STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE
ELEVENTH COURT OF APPEALS TAYLOR COUNTY
case involves the doctrine of collateral estoppel embodied in
the Double Jeopardy Clause of the Fifth Amendment. At issue
is whether the State can prosecute Appellant, Brandon Joseph
Adams, for aggravated assault for stabbing Joe Romero after
Appellant was acquitted in an earlier trial of aggravated
assault for stabbing Joe's brother, Justin Romero, in the
same incident. We find that collateral estoppel is
inapplicable to the facts of this case, and the State is not
barred from prosecuting Appellant. We reverse the judgment of
the court of appeals.
reporter's record of the first trial shows that Justin
Romero and Luke Hisey became involved in a physical fight,
which ended after Appellant stabbed Justin and Justin's
brother, Joe, who was standing nearby. According to Alisha
Graves, Joe's then-girlfriend, Justin and Hisey exchanged
words and then began fighting and rolling on the ground.
Graves heard Joe tell Appellant that he needed to stay out of
it. She also heard Joe tell Justin and Hisey to cut it out
and that the fight was already over. Joe again told Appellant
that he needed to back off. Joe repeated to Justin and Hisey
that it was time to cut it out because they were going to
wake up the next morning and apologize to each other. The
next thing Graves saw was Appellant over Justin, and she
heard someone yelling that there was a knife. At that point,
Justin came out of the fight, and he was bleeding. Graves
added that while Justin was on the ground fighting with
Hisey, she saw Appellant stab Justin several times in the
back, and she also saw Joe get stabbed in the back or upper
to Joe, when Justin and Hisey began arguing, Joe initially
tried to calm the two down. Because Justin and Hisey would
not stop, Joe relented and told them to "go ahead and
get it over with," and the two started fighting. They
squared up, and it was a fair fight until Hisey was knocked
down. Joe pushed Justin back to allow Hisey to get up in
order for the fight to stay fair. Hisey was knocked down and
let back up three different times. Eventually, Justin and
Hisey started wrestling or rolling around on the ground.
After Joe told the two of them "that's enough"
and attempted to pull Justin off of Hisey, Joe felt hot
liquid on himself not realizing that he had been stabbed. At
that point, Justin yelled that someone had a knife, and then
Justin began wrestling with Appellant.
to Justin, he was fighting and wrestling Hisey on the ground
for about thirty seconds until Joe broke them up and said
"that's enough." Justin stood up and was then
blindsided by Appellant, who came swinging a fist at Justin.
Justin and Appellant then started fighting on the ground
until Graves came out and started screaming that Appellant
had a knife. Graves, Joe, and Justin all said that Appellant
did not speak a word during the entire incident.
to Hisey, he was attacked by Justin and ended up face down on
the ground. Hisey covered his ears and face while Justin
pummeled him about the head. He was then knocked unconscious
and remembered very little else.
to Appellant, Justin and Hisey were on the ground. Hisey was
laying on the ground and getting his head pummeled by Justin.
Appellant attempted to approach and break up the fight, but
Joe stood in the way and said "just let them
fight." Appellant replied that "it's not even a
fight, he's out," referring to Hisey. Appellant went
around Joe, and when Appellant got to Justin to pull him away
from Hisey, Joe hit Appellant. Appellant stepped back and
started to panic, so he reached for his pocketknife. At that
point, Justin came at him, and Appellant just started
swinging his knife. Appellant guessed that he hit Joe, but he
did not know how close Joe was to him. Justin tackled
Appellant, and Appellant felt a couple of punches so he just
started swinging the knife and hit Justin. Admitting that he
stabbed both Justin and Joe, Appellant said that he was
trying to protect himself and Hisey. Hisey was down, and with
both brothers coming at Appellant, he felt overwhelmed and
was afraid that, just as Justin would not stop pummeling
Hisey, the brothers would not stop pummeling Appellant,
was charged in two separate causes with aggravated assault
against Justin and Joe Romero. The case alleging Justin as
the victim went to trial first. The jury charge, instructing
the jury on aggravated assault with a deadly weapon and
aggravated assault by causing serious bodily injury, also
included defensive issues of use of deadly force in defense
of a third person. The jury ultimately returned a verdict of
"Not Guilty," and Appellant was acquitted.
State then proceeded to trial on the instant case which
alleged Joe as the victim. Appellant filed a pre-trial
application for writ of habeas corpus claiming that the
second prosecution would involve the same issue that was
decided in the first trial, namely, whether Appellant was
justified in using force in defense of a third person.
