Texas Judiciary - Court of Criminal Appeals Opinion #652-00a

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. 652-00

EX PARTE PHILIP DANIEL TAYLOR, Appellant

ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS BRAZOS COUNTY

Cochran, J., delivered the opinion of the Court in which Meyers, Price, Womack, Johnson and Holcomb, J.J., joined. Hervey, J., filed a dissenting opinion in which Keasler, J., joined. Keller, P.J., dissented.

O P I N I O N

Appellant lost control of his car on a rural road and collided with an oncoming car. Appellant's two passengers died in the accident. A jury acquitted appellant of intoxication manslaughter in causing the death of one passenger. The State had alleged that appellant was intoxicated by alcohol. The State now seeks to prosecute appellant for intoxication manslaughter in causing the death of his second passenger. This time, however, the State alleges that appellant was intoxicated by either alcohol and marijuana or by marijuana alone. We must determine whether the appellant's acquittal in the first trial, of intoxication manslaughter, prevents the State from attempting to prove, in another criminal proceeding, an alternate theory of intoxication for causing the death of his second passenger.⁽¹⁾ The Fourteenth Court of Appeals held that collateral estoppel barred the State from relitigating the ultimate issue-intoxication-regardless of whether the State alleged a different type of intoxicant. Taylor v. State, No. 14-99-00399-CR (Tex. App. - Houston [14^th Dist.] 2000) (not designated for publication). We agree. Because of the particular pleadings, evidence, charge, arguments of counsel, and jury verdict in this case, we find that collateral estoppel applies to the ultimate issue of intoxication. Therefore, we affirm the court of appeals' decision.

A Brazos County grand jury returned three indictments against appellant relating to a two-car accident that occurred on May 26, 1996. Appellant's two passengers, Michelle James and Kyla Blaisdell, both died, and the other driver, Patricia Varner, sustained serious injuries. The separate indictments for the deaths of Ms. James and Ms. Blaisdell each charged two counts of intoxication manslaughter⁽²⁾ and one count of manslaughter in which the State alleged that appellant recklessly drove at an excessive speed into another vehicle. The third indictment charged appellant with intoxication assault and aggravated assault against Ms. Varner. At appellant's request, the trial judge severed the three indictments, and a jury trial proceeded on the manslaughter counts for causing the death of Michelle James.

The evidence showed that appellant was driving his Ford Thunderbird on a rural road in Brazos County late one afternoon. His fiancee, Kyla Blaisdell, sat in the front passenger seat and her best friend, Michelle James, sat in the back seat. It was not disputed that appellant was speeding, but witnesses' estimates of his actual speed varied widely.⁽³⁾ As appellant came out of a curve, the Thunderbird's right front wheel left the paved surface and veered onto a grassy, gravely area. According to the defense expert, appellant overcorrected as he attempted to bring his front wheel back onto the pavement. Consequently, he lost control of the car, which veered into the left lane and collided with Ms. Varner's oncoming Suburban. According to the State's expert, appellant lost control of the car as he entered the curve at a high speed. Because of his speeding through the curve, the car headed into a ditch on the right hand side, and appellant pulled the steering wheel too much to the left, sending the car into the left lane. Regardless of where appellant lost control of the car, Kyla Blaisdell and Michelle James died in the collision. Ms. Varner and appellant were both seriously injured.

At the hospital, medical technicians drew a sample of appellant's blood to determine its blood alcohol concentration ("BAC"). Their analysis resulted in a .137 BAC reading. The DPS twice reanalyzed this blood sample, using more sensitive equipment. Its analysis returned BAC readings of .124 and .119. DPS took another blood sample from appellant more than three hours after the first sample. This second sample indicated a BAC of .06. Appellant's blood also tested positive for the presence of marijuana, but there was no evidence that he had smoked marijuana on that particular day. The prosecutor, agreeing that traces of marijuana may linger in the body for days after its actual use, did not oppose appellant's motion in limine barring any mention of marijuana during the trial. Kyla Blaisdell tested negative for both alcohol and drugs; Michelle James tested negative for drugs, but .04 for alcohol; and Ms. Varner tested negative for both drugs and alcohol. Appellant's toxicology expert testified that, according to his calculations, appellant's BAC at the time of the accident must have been between .07 and .09.

