State v. Timothy Glen Bodie ( 2018 )

IN THE
TENTH COURT OF APPEALS
No. 10-17-00277-CR
THE STATE OF TEXAS,
Appellant
v.
TIMOTHY GLEN BODIE,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2016-84-C1
MEMORANDUM OPINION
Timothy Glen Bodie was indicted for the offenses of aggravated sexual assault of
a child and indecency with a child by contact. The trial court granted Bodie’s motion to
suppress the testimony of the victim, B.M., and the State appeals. We reverse and
remand.
In the sole issue on appeal, the State argues that the trial court erred in granting
Bodie’s motion to suppress the testimony of B.M. When reviewing a trial court's ruling
on a motion to suppress, we view the evidence in the light most favorable to the trial
court's ruling. State v. Robinson, 334 S.W.3d 776, 778 (Tex.Crim.App.2011); State v. Kelly,
204 S.W.3d 808, 818 (Tex.Crim.App.2006). The trial judge is the sole trier of fact and judge
of the credibility of the witnesses and the weight to be given to their testimony. Wiede v.
State, 214 S.W.3d 17, 24-25 (Tex.Crim.App.2007). Therefore, we give almost total
deference to the trial court's rulings on (1) questions of historical fact, even if the trial
court's determination of those facts was not based on an evaluation of credibility and
demeanor; and (2) application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007). But
when application-of-law-to-fact questions do not turn on the credibility and demeanor of
the witnesses, we review the trial court's ruling on those questions de novo. Hereford v.
State, 339 S.W.3d 111, 118 (Tex.Crim.App.2011); Carmouche v. State, 10 S.W.3d 323, 328
(Tex.Crim.App.2000).
Bodie was charged in a separate case with two counts of aggravated sexual assault
of a child, H.F. At that trial, H.F. testified that on two occasions Bodie, her former step-
father, had sexually assaulted her. During the trial, the trial court held a hearing pursuant
to Article 38.37 of the Texas Code of Criminal Procedure to determine the admissibility
of the testimony of B.M. The trial court allowed B.M. to testify about extraneous offenses
involving Bodie. The jury acquitted Bodie on both counts of aggravated sexual assault
against H.F.
State v. Bodie Page 2
B.M. testified that when she was in second grade, Bodie, her uncle, put his hand
inside of her shorts and fondled her genital area. B.M. reported the incident when she
was in the fourth grade, but Bodie was not charged with an offense. B.M. is now an adult,
and she got a job working for H.F.’s mother. B.M. told H.F.’s mother about the incident
with Bodie after learning she was previously married to Bodie.
After the jury acquitted Bodie on both counts of aggravated sexual assault against
H.F., Bodie was subsequently indicted for aggravated sexual assault of a child and
indecency with a child by contact against B.M. Those charges were based upon the
incident B.M testified about during Bodie’s trial on the previous allegations made by H.F.
Bodie filed “Defendant’s Motion to Dismiss the Indictment, Motion to Suppress the
testimony of [B.M.] and Written Objection and, in the Alternative, Request to Exclude the
Testimony from the Prior Trial and Allegations Made by [H.F.] in Which Defendant has
been Previously Acquitted.” The trial court granted the motion to suppress the testimony
of B.M.
At the hearing on the motion to suppress, Bodie argued that collateral estoppel
prevented the State from introducing B.M.’s testimony. Collateral estoppel is a corollary
of the Fifth Amendment prohibition against double jeopardy made applicable to the
states through the Fourteenth Amendment of the United States Constitution. Ashe v.
Swenson, 397 U.S. 436, 445, 90 S. Ct. 1189, 1195, 25 L. Ed. 2d 469 (1970). Collateral estoppel
"means ... that when an issue of ultimate fact has once been determined by a valid and
State v. Bodie Page 3
final judgment, that issue cannot again be litigated between the same parties in any future
lawsuit." Ashe v. Swenson, 397 U.S. at 443, 90 S.Ct. at 1194. To determine whether
collateral estoppel bars a subsequent prosecution, a reviewing court must ascertain (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.
Ex parte Taylor, 101 S.W.3d 434, 441 (Tex.Crim.App.2002); McNeil v. State, 398 S.W.3d 747,
753(Tex. App. -- Houston [1 Dist.] 2011, pet. ref’d).
To determine whether a fact was necessarily decided in a prior proceeding,
reviewing courts must determine whether specific facts were decided by the jury and if
so, how broad the scope of the jury's findings were in terms of time, space, and content.
