Ladner v. State

in case is Palmer, The issue (1988); v. Ingersoll supra.1 Constitution. Texas, elsewhere, presented distinguishable as not driving drunk is (Tex.Cr.App. crime, safety S.W.2d 802 merely public it is a v. serious Webb 1987), not decided in problem. by A and should vehicle driven drunk much, more, if context. intoxicated driver as not broader hazard as a vehicle with defective brakes BERCHELMANN, adequate lighting steering JJ., of

or lack WHITE and sobriety keep system. checkpoint A acts to join. dangerous instrumentalities off the

such

public roadways, thereby logically decreas- of

ing the arrests areas number DWI operation.

roadblock

It is of motorized ve- the characteristic dangerous instru-

hicles as hazardous or the distinc-

mentalities that demonstrates sobriety stop improp- and an tion between LADNER, Appellant, Thomas E. general “dragnet” stop. er automobile v. stopped directly for related to reasons Texas, Appellee. The STATE of purposes public safety, and for of crim- investigation. inal it this sense is analo- Billy HORTON, Ray Appellant, gous permissible equipment to a vehicle Moreover, inspection-checkpoint. opportunity that an officer Texas, Appellee. The STATE observe motorist’s demeanor at HYDEN, Appellant, M. James checkpoint is not determinative of the checkpoint’s validity air- any more than an port screening operation, a “roadblock” Texas, Appellee. STATE travelers, all commercial air is a criminal Nos. 1004-88 to 1006-88. investigative impermissible search under guarantees. individual constitutional Texas, Appeals Court of Criminal given above, I For the reasons will En Banc. disposition ground cur in Oct. 1989. I result. must re- review

spectfully analysis dissent the Court’s sobriety checkpoint Fourth Amendment

issue for the reasons I have outlined ante. P.J.,

McCORMICK, joins.

CAMPBELL, Judge, concurring. presented in

Believing issue

this case is whether the roadblock in this constitutional, [my emphasis] is I con

case majority.

cur in the result reached deciding an

I cannot countenance court, i.e., DWI

is not before this whether per un are unconstitutional se

roadblocks to the U.S.

der Fourth Amendment stop shown whol- that other tactics must be It is "alternative" of a roadblock follow ly 1. However, traditional methods em- ineffective. not the methods alternative traditional suggested by majority agencies, as effective ployed police that is the crux of highway carnage judicially opinion, the noticed dem- While the State must without doubt issue. highest would not exist. practice, this nation’s for such a it does onstrate the need Texas, claiming County, of Smith Seale, Court Jasper, for Ladner. John alia, the State was foreclosed inter Beaumont, Buchanan, N. Jeff L. Paul due the murder pursuing Haas, Tyler, Hyden. Horton estoppel, which of collateral doctrine Jr., Skeen, Christian Atty., Dist. and Jack jeopardy within the double embodied Bryan, Tyler, Atty., E. Asst. Dist. Robert the Fifth Amendment to guarantee of the Austin, Huttash, Atty., for the State’s and bars Constitution “... United States State. parties of the relitigation same between the previous a actually determined at issues 442, Swenson, 436, trial.” Ashe 1193, 1189, 469 25 L.Ed.2d 90 S.Ct. However, on denied relief. The trial court ON STATE’S PETITIONS OPINION Appeals the Twelfth Court of appeal FOR DISCRETIONARY REVIEW Ladner, granted. See requested relief was (Ct.App. Tyler, et al. v. No. State 12-88- — DUNCAN, Judge. 00193-CR, 31, 1988). August delivered We 5, 1988, 5043, in Nos. January On Cause granted petition the State’s for discretion- Texas, County, and in 5045 Sabine ary to the review examine correctness of Horton, Ladner, Billy Ray E. and Thomas the appeals’ application court of of the col- (hereinafter M. referred to as Hyden James estoppel lateral doctrine. appellants), separately indicted for were Violating Rights the the Civil offense Prisoner, charged pursuant a to V.T.C.A. preliminary Dispensing with a 15, 1988, Code, July Penal 39.021.1 On a § claim, applying appeals, court of the County appellants Sabine found the legal required as appropriate the standard guilty.” “not While these indictments by Supreme States Court United 1988, 3, March pending, were on Smith States, 284 U.S. Blockburger v. United Texas, County, appellants sepa- were 180, (1932) 299, 52 76 L.Ed. 306 and S.Ct. rately for the of murder in indicted offense Vitale, 447 Illinois 12-88-00193-CR, Cause Nos. 12-88-00194- 2260, (1980),correctly con 65 L.Ed.2d pending presently CR and 12-88-00195-CR offense, alleged murder cluded that the Court. The 241st Judicial District indictments, County was Smith County County Smith and Sabine indict- as the civil of “the same offense” involving ments arose from an incident fense, alleged in first count of the Garner, Jr., of Loyal death which occurred Therefore, the County Sabine indictments. on December 1987. by not barred murder implicit in the theorem “same offense”

