Guadalupe De Leon Acuna v. State ( 2015 )

ACCEPTED
13-13-00633-CR
FILED THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS
9/3/2015 5:12:04 PM
CORPUS CHRISTI Dorian E. Ramirez
CLERK
9/3/15
DORIAN E. RAMIREZ, CLERK NO. 13-13-0633-CR
BY DTello
RECEIVED IN
13th COURT OF APPEALS
In the CORPUS
Thirteenth Court of CHRISTI/EDINBURG, TEXAS
Appeals
9/3/2015 5:12:04 PM
Edinburg, Texas
DORIAN E. RAMIREZ
Clerk
GUADALUPE DELEON ACUNA
Appellant
v.
State of Texas
Appellee
On Appeal from Cause Number CR-4071-11-H
389TH Judicial District Court of Hidalgo County, Texas
Hon. Jaime Garza Presiding
AMENDED APPELLANT’S BRIEF
NO ORAL ARGUMENT REQUESTED O. RENE FLORES
State Bar Number 24012637
O. Rene Flores, P.C.
1308 S. 10th Avenue
Edinburg, Texas 78539
(956) 383-9090 Telephone
(956) 383-9050 Facsimile
Counsel for Appellant
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IDENTITY OF PARTIES AND COUNSEL
Appellant Appellate Counsel
Guadalupe DeLeon Acuna Oscar Rene Flores
O. Rene Flores, P.C.
1308 S. 10th Avenue
Edinburg, Texas 78539
(956) 383-9090 Tel.
(956) 383-9050 Fax
Trial Counsel
Rogelio Garza
310 West University
McAllen, Texas 78539
(956) 316-1375 Tel.
And
Abiel Flores
10213 N. 10th Street
McAllen, Texas 78504
(956) 386-0642 Tel.
Appellee Trial Counsel
State of Texas Hope Davis Palacios
Hidalgo County DA
Asst. Crim. D.A.
100 N. Closner
Edinburg, Texas 78539
(956) 318-2300 Tel.
(956) 318-2301 Fax
Appellate Counsel
Theodore “Ted” Hake
Hidalgo County DA
Appellate Division
100 N. Closner
Edinburg, Texas 78539
(956) 318-2300 Tel.
(956) 318-2301 Fax
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL……………………………………………………………2
TABLE OF CONTENTS…………………………………………………………………………………………………3
INDEX OF AUTHORITIES…………………………………………………………………………………………4
NOTE RGARDING CITATION…………………………………………………………………………………10
STATEMENT OF THE CASE……………………………………………………………………………………12
STATEMENT REGARDING ORAL ARGUMENT……………………………………………………13
ISSUES PRESENTED…………………………………………………………………………………………………14
STATEMENT OF FACTS……………………………………………………………………………………………14
SUMMARY OF THE ARGUMENT………………………………………………………………………………17
ARGUMENT………………………………………………………………………………………………………………………18
Issue One……………………………………………………………………………………………………………………18
Issue Two……………………………………………………………………………………………………………………19
Issue Three………………………………………………………………………………………………………………19
CONCLUSION………………………………………………………………………………………………………………119
PRAYER…………………………………………………………………………………………………………………………124
CERTIFICATE OF SERVICE………………………………………………………………………………125
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INDEX OF AUTHORITIES
CASES
 Abbate v. United States, 359 U.S. 187 (1959)…………………44
 Abney v. U.S., 431 U.S. 651, 660-62 (1977)………………………21
 Ashe v. Swenson, 397 U.S. 436, 445 n. 10 (1970)……………
………………………………………………………………………………………23, 27, 28, 29,30, 52
 Bartkus v. Illinois, 359 U.S. 121 (1959)……………………………44
 Blockburger v. United States, 284 U.S. 299, 304
(1932)……………………………………………………………………………………………………………19, 39
 Brown v. Ohio, 432 U.S. 161 (1977)……………………………………38,39
 Crist v. Bretz, 437 U.S. 28,29 (1978)…………………………20, 48
 Ex Parte Lange, 85 U.S. 163, 168-169 (1873)……………………20
 Flittie v. Solem, 775 F.2d 933 (8th Cir. 1985), cert.
denied, 475 U.S. 1025 (1986)………………………………………37, 39, 43
 Green v. United States, 355 U.S. 184, 187-88 (1957)
…………………………………………………………………………………………………………38, 43,47, 51
 Harris v. Washington, 404 U.S. 55 (1971)……………………………35
 Heath v. Alabama, 474 U.S. 82 (1985)………………………………………44
 Hicks v. Unied States, 108 S. Ct. 95 (1987)………………………36
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 Hoag v. New Jersey, 356 U.S. 464 (1958)………………………………27
 Iannelli v. United States, 420 U.S. 770 (1975)……………39
 Illinois v. Vitale, 447 U.S. 410
(1980)………………………………………………………………………………39, 40, 41, 42,46
 Illinois v. Somerville, 410 U.S. 458, 463
(1973)………………………………………………………………………………………………………………………50
 People v. Goodman, 69 N.Y.2d 32, 36-44, 503 N.E.2d35
996, 999-1003, 511 N.Y.S.2d 565, 568-72 (1986)……………37
 Pinkerton v. United States, 328 U.S. 640, 66 S. Ct.
1180, 90 L. Ed. 1489…………………………………………………………………………………57
 Riley v. State, 181 Ga. App. 667, 353 S.E.2d 598
(1987)………………………………………………………………………………………………………………………36
 Sanabria v. United States, 437 U.S. 54, 64 (1978)……50
 Sealfon v. United States, 332 U.S. 575, 579, 68 S.
Ct. 237, 92 L. Ed. 180 (1947)………………………………25, 26,50,77
 Simpson v. Florida, 403 U.S. 384 (1971)………………………………35
 Standefer v. United States, 447 U.S. 10 (1980)……………35
 The Evergreens v. Nunan, 141 F.2d 927 (2d Cir. 1944)
cert. denied, 323 U.S. 720 (1944)……………………………………………37
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 Turner v. Arkansas, 407 U.S. 366 (1972)………………………………35
 United States v. Adams, 281 U.S. 202 (1930)……………………25
 United States v. Addington, 471 F.2d 560, 566 (10th
Cir. 1973)……………………………………………………………………………………………………………44
 United States v. Crispino, 586 F. Supp. 1525 (D.N.J.
1984)…………………………………………………………………………………………57, 58, 59,60
 United States v. Day, 591 F.2d 861 (D.C. Cir.
1978)…………………………………………………………………………………………………………………………36
 United States v. Deerman, 837 F.2d 684, 690 (5th
Cir.1988)………………………………………………………………………………………………………………20
 United States v. Gentile, 816 F.2d 1157 (7th Cir.
1987)…………………………………………………………………………………………………………………………37
 United States v. Gornto, 792 F.2d 1028 (11th Cir.
1986)3………………………………………………………………………………………………………………………36
 United States v. Johnson, 697 F.2d 735 (6th Cir.
1983), cert. denied sub nom. …………………………………………………………36
 United States v. Keller, 624 F.2d 1154 (3d Cir. 1980)
………………………………………………………………………………………………………………………………………36
 United States v. Kills Plenty, 466 F.2d 240 (8th Cir.
1972), cert. denied, 410 U.S. 916 (1973)
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………………………………………………………………………………………………………43, 44, 45,46
 United States v. Larkin, 605 F.2d 1360, 1361 (5th Cir.
1979), cert. denied, 446 U.S. 939 (1980)……………………………25
 United States v. Levy, 803 F.2d 1390, 1397 (5th Cir.
1986)…………………………………………………………………………………………………………………………39
 United States v. Mespoulede, 597 F.2d 329 (2d Cir.
1979)…………………………………………………………………………………………………………………36,37
 United States v. Mock, 640 F.2d 629 (5th Cir.
1981)…………………………………………………………………………………………………………………………59
 United States v. Mock,604 F.2d 341 (5th Cir.
1979)…………………………………………………………………………………………………………………………58
 United States v. One Assortment of 89 Firearms, 465
U.S. 354 (1984) ……………………………………………………………………………………………36
 United States v. Oppenheimer, 242 U.S.85
(1916)………………………………………………………………………………………………………………………25
 United States v. Scott, 437 U.S. 82 (1978)……………50, 51
 United States v. Sutton, 732 F.2d 1483 (10th Cir.
1984)…………………………………………………………………………………………………………………………37
 United States v. Van Cleave, 599 F.2d 954 (10th Cir.
1979)…………………………………………………………………………………………………………………………37
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 United States v. Watts, 519 U.S. 148, 117 S. Ct.633,
136 L. Ed. 2d 554 (1991)……………………………………………………………………………77
 United States v. Wheeler, 435 U.S. 313, 328 (1978)…43
 Wingate v. Wainwright, 464 F.2d 209 (5th Cir.
1972)…………………………………………………………………………………………………………………………36
 Yawn v. United States, 244 F.2d 235 (5th Cir.
1957)…………………………………………………………………………………………………………………………54
 Yates v. United States, 354 U.S. 298 (1957)……………………37
STATUTES
 Texas Rules of Appellate Procedure 43 (O’Connor’s
Texas Criminal Codes Plus (2014-2015)
 TEX. Penal. Code Ann. Section 15.02 O’Connor’s Texas
Criminal Codes Plus (2010-2011)
 TEX. Penal. Code Ann. Section 19.02 (O’Connor’s Texas
Criminal Codes Plus (2010-2011)
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Secondary Sources
 Black’s Law Dictionary 6th Edition………………………………………………78
 W. LAFAVE & J. ISRAEL, CRIMINAL PROCEDURE § 17.4
(1985)………………………………………………………………………………………………………………………27
 Lugar, Criminal Law, Double Jeopardy and Res
Judicata, 39 IOWA L. REV. 317 (1954)………………………………………27
 Mayers & Yarbrough, Bis Vexari: New Trials and
Successive Prosecutions, 74 HARV. L. REV. 1
(1960)………………………………………………………………………………………………………………………27
 Comment, Twice in Jeopardy, 75 YALE L.J. 262
(1965)………………………………………………………………………………………………………………27,29
 Note, The Double Jeopardy Clause as a Bar to
Reintroducing Evidence, 89 YALE L.J. 962 (1980)…………27
 Case Comment, The Use of Nonmutual Collateral
Estoppel by Criminal Defendants: United States v.
Standefer, 93 HARV. L. REV. 804 (1980)…………………………………35
 Vestal, Issue Preclusion and Criminal Prosecutions,
65 IOWA L. REV. 281 (1980)…………………………………………………………………36
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 Note, Evidentiary Use of Prior Acquitted Crimes: The
“Relative Burdens of Proof” Rationale, 64 WASH.
U.L.Q. 189 (1986)……………………………………………………………………………………….37
 E. Imwinkelried, Uncharged Misconduct Evidence §
10.06 at 12 (1984)…………………………………………………………………………………….37
 Note, Collateral Estoppel Effect of Prior Acquittals:
United States v. Mespoulede, 46 BROOKLYN L. REV. 781
(1980)………………………………………………………………………………………………………………………37
 Note, Perjury by Defendants: the Uses of Double
Jeopardy and Collateral Estoppel, 74 HARV. L. REV.
