Carter v. StateCarter v. State
- Reporters:
- ,
- Before:
- Odom
OPINION
ODOM, Judge.This appeal is taken from a conviction fоr the offense of unlawfully carrying a prohibited weapon in a place where alcоholic beverages are sold and consumed. Punishment was assessed by the court at two years.
Aрpellant contends that the trial court errеd in denying his plea of “autrefois acquit”.
In the case at bar, we do not have before us the transcription of the court reporter’s notеs of the prior proceedings, upon which this сlaim is based. The record does contain thе indictment and judgment from the prior proceeding as well as some excerpts from the testimony of the appellant and two witnesses.
Thesе excerpts show that: (1) on August 23, 1970, appellant entered the Blue Flame Lounge in Houston with a pistоl in his possession; (2) Freeman Smith had approached appellant in the lounge and told him that he wanted to see appellant “outside about something he had said about his son”; (3) Freemаn Smith then departed; (4) appellant pulled his рistol and immediately followed Smith; (5) that witnesses inside the lounge heard a gunshot; (6) appellant was indiсted for the murder of Smith; and (7) a jury acquitted apрellant of the murder charge.
In support of his contention, appellant relies on Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (19 — ). His reliance is misplaced. In Ashe, the accused had been acquitted of committing the armed robbery of one of six poker players. The court held that the doctrinе of collateral estoppel prevented a second trial for the robbery of another player in that game. The court reаsoned that the sole issue in dispute in the first trial was whether the accused was one of the robbers. The issue of identity having been resolved by the jury agаinst the state, the state was es-topped frоm relitigating that issue at the second trial.
In the instant сase, the identity of appellant and his possession of the pistol in the lounge were not in issue in the first trial. Therefore, these issues were not determined adversely to the state’s position in thе case at bar. Cf. Hutchings v. State, Tex.Cr.App., 466 S.W.2d 584 (Onion, P. J., concurring).
That аppellant possessed the pistol in questiоn on premises licensed to sell intoxicating beverages, and apparently used that pistоl to shoot another, from which incident a murder indictment resulted, does not constitute identical offenses but rather separate and distinct offenses. Benard v. State, 481 S.W.2d 427; McMillan v. State, Tex.Cr.App., 468 S.W.2d 444.
There being no reversible error, the judgment is affirmed.