Kelsey Blaisdell, Kyla's brother, testified that the trio spent most of the afternoon at his parent's home. He said that they came over to do laundry and to "hang out."

They had some wine with them and were drinking from about 2:30 until 6:00 p.m.

Kelsey testified that appellant did not seem drunk or otherwise intoxicated: appellant did not slur his speech or have poor balance. According to Kelsey, appellant didn't exhibit any of the characteristics of an intoxicated person. Kelsey stated: "I didn't feel that he was intoxicated at all." Although Kelsey admitted that, on the night of the accident, he had told a police officer he had "a strong suspicion [appellant] was driving while intoxicated," Kelsey explained that he had said that simply because appellant and the girls had been drinking.

At the conclusion of all evidence, the trial judge charged the jury that, if it believed from the evidence, beyond a reasonable doubt, that appellant:

did operate a motor vehicle in a public place while intoxicated, either by not having the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body or by having an alcohol concentration of .10 or more, and by reason of that intoxication, if any, by accident or mistake, caused the death of Michelle James, you will find [appellant] guilty of intoxication manslaughter.

The jury was also instructed, as an alternate basis for a finding of guilt, that if it believed from the evidence, beyond a reasonable doubt, that appellant:

did recklessly cause the death of Michelle James by operating a motor vehicle at an excessive speed and by driving into a motor vehicle occupied by Patricia Varner, you will find [appellant] guilty of manslaughter.

In its closing argument, the State argued that appellant "caused the deaths of Kyla Blaisdell and Michelle James because he chose to drink and drive that day." The State then reviewed the evidence showing that appellant was speeding and driving recklessly; that he had lost the normal use of his mental and physical faculties because of alcohol; and that he was per se intoxicated, as demonstrated by his BAC levels both immediately after he arrived at the hospital and as extrapolated from the DPS test taken more than three hours later.

The defense argued, on the other hand, that appellant had been drinking, but that he was not intoxicated. The defense challenged the accuracy of the first blood test and the relevancy of the second. The defense argued that, although appellant was speeding, he had his car under control when he completed the curve. According to defense counsel, "something" happened as appellant started to accelerate on the straightaway- he looked away, an animal darted out, he was startled by something- and his right front wheel went slightly off the road. He overcorrected and the car veered left. In sum, according to the defense, this was a tragic and horrible accident, but not a crime.

The jury acquitted appellant of all counts of intoxication manslaughter and reckless manslaughter of Michelle James. The State subsequently dismissed appellant's indictment for causing Kyla Blaisdell's death. But later the State learned that appellant, sometime after the trial, allegedly told Kyla Blaisdell's mother that he and the girls had been smoking marijuana cigarettes on the afternoon of the accident.⁽⁴⁾ Based upon this newly discovered evidence, the State re-indicted appellant for intoxication manslaughter in causing the death of Kyla Blaisdell, alleging that he had lost the normal use of his mental and physical faculties by reason of the introduction of alcohol, marijuana, or a combination of alcohol and marijuana.⁽⁵⁾

Appellant filed an application for a pretrial writ of habeas corpus, contending that the doctrine of collateral estoppel barred any further State efforts to prosecute him for causing this accident based upon his alleged intoxication. The trial court largely denied appellant relief, concluding that only the issue of intoxication by reason of alcohol had been litigated in the first trial, but not the distinct factual question of whether marijuana, either alone or in combination with alcohol, had rendered him intoxicated. Appellant then filed a pretrial appeal under Tex. R. App. P. 31 to the Fourteenth Court of Appeals, which disagreed with the trial court and granted full habeas relief. It concluded that the ultimate issue of fact decided by the jury was that appellant was not intoxicated; therefore, the issue of intoxication could not be relitigated in any further criminal proceeding:

Multiple substances that cause a person to become intoxicated (e.g., alcohol ingestion and controlled substance ingestion) are not distinct elements of separate intoxication manslaughter offenses; rather such sources of intoxication are merely evidentiary and do not concern the manner in which the offense was committed.⁽⁶⁾

After deciding that the State Prosecuting Attorney has primary authority for filing petitions for discretionary review,⁽⁷⁾ we granted the State Prosecuting Attorney's petition to review the correctness of the court of appeals' holding.

II.

At issue in this appeal is the scope of the factual finding that the jury made when it acquitted appellant. The State assumes that the first jury concluded that appellant was not intoxicated because of alcohol.⁽⁸⁾ It contends that this finding does not preclude the State from prosecuting appellant for the death of a second accident victim, when the State alleged intoxication by alcohol and marijuana or by marijuana alone:

Where an individual is tried for an offense based upon a statute that contains an element that is susceptible of proof by multiple manners or means, does the jury's negative finding regarding the particular manner or means alleged to establish the general element extend to any manner or means that could establish the general element, or does it extend only to the particular manner or means that was charged to the jury?

The State poses the issue as this: if a jury acquits a defendant of committing an offense in one manner and means, does its factual finding preclude the State from relitigating the commission of the same statutory offense against a different victim by a different manner and means? But that is not really the issue. The doctrine of collateral estoppel does not depend upon slight differences in statutory language or an alternate "manner and means"; it depends upon the scope of a specific factual finding in a particular case. There is no "bright-letter" or "black-letter" law which can resolve that question in all cases.⁽⁹⁾

The first prosecution was for killing Michelle James; the second, for killing Kyla Blaisdell. For double jeopardy purposes, the unlawful killing of each victim is a separate offense.⁽¹⁰⁾ In its seminal case on collateral estoppel, Ashe v. Swenson,⁽¹¹⁾ the Supreme Court noted that the defendant's reprosecution was not barred by double jeopardy under the usual Blockburger⁽¹²⁾ test because the second prosecution was for a different offense, namely the robbery of a different victim attending the same poker party.⁽¹³⁾ Thus, the Supreme Court had to turn to the related doctrine of collateral estoppel, which prevents a party who lost a fact issue in the trial of one cause of action from relitigating the same fact issue in another cause of action against the same party.⁽¹⁴⁾ The situation is the same in this case. If the State had prosecuted appellant for the same offense (causing the death of Michelle James) on a different theory, we would not have to resort to collateral estoppel. Reprosecution would be barred by autrefois acquit⁽¹⁵⁾ under Blockburger.

A. The doctrine of collateral estoppel.

In Ashe v. Swenson, the Supreme Court stated that collateral estoppel "means 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."⁽¹⁶⁾ 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:

(1) exactly what facts were "necessarily decided" in the first proceeding; and

(2) whether those "necessarily decided" facts constitute essential elements of the offense in the second trial.⁽¹⁷⁾

In each case, courts must review the entire trial record to determine- "with realism and rationality"-precisely what fact or combination of facts the jury necessarily decided and which will then bar their relitigation in a second criminal trial.⁽¹⁸⁾ In Ashe v. Swenson, the Supreme Court emphasized that:

the rule of collateral estoppel is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. ... The inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal.⁽¹⁹⁾

Although Texas courts have rarely discussed the scope of a fact barred by collateral estoppel, cases from other jurisdictions have held that collateral estoppel operates only if the "very fact or point now in issue" was determined in the prior proceeding.⁽²⁰⁾ It must be "precisely" the same issue in both cases.⁽²¹⁾ Thus, issue preclusion "is limited to cases where the legal and factual situations are identical."⁽²²⁾ Collateral estoppel may "apply to a phase, an issue of fact, or congeries of fact,"⁽²³⁾ depending upon the particular circumstances.

