The basis for the Court's decision is not clear. Consistent with the first ground for review set out in footnote one of its opinion, the Court disposes of this case on the basis that appellant did not develop a proper record before the district court, resulting in an inadequate record in the Court of Appeals, to decide the merits of appellant's collateral estoppel claim. See Guajardo v. State, S.W.3d slip op. at 1-2 (Tex.Cr.App., No. 1647-00, delivered this date). Later in its opinion, however, the Court states that appellant "failed to provide a sufficient record to review the trial court's ruling" because "the trial court denied appellant's claim of collateral estoppel, and neither the court of appeals nor this Court has a transcript of the [county court] suppression hearing." See Guajardo, slip op. at 10.

It is, therefore, unclear whether the Court is deciding that appellant failed to present a sufficient record in both the district court and the Court of Appeals or whether the Court is deciding that appellant presented a sufficient record in the district court but failed to make that record part of the appellate record resulting in an inadequate record on appeal to review the trial court's ruling. It would appear that the latter is more likely since the record reflects that the district court had the reporter's record of the county court suppression hearing before it during the district court hearing on appellant's motion to suppress. See Guajardo, slip op. at 4.

In any event, my understanding is that one of the reasons we granted discretionary review in this case was to decide whether collateral estoppel principles, beyond the federal constitutional double jeopardy context set out in the United States Supreme Court's decision in Ashe v. Swenson, ⁽¹⁾ would even apply to Texas criminal cases. We do not need the record of the county court suppression hearing to decide that question, and the Court should, therefore, address it.

I.

But first, I must respectfully disagree with the Court's decision that appellant did not present a sufficient record in either the district court or the Court of Appeals to address his collateral estoppel claim. The district court record reflects that appellant threw a baggie containing marijuana and cocaine out of his car when the police initiated a traffic stop of the car for a burned-out license plate light. The county attorney charged appellant with misdemeanor possession of marijuana, and the district attorney charged appellant with felony possession of cocaine. The county attorney prosecuted the marijuana case in county court, and the district attorney prosecuted the cocaine case in district court. ⁽²⁾

Appellant filed a motion in the county court case to exclude the marijuana evidence. After a hearing during which only one of the arresting officers testified, the county court granted appellant's suppression motion after finding "that the stop [of appellant's car by the police] and [the] seizure were illegal." After this, the county attorney dismissed the marijuana case with prejudice.

Appellant later filed a motion in the district court to suppress the cocaine evidence based on the police stop and search of appellant's car. This motion was identical to the one appellant filed in the marijuana case. Appellant claimed at the suppression hearing in the district court that the district attorney was collaterally estopped from litigating the legality of the police stop of appellant's car in the cocaine case because that issue had been decided adversely to the county attorney in the marijuana case. The district attorney made no claim in the district court suppression hearing that appellant presented an insufficient record to decide appellant's collateral estoppel claim. The district court overruled the merits of appellant's collateral estoppel claim without expressing any reservations about the adequacy of the record. The district court also denied appellant's suppression motion based on the parties' stipulation that the facts in the district court suppression hearing were the same as those developed in the county court suppression hearing.

These facts were developed during the district court suppression hearing mostly through the parties' unchallenged assertions and references to the relevant portions of the reporter's record from the county court suppression hearing. These facts are sufficient to review the merits of appellant's collateral estoppel claim.

The Court seems to decide, however, that appellant should have made the record of the county court suppression hearing part of the appellate record in this case to satisfy Ashe v. Swenson's mandate that the reviewing court examine this record to determine what discrete facts the county court necessarily found in support of its finding that the stop of appellant's car was illegal. ⁽³⁾ But, it was necessary to do that in Ashe v. Swenson because Ashe v. Swenson involved trying to determine what a jury necessarily found by what amounted to a general not guilty verdict. ⁽⁴⁾

In this case, however, it is not necessary to review the record from the county court suppression hearing to determine what the county court found. We know what the county court found and appellant is relying on the county court's express finding that the stop of appellant's car was illegal. This was the same issue that appellant sought to foreclose from litigating in the district court. See Vestal, A., Res Judicata/Preclusion, Matthew Bender & Co. (1969) at 189-90 ("findings of fact may establish certain issues" for collateral estoppel purposes); see also Ex parte Watkins, 73 S.W.3d 264, 269, 275 (Tex.Cr.App. 2002) (prosecution collaterally estopped from litigating whether appellant attempted to murder victim B in the heat of sudden passion because of a jury's prior express fact finding that appellant murdered victim A in the heat of sudden passion during the same criminal transaction). Appellant did not seek to foreclose litigating any other discrete facts that the county court may have necessarily found in his favor.

