*1 alleged to have by any been sustained It would be difficult for argue PPI to from person persons, arising or language ... of it out ... that was unaware of its performance nonperformance agreement the or indemnify to ARCO for ARCO’s by negligence. work hereunder by contractor ... or any contractor, act or omission we hold that this language subcontractors, and respective their em- requirements meets the express neg- of the ployees agents while on owner’s ligence Although rule. the does premises_ (emphasis added). degrees negli- differentiate between gence, language “any negligent the Although agreement act of the Coast Gulf is ARCO” sufficient to define parties’ the specified the duty indemnify contractor’s Usage “joint,” intent. of the “con- terms the owner resulting for claims from the “comparative or state, current” acts, contractual” it contractor’s failed to with expression would not add to the of intent to equal specificity, obligation to indemni- exculpate negligence.2 for its ARCO fy resulting for claims from acts other owner). (i.e. Further, parties the contrac- The of the of appeals may tor reasonably have that if assumed it reversed and the cause is remanded indemnify were to the owner for acts of proceedings. court for further parties, requirement other also would have been in specific terms.1
Turning indemnity to the contract action,
present PPI maintains con- express negligence
tract fails the test be- kind, it specify
cause does not charac- or degree negligence
ter is to GARCIA, points indemnified. PPI out the in- Enrique Appellant, “El Red” demnity express provisions contract has no negligence, compara- for sole contractual Texas, Appellee. STATE negligence, negligence tive concurrent or gross negligence and is therefore insuffi- No. 1283-86. parties’
cient to define the intent. Texas, Criminal En Banc. purpose adoption behind express negligence require rule is to June 1987. scriveners to make it clear when the intent Rehearing April Denied 1989. parties exculpate of the is to an indemnitee negligence. indemnitee’s own purpose accomplished present indemnity provision expressly
action. The indemnify for PPI
calls ARCO for negligence. provision
ARCO’s states: agrees indemnify to ... ...
[PPI] arising ... matter
[ARCO] hereunder, performed including work limited to any negligent
but not act or omission 758 S.W.2d at [ARCO].” added). (emphasis
844. indemnity Dupont Corp., v. TXO Production 2. We not decide whether for one’s do Cf. may negligence injury (E.D.Tex.1987) gross F.Supp. own or intentional where the court held by awarded Texas courts. contracted or indemnity provision fulfilled ex- presented is not in this This issue summary judgment. test; however, negligence press we do neces- policy are Public concerns sarily holding. agree with that presented have such an issue that not been argued parties. briefed or *2 ON PETITION FOR
OPINION STATE’S DISCRETIONARY REVIEW WHITE, Judge. capital indicted mur-
Appellant was
for
der, V.T.C.A.,
19.03, in
Penal Code Sec.
ap-
with an incident where the
connection
shotgun
a
fired
at two
pellant allegedly
(Serna) was
police officers. One officer
officer,
killed,
Ayala, was
the other
while
for the
Appellant was tried
not hit.
jury
of Officer Serna. A
found
murder
manslaugh-
appellant guilty
voluntary
ter,
punishment
twenty
at
assessed his
$10,000.00
years' imprisonment and
fine.
V.T.C.A.,
19.04.
Penal Code Sec.
Seven
conviction,
appellant
after this
months
capital mur-
indicted for the
der of Officer
subject
This second indictment is
The
dispute
before this Court.
relief
Appeals
sought
he
and ordered the dismissal of the
State, 718
second indictment. Garcia v.
Christi,
(Tex.App. Corpus
—
1985).
petitioned
this Court
State
decision, asserting
reason
review
Court of
decid
for review
important question of State law
ed an
Spe
should be settled
this Court.
which
argued
the doctrine
cifically, the State
apply
does
is no
case because there
case
the murder of
in the
The State also asserts that
Officer Serna.
Appeals is in
of the Court of
decision
prior
conflict with
decisions of
Court.
necessary.
A
review of the facts
his
Prior to
murder,
challenged his indict-
application for
ment
a writ
habeas
dismiss,
corpus and a motion to
both
in the
District
which were filed
49th
Court.
application
for writ
habeas
his
prosecu-
that a
corpus,
indictment would vio-
tion under
second
Pena, Jr., Laredo,
appellant.
Osear J.
right
placed
not be
late his constitutional
Garcia,
Atty.
A.
Dist.
& Jose A.
Julio
jeopardy
for the same offense.
twice
Laredo,
Flores, Jr.,
Atty.,
Asst. Dist.
