Ex Parte Watkins

Fuller’s hypothetically jury charge correct parte Jimmy simply

could not quote the Dean language WATKINS. statute, instructing jury to find Fuller 1460-01, Nos. 1461-01. guilty if injured it found an “elder- individual,” ly spe- because indictment Appeals of Criminal of Texas. cifically charges injured that Fuller “Olen April Fuller,” M. and the required State was prove that element of the offense.8 While required allege name,9 so,

victim’s full first once it did undertook it. Here, jury rationally could have person found that testifying at trial dire, M. During “Olen Fuller.” voir defense counsel said the “I following: sus- pect Fuller, fellow the name Olin Buddy,

nicknamed testify.” will come and prosecutor At began opening by introducing statement the victim as Buddy Fuller,” “Olin and defense counsel referred closing victim in argument course,

as “Olin Fuller.” Of voir dire ex- amination and opening closing state- issue, ments are not evidence. But the analysis, under a sufficiency should be jury whether a rational could conclude be- yond a reasonable doubt that Fuller as- person

saulted the he was accused as- Here, saulting. it could. A rational could beyond conclude a reasonable doubt person in the chair sitting witness was the same Michael Fuller was accused injuring own father. I —his any hypertechnical would decline to follow approach past which that would hold

this evidence insufficient convict. Id. 9. TexCode Crim. Proc. Art. 21.07. Worth, Mullen, Appellant.

Lisa Fort Conder, DA, Fort W. Asst. Steven Worth, Paul, Aus- Atty., State’s Matthew tin, for State.

OPINION

COCHRAN, J., opinion delivered PRICE, MEYERS, the Court which HOLCOMB, JJ., JOHNSON, joined. case, we are to decide In this asked of collateral whether the doctrine applies not, in a subsequent prosecution room, of ap- who in the living and ‍​​​​​​‌‌​‌​‌​​‌‌‌​​​‌‌‌‌​​​‌​‌​‌‌​​​​​​​‌‌​​‌‌‌​‍found pellant for attempted capital Nancy twice, murder or in the kitchen. He her shot lover, attempted murder his of wife’s when but neither wound fatal. When Fon- a prior jury found that killed tenot ran into the kitchen Nancy and saw floor, wife “in sudden on the passion” during appellant began the same shooting at that him. was transaction. We find the Fontenot hit in the back doctrine and seriously but not leg, injured. As apply, though appel it him, preclude does not the lant continued shoot at prosecut- State from Fontenot Therefore, out charged the ran the front door and offenses. around the side house; the leapt affirm he a chain the decision of the Second over link fence, Appeals, through back-yard, which ran the pre- jumped held that the State is re-litigating neighbor’s cluded from over another fence into a yard, the issue of sud- passion collapsed den where he and for parte help. the second trial. called Ex Watkins, appellant then S.W.3d 858 He saw come out of (Tex.App.-Fort the 2001). house, get Worth in his truck and Ap drive off.

