Rickie Dawson YORK, Appellant, v. The STATE of Texas.
No. PD-0088-10
Court of Criminal Appeals of Texas.
June 29, 2011.
342 S.W.3d 528
Michael J. West, Asst. D.A., Tyler, Lisa C. McMinn, State‘s Attorney, Austin, for State.
KELLER, P.J., delivered the opinion of the Court in which MEYERS, PRICE, KEASLER, HERVEY, and ALCALA, JJ., joined.
We must resolve two issues in this case. First, did a police officer have reasonable suspicion to detain appellant, who was asleep in a car, with the lights on and the engine running, parked on a sidewalk in front of a gas station during the early morning hours? Second, does the doctrine of collateral estoppel require the suppression of evidence in a subsequent prosecution when that evidence was suppressed in an earlier prosecution arising from the same facts? The answer to the first question is relatively straightforward. But to answer the second question, we must deconstruct earlier opinions from this Court and re-analyze the question from scratch.
I. BACKGROUND
A. Criminal Investigation
Leland Shawn Johnson was a patrol officer for the City of Bullard, in Smith County. On his way to Tyler1 at around 3:00
Officer Johnson was personally aware that this particular Exxon station had been burglarized at least once during the previous two years, and he had been advised by deputies that other burglaries had occurred there. The Exxon station was closed for the night, but a car was parked partially on the sidewalk immediately in front of the Exxon store, with the headlights shining on the store window. The headlights were shining into the business. From Officer Johnson‘s vantage point on the road, the car appeared to be almost touching the front door glass. The light from the headlights was being reflected back into the vehicle, and the car did not appear to be occupied. Officer Johnson parked behind the vehicle, turned his headlights off, and approached on foot.
He saw that the car‘s engine was running, the driver‘s rear window was down, and appellant was in the car asleep with the seat laid back. Officer Johnson did not smell any alcohol, nor did he see any items in the car that might have been taken in a burglary. He watched appellant for a few minutes and looked around for weapons bеfore waking appellant up. Appellant expressed surprise upon being awakened.
Officer Johnson asked appellant for identification, and appellant said that he had left it at home. Officer Johnson then asked appellant to step outside the vehicle. In the ensuing conversation, appellant expressed confusion regarding where he was, saying that he was in the Chapel Hill area, when he was not even close to there. Officer Johnson then asked if appellant had any weapons. Appellant said that he did not, and he gave Officer Johnson consent to search his person. The search revealed that appellant possessed marijuana and methamphetamine, and he was arrested. Appellant gave Officer Johnson a false name after the arrest.2
B. First Prosecution: Failure to Identify
The criminal district attorney‘s office first prosecuted appellant in a county court at law for the misdemeanor offense of failure to identify.3 The case was tried to a jury, with the sole evidence being Officer Johnson‘s testimony. In addition to facts outlined above, Officer Johnson testified during cross-examination about whether he had seen appellant committing certain offenses:
Q. Would you say that in those couple of minutes [of watching appellant sleeping], you were able to determine that there was not a burglary at that location going on?
A. Well, I couldn‘t say that there was one occurring at that time, yes.
Q. Okay. And you didn‘t see any kind of property or anything in the car, did you?
A. Not from standing outside, no.
Q. Nothing that would give you reason to believe that he had burglarized that store? A. No.
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Q. Officer, at that time when you asked for consent to search and continued your investigation, Mr. York hadn‘t committed any type of felony offense within your view at that time, had he?
A. No, he had not.
Q. He had not committed any type of offense that would be considered a breach of the peace; is that correct?
A. No, he had not.
Q. He hadn‘t committed any type of public order crime, such as a riot or something to that effect?
A. No, he had not.
Q. He had not committed, in your view, an offense under Chapter 49 of the Penal Code, which is DWI, intoxication manslaughter, that type of offense. He had not committed any, correct?
A. No, he had not.
Officer Johnson also testified that a video of the incident existed, but he did not have it.
Outside the presencе of the jury, the parties and the county court at law judge discussed two defense motions: a motion for directed verdict of acquittal and a motion to suppress evidence. Both motions were based on the idea that the State failed to prove that appellant‘s arrest or detention was lawful. The defense first raised these motions after the State‘s direct examination, but the judge denied the motions at that time. After defense counsel‘s cross-examination, the parties and the judge resumed discussion of these issues, which included remarks by the judge regarding the officer being outside of his jurisdiction. Ultimately, the judge granted the motion to suppress. Before bringing in the jury, the judge stated: “Well, the court will enter a directed verdict of acquittal, based on the fact there is no evidence to go before the jury.”
After the jurors were brought back into the courtroom, the judge explained to them:
Basically, what I did was grant the defendant‘s motion to suppress. I‘m not necessarily finding the officer did anything wrong. He was outside of his jurisdiction, stopped to investigate what was going on. I don‘t think there is anything wrong with that. But with him being outside his jurisdiction and him not testifying to any articulable facts as to how he thinks an offense might have been committed, I think the law requires me to grant the motion to suppress, which means y‘all have no evidence in front of you.
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[Addressing appellant:] This officer did exactly what he was supposed to do. You‘re getting away on a technicality.
Expecting the State to appeal this decision because of his other cases, the judge told defense counsel that he could draft the findings of fact and conclusions of law. No written findings of fact and conclusions of law are contained in the record before us.
C. Second Prosecution: Possession of Methamphetamine
The criminal district attorney‘s office later prosecuted appellant in district court for possession of methamphetamine. The parties litigated the legality of Officer Johnson‘s conduct during a pretrial suppression hearing. At this hearing, the defense introduced the record of trial proceedings from the failure-to-identify prosecution. Officer Johnson also testified, and a video of the incident was played for the court. In addition to the
Before the district judge, defense counsel argued that Officer Johnson lacked reasonable suspicion or probable cause to detain appellant, that Officer Johnson‘s investigation was prohibited under Article 14.03(d)4 because he was outside of his jurisdiction, and that suppression should be granted under the doctrines of res judicata5 and collateral estoppel.
