I respectfully dissent. I disagree with the Court's decision that in the first criminal prosecution in which the jury returned a general not guilty verdict the jury necessarily found that appellant was not intoxicated by alcohol. ⁽¹⁾

This is a federal constitutional case that involves an application of the doctrine of collateral estoppel "as embodied in the Fifth Amendment guarantee against double jeopardy" because the Court essentially decides that the jury's finding in the prior criminal prosecution that appellant was not intoxicated by alcohol amounts to an "acquittal" or a finding that appellant is not guilty of the offense for which the government now seeks to prosecute him. See Ashe v. Swenson, 90 S.Ct. 1189, 1195 (1970); Reynolds v. State, 4 S.W.3d 13, 19, 21 (Tex.Cr.App. 1999) (double jeopardy protects a defendant against subsequent prosecution for an offense for which the defendant has been acquitted). This case, therefore, does not require the Court to examine the question of whether common-law collateral estoppel principles should apply to Texas criminal cases outside of the Ashe federal constitutional double jeopardy context. See Reynolds, 4 S.W.3d at 21 n.18 (questioning whether this Court has ever formally adopted common-law collateral estoppel principles to criminal cases outside of this double jeopardy context) and at 22 (Meyers, J., dissenting) (acknowledging the ambiguity in this Court's collateral estoppel cases by not fully explaining whether they are referring to "constitutional double jeopardy protections or simply to common-law protections"); Ashe, 90 S.Ct. at 1203-05 (Burger, C.J., dissenting) (claiming that collateral estoppel principles should not apply to criminal cases and that the collateral estoppel concept "is a strange mutant as it is transformed to control" in criminal cases).

Ashe's federal constitutional collateral estoppel double jeopardy doctrine states 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." Ashe, 90 S.Ct. at 1194; see also Reynolds, 4 S.W.3d at 19-22 (discussing the constitutional limits of this doctrine on the power of state legislatures to legislate in this area). It is the defendant's burden to prove "that the [ultimate] issue whose relitigation he seeks to foreclose was actually [or necessarily] decided in the first proceeding." Schiro v. Farley, 114 S.Ct. 783, 791 (1994) (internal quotes omitted). Ashe requires courts to "examine the record of [the] prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude (sic) whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." Ashe, 90 S.Ct. at 1194. ⁽²⁾ Any "test more technically restrictive" would, according to Ashe, "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." Id. ⁽³⁾

After examining relevant portions of the record from the first criminal prosecution, I cannot conclude that the jury in that case necessarily found that appellant was not intoxicated by alcohol. The offenses submitted to the jury in that prosecution were intoxication manslaughter and manslaughter. The jury was instructed to find appellant guilty of intoxication manslaughter if it found that appellant's intoxication, if any, caused the victim's death. The only theories of intoxication presented to the jury were "either by not having the normal use of [appellant's] mental or physical faculties by reason of the introduction of alcohol into his body" or "by having an alcohol concentration of .10 or more." The charge instructed the jury to convict appellant of intoxication manslaughter if it believed 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 [the victim] .

The jury was instructed to find appellant guilty of manslaughter if it believed beyond a reasonable doubt that appellant:

did recklessly cause the death of [the victim] by operating a motor vehicle at an excessive speed and by driving into a motor vehicle occupied by [another person].

The State's theory was that appellant's alcohol intoxication caused him to drive recklessly at an excessive rate of speed which caused the accident resulting in the victim's death. Appellant's theory was that he was not intoxicated by any of the two manner and means submitted to the jury but that, if he was, his intoxication was not a contributing factor to the accident. For example, appellant claimed during his opening statement that his accident reconstructionist would contradict the prosecution theory that appellant was driving at an excessive rate of speed, and that the prosecution had to revise its initial figures "almost 20 miles per hour downward" in light of what appellant's accident reconstructionist had to say.