pellant shooting had stopped because he thought gun was out of bullets. With I. minutes, returned, in five he having discov The evidence at the first trial showed that ered was gun not out bullets. Watkins, that Nancy appellant’s estranged house, re-entered the Appellant shot Nan wife, her made husband move out of their cy several more time fatally— times—this home on December 1998. She re then again. he off drove mained in the house with their two chil lover, Fontenot, dren. Her guilt stage Keith moved At the appellant’s trial for murder, evening. that same Through various wife’s argued his defense counsel calls, telephone appellant that appellant discovered did not form intent Keith Nancy incident, had made night during love that arguing this instead that living room floor with the appellant temporarily children insane and was upstairs. afternoon, The next December mentally “gone.”1 rejected jury The this nd, 22 his appellant called wife on cellu argument Jimmy his and convicted Dean Wat- lar kill telephone, telling However, her he would during pun- kins murder. her, Fontenot, kill kill and then A it phase, himself. ishment asked decide later, few minutes he stormed into the appellant whether had murdered his wife house, holding still telephone to his ear “in sudden passion” under Tex. Penal 19.02(d).2 and carrying gun. § He went past Fonte- Code After lengthy delibera- argued, punishment stage Defense counsel inter alia: At of a defen- absolutely dant snaps. premeditation. He No raise issue as to whether he thought. planning. No No it. He loses caused the death under the immediate in- No consciousness. No He awareness. passion arising fluence of sudden gone. You can't understand that? He was adequate proves If cause. the defendant there, gentlemen, by driven ladies and by preponder- the issue in the affirmative conduct likes Keith Fontenot. evidence, felony ance of the is a offense end, protect Driven one degree. of the second has, things only family. important Most provision This reduction awas affairs, family? of our Children? man The offense, manslaughter, separate voluntary un- having living sex with his wife on the code, penal der former Tex. Penal Code room with the house. floor children in the (Vernon 1989) but, (repealed), § 19.04 in the Code, 19.02(d) § reads: 1994 Penal was converted into a 2. Tex. Penal Code the collateral issue. tion, Jimmy Dean relief on concluded (Tex. Watkins, the immediate had acted under Watkins causing his 2001). influence of sudden State then Worth App.-Fort him to ten death and it sentenced wife’s discretionary for review petition filed a community years supervision. The State Court, arguing that the court of this with the attempted then indicted collat granting appellant appeals erred attempted murder of capital murder3 relief.4 eral Fontenot, aggravated as- Keith as well as deadly weapon. with sault II. filed writ of habeas Appellant estop- of The doctrine collateral corpus, of collat- alleging that doctrine within the constitutional pel embodied of estoppel relitigating the issue eral bars the two аgainst jeopardy.5 But bar double jeop- and that the double his mental state jeopardy Double bars are not identical.6 ardy prosecut- clause bars the State from offense, while any of a criminal retrial ing attempted capital him for the murder any spe estoppel bars retrial of collateral judge denied of Mr. Fontenot. fully discrete facts that have been cific and Ap- Court of habeas relief. The Second fairly adjudicated. jeopardy and Double of peals affirmed the trial court’s denial cases,7 collat claim, only to criminal while applies appellant’s jeopardy relief on double applies in both criminal and estoppel but the trial court’s denial of eral reversed Dixon, 688, 695-96, punishment carrying 509 U.S. issue with the defendant United States (1993); passion.” "heat burden 125 L.Ed.2d 556 Herron, (Tex.Crim. Specifically, charged appel- 3. App.1990) (op. reh’g). on lant, acting specific while “with the intent cаpital commit the offense of murder of more claim jeopardy 6. Double is sometimes called during person one than transaction, the same criminal estoppel preclusion, is called while collateral deadly shot Karl Fontenot awith Wright, generally, 18 preclusion. issue See C. firearm, weapon, to-wit: a which amounted Miller, Cooper, & Practice and E. Federal A. preparation to more than mere that tended (1981) (defining, §§ Procedure 4401-4426 but failed effect commission of legal discussing, distinguishing and doctrines offense intended." preclusion preclusion); see and issue of claim sole The State’s Ground for Review that this Comment, Acquittal Jeopardy: Crimi- also granted was: Acquit- Estoppel and Use nal Collateral finding jury's Does a at the Evidence, 287- ted Act 141 U. Pa.L.Rev. phase of trial that a defendant acted under (1992) relationship (discussing the be- the influence of sudden in murder- jeopardy and the tween the double clause preclude one victim the State from liti- estoppel); Thirtieth An- doctrine collateral gating of whether he acted under the issue Introduc- nual Review Criminal Procedure: attempt- passion in the influence of sudden Preliminary Proceed- tion Guide Users: for ing to the second victim. murder ings: Jeopardy, 89 LJ. Double Geo. (2001) (discussing Jeopardy Clause of the United of collat- The Double 1462-67 doctrine provides no States Constitution estoppel). eral subjected having life or limb shall be to twice U.S. jeopardy for the same offense. Const. judicata of res serves the same 7. The doctrine protects against: Amend. This clause V. pro- purposes principles in civil basic 1) prosecution a second for same offense ceedings as the crimi- acquittal; after generally, Wright, C. A. nal context. See 2) the same offense a second Miller, Cooper, Practice and & Federal E. conviction; and after (1981). etseq. §§ 4401 Procedure 3) multiрle punishments for the same offense. Thus, civil proceedings.8 cases hinging subsequent proceeding.10 In applying the the doctrine of double jeopardy do not estoppel, doctrine collateral courts must necessarily apply to a collateral first determine whether deter- doctrine, hinging claim and those on the fact, so, mined a and if how collateral estoppel necessarily do not apply time, broad —in terms of space and con- claim to a jeopardy. The two scope tent —was the of its finding. Before however, similarly, doctrines are treated collateral bar will relit- when collateral claim is based igation fact, aof that fact discrete must on the constitutional rule set out Ashe v. necessarily have been decided in favor of Swenson. the defendant in the first trial.11 The possibility mere fact have been constitutionally Under this based determined in a former trial is insufficient doctrine of estoppel, “when an relitigation bar of that fact same in a ultimate fact has once deter second trial.12 each courts must mined judgment, valid final record, review the entire trial as well as again issue cannot be litigated between the pleadings, charge, argu- and the parties same future lawsuit.”9 is, ments of the to attorneys, That determine “with jury once a determines a discrete defendant, rationality” precisely fact in favor of realism and a criminal which the State cannot the jury’s finding contest jury necessarily facts the decided and 436, Swenson, 443, 8. v. Ashe 397 acquitted U.S. 90 S.Ct. was at fendant his first for the trial 1189, (1970); victims, generally 25 L.Ed.2d 469 see robbery of one of the but was subse- (Second) ("Is- Judgments § Restatement quently of 27 convicted ain second trial for the Preclusion”) (defining general sue robbery rule of poker player. is- another Id. At both preclusion trials, applicable sue in both civil robbery and the evidence that an armed prоceedings); "unassailable,” 438, Wright, criminal C. 18 A. had occurred was id at Cf. Miller, Cooper, 1189, & E. Supreme Federal Practice and 90 S.Ct. and the Court deter- 4421, ("Issue (1981) p. § pre- Procedure 192 "single rationally the mined that conceivable only to dispute clusion attaches ‍​​​​​​‌‌​‌​‌​​‌‌‌​​​‌‌‌‌​​​‌​‌​‌‌​​​​​​​‌‌​​‌‌‌​‍determinations jury issue in the before was whether necessary support judgment were the en- the [defendant] had been one of the robbers.” action”). 445, tered in the first reversing Id. at 90 S.Ct. 1189. In the conviction, the defendant’s Court held that Ashe, 443, by the 1189; Jeopardy State was barred the Double 9. 397 U.S. at see 921, Lee, litigating identity (Tex. Clause from the issue of at also State v. 15 S.W.3d 929 ("if prior judgment acquit- the second trial after a Crim.App.2000) (concurring op.) a verdict ting the defendant based that same issue. necessarily at trial includes the determination 445, Id. at 90 S.Ct. 1189. of an ultimate fact issue in the defendant’s favor, proof and if of that is necessary issue 259, the Lynaugh, for convict the De v. defendant 11. La Rosa 817 F.2d 263 Cir.1987); Gonzalez, subsequent (5th proceeding, prosecu in a the then States United v. 548 1185, issue, (5th Cir.1977); is estopped relitigating tion F.2d 1191 Garcia v. 553, Garza, (S.D.Tex.1989); the acquitted and F.Supp. defendant that of 729 554 fense”); Nash, Reynolds v. 23 State v. S.W.2d 840 817 ref’d). (Tex.Crim.App.1999) (defining pet. discussing (Tex.App.Amarillo estoppel); constitutional doctrine of collateral Mathes, (Tex. 598 (Tex. Ladner Crim.App.1992). ("When Crim.App.1989) a 'fact is not neces sarily possi determined in former the Swenson, example, bility prevent Ashe v. In for that it several have does not ") (quoting armed masked men broke into a home re-examination of that issue.’ States, playing poker. six who robbed men were Adams v. United 287 F.2d 437-39, (5th 1961)). U.S. at S.Ct. 1189. The de- Cir. III. scope findings regarding the its whether relitigation specific historical facts bars jury given was In this in a criminal tri- same facts phase those at special punishment issue Jimmy al.13 asked whether specifically which heat of sudden Dean Watkins acted guilt general A verdict returned The he his wife.17 passion murdered when phase frequently a criminal makes Thus, yes. jury neces jury answered precisely to determine which difficult appellant acted sarily found jury support facts found to historical he murdered passion when heat of sudden considerably less This task acquittal. relitigated. That fact cannot be his wife. jury fact given special difficult when A find estoppel. collateral It is barred dis- to determine.14 of these issues Some under the appellant acting issues crete factual are submitted influence of sudden immediate are guilt while others jury stage, not, of shot does fatally his wife when at the On stage.15 submitted course, necessarily jury de that the mean issues, has of these factual some acting under that termined prove beyond the burden the fact five minutes approximately same influence doubt, de- reasonable while on others the earlier when he shot Keith Fontenot. the fact fendant burden review, discretionary petition its preponderanсe the evidence.16 that, however, the did even not claim common characteristic is that essential if the doctrine specific, jury has found discrete histori- passion,” to the “sudden cal fact. If decides that fact particular particular facts in this these favor, of col- the defendant’s the doctrine a give do rise to case nonetheless estoppel Thus, bars from relit- lateral bar. are not decide a rational upon it a second called whether igating criminal trial. Ashe, 444, proceeding. One Lot lighter 397 U.S. at the second See 90 S.Ct. 1189. 13. States, 409 U.S. Cut Stones v. Emerald United 489, (1972) Texas, 93 S.Ct. 34 L.Ed.2d 438 example, jurors may given be In 14. 1) (noting the bur- that the difference between special issues on whether the defendant: pre- proof in criminal and civil trials den of deadly weapon the used a at the time of application in sub- offense, 2) vents of collateral 12.35(c)(1); § Tex. Penal Code acquittal after sequent civil trial particulаr by prejudice a or motivated bias "beyond a reason- criminal case with offense, fact in committing the Code Tex. Penal standard). However, if the bur- 12.47; 3) able doubt” pas- § acted in the heat sudden exactly the someone, proof in the second trial is den of the time he sion at murdered Tex not which in the first it matters 19.02(d); 4) same as voluntarily § released Code Penal a party carries burden or whether kidnap place, victim in safe Penal Tex "by preponderance of the evidence” 20.04(d); 5) burden person § as that the same Code C. "beyond a doubt." See 18 or reasonable prior out in an convicted in case as set Miller, Wright, Cooper, & E. Federal Prac- A. paragraph, enhancement Code Tex Penal (1981). § 12.42; 6) tice and Procedure § or insane at the time offense, committed Code Tex Penal terms, defining special 17. After certain 8.01(a). § issue read: supra, note 14. by preponderance 15. See you "Do find cаused the evidence that defendant Nancy in a Watkins while under An ultimate issue fact determined death passion aris- relitigated influence sudden prior criminal trial between immediate can proof adequate parties if from an cause?” the same the burden trier of fact could have found that appel- sey21 sharply limited Monge’s applica- lant’s “sudden tion. passion” state of at mind