752, 758-59 (1961)………………………………………………………………………………………37
 Model Rules Of Professional Conduct Rule 3.8(A)
………………………………………………………………………………………………………………………………………55
 Thomas, The Prohibition of Successive Prosecutions
for the Same Offense: In Search of a Definition, 71
IOWA L. REV. 323 (1986)Comment, supra note
12…………………………………………………………………………………………………………………………………39
 Westen & Drubel, Toward a General Theory of Double
Jeopardy, 1978 SUP. CT. REV. 81 (1979)…………………………………50
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CONSTITUTUIONAL PROVISIONS
 Fifth Amendment to the Constitution of the United
States of America ……………………………………………………18, 34, 35,122
 Fourteenth Amendment to the Constitution of the
United States of America…………………………………………………………19, 122
Note regarding citation
This appeal involves a double jeopardy challenge
and as such required the undersigned to review the
record on appeal in this case but also required review
of the record from the previous trial ending in
acquittal. As such, throughout this brief, counsel
refers to both at different times. In an effort to
assist this Honorable Court, the following citations
are explained for easier reference throughout:
For the Clerk’s Record in Trial Court Cause number
CR-2725-10-H, counsel cites for example 1CR@_, whereas
reference to the second trial – the instant case – will
be cited for example as 2CR@_.
In addition, any reference to the Reporter’s Record
from the first trial will be cited for example as
11 | P a g e
1RR_@_, whereas any reference to the Reporter’s Record
in the second trial – this case - will be cited for
example as “2RR_@_.”
12 | P a g e
TO THE HONORABLE JUSTICES OF THE THIRTEENTH COURT OF
APPEALS:
Appellant, Guadalupe DeLeon Acuna, files this brief
requesting reversal of the trial court’s judgment,
rendering a judgment of acquittal on Count One.1
Appellant Acuna respectfully shows:
STATEMENT OF THE CASE
A. Course of Proceedings/Disposition in the Court
Below.
This was a criminal case brought pursuant to
Indictment in Hidalgo County Texas accusing Guadalupe
Acuna (hereinafter referred to as Appellant Acuna) of
Conspiracy to Commit Murder in trial court cause number
CR-4760-11-H.
Prior to the instant prosecution, Appellant Acuna
was indicted for the offense of murder and acquitted in
Cause Number CR-2725-10-H. That case was tried to a
jury and Appellant Acuna was acquitted.2
Then Appellant Acuna was indicted by a Hidalgo
1
Count Two was dismissed by the State - (First Trial Clerk's Transcript)
1CR@204, 205
2
(First Trial Clerk's Transcript) 1CR@206
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County Grand Jury for the offense of Conspiracy to
Commit Murder in Trial Court Cause Number CR-4071-11-H.3
This case was tried to a jury which convicted Appellant
Acuna and sentenced her to imprisonment in the
Institutional Division of the Texas Department of
Corrections for a period of twenty (20) years. This
appeal ensued.4
STATEMENT REGARDING ORAL ARGUMENT
Appellant Acuna is not requesting Oral Argument at this
time.
3
1CR@3-4; This new indictment was based on the same criminal episode as that
relied upon in the previous case, trial court cause number CR-2725-10-H,
where Appellant Acuna was acquitted; 1CR@8, 200
4
See TRAP 43; TEX. Penal. Code Ann. Section 15.02 & 19.02; CR@3, 304
14 | P a g e
ISSUES PRESENTED
ISSUE ONE:
Appellant Acuna’s acquittal on the murder charge in
Cause number CR-2725-10-H bars a subsequent trial on a
charge of Conspiracy to Commit Murder - the same
murder.
ISSUE TWO:
The trial court erred in denying defendant’s Special
Plea of Double Jeopardy.5
ISSUE THREE:
The doctrine of collateral estoppel bars the re-
introduction of evidence previously admitted against
Appellant Acuna where Appellant Acuna was acquitted of
the same murder.6
STATEMENT OF FACTS
Appellant Acuna submits the following facts
pertinent to the issues on appeal. In trial Court
Cause Number CR-2725-10-H, Appellant Acuna was indicted
for the offense of Murder.7 The facts at trial were as
5
2CR@345, 327
6
2CR@199; RR2@4-14
7
1CR@8-9
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follows. On July 3, 2010, at the Donna Lakes in Donna,
Texas, Jose Guadalupe Fiscal was murdered. He was
stabbed approximately 45 times and his body was burned
as was his vehicle.8 The investigation identified
Antonio DeLeon and Juan Manuel Salazar as the “actual
killers.” They stabbed Fiscal; they burned his body.9
The investigation identified Appellant Acuna as
DeLeon’s mother and Salazar’s sister-in-law. They
lived in Donna, Texas together with the victim,
Fiscal.10
Fiscal, upon reconciling with his wife, Alma
Fiscal, was attempting to break up with Appellant
Acuna, who he’d been seeing and living with for some
time.11 The State alleged at trial that Appellant
Acuna, in a fit of jealous rage, orchestrated a plan to
kill Fiscal.12 She was accused of “asking DeLeon and
Salazar to kill Fiscal.” It was the State’s theory
that Appellant Acuna wanted Fiscal dead and that she
8
2RR7@24-25; 1RR5@22-24
9
1RR3@41-42; 1RR4@53; 2RR7@110
10
2RR7@94-96; 1RR4@47
11
1RR5@160-161, 185; 2RR9@104
12
1RR2@98,128
16 | P a g e
was “criminally responsible” for acts committed by
DeLeon and Salazar and the actual killing. According
to the State, she was the one who “asked” Fiscal to
take a drive to the crime scene; she was the one who
“asked” DeLeon and Salazar to kill Fiscal.13 These
facts came out during a trial in the 389th District
Court in trial court cause number CR-2725-10-H, where
the jury, after deliberating on the Law of Parties,
acquitted Appellant Acuna of Murder in April of 2011.14
Then in September of 2011, Appellant Acuna was
indicted for “Conspiracy to Commit Murder.” She once
again was charged with the murder of Jose Guadalupe
Fiscal, only this time charged with conspiracy to
commit the same murder.15 The defense entered a Special
Plea in Bar claiming Appellant Acuna was being twice
placed in jeopardy for the same offense citing the
acquittal in CR-2725-10-H. That Special Plea was denied
13
The first jury was asked to find that Appellant Acuna “asked” the victim to
drive to the crime scene, whereas the second jury was asked to find that
Appellant Acuna “lured Jose Guadalupe Fiscal to the location where he was
killed.” 1CR@196; 2CR@82
14
1CR@200
15
2CR@3-4
17 | P a g e
and Appellant Acuna was forced to run the gauntlet
again.16
At trial, the State presented the same theory,
witnesses and evidence as was presented to the first
jury. Here, Appellant Acuna was accused of “performing
over acts in furtherance of the conspiracy” to commit
the murder by “luring” Fiscal to the place where was to
be killed; She was accused of “directing” DeLeon and
Salazar to kill Fiscal. This time, the jury convicted
Appellant Acuna of Conspiracy to Commit Murder and the
jury assessed punishment at imprisonment in the
Institutional Division of the Texas Department of
Corrections for a period of Twenty (20) years and a fin
e of $10,000.17
SUMMARY OF THE ARGUMENT
Appellant Acuna was twice put in jeopardy for the
“same offense” in violation of her rights under the
Fifth Amendment and the Due Process Clause of the
16
2CR@327,345
17
2CR@87, 94
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Fourteenth Amendment to the Constitution of the United
States of America.
The Double-Jeopardy Clause does not necessarily bar
subsequent prosecution for acts that can be proven and
punished under different statutory provisions requiring
proof of different elements.18
However, Collateral Estoppel guarantees “when an
issue of ultimate fact has once been determined by a
valid and final judgment, the issue cannot again be
litigated between the same parties in any future
lawsuit.
Collateral estoppel affects successive criminal
prosecutions in two ways. First, it completely bars
subsequent prosecution if a fact necessarily determined
in the former trial is an essential element of the
subsequent prosecution.19 Second, where subsequent
prosecution is allowed to proceed, collateral estoppel
bars introduction or argumentation of facts necessarily
18
Blockburger v. United States, 284 U.S. 299, 304 (1932).
19
The first jury was instructed to deliberate on the Law of Parties; the
second trial requires the element of an "agreement.”
19 | P a g e
decided in the prior proceeding.20 In this appeal, both
applications of collateral estoppel are at issue.21
ARGUMENT AND AUTHORITIES
ISSUE NUMBER ONE (Re-stated)
Appellant Acuna’s acquittal on the murder charge in
Cause number CR-2710-10-H bars a subsequent trial on a
charge of conspiracy to commit the same murder.
ISSUE NUMBER TWO (Re-stated)
The trial court erred in denying defendant’s motion to
dismiss indictment on double jeopardy grounds.
ISSUE NUMBER THREE (Re-stated)
The doctrine of collateral estoppel bars the re-
introduction of evidence previously admitted against
Appellant Acuna where Appellant Acuna was acquitted of
the same murder.
Appellant Acuna respectfully asks this Court to
consider Issues 1, 2 and 3 together. Appellant Acuna
submits the following Argument and Authorities in
support of her argument for all three.
The Double Jeopardy Clause protects a defendant
20
See i.e. United States v. Deerman, 837 F.2d 684, 690 (5th Cir. 1988)
21
The Double Jeopardy Clause bars a second prosecution for the same offense
once jeopardy attaches. Ex Parte Lange, 85 U.S. 163, 168-169 (1873). Since
the case in Cause No. CR-2725-10-H was actually litigated to a verdict of
acquittal, jeopardy attached. Crist v. Bretz, 437 U.S. 28,29 (1978).
20 | P a g e
from the risk of being punished twice for the same
offense.22 In this case the jury found Appellant Acuna
guilty based entirely on the conduct for which she was
already tried and acquitted.23 In the Application
paragraph of the Jury Charge from the first trial, the
jury was instructed:
Now, if you find from the evidence beyond a
reasonable doubt that on or about JULY 3, 2010, in
Hidalgo County, Texas, Juan Manuel Salazar or
Antonio DeLeon, did then and there intentionally or
knowingly cause the death of an individual, namely,
Jose Guadalupe Fiscal, by stabbing him with a
deadly weapon, to wit: a knife, and that the
Defendant, GUADALUPE DE LEON ACUNA, acted with
intent to promote or assist the commission of the
offense by Juan Manuel Salazar or Antonio DeLeon by
encouraging, directing, aiding, or attempting to
aid Juan Manuel Salazar or Antonio DeLeon to commit
22
Abney v. U.S., 431 U.S. 651, 660-62 (1977).