With respect to the Article 14.03(d) claim, defense counsel contended that Officer Johnson did not observe any of the offenses for which Article 14.03(d) allows an out-of-jurisdiction officer to perform an arrest.
With respect to the collateral-estoppel question, defense counsel first explained that the lawfulness of the arrest or detention is an element of the offense of failure to identify.6 He further argued, based upon Fifth Circuit cases, that collateral estoppel could involve two different scenarios: (1) barring the prosecution itself or (2) barring the relitigation of evidentiary facts.7 Defense counsel contended that appellant‘s case fell within the second scenario. He contended that Murphy v. State,8 upon which the prosecutors heavily relied, involved only the first scenario.
Throughout the hearing, defense counsel referred to the fact that jeopardy had attached in the first prosecution when the suppression issue was decided. He also contended that the State had a full and fair opportunity to litigate the issue because (1) the State could have put into evidence, in the first prosecution, the additional evidence that was presented in the second prosecution, and (2) the State could have appealed the trial court‘s ruling in the first prosecution.
Finding that Officer Johnson had adequate justification to conduct an investigative detention, and relying upon Murphy to dispose of appellant‘s collatеral-estoppel argument, the district judge denied the motion to suppress. Appellant pled guilty, and he pled true to two prior enhancement allegations. Punishment was tried to the jury, and the jury sentenced him to sixty years in prison.
D. Appeal
Appellant raised his suppression issues on appeal.9 With respect to the collateral-
The court of appeals observed that Article 14.03(d) allows an outside-of-jurisdiction officer to detain a person for an offense committed in the officer‘s presence if the offense is a felony or a violation of Chapter 42 of the Penal Code.10 The court concluded that Officer Johnson had reasonable suspicion to believe that appellant was committing a burglary.11 The court also concluded that appellant parked his vehicle on a sidewalk in violation of Penal Code § 42.03.12
Relying upon our decision in Murphy, the court of appeals held that collateral estoppel applies only to a previously litigated fact that constitutes an essential element of the offense in the second prosecution.13 Consequently, the court concluded that principles of collateral estoppel did not preclude the State from proving the legality of appellant‘s detention and arrest because that issue did not constitute an element of the offense of possession of methamphetamine.14
II. ANALYSIS
A. Legality of Officer Johnson‘s Conduct
1. Appellant‘s Contentions
In his first ground for review, appellant complains that Officer Johnson‘s discovery of the methamphetamine was the product of an illegal detention. Appellant argues that a detention was created by Officer Johnson‘s act of blocking in appellant‘s car, his request that appellant exit the vehicle, and appellant‘s compliance with that request. Appellant further argues that Officer Johnson was outside of his jurisdiction, and as a result, his authority to detain depended upon reasonable suspicion to believe that an offense had been committed in his presence.15 Appellant contends that Officer Johnson did not have reasonable suspicion to believe that he had observed appellant committing burglary, DWI, public intoxication, obstruction of a sidewalk, or criminal trespass.
2. Article 14.03
We will assume without deciding that appellant is correct that an investigative detention began when he complied with the officer‘s request to exit his vehicle.16 And we will assume, without decid-
As a city police officer, Officer Johnson was a peace officer as defined by Article 2.12(3).18 The controlling provision with respect to that type of peace officer is Article 14.03(g)(2), which provides:
A peace officer listed in Subdivision (3), Article 2.12, who is licensed under Chapter 1701, Occupations Code, and is outside of the officer‘s jurisdiction may arrest without a warrant a person who commits any offense within the officer‘s presence or view, except that an officer described in this subdivision who is outside of that officer‘s jurisdiction may arrest a person for a violation of Subtitle C, Title 7, Transportation Code, only if the offense is committed in the county or counties in which the municipality employing the peace officer is located.19
Officer Johnson had state-wide authority to arrest for any non-traffic offense committed within his presence or view. Moreover, within Smith County—where the City of Bullard is located—Officer Johnson‘s authority to arrest for offenses committed within his presence or view extended to traffic offenses as well.20 Consequently, because the Exxon station was located in Smith County, Officer Johnson had the authority to arrest (and thus conduct an investigative detention) for any offense committed within his presence or
Investigative detentions are generally governed by the reasonable suspicion standard.22 Under the Fourth Amendment, “reasonable suspicion” exists when an officer is aware of “specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged or is (or soon will be) engaging in criminal activity.”23 This standard is objective; the subjective intent of the officer conducting the detention is irrelevant.24 In addition, reasonable suspicion does not depend on the “most likely explanation” for a suspect‘s conduct, and reasonable suspicion can exist even if the conduct is “as consistent with innocent activity as with criminal activity.”25 The standard is logically the same in an article 14.03(g) context, except that the officer‘s reasonable suspicion must be limited to whether the suspect is committing, or had committed, an offense in the officer‘s presence or view.26
3. Public Intoxication
A person commits the offense of public intoxication if he “appears in a public place while intoxicated to the degree that the person may endanger the person or another.”27 “Public place” means “any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, high-
The next question is whether Officer Johnson had reasonable suspicion to believe that appellant was intoxicated to the degree that he might endanger himself or another. Before appellant was awakened, Officer Johnson knew that: (1) it was around 3:00 a.m., (2) appellant was asleep in his car, (3) the car‘s engine was running, (4) the car was parked partially on the sidewalk very near the door to the store, and (5) the headlights were on.
The circumstances in the present case were sufficient to give rise to a reasonable suspicion that would permit an investigative detention. From the circumstances present here, Officer Johnson could reasonably suspect that appellant was intoxicated. And with the engine running, an intoxicated driver might have awakened, and in his stupor, driven into the store. Or he might have returned to the road, where he would pose a threat to others who were traveling.30 It would be reasonable to suspect that appellant posed a danger to himself or others.31
Although Officer Johnson did not smell alcohol as he approached the car, that fact did not cause reasonable suspicion to dissipate, in part because appellant could still have been intoxicated by drugs.32 Nothing
4. Burglary
Even before he parked behind appellant‘s car, there was reasonable suspicion to believe that a burglary was occurring. Officer Johnson knew that the Exxon station was closed, that the station had been burglarized before, that it was about 3:00 a.m., that the headlights of appellant‘s car were shining into the store, and that appellant was parked too close to the store door (on the sidewalk). These facts were sufficient for Officer Johnson to reasonably suspect that a burglary might be occurring and to justify an investigation. When the officer approached the car on foot, he learned that the engine was running, which would be consistent with it being a getaway car.