the time he murdered his wife was or In Monge, sharply Supreme divided could be different at the time he shot Court held that the clause Keith Fontenot.18 not bar prior retrial on a conviction allegation in the noncapital sentencing con- Instead, primar relying judge text.22 There the trial had found ily upon the Supreme Court’s decision the defendant prior had two convic- Monge California,19 argues that the doc tions for “serious” felonies and sentenced trine of collateral estoppel simply does not Monge under California’s “three strikes” issue, fact or court, law.23 An appellate intermediate Monge, however, period. concerns however, pro- found that the sentencing doctrine of jeopardy, not collateral ceeding proof beyond did not contain moreover, estoppel,20 and the Supreme reasonable doubt the defendant had Court’s decision in Apprendi v. New Jer- personally great bodily injury inflicted Rosa, De 18. In La change Fifth Circuit was re tal could have been based on a in the quired jury to decide consent); whether determination woman's Dinkins v. in the first murder trial that the defendant (Tex.App.-Fort Worth acted the influence under of sudden ref’d) (collateral pet. estoppel did not bar re- collaterally estopped relitigation of the issue litigation passion” of defendant's "sudden passion” subsequent "sudden ain trial for shootings, although state of when mind com murder of a second victim. 817 F.2d at 263- sam,e day, mitted on the same 64. In that the court addressed whether circumstances, differing occurred under at change rational could have found a places, separated by significant different firing defendant's state of mind between time). shot firing which killed the first victim and the shot which killed the second victim. Id. 19. 524 U.S. 141 L.Ed.2d place 263. The incident took in a crowded (1998). during bar a melee. Id. at 264-65. The fatal simultaneous”; they shots were "almost were Monge, Supreme Court never men- not "removed from each other considera tioned the doctrine of collateral or its time, distance, ble and circumstances.” Id. at earlier er, in Ashe v. decision Swenson. Howev- 266. The Fifth held that Circuit collateral Bailin, in United States v. F.2d 270 estoppel relitigation did bar of the "sudden (7th Cir.1992), emphati- Circuit passion" Seventh issue because the record reflected no cally rejected government's argument support assertion evidence or to a conclusion changed, estoppel the defendant’s state of mind "that collateral can never and it found that the two criminal acts circumstances jeopardy where double episode evolved from the same criminal with not.” Id. 275. As the court stated: out separation sufficient finding to base a of holding Such a would eliminate collateral changed explained by intent. Id. As the court estoppel from criminal cases and overrule inquiry in ‍​​​​​​‌‌​‌​‌​​‌‌‌​​​‌‌‌‌​​​‌​‌​‌‌​​​​​​​‌‌​​‌‌‌​‍De La Rosa: "[t]he relevant here Precisely contrary govern- Ashe. ... remains whether sufficient evidence exists for assertion, ap- ment’s is a rational trier fact of to find that the defen plicable only in criminal cases when double change dant’s state mind did between the jeopardy is not. Estelle, criminal acts.” Id. See also Green v. (emphasis original). Id. 877, (5th Cir.1979) (collateral 601 F.2d relitigation barred of defendant's 466, 2348, 21. 530 U.S. 120 S.Ct. 147 L.Ed.2d state of mind—murder without malice—when (2000). two victims were killed almost simultaneous Estelle, 800, ly); compare Douthit v. 540 F.2d 22. 524 U.S. at S.Ct. (5th 2246. Cir.1976) (collaterаl estoppel 805-06 did relitigation alleged rapes not bar three hours; acquit same woman over course of 22 23. Id. at 118 S.Ct. 2246. discussed Court Supreme one of these later deadly weapon during used crime” enhancement Jersey “hate the New jeopardy double offenses and that prior “fact” specific and held from a retrial statute forbade the state principles sen- a criminal defendant’s that increases Supreme on the enhancement.24 decided, beyond a reason- “[hjistorically tence must be disagreed, noting that Court doubt, The Court dis- jeopardy protections able we have found double jury.27 Monge, noting that the sentencing proceedings ... tanced itself inapplicable to applied as jeopardy principles at issue do not the determinations because perhaps gener- sui enhancements are prior for an ‘of- jeopardy a defendant place casеs ”25 Court prior Supreme and that Sentencing favorable is decisions fense.’ therefore, statutes did defendant, addressing recidivism generally cannot specific facts accuracy of the challenge of a analogized acquittal to an criminal cases.28 Although Ap- decided in those offense which would invoke the double only facts which increase reasoning prendi But concerned jeopardy neither bar.26 sentence, is reason to logical there no Monge applies nor result to a find- sen- which decrease a suppose and discrete historical fact. that facts fact, capable less tence are less “factual” or regardless A fact is a of whether adjudicated that guilt stage being fully finally of a during determined stage. the sentence. criminal trial or the As those which increase above, double bars jeopardy noted the re- sum, Monge concerned the doctrine entirеty, trial of a claim or offense in its than collateral jeopardy rather only while collateral bars relit- ap- in that case estoppel and the decision igation of a historical fact discrete which to double pears be confined previously determined. convictions, not other dealing prior with caveats, Moreover, facts. With those two Monge sig- punishment the reach of nificantly Texas have followed sharply curtailed divided this and other courts Apprendi years Monge.29 two later. In the 725-26, concurring opinions set forth in the 24. Id. at 118 S.Ct. 2246. the rule 526 U.S. in that United [Jones Id. at 118 S.Ct. 2246. (1999)] S.Ct. 143 L.Ed.2d 311 legisla- case: “It is unconstitutional for have Id. at 2246. "We held jury the assessment ture to remove from the appeals that where an court overturns con- prescribed range facts that increase the ground viction on the that the penalties to a criminal defendant which proffered guilt, insufficient evidence of such exposed. equally It is clear that finding compаrable acquittal, and the by proof beyond a established facts must be Jeopardy precludes a Double Clause second 490, U.S. at reasonable doubt.” 530 proof oc- trial.... Where similar failure S.Ct. 2348. however, sentencing hearing, curs in a analogy inapt. pronouncement of sen- is The 488, (discussing and 28. at 120 S.Ct. 2348 Id. simply qualitites tence does not 'have the distinguishing v. United Almendarez-Torres finality acquit- attend an constitutional that 1219, States, " 523 U.S. (citations omitted). Id. tal.’ (1998), noting de and that the L.Ed.2d 350 challenge the case "did not fendant Apprendi, In the Court held: prior of his convic accuracy” of the "fact” conviction, prior Other than the fact of tion). any penalty for a fact that increases the beyond prescribed statutory max- crime See, e.g., 994 S.W.2d juiy, Bell v. to a and imum must submitted (following Monge and (Tex.Crim.App.1999) proved beyond a reasonable doubt. With jeopardy principles stating exception, that federal the statement of endorse The argues State also that because any precedent “sud- offer in support posi- of its passion” longer den is no guilt/innoeence tion.32