Ex parte Watkins, 73 S.W.3d 264, 268 (Tex.Crim.App.2002); McNeil v. State, 398 S.W.3d at
754. The mere possibility that a fact may have been determined in a former trial is
insufficient to bar relitigation of that same fact in a second trial. Ex parte Watkins, 73
S.W.3d at 268; McNeil v. State, 398 S.W.3d at 754. A reviewing court must examine the
entire trial record, including the pleadings, the evidence, the charge, and the arguments
of counsel "to determine 'with realism and rationality' precisely which facts the jury
necessarily decided and whether the scope of its findings regarding specific historical
facts bars relitigation of those same facts in a second criminal trial." Ex parte Watkins, 73
S.W.3d at 268; McNeil v. State, 398 S.W.3d at 754.
State v. Bodie Page 4
At the first trial, the trial court held a hearing outside the presence of the jury
pursuant to Article 38.37 of the Texas Code of Criminal Procedure. Article 38.37 § 2 of
the Texas Code of Criminal Procedure provides:
(b) Notwithstanding Rules 404 and 405, Texas Rules of Evidence,
and subject to Section 2-a, evidence that the defendant has committed a
separate offense described by Subsection (a)(1) or (2) may be admitted in
the trial of an alleged offense described by Subsection (a)(1) or (2) for any
bearing the evidence has on relevant matters, including the character of the
defendant and acts performed in conformity with the character of the
defendant.
Sec. 2-a. Before evidence described by Section 2 may be introduced,
the trial judge must:
(1) determine that the evidence likely to be admitted at trial will be
adequate to support a finding by the jury that the defendant committed the
separate offense beyond a reasonable doubt; and
(2) conduct a hearing out of the presence of the jury for that purpose.
TEX. CODE CRIM. PROC. ANN. § 38.37 (West Supp. 2017). The trial court found “sufficient
evidence that if the jury chose to believe [the testimony of B.M] they could do so beyond
a reasonable doubt.” See TEX. CODE CRIM. PROC. ANN. § 38.37 § 2a (West Supp. 2017). The
trial court then allowed B.M.’s testimony before the jury.
At the first trial, the jury was instructed:
The State has introduced evidence that the Defendant committed
extraneous crimes or bad acts other than the ones for which he has been
indicted. You’re instructed that you may not consider this evidence for any
purpose at all unless you believe beyond a reasonable doubt that the
Defendant committed an act, if any were committed. Even then you may
only consider the same in determining the state of mind of the Defendant,
State v. Bodie Page 5
character of the Defendant, or acts performed in conformity with the
character of the Defendant.
Bodie argued at the hearing on the motion to suppress that he had already been
found not guilty of the factual allegations where the State made the issue of B.M.’s
testimony an ultimate issue of fact that the jury was charged with determining beyond a
reasonable doubt. Bodie contends that the State argued to the jury that in order to acquit
Bodie, they would have to disbelieve the testimony of B.M. At the suppression hearing,
the trial court stated:
38.27, you know, under Section 2(b) is a powerful weapon for the State, and
it’s used – has been used and will continue to be used to devastating affect
(sic)… the State did rely, and that was the whole purpose of bringing in the
extraneous offense to begin with, was to influence the jury and try to get a
conviction on the case that was being tried. And I think the defense has a
point. When you look at this from a totality of the circumstances, the
reliance that the State placed on the extraneous conduct, the burden of proof
they had to establish, I mean, the State was basically trying to kill two birds
with one stone.
…
In looking at the totality of this case and the confluence of all the little
tributaries that gave rise to it, I am finding that collateral estoppel applies
and that the testimony of the complaining witness in this case will not be
allowed.
The issue before us is whether the jury in the first trial necessarily decided whether
Bodie committed the offenses of aggravated sexual assault and indecency with a child
against B.M. We find that the jury did not decide whether Bodie committed the offenses
against B.M. Article 38.37 allowed the trial court to admit extraneous offense “for any
bearing the evidence has on relevant matters, including the character of the defendant
State v. Bodie Page 6
and acts performed in conformity with the character of the defendant.” The jury was
instructed to consider the evidence only if they believed beyond a reasonable doubt that
Bodie committed the act. However, there is nothing in the record to indicate that the jury
reached or ultimately decided whether Bodie committed the offenses against B.M.
Although the State may have argued to the jury that their verdict was an indication of
whether they believed both H.F. and B.M., the jury was only asked to render a verdict on
whether Bodie committed the offenses against H.F. Contrary to any argument otherwise,
the jury could have acquitted Bodie on the charges against H.F. without considering the
offenses against B.M.
On the record before us, we find that the jury in Bodie’s trial for the offenses
committed against H.F. did not necessarily decide whether Bodie committed the offenses
against B.M. and collateral estoppel does not prohibit the State from introducing B.M.’s
testimony at the subsequent trial. The trial court erred in suppressing the testimony of
B.M. We sustain the State’s sole issue on appeal.
We reverse the trial court’s judgment and remand this cause for further
proceedings consistent with this opinion.
AL SCOGGINS
Justice
State v. Bodie Page 7
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Reverse and remand
Opinion delivered and filed March 28, 2018
Do not publish
[CR25]
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