*1 appellee’s It then mo- specimen. MURPHY, Appellant draw, Donte impli- Jermaine
tion holding that “a” means “one.” The edly did, that, also whatever it trial court it appealed
the decision would be of Texas. The STATE interpretation to “a would leave another PD-1297-06. No. authority.” higher Appeals of Texas. Court Criminal Discussion here requiring One issue is 7, 2007. Nov.
specimen is: “usable.” purpose?
usable whom and for what only penal of “usable” context is quantity”
am aware of “a usable
marijuana. The definition “usable” Safety § is 481.121 easi-
Health and Code discerned; smoke, if
ly enough it’s it’s to a hospital
usable. What “usable”
laboratory quiek-and-dirty, time-criti- may not
cal scan be “usable” at the level of necessary
accuracy proof beyond a rea-
sonable doubt. Which “usable” do we use?
A second issue is that we are use the language of
plain the statute making our
rulings. Boykin v.
(Tex.Crim.App.1991). Presumably,
legislature recognized the difference be-
tween “a” and or more” “one
markedly different level of invasiveness voluntary
between a specimen blood ambiguous.
an forcible one. “A” say
To the legislature, recognizing differences, intentionally
those selected
those terms for the two subsections does result, produce an nor absurd can we produces that it
say legis- a result possibly
lature could not have If intended. mistake, oversight
it the legis- or a 724.012(b). §
lature is free amend Un- then,
til we are bound “a.”
The decision the court appeals
should affirmed. Because so, I respectfully
does not do dissent. *2 Cassel, Longview,
Jason D. Appel- for lant.
David Colley, Atty., Assistant District Pleasant, Mt. Pail, Atty., Matthew State’s Austin, for State.
OPINION JOHNSON, J., opinion delivered the the unanimous Court. January Cannon,
On Charles Department Texas Safety troop- of Public er, stopped appellant speeding. for Can- non testified that registered ap- his radar pellant traveling eight miles over the speed Cannon, however, limit. informed appellant that he was not going issue a speeding citation, but a warning. As citation, Cannon completed warning he asked for consent to search appellant’s vehicle because he detected the odor of marijuana coming from the vehi- cle. Cannon that appellant also testified consented to searching the search. While (1) Cannon discovered: a ci- gar containing marijuana in the vehicle (2) console; marijuana a small in- bag (3) side a black luggage bag; and approxi- mately a kilogram of cocaine a rear compartment of the vehicle. Cannon ar- rested appellant for possession drug appellant agreed Can- con- paraphernalia1 trial in the appear No ticket non trolled substance.2 justice court. issued. Prior to 17, 2004, appellant’s On November *3 filed a appellant a controlled of drug paraphernalia of of
charge and Motion Suppress Motion to Evidence in the was set Justice Peace on to the Indictment based collat- Dismiss Court, County. Appel- Precinct of Titus the trial estoppel. eral On June right lant waived his to trial. Both hearing, At the court heard both motions. ready appellant the state and announced of the final appellant introduced evidence trial, trial. a bench conducting After acquittal drug-para- on the Judge judg- Leo entered a final Schakel that, Appellant asserted phernalia charge. acquittal paraphernalia ment of on the in the final findings on the order, In charge. Judge Schakel a written court, the judgment of that state from intro- estoppel prohibited the produce failed to evidence of State [t]he or ducing speeding evidence 31, 2004, January gave stop cause to and de- Cannon’s stop rise to the and search of the defen- appellant. appel- tain The court overruled vehicle driving. dant and the he was objection, lant’s and the state introduced produce failed to State evidence testimony Judge Schakel Can- to defendant consented non. driving the vehicle he was January 31, Furthermore, testimony support 2004. gave Cannon to produce State to evidence that state’s contention there affirmatively appellant. linked cause to stop the defendant with detain On examination, alleged drug paraphernalia. direct Schakel testified Judge Be- produced cause was no that he there evidence did not remember to it was stop there but that his belief that defendant, charge paraphernalia the defendant con- was dismissed be- to appear. sented a search of or that On cross his the officer however, examination, affirmatively linked the to Schakel testi- Judge defendant on the alleged drug paraphernalia, the defen- fied that he held bench trial hereby acquitted. paraphernalia charge dant is and that person person person directly 1. A if the substance commits offense obtained the knowingly intentionally possesses or prescription or uses or a valid or order of from under drug paraphernalia to use intent to practitioner acting profes- course of cultivate, harvest, plant, propagate, grow, practice. Safety sional & Tex. Health Code manufacture, convert, compound, produce, 481.125(a) (Vernon 2003) § Ann. test, process, prepare, repack, analyze, pack, (a) punisha- An under Subsection store, contain, or conceal a controlled sub- by imprisonment institutional divi- ble in the inject, chapter this stance violation of or Department of sion of the Texas Criminal inhale, ingest, into or otherwise introduce not more than Justice for life or term of body human a controlled substance viola- years years, and a less than 10 fine not or chapter. tion of this Safety Tex & Code Health $100,000, 2003). 481.125(a) (Vernon § if the amount of the con- to exceed Ann. is, by possessed aggregate trolled substance per- Except chapter, a as authorized dilutants, weight, including adulterants person an offense son commits if the know- grams or more. Tex Health Safety & possesses ingly intentionally 481.125(f) 2003). (Vernon § Code Ann. Group Penalty substance listed unless presented review, discretionary convict tion for and this the charge. Following pretrial review. hearing, the trial court denied the motion ANALYSIS and the motion to dismiss the
indictment.