But the Court decides (and this seems to be the crux of the Court's decision) that it is still necessary to examine the record from the county court suppression hearing to determine what discrete facts the county court found because collateral estoppel "deals only with specific factual determinations, not legal claims or legal conclusions" such as the county court's express finding that the stop of appellant's car was illegal. See Guajardo, slip op. at 7 (emphasis in original). Collateral estoppel principles, however, can apply to foreclose relitigating questions of law such as this. See Restatement (Second) of Judgments, § 27, American Law Institute Publishers (1982) at 253 (an issue on which relitigation is foreclosed may be one of law); see also U.S. v. Shanbaum, 10 F.3d 305, 311 (5^th Cir. 1994) (collateral estoppel doctrine promotes interests of judicial economy by treating specific issues of fact or law that are validly and necessarily determined between two parties as final and conclusive). And, the Court's opinion cites no contrary authority.

II.

Having concluded that appellant presented a sufficient record to decide the merits of his collateral estoppel claim, I would nevertheless decide the merits of this claim adversely to appellant. The collateral estoppel doctrine's elements are "simply 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." See Ashe, 90 S.Ct. at 1194; Reynolds v. State, 4 S.W.3d 13, 17-18 (Tex.Cr.App. 1999). This doctrine literally applies for the benefit of both parties in a lawsuit. See id. It makes no exceptions for any modifications to accommodate "special concerns" of criminal cases, and it does not provide for its mutation into a one-way street for the benefit of only one of the parties in a lawsuit. See id. ⁽⁵⁾

It should initially be noted that this case does not implicate Ashe's rule of collateral estoppel as "embodied in the Fifth Amendment guarantee against double jeopardy." See Ashe, 90 S.Ct. at 1195; Reynolds, 4 S.W.3d at 19-22 (under principles of federalism, Ashe's constitutional collateral estoppel rule has limited applicability to the states). The essential double jeopardy protection identified in Ashe was that the jury's "not guilty due to insufficient evidence" verdict in the defendant's first prosecution also amounted to a finding that the defendant was not guilty of the offense for which he was subsequently prosecuted. See Reynolds, 4 S.W.3d at 21-22 (Ashe's "not guilty due to insufficient evidence" verdict in first prosecution also amounted to an "acquittal" of the charge in the subsequent prosecution).

Here, however, the county court's evidentiary finding in the marijuana case that the police stop of appellant's car was illegal does not implicate the essential double jeopardy protection identified in Ashe. This evidentiary finding by the county court is not a finding that appellant is not guilty of the cocaine offense. ⁽⁶⁾ The Court of Appeals, therefore, was mistaken to the extent it may have decided that this case falls under Ashe's rule of collateral estoppel as "embodied in the Fifth Amendment guarantee against double jeopardy." See Guajardo, 24 S.W.3d at 425-26 n.3.

Assuming that the district attorney and the county attorney are the same parties for collateral estoppel purposes, ⁽⁷⁾ collateral estoppel principles beyond Ashe's double jeopardy context still do not prohibit the district attorney from litigating the validity of the police stop of appellant's car in the cocaine case. An evidentiary ruling on a motion to suppress is not a ruling on an issue of ultimate fact or law in the cocaine case. See Neaves v. State, 767 S.W.2d 784, 786-87 (Tex.Cr.App. 1989) (existence of probable cause to believe defendant was driving drunk not issue of ultimate fact in defendant's DWI prosecution). This evidentiary ruling also is not a final judgment. See State v. Rodriguez, 11 S.W.3d 314, 322-23 (Tex.App.--Eastland 1999, no pet.) (ruling on suppression motion not final judgment); State v. Maggard, 906 S.W.2d 845, 848 (Mo. App. 1995) (prosecution's dismissal of charge following adverse decision on motion to suppress not prior adjudication that resulted in judgment on merits); see generally Vestal, Res Judicata/Preclusion at 343-93 (discussing collateral estoppel concepts in criminal cases) and at 353 (discussing possible situations where collateral estoppel principles might be involved in criminal cases most of which involve situations where criminal prosecution resulted in final judgment after a general jury verdict and none of which involved rulings on pretrial motions to suppress).

