Donnell Sledge v. the State of Texas ( 2021 )

DISSENT and Opinion Filed August 26, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01398-CR
No. 05-19-01399-CR
No. 05-19-01485-CR
DONNELL SLEDGE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause Nos. F17-56048, F17-56046, F17-56047
DISSENTING OPINION FROM DENIAL OF
EN BANC CONSIDERATION
Opinion by Chief Justice Burns1
These three cases were tried to a jury in July of 2018. The jury convicted
appellant of the charged offenses but found the deadly weapon and prior conviction
allegations to be “not true.” Punishment was assessed by the jury at eleven years’
imprisonment. A week after the jury’s verdict, an “unopposed” motion for new trial
by appellant was granted. Appellant filed notices of appeal and this Court, in cause
numbers 05-19-0085-CR, 05-19-0086-CR, and 05-19-0087-CR, dismissed the
1
Chief Justice Burns requested en banc consideration of this case, but the request was denied by a
majority of the Court.
appeals. That panel opinion noted, “If a trial court grants a motion for new trial, it
restores the case to its position before the former trial. See TEX. R. APP. P. 21.9.”
Following a second trial, a jury again found appellant guilty of the three underlying
offenses, found the deadly weapon allegation “true,” and sentenced him to 28 years’
imprisonment.
The panel opinion as it now stands concludes appellant received ineffective
assistance of counsel. Specifically, the opinion concludes counsel was ineffective
in failing to object to the State’s enhancement allegations at the second trial on the
basis that the doctrine of collateral estoppel or issue preclusion barred these
enhancements because the jury from appellant’s first trial found the allegations “not
true.” While offering no opinion as to the wisdom or propriety of expanding
collateral estoppel rules in this situation, I feel compelled to write separately about
the finding of ineffective assistance of counsel.2
2
An order granting a motion for new trial restores a case to its position before the former trial, and
there is no longer a judgment in place. See TEX. R. APP. P. 21.9(b). Once the judgment in this case was set
aside by the granting of the motion for new trial, the case was returned to a position where there was no
finding of guilt. Brown v. State, No. 05-08-01137-CR, 2010 WL 255959, at *2 (Tex. App.—Dallas Jan.
25, 2010, no pet.).
The opinion in this case in its current form relies heavily on Rollerson v. State for the proposition
that, under the collateral-estoppel component of double jeopardy, the government may not litigate a specific
elemental fact to a competent factfinder, receive an adverse finding, learn from its mistakes, hone its
prosecutorial performance, and relitigate that same question of fact. Rollerson v. State, 227 S.W.3d 718,
730 (Tex. Crim. App. 2007). However, in Rollerson, appellant was convicted of seven felonies related to
three burglaries. Id. at 721. The court of appeals affirmed four of the felony convictions and reversed the
other three for factual insufficiency. Id. The court of appeals also found the evidence legally insufficient
to support any of the deadly-weapon findings, deleted those findings from the four convictions it affirmed,
and declared that the State could not seek a deadly-weapon finding on any of the reversed counts it retried.
Id. Thus, Rollerson addressed the collateral estoppel issue in the context of appellant’s convictions and
determinations made by the court of appeals; Rollerson offers no guidance in the situation in this case where
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To defeat the presumption of reasonable representation, an allegation of
ineffectiveness must be firmly founded in the record and the record must
affirmatively demonstrate the alleged ineffectiveness. Mallett v. State, 65 S.W.3d
59, 63 (Tex. Crim. App. 2001). We will not speculate to find defense counsel
ineffective. Rubio v. State, 596 S.W.3d 410, 426 (Tex. App.—Dallas 2020), pet.
granted). A silent record that provides no explanation for counsel’s actions will not
overcome the strong presumption of reasonable assistance. Rylander v. State, 101
S.W.3d 107, 110–11 (Tex. Crim. App. 2003). Thus, if the record does not contain
the trial court granted a motion for new trial and the case was restored to its position before the former trial.
See id.; TEX. R. APP. P. 21.9(b).
The protection of the Double Jeopardy clause applies only if there has been some event, such as an
acquittal, that terminates the original jeopardy. State v. Vanderbilt, 973 S.W.2d 460, 462 (Tex. App.—
Beaumont 1998, pet. ref’d); see Richardson v. United States, 468 U.S. 317, 325 (1984). There are only
three possible jeopardy-terminating events: (1) an acquittal; (2) a trial court determination of insufficiency
of the evidence leading to a directed verdict of acquittal; and (3) an unreversed determination on direct
appeal that there was insufficient evidence to support the conviction. Vanderbilt, 973 S.W.2d at 462.
When a motion for new trial was granted at the defendant’s request, and the basis was other than
insufficient evidence, double jeopardy considerations do not bar a new trial. Ex parte Queen, 833 S.W.2d
207, 208 (Tex. App.—Houston [1st Dist.] 1992), aff’d, 877 S.W.2d 752 (Tex. Crim. App. 1994). This is
because, after a new trial has been granted on grounds other than insufficient evidence, the “[a]ppellant has
not gained an acquittal or suffered a final conviction” and “[n]either has he been faced with multiple
punishments for the offense with which he is charged.” Id. at 208. “Thus, appellant is not exposed to
double jeopardy in the present case” because, instead, “he is in the same position as if the first trial had not
occurred.” Id. (citing Lofton v. State, 777 S.W.2d 96, 97 (Tex. Crim. App. 1989) ) (by granting motion for
new trial, trial court restores case to position before earlier trial, and “initial jeopardy continues”).