Appellant contends that, even if Officer Johnson initially had reasonable suspicion to investigate a possible burglary, that suspicion was later dispelled, and once the suspicion was dispelled, he should have ended the detention. But even if appellant‘s sleeping and subsequent events had dispelled any reasonable suspicion that appellant was participating in a burglary, by that time there was reasonable suspicion that he was guilty of public intoxication, as discussed above. We overrule appellant‘s first ground for review.
B. Collateral Estoppel33
1. Murphy
The courts below relied upon our opinion in Murphy to resolve appellant‘s collateral-estoppel claim. For reasons that will become apparent, we shall examine the line of cases that led up to our opinion in Murphy and reexamine our holding in that case.
Murphy was stopped for speeding, and the stop resulted in the discovery of drugs and drug paraphernalia.34 Murphy was first prosecuted in a justice-of-the-peace court for possession of drug paraphernalia.35 He was acquitted during a bench trial at which the State failed to produce evidence of speeding, and as a result, failed to establish the validity of the stop.36 He was later prosecuted in district court for possession of a controlled substance.37 Alleging collateral estoppel, Murphy filed a motion to suppress and a motion to dismiss the indictment.38 These motions were denied, and he was ultimately convicted.39 We characterized Murphy‘s claim before the court of appeals as being whether the
In Murphy, we held that the collateral-estoppel inquiry involved a two-part analysis: (1) determining exactly what facts were necessarily decided in the first proceeding, and (2) determining whether those necessarily decided facts constitute essential elements of the offense in the second trial.41 We said that this analysis applied “[t]o determine whether collateral estoppel bars a subsequent prosecution or permits the prosecution but bars relitigation of certain specific facts.”42
To support this proposition, we cited to our earlier decision in Ex parte Taylor and to the Fifth Circuit case of Neal v. Cain.43 We also provided a “see also” citation to United States v. Larkin.44 Relying upon Neaves v. State,45 the concurring opinion in Murphy explained that probable cause to stop the defendant was not the same issue as guilt of possessing the controlled substance.46
At various stages of the proceedings, appellant has articulated three bases for distinguishing this case from Murphy: (1) the present case involves specific fact findings, while Murphy involved only legal conclusions, (2) the validity of the police officer‘s conduct was an element of the offense in appellant‘s earlier prosecution, but that was not true of the defendant in Murphy, and (3) appellant claims merely that certain evidentiary facts cannot be relitigated, while Murphy dealt with whether the earlier acquittal necessarily barred the entire prosecution in the subsequent case.
We need not address appellant‘s first articulated basis for distinguishing Murphy—that the present case involves factual rather than legal issues. We will assume, without deciding, that appellant has satisfied any requirement that the prior prosecution resolved a question of fact, and we otherwise decline to address the matter.47
Under the analysis articulated in Murphy, all that matters is an issue‘s status in the subsequent prosecution. The fact that an issue may have been an “essential element” in the earlier prosecution does not appear to be relevant. Nevertheless, the Murphy court was not presented with a situation in which an issue was an essential element in the earlier prosecution; whether the Murphy analysis governs such a case depends upon the rationale underlying Murphy‘s holding.
That observation leads us to the third proposed basis for distinguishing Murphy: that Murphy dealt only with a claim that the entire second prosecution was barred. Appellant does not claim that collateral estoppel bars the subsequent prosecution in his case; his claim is only that collateral estoppel resolves certain evidentiary facts in his favor and thereby requires the granting of his motion to suppress.49
It is understandable that appellant would think that Murphy dealt with a bar to prosecution rather than a bar to the relitigation of certain facts. Murphy had filed both a motion to dismiss and a motion to suppress, and our opinion did not specifically focus on which of those motions we were concerned with.50 A review of the court of appeals‘s opinion in Murphy makes it clear, however, that the defendant was basing his appeal solely on the motion to suppress.51 Murphy concerned the relitigation of certain facts.
But appellant‘s misperception is also understandable because the Fifth Circuit case relied upon in Murphy deals with a bar to prosecution rather than a bar to relitigation of certain issues. In Neal, the Fifth Circuit said, “In determining whether collateral estoppel bars a subsequent prosecution, as Neal contends it does here, we engage in a two-step analysis,” with the second step being to determine whether the issues in question constitute essential elements of the offense in the second trial.52 So Neal stood only for the proposition that an issue must involve an essential element in the second prosecution in order for that issue to be used as a basis for barring prosecution altogether.53 Neal did not address what requirements apply when a defendant claims only thаt the State may not relitigate certain underlying facts. We must look elsewhere to decide whether the essential-element-in-the-subsequent-prose-
Appellant‘s attempted distinction also conflicts with Murphy‘s own pronouncement that its analysis applies to determine whether collateral estoppel “bars a subsequent prosecution or permits the prosecution but bars relitigation of certain specific facts.”54
As explained above, Murphy relied on Taylor for this proposition. Taylor did say that the essential-element-in-the-subsequent prosecution requirement applies to a claim that collateral estoppel “bars the relitigation of certain facts.”55 But this language was itself dicta, because Taylor involved a claim that the prosecution was entirely barred.56 The Taylor court relied upon Neal and Dedrick v. State57 as authority for the proposition.58 And Dedrick quoted from United States v. Mock.59 None of these cases support the dicta in Taylor.60
Neal has already been discussed. Dedrick‘s quotation from Mock is actually contrary to Taylor‘s dicta. We quoted Mock as saying that facts established in the first prosecution may not be relitigated in a second prosecution “either as ultimate or as evidentiary facts.”61 In support of this statement, Mock cited the Fifth Circuit decisions in Wingate and Blackburn,62 two cases that were relied upon by defense counsel at trial in the present case.63
In Wingate, the State introduced extraneous offenses of which the defendant had previously been acquitted.64 The court construed the collateral-estoppel protection articulated in Ashe, in which the Supreme Court described collateral estoppel as the rule that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.”65 The Wingate court
Finally, with respect to Murphy‘s reliance upon Larkin for the proposition that “[w]hile there is no bright-line or black-letter law that can resolve the issue of when collateral estoppel applies, collateral estoppel is inapplicable in this case,”70 an examination of Larkin reveals that it supports only thе first half of this statement. The Larkin court referred to “arcane principles of double jeopardy and collateral estoppel” that are “not susceptible of bright-letter law or black-letter law,”71 but the case did not involve the situation confronted in Murphy or that we confront today.72
Neaves provides no real support for the holding in Murphy either. In Neaves, the defendant obtained a negative finding in an administrative license-suspension hearing “upon the question whether probable cause existed that [the defendant] had been driving while intoxicated.”73 In his subsequent DWI prosecution, the defendant contended that the finding in the license-suspension proceeding “estopped the State from attempting to establish in the instant trial that [the defendant] had been driving while intoxicated.”74 We pointed out that the parties assumed that the ultimate facts in the two proceedings were the same: that probable cause to believe DWI had been committed (the ultimate fact in the license-suspension hearing) was the same ultimate fact as the actual commission of DWI (the ultimate fact in the criminal trial).75 We held that this assumption was incorrect.76 Because the defendant argued that the State was barred completely from proving the commission of DWI, this Court never had occasion to address whether the prior finding in the administrative license-suspension hearing could have been used to bar relitigation of issues raised in a motion to suppress.77