On the other hand, issue preclusion cannot be defeated simply by advancing new or different evidence to support the same issue already litigated.⁽²⁴⁾ Thus, a party who neglects to submit the evidence that would support a legal theory that the party withheld in a first proceeding, cannot later point to its own omission as justification for pursuing a second proceeding.⁽²⁵⁾

In sum, there are no hard and fast rules concerning which factual issues are legally identical and thus barred from relitigation in a second criminal proceeding. As Professor Wright concludes: "If an ordinary person would expostulate, 'But that's a different issue,' probably it is."⁽²⁶⁾

In each case, the entire record-including the evidence, pleadings, charge, jury arguments, and any other pertinent material-must be examined to determine precisely the scope of the jury's factual findings. In one case, for example, a jury's acquittal might rest upon the proposition that the defendant was "not intoxicated," while in another, that same verdict might rest upon the narrower proposition that the defendant was "not intoxicated" by a particular substance, but he might well have been intoxicated by a different substance. Generally, then, the scope of the facts that were actually litigated determines the scope of the factual finding covered by collateral estoppel.

B. Collateral estoppel applied to this trial.

Given the pleadings, the jury charge, the disputed issues, and the evidence presented by both the State and the defense at the trial, the jury in this particular case necessarily concluded that, at the time of the accident:

Appellant had not lost the normal use of his mental or physical faculties by reason of the introduction of alcohol;

Appellant did not have an alcohol concentration of .10 or more; and

Appellant did not recklessly drive at an excessive speed into another vehicle.

Thus, these three facts have been established, and they cannot be relitigated in any future criminal proceeding against appellant. But do these discrete factual findings leave open the possibility that appellant was intoxicated, but by some substance other than alcohol?

Not here. The only witness who testified to appellant's possible loss of normal use of mental or physical faculties was Kelsey Blaisdell, the brother of one of the victims. He stated that appellant and the two girls had some wine that afternoon. They arrived with a "box" of wine and the three of them drank from it for about three hours. Nonetheless, appellant didn't seem drunk or intoxicated. He did not slur his speech or have poor balance. He did not "noticeably" exhibit any of the characteristics of an intoxicated person. Kelsey testified that, "I didn't feel he was intoxicated at all . ... I knew he had been drinking" but appellant seemed perfectly normal to him. Because the trial court granted appellant's unopposed motion in limine, there was no mention at trial of any other possible source of intoxication and no other evidence that appellant had lost the normal use of his mental or physical faculties.⁽²⁷⁾

The source of appellant's intoxication was not a disputed issue in the first trial. It was only the more general issue of intoxication- was he or wasn't he- that was disputed, and upon this issue, the appellant prevailed. Had appellant's defense been one of conceding the fact of intoxication, but contesting the manner in which he became intoxicated, the situation would, of course, be different.

Thus, considering the question in a practical, common-sense manner, it is evident that there is no reasonable possibility that the jury in the first trial could have decided, based upon this evidence, that appellant was intoxicated but not because of alcohol. The court of appeals, in its review, concluded that "[i]mplicit in the jury's verdict is a factual finding that Appellant did not cause the automobile accident because of intoxication."⁽²⁸⁾ We have not found any evidence in the trial record to contradict this conclusion, nor has the State shown any such evidence.⁽²⁹⁾

The State argues that it now possesses more and different evidence-namely that appellant admitted to Mrs. Blaisdell, after his acquittal, that both he and the girls had smoked marijuana that day. But here, as in Harris v. Washington,⁽³⁰⁾ when an ultimate issue has been decided, the constitutional guarantee of collateral estoppel applies "irrespective of whether the jury considered all relevant evidence, and irrespective of the good faith of the State in bringing successive prosecutions."⁽³¹⁾