[The prosecutor] told you that you will hear from police accident reports and I anticipate that you're going to hear that there was not one police accident reconstruction report, but there were two. I anticipate that you will hear that the police-the first police accident report, what brought this case to be tried and first to be indicted, to be tried, came out well over a year ago. And in that initial accident reconstruction report, it reflected that the vehicle was going 88 miles per hour at the time it lost control, and that it was going 80 miles per hour at the time of impact. And then [appellant] got indicted for this crime. You remember when we talked about sometimes the government makes a mistake? I think you will hear that we then hired an accident reconstruction team, a private accident reconstruction team to review this accident. And suddenly, I think you will hear that the government decided to review it's own findings. And I think you will hear that just last week, after that report had been in for well over a year and a half, just last week, the police-the DPS reconstruction team said we made some very severe errors because the speed wasn't 88 when it lost control, it was 69. And the speed wasn't 80 miles per hour at impact, it was 60. That's not what brought these charges, but that's what I anticipate the DPS officers will tell you, that they have revised their figures almost 20 miles per hour downward, and will talk about the errors that caused that revision. And the frightening thing is, if [appellant's] family hadn't had the money to make sure that somebody else was going to check that work, what you would be hearing today, I fear, was that he was going 88 miles per hour. But now the government acknowledges that this is not a correct report and they have revised those figures. I think you will hear from our expert and I want you to compare the expert that we're going to be putting forward to the expert the government puts forward who will tell you that those figures by the government experts are still too high, that in fact [appellant] was going approximately 57 to 58 at impact, and 60 miles per hour at the point where the government says he lost control of the vehicle. How far, far different than that 88 miles per hour that we lived with for a year and a half.

Appellant's accident reconstructionist supported these assertions at trial. Appellant's accident reconstructionist also contradicted other aspects of the prosecution's theory of how the accident occurred such as when appellant began to lose control of his vehicle (before the curve at a lower speed limit or after the curve at a higher speed limit).

It was undisputed that appellant had been drinking wine before the fatal accident. Responding to the prosecution's evidence that appellant's BAC at the time of the accident was above .10, the best appellant's toxicology expert could do was to admit that appellant's BAC at the time of the accident was between .07 and .09.

Q. But you-you're saying that-you have come here today to testify that in your best estimate it could be anywhere between .07 and .09?

A. Point-0-7 (.07) to .09, no less than .07, no higher than .09.

Significantly, appellant's toxicology expert also admitted that a BAC of .07 to .09 would cause most people to lose "some of the normal use of their abilities." ⁽⁴⁾ For example,

Q. Let's talk about-I'm not talking about your chronic drinker. Let's talk about the person who may occasionally drink something, but not a chronic drinker. At what point do you believe that a person loses the normal ability to make complex reaction, or reaction to a complex emergency situation?

A. Again, that is-I want to answer it the best way possible. Most people have a different absorption for the alcohol. And also, they have a different reaction. I have observed hundreds of people under the influence of various substances and you can make some generalizations, but most everybody has a different reaction. One thing that comes to mind is a California Highway Patrol test where they actually took a whole bunch of individuals and they gave them one drink, two drinks, three drinks, and they made them drive around the cones in the parking lot.

Q. Okay.

A. The person that performed the best at .10 was a young person.

Q. Uh-huh (affirmative).

A. And the-I remember-I think-

Q. But did that person perform as well as they did when they were sober?

A. No, most definitely.

Q. Okay. Well-

A. No. Most definitely there was a deterioration in their ability.

Q. So they had lost some of the normal use of their abilities?

A. Most definitely.

Q. Let me ask you, you came up here from Houston?

A. Yes, ma'am.

Q. Did you drive or fly?

A. I drove.

Q. Okay. You know you can fly up? I mean, there is an airplane that comes here.

A. Oh, okay. I use them for out of state. I try to avoid them.

Q. Okay. Let's say-

A. I have tested some of the pilots.

Q. -let's say that you were going to make a quick trip to College Station from Houston, and you made it-it had to quick, so you were going to take the airplane, which I think is Continental? I think it's Continental. It's about a 30 minute flight. And just before you get on this plane, you are told by the stewardess, ladies and gentlemen, our pilot has had a few drinks while he has been waiting for you and we've tested his blood alcohol, it's .07, so he's not intoxicated, would you get on that airplane?

A. No, ma'am.

(Emphasis Supplied).

Appellant's toxicology expert also testified that he should not be driving even at a BAC of .05 and that he would not let his child drive with someone "who was a .05."

Q. So you think, your personal feelings from your studies and work is that at .05 most people are sufficiently impaired that they shouldn't be doing dangerous-type things?

A. I know one thing, I shouldn't be driving at .05 myself.

Q. Would you let your child drive with someone who was a .05?

A. No, God, no.

Appellant's toxicology expert also admitted that alcohol would have been a contributing factor to a hypothetical accident that was consistent with the prosecution's theory of the case.

Q. Is there any way to know if you factor in egregiously reckless driving, speeding, going off the road, and being out of control with the car, if you factor that in with the blood levels that you've seen, do you think that shows some loss of normal use of the mental or physical faculties?

A. I would definitely have to say that there is some contributing factor associated with what you described.

(Emphasis Supplied).