fact, but rather a mitigating punishment Finally, argues the State that collateral fact, subject is not a fact punishment should not to a collateral estoppel.30 position This fact because both the and State defendant not make logically legally. sense or It also might offer more or different evidence poses expressed the risk by Justice Scalia they than did the first trial. In the in his Monge: dissent it raises go-around, second might the State “cross- specter “sinister” of reconfiguring crim- all examine, pivotal rebut or impeach defense punishment inal offenses into facts to avoid passion’ ‘sudden differently witnesses” any potential collateral or than it had enough. before. True But jeopardy prohibition, as well as dispensing precisely that is purpose of the double proof doubt, with beyond a reasonable jeopardy and estoppel prohibi- tion; right jury to a etc.31 The State the State has full oppor- one and fair logical offers no explain why rationale to tunity its case all discrete punishment fact decided at support punish- facts that conviction and stage is less of a fact than one try-out decided The ment. first trial is not guili/innocence second, at the stage, third, nor does it the road to a or fourth.33 allow "a present the State bearing penalty jail, second chance to days of 30 but then conviction"); proof prior burglary of the creating punishment State innumerable enhance- Webb, (Tex.App.-Fort depending upon severity ments ref'd) pet. (following Monge rea, Worth circumstances, injury, the mens and other concluding allegations that enhancement “do ranging up prison with sentences to life place not defendant in being execution). tried twice for an 'offense' or constitute an punishment previous additional for the of appropriately distinguishes 32. The State fense”); Atwood, compare State v. Mathes, (Tex.Crim.App. 830 S.W.2d 596 ref’d) (Tex.App.-Beaumont pet. 1992), in which this Court held that collateral (distinguishing Monge proof prior because estoppel prevented seeking the State from conviction was not a mere en relitigate dangerousness” the issue of "future hancement, jurisdictional but a element rais capital ain second murder trial when the first primary offense from misdemeanor to a that, upon had determined based felony). presented, evidence did defendant pose dangerousness. a threat of future argues: 30. The State out, points as aptly permit To to claim collateral prosecution stipulated had that the evidence estoppel on an for which he retains dangerousness on future would be the same proof the burden of would erаdicate his in the second as in the first trial. issue of statutorily-imposed burden and create a sit- however, dangerousness, future im claiming uation akin that a events, Intervening mutable historical fact. collaterally estopped defendant was acts, capital conduct between a first mur defending for an offense might der and a one demonstrate already where he had been convicted of likely that a to be more or less another offense in the same criminal trans- dangerous previously sup in the future than action. Thus, posed. might, while collateral Again, concepts the State confuses distinct particular relitigation ain bar of the estoppel jeopardy. collateral and double dangerousness, might issue of future not. 738, Monge, 31. See 524 U.S. at 118 S.Ct. 2246 (Scalia, J., Swenson, 447, dissenting) (setting hypo- out the 33. See v. U.S. at Ashe 397 90 (" legislature repeals thetical in prosecutor which all of S.Ct. 1189 'No doubt felt the its replaces provable violent crimes and charge them with one state had a case on the first crime, another," and, lost, causing "knowingly injury every good did when he what