The doctrine of collateral estoppel emanating from the state and federal constitutional double
jeopardy protections is not implicated in cases where double jeopardy is not applicable. Ex parte
Gregerman, 974 S.W.2d 800, 803 (Tex. App.—Houston [14th Dist.] 1998, no pet.); see State v.
Smiley, 943 S.W.2d 156, 158 (Tex. App.—Amarillo 1997, no pet.) (collateral estoppel is subset of
double jeopardy and has no application unless claimant previously placed in jeopardy); Nichols v.
Scott, 69 F.3d 1255, 1269–70 (5th Cir.1995), cert. denied, 518 U.S. 1022 (1996) (no due process
basis, independent of the Double Jeopardy Clause, for the application of collateral estoppel);
Showery v. Samaniego, 814 F.2d 200, 203 (5th Cir.1987) (collateral estoppel applies insofar as it
is necessary to safeguard against the risk of double jeopardy). Because double jeopardy
protections were not implicated in this case, collateral estoppel rules are irrelevant to the Court’s
ineffective assistance of counsel analysis.
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affirmative evidence of trial counsel’s reasoning or strategy, we normally presume
counsel’s performance was not deficient. See Bone v. State, 77 S.W.3d 828, 835
(Tex. Crim. App. 2002). Moreover, “trial counsel should ordinarily be afforded an
opportunity to explain his actions before being denounced as ineffective.” Rylander,
101 S.W.3d at 111.
For these reasons, the record on direct appeal frequently is insufficiently
developed to support a claim of ineffective assistance of counsel. Robinson v. State,
16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000). An ineffective assistance of
counsel claim may be raised without the necessity of a motion for new trial. Id. at
809–13; Rubio, 596 S.W.3d at 422. However, the best way to make a sufficient
record to support such a claim is by a hearing on an application for writ of habeas
corpus or, alternatively, a hearing on a motion for new trial. See Thompson v. State,
9 S.W.3d 808, 814–15 (Tex. Crim. App. 1999). Only when “counsel's
ineffectiveness is so apparent from the record” will an appellant asserting an
ineffective assistance of counsel claim prevail on direct appeal. Freeman v. State,
125 S.W.3d 505, 506–07 (Tex. Crim. App. 2003).
Even when there has been an acquittal, a silent record may not support a
finding of ineffective assistance of counsel. See Broadus v. State, No. 09-19-00438-
CR, 2021 WL 1395565, at *5 (Tex. App.—Beaumont Apr. 14, 2021, pet. ref’d)
(mem. op., not designated for publication). In Broadus, appellant was initially
charged with the murder of “Joseph.” Id. at *3. The evidence showed Joseph was
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shot while driving his vehicle and, after being shot, crossed over to the wrong side
of the road, hitting a vehicle driven by “Pauline.” Id. at *1. Appellant was acquitted
of the murder of Joseph but was thereafter convicted by a jury of the aggravated
assault of Pauline. Id. at *1–3. On appeal, appellant argued his prosecution should
have been barred by collateral estoppel due to his acquittal for the murder of Joseph
or, if that argument was waived by his counsel’s failure to object, then his counsel’s
failure to object constituted ineffective assistance of counsel. Id. at *3–5. The court
determined that, because appellant did not raise a double jeopardy claim at trial, it
was his burden on appeal to prove that the undisputed facts showed a double
jeopardy violation clearly apparent on the face of the record. Id. at *4. The court
concluded a double jeopardy violation was not clearly apparent on the face of the
record and that the record was silent on trial counsel’s reasons for not raising a
double jeopardy or collateral estoppel challenge either in a pretrial motion or during
the trial. Id. at *5. As the court noted, without testimony from trial counsel, the
court must presume counsel had a plausible reason for his actions. Id. (citing Gibbs
v. State, 7 S.W.3d 175, 179 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).
In this case, concluding trial counsel was ineffective in the absence of any
record at all that explains trial counsel’s reasons for defending the case in the manner
she did seems to be a significant error by my esteemed colleagues. There could be
a number of reasons why defense counsel did not raise the issue of collateral estoppel
in retrial. For one, she would have had no way to peer into the future and know or
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guess that a panel of our Court was willing to expand the law surrounding motions
for new trial.
Furthermore, it is necessary to point out that the record is silent as to the
reasons the trial court granted the motion. It does appear that the State did not
contest the granting of the motion for new trial. There was no reporter’s record made
when the motion was granted by the court below. Trial counsel for appellant may
have secured the agreement of the assistant district attorney representing the State to
not contest the motion for new trial if she did not raise a collateral estoppel claim on
retrial. Or, trial counsel may have also agreed not to waive collateral estoppel
regarding the enhancement paragraphs because the State gave notice of appellant’s
numerous prior felony convictions. While it is impossible to discern from the
record, there are discussions by the attorneys prior to and during voir dire that do
suggest that both sides agreed that, at least for the purposes of voir dire, the jury
panel needed to be qualified on a range of punishment that included a finding of two
final felony convictions. On this silent record, I would conclude appellant has not
overcome the strong presumption he received reasonable assistance of counsel. See
Rylander, 101 S.W.3d at 110–11.
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For the reasons discussed above, I dissent from the refusal to consider this
case en banc.
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE
Publish
TEX. R. APP. P. 47.2(b)
191398df.p05
Goldstein, J., joins.
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