The underlying idea of both double jeopardy and collateral estoppel

is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.⁽³²⁾

While we do not doubt the good faith of the State, we also do not doubt that the jury in the first trial necessarily found that appellant was not intoxicated. The State seeks to distinguish the present situation, arguing that it is analogous to that in Ex parte Byrd.⁽³³⁾ It is not. In Byrd, the State filed a motion to revoke probation ("MRP"), alleging, in part, that the probationer had failed to participate in a community-based program either until he was successfully discharged or until he received further order from the trial court.⁽³⁴⁾ At the MRP hearing, the State offered testimony that the probationer left the program as evidence that the probationer had violated a condition of his probation, but the trial court held that the evidence was insufficient because the State failed to prove that he left "without permission."⁽³⁵⁾ The State immediately filed another MRP, setting out the same probation violation, but with much greater elaboration. It alleged that Mr. Byrd: 1) left the center without permission; 2) never returned to the center; 3) did not contact the court or probation department; and 4) was unsuccessfully discharged from the center.⁽³⁶⁾ Because the latter three allegations were never placed in issue during the first hearing, collateral estoppel did not bar their litigation during the second hearing.⁽³⁷⁾ Similarly, collateral estoppel would not bar the State from prosecuting appellant for some offense relating to this fatal accident which did not depend upon a factual finding of intoxication (whatever the source) or any other fact necessarily found by the first jury.

The State also argues that, because it was required to allege which type of intoxicant appellant consumed,⁽³⁸⁾ collateral estoppel applies only to that specific intoxicant. Accordingly, the State contends, resolving whether collateral estoppel applies depends entirely upon the precise indictment allegations, regardless of the actual evidence or the facts "necessarily" found by the jury. But application of collateral estoppel depends not merely upon the pleadings, but also upon the evidence, charge, jury argument, and any other relevant material.⁽³⁹⁾ The State fails to point to any evidence, argument, or other material in this record which would support its theory that this jury could have concluded appellant was intoxicated, but not by alcohol.

Finally, the State contends that the court of appeals' holding, that "intoxication" was an ultimate fact necessarily decided by this jury, has importance far beyond this one case because "[a] large number of criminal statutes provide for alternative manners or means of establishing certain elements." The State asserts that if the court of appeals' holding in this case is allowed to stand, then collateral estoppel would always bar relitigation of an alternate manner and means. This fear is unfounded. The scope of a factual finding necessarily decided in a particular trial depends upon the evidence and disputed issues in that specific case, and not upon the mere fact that an offense may be committed by different statutory manners and means.⁽⁴⁰⁾ Although it is possible to read the court of appeals' opinion in this case as imposing a broad collateral estoppel bar to relitigating an alternative statutory manner or means in any case, we do not read its opinion in that light. The court of appeals simply held that, in this particular case, the jury found that appellant was not intoxicated and thus, that ultimate issue cannot be relitigated.⁽⁴¹⁾ We agree with that conclusion.

Therefore, we affirm the court of appeals.

Cochran, J.

Delivered: November 6, 2002

Publish

1. Specifically, we granted the following grounds for review:

Where a jury returns a verdict of not guilty, necessarily based upon a negative finding regarding a specifically alleged manner or means of proving an ultimate issue, is the State precluded from relitigating the same ultimate issue, based upon a different manner or means, in a subsequent proceeding between the same parties?

Does a jury verdict of not guilty in an intoxication manslaughter prosecution, necessarily based upon a negative finding regarding intoxication by alcohol, preclude the State from relitigating the issue of intoxication by alcohol and marijuana in a subsequent prosecution for intoxication manslaughter between the same parties?
2. Each indictment alleged that appellant had operated a motor vehicle while intoxicated by

1) not having the normal use of his mental and physical faculties by reason of the introduction of alcohol into his body; and