273 crime, and same for the twice convicted IV. fully right can be aspect that we suggests The dissent following final appeal on vindicated motion, should, conclude that on our own suggests. as the Government judgment, cogniza estoppel issue is this collateral However, long recognized the Court corpus, on a writ of habeas pretrial, ble pro- Clause Jeopardy Double appel nor though neither even than against more and neither individual argued that issue tects an lant has ever appeals subjected punishments. nor the court of to double being the trial court Although put the dis being addressed that issue. twice against guarantee It is a argu good arguments, those sent makes the same offense.36 to trial for in situation. ought apply this ments a collater- apply and law logic Thе same First, estop- a claim of collateral jeopar- on double estoppel al claim based dou pel upon which is based constitutional claim dy.37 collateral When aon jeopardy principles cognizable ble principles? jeopardy based on double corpus, as is pretrial writ habeas to, join could, but declines When Abney v. In jeopardy double claim.34 single arise out of offenses which two States,35 ob United Supreme Court or specific a final verdict transaction and vehi preferred procedural that the served ‍​​​​​​‌‌​‌​‌​​‌‌‌​​​‌‌‌‌​​​‌​‌​‌‌​​​​​​​‌‌​​‌‌‌​‍to the defendant finding factual favorable claim jeopardy cle for review of double relit- would bar in the first be pretrial corpus writ of habeas pro- in a the same fact igation of cause: ceeding.38 ac- on a criminal rights [T]he conferred the dissent relies The cases on which the Double Clause Jeopardy cused claim is not corpus a habeas arguing that ap- if significantly would be undermined in “immedi- unless it will result cognizable claims pellate jeopardy review double type this do not involve ate release” postponed until conviction were after collateral sure, double jeopardy To be the Double sentence. many jeopar- being Certainly, claim.39 against Clause Jeopardy protects violations”); parte jeopardy Ex attorney presentation would refined his tional do-he 552, (Tex.Crim. Robinson, 555 641 S.W.2d light the turn of events at the first trial.' (recognizing cognizability of dou App.1982) precisely what But this is the constitutional forbids”). estoppel claims guarantee jeopardy based collateral ble rejecting pretrial writ but habeas case). State, 812, particular Stephens 814 contention made v. 806 S.W.2d See ("the (Tex.Crim.App.1990) pretrial ha- writ of Swenson, U.S. at 90 remedy v. 397 corpus appropriate an to re 38. See Ashe beas LaFave, 1189; claim”); 4 & genеrally Israel S.Ct. see view a double 17.4(a) § Rathmell, King, at 633 (Tex.Crim.App. Criminal Procedure 34 (2d ed.1999); Rodriguez, Appellate 1986). Review of Reguests Corpus Habeas Pretrial Relief Texas, (2000). L.Ed.2d 35. 431 U.S. Tech L.Rev. Tex. (1977). explicitly In v. this Headrick cogni- 660-61, v. claim is that Ashe Swenson stated 97 S.Ct. 2034. 36. 431 U.S. corpus. pretrial writ of habeas on a zable however, Headrick, at 228. 37. See Headrick attempting merely to ex- ("[i]n 1999) like the defendant (Tex.Crim.App. situations subject of had been the evidence which clude appropriate for [a] Ashe it is adminis- license revocation advancing arguments an earlier driver’s corpus of habeas writ hearing. Id. at 227. That situation constitu trative concerning 274 claims,

