscal from July 1, 2010 at 12:01 a.m. to July 3, 2010 at 4:13 p.m. 1RR4@25; 2RR8@8 State’s Exhibit 21 at the first trial and States Exhibit 39 at the second trial represents text

108 | P a g e Investigator Palacios and the prosecutor in the

both trials publish these exhibits to the jury and go

through each text message communication. Referring to

the summary of text messages contained in the last page

of State’s Exhibit 20 in the first trial, there’s a

text message at 11:24a.m. where Appellant Acuna texted

the victim and told him, “come for me.”221 Palacios

testified he was able to confirm Appellant Acuna and

the victim were together after that time.222 He used

the surveillance footage at Pepe’s Drive Thru in Donna.

Relying on information provided by Appellant Acuna in

her Statement of Accused, Palacios in fact recovered

video surveillance from Pepe’s Drive-thru in Donna

where it was determined the victim and Appellant Acuna

messages between Appellant Acuna and her son Antonio De Leon between July 1, 2010 at 11:25 a.m. and July 5, 2010 at 4:49 p.m. 1RR4@25; 2RR8@23-24 State’s Exhibit 22 at the first trial and State’s Exhibit 38 at the second trial represents text messages between Appellant Acuna and Juan Salazar between July 2, 2010 at 4:40 p.m. and July 3, 2010 at 12:14 p.m. 1RR4@26; 2RR8@26 221 2RR8@23; 222 Note that there are three (3) more text messages recorded from Appellant Acuna to the victim after that. Palacios tells the jury that by the time those texts are sent, the victim’s body had already been found. 1RR4@41; At the second trial, Palacios makes this point as well when he testifies that he was called to the crime scene “before lunch” when these last texts came in after lunch. 2RR8@23

109 | P a g e stopped on the day of the murder.223 This footage was

represented by State’s Exhibit 18 at the first trial

and was published to the jury to corroborate the

investigation.224

Next, Palacios goes through the summary of text

messages between Appellant Acuna and Antonio De Leon;

this is done at both trials. Notably, the jury hears

about a text from Appellant Acuna to Antonio De Leon,

to wit:

“It’s like I want him six-feet under.” “I want him

down so, so bad.”225

Palacios and the prosecutor then discuss the

summary of text messages showing communications between

Appellant Acuna and Juan Salazar. Notably here, the

prosecution is relying on text messages where Appellant

Acuna is receiving texts from Juan Salazar; he tells

her to try to take him over there;226 where Appellant

223 Appellant Acuna in her Statement of Accused told investigators that she and Fiscal had stopped at Pepe’s on the way to the Donna Lakes that day. 1RR4@41; 224 1RR3@45-48. 225 1RR4@41-44; 2RR8@24-25 226 Given the State’s theory that Appellant Acuna “lured” the victim to the Donna lakes where he was murdered, “him” here likely refers to Jose Fiscal. 2RR8@26-28

110 | P a g e Acuna tells Juan Salazar that they are on their way to

the “beach,” which Palacios confirms means the Donna

Lakes.227 There are text messages where Appellant Acuna

and Juan Salazar text each other confirming they are in

fact “there.”228 Palacios testified these texts back and

forth about being on the way to the beach and about

being at the beach showed Appellant Acuna was with the

victim and Juan Salazar and Antonio De Leon were in

fact together.229

These text messages led to a search warrant for

2510 King Drive, where Appellant Acuna lived together

with Antonio De Leon and Juan Salazar.230 Investigators

discovered among other items, a beige Ford Expedition,

which Palacios described as “recently cleaned and/or

detailed.”

“It was extremely clean. The carpet had striation

patterns as if recently vacuumed, the outside of

the vehicle was very clean as if it had just been

227 1RR4@47; 2RR8@27 228 1RR4@44-46; 2RR8@27 229 1RR4@46; Palacios confirmed this by way of Appellant Acuna’s Statement of Accused and the surveillance footage from Pep’s Drive Thru admitted as State’s Exhibit 18. 1RR4@47; 2RR8@26-28 230 1RR4@47

111 | P a g e washed.”231

Those present at the residence when search warrant

was executed included, Appellant Acuna, Antonio De

Leon, Juan Salazar and Renee Mejia. Each agreed to

accompany investigators to the Sheriff’s Department.232

Later that day, Juan Salazar was arrested and charged

with murder; his arrest was based on witness

statements, co-defendant’s statements of accused,

physical evidence and DNA evidence.233 Antonio De Leon

gave a statement; he was arrested that day as well.