During closing jury arguments, the defense argued that the accident reconstruction testimony (not the toxicology testimony) was "so hypercritical in this case." The defense also argued that, in addition to not proving appellant was intoxicated, the prosecution failed to prove that appellant's intoxication, if any, caused the fatal accident. The last thing the defense told the jury was that it should still acquit appellant even if the jury found that he was intoxicated.

I know how much pain there is in this courtroom. The evidence is not there to convict [appellant] of these offenses. Civil liability, sure. But criminal liability, when we start-because generally the criminal law is defined-being reserved for those people who had intentionally done horrible things, or bad things. They haven't proved their allegations. They haven't proved that he consciously disregarded an unjustified-substantial risk that [the victim] would die. They haven't proved that he had an alcohol content of above .10 at the time he was driving, and they haven't proved that [appellant] had an accident because that (sic) he was intoxicated. They haven't proved he lacked the normal use, in fact, their own witness said he seemed perfectly normal. But before you can convict [appellant], you have to find that the accident wouldn't have occurred but for that intoxication. In other words, you're given a Charge that says, cause means it had to-it had to be what caused it. And you remember what [a witness] said, he's seen other accidents similar in nature, didn't have a thing in the world to do with alcohol or intoxication. And we posed questions, what could have caused this accident? And [the witness] said, "Well, it could have been a number of things." The Varner vehicle, you remember, there was some question about where the sun was. But she was only going 20-something miles per hour, much slower than her normal speed. Could be that the Varner vehicle was towards the middle of the road. It could be inattentiveness. It could be an animal ran out. We don't know what caused this accident. And that's why the accident reconstruction testimony is so hypercritical in this case. Because if it is as the DPS said, then that is one thing. His speed, he lost control up here because he's going too fast and then he comes back over here, overcorrects. But if you don't accept the DPS version, if you accept [the defense expert reconstructionist witness], that he makes the curve fine and that he is going along and then something happens, and we will never know what it was. We will never know what caused that accident. But [this witness] told you, "Not necessarily alcohol, not necessarily speed. There is no way to know." And the government has to prove, beyond a reasonable doubt, what caused that accident. They have to prove that it was caused by reckless speed or by intoxication. And if they can't prove that beyond a reasonable doubt, then you must return a verdict of not guilty. And how can any one of you say beyond a reasonable doubt what caused that accident, unless you believe the Department of Public Safety, that he ran off up here. Some of it flies in the face of the law of physics. Otherwise, there is no way to know. And I know how very difficult it is for all of you to sit there and think, "But we hurt for these people. We hurt for these people, there is pain, and we don't like drinking, and we don't like driving, and we've had bad experiences with it." But the fact of the matter is, the government hasn't proved their case.

At one point I was really angry. I was angry about the DPS, that-the various reports, 88 miles an hour, 87 miles an hour. Eighty miles an hour, is clearly the wrong, clearly. And thinking about the horrible consequence it would have had on my client. And then I thought, despite that, it wasn't intentional by those DPS officers, I believe that. And it probably wasn't even reckless. It's just sometimes things happen, accidents happen. This is a tragedy. A verdict of not guilty does not mean that it isn't tragic. A verdict of not guilty means the government has not proved these allegations, these allegations, these allegations beyond a reasonable doubt. Even if you find he was intoxicated, if you don't find that intoxication beyond a reasonable doubt caused this accident, you must return a verdict of not guilty.

(Emphasis Supplied).

The prosecution responded by, among other things, reminding the jury that the testimony of appellant's own toxicology expert supported a finding that alcohol had caused appellant to lose the normal use of his mental and physical faculties when the accident occurred.

Now, quite frankly, I did not understand what [appellant's expert]-I did not understand the basis of what he was talking about. I did understand his conclusion, though, which is that he believes, as a scientist, he believes that at the second [appellant] drove his car into that Suburban, his blood alcohol level wasn't any higher than .09. Now,-and you can believe him or not, or you can believe [other witnesses], I mean, that's totally up to you folks. But let's-let's assume that everything out of [appellant's expert] testimony is absolutely dead certain true, gospel truth. Then what? We know that people do not start losing their mental and physical faculties at the point that they reach .10. It isn't like filling up a glass and it doesn't count until it's overflowing. Point 1-0 (.10) is the political decision our legislature has made to say we don't care what your behavior is, we don't care if there's any bad driving, we don't care if there's any indication that you've lost control, if your blood's a .10, that's it, you're drunk. But way before that, way before that, you start-everyone, everyone, you, me, Mr. James, Mr. Spillane, Judge Delaney, everybody in this room including [appellant], and that was the testimony [of appellant's expert], everybody has lost some mental capacity.

(Emphasis Supplied).

