Ex parte Mathes , 755 S.W.2d 161 ( 1988 )

OPINION

BURGESS, Justice.

Relator was charged by separate indictments with the capital murders of two individuals. Both the murders arose during the same robbery. In 1986, relator was found guilty of the capital murder of the first victim. During the punishment phase, the jury answered “no” to the special issue: “Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” TEX. CODE CRIM. PROC.ANN. art. 37.071(b)(2) (Vernon Supp.1988). Because of this finding, relator was sentenced to confinement for life.¹ After relator’s conviction, the state announced its intention to try relator for the capital murder of the second victim and to seek the death penalty once again. Relator filed an application for writ of habeas corpus with the trial court. The writ was denied. Relator then timely perfected appeal to this court.² Relator does not challenge the state’s authority to try him for the capital murder of the second victim. The issue before this court is whether the prosecution’s failure to prove its case for the death penalty in the first trial was an “acquittal” of that penalty so as to bar the prosecution from seeking the death penalty in relator’s trial for the second capital murder.

Generally, the imposition of a particular sentence is not regarded as an “acquittal” of more severe sentences that could have been imposed. This is because in the usual sentencing proceeding it is impossible to conclude that a sentence less than the statutory maximum constitutes a decision that the government has failed to prove its case. See Bullington v. Missouri, 451 U.S. 430, 438 & 443, 101 S.Ct. 1852, 1857 & 1860, 68 L.Ed.2d 270, 278 & 282 (1981). The Supreme Court has carved an exception to this general principle, however. In Bullington, the defendant was being retried for the same offense after his first conviction was reversed due to error in the guilt phase. The Supreme Court held that the double jeopardy clause of the fifth amendment³ barred the state from seeking the death penalty at the retrial of the defendant whose first jury, following a capital sentencing proceeding which effectively amounted to a trial on the issue of punishment, declined to impose the death penalty.⁴ The Court reasoned that when a state enacts a capital sentencing procedure that resembles a trial on the issue of guilt or innocence, the state explicitly requires the jury to determine whether the prosecution had “proved its case.” 451 U.S. at 443, 444, 101 S.Ct. at 1860, 1861, 68 L.Ed.2d at 282. A refusal on the part of the jury to impose the death penalty then constitutes the equivalent of an “acquittal” of the death penalty for the crime charged. See Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 2310, 81 L.Ed.2d 164, 172 (1984) (applying Bullington). The double jeopardy clause forbids the retrial of a defendant who has been acquitted of the crime charged. United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 433, 66 L.Ed.2d 328, 341 (1980); Burks v. United States, 437 U.S. 1, 7, 98 S.Ct. 2141, 2145, 57 L.Ed.2d 1, 7 (1978); Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199, 204 (1957).

The relator in this case is not being retried for the same murder, as was the defendant in Bullington; he is being tried for another murder arising from the same transaction from which a murder for which he has already been convicted arose. Relator argues Bullington should be extended to hold that the double jeopardy clause bars the state from seeking the death penalty at his capital trial for the second murder.

In Padgett v. State, 717 S.W.2d 55 (Tex.Crim.App.1986), the Texas Court of Criminal Appeals was also called upon to consider whether Bullington should be extended to bar the state from seeking the death penalty a second time where the defendant was to be tried for the murder of a second victim arising out of the same transaction as the first. However, in Padgett, the jury in the first trial was unable to answer the continuing threat special issue, whereas in the instant case, the jury in the first trial answered the special issue in the negative. The court in Padgett inquired into whether the doctrine of collateral estoppel embodied within the double jeopardy clause, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, 476 (1970), would preclude relitigation of the death penalty issue in that case. Stated simply, collateral estop-pel means 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. 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475. The court of criminal appeals said in Padgett-.

Presuming that the Fifth Amendment requires that the doctrine of collateral es-toppel be applied to the punishment phases of different capital murder trials, we must now determine whether the jury actually decided Special Issue No. 2 in appellant’s first capital murder trial. If it did, then the State would be collaterally estopped from relitigating the issue, thus preventing it from seeking the death penalty in the instant case.

717 S.W.2d at 57 (footnote omitted). In footnote six, id., the court noted,

In Ashe, supra, the Supreme Court applied the doctrine of collateral estoppel to the guilt/innocence phases of two different trials.... We need not decide whether [Rumsey and Bullington, and Sanne v. State, 609 S.W.2d 762, 767 (Tex.Crim.App.1980) ] require the application of collateral estoppel to the punishment phases of different cases because the instant case does not even involve a fact issue that has been sufficiently resolved to invoke that doctrine.

The Padgett court concluded that in the defendant’s trial for the capital murder of the first victim, the jury’s inability to answer the continuing threat special issue was not an actual determination of the issue. “Without such a determination, the State is not collaterally estopped from relit-igating that issue by trying relator for the capital murder of [the second victim]. Therefore, the State is not estopped from seeking the death penalty in that cause.” Id. at 58.

The court of criminal appeals has held that collateral estoppel applies to sentencing hearings. Ex parte Augusta, 639 S.W.2d 481, 485 (Tex.Crim.App.1982); Cooper v. State, 631 S.W.2d 508, 513 (Tex.Crim.App.1982). See also Ex parte Tarver, 695 S.W.2d 344, 349 (Tex.App.—Houston [1st Dist.] 1985), aff'd, 725 S.W.2d 195 (Tex.Crim.App.1986) (probation revocation hearings). What remains for determination is the question left unresolved by the court of criminal appeals in Padgett, whether the fifth amendment requires the doctrine of collateral estoppel to be applied to the punishment phases of different capital murder trials.