His arrest was based on his own statement of accused,

phone communications, text messages, physical evidence

collected, co-defendant’s statements and witness

statements.234 Ezequiel Gamez was also arrested and

charged with tampering with evidence as the

investigation revealed he washed the Expedition

belonging to Appellant Acuna.235 Gamez’ arrest was based

on co-Defendant statements, witness statements, along

231 1RR4@47-48; 2RR7@107-108 232 1RR4@48-53; 2RR7@108-109 233 1RR4@53; 2RR7@110 234 1RR4@53-54; 2RR7@110 235 Ezequiel Gamez was the boyfriend to Appellant Acuna’s daughter at the time. 1RR4@52; 2RR7@110-111

112 | P a g e with his own statement of accused.236 Appellant Acuna

was also arrested that day; her arrest was based on

physical evidence collected, co-defendant statements,

witness statements, and phone texts and

communications.237

After these arrests were made and after additional

information was received,238 another search was

conducted at a canal called Relampago. Investigators

went there searching for a punctured black trash bag

with a tire iron and bloody clothing. Once there,

Investigators recovered a gas can and camp fuel.239 The

significance of this find was investigators received

“information”240 there would be found a black bag

containing bloody clothing, the gas can used to burn

the victim and his vehicle and a knife.241

Next, Palacios tells the jury about a knife that

236 1RR4@54-55 237 1RR4@55 238 Note that the record in the first trial illustrates that co-defendant Antonio De Leon gave his own Statement of Accused. However, when asked about “information received from Antonio De Leon, the defense objected and the witness did not answer. However, it’s easy to glean from the record that the information regarding evidence of the murder dumped at a nearby canal in fact came from Antonio De Leon, co-defendant. 2RR7@111-112 239 2RR7@112 240 Note again that this “information” likely came from the Statement of Accused given by co-defendant Antonio De Leon. 241 1RR4@57; 2RR7@11-112

113 | P a g e was found at 410 Jalapeno Drive home, Appellant Acuna’s

mother’s home. Guadalupe Bustamante Acuna gave

information about a knife her daughter, Appellant Acuna

gave her to hide. As it turns out, the knife was not

affirmatively linked to the crime.242

Next, Palacios admits that there was no DNA

evidence affirmatively linking Appellant Acuna to this

crime.243 While Palacios admits he took an affidavit

from Renee Mejia, he admits no information was provided

by Mejia that would have led to Appellant Acuna’s

arrest.244 Palacios could not point to any physical

evidence corroborating Appellant Acuna’s involvement in

this crime other than a general statement “the physical

evidence was corroborated.”245 Regarding the gas can

found at the canal believed by the investigation to be

the gas can used to burn the victim and his vehicle,

242 1RR4@59-60, 62, 68, 107-108; 2RR7@113-114 243 1RR4@73; 2RR7@114 244 1RR4@101; The prosecution did not cover this area at the second trial with this witness. Notably, it did not inure to the benefit of the first prosecution. It’s not surprising the prosecution chose to “refine” the presentation at the second trial and leave this out. 245 1RR4@106-107; Again, the prosecution did not cover this area at the second trial either with this witness. Notably, it did not inure to the benefit of the first prosecution so it’s not surprising the prosecution chose to “refine” their presentation at the second trial and leave this out.

114 | P a g e Palacios admits no tests were run on that gas can to

confirm it was in fact the gas can used in this case.246

The prosecution makes sure to re-direct the witness

at the first trial and remind the jury that the text

messages were considered in determining whether

Appellant Acuna should be arrested.247 Then at the

second trial, on cross examination, this witness admits

the text message communication was critical in arriving

at probable cause for the arrest of Appellant Acuna.248

Murder.249 It is equally clear the same theory of

State’s Witness Sandra Rangel is called to testify

in her capacity as a Crime Scene Specialist with the

246 1RR4@108-109 247 1RR4@119; 2RR8@6-27 248 2RR8@61-62 249 TEX.PEN.CODE Section 19.02 (O’Connor’s Texas Criminal Codes Plus (2010- 2011)….and acquitted…

115 | P a g e Sheriff’s Department.250 She attended the autopsy. Her

duties included photographing the autopsy and

recovering physical evidence.251 She sponsors video and

photos that she took at crime scene and at autopsy.252

She testified about her efforts to recover evidence at

that residence as well.253 Rangel testified about her

involvement in executing a search at a canal on

Military Highway 281, at Relampago. This is the same

canal referred to by Investigator Palacios. She

photographed the area and assisted in recovering

evidence at the canal. She helped describe the gas can

that was recovered.254

Rangel described the processing of the beige

Expedition recovered in this case, belonging to

Appellant Acuna. She helped publish photographs of the

vehicle and commented that it was “very, very clean.”255

State’s Witness Edna Zavala was called to testify

for the State in her capacity as a DNA Analyst employed 250 1RR4@142; 2RR8@63 251 1RR4@143-144; 2RR8@63-68; Victim’s burnt and bloody clothing, fingernail clippings, hair, some currency that was on the victim’s person when he died 252 1RR4@146-151 253 1RR4@151-153 254 1RR4@155-159-172; 2RR8@68-69 255 1RR4@160-164; RR8@70-72