These portions of the record demonstrate that the jury could have acquitted appellant without necessarily finding that he was not intoxicated by alcohol. See Ashe, 90 S.Ct. at 1194 (issue is "whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration"). It is significant that appellant's own toxicology expert did not seriously contest the loss of normal use of mental and physical faculties theory of intoxication. See Dowling v. U.S., 110 S.Ct. 668, 673-74 (1990) (collateral estoppel principles did not preclude relitigating issue of the defendant's identity partly because that issue was "not seriously contested" in the first trial). In addition to possibly basing its acquittal of appellant on a finding that he was not intoxicated, the jury could also have possibly found that appellant was intoxicated (under the loss of normal use theory) but acquitted him because it did not believe that this intoxication was a contributing factor to the accident which the record reflects was one of the theories appellant urged at the first trial. ⁽⁵⁾

The Court's opinion concedes that it is "a possibility" that the jury did not necessarily find that appellant was not intoxicated by alcohol. This should be fatal to appellant's collateral estoppel claim. See Schiro, 114 S.Ct. at 791 (defendant must prove that "issue whose relitigation he seeks to foreclose was actually decided in the first proceeding"); Ashe, 90 S.Ct. at 1194 (issue is "whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration"). But, the Court still concludes that this prosecution is jeopardy-barred because, even if the jury found that appellant was intoxicated, it nevertheless could have found that the "intoxication itself was not a contributing factor to the accident" in which case "collateral estoppel would apply to causation, rather than intoxication."

But, in analyzing the collateral estoppel issue this way, the Court concludes that this prosecution is jeopardy-barred even though it is unable to decide what the jury necessarily found in the first trial. But see Schiro, 114 S.Ct. at 791 (defendant must prove that "issue whose relitigation he seeks to foreclose was actually decided in the first proceeding"). In other words, the Court apparently bases its decision on what the jury could have found without deciding what the jury necessarily found. But see id. My understanding of collateral estoppel law, however, is that for the collateral estoppel bar to apply, the Court must be able to decide what the jury necessarily found in the first trial, not what it could have found. See id.

The Court's analysis involving what the jury could have found in appellant's first trial also fails to take into account that it is entirely possible that the jury did not speak with one voice in acquitting appellant. For example, it is possible that some of the jurors believed that appellant was not intoxicated, some of the jurors believed that he was intoxicated but his intoxication was not a contributing factor to the accident, and some of the jurors believed that appellant should have been acquitted for other reasons. Cf. Schad v. Arizona, 111 S.Ct. 2491, 2506 (1991) (Scalia, J., concurring) (stating the general rule that "when a single crime can be committed in various ways, jurors need not agree upon the mode of commission"); Kitchens v. State, 823 S.W.2d 256, 259 (Tex.Cr.App. 1991), cert. denied, 112 S.Ct. 2309 (1992). Under these circumstances, it cannot be said that the jury necessarily found anything in the first trial except possibly that it had a reasonable doubt of appellant's guilt. See Watts, 117 S.Ct. at 637 (general not guilty verdict "merely proves the existence of a reasonable doubt" of the defendant's guilt). This could explain why the United States Supreme Court in Ashe considered it very important to point out that the only conceivable issue upon which the jury could have acquitted Mr. Ashe was that "he had [not] been one of the robbers." See Ashe, 90 S.Ct. at 1195. Had the jury been able to acquit Mr. Ashe for this and other reasons, it appears that Ashe may well have reached a different result.

Straightforward application of the federal rule to the present case can lead to but one conclusion. For the record is utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that Knight had not been a victim of that robbery. The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers. And the jury by its verdict found that he had not. The federal rule of law, therefore, would make a second prosecution for the robbery of Roberts wholly impermissible.

Id.

Unlike Ashe, the Court cannot decide what the jury necessarily found in appellant's first trial. And it is impossible to decide what the jury necessarily found in appellant's first trial because there are any number of possible explanations for the jury's acquittal verdict at appellant's first trial. See Dowling, 110 S.Ct. at 674.

Even if it could be said that the jury in the first trial necessarily decided that appellant was not intoxicated by alcohol, the Court still errs to decide that the prosecution cannot litigate for the first time in this proceeding whether appellant was intoxicated by marijuana or by a combination of marijuana and alcohol. It is clear that these latter two issues were not litigated and, therefore, could not have been necessarily decided in the first trial. See Dowling, 110 S.Ct. at 673 (defendant must prove that issue whose relitigation he seeks to foreclose was actually decided in the first proceeding).