Following their in Sabine Coun- Jeopardy the Fifth filed Double Clause ty, pretrial a writ of the United States Constitu- corpus in the District Amendment to habeas 241st Judicial Code, 39.021, pertinent and as a did then there 1. V.T.C.A. Penal officer, [Deputy Sa- part to-wit: Sheriff of states: Texas], subject intentionally Loy- County, bine (a) guard employed jailer A or at a munici- Garner, Jr., custody, bodily person to al county jail, by Department pal or Texas Garner, Jr., by hitting Loyal injury, on to-wit: Corrections, facility by a correctional au- or body slapstick and fists his head and with 5115d, Statutes, thorized Article Revised Garner, Loyal causing Jr. fall and Statutes, 6166g-2, Article Revised door; against a wall and strike his head an offense if he: officer commits unlawful, knowing and the his conduct (1) intentionally subjects person in custo- Garner, Loyal Jr. occurred there- death of knowing dy bodily injury his conduct is from; .... unlawful. appeals in fn. 1 of As observed to the Sabine In addition the relevant count County Hyden opinion, both Horton and reads: indictment County, alleged Deputy of Sabine appellant], be Sheriffs on or about [T]hat [named Texas, December, the Chief day while Ladner A.D. and before 25th indictment, City Hemphill, presentment Texas. in said of Police of judgment upon tion.2 was based general acquittal.’ verdict of The more troublesome issue con Slip op., pp. Id. at 7-8. fronting the and the appeals, applying enunci- the elusive standard granted consider, appli we review to Court, Supreme ated cability of the collateral doctrine. transcripts of observed that protec Embodied within the constitutional alia, appellant contained tion that each inter a criminal defendant cannot be writ, respective applications copies for the placed jeopardy twice for the same crime estoppel, is the doctrine Counties indict- of collateral which Smith Swenson, ments, Supreme charge, Court in the trial court’s Ashe v. supra, verdict, transcription defined as of the follows: and a state- corpus ment of facts taken at the habeas estoppel” “Collateral awkward 16, hearing County July held in on Smith phrase, extremely but it stands for an Conspicuously, understandably3 1988. but important principle adversary sys- in our lacking appeal the record on was justice. simply tem of It means that concerning statement of facts the trial on when an issue of ultimate fact has once rights the merits of the of the civil violation been determined a final valid and prisoner County. of a tried Sabine From