In Ashe, six men in a poker game were robbed by several masked gunmen. Defendant was tried for the robbery of one of the players, the only real issue in that trial being identity. After his acquittal, the defendant was tried and convicted for the robbery of another of the players. The Supreme Court held that the doctrine of collateral estoppel, embodied within the fifth amendment guarantee against double jeopardy, barred the defendant’s trial for the robbery of the second victim, saying:

The question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of the six poker players.... It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again.

... Once a jury had determined upon conflicting testimony that there was at least a reasonable doubt that the petitioner was one of the robbers, the State could not present the same or different identification evidence in a second prosecution for the robbery of [the first player] in the hope that a different jury might find that evidence more convincing. The situation is constitutionally no different here, even though the second trial related to another victim of the same robbery. For the name of the victim, in the circumstances of this case, had no bearing whatever upon the issue of whether the petitioner was one of the robbers.

Ashe, 397 U.S. at 446, 90 S.Ct. at 1195, 25 L.Ed.2d at 477. As in Ashe, the state in this case seeks to relitigate an issue which has been decided against it in a trial on another case arising from the same transaction.

Upon hearing relator’s petition for writ of habeas corpus in this case, the trial court found that the evidence to be presented by the state would be “virtually identical” to the evidence presented in the defendant’s first trial. The court’s decision in Ashe hinged upon the logic that since the robbers of both victims were the same and the defendant was not one of the robbers of the first victim, he could not have been a robber of the second; therefore, the issue of identity had been established finally in the first trial. Relator’s case hinges upon the logic that since the relator was not a “continuing threat” at the close of the first trial (per the jury’s finding on the second special issue) and the state has stipulated the evidence in this proposed second trial will be “exactly the same,” he cannot now be said to be a continuing threat; therefore, the continuing threat issue was established finally in the first trial. We find this logic persuasive.

We are not persuaded by the reasoning given by the trial judge when he concluded that because the state’s evidence can be interpreted to show relator’s role in causing the death of the second victim was “qualitatively different” from his role in causing the death of the first, the “no” answer to the continuing threat special issue in the first case does not collaterally estop the state from seeking the death penalty in the second. The special issue is not submitted to the jury with the restriction that they consider' the issue “as it pertains to this victim.” Instead, the issue asks the jury to determine generally whether the defendant will be a continuing threat to society. During presentation of its case in a capital sentencing proceeding, the prosecution may present evidence as to any matter the court deems relevant to sentencing. TEX. CODE CRIM.PROC. ANN. Art. 37.071(a) (Vernon Supp.1988). The state was free in the first sentencing proceeding to present evidence of whatever facts made the relator’s role in causing the death of the second victim “qualitatively different.” To hold that the state is now free to relitigate the continuing threat issue would be to allow the state to refine and strengthen its case on the issue, turning the first trial into a dry run. Such refinement is “precisely what the constitutional guarantee forbids.” Ashe, 397 U.S. at 446, 90 S.Ct. at 1195, 25 L.Ed.2d at 477. We hold then, under Bullington and Ashe, that the jury’s negative determination of the continuing threat issue in relator’s first trial collaterally estops the state from relit-igating the issue in relator’s upcoming trial. Given the conjunctive nature of the three capital murder special issues, our holding necessarily bars the state from again seeking the death penalty in relator’s upcoming capital murder trial. Relator’s second point of error is sustained. This ruling makes it unnecessary to reach relator’s points of error asserting bar under double jeopardy generally and res judicata. The order denying habeas corpus relief is overruled. The writ shall issue.

WRIT GRANTED.

1 . “If the jury returns an affirmative finding on each issue submitted under this article, the court shall sentence the defendant to death. If the jury returns a negative finding on or is unable to answer any issue submitted under this article, the court shall sentence the defendant to confinement in the Texas Department of Corrections for life." TEX.COm CRIM.PROC.ANN. art. 37.071(e) (Vernon Supp.1988).

2 . Writ of habeas corpus is an appropriate remedy to review relator’s double jeopardy claim; the double jeopardy clause, U.S. CONST, amend. V, protects individuals from being tried twice for the same offense, not merely from being twice convicted. Ex parte Robinson, 641 S.W.2d 552, 554 (Tex.Crim.App.1982); Ex parte Rathmell, 717 S.W.2d 33, 34 (Tex.Crim.App.1986).

3 . The double jeopardy clause of the fifth amendment, applicable to the states via the fourteenth amendment, Benton v. Maryland, 395 U.S. 784, 793, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707, 716 (1969), provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb."

4 . The Texas Court of Criminal Appeals ruled that under Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), when a jury’s answer to the continuing threat issue had been set aside due to insufficiency of the evidence, the state could not seek the death penalty upon retrial, Brasfield v. State, 600 S.W.2d 288, 298 (Tex.Crim.App.1980), nor could the penalty be sought in a retrial granted because of trial error in the guilt phase, when the defendant had received a favorable verdict on the continuing threat issue in his first trial. Sanne v. State, 609 S.W.2d 762 (Tex.Crim.App.1980), cert. denied, 452 U.S. 931, 101 S.Ct. 3067, 69 L.Ed.2d 432 (1981).