2) having an alcohol concentration of .10 or more.
3. Cara Clank, a State's witness, testified that the posted speed on that section of road is 50 m.p.h. She testified that there was a warning sign posted in advance of the curve where the accident occurred. This sign advised drivers to slow to 40-45 m.p.h. She stated that, when appellant passed her, before the curve, he was going about 90 m.p.h. A Department of Public Safety (DPS) Trooper testified that, according to the DPS's original accident reconstruction figures, appellant was driving approximately 87 m.p.h. when he lost control of his car on or immediately after the curve. Ten days before trial, however, the DPS revised its original calculations downward by 20 m.p.h., determining that appellant was driving at about 69 m.p.h. Appellant's own accident reconstruction expert estimated that appellant was going 60 m.p.h. as he left the curve. Both experts concluded that appellant's speed at impact was between 58-60 m.p.h.
4. Appellant's attorney stated on the record that appellant, if called to testify, would deny making that statement to Mrs. Blaisdell.
5. Double jeopardy prevents any reprosecution of appellant for manslaughter in causing the death of Michelle James. See Ball v. United States, 163 U.S. 662, 671 (1896) (when a jury in a criminal case has returned a verdict of not guilty, the double jeopardy prohibition bars further prosecution of that defendant for the same offense); see also United States v. Scott, 437 U.S. 82, 91 (1978) (holding that a jury verdict of not guilty terminates the prosecution of that offense); Ex parte Rhodes, 974 S.W.2d 735, 738 (Tex. Crim. App. 1998).
6. Taylor, slip op. at 9.
7. Ex parte Taylor, 36 S.W.3d 883, 887 (Tex. Crim. App. 2001).
8. The State Prosecuting Attorney states: "While the State remains less than convinced that the jury's not guilty verdict was necessarily due to a factual conclusion that the appellant was not intoxicated, as alleged, we will assume such to be true for the purposes of the issues presented in this case."
9. "[C]ase[s] involving the arcane principles of double jeopardy and collateral estoppel [are] not susceptible of bright-letter law or black-letter law; the areas are most often gray and dimly to be seen. Needless to say, one entering this field must do so with trepidation." United States v. Larkin, 605 F.2d 1360, 1361 (5^th Cir. 1979), modified on other grounds, 611 F.2d 585 (5^th Cir. 1980).
10. "[I]n Texas, the allowable unit of prosecution for an assaultive offense is each victim." Ex parte Hawkins, 6 S.W.3d 554, 560 (Tex. Crim. App. 1999).
11. 397 U.S. 436 (1970).
12. Blockburger v. United States, 284 U.S. 299 (1932).
13. Ashe v. Swenson, 397 U.S. at 438.
14. Id. at 443.
15. "Autrefois acquit: a plea in bar of arraignment that the defendant has already been acquitted of the offense." Black's Law Dictionary 104 (7^th ed. 2000).
16. Ashe v. Swenson, 397 U.S. at 443.
17. Neal v. Cain, 141 F.3d 207, 210 (5th Cir. 1998); see also Dedrick v. State, 623 S.W.2d 332, 336 (Tex. Crim. App. 1981) (quoting United States v. Mock, 604 F.2d 34l, 343 (5^th Cir. 1979).

The dissent suggests that the constitutional doctrine of collateral estoppel as set out in Ashe v. Swenson no longer applies to a general "not guilty" verdict. Post, slip op. at 3 n.3. Under the dissent's reasoning, collateral estoppel would never apply to the guilt stage of any Texas criminal case because article 37.07, � 1(a) requires that all verdicts in Texas criminal trials be general verdicts.

The dissent relies upon selected quotes from Watts v. United States, 519 U.S. 148 (1997) for that position. But in Watts, the Supreme Court simply held that, for purposes of the federal sentencing guidelines, a district court could consider evidence of conduct for which the defendant had been acquitted because the burden of proof at the sentencing stage of a federal criminal proceeding is normally only by a preponderance of evidence. Id. at 156 (noting that "[f]or these reasons, 'an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof'"). Thus, said the Supreme Court:

We therefore hold that a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proven by a preponderance of the evidence.