estop-
doctrine
pel is
within
Jeopar
embodied
the Double
Appellant subsequently plead
guilty
Amendment,
dy Clause
which
Fifth
charge
of a controlled
applicable
through
states
substance
preserved
right
his
ap-
Fourteenth Amendment.
Swen
Ashe v.
peal
ruling
the trial court’s
on the suppres-
son,
436, 445,
sion motion and motion to dismiss the
*4
Const,
(1970);
L.Ed.2d 469
U.S.
amend.
indictment. Appellant elected
jury
Const,
V;
amend.
double
U.S.
XIV. While
punishment,
assess his
and the
sen-
jeopardy
protects
against
defendant
years
tenced
prison
to ten
in
and
subsequent prosecution for an offense
$5,000.00.
fined him
Appellant filed a di-
acquitted,
which
has been
the defendant
State,
appeal.
rect
v.
Murphy
200 S.W.3d
relitiga
estoppel
only
collateral
deals
with
2006).
(Tex.App.-Texarkana
753
specific
tion of
fact determinations. See
On appeal, appellant contended that the
19,
13,
Reynolds
21
v.
S.W.3d
of
legally
issue whether Cannon
detained
Guajardo
see also
v.
(Tex.Crim.App.1999);
Murphy
in
litigated
justice
was
court: State,
(Tex.Crim.App.
speeding
ruling
would,
was not a
on an
technically
essential
restrictive
simply
rejection
element
controlled sub-
to a
of the rule
amount
Appellant timely
estoppel
pro-
stance.
Id.
peti-
filed a
collateral
criminal
speeding
acquit-
We
dropped,
judgment
3.
note that
was an
that the
issue
as
stop,
litigated,
which
cause to
was
tal is a final one.
paraphernalia charge
litigated,
was
prosecution
not bar the
estoppel did
ceedings,
every
at
case where
least
be-
upon
substance
the first
acquittal.
ruling
general
verdict
court’s
cause the
ruling
on an essential element
at
1189.
prosecu-
issue in the second
the offense at
scope
of facts that were ac
tion.
tually
litigated
scope
determines the
finding
estop
factual
covered
applying
In
the doctrine
collater
pel. Guajardo,
Tay
kept
must be
estoppel,
al
its limitations
lor,
very
101 S.W.3d at
re
Although
mind.
point
case
pending
at issue
must
litigated in the
precise fact
quires that the
prior pro
been
have
determined
same
have arisen
prosecution
at 441. The
ceeding.
101 S.W.3d
situation,
occurrence,
crimi
transaction,
prov
meet the burden of
defendant must
episode
gave
nal
rise
necessarily
issue were
the fact
must also
prosecution,
Guajar
in the prior proceeding.
decided
subsequent
off
an essential element of
do,
cution,
prior
search the vehicle
in which a final
was
en-
1868,
Ohio,
20
Terry v.
88 S.Ct.
tered,
must
the exact
at issue in
(1968).
factors
L.Ed.2d
While these
prosecution.
prong
the second
This
is not
issues,
important
they are
preliminary
are
prong
at issue here. The second
less
merely
evi-
simple.
argued,
admissibility
the Sixth
issues of the
Appeals agreed,
dence and are
elements essential
premise
acquittal
pro
is illustrated
v. Swen
first trial and that the
4. This
Ashe
son,
necessarily
was
ceeding
U.S.
established that he
L.Ed.2d
(1970).