III.

We also exercised our discretionary authority to decide whether collateral estoppel principles beyond Ashe's double jeopardy context should even apply to criminal cases. I would decide that they do not. See generally Rodriguez, 11 S.W.3d at 318-24 (setting out various reasons for deciding that collateral estoppel principles should not apply to criminal cases); cf. Dowling, 110 S.Ct. at 672 (declining to apply in federal criminal prosecution collateral estoppel principles beyond Ashe's double jeopardy context); U.S. v. Brackett, 113 F.3d 1396, 1401 n.9 (5^th Cir.), cert. denied, 118 S.Ct. 341 (1997) (Dowling effectively limits collateral estoppel doctrine to Ashe's double jeopardy context by limiting this doctrine "to cases in which the government seeks to relitigate an essential element of the offense").

This Court has never squarely addressed whether collateral estoppel principles beyond Ashe's double jeopardy context should apply to Texas criminal cases. See Reynolds, 4 S.W. 3d at 15-22 and cases cited therein; Brabson, 976 S.W.2d at 183-86 and cases cited therein. ⁽⁸⁾ Under these circumstances, it is appropriate to address this issue as one of first impression in Texas. ⁽⁹⁾

It should be recognized once again that collateral estoppel principles were originally developed under the civil common law to promote judicial efficiency concerns between private litigants in civil cases. See Reynolds, 4 S.W.3d at 17. The application of these principles to criminal cases is a relatively recent phenomena. See, e.g., People v. Gates, 452 N.W.2d 627, 630 (Mich.), cert. denied, 110 S.Ct. 3238 (1990) ("cross-over" collateral estoppel cases are relatively "recent and rare"); Aguilera, 623 N.E.2d at 522 (recognizing that collateral estoppel principles had hardly been applied in criminal cases); Page, 614 N.E.2d at 1167 (collateral estoppel principles more commonly used in civil cases); see also Vestal, Res Judicata/Preclusion at 346 n.7 (finding it interesting that 1942 Restatement of Judgments completely excluded criminal cases from its scope).

The "efficiency concerns that drive the collateral estoppel policy on the civil side are not nearly as important in criminal cases because criminal cases involve a public interest in the accuracy and justice of criminal results that outweighs the economy concerns that undergird the estoppel doctrine." Rodriguez, 11 S.W.3d at 322, quoting U.S. v. Mollier, 853 F.2d 1169, 1175-77 (5^th Cir. 1988) (holding that "non-mutual collateral estoppel has no application in criminal cases"). These public interest concerns apparently underlie this Court's holdings in other contexts that "when a unit of government is exercising its governmental powers, it is not subject to estoppel." See Reynolds, 4 S.W.3d at 17 and cases cited.

Finally, when courts find it necessary to "modify" collateral estoppel principles to accommodate "special concerns" in criminal cases, they are actually applying something else which in the final analysis is a rejection of the application of collateral estoppel principles to criminal cases. See Reynolds, 4 S.W.3d at 17-18; Page, 614 N.E.2d at 1167; Aguilera, 623 N.E.2d at 522 (simultaneously claiming to apply collateral estoppel principles while also recognizing that they "cannot be applied in quite the same way as in civil cases"). And, when courts state that collateral estoppel principles should be modified into a "one-way" street for the benefit of only those accused of crimes, ⁽¹⁰⁾ then one might agree with former Chief Justice Burger that collateral estoppel "is a strange mutant as it is transformed to control" in criminal cases. See Ashe, 90 S.Ct. at 1204 (Burger, C.J., dissenting); Brabson, 976 S.W.2d at 207 (Price, J., dissenting to denial of reh'g) (making the claim that a decision that collateral estoppel principles "will simply not be used as a bar" in criminal cases is "far more sound" than current law); see also Rodriguez, 11 S.W.3d at 318-24 (collateral estoppel principles should not apply to criminal cases).