23
2CR@199, 341, 345; The facts, evidence and theory of prosecution of the
instant for Conspiracy to Commit Murder are the same facts, evidence and
theory used by the prosecution in the first trial. The first jury was
instructed to consider the principles of the Law of Parties and in doing so
found in Appellant Acuna’s favor as evidenced by their verdict of not guilty.
1CR@195-196, 206
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the offense of MURDER, by asking Jose Guadalupe
Fiscal to drive to the crime scene,24 or by texting
Juan Manuel Salazar to give notice that she and
Jose Guadalupe Fiscal were on their way to the
crime scene,25 or by texting Antonio DeLeon that she
wanted Jose Guadalupe Fiscal six feet under, or by
texting Antonio DeLeon that she wanted Jose
Guadalupe Fiscal down so so bad, or by asking Juan
Manuel Salazar or Antonio DeLeon to kill Jose
Guadalupe Fiscal,26 then you will find the Defendant
"Guilty" of the offense of MURDER as charged in the
indictment.
Unless you so find beyond a reasonable doubt,
or if you have a reasonable doubt thereof, you will
acquit the Defendant and say by your verdict, "Not
24
The first jury was asked to find that Appellant Acuna “asked” the victim to
drive to the crime scene, whereas the second jury was asked to find that
Appellant Acuna “lured Jose Guadalupe Fiscal to the location where he was
killed.” 1CR@196; 2CR@82
25
Note in the first trial, the jury was asked to find that Appellant Acuna
“gave notice” to Juan Manuel Salazar that she and the victim were on the way
to the crime scene, whereas the second jury charge was asked to find beyond a
reasonable doubt that Appellant Acuna “notified” Juan Manuel Salazar that she
and the victim were traveling to the location where he was to be killed.”
1CR@196; 2CR@82-83
26
Note in the first trial, the jury was asked to find that Appellant Acuna
“asked” Juan Manuel Salazar or Antonio DeLeon to kill the victim, whereas the
second jury was asked to find beyond a reasonable doubt that Appellant Acuna
“dircetd or told” Juan Manuel Salazar or Antonio DeLeon to kill the victim.”
1CR@196; 2CR@83
22 | P a g e
Guilty."27
Reviewing the indictment in the instant case,
Appellant Acuna is charged with “conspiracy” where
specifically, she’s indicted for having an intent that
a murder be committed and entering into an agreement
with Antonio DeLeon and Juan Manuel Salazar that they
commit the murder. The State’s theory in this case was
Appellant Acuna’s “overt acts” in furtherance of the
conspiracy were that 1) she lured Jose Guadalupe Fiscal
to the location where he was killed; 2) that she
notified Salazar that she and the victim were on the
way to the location where the victim was to be killed;
3) that she directed or told Juan Manuel Salazar to
kill Fiscal; 4) that she directed or told Antonio
DeLeon to kill Fiscal.28
As stated by the United States Supreme Court in
Ashe v. Swenson:
“In more recent times with the advent of
specificity in draftsmanship and the extraordinary
27
1CR@195, 196, 200; 2CR@82-83, 87
28
2CR@3-4; See also 1CR@196 (the jury charge from the first trial where the
jury was instructed to consider these exact ultimate facts.)
23 | P a g e
proliferation of overlapping and related statutory
offenses, it became possible for prosecutors to
spin out a startling numerous series of offenses
from a single alleged criminal transaction.“29
Based on the facts and the law, Appellant Acuna
prays this Court find that the State of Texas by and
through its District Attorney of Hidalgo County should
have been barred from trying Appellant for the offense
of “Conspiracy to Commit Murder” after her acquittal
for the offense of the same Murder. Accordingly,
Appellant Acuna avers this case should result in a
judgment of acquittal as it violated Appellant Acuna’s
rights against double jeopardy, collateral estoppel and
issue preclusion.
“Cases involving the arcane principles of double
jeopardy and collateral estoppel are not
susceptible of bright-letter law or black-letter
law; these areas are most often gray, and dimly to
be seen. Needless to say, one entering this field
29
397 U.S. 436, 445 n. 10 (1970)
24 | P a g e
must do so with trepidation.”30
A. Collateral Estoppel in Criminal Cases
The Supreme Court first applied “collateral
estoppel” to a criminal proceeding in United States v.
Oppenheimer.31 The claim there was not based on a prior
acquittal, but rather on a pre-trial legal ruling
favorable to the defendant.32 Subsequently, in United
States v. Adams33 and Sealfon v. United States,34 the
Court recognized that collateral estoppel could apply
30
United States v. Larkin, 605 F.2d 1360, 1361 (5th Cir. 1979), cert. denied,
446 U.S. 939 (1980)
31
242 U.S.85 (1916)
32
Id. at 86 The defendant in Oppenheimer obtained a ruling that his
prosecution for violating the Federal Bankruptcy Act was barred by the Act’s
statute of limitations. After the statute of limitations ruling was held to
be wrong in an unrelated case, the government again filed charges against the
defendant. In response, the defendant invoked the prior determination that
his prosecution was barred by the statute of limitations as a defense to the
subsequent prosecution. The Court explained that because the defendant had
never been in “jeopardy” on the charges, the double jeopardy clause did not
protect him from the subsequent prosecution. Id at 87. At any rate, the Court
stated that “it cannot be that the safeguards of the person, so often and so
rightly mentioned with solemn reverence, are less than those that protect
from a liability in debt.” While the Court ultimately held that the second
prosecution was barred, it did not base its decision on constitutional
considerations. Rather, the Court based its decision on the notion that “a
plea of the statute of limitations is a plea to the merits” (citation
omitted), and stated:
The safeguard provided by the Constitution against the gravest abuses
has tended to give the impression that when it did not apply in terms,
there was no other principle that could. But the fifth amendment was
not intended to do away with what in the civil law is a fundamental
principle of justice (citation omitted), in order, when a man once has
been acquitted on the merits, to enable the government to prosecute him
a second time. Id at 88
33
281 U.S. 202 (1930)
34
332 U.S. 575 (1948)
25 | P a g e
to bar prosecution after acquittal on related charges.
In Adams, the Court held that the collateral estoppel
doctrine did not bar the second prosecution because the
acquittal was ambiguous.35 In Sealfon, the Court held
that the defendant’s acquittal on conspiracy charges
barred prosecution for aiding and abetting his alleged
co-conspirator in perpetrating the substantive
offense.36 The Court acknowledged that the two crimes
were not “the same offense within the meaning of the
double jeopardy clause,” so basic double jeopardy
protection did not prevent the defendant from being
prosecuted and punished for both. Nevertheless, the
Court barred the second prosecution on the basis of the
collateral estoppel doctrine.37
35
Adams, 281 U.S. at 204. The defendant was being prosecuted for making a
false entry in a report on the defendant’s bank. Id. at 203. The Court found
that the defendant’s prior acquittal on false entry charges relating to
conduct that had occurred earlier in the course of the same allegedly
fraudulent transaction was not broad enough to foreclose the later
prosecution. Id. at 205. The Court concluded that the acquittal could reflect
the jury’s determination that, although the entries were false, the defendant
believed them to be true or justified. Id. The Court also concluded that,
despite such a determination by the acquitting jury, another jury could
conclude that the defendant had “acquired more accurate knowledge” before he
made the later report, which was the subject of the second prosecution. Id.
36
Sealfon, 332 @580
37
Id. at 578-80. The defendant in Sealfon had concededly written a letter
which furthered the goals of the alleged conspiracy. Id. at 576. The Court
noted that acquittal on the conspiracy charges could only reflect a decision
26 | P a g e
None of the early collateral estoppel decisions
were decided on constitutional grounds.38 Because the
Court had previously applied the double jeopardy clause
only to protect against re-prosecution for the same
offense, and the courts had not yet construed “same
offense” broadly enough, commentators noted the need to
supplement double jeopardy protection.39
The Supreme Court provided that additional
that the defendant “did not do so pursuant to an agreement with [the alleged
coconspirator] Greenberg to defraud.” Id. at 580. Yet, the government’s only
theory in the second trial was that the defendant had written the letter
pursuant to an agreement with Greenberg and had thereby aided and abetted him
to defraud the government. The Court therefore held that once the first jury
had refused to find such an agreement, collateral estoppel barred the
government from a second attempt to establish an agreement between the
defendant and Greenberg. With no alternate theory on which to proceed, the
government was barred from conducting the second prosecution.
38
See Hoag v. New Jersey, 356 U.S. 464 (1958) overruled by Ashe v. Swenson,
397 U.S. 436 (1970). In Hoag the Court rejected a claim for constitutional
protection. The Court approached the question as one of fundamental fairness.
The Court stated “[d]espite its wide employment, we entertain grave doubts
whether collateral estoppel can be regarded as a constitutional requirement.
Certainly this Court has never so held.” Id. at 471. See also W. LAFAVE & J.
ISRAEL, CRIMINAL PROCEDURE § 17.4 (1985)
39
See e.g., Lugar, Criminal Law, Double Jeopardy and Res Judicata, 39 IOWA L.
REV. 317 (1954) (discussing inadequacy of “same transaction” test); Mayers &
Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 HARV. L.
REV. 1 (1960) (discussing problems with defining offense) [hereinafter
Mayers]; Comment, Twice in Jeopardy, 75 YALE L.J. 262 (1965) (discussing
problems in determining what constitutes “same offense”); see also Note, The
Double Jeopardy Clause as a Bar to Reintroducing Evidence, 89 YALE L.J. 962
(1980) (discussing the inadequacy of the “same offense” test and collateral
estoppel).
27 | P a g e
protection in Ashe v. Swenson.40 In Ashe, the Supreme
Court held collateral estoppel constitutes an aspect of
double jeopardy protection and, therefore, is binding
on the states.41
There, Ashe was not prosecuted twice for the “same
offense” as defined by the Court, but the circumstances
of his re-prosecution after acquittal illustrated the
potential for prosecutorial abuse and circumvention of
double jeopardy protection.42
So, the Ashe Court confronted the need for
additional protection to further the overall purpose of
the double jeopardy clause. In Ashe, six participants
in a poker game were robbed by three or four masked
gunmen.43 After the robbery, the gunmen stole a car and
fled.44 Four men, one of whom was Bobby Ashe, were
charged with seven separate offenses-the armed robbery
of each of the six poker players and the theft of the
40
397 U.S. 436 (1970).
41
Id. at 445.
42
Id. at 439-40.
43
Id. at 437.
44
Id. The car belonged to one of the six robbery victims and was later found
abandoned in a field. Id.
28 | P a g e
car.45 At Ashe’s first trial, the evidence established
clearly the named victim, Knight, was indeed a victim
of armed robbery and that his personal property, as
well as that of the other players, was taken in the
robbery.46 The evidence connecting Ashe to the incident,
however, was unconvincing because it was not clear that
there had been four robbers and the three other
defendants had been arrested together.47 Further, the
evidence identifying Ashe as one of the robbers was
weak.48 The jury acquitted Ashe.49 Six weeks later, the
state brought Ashe to trial for the robbery of a second
participant in the same poker game. This second
proceeding did not place Ashe twice in jeopardy for the
“same offense” because each offense required proof of a
fact the other did not - the identity of the robbery
victim and his loss of property. Although the
45
Id. at 438
46
Id. The Court noted that the proof was “unassailable.”