dy petitioner the habeas will not result in the “immediate release” of the any receive applicant. “immediate release” even if he prevails on his claim. example, For a course, equally Of the reverse true: is person right who asserts his fundamental precedent сite no that a holds punished again

not to be for the same collateral estoppel brought claim be offense when he already has been sen- pretrial via a corpus writ of habeas when tenced for that will offense not be “imme- relief would not result in re- “immediate diately prevails.40 released” if he His re- lief,” i.e., charges. the dismissal of How- significant, lief is nonetheless he ever, we do note that at least some federal only crime, will serve one sentence for one courts have addressed collateral estoppel not two sentences for that one crime. The pretrial issues in a though forum even dissent cites double-jeopardy no or v. Ashe favorable resolution of the matter did Swenson collateral estoppel precedent for result in dismissal of charges.41 Because its conclusion that a of pretrial writ very purpose habeas to estoppel collateral is cognizable claim not corpus is unless will relitigation bar to a particular fact does not raise attempted an Ashe v. Swenson capital claim — the Fontenot and murder of relitigation Thus, in a second of a Nancy fact Keith Fontenot and Watkins. sense, fully finally legal that has been seeking decided in an is "immediate re degree earlier trial of the same event. Id. 228. In lease” from second for Weise, (Tex.Crim. attempted degree punish 619 murder or a first App.2001), presented pretrial the issue attempted capital ha- ment for murder. See also purported unconstitutionality beas Rodriguez, (dis 32 Tex.Tech L.Rev. at 48-49 penal specify culpa cussing statute which failed to Texas definition of “confinement” Again, ble mental state. pretrial that is not an v. purpose Ashe and "restraint" for habeas writs). parte Ruby, Swenson situation. In Ex (Tex.Crim.App.1966), this held, See, Bailin, page opinion one e.g., without United States v. 977 F.2d (7th citing legal authority, Cir.1992) any Ruby that Jack (addressing merits of dou post-trial, not entitled to a pre-appeal estoppel writ ble and collateral claims via corpus concerning competency pretrial appeal habeas interlocutory to both defen attorney government decide whether to though retain his trial for dants and even defen purposes appeal, because decision dants were not entitled to dismissal of claim). charges would not result in his estoppel “immediate release.” their under collateral Bailin, Again, that is not an Ashe v. Swenson situation the Seventh Circuit held that collat raising jeopardy-collateral estoppel government is eral barred the from re always lying upon sues. These acquitted predicate constitutional issues have offenses as cognizable pretrial on a pro writ habeas acts substantive RICO violations in Court, corpus recently spective this most our second trial. See also United States decision, (S.D.Fla. explicitly 1999 Headrick Shenberg, stated F.Supp. 1993) they cognizable are (resolving on a writ. pri- issues "[h]ere, S.W.2d at 228. stating to trial and as Bailin, using the defendants are not direct 11.01, prevent govern Under TexCode Crim. Proc. art. aas sword to corpus remedy having writ of habeas opportunity “the ment from its one full any person prosecute, used when prevent gov restrained in his but as a shield to " 11.22, liberly.” having Under opportunity art. 'restraint' ernment reliti- gate [means] the kind of control one already exer issues which were decided in the another, teaches, government cises over confine him As within first trial. Bailin limits, subject gener opportunity relitigate certain but to to the him should not have the power authority person claiming already al those issues which have been decided right.” Appellant being against Accordingly, per such "restrained” it. the law will not pending charg parties retry in this sense indictment mit the to start over and issues decided”). attempted already him with murder Keith found in the first trial the finally because already fully and has been which pas- “sudden acted under decided, appellant to ad- that it the better course seems wife and because murdering es- pretrial, sion” dress the constitutional claim, the or indicate the State nor did not since neither the State pecially show, jury could that that a rational courts in this case contended to lower evidence of mind improper. appellant’s habeas review was state pretrial conclude the five minutes between changed the argues next determi- The dissent shootings. two the re- bars nation that passion” issue litigation of the “sudden Therefore, by the we affirm decision appellant of any subsequent this Appeals and remand Second impede Yes prosecution.” “does not proceed- for further case to the court may prose- certainly no. The State opinion. ings with this consistent attempted for murder cute murder, may it capital but