judgment, again that issue cannot be liti- record, however, appeals this the court of gated parties between same stated it was able to ascertain: future lawsuit. alleged The record reveals that Id., 443, 397 U.S. at 90 S.Ct. at 1194. beating County of Garner in the Sabine Swenson, Quoting supra, Ashe v. Jail constitutes the for the murder basis stated that in order to prosecutions. that a The State concedes following ap- make this determination the “majority” testified of the witnesses who proach is necessary: County cases called Sabine will be previous judgment acquit- ‘Where a of give testimony the State to concern- verdict, upon general tal was based a as ing events, occurrences, “the same cir- case, usually approach re- cumstances” that such witnesses testi- quires a court to “examine the record of prosecu- County fied to the Sabine prior proceeding, taking into account undisputed It tions. is also that evidence, pleadings, charge, and oth- signed judgments acquittal in matter, er relevant and conclude whether County the Sabine cases. grounded a rational could have Buchanan, appellant Paul counsel for upon verdict an issue other than that Hyden, dispute testified there was no at which the defendant to foreclose seeks County the trial of cases that the Sabine inquiry “must from consideration.” The appellant each was a officer and practical be set frame and viewed person at the time of Garner eye with an to all the circumstances commission civil proceedings.” v. United Sealfon 237, offense, primary States, stating issue be- S.Ct. “[t]he [68 hitting slap- (1948)].... Any with 92 L.Ed. 180 test [Garner] would, technically especially stick and the fact that his more restrictive course, Buchan- simply rejection amount to a death was caused therefrom.” rule of in criminal an also testified that there was “no issue had died proceedings, every at least in case where as to the fact that but [Garner] jeopar- requires proof a fact which 2. The "same offense” rationale of double sion [statute] dy may the other does not. be stated as follows: 161, 166, Ohio, Brown v. 2225, applicable rule is that where the same [T]he 53 L.Ed.2d 187 act or transaction constitutes a violation of statutory provisions, two distinct the test to be hearing appellants’ application 3. The applied day corpus to determine whether there are two held one writ of habeas was one, County. only provi- each in Sabine offenses is whether issues, (3) Each the aforementioned significant issue as to the there was cross-examination cause of death.” On well exception with Ladner [as he candidly could not Buchanan admitted appellants] knew his conduct as testify jury’s “what the basis unlawful, was had be established further testified that verdict He [was].” disproved beyond a reason- by the State allegations that Ladner struck the prosecu- County able doubt in the Smith conduct was unlaw- “knowing his blows tion. disputed. also ful” Buchanan testi- (4) The act- question of whether Ladner dispute appellant that each fied without “knowing ed his conduct unlawful” testified in his own behalf Sabine County jury was submitted to prosecutions, County each ad- as an essential element civil mitted that he officer was a on And, according to offense. the alleged date of offense. appeals, sub- Hannah, special John who acted cases that is an essen- mitted those indictments, prosecutor of Sabine tial the murder element of corpus hearing. at testified the habeas County. pending in Smith “serious Hannah stated that no issue” (5) presented County jury lay jurors to the Sabine could not have Reasonable “peace appellants as whether were offi- in the civil predicated their Hannah, cers.” when asked whether he rights prosecution solely disputed “agreed and defense counsel Gar- [that factual issue of whether Ladner struck prisoner,” was in ... fact a stated ner] “knowing his against the Garner blows although that that issue was submitted unlawful,” given profu- conduct was the jury, the “I don’t think that the de- sion of set instructions forth attempted fense to make that an issue.” charge justification the de- respecting Slip op., p. Id. at 7-8. fense.4 appeals, considering The court of light Consequently, in of those observa-

the the hearing, evidence from writ the holding appeals, tions the that charge jury in the submitted to the pros- the collateral barred murder County respective and the indict- ecution, opined: ments, following formulated the conclu- analysis, three is- disputed With that sions: They are: sues remain for consideration. (1) At the trial of the civil viola- (1) intentionally Did the Ladner strike undisputed appellants tion it was that (2) alleged against Garner; Did blows peace were officers and the de- those result death of Gar- blows the time prisoner ceased was at of the ner; so, (3) and if conduct Was Ladner’s him; alleged attack on justified 9.53. under section It is obvious (2) jury’s acquittal must have been necessarily relitigate must State grounded on one or more of follow- all of these issues order to convict disputed (a) issues: whether para- under appellants of murder either Garner, (2) intentionally Ladner struck in the Smith in- graph set forth unlawful, (3) knowing his conduct was The doctrine of es- dictments. injuries, died of the Garner as a result doing, toppel prohibits the State from so (4) Ladner’s conduct whether ingredient jeopardy and that double Code, Penal justified under Y.T.C.A. prohibits of the Coun- Smith Security in In- (Maintaining 9.53 Penal §