IV.

The district attorney's discretionary review petition also presents the issue of whether there is a "due process basis, independent of the double jeopardy clause, for application of collateral estoppel." There is not. See Dowling, 110 S.Ct. at 674-75; Ashe, 90 S.Ct. at 1195 (adopting only a double jeopardy rule of collateral estoppel); Reynolds, 4 S.W.3d at 19; Showery v. Samaniego, 814 F.2d 200, 203-04 (5^th Cir. 1987).

In this case, I would hold that collateral estoppel principles do not apply to criminal cases beyond Ashe's double jeopardy context. I concur only in the Court's judgment.

Hervey, J.

Filed: July 2, 2003

Publish

1. Ashe v. Swenson, 90 S.Ct. 1189 (1970).

2. Neither party disputes, and they apparently agree, that the county attorney and the district attorney are separate entities since the district attorney was authorized to serve only the district courts in Nueces County. See Acts 1985, 69^th Leg., ch. 480, Section 1, (authorizing district attorney to serve only the district courts of Nueces County). This has been amended to authorize the district attorney to also prosecute criminal cases in county court. See Tex. Gov't Code Ann., § 43.148(b), Acts 1999, 76^th Leg., ch. 387, Section 1. These amendments do not apply to this case.

3. Had the county attorney sought appellate review of this finding, the case would have been similar to State v. Ross, 32 S.W.3d 853 (Tex.Cr.App. 2000). There, the trial court without explanation ruled in favor of the defendant on a motion to suppress even though the State presented through a single witness uncontradicted testimony that would have supported denying the motion to suppress. See Ross, 32 S.W.3d at 854. We decided that in these circumstances "there is not necessarily a 'concrete' set of facts that can be implied from such a ruling" except that the trial court was not compelled to believe the witness' testimony. See Ross, 32 S.W.3d at 856-58.

So, for collateral estoppel purposes the most that might be gleaned from an examination of the record of the county court suppression hearing would be that the county court did not believe the testimony of the county attorney's only witness. In addition, it is unnecessary to try to determine exactly what discrete facts the county court necessarily found since the "congeries of fact" necessarily found by the county court support its ruling that the stop of appellant's car was illegal. See Ex parte Taylor, S.W.3d , slip op. at 16 n.29 (Tex.Cr.App., No. 652-00, delivered November 6, 2002) (unnecessary to decide exactly what facts the factfinder found by its general not guilty verdict since the "congeries of fact" necessarily decided by the factfinder precluded litigation of intoxication issue in a subsequent criminal prosecution).

4. In Ashe v. Swenson, the defendant and several others were accused of robbing several poker players during the same transaction. See Ashe, 90 S.Ct. at 1195-96. A jury found the defendant "not guilty due to sufficient evidence" in the defendant's first prosecution for robbing poker player A. See id. The Supreme Court decided that the jury necessarily determined by this verdict that the defendant "was not one of the robbers" so the rule of collateral estoppel "as embodied in the Fifth Amendment guarantee against double jeopardy" prohibited the defendant's subsequent prosecution for robbing poker player B. See id.; see also Dowling v. United States, 110 S.Ct. 668, 672 (1990) (Ashe's acquittal in first trial foreclosed the second trial because "the acquittal verdict could only have meant that the jury was unable to conclude beyond a reasonable doubt that [Ashe] was one of the bandits"). Had the jury in Ashe v. Swenson expressly found in its verdict that the defendant "was not one of the robbers,"it is likely the Supreme Court would have decided the case the same way even if the defendant had not presented the record from the criminal prosecution for the robbery of poker player A. The point is that Ashe v. Swenson does not mandate producing the record of the prior proceeding in every collateral estoppel case. It mandates this only when it is necessary to determine what the factfinder found. In this case, we know what the factfinder found.