Because of this, Appellant argued that the second trial was
barred by collateral estoppel. A hearing was held, and
Appellant presented the trial court with evidence including
the transcript of the first trial, the jury's
instructions from the first trial, and the judgment of
response, the State argued to the trial court that collateral
estoppel did not apply because Appellant was tried for
allegedly committing aggravated assault against Justin, and
Appellant's defensive theory-defense of a third
party-related to whether Appellant was justified in his use
of force specifically against Justin. The instant
case, the State argued, involved a different issue because
the alleged victim, and the person against whom
Appellant's use of force was directed, was Joe,
a completely different person; thus, a jury decision that
Appellant was justified in using force against Justin was not
a decision that Appellant was justified in using force
against Joe. Deciding the matter on the arguments of counsel,
the trial court agreed with the State and denied
Appellant's pre-trial application for writ of habeas
corpus. The case proceeded to trial, the jury was unable to
reach a verdict, and a mistrial was declared.
appealed the denial of his pre-trial habeas application, and
the court of appeals held that Appellant's prosecution
for aggravated assault as to Joe was collaterally estopped.
Ex parte Adams, ___S.W.3d___, No. 11-17-00332-CR,
2018 WL 2994360 at *4 (Tex. App.-Eastland June 14, 2018). The
court of appeals reversed the trial court's denial of
Appellant's pre-trial habeas application and remanded
with instructions to the trial court to grant habeas relief.
Id. at *4. The State petitioned this Court for
discretionary review, asking:
When a defendant is acquitted on a defense of a third person
theory after stabbing a person engaged in a fight with a
friend, does the collateral estoppel component of the Double
Jeopardy Clause as articulated in Ashe v. Swenson
and this Court's opinions bar his subsequent prosecution
for stabbing another person who was not fighting?
that Appellant's subsequent prosecution is not barred by
collateral estoppel. Appellant's acquittal in the first
trial was based on a defense specific to Justin Romero, and
the issue of whether Appellant was justified in his use of
force against Joe Romero, who was not fighting Hisey, was not
necessarily decided by the jury in the first trial such that
it is now subject to collateral estoppel.
- Double Jeopardy and Collateral Estoppel
Double Jeopardy Clause of the Fifth Amendment provides that
no person shall be "subject for the same offence to be
twice put in jeopardy of life or limb." U.S. Const.
amend. V. This clause protects against: (1) a second
prosecution for the same offense after acquittal; (2) a
second prosecution for the same offense after conviction; and
(3) multiple punishments for the same offense. North
Carolina v. Pearce, 395 U.S. 711, 717 (1969); Aekins
v. State, 447 S.W.3d 270, 274 (Tex. Crim. App. 2014).
Ashe v. Swenson, the Supreme Court recognized that
the Fifth Amendment guarantee against double jeopardy also
embodies the principle of collateral estoppel as a
constitutional requirement. Ashe v. Swenson, 397
U.S. 436, 445 (1970). In Ashe, the evidence showed
that three or four masked men robbed six men playing poker.
Id. at 437. Ashe was put on trial for robbing one of
the poker players, but the jury found Ashe "not guilty
due to insufficient evidence." Id. at 439. The
State of Missouri then put Ashe on trial a second time for
the robbery of one of the other poker players, and the second
jury found Ashe guilty. Id. at 439-40. The Supreme
Court determined that, at the first trial, the "single
rationally conceivable issue in dispute before the jury was
whether [Ashe] had been one of the robbers."
Id. at 445. This was so because the first jury could
not have rationally found, from the record of the first
trial, that the robbery did not occur or that the victim
named in the first trial was not a victim of that robbery.
Id.; see also id. at 438 ("The proof
that an armed robbery had occurred . . . was
unassailable."). Missouri was therefore barred by the
doctrine of collateral estoppel from trying Ashe for the
robbery of any of the other poker players, because identity
would be an ultimate issue in each such trial and Ashe had
already been acquitted of being one of the robbers.
Id. at 446.
holding that Missouri was barred from prosecuting Ashe a
second time, the Supreme Court stated that "[f]or
whatever else that constitutional guarantee [against double
jeopardy] may embrace, it surely protects a man who has been
acquitted from having to 'run the gauntlet' a second
time." Id. at 445-46. Collateral estoppel
"stands for an extremely important principle . . . 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."
Id. at 443.
Thus, as we explained in Rollerson:
[U]nder the collateral-estoppel component of double jeopardy,
the government may not litigate a specific elemental fact to
a competent factfinder (judge or jury), receive an adverse
finding by that factfinder on the specific fact, learn from
its mistakes, hone its prosecutorial performance, and
relitigate that same factual element that the original
factfinder had already decided against the government.
Rollerson v. State, 227 S.W.3d 718, 730 (Tex. Crim.
App. 2007); Ashe, 397 U.S. at 447 ("'No
doubt the prosecutor felt the state had a provable case on
the first charge and, when he lost, he did what every good
attorney would do-he refined his presentation in light of the
turn of events at the first trial.' But this is precisely
what the constitutional guarantee forbids.").
In applying the doctrine of collateral estoppel, courts must
first determine whether the jury determined a specific fact,
and if so, how broad-in terms of time, space and content-was
the scope of its finding. Before collateral estoppel will
apply to bar relitigation of a discrete fact, that fact must
necessarily have been decided in favor of the defendant in
the first trial.
Ex parte Watkins, 73 S.W.3d 264, 268 (Tex. Crim.
App. 2002) (emphasis added); see also Rollerson, 227
S.W.3d at 731 ...