stitutions). against appellants. ty indictments officer, Code, 9.53, jailer, degree peace guard or states as 4. V.T.C.A.Penal follows: reasonably officer believes officer, correctional guard employed peace jailer, at A or security necessary to maintain the force municipal county jail, guard or a or or institution, safety penal security or employed Texas correctional officer custody persons employed using or justified Department of Corrections institutions, safety. custody penal or his own person force when and rejecting Swenson, unlawful. at 443-446 conduct was Ashe v. [90 County jury acquit- S.Ct. at notion that the Sabine 1194-1196]. [Footnotes omitted] any one of the above appellants ted the on opinion sufficiently Our answers court of resolved that issues the arguments in this case other than State’s (1) acquit- arguments legislature grounded not have its has could authority, precluded by appellants and is not of whether the tal on the issues Fifth Fourteenth Amendments from the victim officers whether sepa- “[splitting] single transaction into custody appellants at the time was in of the providing] multiple rate crimes ... [and County offense because of the Sabine (2) 39.21(c)autho- punishments;” section hearing on the testimony adduced at the prosecutions rizes dual for the same the con- corpus indicated to writ of habeas duct, jeopardy’s protection and that un- Paul Buchan- trary. Specifically, because Amend- der the Fifth and Fourteenth an, Hyden testified appellant counsel for legislative ments not affect such does dispute that there was no whether (3) authority; are es- appellant officer or that each topped jeopardy’s protection to claim be- Garner was victim “instigated procured cause the com- appellants at the time pre- proceeding with the intent to In addi- mission of the civil offense. consequences clude the full of [their] tion, according appeals, criminal conduct.” special testimony by that of was buttressed reject argument one We the State’s prosecutor John Hanna. and two it is clear that while the because appellant element that each As to the legislature may be free to create and at that his conduct was unlawful” “knew chooses, prose- define offenses as it of the civil the time of the commission cutors and the courts are not free to violation, appeals the court of prosecute and convict an accused con- County jury could cluded that trary jeopardy’s guarantee. to first that grounded not on have Ohio, Brown v. 432 U.S. at 165 [97 disputed on consider a whol- issue what we 2225]; 397 U.S. at at Ashe v. Swenson theory: ly novel It must 445-446 S.Ct. at [90 1195-1196]. given statutory understood that this case is one be was not im- consecutive sentences are of ‘unlaw- definition “[w]here omitted] [footnote in posed single at criminal trial ful,’ in [and must assume that the so we the role of the constitutional meaning which] utilized the its deliberations assuring that the guarantee is limited to word, viz., commonly ‘not ascribed to the legislative au- court does not exceed its by contrary prohibited to or law: lawful: imposing multiple punish- by thorization by justified law: ... not authorized (Citations the same offense.” ments for disregarding the law....’ disobeying or omitted) Ohio, 432 U.S. at 165 Brown v. THIRD INTERNA- WEBSTER’S NEW ours) (Emphasis S.Ct. at [foot- 2225]. [97 2502 TIONAL DICTIONARY notes omitted] essentially the word is The definition of Slip op., p. at in BLACK’S LAW DICTIO- Id. 12-13. the same however, (5th ed.1979); NARY 1377 essence, appeals in con- unlawful, adds that word BLACK estop- of collateral cluding that the doctrine necessarily implying the ele- prose- [w]hile murder pel barred the Smith criminality, ... is broad ment of cutions, elements were found that three ours.) (Emphasis enough to include it.” prisoner’s of a essential to the violation examination of Consequently, a realistic required which are not civil offense record, meager and incom- however (1) murder to-wit: that in a for must, reason and plete, employing as we offense the defendant at the time of the sense, reason- persuades us that common officer; (2) in the victim was awas predicated lay jurors could not able custody the time of the at the defendant’s rights prosecu- acquittal in the civil violation; (3) knew that their criminal