47
Id. at 437. Three of the four defendants were arrested in the vicinity of
where police had found the stolen car, whereas Ashe was arrested “some
distance away” from that area. Id.
48
Id. at 438. Two of the victims could not identify Ashe as one of the
robbers, while two other victims could identify Ashe only by the sound of his
voice or certain mannerisms. Id.
49
Id. at 439.
29 | P a g e
prosecution failed to persuade the initial jury beyond
a reasonable doubt that Ashe was one of the robbers,
traditional double jeopardy protection as contemplated
at that time would not shield him from the successive
prosecutions. The state was thus afforded six
additional opportunities to prove that Ashe had
participated in the robbery. At the second trial, the
State presented more convincing evidence that Ashe had
been one of the robbers.50 As a result of this stronger
presentation, the second jury convicted Ashe for his
participation in the robbery.51
As will by discussed further below, Appellant Acuna
urges this Court to recognize the similarity here. In
this case, the State presented a wealth of testimony
and evidence in the first trial. However, that first
jury found in favor of Appellant Acuna and acquitted
her. The State then was afforded the opportunity to
“refine” their case and re-present the testimony and
50
Id. at 439-40. The two victims who were unable to identify Ashe as one of
the robbers in the first trial were able in the second trial to identify him
through his physical features and mannerisms. Id. at 440. Moreover, one of
the witnesses who had not been helpful to the prosecution’s case in the first
trial was not called to testify in the re-prosecution. Id.
51
Id. Ashe was sentenced to 35 years in the Missouri State Penitentiary. The
Missouri Supreme Court affirmed the conviction. Id.
30 | P a g e
evidence. The State was afforded to a “do-over” since
the first trial revealed its weaknesses. The State,
while presenting the same case, presented it
differently after seeing what worked and what didn’t
work the first time around.
Ultimately, the Supreme Court in Ashe held the
conviction could not stand.52 holding specifically the
initial acquittal resolved the issue of whether Ashe
was one of the robbers and resolved it in Ashe’s
favor.53 The doctrine of collateral estoppel therefore
precluded the prosecution from re-litigating the
question of Ashe’s identity as one of the robbers in
the second trial.54 Since proof of identity was
essential to the second prosecution, and was therefore
an “issue of ultimate fact,” Ashe could not be
convicted unless the prosecution could re-litigate that
issue. As a result, the collateral estoppel doctrine
shielded him from further prosecution for his alleged
52
Id. at 445
53
Id. at 446.
54
Id.
31 | P a g e
involvement in the criminal episode.55
Similarly, in the instant case, the first jury
considered the ultimate fact of whether Appellant
Acuna, Juan Manuel Salazar and Antonio DeLeon
“conspired” or “agreed” that Fiscal be killed. The
record on appeal is clear that the State’s theory in
the first trial was one of conspiracy. Although they
didn’t call it “conspiracy,”56 the State’s theory was
that Appellant Acuna wanted Fiscal dead; that Appellant
Acuna directed or “orchestrated” the murder; that
Appellant Acuna “called upon DeLeon and Salazar to
commit the murder for her; that Appellant Acuna
performed these “overt acts” in furtherance of her
orchestration. Argument regarding these assertions are
set out more specifically below.57
The Ashe Court acknowledged the difficulty in
determining the issues resolved by a general verdict of
“not guilty” and called on earlier decisions applying
55
Id.
56
Note that Appellant Acuna was originally charged with “conspiracy” to
commit murder in Count Two of the first indictment – CR-2725-10-H. This
Count was dismissed by the State. 1CR204
57
1CR@8, 196; 2CR@8
32 | P a g e
the collateral estoppel doctrine in federal criminal
cases for guidance:
“The federal decisions have made clear that the
rule of collateral estoppel in criminal cases is
not to be applied with the hyper-technical and
archaic approach of a 19th century pleading book,
but with realism and rationality. Where a previous
judgment of acquittal was based upon a general
verdict, as is usually the case, this approach
requires a court to examine the record of a prior
proceeding, taking into account the pleadings,
evidence, charge, and other relevant matter, and
conclude whether a rational jury could have
grounded its verdict upon an issue other than that
which the defendant seeks to foreclose from
consideration.58
The Court further stated:
“any test more technically restrictive would, of
course, simply amount to a rejection of the rule of
collateral estoppel in criminal proceedings, at
58
Id. at 444
33 | P a g e
least in every case where the first judgment was
based upon a general verdict of acquittal.”59
Because neither the fact that a robbery had
occurred nor the identity of the victims was open to
question, the Court easily concluded that the first
trial had settled the question of whether Ashe had been
one of the robbers.60 Again, here, given the first
jury’s “general verdict” after having been instructed
to consider the language in the jury charge, any
agreement or “conspiracy” between Appellant Acuna, Juan
Salazar and Antonio DeLeon to commit this murder was no
longer open to question.61 This “ultimate fact” was
settled by the first jury.
Further, the Ashe Court addressed the relationship
of the collateral estoppel doctrine to the Fifth
Amendment guarantee against double jeopardy. Noting the
potential for “unfair and abusive” re-prosecutions
presented by the excess number of overlapping statutory
offenses and the resultant utilization of the
59
Id.
60
Id. at 446
61
1CR@3, 196, 200; 2CR@8;
34 | P a g e
collateral estoppel doctrine as a federal rule of law
to curb these abuses,62 the Ashe Court concluded
collateral estoppel was indeed among the protections
afforded by the Fifth Amendment.63
Since its decision in Ashe, the Supreme Court has
declined several invitations to limit the collateral
estoppel protection afforded criminal defendants.64 On
other fronts, however, the Supreme Court has refused to
extend the protection and has even restricted it
somewhat.65 In Standefer v. United States,66 for example,
the Court refused to apply collateral estoppel to bar
prosecution of an alleged aider and abettor merely
because the alleged principal had been acquitted.67 The
Court has also limited the extent of protection
62
Id. at 445-46 n.10.
63
Id. at 445.
64
See, e.g., Turner v. Arkansas, 407 U.S. 366 (1972) (acquittal bars re-
prosecution even though offenses could not have been tried jointly under
state law); Harris v. Washington, 404 U.S. 55 (1971) (acquittal bars re-
prosecution even though acquitting jury did not hear all the relevant
evidence); Simpson v. Florida, 403 U.S. 384 (1971) (acquittal absolutely bars
re-prosecution even though it was preceded by a conviction).
65
Appellant Acuna avers that neither of these “limitations” apply in the
instant case, but for a more complete discussion of the doctrine of
collateral estoppel, points them out.
66
447 U.S. 10 (1980)
67
Id. at 25-26. For a discussion of Standefer, see Case Comment, The Use of
Nonmutual Collateral Estoppel by Criminal Defendants: United States v.
Standefer, 93 HARV. L. REV. 804 (1980)
35 | P a g e
afforded by the collateral estoppel doctrine in civil
cases.68 An issue may be re-litigated in a civil
proceeding after acquittal on criminal charges as long
as the goal is remedial rather than punitive. Thus,
despite the counter-vailing interest in enforcing the
criminal laws, the Court has applied collateral
estoppel strictly in criminal cases to give the
defendant the benefit of an acquittal.69 The Court
relaxes the protection only when defendants seek a
benefit of someone else’s acquittal and when the
doctrine has been invoked in civil cases.
The Supreme Court has not recently addressed the
use of collateral estoppel regarding use of the
doctrine to restrict the prosecution’s evidence/theory.
Some courts permit this use.70 Many courts hold the
68
See, e.g., United States v. One Assortment of 89 Firearms, 465 U.S. 354
(1984) (acquittal on criminal charges involving firearms not preclusive of
subsequent in rem proceeding against firearms)
69
1CR@200
70
See, e.g., United States v. Gornto, 792 F.2d 1028 (11th Cir. 1986); United
States v. Johnson, 697 F.2d 735 (6th Cir. 1983), cert. denied sub nom. Hicks
v. Unied States, 108 S. Ct. 95 (1987); United States v. Mespoulede, 597 F.2d
329 (2d Cir. 1979); United States v. Day, 591 F.2d 861 (D.C. Cir. 1978);
Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972); Riley v. State, 181 Ga.
App. 667, 353 S.E.2d 598 (1987); see also United States v. Keller, 624 F.2d
1154 (3d Cir. 1980) (discussing the question and restating that circuit’s
position that the evidence is barred by non-constitutional doctrine of
collateral estoppel which prohibits re-litigation of decided facts); Vestal,
Issue Preclusion and Criminal Prosecutions, 65 IOWA L. REV. 281 (1980)
36 | P a g e
doctrine is limited to those cases where an ultimate
fact was resolved in the defendant’s favor in a prior
proceeding.71 The Supreme Court ultimately agrees. In
Yates v. United States,72 over a decade before its
decision in Ashe, the Supreme Court stated: “The normal
rule is a prior judgment need be given no conclusive
effect at all unless it establishes one of the ultimate
facts in issue in the subsequent proceeding. So far as
merely evidentiary or ‘mediate’ facts are concerned,
the doctrine of collateral estoppel is inoperative.”73
If Courts limit the doctrine in this manner, the
(courts more willing to use preclusion doctrine to foreclose repetitive
litigation); Note, Evidentiary Use of Prior Acquitted Crimes: The “Relative
Burdens of Proof” Rationale, 64 WASH. U.L.Q. 189 (1986) (suggests that courts
should exclude evidence from prior acquitted crimes only if it is necessary
to prove same ultimate fact); but see United States v. Gentile, 816 F.2d 1157
(7th Cir. 1987) (acquittal on charge of interstate commerce violation not
preclusive of use of same testimony on retrial to prove charge of cocaine
possession).
71
See, e.g., Flittie v. Solem, 775 F.2d 933 (8th Cir. 1985), cert. denied,
475 U.S. 1025 (1986); United States v. Sutton, 732 F.2d 1483 (10th Cir.
1984); United States v. Van Cleave, 599 F.2d 954 (10th Cir. 1979); see also
People v. Goodman, 69 N.Y.2d 32, 36-44, 503 N.E.2d 996, 999-1003, 511
N.Y.S.2d 565, 568-72 (1986) (declining to adopt the “evidentiary fact rule”
in that case); E. IMWINKELRIED, UNCHARGED MISCONDUCT EVIDENCE § 10.06 at 12
(1984) (“The majority view is that the collateral estoppel doctrine does not
apply to the subsequent use of evidence of the act as uncharged
misconduct.”); Note, Collateral Estoppel Effect of Prior Acquittals: United
States v. Mespoulede, 46 BROOKLYN L. REV. 781 (1980) (advocating that
collateral estoppel be limited to ultimate facts); Note, Perjury by
Defendants: the Uses of Double Jeopardy and Collateral Estoppel, 74 HARV. L.