5. See, e.g., Reynolds, 4 S.W.3d at 17-18 (collateral estoppel doctrine makes no distinction between which party claims its benefit; for example, neither this doctrine nor any other constitutional provision arguably would prohibit the prosecution from relying on collateral estoppel principles in a successive criminal prosecution to establish an element of the offense that a jury found adversely to a defendant in a prior criminal prosecution); People v. Page, 614 N.E.2d 1160, 1167 (Ill. 1993), cert. denied, 114 S.Ct. 479 (1993) (permitting the prosecution to invoke collateral estoppel doctrine against criminal defendant in the context of a suppression motion); Vestal, Issue Preclusion And Criminal Prosecutions, 65 Iowa L. Rev. 281, 319-21 (1980) (prosecution can use collateral estoppel doctrine in successive criminal prosecution to establish an element of offense because the defendant previously has had a jury determine this issue).

But see, e.g., Page, 614 N.E.2d at 1167 ("special concerns" limit prosecution's use of collateral estoppel doctrine in criminal cases); People v. Aguilera, 623 N.E.2d 519, 522 (N.Y. Ct. App. 1993) (in criminal cases collateral estoppel doctrine "cannot be applied in quite the same way as in civil cases"); Reynolds, 4 S.W.3d at 26 n.5 (Meyers, J., dissenting) (in criminal cases collateral estoppel doctrine should be "modified" into a "one-way street" for the benefit of only criminal defendants).

6. See Reynolds, 4 S.W.3d at 19-22 (under principles of federalism, Ashe's rule of collateral estoppel as "embodied in the Fifth Amendment guarantee against double jeopardy" does not apply to states except in cases implicating essential double jeopardy protections such as a subsequent criminal prosecution for the same offense after acquittal); Ex parte Tarver, 725 S.W.2d 195, 197-200 (Tex.Cr.App. 1986) (probation revocation proceeding is "essentially criminal" for double jeopardy purposes; therefore, double jeopardy principles prohibited defendant's criminal prosecution for offense that in a prior probation revocation proceeding the trial court found the defendant did not commit); but also see Reynolds, 4 S.W.3d at 20 n.17 (Tarver inconsistent with Fifth Circuit case law holding that double jeopardy clause does not apply to probation revocation proceedings).

7. See, e.g., Brabson v. State, 976 S.W.2d 182, 184 (Tex.Cr.App. 1998) (Texas Department of Public Safety and Dallas County District Attorney not same parties for collateral estoppel purposes).

8. See also Reynolds, 4 S.W.3d at 22-27 (Meyers, J., dissenting) (discussing the "confusion and difficulty engendered" when this Court has casually used the collateral estoppel term "without fully explaining whether we are referring to constitutional double jeopardy protections or simply to common-law principles").

9. Our decision in Brabson construed Tarver as a nonconstitutional decision applying collateral estoppel principles beyond Ashe's double jeopardy context. See Brabson, 976 S.W.2d at 183 (relying on Tarver to hold that this Court has adopted the nonconstitutional doctrine of "administrative collateral estoppel"). Our later decision in Reynolds, however, noted that Brabson's construction of Tarver was erroneous because Tarver was a constitutional decision applying Ashe's double jeopardy collateral estoppel principles. See Reynolds, 4 S.W.3d at 21 n.18.

Even though a dissenting opinion in Reynolds claimed that Tarver should be construed as applying non-Ashe collateral estoppel principles, Tarver must be construed as applying Ashe's double jeopardy collateral estoppel principles because Tarver found it necessary to decide that a probation revocation proceeding is "essentially criminal" for double jeopardy purposes. See Reynolds, 4 S.W.3d at 20-21 n.17, 18. If Tarver was applying non-Ashe collateral estoppel principles, then it would not have been necessary for Tarver to decide that a probation revocation proceeding is "essentially criminal" for double jeopardy purposes. See Reynolds, 4 S.W.3d at 20-21 n.17, 18.

10. See Reynolds, 4 S.W.3d at 26 n.5 (Meyers, J., dissenting).