116 | P a g e by DPS and here to testify specifically regarding DPS

Crime Lab number L3M84452.256 She testified about

receiving known samples from the suspects and the

victim in this case.257 As it relates to Appellant

Acuna, her DNA profile was excluded from any and all

items of evidence submitted for analysis/comparison.258

We know that at the first trial, her testimony served

no purpose but to “exclude” Appellant Acuna from any

affirmative link to this offense. Naturally, then the

State decided she would not serve their cause. This is

an example of the State learning from the first trial

what worked and what did not. The State adjusted and

of course this witness was not called back to testify

at the second trial.

State’s witness Alma Fiscal was called to testify

for the State at both trials.259 She was called to

256 1RR4@183; Note that Edna Zavala is NOT called to testify at the second trial. As previously noted, this witness did not serve the prosecution in any way. In fact her testimony at the first trial was that Appellant Acuna was not “biologically connected” to the evidence submitted for analysis. Conceivably then and more likely – probably – the State left this witness out when they presented the case to the second jury. It did not inure to the benefit of the prosecution the second time around. 257 1RR4@192-193 258 1RR4@204-205, 210 259 1RR5@156; 2RR9@101

117 | P a g e identify the victim, as she is his wife. Exhibit 90 is

offered to help the jury identify the victim.260 She

provided context to the marriage and advised the jury

they were married 15 or 16 years and they had children

of the marriage as well. Then the jury was told the

victim was involved with another woman which caused

problems between them. The “other woman” was Appellant

Acuna.261 An apparent decision was made between Alma

Fiscal and the victim; they decided they’d give their

marriage another try and decided when and where they’d

reunite. During this time, the victim was still in a

relationship with Appellant Acuna. The victim’s

apparent plan was to break off the relationship with

Appellant Acuna “little by little.”262

Alma Fiscal returned to the valley on July 1, 2010

and went to “the house” where she saw the victim and

Appellant Acuna home at the time.263 Alma confronted

260 1RR5@157; Note that no exhibit was sponsored by this witness to identify the victim, however it was clear from her testimony at the second trial that she was the victim’s wife and the father of their children. 2RR9@101-103; Note that Renee Mejia would be called upon to sponsor the photo of the victim in this case. 2RR7@61 referred to as State’s Exhibit 33 261 1RR5@158-159; 2RR9@102-103 262 1RR5@160-161, 185; 2RR9@104 263 1RR5@162-163; 2RR9@106

118 | P a g e the victim and demanded Appellant Acuna leave the

residence, as it was “her house.” Alma testified at

that point, the victim spoke with Appellant Acuna and

Appellant Acuna had a “pissed off” face;” Appellant

Acuna left with a trash bag full of clothes.264 Later

that night, Alma testifies the victim’s phone kept

going off, ringing and texting, etc. Alma saw the

victim ignore these calls and texts.265 That night, the

victim’s truck was missing from the house, as he

claimed it had broken down; the victim also advised

Alma to put her car in the garage and lock it. His

reasoning was “just in case.”266

State’s witness Jose Fiscal testified at both

trials as well.267 This is the victim’s son who was

called before the jury to discuss how his father, the

victim, wanted to get back together with his mom, Alma

Fiscal but he couldn’t do it right away. He said the

victim told him he needed to pack his things and they

needed to move out while she, Appellant Acuna, was 264 1RR5@163-164, 193; 2RR9@107 265 1RR5@166-168; 2RR@108 266 1RR5@167, 194; 2RR9@109 267 1RR5@187; 2RR9@115

119 | P a g e gone.268 Lastly, this witness left the jury with a

comment that Appellant Acuna supposedly made. He told

the jury Appellant Acuna remarked in the past if his

dad ever messed up with her, to be sure the cops pick

her up and a body bag for his dad.269

State’s witness Renee Mejia testified at both

trials.270 She was the girlfriend/wife of Antonio De

Leon. She testified she and her husband lived at the

2510 King Drive address with Appellant Acuna and Juan

Salazar.271 Mejia left the house on July 3, 2010 at

around 10:30 or 11 a.m. She returned at around 11:00

or 12:00. When she got back, she, Antonio De Leon and

their children were in their room watching movies.