REV. 752, 758-59 (1961) (discussing various approaches used by courts in
applying collateral estoppel in criminal cases); Note, supra note 39.
72
354 U.S. 298 (1957).
73
Id. at 338 (citing The Evergreens v. Nunan, 141 F.2d 927 (2d Cir. 1944))
(other citations omitted), cert. denied, 323 U.S. 720 (1944)).
37 | P a g e
doctrine will never act to bar evidence. The harm
against which collateral estoppel protects cannot be
prevented if the protection applies only when the fact
determined in the first trial is also an ultimate fact
in the second trial. Appellant Acuna advocates the
broader construction of collateral estoppel discussed
hereinbelow.
B. Double Jeopardy Protection: “Same Offense” and Re-
use of Evidence
Collateral estoppel is not the principal
constitutional protection against re-prosecution.
Double jeopardy bars re-prosecution for the same
offense.74 Double jeopardy applies equally whether the
initial prosecution ended in conviction or acquittal.75
Collateral estoppel therefore must be viewed against
the backdrop of basic double jeopardy protection.76
The role that re-use of evidence, as opposed to
overlap of statutory elements, plays in defining the
“same offense” for purposes of double jeopardy is
74
See Brown v. Ohio, 432 U.S. 161 (1977); Green v. United States, 355 U.S.
184, 187-88 (1957)
75
Brown, 432 U.S. 161, 165; LAFAVE, supra note 11, § 24.1
76
2CR@199, 341, 345
38 | P a g e
unclear. The Supreme Court defined “same offense” in
Block-burger v. United States77 and has never departed
from that basic definition. “Where the same act or
transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to
determine whether there are two offenses or only one,
is whether each provision requires proof of an
additional fact which the other does not.”78 In most
cases, comparing the statutory elements will determine
whether the offenses are the same under the Blockburger
test.79 Thus, the Blockburger definition of the “same
offense,” renders the role of the evidence in the
successive trials insignificant to that determination.80
However, the Supreme Court’s decision in Illinois
v. Vitale suggests a broader definition of the “same
77
284 U.S. 299 (1932)
78
Id. at 304 (citations omitted).
79
See, e.g., Flittie v. Solem, 775 F.2d 933, 937 (8th Cir. 1985), cert.
denied, 475 U.S. 1025 (1986). See generally Thomas, The Prohibition of
Successive Prosecutions for the Same Offense: In Search of a Definition, 71
IOWA L. REV. 323 (1986)(general review and analysis of tests applied by
various courts); Comment, supra note 12.
80
See Iannelli v. United States, 420 U.S. 770 (1975), overruled by Brown v.
Ohio, 432 U.S. 161 (1977); United States v. Levy, 803 F.2d 1390, 1397 (5th
Cir. 1986); Note, supra note 12. In Iannelli the Court noted that “the test
focuses on the statutory elements of the offense. If each requires proof of a
fact that the other does not, the Blockburger test is satisfied,
notwithstanding a substantial overlap in the proof offered to establish the
crimes.” Iannelli, 420 U.S. at 785 n.17.
39 | P a g e
offense.”81 Under that definition, two offenses which
have no overlapping elements could be the same offense
for double jeopardy purposes if the prosecution relied
on the same evidence or theory in both. Prosecution of
the second offense would be barred by the core of
double jeopardy because reliance on the same evidence
would make it the “same offense.” Adopting this
definition of the “same offense” will operate
regardless of whether the first verdict is an acquittal
or a conviction; it will operate independently of
collateral estoppel protection and will eliminate the
need for collateral estoppel protection in some
cases.
In Vitale the Court confronted a claim of double
jeopardy protection where two offenses did not have
overlapping elements; the prosecution was likely to
rely on the same theory in the second proceeding.82
81
447 U.S. 410 (1980); See Eisenberg, Multiple Punishments for the “Same
Offense” in Illinois, 11 S. ILL. U.L.J. 217, 244-46 (1987); Thomas, supra
note 47, at 382-88.
82
Vitale, 447 U.S. at 418. The second proceeding had not yet occurred because
of the litigation concerning the defendant’s double jeopardy claim, therefore
the prosecution had never had to commit itself to a theory of prosecution or
introduce evidence to support its claim. Nevertheless, as the dissenting
40 | P a g e
Vitale was convicted of failing to slow his automobile
at the time of a fatal accident. The state prosecuted
him for involuntary manslaughter, and Vitale claimed
the double jeopardy clause barred further prosecution.83
The statutory elements were not the same, but Vitale
argued the prosecution intended to establish
manslaughter by demonstrating he failed to slow. The
Supreme Court discussed, without entirely settling,
whether double jeopardy protection bars prosecution for
an offense that has different statutory elements but
will be established in part by proving all the elements
of an offense of which the defendant has already been
convicted and for which he has been punished. Because
the first prosecution led to conviction rather than
acquittal, the question of collateral estoppel did not
arise.84 Vitale contended the offenses were the same for
purposes of double jeopardy. However, comparing the
justices pointed out, throughout the lengthy process of litigating the double
jeopardy claim, the prosecution had never suggested that it had any other
theory on which to pursue the manslaughter charge. Id. at 423 (Stevens, J.,
dissenting).
83
Id. at 413; Id. at 416-19.
84
Id. at 418-19.
41 | P a g e
statutory elements of the two crimes did not establish
that they were the same offense.85 The resolution of
Vitale’s double jeopardy argument turned on his
prediction that the prosecution would rely on his
“failure to slow” to establish an essential element of
the manslaughter offense. The Court’s majority stated
if the prosecution could establish the manslaughter
offense only by proving Vitale’s “failure to slow,” the
defendant’s claim that the second prosecution violated
his double jeopardy protection “would be substantial.”86
Similarly, in the instant case, the first jury settled
the issue of whether Appellant Acuna, Juan Salazar and
Antonio DeLeon acted together pursuant to an agreement
to kill Fiscal.87 Yet, the State’s only theory
presented at the second trial was that in fact
Appellant Acuna, Juan Salazar and Antonio DeLeon acted
together pursuant to an agreement to kill Fiscal.
Vitale thus suggests if elements of an offense
85
Vitale, 447 U.S. at 418; In a given case the prosecution could establish
manslaughter by automobile without establishing failure to slow. Id. at 416-
419.
86
Id.
87
1CR@196, 200
42 | P a g e
already disposed of would be proven as ultimate facts
in the subsequent prosecution, the two are the “same
offense” and further prosecution and punishment is
foreclosed.88
C. Collateral Estoppel and Double Jeopardy - Preventing
Re-use of Evidence
If the first proceeding ends in acquittal
collateral estoppel comes into play as well as basic
double jeopardy protection.89 United States v. Kills
Plenty90 illustrates a situation in which either
collateral estoppel or the conclusion that the two
crimes were the “same offense” would have barred the
second prosecution if brought by the same sovereign.91
88
See generally Flittie v. Solem, 775 F.2d 933 (8th Cir. 1985), cert. denied,
475 U.S. 1025 (1986); Eisenberg, supra note 50, at 244-46; Thomas, supra note
47, at 382-88.
89
See Green v. Ohio, 455 U.S. 976, 980-81 (1982) (White, J., dissenting) (in
order denying certiorari dissent described collateral estoppel as an
“independent safeguard”); Ashe v. Swenson, 397 U.S. 436 (1970); United States
v. Williams, 341 U.S. 58, 64 n.64 (1951); Flittie, 775 F.2d 933; United
States v. Castro, 629 F.2d 456, 464-65 (7th Cir. 1980) (collateral estoppel
does not bar re-prosecution after a conviction; it only operates after
acquittal); LAFAVE, supra note 11, § 17.4
90
466 F.2d 240 (8th Cir. 1972), cert. denied, 410 U.S. 916 (1973)
91
At the time Kills Plenty was decided, it was unclear whether double
jeopardy operated to preclude federal prosecution after prosecution by tribal
authorities. In Kills Plenty the court did not resolve that issue, holding
instead that double jeopardy protection would not foreclose the second
prosecution because it was not the same offense as the first and collateral
estoppel did not operate. Kills Plenty, 466 F.2d at 243. The Supreme Court
has since decided that tribal authorities are a separate sovereign from the
state and federal authorities. See United States v. Wheeler, 435 U.S. 313,
43 | P a g e
In Kills Plenty the defendant was tried and acquitted
in tribal court on a charge of driving while under the
influence of intoxicating liquor.92 He was then charged
in federal court with involuntary manslaughter.93 The
second jury was given the option of convicting on the
same theory and same evidence rejected in the first
proceeding. To establish involuntary manslaughter the
second prosecution had to prove the defendant killed
the victim without malice and “that such killing was
done in the commission of a lawful act which might
produce death and that such act was done either in an
unlawful manner or without due caution or
circumspection.”94 In the first trial, the question of
whether the defendant was intoxicated at the time of
the accident was resolved in his favor, providing a
328 (1978). Therefore, double jeopardy protection would not actually operate
on the facts of the case. This gap in protection illustrates an important
limitation of double jeopardy protection. It operates only when both
prosecutions are brought by the same sovereign authority and, therefore, has
no impact on successive prosecutions by different states or by state and
federal authorities. See Heath v. Alabama, 474 U.S. 82 (1985); Abbate v.
United States, 359 U.S. 187 (1959); Bartkus v. Illinois, 359 U.S. 121 (1959);
United States v. Addington, 471 F.2d 560, 566 (10th Cir. 1973).
92
Kills Plenty, 466 F.2d at 241.
93
Id. at 241-42.
94
Id. at 242.
44 | P a g e
basis on which he could invoke collateral estoppel.95
However, intoxication was not necessarily essential to
conviction in the second proceeding; the prosecution
could potentially establish involuntary manslaughter
without proving intoxication. Therefore, the narrowest
application of collateral estoppel, to bar prosecution
by precluding re-litigation of issues of ultimate fact,
did not help the defendant. At the manslaughter trial,
the Kills Plenty court admitted evidence showing
defendant was intoxicated at the time of the fatal
collision and instructed the jury “that it is unlawful
to operate a motor vehicle upon a public highway while
in a state of intoxication.”96 Thus, although the jurors
might have based their guilty verdict on an unlawful
act different from that rejected in the first
proceeding, they might equally have convicted because
they were convinced beyond a reasonable doubt that the
defendant had killed the victim while committing the
unlawful act of driving while intoxicated. The evidence
95
Id
96
Id. at 242.
45 | P a g e
and the jury instructions permitted, even invited, that
latter resolution of the case. The double jeopardy
clause should protect against the possibility the
prosecution will obtain a conviction by re-litigating
an issue previously resolved in the defendant’s favor –
an acquittal.