253 nor agree this conclusion with with solely disputed tions on factual cannot by the court of result reached the ultimate of whether Ladner struck the blows ‘knowing appeals. his conduct was Garner unlawful,’ in- given profusion comprehend the evanes fully to In order charge respect- set forth in the structions estoppel, we look doctrine of collateral cent justification defense. interpretations of Ashe guidance to the As p. 10-11. Fifth in Dedrick v. Slip op., at Circuit. Id. 332, (Tex.Cr.App. 623 S.W.2d 336 explained in fn. then 1981), statement of clear we observe respect penal that in to 39.021 § was made in United principles involved code that: (5th Cir.1979): Mock, F.2d 341 v. States noteworthy It is that section 39.021 principle, estop- the law of collateral Legislature was first enacted the 66th clear; application, it can be a pel is (Act 13, 1979, 618, 1979. June ch. According slippery concept indeed. 1383). 1, 1979 Tex.Gen.Laws Subsec- § 436, Swenson, 397 90 S.Ct. Ashe v. (a)(1) part: tion then read in (1970), 1189, 25 L.Ed.2d 469 A officer ... commits an offense simply estoppel “means that when an intentionally subjects person in his he: de issue of ultimate has once been bodily injury his knowing judgment, and final termined a valid ours.) (emphasis is unlawful, conduct again litigated that issue cannot be Although the section was later amend- parties future tween same twice, again in no ed at 1194. lawsuit.” Id. 90 S.Ct. [at] change made the lan- substantial Thus, inquiries: Ashe mandates two guage under consideration. On the other First, necessarily deter what facts were hand, 9.53 section enacted first law See mined suit? United (Act 17,1987, 512, 1, 1987. of June ch. Ballard, (5th 586 F.2d 1060 States 2124.) appears 1987 Tex.Gen.Laws It Cir.1978); States, Adams United legislature, in the absence of (5th Cir.1961). Second, has F.2d 701 justification specifically applica- defense subsequent government in a trial tried proscribed ble to conduct relitigate necessarily established facts 39.021(a)(1), of section intended version first Facts against it in the trial? so to criminalize assaultive conduct of a may established in the trial be officer, jailer peace guard penal trial as used in the either ultimate second prisoner only institutions towards a when facts. evidentiary as Blackburn v. justified officer’s conduct was (5th Cir.1975); Cross, 510 F.2d 1014 Win under the facts and sur- circumstances (5th 209 Wainwright, 464 F.2d gate v. Thus term rounding the conduct. Cir.1972). Thus, parent while the doc “knowing his conduct is unlawful” was a subse jeopardy trine of bars double in the definition of inserted the offense a different quent prosecution based on justification to provide in order 1979 of the criminal code when “the section separately provided. defense not then conviction required support evidence appears 9.53 enactment section would upon one them indictments] [the vestigial and render the term unneces- warrant convic have been sufficient sary. other,” progeny, its collat upon the tion at Slip op., p. Id. 11-12. estoppel, only the reintroduc bars eral interpretation can By already its we of facts estab relitigation tion or appeals has held To government. clude that the court of state lished 39.021, terms, supra, requir- prosaic that the element distinction in more prohib jeopardy his officer actor know that of double traditional bar itself, crime perpe- prosecution unlawful at the time he conduct was offense, in a more estoppel, superflu- trated rendered whereas collateral 9.53, fashion, simply forbids legislative modest ous enactment of § later, relitigating certain government supra. reasons stated we For to be 254 facts order to establish the fact of the ments were in fact uncontested the de United, crime. See Kramer, States v. fense in the County Sabine trial. While (2d Cir.1961)

289 F.2d 909 (Friendly, J.). of resolving method the issue is indeed [Footnotes simple, convenient, omitted] seemingly per suasive, it is simply, ig incorrect. Put it Id. at 343. nores Swenson, the dictates of Ashe v. Most importantly, concept supra, progeny and its gener that where a proven has to be narrow acquitting al verdict a defendant was ren scope er in might originally been dered jury it is essential that the gleaned language from the literal of Ashe. appellate court “examine the record of the particular, question is not whether prior proceedings, taking into account the there is a possibility that an ultimate fact pleadings, evidence, charge, and other rele was determined govern adverse to the vant id., matter ...” to determine wheth ment, but whether examining er a rational necessarily grounded the evidence, pleadings, jury charge and other acquittal in the former trial on ultimate relevant material the record of the first fact issues identical to some or all of those trial a jury” “rational necessarily ground in the subsequent proceeding. Paying ed its upon verdict an issue which the de lip mere to this service constitutional stan fendant seeks to foreclose from relit- dard is insufficient. While indeed ar igation. Thus, recognized in United gument County the Sabine Gonzales, (5th States v. 548 F.2d 1185 Cir. may trial have doubted that the 1977): officers or that Garner was in States, ... Adams v. United 287 F.2d may implausible and in (5th Cir.1961), 701 supra, restated the actuality foundation, without a rely factual proposition to the effect that when a ing on the testimony writ appellants’ “fact is not necessarily determined in attorneys supplied inadequate basis for the former the possibility that it appeals’ the court of decision. Cf. Johnson prevent have been does not re-exam- Estelle, (5th Cir.1975), 506 F.2d 347 cert. issue, ination of that [citations omitted] denied, 95 S.Ct. Id. at 1191. L.Ed.2d 682 Courts should not de Contrary to the appeals’ proper cide the application of the doctrine conclusion, opinion we are of the that a fact estoppel solely of collateral on the basis of issue not crucial to the Smith mur self-serving declarations opinions der may have been the founda counsel. Cf. McCrory v. tion of the County jury’s acquittal; (Tex.Cr.App.1983). S.W.2d thus, an ultimate fact essential to the mur Notwithstanding ap- der trial “necessarily was not determined.” peals failed to consider the criteria mandat- previously noted, As appeals the court of Supreme Court, ed the we need not determined that the three essential ele right decide whether the result was unique ments civil violation reached Rather, on this basis alone. we could not have been the basis of the Sabine find also that the appeals court of was County acquittal. Again, these three ele concluding incorrect in jury that the (1) ments consist of: that at the time of the first trial grounded could not have its ac- the appellants peace officers; incident quittal on the appellants element that did (2) victim, Jr., that the Loyal Garner, was or did not know their conduct was unlaw- appellants’ custody; (3) and the indi ful. appellant vidual knew his conduct was un lawful at the time of the commission of observed, the previously As the court elements, offense. As to the first two appeals 9.53, the of concluded that supra, simply disposed of the 39.021(a)(1), had rendered that element of § relying totally testimony (2), on the requires prove which the to presented by the hearing defense at the on a defendant knew “his conduct to be un the writ of corpus habeas that these ele nullity. may lawful” a That or not be against however, the other two conclusion; it is The indictments unneces a valid Hyden, issue. are identical sary appellants, for us to that Section Horton and resolve 39.021(a)(l)(2), supra, specifically makes except they alleged to been Sabine are knowledge of the offense. such an element County Deputy Sheriffs. charge it as jury