attempted KELLER, P.J., dissenting filed passion.42 the issue of sudden relitigate WOMACK, KEASLER in which opinion HERVEY, JJ., joined. that “evaluation The dissent concludes factual de- may the merits be assisted KELLER, Presiding Judge, dissenting. record,” meaning another velopment of our own grant on should review We new, trial with more and better evidence Appeals’s motion1 and vacate the Court is precisely But that offered State. us is not the claim before decision because jeopardy-col- principle what the of double corpus. habeas cognizable is not estoppel bars. The State lateral that “a consistently has held This Court prove opportunity a second entitled to application appropriate is not pretrial writ in the first trial.43 what failed question presented, when resolution of V. applicant, if in favor of the even resolved in immediate release.”2 sum, es- would not result In we conclude that collateral Headrick, sought to use relitigating the In defendant toppel bars the State from ex- of collateral passion” in a trial con- the doctrine issue of “sudden Fontenot, holding such clude evidence.3 cerning shooting Keith Or, situation, (Tex. present the State is as in the 3 S.W.3d 42. See Mims v. (concluding opportunity sudden to at- Crim.App.1999) if entitled a second attempting to cause already is shown in tempt appellant has disprove what individual, attempt death the “offense" the evi- proven by preponderance — murder, hence, second-degree ed is shootings were committed dence—that attempted second-degree attempt offense of passion. the heat of sudden felony degree). Un the third murder is Mims, reasoning convict der the Tex.R.App. P. 67.1. pun attempted capital ed of murder degree offense if it has only for a second ished (Tex. Weise, 2. Ex Parte acting in already proven that he was Crim.App.2001); see also Headrick at passion. And one convicted of sudden (Tex.Crim.App.1999); only punished with tempted murder could be (Tex. Ruby, Ex Parte range. degree felony punishment in a third Crim.App.1966). may prosecute Although for these offenses, level would two at 228. 3. 988 S.W.2d degree appellant’s drop either because one already passion” state of mind "heat of been established. claim was not on cognizable pretrial ap- jeopardy Not all double cogniza- claims are plication, we observed that “[t]he State ble a pretrial application.7 writ While Appellant agree Appellant that even if pretrial have before addressed on ha- seeks, were entitled to the relief she jeopardy-based beas the merits of a double prevented State would not be pursu- claim, claim, if ing pending prosecution.” granted would in have resultеd the defen- dant’s immediate release.8 Likewise, resolving appellant’s collateral in estoppel claim his favor does not result The Court correctly observes that I in his immediate release. an Mandating have cited no jeopardy double cases that affirmative answer to passion” the “sudden specifically say a jeopardy claim is impede issue5 does not prosecution. cognizable not pre-trial on a if grant- writ The still State is entitled to prosecute ap- ing relief would not result immediate pellant capital for attempted murder and I release. am aware By of none. murder, attempted and if he is found token, I same am aware of no cases that guilty, a factfinder still required would say jeopardy cognizable a double claim is And, punishment. to determine if appel- if granting relief would not result imme- lant is attempted capital convicted of mur- release, diate and the Cоurt has cited der, the trial court will not even have an discussion, none. From the above howev- occasion to submit the passion” “sudden er, we can see two well-established ele- issue.6 ments our run contrary caselaw that to Although present (1) alleges case cognizability dou- here: We have never claim, ble jeopardy-based granted rather than the relief on a pretrial writ habeas evidentiary mere claim advanced corpus Head- a form than other immediate rick, pretrial habeas cognizability present is not release. The would be case simply assured (2) because a claim may be first of doing instance so. Not all upon based double jeopardy principles. cognizable claims are aon 4. Id. separate murder of a victim. When a defen- attempts people, dant to kill two he is at- 19.02(d). tempting capital § to See Tex. commit a murder. Under Pen.Code Wesbrook, passion” "sudden does not reduce capital murder to a lesser crime. That capital 6. A murder defendant is not entitled to capital upon degree is murder built first mur- passion” the submission of the "sudden der proves is immaterial. If the State murder, guilt, capital if convicted of required additional elements to capi- establish not to pun- entitled the issue’s submission at murder, passion” simply tal then State, "sudden ishment. v. Wesbrook partial constitute excuse to the (Tex.Crim.App.2000). Although 112-113 crime, proved only as it would if the had passion” "sudden can be an issue in at- ordinary Legislature murder. within tempted prosecution, murder v. Mims prerogative mitigat- its to set factor that is (Tex.Crim.App.1999), applica- S.W.3d 923 its respect as matter of law with to one bility is attempted due to the derivation of offense, respect greater but with murder from murder. Because the “sudden offense. passion” applicable capital issue is not murder, it would be inapplicable likewise 643 n. Gonzalez attempted capital murder. (Tex.Crim.App.2000). contending The Court is incorrect Robinson, reasoning supports a Mims’s conclusion that 8. Ex Parte 555-556 (T finding ex.Crim.App.1982)(magistrate of sudden in a murder case at exam punishment range ining probable reduces the aof subse- trial found no cause bind quent attempted capital grand jury). conviction for the over defendant As opinions. advisory procure order assertion writ. The Court’s error,11 cognizability preservation with cognizable claims are multiple punishment by a to be raised ought made an issue contrary to recent statements runs mo- on its own court jeopardy appellate first-level in some Gonzalez.9 Since pretrial on a cognizable not tion. claims are