Like Vitale, the defendant in Kills Plenty could
have prevailed had he persuaded the court the second
charge was the “same offense” as the first. The second
charge in Kills Plenty could be viewed as the “same
offense” under the double jeopardy clause because the
prosecution relied on proof of intoxication. Under that
view, basic double jeopardy protection would bar the
second prosecution. In Kills Plenty, however, this was
merely an alternative argument. Because the initial
trial led to an acquittal, collateral estoppel would
also protect the defendant against further prosecution
on the basis of the same evidence and theory.
Acquittal on the substantive charge does not
necessarily preclude or limit prosecution on the
46 | P a g e
conspiracy charges unless collateral estoppel comes
into play. In such cases, therefore, protection will
not flow from basic double jeopardy protection. The
defendant will be protected by the doctrine of
collateral estoppel or not at all. Therefore, the
protection of the Collateral Estoppel doctrine must be
expanded to exclude evidentiary facts.97
II. EXTENDING COLLATERAL ESTOPPEL TO EXCLUDE
EVIDENTIARY FACTS
If an issue resolved in the defendant’s favor by an
acquittal is essential to the second prosecution, the
entire prosecution is foreclosed on grounds of
collateral estoppel, as it was in Ashe.98 In such a
case, a verdict could be achieved only by re-litigating
the previously resolved issue using the same facts,
evidence and prosecution theory.99
A. The Purpose of Collateral Estoppel
Assessing whether and how collateral estoppel
operates to preclude re-use of evidence after acquittal
97
2CR@199
98
Ashe, 397 U.S. at 446.
99
2CR@199, 345
47 | P a g e
must focus on the purpose of collateral estoppel. In
Ashe, the Court did not speak at length to the purpose
of the doctrine. The Court merely stated: “Whatever
else double jeopardy may embrace ... it surely protects
a man who has been acquitted from having to ‘run the
gantlet’ a second time.”100 A clearer sense of the role
and function of the protection must incorporate
decisions dealing with other aspects of the double
jeopardy clause and reasons why collateral estoppel is
constitutionally mandated.
“A primary purpose served by the double jeopardy
clause is akin to that served by doctrines of res
judicata and collateral estoppel - to preserve the
finality of judgments.”101 In a frequently quoted
passage from Green v. United States,102 the Supreme
Court explained the reasons for providing that
protection to the criminal defendant:
The State with all its resources and power
should not be allowed to make repeated
100
Id. (citing Green v. United States, 355 U.S. 184, 190 (1957)).
101
Crist v. Bretz, 437 U.S. 28, 33 (1978)
102
355 U.S. 184 (1957).
48 | P a g e
attempts to convict an individual for an
alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and
compelling him to live in a continuing state
of anxiety and insecurity, as well as
enhancing the possibility that even though
innocent he may be found guilty.103
Although there are situations where a defendant,
having once been put in jeopardy, may be tried again,104
the Supreme Court insists on unflagging double jeopardy
protection when the first proceeding ends in acquittal.
After conviction, a defendant is protected only from
further prosecution and punishment for the same
offense. When double jeopardy is invoked by a defendant
who has been in jeopardy and has not won an acquittal,
the Court will balance the defendant’s double jeopardy
interest against the public interest in enforcing
criminal laws to determine the extent of the
103
Id. at 187-88.
104
LAFAVE, supra note 11, § 24.4.
49 | P a g e
protection.105
But an acquittal occupies a particularly exalted
position in our system of criminal justice and commands
the greatest double jeopardy protection.106 After
acquittal, the constitution not only prohibits further
proceedings on the same offense, but also, through the
doctrine of collateral estoppel, prohibits re-
litigation of individual issues resolved in the
defendant’s favor by the acquittal.107 The protection
flowing from an acquittal is absolute; it’s not subject
to compromise through application of balancing tests.108
Even a clearly erroneous acquittal is allowed to stand
as an absolute bar to further prosecution.109
It’s clear once a defendant wins an acquittal,
105
See Illinois v. Somerville, 410 U.S. 458, 463 (1973). See generally Westen
& Drubel, Toward a General Theory of Double Jeopardy, 1978 SUP. CT. REV. 81
(1979) [hereinafter Westen].
106
See generally Westen, supra note 83; See Sanabria v. United States, 437
U.S. 54, 64 (1978); but cf. United States v. Scott, 437 U.S. 82, 101 (1978)
(defendant seeks termination of trial without determination of guilt,
government’s appeal is not barred); see also Westen, supra note 83, at 84 (of
three interests served by double jeopardy, the most important is the
“interest in nullification,” an absolute interest in allowing the jury to
acquit against the evidence).
107
1CR@200; 2CR@199, 327, 345; See, e.g., Sealfon v. United States, 332 U.S.
575 (1948)
108
See Sanabria, 437 U.S. at 64; see generally Westen, supra note 83.
109
See Sanabria, 437 U.S. at 64; see generally Westen, supra note 83.
50 | P a g e
additional double jeopardy concerns come into play.
After acquittal, if further proceedings are allowed,
the concern the prosecution will convict an innocent
person by presenting the same case to a new fact finder
is paramount.110 The prosecution, having failed in its
initial effort to convict a defendant cannot appeal to
correct any perceived unfairness to the prosecution’s
interest. The prosecution therefore may have a strong
incentive to seek an alternate way to achieve its goal
of conviction. A key purpose of collateral estoppel is
to avoid this risk.111 Protection against harassment by
successive prosecutions also comes into play in some
cases where collateral estoppel is the only source of
constitutional protection.112 If a theory or evidence
already found wanting by the acquitting fact finder is
an important aspect of the prosecution’s case, the
110
2CR@199; See United States v. Scott, 437 U.S. 82 (1978). In Scott, the
Court explained why protection against further prosecution is particularly
important after an acquittal: “To permit a second trial after an acquittal,
however, mistaken the acquittal may have been, would present an unacceptably
high risk that the government, with its vastly superior resources, might wear
down the defendant so that ‘even though innocent he may be found guilty.” Id.
at 91 (quoting Green v. United States, 355 U.S. 184, 188 (1957)). See Thomas,
supra note 47, at 337-340.
111
See Comment, supra note 12.
112
See Mayers, supra note 12; Vestal, supra note 39
51 | P a g e
chance of conviction may not be great, but permitting
the prosecution to proceed imposes on a defendant the
stress, embarrassment, and expense of the second trial.
Ashe illustrates these risks well. In Ashe, by using
the first trial, where defendant Ashe was acquitted, as
a dry run for the second, the prosecutor was able to
refine and improve the evidence that was presented to
the jury - precisely what the constitution forbids.113
What’s more, the prosecution was able to harass the
defendant by forcing him to trial again on charges he’d
fully defended. The scope of collateral estoppel
protection must be defined with reference to these
double jeopardy concerns and to the specially protected
character of an acquittal. The protection of an
acquittal is absolute.
Two concerns are most pertinent to collateral
estoppel protection. First, collateral estoppel
protects a defendant against the risk of conviction or
113
Much the way the State was able to do in this case, where the DNA analyst
testified there was no affirmative link to Appellant Acuna through her
analysis of the evidence – this witness was not called to testify at the
second trial; Ashe v. Swenson, 397 U.S. 436, 447 (1970) (Black, J.,
concurring).
52 | P a g e
punishment because the prosecution was able to present
the case against the defendant to another fact-finder.
The risk to the defendant flows both from the
prosecutor’s opportunity to present the evidence in a
more convincing fashion, having evaluated the
weaknesses in the prosecution case, and from the simple
opportunity to persuade another fact-finder, who may
prove more prone to convict than the first. Second,
collateral estoppel protects the defendant against the
harassment and accompanying emotional and financial
expense of successive prosecutions.114 The prosecution
can inflict a significant, and constitutionally
prohibited, burden on the defendant merely by again
holding him to answer charges, even if ultimate
conviction is unlikely. These two concerns should guide
the courts in defining the scope of collateral estoppel
and determining its role in restricting the prosecution
in a criminal proceeding following an acquittal.
114
Appellant Acuna retained counsel to defend her against these charges in the
first trial, however was unable to retain counsel to defend her in the second
trial. Her financial resources depleted, Appellant Acuna settled for
appointed counsel at the second trial and of course on appeal. 1CR@97;
2CR@110, 127, 155, 244, 247, 249, 252, 318-319
53 | P a g e
B. The Application of Collateral Estoppel to Exclude
Evidence
When the risks against which the doctrine of
collateral estoppel protects are present, collateral
estoppel must shield the defendant by restricting the
prosecution. In some cases, reuse of evidence creates
those risks. Appellant Acuna asserts the instant case
is one of those cases.
Yawn v. United States115 is typical of the cases
raising this question and illustrates the need for a
collateral estoppel doctrine broad enough to provide a
remedy even if no issue of ultimate fact has been
resolved in the defendant’s favor. In Yawn the
defendant was first tried and acquitted for several
charges, all arising from his alleged possession of an
illegal still.116 The defendant was then tried on an
indictment charging conspiracy to violate the liquor
tax laws.117 The conspiracy indictment alleged
possession of the still as one overt act in furtherance
115
244 F.2d 235 (5th Cir. 1957).
116
Id. at 236
117
Id.
54 | P a g e
of the conspiracy.118 The acquittal foreclosed further
attempts to convict the defendant of a charge which had
possession of the still as an essential element.
Because the conspiracy charge could be established
without proving that the defendant possessed the still,
possession was not an issue of ultimate fact in the
conspiracy prosecution.119 Therefore, collateral
estoppel was not a complete bar to prosecution for the
conspiracy. But possession was alleged as an overt act
in furtherance of the conspiracy and the evidence
demonstrating the defendant’s possession was presented
to the second jury.120 Consequently, the defendant’s
double jeopardy protection under the doctrine of
collateral estoppel was threatened in two ways. First,
expecting to rely on the evidence demonstrating
possession, the prosecution was able to bring charges
that it might otherwise not have been able to bring,121
thus the prosecution was able to harass the defendant
118
Id.
119
Id. at 237
120
Id.
121
It is unethical for a prosecutor to bring charges without probable cause.
MODEL RULES OF PROFESSIONAL CONDUCT RULE 3.8(a) (Proposed Final Draft 1981).
55 | P a g e
by relying on its re-introduction of the same evidence
and theory in support of the conspiracy charge. Second,
the jury may have convicted the defendant of conspiracy
because the jury was convinced the defendant agreed to
violate the tax laws and was convinced beyond a
reasonable doubt that he possessed the still in
furtherance of that goal. Thus, the prosecution may
have prevailed by re-litigating the issue resolved
against it by the previous acquittal and presenting
that issue to a second fact finder for resolution. The
prosecution may have convinced the second fact finder
to accept the proposition already rejected by the
acquitting jury. Collateral estoppel should have
protected Yawn by excluding the evidence, thereby
eliminating that aspect of the government’s conspiracy
case. That remedy would defeat the case unless the
prosecution had some other evidence against the
defendant and would also ensure that the prosecution
could not obtain a conviction by re-litigating the
previously rejected proposition. The Yawn Court
56 | P a g e
stated:
“In the present case the Government had, and has,
every right to establish the guilt of the accused
of the separate offense of conspiracy to violate
the liquor tax laws despite the acquittal of
unlawful possession of the still.122 But to allow
the Government to have a second opportunity to
establish the precise fact of possession decided by
another Court of competent jurisdiction in favor of
the accused is to ignore the rule that ‘ ... the
same facts cannot be twice litigated by the same
sovereign against the same defendant.“123
United States v. Mock124 and United States v.