The in this case submitted hand, charge, on the element; The other thus, necessary jury it was for the an than the indictments. prove beyond a reasonable different to it is somewhat State State, Benson 661 S.W.2d 708 Count doubt. The instructions are divided between 1983), denied, (Tex.Cr.App.1982 cert. 2 of (paragraphs 1 and One and Count Two 2667, 81 L.Ed.2d 104 S.Ct. indictment). jury charge initially the (1984); 717 S.W.2d 608 Boozer the civil peace states that a officer violates Thus, (Tex.Cr.App.1984). arguable it is intentionally prisoner if “he jury the found that Ladner that could have subjects custody bodily inju to person death, the and caused his struck deceased It ry knowing his conduct was unlawful.” acquitted but because “intentional,” “custody,” then defines prove “knowing to his State failed he did so “peace it officer.” Before sets out to be Section 39.- conduct unlawful.” allegations charge indictment (2), 021(a)(1), Consequently, supra. that a submits the defensive instruction predicated jury’s verdict could have been peace using force justified officer is upon proof the failure of element against prisoner reasonably to extent necessary proving that to the offense is not necessary security “maintain the to words, the offense murder. charge penal institution....” to jury’s rights prosecution verdict the civil jury this defensive includes submission: have been could based resolution Now, evidence, you find from the or in the appellants’ an issue favor that will thereof, have a doubt that reasonable prosecu applicable succeeding to Ladner, or Thomas officer Very simply, tion. whether defendant guard municipal county employed at a or his knew conduct was unlawful statutori against jail, Loyal force Gar- used such ly prosecution. irrelevant a murder ner, custody Jr. he was when while There are additional matters that render officer, degree and to appeals’ decision incorrect. Ladner, reasonably that Thomas believed paragraph The two indictment that necessary force to maintain the se- was appellant Ladner was Chief Police institution, safety curity penal Hemphill. paragraph The first claimed security persons of other intentionally as the he Chief of Police institution, employed penal or his by the subjected bodily injury by deceased security, you say safety or own will hitting body him on his “head and awith guilty by your verdict. ...,” thereby slapstick causing and fists the deceased hit his head a wall Thus, to Count One the door, resulting in the deceased’s death. appellant authorized find Ladner not addition, previously, as noted indict- having guilty determine without ever allegation appel- included ment caused whether he struck the deceased or “knowing things these his conduct lant did alleged in the It is his death as indictment. unlawful.” instruction even asked to determine whether Ladner pre- paragraph The second makes similar alleged in the indict- struck deceased Thereafter, however, allegations. liminary Therefore, jury could have ment. alleges appellant it Ladner intentional- guilty general reached verdict of not ly prevented getting the deceased from having to resolve the issue of without ever attention the deceased was medical the deceased with resulting whether Ladner struck injured custody, in while it is slapstick Consequently, fists. in- or his paragraph death. This also deceased’s impossible that this issue was appellant to conclude cluded the claim that the did this to Ladner. knowing favorably resolved his conduct was unlawful. charge, One,