3. Ultimate Issue in the First Prosecution?
As we have already noted, the validity of a detention or arrest was an element of the failure-to-identify offense with which appellant was previously charged.81 As an element, it must be proven beyond a reasonable doubt.82 In a motion to suppress setting, however, the propriety of an arrest or detention need not be proven beyond a reasonable doubt.83 We do not often say what standard applies in a motion-to-suppress setting, and we are unaware of any cases explicitly stating the State‘s standard of proof in establishing reasonable suspicion,84 but we conclude that the appropriate standard is the one that applies to most85 constitutional suppression issues: preponderance of the evidence.86
This holding defeats any attempt in the present case to use the detention issue‘s elemental status in the first prosecution as a basis for collateral estoppel. The State‘s failure to prove the validity of appellant‘s arrest or detention beyond a reasonable doubt (as an element of the failure-to-identify offense) does not result in a collateral-estoppel bar to determining the validity of that arrest or detention by a preponderance of the evidence in a subsequent suppression hearing.88 To prevail on his collateral-estoppel claim, then, appellant must rely upon the detention issue‘s status in the earlier prosecution as a suppression issue, governed by the preponderance of the evidence standard.
Complicating such reliance is the fact that the court in the failure-to-identify prosecution erred in addressing the detention issue as a suppression issue. In Woods v. State, we held that, when the validity of an arrest or detention is an element of the charged offense, litigating the validity of the seizure as a suppression issue is inappropriate.89 Instead, the issue should simply be litigated as part of the State‘s case at trial.90
And Woods is not satisfied by litigating the validity of a seizure during the trial, if it is still litigated as a suppression issue. The trial judge‘s role with respect to elements of the offense and suppression issues differs significantly when the trial judge is not the finder of fact on the question of guilt. With respect to suppression issues, the trial judge is always the “sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony.”91 And with respect to such issues, he can draw rational inferences in favor of either party.92 By contrast, when the trial judge is not the finder of fact on the question of guilt, he can direct a verdict in the defendant‘s favor only if “after viewing the evidence in the light most favorable to the prosecution,” he cannot conclude that “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”93
Appellant‘s trial in the failure-to-identify сase was to a jury. Even if we assume that the trial judge in that case believed all
It is axiomatic that even an erroneous acquittal counts as an acquittal for double-jeopardy purposes,95 and one Supreme Court case suggests this is true even in the context of collateral estoppel.96
Nevertheless, a distinction could possibly be made between giving preclusive effect to ultimate issues resolved by an acquittal that was wrongly procured and giving preclusive effect to an evidentiary issue that should never have been litigated in the first place. Assuming, without deciding, that such a distinction does not, by itself, defeat appellant‘s claim in the present case,97 we consider the continuing validity of the proposition that collateral estoppel applies only when the issue in question constitutes an essential element in the subsequent prosecution.
4. Ultimate Issue in the Second Prosecution?
a. Ashe
The Supreme Court‘s formulation of collateral estoppel in Ashe, by including a reference to “an issue of ultimate fact,” in itself suggests that the issue upon which preclusion is sought should be an ultimate issue in at least one (and perhaps both) of the prosecutions. In Ashe, the issue (identity) was “ultimate” in both prosecutions.
The Ashe court also explained that collateral estoppel, though originally developed in civil litigation, had been a rule in criminal cases for over fifty years.102 Notably, the Supreme Court suggested that collateral estoppel might be at least as protective in criminal cases as in civil cases when it quoted Justice Holmes‘s statement that, “It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn rеverence are less than those that protect from a liability in debt.”103 We must keep in mind, however, that this statement was quoted in connection with the Ashe formulation of the collateral-estoppel rule.