Crispino125 illustrate other instances where collateral
estoppel should provide protection even though the
second proceeding does not depend on an issue of
ultimate fact resolved by the acquittal. In Mock and
Crispino the defendants were charged with narcotics
122
See also Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L.
Ed. 1489.
123
Id. at 237
124
640 F.2d 629 (5th Cir. 1981).
125
586 F. Supp. 1525 (D.N.J. 1984).
57 | P a g e
trafficking. After they were acquitted on the narcotics
charges, the defendants were charged with tax
violations. In each of the tax cases, the government
relied on the theory that Mock and Crispino didn’t
report income derived from narcotics activity. To
convict them the jury in each tax case would have to be
convinced beyond a reasonable doubt of the “likely
source” of the unreported income. In Mock, the
government’s main theory was that the defendant had
received and failed to report income from precisely the
conspiracy of which he had been acquitted; the
prosecution even relied on the same witness who had
implicated Mock in the conspiracy trial.126 After Mock’s
conspiracy conviction was reversed and remanded, the
government re-prosecuted him, relying on evidence that
did not tend to establish the previously charged
conspiracy, and obtained a conviction which withstood a
126
United States v. Mock, 604 F.2d 341 (5th Cir. 1979) Prosecution introduced
testimony of Sandra Scott, testifying about Mock’s involvement with drugs at
a time close to but not covered by the first charges. The court rejected the
prosecution’s harmless error argument and reversed and remanded. Id. at 346-
47. The court concluded that both the extent of the duplicative testimony and
the prosecution’s reliance on proof of the same conspiracy made it unlikely
the jury would’ve convicted the defendant on the basis of proof of drug
activity independent of the acquitted conspiracy. Id. at 347.
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collateral estoppel challenge.127 In Crispino, the court
ruled before trial that the government could not rely
on proof of the drug conspiracy to establish the likely
source of income, but refused to dismiss the
indictment. The prosecution was free to introduce other
evidence supporting its tax charges, if it had any.
In each case, the issues of ultimate fact resolved
by the acquittal of conspiracy charged in the first
trial were not issues of ultimate fact in the second.128
Nevertheless, the prosecution’s reliance on the theory
and evidence rejected in the prior drug trials
presented significant risks to the defendants’
interests. The threat in each case was that the second
jury would re-evaluate the defendant’s involvement in
the drug conspiracy, finding it the likely source of
income and thus base the conviction on the conclusion
already rejected in the initial acquittal. In Crispino,
the court even commented that its decision was
“strongly bolstered by its conclusion the government,
127
United States v. Mock, 640 F.2d 629, 632 (1981)
128
United States v. Mock, 640 F.2d 629, 632 (1981)
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disappointed by the results in the first trial, simply
polished and refined its evidence from that trial in an
effort to find some way, any way, of convicting this
defendant of criminal charges.”129 Collateral estoppel
should protect a defendant against the re-presentation
of a theory and evidence by the prosecution. If the
prosecution wants to continue to pursue a defendant who
has won an acquittal, collateral estoppel requires that
the prosecution find a new basis on which to proceed.
The prosecution should not be able to avoid that
prohibition by fitting the rejected theory and evidence
to new charges.
Cases like Yawn, Mock, and Crispino demonstrate the
need for collateral estoppel protection to limit the
scope of re-prosecution after acquittal even where the
second prosecution does not involve the “same offense”
and no issue of ultimate fact in the second case has
been resolved in the defendant’s favor.
IV. Application of these principles to the instant case
129
Crispino, 586 F. Supp. at 1535 (emphasis in original).
60 | P a g e
A. The State’s Theory in Both Prosecutions130
In trial court cause number CR-2725-10-H, Appellant
Acuna was charged by indictment as follows:
“on or about the 3rd day of July, 2010 … did then
and there intentionally and knowingly cause the
death of an individual, namely Jose Guadalupe
Fiscal, by stabbing him with a deadly weapon, to
wit: a knife.131
The Prosecution gave the following Opening
Statement in that first case:
Thank you, Your Honor. May it please the Court,
ladies and gentlemen of the jury, defense counsel
and co-counsel? Good afternoon, ladies and
gentlemen. Ladies and gentlemen, the evidence that
we will present to you will show you that this
defendant was responsible for the death of Jose
130
Note that the prosecution admits the State needs to have proven an
agreement to commit a conspiracy and overt acts in furtherance of that
conspiracy. The State goes further and admits prior to the trial starting
that the evidence that will be presented this second tie around is “similar.”
RR2@13 As discussed herein, the evidence submitted to the first jury and that
submitted to the second jury is identical.
131
Note that Count Two charging Appellant Acuna with Conspiracy to Commit
Murder was dismissed. 1CR@8, 204-205
61 | P a g e
Guadalupe Fiscal.132 The evidence will show that Mr.
Fiscal was hit over the head. He was struck so
violently that he was probably rendered
unconscious. After which, he was stabbed multiple
times. And as if that weren't enough, Mr. Fiscal's
body was set on fire. Now, ladies and gentlemen,
the State is not going to bring a witness to you
who will tell you that this defendant personally
struck that blow to the victim's head. Not one
witness will come into this courtroom and tell you
that she held the knife that was used to stab Jose.
But what the State will prove to you beyond a
reasonable doubt is that this woman is completely
responsible for Jose Fiscal's death, that she
orchestrated the entire -- the entire situation
that occurred on July 3rd, 2010.133 You'll hear
132
Right off the bat in the first case, the State concedes in its opening
remarks the evidence would show Appellant Acuna was “responsible” for the
death of the victim. This first jury is told they would not hear evidence
Appellant Acuna committed the murder herself. The jury was later instructed
they were to convict if they believed Appellant Acuna was “criminally
responsible” for the death if she acted with intent that the offense occur
and aided, assisted or directed another in the commission of the offense.
1CR@196; TEX.PEN.CODE Section 7.02
133
Here, the State’s theory becomes clear: that Appellant Acuna was the one
directing the killing – that she “orchestrated it.” This becomes even
clearer when the indictment of the second trial is reviewed to reveal the
62 | P a g e
evidence that Jose and Alma Fiscal began dating
years ago. Eventually they married and they raised
four children, and you'll hear testimony that there
were good times and there were bad times just as
any marriage. Eventually the bad times outnumbered
the good times and Jose and Alma went their
separate ways. Alma moved to the state of
Louisiana where she worked in a refinery and Jose
stayed behind in the Valley where he worked in a
cabinetry business with his family. And you'll hear
testimony that their children were a priority
between the two of them, that Alma would come down.
She would bring her children. Jose will spend time
with his children. During the summer he spent time
with them. You'll hear testimony that he also
shared time with another individual, and that's the
defendant who sits before you today, Guadalupe
Acuna, also known as Lupita. And you'll hear
evidence -- testimony that Jose spent a great deal
State charged Appellant Acuna with Conspiracy to Commit Murder alleging the
exact same “overt acts” alleged to have committed by her in the application
paragraph of the first jury charge.
63 | P a g e
of time with Lupita. Lupita lived in a home in
Donna and she's raising five children. She had a
daughter by the name of -- or has a daughter by the
name of Alejandra, a son by the name of Antonio,
another daughter named Maria and two smaller
children and Jose spent time with Lupita and the
children. You'll also hear testimony that she had
a brother-in-law by the name of Juan Manuel Salazar
who also stayed at her house off and on. But,
ladies and gentlemen, Jose came to a point in his
life when he realized who the person was that he
wanted to wake up in bed next to every morning.
And that's when the problems arose because Lupita
wasn't that person. She wasn't that woman. It was
Alma. And Jose called his wife and he told her I
want to make a fresh start. I want to make this
right. And Jose purchased a home for that fresh
start, and he asked her to come home. But he also
told her that he needed a little bit of time
because Jose knew this woman and he knew that it
64 | P a g e
wouldn't be easy to walk away from her. Now, Alma
was scheduled to return to the Valley July 3rd but
she needed a few days early and she walked into
that home that Jose had purchased for her with that
fresh start and she had an unexpected surprise
because when Alma returned to that home, Lupita was
there.134 And, of course, this angered Alma and she
told Jose you need to get her out of here. And
that's when Jose made a very important decision.
He looked at Lupita and he told her to leave but he
wasn't the only person making a decision that day.
Because she left but she too had made a decision.
Jose Fiscal would not walk away from her. She
would make sure of it, and who would she look to?
She would look to the two closest men in her life -
- her brother-in-law, Juan Manuel Salazar, and her
own son, Antonio. She wanted Jose down. She wanted
him six feet under. And you'll have an opportunity
134
Although not necessary to prove, the State lays out the motive for the
killing…the same motive relied upon in the second trial.
65 | P a g e
to read the text messages135 that occurred between
Lupita and her brother-in-law and her son.136 July
3rd, 2010 was a hot, windy day. Fireworks were
being sold on the side of the road. People were
making plans to enjoy the holiday. Lupita was
making plans too. On July 3rd, 2010 she lured Jose
Fiscal to Donna Lakes. And when she was there and
she was ready, she sent word to her brother-in-law
and to her son and they came and they did exactly
what Lupita wanted them to do.137 You'll also see
that through a statement, several statements that
this defendant gave to the investigators at the
sheriff's department, and she'll tell you in her
own words, exactly what happened and why it
happened. At the close of the evidence, the State
will ask that you find this defendant guilty of
135
The text messages proved to be the “cornerstone” piece of evidence used in
the first trial by prosecutors to show the communication which the State
relied on in showing there was collaboration between Appellant Acuna, DeLeon
and Salazar.
136
Here, during the first trial, the State shows how important the text
messages were to show the communication between Appellant Acuna and the co-
defendants in order to prove the “criminal responsibility.”
137
Again, the State relying on the theory that Appellant Acuna and the co-
defendants collaborated to kill the victim.