The also as to Count autho- order to obtain conviction the State must rized jury appellants to find properly prove Horton and Ladner struck the deceased Hyden guilty only if they alleged found Ladner with the intent to kill him. Rela- guilty striking alleged Horton, the deceased as Hyden legal tive to and re- indictment, and then jury sponsibility dependent upon will be they legal duty found had a prevent proof supporting allega- the indictment’s whole, offense and failed to do so. necessarily may may On the tions and not what jury’s general basis of the proved against verdict of not be Ladner. guilty as to Hyden equal- Horton and allegations The in the murder indictment ly indeterminable as the verdict favor of relationship have no to the issues that com- Ladner jury because the could not find prise the rights second count of the civil guilty them party as a unless it found violations indictment. guilty principal. Ladner as the Whether an of a civil Two, separate Count in three para prosecution prosecution bars a for the sub graphs, presented jury the claim that produced stantive offense that the civil appellants willfully denied the deceased rights prosecution is a matter of im necessary reasonable and medical atten pression fact, very Texas. there is tion, knowing unlawful, their conduct was little case subject law on the at all. The resulting in the death of the deceased. The courts, however, federal have examined the parties’ charge applicable was not to this issue in a few cases. United States v. portion charge. Guillette, (2nd Cir.1976), 547 F.2d 743 cert. noted, As previously appellants denied, are

charged separately in (1977), Smith with L.Ed.2d 102 factually complex murder. The identical legally indictments two and involved case that confronts the paragraphs allege they individually opposite issue, in- present but its rea tentionally knowingly and soning caused the death persuasive. is nonetheless The de “by striking of the deceased him (Guillette Joost) about the fendants Guillette and slapjack, head with a striking and him conspiracy deprive were convicted of stick, night about the head with a and citizen of his civil in violation of 18 striking him object about the head with an U.S.C 241. Their arose out unknown_” Jury to the Grand The government sec- of an incident which the paragraph ond claims that the they prospective govern killed a individually “intending to cause serious ment witness going testify who was bodily injury ... inten- them in burglary of a National [to deceased] commit, tionally knowingly and Armory. an act Guard orig defendants were life, clearly dangerous by inally to human to-wit: conspiracy deprive indicted for striking ... rights, about the head deceased of his civil obstruction of [the deceased] slapjack, by striking justice violence, with a ... force and and the use of [the nightstick, explosive about the head with a device in the commission of a deceased] by striking felony. ... about The deceased was killed when a [the deceased] object Jury exploded opened the head with an to the Grand bomb as he the front door unknown, thereby causing the death of of his house.

... [the deceased].” originally defendants were convicted

Contrasting allegations charges; however, in the murder on all those convictions indictments jury with the indictments and were reversed and remanded. At the sec- charge rights prosecution in the civil it is acquitted ond Joost was apparent that the charges justice issues are far from iden- of obstruction of by force noted, jury charge tical. As under the explosive and violence and the use of an acquitted could have Ladner without device. The could not reach a verdict having conspiracy ever to consider whether he struck the violate deceased’s Thus, slapstick. rights. the deceased with a ei- Under civil mistrial was declared paragraph charge. ther of the murder indictment in on that

257 trial, guilty time of In his He found third Joost was of deliver. was convicted charges. rights charge. the civil all appeals appeal, reversed appeal,

In his claimed collat- On the Joost charges conspiracy the government eral the from his conviction on estoppel barred charges his aris- trying conspiracy of him for to violate the because shrimp ing from the boat. rights because the had seizure jury deceased’s civil however, possession, for acquitted justice him of the obstruction of His conviction using felony and a bomb to commit a was affirmed. charges. appeals rejected The court of later, the defendant was Sometime The court