b. The Ashe Approach
The formulation articulated in Ashe had been applied previously in Yates v. United States104 to preclude the application of collateral estoppel to issues that were not ultimate in nature. In Yates, the defendants were convicted of conspiring to advocate the overthrow of the United States government by force and violence.105 One of the defendants had prevailed at an earlier denaturalization proceeding, which may have involved the litigation of some facts that were also relevant to the criminal proceeding.106 Among other things, this defendant claimed that the determinations made in the denaturalization case were relevant to the criminal proceeding, “even if they do not conclude it, and hence that [the defendant] should be entitled to an instruction giving those determinations such partial conclusive effect as they might warrant.”107 The Supreme Court held that “the doctrine of collateral estoppel does not establish any such concept of ‘conclusive evidence’ as that contended for” by the defendant.108 “The normal rule,” the Supreme Court explained, “is that a prior judgment need be given no conclusive effect at all unless it establishes one of the ultimate facts in issue in the subsequent proceeding. So far as merely evidentiary or ‘mediate’ facts are concerned, the doctrine of collateral estoppel is inoperative.”109 In support of this “normal rule,” the Supreme Court cited The Evergreens v. Nunan110 and comment p of § 68 of the original Restatement of Judg-
Comment p ruled out the use of evidentiary facts in the civil collateral-estoppel context: “Evidentiary facts. The rules stated in this Section are applicable to the determination of facts in issue, but not to the determination of merely evidentiary facts, even though the determination of the facts in issue is dependent upon the determination of the evidentiary facts.”112
In The Evergreens, Judge Learned Hand addressed, in the civil context, the question of whether a previously litigated fact must be an ultimate issue in the first or second lawsuits in order to be given preclusive effect under the doctrine of collateral estoppel.113 He observed that there was a conflict in authority regarding whether an issue must be an ultimate fact in the first suit.114 He was aware of no case, however, that аllowed facts decided in the first suit (ultimate or not) to be used as mere “mediate data” in the second.115 Confronted with a dearth of authority, and being free to decide, the court did “not hesitate to hold” that, even assuming “mediate data” decided in the first suit could be used to establish “ultimate” facts in the second, no fact decided in the first suit—whether “ultimate” or “mediate” -could conclusively establish anything other than an “ultimate” fact in the second suit.116
c. The Fifth Circuit and Other Jurisdictions
As discussed earlier in this opinion, the Fifth Circuit in the Wingate line of cases—departed from the Ashe approach and took an expansive view of the collateral-estoppel protection in criminal prosecutions. But the Fifth Circuit conducted an about-face in 1994 in Wright v. Whitley.117 In that case, the defendant was acquitted of two weapon-possession charges, and he was subsequently charged with murder.118 The defendant sought, unsuccessfully, to use the fact of those earlier acquittals to bar certain testimony regarding his possession of a rifle.119 Rejecting the defendant‘s claim, the Fifth Circuit decided that Wingate‘s “broader reading of Ashe“—applying collateral estoppel to the relitigation of evidentiary facts—“has not been accepted by the Supreme Court.”120 Instead, the Fifth Circuit found that the Supreme Court‘s decision in Dowling “teaches that the Ashe holding only bars relitigation of a previously rejected factual allegation where that fact is an ultimate issue in the subsequent case.”121
In Brackett, the Fifth Circuit retreated somewhat from this expansive interpretation of Dowling—characterizing Dowling more narrowly as a burden-of-proof case.122 The Fifth Circuit believed that Dowling‘s burden-of-proof holding effectively limited the doctrine of collateral es-
There is a split among the federal circuits and various other jurisdictions on whether collateral estoppel can ever apply to facts that are merely evidentiary in the second prosecution.125
d. The Restatement (Second)
The
A number of jurisdictions have adopted comment j in civil cases.128 Although the doctrine of collateral estoppel was originally developed in civil cases, one question is whether collateral estoppel in the criminal law must match any evolution in the civil law or whether developments in the civil law have gone further than is appropriate for criminal cases. The
The Supreme Court has cited
In Standefer v. United States, the Supreme Court recognized that the doctrine of collateral estoppel may carry limitations in criminal cases that do not exist in civil cases.134 Standefer was charged as a party to official misconduct.135 The official in question was also charged but was acquitted on some of the counts.136 Standefer wished to use that acquittal to establish that he could not have aided the commission of those counts.137 In declining to permit the nonmutual use of collateral estoppеl, the Supreme Court explained that “the Government is often without the kind of ‘full and fair opportunity to litigate’ that is a prerequisite of estoppel.”138 The Court pointed to several aspects of criminal law that make this so:
[T]he prosecution‘s discovery rights in criminal cases are limited, both by rules
of court and constitutional privileges; it is prohibited from being granted a directed verdict or from obtaining a judgment notwithstanding the verdict no matter how clear the evidence in support of guilt...; it cannot secure a new trial on the ground that an acquittal was plainly contrary to the weight of the evidence ...; and it cannot secure appellate review where a defendant has been acquitted.139
The Court also noted rules of evidence that are unique to criminal law that might make evidence inadmissible against one defendant that is admissible against another, and the Court pointed to the “important federal interest in the enforcement of the criminal law.”140 And though the concern about the admissibility of evidence could possibly be met on a case-by-case basis by conducting a pretrial hearing to determine whether a trial court‘s evidentiary ruling had deprived the government of a chance to present its case the first time around, that process “could prove protracted and burdensome.”141
The ability of a party to fully and fairly litigate the claim in question is also a part of the
The State can obtain appellate review of a trial court‘s ruling on a motion to suppress if the ruling is made before trial.147 But, under Woods, the trial court in the present case was not authorized to rule upon the legality of the detention before trial. Even in the more common case in which such authority exists, a trial court is not required to rule on a motion to
e. Interests underlying Double Jeopardy and Criminal Cases
But even when a motion to suppress is granted pretrial, the State has the option to simply dismiss the case, and in doing so, prevent the attachment of jeopardy to the first prosecution.150 If jeopardy has not attached, then no aspect of double jeopardy, including its collateral-estoppel component, is implicated.151 This fact suggests that suppression issues are simply not the type of issues that implicate double jeopardy in the first place. When a defendant is placed in jeopardy, he is placed in jeopardy for the elements of the offense, not for mere evidentiary matters. Such a view is consistent with the Supreme Court‘s rejection of the Grady v. Corbin152 same-conduct standard, and its reaffirmation of the importance of the elements of the offense in the double-jeopardy context.153
Perhaps for this reason, the Supreme Court has never abandoned Ashe‘s “ultimate fact” language. For jeopardy to attach to an issue in the first prosecution, the issue must be “ultimate” rather than merely evidentiary. If jeopardy does not attach to a particular issue in the first prosecution, then that issue cannot become the basis for collateral estoppel in a subsequent prosecution. Indeed, the Fifth Circuit‘s conclusion in Brackett that the burden-of-proof holding in Dowling would effectively exempt evidentiary facts from the operation of collateral estoppel seems to be based on the idea that the issue on which preclusion is sought would be an ultimate issue in the first prosecution, so that the issue in the first prosecution would nearly always be subject to the beyond-a-reasonable-doubt standard of proof, while an evidentiary fact in a second prosecution would nearly always be subject to a lesser standard proof.154
In the present case, the legality of the detention was an ultimate issue in the first prosecution, but, as explained above, that status as an ultimate issue does not help appellant because of the lesser burden of proof with respect to suppression hearings. If, on the other hand, he relies upon the county court at law‘s resolution of the detention issue solely as a suppression issue—so that the burden of proof in the two prosecutions is the same—then we are confronted with an issue that was not an ultimate issue in either prosecution. To accord collateral-estoppel protection, under the rubric of double jeopardy, to such an issue would stray far from the theoretical groundings of the Double Jeopardy Clause and the Supreme Court‘s earlier pronouncements on the issue of collateral estoppel.155
In light of our discussion, we reaffirm the bottom-line result in Murphy as controlling where a defendant seeks to bar the relitigation of suppression issues on the basis of double jeopardy. That is, the State is not barred by the Double Jeopardy Clause from relitigating a suppression issue that was not an ultimate fact in the first prosecution and was not an ultimate fact in the second prosecution. We overrule appellant‘s second ground for review.