Apparently the Court decides that federal constitutional collateral estoppel principles prevent the prosecution from litigating these two issues of intoxication in this proceeding because it was "the more general issue of intoxication-was he or wasn't he--that was disputed" in the first trial and because the prosecution could have but did not litigate these other two theories of intoxication in the first trial. But federal constitutional collateral estoppel principles only prohibit a party from relitigating an issue that was necessarily decided in the first trial, and it is clear that the only issue litigated (and that could possibly have been decided) in the first trial was whether appellant was intoxicated by alcohol. See id.

In deciding that the prosecution cannot litigate the other two theories of intoxication (marijuana and combination of marijuana and alcohol) in this proceeding because the prosecution could have litigated them in the first trial, the Court adds a new element to the federal constitutional collateral estoppel doctrine that Ashe and other United States Supreme Court cases do not require. The Court's decision expands Ashe to preclude litigating in a second trial issues of ultimate fact that could have been decided in the first trial. But the federal constitutional collateral estoppel doctrine applies only to issues of ultimate fact that were actually decided in the first trial. Ashe, 90 S.Ct. at 1194 (applies only "when an issue of ultimate fact has once been determined by a valid and final judgment" in the first trial). (Emphasis Supplied).

I respectfully dissent.

Hervey, J.

Filed: November 6, 2002

Publish

1. The State does not concede that the jury made this finding; the State assumes that it did "for the purposes of the issues presented in this case." Compare Harris v. Washington, 92 S.Ct. 183, 184 (1971) (considering it important that the government "concede[d] that the ultimate issue of identity was decided by the jury in the first trial").

2. For the collateral estoppel bar to apply, therefore, it is not enough to say that the jury could have found that appellant was not intoxicated by alcohol. We must be able to conclude that the jury actually or necessarily found that appellant was not intoxicated by alcohol.

3. The verdict in Ashe, however, was not a general verdict of acquittal; it was a verdict of "not guilty due to insufficient evidence." See Ashe, 90 S.Ct. at 1192 and at 1203 (Burger, C.J., dissenting) (referring to this as a "somewhat unorthodox verdict") (internal quotes omitted). So, unlike this case involving a general verdict of not guilty, Ashe involved a jury verdict that contained an express finding like one might find in a civil case. See id.

This may be significant in light of the United States Supreme Court's more recent decision in Watts v. United States which states that it is impossible to know from a general verdict of not guilty "why a jury found a defendant not guilty on a certain charge" and that "the jury cannot be said to have necessarily rejected any facts when it returns a general verdict of not guilty." Watts v. United States, 117 S.Ct. 633, 637 (1997). It appears that Watts says it is impossible to do what Ashe says courts must do (attempt to determine from a general not guilty verdict what the jury found). See also State v. Saueda, 980 S.W.2d 642, 651-52 (Tex.Cr.App. 1998) (McCormick, P.J., dissenting).

4. Appellant's own toxicology expert, therefore, provided testimony to support that portion of the intoxication manslaughter charge of "not having the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body."

5. The Court decides that "the jury in this particular case necessarily concluded that" appellant was not intoxicated under either theory of intoxication submitted to the jury and that appellant "did not recklessly drive at an excessive speed into another vehicle." However, it is impossible to determine from the jury's general not guilty verdict what the jury actually and necessarily found. See Watts, 117 S.Ct. at 637 (impossible to know from a general not guilty verdict "why a jury found a defendant not guilty on a certain charge" and "jury cannot be said to have necessarily rejected any facts when it returns a general verdict of not guilty"). The jury could have made any one of these findings meaning that the government is not precluded from relitigating any of these issues in this proceeding. See Schiro, 114 S.Ct. at 791 (defendant must prove that "issue whose relitigation he seeks to foreclose was actually decided in the first proceeding"); Ashe, 90 S.Ct. at 1194 (issue is "whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration"). The jury could even have found, based on the testimony of appellant's accident reconstructionist, that there was "no way to know" what caused the accident. The jury may have just had a "reasonable doubt as to [appellant's] guilt." See Watts, 117 S.Ct. at 637 (a general not guilty verdict "is not a finding of any fact" and merely acknowledges that the government failed to prove its case beyond a reasonable doubt). It is even possible that the jury made all necessary findings in favor of the prosecution but decided not to convict anyway. There are any number of possible explanations for the jury's general not guilty verdict at appellant's first trial. See Dowling, 110 S.Ct. at 674 (defendant failed to prove that jury decided issue of identity in his favor at first trial because there were any number of possible explanations for the jury's acquittal verdict at the first trial). This perhaps is one reason why the collateral estoppel concept "is a strange mutant as it is transformed to control" in criminal cases involving general not guilty verdicts. See Ashe, 90 S.Ct. at 1205 (Burger, C.J., dissenting).