Supreme Court
number of
burst in on a
not one of the robbers. The
men
relief, holding
ele
group
poker players
each
that the essential
robbed
one.
identity
fully
applicant
had
proceeding,
In the first
ment of
been
jury in
acquitted
robbery.
in a
first trial and had been resolved
After conviction
favor;
not, therefore,
trial,
estoppel
applicant’s
it could
he raised collateral
in a
second
arising
relitigated
subsequent prosecution
corpus, asserting
writ of
iden
habeas
tity
litigated in
from same incident.
of the robbers had been
proving the commission of either offense-
Conclusion
possession
aof
controlled substance or
Appellant has the burden of proving that
possession
drug paraphernalia.
See
estoppel applies
in this case.
Neal,
Terry,
F.3d
see also
record,
appellant
Based
has failed
U.S.
that can resolve the issue of when collater P.J., KELLER, in which and PRICE and al estoppel applies, is HERVEY, JJ., joined. *6 inapplicable in this case.
S.W.3d at see MEYERS, J., also United States v. a concurring opinion, filed Larkin, (5th Cir.1979), 605 F.2d KELLER, P.J., in which and PRICE and grounds, HERVEY, other 611 F.2d JJ., joined. modified (5th Cir.1980). Although findings the agree I with majority the fact in the judgment court’s final estoppel does not apply this case. important were and ultimately foreclosed separately explain write to further collat- ability the state’s to convict attempt in an clarify eral to this prosecution, the first evidentiary these confusing area of law. es- the Collateral findings did not relate to essential ele toppel prevents from relitigating the State possession ments toas of a controlled- necessary prove a fact to elements substance charge.5 situation, an offense. In such a that fact Applying collateral estoppel respect has relitiga- been established so as to bar to And, assertion in only this there- tion of that it applies same fact. by allowing litigated fact is merely only that to identical issues and to the resolu- evidentiary to act as if it were an essential tion of issues of It ultimate fact. does not offense, Therefore, element of the second would over- to conclusions law. Ashe, step the doctrine’s limits. See question a collateral estoppel deter- 1189; Neal, U.S. at F.3d mination is whether a has fact at 210. been found to the adversely State and Although encompassed some the elements court did enter a not final possession within the a controlled-substance Therefore, they as to these essential elements. could have been trial in the at issue are not in this case. offense possession offense, drug-paraphernalia inde- by evidence may proven now to reliti- trying the State is whether fact. gate that exact same the arrest. pendent of reasoning The same (Tex.Crim.App.1989). us, all court de- case In the before question of applies here. Because possession termined at the trial aof possession Appellant whether was that the State paraphernalia offense susceptible proof to is controlled substance consent, prove probable did not cause to not even relevant establish- this the court made determination stop did not existed to probable State cause any the officer did offer evidence because of the latter issue Appellant, the resolution Thus, up judge trial. not show prevent favor cannot Appellant’s credibility make determination former attempting prove to State from facts, he mere- of historical determinations Thus, the merits. subsequent pres- ly that the State did not determined evidentiary proving facts relevant to while any probable evidence that would show ent may be used later cause also of ultimate fact cause. issue he was in establish that Appellant possessed trial was whether (such as the offi- controlled substance and the ultimate issue drug paraphernalia marijuana ema- cer the odor of detected pos- Appellant trial was whether car), issues of ultimate nating from a controlled substance. issue sessed fact are different. had probable of whether officer cause an essential element of either of- not contradiction be- there Because rather, fense, merely evidentiary it is did State tween determination admissibility relates of other stop or consent not show of no finding evidence. Appel- a determination that to search and or no does stop consent of a controlled sub- lant was in preclude Appellant a determination that stance; at- and because the State is possessed a controlled substance. lead to prove fact that would tempting (i.e., Appel- Appellant com- finding guilt Unlike *7 a con- actually lant was alleged mitted the substance) trolled of whether failing once after stop Appellant cause existed hearing, agree in a full I prove that Appellant consented does depends upon legal significance comments, join this case. With these the time the officer’s observations at majority. opinion of the find the trial for the arrest. can
possession of a controlled substance guilty contradicting without
Appellant drug-parapher- from the
the determination not show that
nalia trial the State did stop Ap- officer consented
pellant Appellant
search. we find-
In Neaves held hearing suspension not preclude for arrest does later
prosecution for because the the offense