The judgment of the court of appeals is affirmed.
WOMACK, J., filed a concurring opinion.
COCHRAN, J., filed a concurring opinion in which JOHNSON, J., joined.
WOMACK, J., filed a concurring opinion.
The Court has determined that for double-jeopardy-based collateral estoppel to bar the relitigation of a fact, that fact must be an essential element in both the prior prosecution and the subsequent prosecution.1 I believe that this rule is a correct statement of the law.
I write separately to offer an alternate explanation for the rule, and to note its limitations.
This area of the law has an intricate terminology, which I have found it helpful to review.
The common law of finality is known as res judicata,2 some parts of which have been codified in statutes and rules, and some parts incorporated in the Federal Constitution. I shall first address the underlying common law.
Res judicata “specifies the effect that any adjudication has on all subsequent litigation.”3 Res judicata encompasses claim preclusion and issue preclusion.4 Claim preclusion prohibits a second suit based on the same claim between the same parties.5 Issue preclusion prohibits a party from relitigating an issue (such as a fact, a question of law, or an application of law to fact) that was previously determined in a suit between the same parties.6 Issue preclusion comprises two types of estoppel, collateral and direct. Collateral estoppel is issue preclusion in a suit that is based on a different claim than the suit in which the issue wаs originally decided. Direct estoppel is issue preclusion in a suit based on the same claim as the suit where the issue was originally decided. Because claim preclusion will generally prohibit a second suit on the same claim, questions of collateral estoppel are much more common than questions of direct estoppel.7
II. Res Judicata and Double Jeopardy
In the criminal law, claim preclusion has been subsumed by the Fifth Amendment prohibition of double jeopardy.8 While a narrow interpretation of the Fifth Amendment would cover only instances of claim preclusion,9 the Supreme Court has
Narrowly interpreted, Ashe applies only where the already proven fact from the first prosecution is an essential element of the offense in both the first and second prosecutions. I shall call this “essential-issue preclusion.” Since the abolition of federal common law in state cases,12 the only basis for the Supreme Court to interject a common-law concept like res judicata into a state case like Ashe would be if that common-law concept were incorporated in the Constitution. The Supreme Court‘s repeated interpretations of the double jeopardy clause are adamant that double-jeopardy analysis is grounded in the essential elements of an offense.13 Because only the charged offense places a defendant in jeopardy of life or limb, the relitigation of facts that are not elements of the offense in two prosecutions cannot create double jeopardy.
Although the Fifth Amendment incorporates only essential-issue preclusion, this does not mean that essential-issue preclusion is the only type of res judicata in criminal cases. Indeed, Ashe stated that the use of “collateral estoppel” in criminal cases was already an “established rule of federal law at least since [the] court‘s decision ... in United States v. Oppenheimer.”14 That case was not a case of essential-issue preclusion.
Oppenheimer had been charged with a federal offense, but the indictment was quashed after the trial judgе ruled that the statute of limitations for the offense had run.15 Oppenheimer was later reindicted for the same offense when a ruling in an unrelated case determined that the statute of limitations was longer than first believed. The Supreme Court held that, while it was not a Fifth Amendment matter,16 as a matter of res judicata the second prosecution was barred.17
III. The Murphy Test
The Court‘s opinion discusses at length the test for issue preclusion that this Court had come to use and which was stated in Murphy v. State:
To determine whether collateral estoppel bars a subsequent prosecution or permits the prosecution but bars relitigation
On its face, this test purports to apply a two-part analysis to questions of both essential-issue preclusion (where “collateral estoppel bars a subsequent prosecution”19) and non-essential-issue preclusion (where “collateral estoppel ... permits the prosecution but bars relitigation of certain specific facts“). However, the second part of the two-part analysis requires that the fact-to-be-barred be an element of the second offense. Thus, in analyzing whether issue preclusion applies, this test eliminates the possibility of non-essential-issue preclusion and leaves only essential-issue preclusion.
How had this Court come to apply a test to questions of non-essential issue preclusion that eliminates the possibility of non-essential-issue preclusion? Murphy cited to Taylor for the proposition that we use a test from the Fifth Circuit. In Taylor, the test was formatted differently:
To determine whether collateral estoppel bars a subsequent prosecution (or permits prosecution but bars relitigation of certain specific facts) courts employ a two-step analysis. Courts must determine:
- exactly what facts were “necessarily decided” in the first proceeding; and
- whether those “necessarily decided” facts constitute essential elements of the offense in the second trial.20
It is not immediately clear to me what difference the parentheses make. Expressed in this format, does the test present non-essential-issue preclusion as an alternative to essential issue preclusion if the prongs of the test are not met? Or does it subject non-essential issue preclusion to the same test as essential-issue preclusion?