Rob-
case,
However, in
the instant
Huttash,
Austin,
Atty.,
ert
State’s
charged
with the same
was not
State.
previously
for.
tried
offense
manslaughter
and the
indictment for
greater
mental state
than the
one a
murder
separate
involved
They
victims.
already
has
possessed
determined he
separate
are
offenses and double jeopardy
the time of both shootings.” Garcia v.
does not apply.1 But in his motion to dis-
State,
appellant that the doctrine of collat- manded the case with instructions to dis- eral estoppel barred his trial on the at- miss the indictment for attempted capi- tempted capital murder Appel- indictment. tal murder of Officer lant charges (capital stated that both mur- petition State filed a for discretion- der of Officer Serna and ary decision, review this which this murder of Ayala) Officer arose from the granted. Court petition, In its the State same Appellant occurrence. claims that contends that incor- jury that, at first trial determined at rectly applied the doctrine of collateral es- offense, the time of the toppel to the facts of the ease. passion acted out of sudden arising from While pending case was oral adequate an Appellant cause. stated that argument Court, appellant’s before this this jury finally decided the issue of his voluntary manslaughter conviction ad- state of at mind the time of the shooting, through appellate process. vanced It and litigated the issue could not be sec- was judgment that of conviction which ond time at a trial for formed the appellant’s basis for the claim murder. estoppel. collateral The Court of Ap- court, The trial overlooking collateral peals recently decided the of the estoppel argument, decided that since the the voluntary manslaughter evidence before him did not constitute dou- of officer Serna. appellant’s ble jeopardy, confinement was It held that it was illegal. error the trial not The trial ap- court denied the juror court to fail pellant’s to excuse a application service for writ of habeas cor- discovering after pus, existence of an and overruled his attor motion dismiss. ney-client relationship between the district Appellant appealed ap the denial of his attorney juror. and the said The relation plication Appeals. to the Court of Tex.R. ship brought was to the trial court’s atten App.Pro.Rule 44. The of Appeals, juror tion accepted, after the was but be relying Swenson, 436, on Ashe v. 397 U.S. jury fore the had entire been selected. The (1970) 90 S.Ct. and judgment Court of Appeals reversed the (5th Green v. Cir. the trial court and remanded the case for a 1979), that decided the doctrine of collateral new unpublished trial. Garcia estoppel appellant’s served to bar trial for (No. 13-86-171-CR; Tex.App. Corpus— They murder. reversed Christi, 30, 1986). January October the decision the trial and held that petition this Court refused the State’s jury necessarily “the the first trial discretionary it was review because appellant’s determined mental state timely Tex.R.App.Pro.Rules 202(j) filed. at Ayala the time shot at when it 55(b). fact appellant’s volun made its determination of his mental tary manslaughter over state he shot Serna. other appeal adversely turned on affects his words, in the first trial could not claim estoppel in the instant rationally have based its verdict an case. than issue other the one now seeks to foreclose. should be The doctrine collateral Swenson, explained hold understood to cannot in Ashe v. Rather, shooting Ayala. be tried for 469 stated, he cannot tried for an offense with a “When an ultimate fact Rathmell, (Tex.Cr. parte App.1986). 1. See Ex 717 33 ín by a the instant case the Court has once been determined again judgment and remanded reversed judgment, final issue cannot trial court for a new trial. case to the parties litigated the same between only is Using analysis, not the convic- Swenson, supra, Ashe future lawsuit.” voluntary manslaughter longer tion no adopted 1194. This had 90 S.Ct. at final, there will be conclusive valid and must be there on that until the matter support a claim of and valid A claim collateral receives his new trial. Dedrick v. estoppel. collateral judg- estoppel cannot flow from invalid parte Ex (Tex.Cr.App.1981); S.W.2d 332 is not final. ment of conviction which Tarver, (Tex.Cr.App.1986). S.W.2d 195 Appeals’ We hold that the Court appellant’s man Was voluntary manslaugh- appellant’s versal of slaughter judg conviction a final and valid appellant’s ter bars the claim estoppel? purposes ment collateral *4 estoppel against his for at- collateral trial State, (Tex. McElwee v. 455 589 S.W.2d tempted capital murder. indictment Cr.App.1979), the advanced a defendant capital is murder not to be claim of This fact distin jeopardy. double judgment the of dismissed. We reverse McElwee from the guishes instant case. Appeals2 the remand to the Court of and McElwee, However, in this Court discussed trial court. impact upon pending appeal the of a the finality judgment. Though not of a author J., DUNCAN, concurs in the result. case, ity the of the MILLER, J., dissents. McElwee provides guidance. us with the Court held that defendant’s murder TEAGUE, the upon J. dissents based not the conviction was final where defen principles of law the Fifth Circuit stated timely petition dant’s for certiorari to the Lynbaugh, De v. 817 259 La Rosa F.2d Appeals pend Texas of was Criminal (5th Cir.1987). more to issue There is the ing Supreme when the Court’s decision majority opinion us than what the before Bretz, 2156, v. 437 Crist 98 S.Ct. U.S. Furthermore, is this states it to be. how (1978) 24 was handed down. Gar “judicial take notice” of Court able to appeal pending Since the nature of an can Christi, No. cia v. State (Tex.App.-Corpus render a judgment purposes “not final” for 1986)? 13-86-171-Cr, Oct. claim, jeopardy of a double reversal of judgment appeal on should eliminate its APPELLANT’S MOTION OPINION ON being purposes status final and valid REHEARING FOR estoppel. WHITE, Judge. early
An on collateral es- writer appellant’s motion for wrote, toppel this He discussed issue. order to determine whether hearing in original erred on submission “If party the unsuccessful and not entitled we decided reversed, judgment original is collat- pre-trial the doctrine of relief under is, course, longer judgment no conclu- estoppel. eral sive; if is entered judgment a new submission, held party by appellate court this Court original for the other court, appel- Appeals’ reversal of or at its direction the trial Scott, manslaughter conviction judgment is “Collat- lant’s conclusive.” judgment court’s Estoppel by Judgment”, 56 rendered eral Harv.L. longer The law is settled and final. Rev. 1 valid such, incorrectly appeal pel. appellant's Court of To that the As the extent voluntary manslaughter Ashe v. and Green v. relied on Swenson (5th Cir.1979) grant pending at the time heard case, prior lant’s relief dismiss the instant conviction was purposes estop- murder indictment. final and valid for collateral 730
that “a actually established that the prior has been taken is not considered to felony final, conviction was not thus com- final conviction until the is af- pelling this Court to reverse the trial firmed” and the mandate judgment. of affirmance court’s Jones is no collateral becomes State, final. Jones v. 711 case. 634 (Tex.Cr.App.1986). This Court decided the jury When found guilty of
in the instant
case
without a final and
voluntary manslaughter,
in the Serna
conviction, appellant
had
cause, it necessarily acquitted him of the
no claim of
estoppel.