writ, the present and court, arewe appellate As a second-level re- a feature that been claim lacks issue systemic to address required not come quired in other case that has evеry petition,12 in but by the State its not raised us, the ‍​​​​​​‌‌​‌​‌​​‌‌‌​​​‌‌‌‌​​​‌​‌​‌‌​​​​​​​‌‌​​‌‌‌​‍conclusion is that before obvious grant- opinion An this case we should. type of the jeopardy claim is this double purely juncture would be relief at this cognizable. that is not have may find that advisory, and we cognizability here denying

Nor does does not on an issue that relief granted the Dou- underlying the threaten interests Moreover, evalua- in the case. even arise notes, Jeopardy As the Court ble Clause. may be assisted of the merits tion permitting writ is point the record. At the development of the factual A being from tried. protect the defendant may introduce evi- parties the second no such grant case serves of relief this passion that the of sudden dence appellant still be tried for purpose: will As- first trial. not introduced at the crime, punish- there still be a this will that we decline distin- suming arguendo at phase ment the trial. claims on the basis who guish between proof, question to be issue, thе has the burden has not raised the but the new would then whether confronted we should not be bound the State’s in the facts of the genesis has its evidence regard. this I cognizability failure in view is derived tried offense or previously requirement an that is inde- as absolute way the facts of the unique In a some pendent litigants’ wishes.10 time, At this we are offense. given parties separate both desire to have legiti- the viability to evaluate position in the best appellate court address evidence, should issues, new and we potential macy that de- of such but give appellant the State or ability require to foist not give sire would them guise under the are not of its case appellate preview courts issues that upon Finally, issuing pub- corpus.13 are cognizable they the time raised habeas because, applied "The sin- 9. See footnote 7. dispute be- gle rationally conceivable issue State, petitioner had jury was fore thе whether 10. See Marin v. 851 S.W.2d 1993). robbers.” 397 U.S. been one (Tex.Crim.App. (1970). If 25 L.Ed.2d (Tex. appellant rationally conclude that could Jones v. 942 S.W.2d n. passion sudden influence of acted under the Crim.App.1997); Hughes v. prosecution but in the first as the victim rehearing). (Tex.Crim.App.1992)(on second, then double not as to the victim in lit- Jones, would not bar jeopardy-collateral at 2 n. 1. See passion igation sudden issue in on the "new, example, appellant if had offering trial. For Court contends that 13. The more, trial for mur- prosecuted in the first precisely better evidence" is what victim, then in the second der the first principle jeopardy-collateral es- of double victim, the State of the second only if for the murder toppel contention is correct bars. That might passion been able claim in one offense have the existence of sudden longer under and was no had "cooled off” question of the existence sud- resolves Swenson, passion the second when influence of sudden den in the other. In Ashe v. opinion lished addressing the merits of this misleading

claim risks litigants future appellate courts into believing that this type cognizable of claim is in a pretrial application.

habeas reasons, For these I grant would review motion, on the Court’s own vacate the judgment of the Court of Appeals, and

remand case with instructions to dis- miss application.

I respectfully dissent. MAXWELL,

Bernard Samuel Appellant, STATE Texas. No. 0359-01. Texas, Court of Appeals Criminal En Banc. April victim was killed. The actual incapable circumstances first but victim became of cool re- present killing here are that the flection when he killed the second. That prosecuted first. To show a cooling different factual could be a much harder sell than the basis, scenario, nonetheless, likely the State would have to possibility off but it is a that the defendant's emotional state escalated and we cannot determine on this record that killings so between would bar consideration of capable of passion relating cool reflection when he killed the sudden second victim.

Case Details

Case Name: Ex Parte Watkins

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 3, 2002

Citation: 73 S.W.3d 264

Docket Number: 1460-01, 1461-01

Court Abbreviation: Tex. Crim. App.