Taylor itself dealt with a pre-trial habeas applicant who alleged that an element of the offense for which he was being prosecuted had been decided in a previous case in which he had been acquitted.21 Thus it was a question of essential-issue preclusion governed by Ashe. Taylor, even while discussing Ashe, still spoke broadly of “issue preclusion” and cited to sources that discussed issue preclusion without differentiating between essential and non-essential issues.22 The court of appeals decision
It is worthwhile to look at the authority for Taylor. It cited the Fifth Circuit‘s opinion in Neal v. Cain24 as the source for its test.25 In Neal, the test is formatted differently and is preceded with an explanation:
As the Supreme Court has recognized, the Double Jeopardy Clause incorporates the doctrine of collateral estoppel.... As applied against the government in criminal cases, collateral estoppel may either bar a subsequent prosecution, or it may prevent the relitigation of particular facts necessarily established in the prior proceeding. In determining whether collateral estoppel bars a subsequent prosecution, as Neal contends it does here, we engage in a two-step analysis. First, we must discern which facts were necessarily decided in the first proceeding. We then consider whether the facts necessarily decided in the first trial constitute essential elements of the offense in the second trial.26
In this statement it is clear that the two-part test is meant to discriminate between non-essential- and essential-issue preclusion. While Neal broadly discussed “collateral estoppel,” the holding applied only to essential-issue preclusion. This makes sense in the context of the case: Because Ashe constitutionalized only essential-issue preclusion, the Fifth Circuit would not be deciding a matter of non-essential-issue preclusion in Neal, which was a claim for habeas relief from a state conviction.27 Through the confusion caused by the general term “collateral estoppel,” Taylor and Murphy have suggested that the test for essential issue preclusion also applied to questions of non-essential-issue preclusion. Because this test, by its very terms, will never find something that it purports to test for, i.e. non-essential-issue preclusion, we should use a different test.
By my reading, the Court and I are in agreement that the Murphy rule is not an accurate statement of the law, and today‘s opinion replaces the Murphy rule.
IV. The Need for a Texas Rule
While I agree with the Court that the appellant has sought relief based only on double jeopardy protections, I would like to observe that today‘s holding does not foreclose the possibility of non-essential-issue preclusion based on non-constitutional grounds. The basis for my observation is two-fold. First, the language we have used in many cases has presumed that “collateral estoppel” could apply to facts that were not essential elements.28 Sec-
The petitioner in Ex parte Watkins killed his wife and shot her lover.29 The State first tried him for the murder of his wife. The jury found him guilty, but during the punishment phase determined that he had acted “under the immediate influence of sudden passion arising from an adequate cause,”30 and sentenced him to ten years’ community supervision.31 The State then indicted him for the attempted capital murder and attempted murder of his wife‘s lover. Watkins applied for a pre-trial writ of habeas corpus alleging that (1) ordinary double jeopardy barred the attempted-capital-murder prosecution, because the State had charged him with attempting to intentionally kill more than one person32 and he already had been punished for the murder of his wife, and (2) “collateral estoppel” barred the State from relitigating the punishment-phase issue of whether he acted with sudden passion.33 The Second Court of Appeals determined that ordinary double jeopardy was inapplicable, because the elements of attempted capital murder were distinct from the elements of murder charged in the first trial.34 The Court of Appeals determined, however, that “collateral estoppel” did apply to bar the State from relitigating the punishment issue of sudden passion.35 We granted review.
After noting the distinctions between double jeopardy and “collateral estoppel,”36 we held that if a jury determines a punishment-phase special issue in the defendant‘s favor, “the doctrine of collateral estoppel bars the State from relitigating it in a second trial”37 and affirmed the Court of Appeals.38
The circumstances of Watkins illustrate one good reason why this Court should not categorically eliminate the possibility of non-essential-issue preclusion: Our statutes present several situations where an issue decided by a factfinder during the punishment phase in one case could be an issue for the factfinder in a subsequent case.39 Additionally, our exclusionary rule allows the jury to determine during the guilt phase whether it believes beyond a reasonable doubt that evidence was seized legally.40 If these matters came up in a subsequent prosecution, they would normally not be essential elements of the offense,41 and thus essential-issue preclusion would not bar their relitigation.
At a minimum, I believe that in these situations common-law issue preclusion should protect the integrity of the original factfinder‘s determination and bar relitigation in a subsequent prosecution.42
V. The Limits of Double Jeopardy Protections
I disagree with the Court‘s treatment of Ashe‘s limitations. By falling back to the “ultimate fact” language used in Ashe itself—but not in the Supreme Court‘s subsequent Fifth Amendment cases—the Court simply invites litigation about the definition of “ultimate fact.”43 I believe
First, Oppenheimer itself stated that the Fifth Amendment‘s double jeopardy protections did not apply in that case.45 Oppenheimer dealt with a second prosecution after the first prosecution was determined to be barred by the statute of limitations. Oppenheimer was therefore never in jeopardy in the first case; thus his second prosecution was not a second jeopardy.46 While the “acquittal” in Oppenheimer was “on the merits” of the case, the Supreme Court has since made clear that a judgment of acquittal that does not address issues of guilt or innocence does not necessarily bar an appeal or retrial.47 The Supreme Court in Ashe used Oppenheimer to show that the federal courts applied common-law “collateral estoppel” in criminal cases, what it called “the federal rule,” but because Oppenheimer was never in jeopardy during his first prosеcution, and because the statute of limitations was not an element of the offense, Oppenheimer is not a case where double-jeopardy-based issue preclusion should apply.48
Second, in Watkins, we were ultimately ambivalent regarding whether double jeopardy reached the case at all,49 but applied issue preclusion nonetheless. In determining whether double jeopardy applied to a fact determined during the punishment phase of a prior proceeding, Watkins discussed Monge v. California50 and Apprendi v. New Jersey.51
In Monge, the Supreme Court held that double jeopardy did not apply to noncapital sentencing proceedings.52 During the sentencing phase of Monge‘s state trial, the prosecutor sought to enhance Monge‘s sentence on the basis that Monge had previously been convicted of a violent crime.53 The prosecutor presented evidence of a prior conviction and asserted that Monge had personally committed a violent act during the offense, but the evidence of the conviction did not contain details of the offense. The trial court found the allegation true and enhanced Monge‘s sentence accordingly. A state court of appeals overturned the enhancement for lack of evidence and ruled that double jeopardy barred the state from relitigating the issue on remand.54 The Supreme Court held that because punishment-phase punishment enhancers, as a general rule, did not constitute elements of the offense, the punishment phase question did not place Monge in jeopardy and thus relitigating it would not constitute double jeopardy.55
Apprendi involved a due process challenge to a New Jersey law that elevated the sentencing range if the trial judge found “by a preponderance of the evidence” that the offense was a hate crime.56 The Supreme Court held, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”57 The Court arrived at this holding by determining that when a punishment-phase question increases the maximum possible sentence, that question is not a mere “sentencing factor,” but is actually an element of an aggravated offense.58
We decided Watkins less than two years after Apprendi, when the continued validity of Monge was in question.59 Nine years later, though, Monge‘s core holding remains good lаw; as a general rule, questions decided during the punishment phase do not place the defendant in jeopardy. Combining Monge and Apprendi, the scope of double jeopardy protections during the punishment phase becomes clear: When a punishment-phase issue increases
Watkins dealt with a punishment-phase question that could not have increased the defendant‘s maximum possible punishment. Simply put, it did not place Watkins in jeopardy of anything. Thus federal double jeopardy protections were inapplicable.