Joost’s contentions. stated: charged offenses with a number of relative jeopardy relitigation Double bars large operation smuggling to a East those issues of fact that were ‘necessar- As a the indictment the part Texas. ily ... determined in favor the defen- possession charged defendant with judgment dant by a valid and final in a aiding and with intent to distribute with prior proceeding.’ [Citations omitted] abetting possession. and another such Joost to sustain his has failed burden of charged count the with im- defendant was showing that elements essential to his portation aiding and marijuana abet- conspiracy conviction of with death re- ting importation. such He was convicted sulting from jury were foreclosed consid- of these offenses. prior acquittal. eration his post-conviction In a writ of habeas cor- Id. at 755. his pus the defendant claimed that first case, In the present have for offense of conviction the substantive similarly prove that the failed to elements possession the seizure of the (arising from possible essential to their for conviction boat) platform supply oil was barred murder jury foreclosed from “were consid- Essentially, according collateral estoppel. prior acquittals].” eration ... court, [their] the defendant claimed that Id. prosecutions government’s his first two person. principal witness was the same Kalish, In United 506 States F.2d Therefore, defendant, according to (5th Cir.1986), denied, reh. 689 F.2d 190 government’s since the resolved (1982), denied, cert. govern- testimony in his favor the witness’ (1983), 74 L.Ed.2d 958 the court using estopped ment was from this same appeals confronted the issue of collat posses- charge support evidence emphasized eral estoppel and that before marijuana. The court of sion doctrine can be invoked matters to disagreed emphasized necessity relitigated dictated previ must have relitigated were re- issues to be acquittal. Factually, ous in Kalish the de government solved fendant was first tried as a result of the case. court stated: shrimp seizure of a boat loaded with mari cases, government In criminal juana. acquitted The defendant was relitigating ‘only from a fact issue barred import drug conspir conspiracy to rationally if the could acy possess intent to with the deliver the issue other based verdict on an than drug. one the seeks to defendant foreclose time the shrimp About the same boat necessarily ... when “fact is not de- seized, also the authorities seized an- possibility termined a former marijuana other boat also loaded with —an prevent that it have been does platform supply oil After boat. the defen- ’ re-examination of that issue.” United arising dant acquitted offenses Lee, (5th States 622 F.2d shrimp seizure of the boat he was Cir.1980) [Emphasis original] ... prosecuted charges for the same relative to Id. at 508. drugs discovered on the boat. addition, also claimed charged with the defendant Kalish he was substan- charges arising possession with the that his conviction on tive offense of intent from the smuggling East Texas operation ample There is authority support a deni- was also barred collateral estoppel. He appellants’ al of the corpus writs of habeas claimed that his the first con- on this basis alone. 9See ALR3d spiracy charge precluded government “Modern Status of Doctrine of Res Judica- from relitigating allegations. those ta in Criminal Cases” dealing with this contention the court of However, engaging in speculation at- appeals added requirement another tendant to the discussion of the relevant application of estoppel collateral is jury charge features of the in the civil particularly relevant to the case at bar. rights prosecution respective and the indict- The court stated general that, rule prosecutions ments the murder it is clear we already observed, have estop- that the ultimate issues in the two cases pel prevents prosecution a later “if Thus, are not identical. collateral estoppel could not rationally have based its verdict applicable. is not on an issue other than the one the defen- observation, passing As a it should dant seeks to foreclose.” Id. The court be noted that Legislature when the enacted then added: 39.021(c), supra, and stated that “[t]his ‘When a “fact is not necessarily deter- preclude section shall mined in a former the possibility any other offense set out in this code” it that it prevent been does not obviously intended that prose one could be re-examination Id, of that quot- issue.” cuted rights for a civil any offense and States, Adams v. United 287 F.2d applicable violation of the law. Obvi (5th Cir.1961) [emphasis origi- ously, legislative intent, no matter how nal].’ intentioned, yield well must to a defen Id. dant’s constitutional they conflict. When, however, Legislature’s intent It is the defendant’s burden to can deprivation be effectuated without a prove both that the issues are identical and defendant’s constitutional it is this that in reaching their guilty verdict of not duty Court’s to do so. Spradling See v. in the first trial the jury had to resolve the State, 773 (Tex.Cr.App.1989). S.W.2d 553 contested favor the defendant. Accordingly, judgment of the court Kalish, the defendant properly did not is reversed and the cause is carry his burden of proving remanded to the trial court. crucial to the defendant’s conviction had been earlier resolved in his favor. CLINTON, J., concurs the result. in the case at bar have MILLER, J., concurs with note: “I con also failed properly carry their burden. cur in the result reached in disposing of In any case in which collateral appellant’s ‘preliminary (page 249). claim’ urged, the most difficult issue to resolve is prefer I would analysis a ‘same offense’ identity of issues and ultimate facts. along State, more January the lines of particularly when, It is difficult as in this (Tex.App. Corpus 695 S.W.2d 215 Christi case, — only general there is verdict of not 1985), approved by this Court in January guilty. Further, present case our (Tex.Cr.App.1987). S.W.2d 632

task is made even more difficult because join I majority rest of the opinion.” there appellants’ is no record of first trial. Therefore, it virtually impossible for us TEAGUE, J., dissents. any degree

to state with reliability is,

basis jury’s acquittal. It there-

fore, equally impossible to make

clusive determination as to what issues

were resolved in appellants, favor of the

accordingly, comprised which facts that adversely

issues were decided to the State.

Case Details

Case Name: Ladner v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 25, 1989

Citation: 780 S.W.2d 247

Docket Number: 1004-88 to 1006-88

Court Abbreviation: Tex. Crim. App.