While they were there, Juan came in and told Antonio to

go with him. They left in Appellant Acuna’s

expedition.272 Then Appellant Acuna, Juan and Tony

returned together around 12 or 1. Mejia testified she

didn’t see what they were driving when they came back

268 1RR5@190-191; 2RR9@118 269 1RR5@196; 2RR9@121 270 1RR5@94; 2RR7@50 271 1RR5@95-96; 2RR7@50-51 272 1RR5@97-98; 2RR7@59-60

120 | P a g e but she saw Lupita and Juan enter the house and “they

were panicking.” She saw them run toward the back of

the house. She was in her room and she heard them come

in and opened her bedroom door. When she did this,

they yelled for me to close the door. I could smell an

odor of “burning” as they ran by my room.273 When

Antonio got home, he came into the room and Mejia

noticed the cut on his finger. He didn’t have that cut

when he left the house earlier. He was acting scared;

he was acting different than when he left.274 I saw the

Expedition after they got home and it was muddy.275

Antonio told her Juan Salazar had done something to

Juan Fiscal.276

Later after “Lupita” came back from the sheriff’s

office, Mejia said that Appellant told everyone to say

that they’d been together and to stick to the story.

But Mejia said that was a lie because she knew Lupita

had left with Joe.277 Then Juan made a comment that if

273 1RR5@99-100-101; 2RR7@65 274 1RR5@101-102; 2RR7@66-67 275 1RR5@103; 2RR7@68 276 1RR5@103 277 RR5@106, 117 ; 2RR7@69-70, 77

121 | P a g e you say anything, you “drop.”278 So the first time Mejia

spoke with the investigators, she stuck to the story;

later, she went back and told them “everything.”279

Murder.280 It is equally clear the same theory of

CONCLUSION

Fourteenth Amendment to the Constitution of the United

Collateral Estoppel guarantees “when an issue of

278 1RR5@107; 2RR7@77 279 1RR5@108

280 TEX.PEN.CODE Section 19.02 (O’Connor’s Texas Criminal Codes Plus (2010- 2011)….and acquitted…

122 | P a g e ultimate fact has once been determined by a valid and

final judgment, the issue cannot again be litigated

between the same parties in any future lawsuit.

Appellant Acuna avers the evidence in this case

illustrates the same theory and evidence was presented

to the second jury after acquittal by the first.

This second trial should have been completely

barred since the first jury determined an ultimate fact

in the former trial which was an essential element of

this subsequent prosecution. Further, this subsequent

prosecution – even if allowed – should have only been

allowed without introduction or argumentation of facts

necessarily decided in the prior proceeding.

PRAYER

For the reasons set forth herein, Appellant Acuna

prays this Court reverse the judgement of the Court

below and render a judgment of acquittal and/or enter

an order barring the re-trial of Defendant upon the

indictment and dismissing this indictment and the

prosecution based thereon upon the fact that she was

123 | P a g e acquitted in Cause No. CR-2725-10-H of the exact same

conduct she was charged with in the case at bar.

In the alternative, this Court should rule that the

Doctrine of Collateral Estoppel barred the introduction

in the trial of the case at bar of evidence that was

used against the defendant in Cause No. CR-2725-10-H.

Accordingly Appellant Acuna’s rights guaranteed by the

5th Amendment’s Double Jeopardy Clause were violated. As

such, Appellant Acuna prays this Court reverse and

render a judgment of acquittal and/or reverse and Order

this indictment dismissed with prejudice.

Appellant Acuna prays that this Court sustain these

points and render a judgement of acquittal.

Respectfully submitted,

O. Rene Flores, P.C. 1308 S. 10th Ave. Edinburg, TX 78539 (956) 383-9090 (956) 383-9050

By:/S/ O. Rene Flores O. Rene Flores SBN 24012637

124 | P a g e CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of

the foregoing Amended Appellate Brief was served in

accordance with the rules on the following persons:

Theodore “Ted” Hake Assistant District Attorney Hidalgo County District County Attorney Appellate Division Hidalgo County Courthouse 100 N. Closner Edinburg, Texas 78539 By: Hand delivery

Appellant Guadalupe Acuna TDCJ Number 01886272 Texas Department of Corrections Mountain View Unit Gatesville, TX 76528 CM/RRR 7009 2250 0001 0464 8372

/S/ O. Rene Flores O. Rene Flores

CERTIFICATE OF COMPLIANCE

Pursuant to TRAP 9.4 (3), I hereby certify this

Brief contains 23,606 words.

125 | P a g e