collateral
offenses
murder and murder of
Officer Serna. See Price v. Georgia, 398
record,
After further
consideration
U.S.
original
opinion
conclude
we
this Court’s
(1970);
Davis Herring,
800 F.2d
mo-
Appellant’s
correct.
submission was
(5th Cir.1986);
37.08, V.A.C.C.P.;
Art.
is denied.
rehearing
tion for
Pope
S.W.2d 593 (Tex.Cr.App.
1974);
and Daniels v.
464 S.W.2d
TEAGUE,
dissenting.
Judge,
(Tex.Cr.App.1971). Thus,
for purposes
estoppel,
collateral
has a valid
I
respectfully dissent to the reasons
acquittal.
The question
gives
denying
majority opinion
answered,
that should be
but is
rehearing
on be-
motion for
that was filed
Court,
whether,
finding
Garcia,
“El
Red”
hence-
Enrique
half
appellant.
forth
guilty
voluntary manslaughter of Offi
*5
Serna,
cer
conclusively
also
deter
incor-
original majority opinion
appellant’s
mined
of mind
state
as to the
that because the
rect when it held
pending attempted capital murder of Offi
conviction in the volun-
court’s
Ayala,
cer
prosecution appellant
Sam
which
cause, in
Officer
tary manslaughter
prevent
seeks
through
pretrial
habe-
victim,
the named
Victor Serna was
corpus proceeding.
posed
question
Corpus Christi
reversed
affirmative,
should
in
be answered
Appeals in
unpublished opinion,
an
see Gar-
this Court should hold that under the col
State,
13-86-171-CR, Tex.App.—
cia v.
No.
estoppel doctrine,
lateral
as enunciated in
Dist.,
30, 1986,
Tex.App.-13th
October
Swenson,
Ashe v.
appellant’s
“bars the
claim of collateral es-
(1970),
the State is
toppel against his trial for attempted capi-
from prosecuting appellant
barred
on the
(Page 729.)
tal murder.”
rehearing,
Ayala
any
indictment for
offense that
majority opinion aggravates
the error
greater
might
attempted voluntary
be
than
it
states “that
‘a
manslaughter.
which an
has been taken is not
considered to
be a
regard,
until the
In this
the State did not in this
conviction is affirmed’ and
proffer
the mandate of
any
cause in
trial court
new
State,
affirmance
final.
might
becomes
Jones v.
facts that
be adduced should it be
(Tex.Cr.App.1986).
bar the State offense Ayala any
on the indictment greater might than vol-
untary manslaughter. original should withdraw hold,
opinion as the
did, from prosecut- that the State is barred
ing Ayala appellant on the indictment greater might than offense manslaughter. respectfully I dissent to this denying appellant’s motion for gives. it
hearing for the reasons DUNCAN,
CLINTON, MILLER and
JJ., join. Brenham,
Larry Urquhart, P. lant. Holmes, Jr., Atty. B. &
John Dist. Cath- Davies, & Asst. leen C. Herasimchuk Carol Houston, Huttash, Attys., Dist. Robert Austin, Atty., for the State. State’s MATHEWS, Ray Appellant, Kenneth APPELLANT’S PETITION OPINION ON REVIEW FOR DISCRETIONARY *6 Texas, Appellee.
STATE CLINTON, Judge. No. 437-87. aggravated Appellant convicted of Texas,
Court of Criminal twenty robbery and sentenced En Banc. Department of Correc years the Texas appeals affirmed April tions. Math unreported opinion. conviction an 01-85-0974-CR, Texas, v. 1987 WL ews No. 1987). (Tex.App. Dist.] [1st — Houston appellant’s petition for discretionary review determine whether failing court of erred Batson for a and remand appeal abate Kentucky, Batson hearing. U.S. (1986). Ap early tried in November pellant’s case was pending and was Batson opinionin Supreme Court’s among handed down. retroactivity apply. would to whom those 314, 107 Kentucky, Griffith However, S.Ct. devoid of in this case is the record