Because Ashe‘s constitutional issue preclusion derives from the Fifth Amendment‘s prohibition on double jeopardy,62 the first step to applying it accurately is to analyze which situations implicate the Fifth Amendment at all. By not clearly noting the limits of Ashe in its opinion today, the Court may keep us from analyzing essential- and non-essential-issue preclusion claims under the correct law in future cases.
COCHRAN, J., filed a concurring opinion in which JOHNSON, J., joined.
I concur in the Court‘s judgment. I cannot join the majority opinion because I do not think that this case presents an issue of collateral estoppel.1 Appellant relies solely upon the collateral estoppel doctrine embodied in the Double Jeopardy Clause of the United States Constitution as set out in Ashe v. Swenson.2 That
The county court judge, in thе middle of appellant‘s trial on the failure-to-identify charge, entered a directed verdict against the State. He explained his rationale to the jury:
[The officer] was outside his jurisdiction, stopped to investigate what was going on. I don‘t think there‘s anything wrong with that. But with him being outside his jurisdiction and him not testifying to any articulable facts as to how he thinks an offense might have been committed, I think the law requires me to grant the motion to suppress, which means y‘all have no evidence in front of you.
The trial judge was wrong about the law, but he necessarily decided two historical facts:
- Officer Johnson—a patrol officer for the City of Bullard—was outside the Bullard city limits when he saw appellant‘s car;
- Officer Johnson did not testify to any facts about a specific offense that he thought appellant had committed at the time that he detained appellant.
No one wants to relitigate those facts. Everyone agrees with those facts. The evidence at both the county-court and district-court suppression hearings was the same concerning those two facts. The
First, he misunderstood the law that allows a police officer to arrest someone when the officer is outside his jurisdiction. Under
So the historical fact that Officer Johnson was outside of the city limits of Bullard and technically outside of his jurisdiction was legally irrelevant to any issue for purposes of a motion to suppress in both the failure-to-identify and the possession-of-methamphetamine cases. The Code of Criminal Procedure gives him jurisdiction within Smith County (where the offense occurred) to detain or arrest for any offense. The county court judge made a legal error in giving any significance to the fact that Officer Johnson was “outside his jurisdiction.”
The second historical fact that the county court judge found was that Officer Johnson did not testify that he had seen appellant actually commit any specific offense before he initially approached his car—a car with a running engine and headlights pointed toward the closed building at 3:00 a.m.—and woke him up.9
In sum, collateral estoppel, under the Double Jeopardy Clause, applies to the relitigation of historical facts that were necessarily decided against the State in the first proceeding. The State did not relitigate any ultimate historical facts that the county court judge found determinative. The county court judge‘s entry of an acquittal in the failure-to-identify trial was the result of a mistake of law, not a finding of historical fact. Therefore, double jeopardy prevented any retrial of that specific charge,12 but it did not affect the district court judge‘s authority to apply the law correctly to those same historical facts in a different proceeding.
I therefore concur in the Court‘s judgment.
Notes
A peace officer who is outside his jurisdiction may arrest, without warrant, a person who commits an offense within the officer‘s presence or view, if the offense is a felony, a violation of Chapter 42 or 49, Penal Code, or a breach of the peace. A peace officer making an arrest under this subsection shall, as soon as practicable after making the arrest, notify a law enforcement agency having jurisdiction where the arrest was made. The law enforcement agency shall then take custody of the person committing the offense and take the person before a magistrate in compliance with Article 14.06 of this code.
A peace officer listed in Subdivision (3), Article 2.12, who is licensed under Chapter 1701, Occupations Code, and is outside of the officer‘s jurisdiction may arrest without a warrant a person who commits any offense within the officer‘s presence or view, except that an officer described in this subdivision who is outside of that officer‘s jurisdiction may arrest a person for a violation of Subtitle C, Title 7, Transportation Code, only if the offense is committed in the county or counties in which the municipality employing the peace officer is located. Article 2.12(3) of the same Code states that peace officers include “marshals or police officers of an incorporated city, town, or village.”
Q: You‘ve stated in your report that you observed my client, Mr. York, for a couple of minutes before you woke him up; is that accurate?
A: Yes.
Q: Would you say that in those couple of minutes, you were able to determine that there was not a burglary at that location going on?
A: Well, I couldn‘t say that there was one occurring at that time, yes.
Q: Okay. And you didn‘t see any kind of property or anything in the car, did you?
A: Not from standing outside, no.
Q: Nothing that would give you reason to believe that he had burglarized that store?
A: No.
Q: Okay. Officer, at that time, when you asked for consent to search and continued your investigation, Mr. York hadn‘t committed any type [of] felony offense within your view at that time, had he?
A: No, he had not.
Q: He had not committed any type of offense that would be a breach of the peace; is that correct?
A: No he had not.
Q: He hadn‘t committed any type of public order crime, such as a riot or something to that effect?
A: No, he had not.