Id. at 156. It is well-established that collateral estoppel does not bar relitigation of facts when the standard of proof in the second proceeding is lower than in the first. See Dowling v. United States, 493 U.S. 342, 349 (1990); United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361 (1984). In this case, for example, relitigation of appellant's intoxication would not be barred in a civil suit brought by the deceaseds' families because the burden of proof in a civil suit is only by a preponderance of the evidence.
18. Ashe, 397 U.S. at 444.
19. Id. (citations omitted).
20. Brubaker v. King, 505 F.2d 534, 538 (7^th Cir. 1974); see also State v. Nash, 817 S.W.2d 837, 840 (Tex. App.--Amarillo 1991, pet. ref'd).
21. Goodson v. McDonough Power Equip., Inc., 443 N.E.2d 978, 983 (Ohio 1983). As explained in Overseas Motors, Inc. v. Import Motors Ltd.:

"An issue is a single, certain and material point arising out of the allegations and contentions of the parties." It may concern only the existence or non-existence of certain facts, or it may concern the legal significance of those facts. If the issues are "merely evidentiary," they need only deal with the same past events to be considered identical. However, if they concern the legal significance of those facts, the legal standards to be applied must also be identical; different legal standards as applied to the same set of facts create different issues.

375 F. Supp. 499, 518 n.66a (E.D. Mich. 1974) (citations omitted), aff'd, 519 F.2d 119 (6^th Cir. 1975).
22. Steel v. United States, 813 F.2d 1545, 1550 (9^th Cir. 1987).
23. United States v. Larkin, 605 F.2d 1360, 1369 (5^th Cir. 1979), modified on other grounds at 611 F.2d 585 (5^th Cir. 1980).
24. See 18 Charles Alan Wright, Arthur R. Miller & Edward N. Cooper, Federal Practice & Procedure � 4417 at 446 n.45 (2d ed. 2000).
25. See Wabash Valley Power Ass'n, Inc. v. Rural Electrification Admin., 903 F.2d 445, 456 (7^th Cir. 1990); see also 18 Wright, Miller & Cooper, supra note 17, � 4417 at 431. As noted by Professor Wright, the purposes of issue preclusion are commonly thought to extend beyond the minimum of the "red light/green light" fact:

[T]he plaintiff who failed to prove the light was red is apt to be held precluded not only as to the color of the light but also as to the "issue" of negligence. Efforts to show that the driver was going too fast, failed to keep a proper lookout, or swerved into the wrong lane of traffic will be precluded even though none of these matters were raised in the first action.

Id. (citing Restatement Second of Judgments, � 27, illus. 4 (1981)). Professor Wright was speaking of the application of issue preclusion in civil cases, but the basic rationale for this position frequently applies to criminal proceedings as well:

Narrower definitions of the issues resolved augments the risk of apparently inconsistent result, invites complete relitigation of facts once tried in order to evaluate the new evidence accurately and threatens the reliance or instinctive sense of repose that many litigants are apt to indulge without pausing for sophisticated assessment of the issues resolved.

Id. at 431-32. On the other hand, an overly expansive application of issue preclusion would bar litigation of factual matters "without any pretense that they have been litigated and resolved in a prior action." Id. at 432. Thus, "it may prove best to find that identical issues are involved only on a strong showing that relitigation would present matters that clearly bore on ultimate issues that were raised in the first action ...." Id.
26. 18 Wright, Miller & Cooper, supra note 24 � 4417 at 440.
27. Of course, from the fact of appellant's drinking, a reasonable jury could have inferred that appellant was intoxicated, and it could have further inferred that such intoxication was the cause of the accident, but this jury specifically rejected that chain of logic. We are not free to second-guess it.
28. Taylor, slip op. at 8. The court of appeals explicitly rejected the State's suggestion that the jury in the first trial could have believed that Appellant did not have the normal use of his mental or physical faculties at the time of the accident by reason on intoxication but nevertheless acquitted him because it found that such intoxication was not due to alcohol. "Though ingenious, the argument fails. Stated otherwise, it is the State's contention that one of the issues of ultimate fact litigated in Appellant's first trial was the source of his alleged intoxication. Such is not the case." Taylor, slip op. at 9.
29. The dissent argues that the jury could have decided that appellant was, in fact, intoxicated but that "his intoxication was not a contributing factor to the accident." Post, slip op. at 4. This is, of course, a possibility, but that factual finding would not prevent the application of collateral estoppel. Quite the reverse. Under such a factual finding, it would not matter in the slightest what substance caused the intoxication; whatever the substance, intoxication itself was not a contributing factor to the accident. If that were the fact that the jury necessarily decided, then collateral estoppel would apply to causation, rather than intoxication. Causation, in this case, is a broader fact than intoxication, but the State would still be collaterally estopped from relitigating the factual issue of whether intoxication (whatever the intoxicant) was a contributing factor to the accident. In either scenario, the fact or "congeries of fact" necessarily decided by the first jury preclude relitigation of the issue of intoxication. See United States v. Larkin, 605 F.2d at 1369-1370 (noting that collateral estoppel may apply to more than one fact or issue).

In Larkin, for example, the Fifth Circuit noted that the jury's acquittal could have been based on either fact A or fact B. But because the government was required to prove both fact A and fact B in a subsequent prosecution, collateral estoppel barred relitigation of either fact. Id. In the present case, both intoxication and causation are necessary elements in the State's current intoxication manslaughter indictment. Thus, collateral estoppel necessarily applies to one or the other fact in a case in which the State must prove both facts. Because appellant only seeks to preclude the State from relitigating the issue of intoxication, we need not decide whether the State would also be precluded from relitigating the issue of causation.

Furthermore, although it is possible, as the dissent notes, that the jury simply exercised mercy in this case and declined to convict despite sufficient evidence, we must assume that the jury made a rational decision. See Green v. Estelle, 601 F.2d 877, 878-79 (5th Cir. 1979) (holding that, for collateral estoppel purposes, appellate court must take jury "at its word," even if the verdict appears influenced by mercy).
30. 404 U.S. 55 (1971).
31. Id. at 56-57. In Harris v. Washington, a jury acquitted the defendant of murder, finding that the defendant had not mailed the bomb which killed the victim and his infant son and seriously injured the victim's wife. Id. at 55. The Supreme Court found that the State could not reprosecute the defendant for killing the infant based upon additional evidence, namely a threatening letter that the defendant had allegedly sent to the victim's family. Id. at 57. In that case, "the ultimate issue of identity" had already been resolved and therefore could not be relitigated despite new evidence. Id. at 56. Although the situation here is not precisely the same, because the new evidence in this case concerns a different statutory source of intoxication, that distinction is insignificant, given the disputed issues and the jury's factual finding.
32. Green v. United States, 355 U.S. 184, 187-88 (1957).
33. 752 S.W.2d 559 (Tex. Crim. App. 1988).
34. Id. at 560.
35. Id. at 561.
36. Id.
37. Id., at 563-64. Byrd would be more analogous to this case had the State first alleged that Byrd left the center without permission from the center's director and then restated that violation as Mr. Byrd having left the center without the trial court's permission. The trial judge in Byrd, clearly stated in his factual findings that the State failed to show Mr. Byrd left "without permission," thus foreclosing relitigation of that issue, regardless of precisely whose permission was lacking.
38. See State v. Carter, 810 S.W.2d 197, 200 (Tex. Crim. App. 1991) (holding that State must include in its charging instrument an allegation of the specific intoxicant which caused intoxication).
39. Sauceda v. State, 980 S.W.2d 642, 647 (Tex. Crim. App. 1998).
40. In any event, we need not address the question of whether the various statutory sources or causes of intoxication under Chapter 49 of the Penal Code, constitute alternative "manner and means" of committing an offense.
41. Taylor, slip op. at 10.