66 | P a g e
murder. Thank you.138
The first jury rejected this theory and by way of
its Verdict expressed this rejection.139 This acquittal
in Cause No. CR-2725-10-H conclusively established
Appellant Acuna did not commit the substantive offense
of “Murder.” Note the jury charge in the first trial
instructed the jury to convict if they believed beyond
a reasonable doubt that she was responsible for the
death of Fiscal under the Law of Parties.140 In fact,
the jury charge specifically instructed the jury to
convict if they found Appellant Acuna acted in the
identical way with which she was charged by indictment
in the second case – this case.141 In other words, the
jury charge from the first trial actually presented the
jury with an opportunity to deliberate, consider and/or
“find” ultimate facts showing Appellant Acuna entered
into an agreement with Juan Manuel Salazar and Antonio
138
State’s Opening Statement at first trial; 1RR2@98
139
1CR@195-200, 206
140
1CR@195-196
141
1CR@196; 2CR@8-3-4
67 | P a g e
142
DeLeon to kill Fiscal. The jury, by their verdict of
“not guilty” clearly rejected that notion and found in
favor of Appellant Acuna.143
Five (5) months after her acquittal, Appellant
Acuna was again placed in jeopardy in trial court cause
number CR-4071-11-H.144 Here, charging Appellant Acuna
as follows:
On or about the 3rd day of July, 2010, with the
intent that murder, a felony, be committed, agree
with Juan Manuel Salazar and Antonio Rodriguez De
Leon that one of them would engage in conduct that
would constitute said offense, and the said
defendant performed an overt act in pursuance of
said agreement, to wit: luring Jose Guadalupe
Fiscal to the location where he was killed.
142
Note that the first jury was instructed on the definition of the Law of
Parties. That definition included that “all persons are parties to an
offense who are guilty of acting together in the commission of an offense.”
1CR196; TEX.PEN.Code Section 7.02; See Also Wooden v. State, 101 S.W.3d542,
546 (Tex.App.-Fort Worth 2003, pet. ref’d.)(The evidence must shpw at the
time of the offense the parties were acting together, each contributing some
part towards their common purpose.) Obviously then whether one calls it
“acting together toward a common purpose” or they call it “conspiracy,” it’s
the same thing.
143
1CR@196, 200
144
The first jury returned an acquittal on the murder charge on April 20,
2011; the indictment charging Appellant Acuna with this Conspiracy to Commit
Murder was filed September 13, 2011. 1CR@200; 2CR@3-4
68 | P a g e
And………… On or about the 3rd day of July, 2010, with
the intent that murder, a felony, be committed,
agree with Juan Manuel Salazar and Antonio
Rodriguez De Leon that one of them would engage in
conduct that would constitute said offense, and the
said defendant performed an overt act in pursuance
of said agreement, to wit: notifying Juan Manuel
Salazar that the said defendant and Jose Guadalupe
Fiscal were traveling to the location where Jose
Guadalupe Fiscal was killed.
And………… On or about the 3rd day of July, 2010, with
the intent that murder, a felony, be committed,
agree with Juan Manuel Salazar and Antonio
Rodriguez De Leon that one of them would engage in
conduct that would constitute said offense, and the
said defendant performed an overt act in pursuance
of said agreement, to wit: directing or telling
Juan Manuel Salazar to kill Jose Guadalupe Fiscal.
And………… On or about the 3rd day of July, 2010, with
the intent that murder, a felony, be committed,
69 | P a g e
agree with Juan Manuel Salazar and Antonio
Rodriguez De Leon that one of them would engage in
conduct that would constitute said offense, and the
said defendant performed an overt act in pursuance
of said agreement, to wit: directing or telling
Antonio Rodriguez De Leon to kill Jose Guadalupe
Fiscal.145
This second time around,146 the State stated in its
opening remarks:
The man that was found on that dirt road had been
struck over the head. He had been stabbed 45
times, and his body had been set on fire. His name
was Jose Fiscal. He was a son. He was a brother. He
was a father. Now, Mr. Fiscal had met a young woman
named Alma, and the two of them had a relationship
when they were young. It resulted in the birth of a
child, and the two of them married. They would go
on to have three more children, and, as in most
relationships, the evidence is going to show that
145
CR@3-4
146
CR-4071-11-H, the instant case.
70 | P a g e
there were good times and there were bad times.
And, at some point, the two decided to move their
separate ways. You'll hear evidence or testimony
that Alma relocated to the state of Louisiana to
work. And you'll hear that Jose stayed behind and
worked with his family. There was visitation of the
child. There was communication between the two. But
Jose has entered into another relationship. And the
evidence is going to show that, in fact, he entered
into this relationship with the Defendant during
the time that he was still with Alma. And as Alma
moved away, he carried on this relationship with
the Defendant. Now, the evidence will show that, at
some point, Jose realized that he had made a
mistake. He realized that he wanted to have his
family and he wanted to be with his wife. He had
made a mistake. That mistake was the Defendant.
Now, Jose began to communicate with his wife, Alma,
and the evidence will show that she decided to come
back, to come back to the Valley, but Jose knew who
71 | P a g e
he was dealing with it. The evidence is going to
show that Jose couldn't just walk away from Lupita
because he knew what she was capable of doing. Now,
Alma made her way back to the Valley. Jose had
purchased a new home for them to share with their
children. And the evidence will show that when Alma
walked into that house, the Defendant was still
there. Why? Because Jose hadn't gotten away from
her yet because he knew who he was dealing with.
He knew what she was capable of. But Jose made an
important decision in that home that day. That
decision would result in the loss of his life, the
decision that he made that day, telling this woman
to leave. He asked her to leave that house. And the
evidence will show that this angered Lupita. She
would make him pay for that choice. Now, Lupita
lived in a home with several of her children. She
had a daughter by the name of Alejandra, and
Alejandra had a boyfriend who was sharing the home,
named Ezekiel Gamez. The Defendant had a son living
72 | P a g e
in that home. His name was Antonio De Leon. He had
a girlfriend he would date at times named Rene
Mejia. The Defendant also had her brother-in-law,
Juan Manuel Salazar, who was living in that home at
that time because he was estranged from her sister.
The evidence will show that Lupita ran that house.
She made the decisions on what was going to happen
in that home. And when Jose asked her to leave his
new home, she had made a decision, but she knew she
wasn't capable of carrying out that decision by
herself. So what did she do? She turned to two men
that she controlled, her son and her brother-in-
law. And you will hear, through her own words,
text messages147 that she shared with the two of
them, a statement of accused or a confession that
she gave investigators.148 You will hear what she
did. In her own words, she tells her son, "I want
147
The text messages are revealed to be a critical component of the
prosecution…again.
148
The Same statements and/or confessions that were used against Appellant
Acuna in the first trial.
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him down."149 The evidence will show that this
Defendant lured the victim to Donna Lakes and that
she contacted her son and her brother-in-law and
told them to come, and that she knew Jose would be
murdered out there that day.150 She knew because
she is the one person who wanted it done. Now,
you're going to hear this presented by way of
witnesses. You're going to see text messages.
You're going to see the Defendant's statement.
And, at the close of all the evidence that's
presented, I'm confident that you will have no
other choice but to find this defendant guilty.
Thank you.
By way of these “opening statements,” it’s apparent
the prosecution had every intent of presenting the same
case to both juries, using the same evidence, the same
witnesses and the same theory.151
The first jury, by finding Defendant was not guilty
149
Yet another critical piece of evidence that was used when Appellant Acuna
was tried the first time.
150
This passage in the prosecution second opening statement is almost word for
word from the State’s opening statement in the first trial.
151
2RR2@13; 2RR7@9 and 1RR2@98
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in Cause No. CR-2725-10-H of “knowingly or
intentionally “causing the death of Jose Guadalupe
Fiscal,” decided reasonable doubt existed Appellant
Acuna committed the offense of murder.152 Further, in
reaching this verdict, the jury considered the Law of
Parties, as they were instructed.153 Therefore, not only
did the first jury decide Appellant Acuna was “not
guilty” as a principal, their verdict illustrates
reasonable doubt Appellant Acuna acted as a party. But
more specifically, by their verdict, the first jury
rejected the notion that Appellant Acuna “asked Jose
Guadalupe Fiscal to drive to the crime scene” as part
of her agreement154 with Antonio DeLeon and Juan Manuel
Salazar that Fiscal be killed; they rejected the notion
that Appellant Acuna “texted Juan Manuel Salazar to
give him notice that she and Fiscal were on their way
152
TEX.PEN.CODE Section 19.02 (O’Connor’s Texas Criminal Codes Plus (2010-
2011); 1CR@196, 206; 7.02
153
1CR@196
154
Note the first paragraph of the indictment in CR-4071-11-H is the same as
the application paragraph (paragraph 5) of the jury charge in CR-2725-10-H;
the jury found in favor of Appellant Acuna in the first trial regarding this
issue, while the indictment in the second case charges the same conduct
already rejected by that first jury. 1CR@196; 2CR@3
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to the crime scene” as part of her agreement155 with
DeLeon and Salazar that Fiscal be killed; they rejected
the notion that she texted Antonio DeLeon that she
wanted Fiscal “six feet under” or that she texted
Deleon that she wanted Fiscal “down so so bad;” they
rejected the notion that she “asked Juan Manuel Salazar
or Antonio DeLeon to kill Fiscal.”156 We know the first
jury in fact deliberated specifically on these notions
because these very notions were included in the
application paragraph of the jury charge in the first
case.157 They believed by their verdict there was
“reasonable doubt” Appellant Acuna, acted alone in this
endeavor. They believed by the verdict a reasonable
doubt existed Appellant Acuna acted together with Juan
Salazar and/or Antonio DeLeon with intent to promote or
assist the commission of the murder by Salazar and/or
155
Note the second paragraph of the indictment in CR-4071-11-H is the same as
the application paragraph (paragraph 5) of the jury charge in CR-2725-10-H;
the jury found in favor of Appellant Acuna in the first trial regarding this
issue, while the indictment in the second case charges the same conduct
already rejected by that first jury. 1CR@196; 2CR@3-4
156
Note the third and fourth paragraph of the indictment in CR-4071-11-H
charges the same conduct as that contained in the application paragraph
(paragraph 5) of the jury charge in CR-2725-10-H; the jury found in favor of
Appellant Acuna in the first trial regarding this issue, while the indictment
in the second case charges the same conduct already rejected by that first
jury. 1CR@196; 2CR@8-9
157
1CR@196
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Deleon. The first jury believed by their verdict that
a reasonable doubt existed Appellant Acuna encouraged,
directed, aided or even attempted to aid Salazar or
DeLeon in their efforts to kill Fiscal.158
The jury’s verdict of acquittal cannot necessarily
be said to be a finding of any “fact.”159 Because that
is the rule of law, Ashe requires a reviewing court:
“to examine the record of the prior
proceeding, taking into account the pleadings,
evidence, charge, and other relevant
matter160in order to assess the applicability
of collateral estoppel. The inquiry must be
set in a practical frame and viewed with an
eye to all circumstances of the
proceedings.”161
In each case where collateral estoppel barred re-
litigation of facts, there’s been an acquittal, which
in and of itself is not a finding of fact. However, in
158
TEX.PEN.CODE Section 7.02 (O’Connor’s Texas Criminal Codes Plus (2010-
2011); 1CR@ 196, 200, 202, 206,
159
United States v. Watts, 519 U.S. 148, 117 S. Ct.633, 136 L. Ed. 2d 554 (1991)
160
397 U.S. at 444, 90 S. Ct. at 1194 (footnote omitted),
161
Id. quoting Sealfon v. United States, 332 U.S. 575, 579, 68 S. Ct. 237, 92
L. Ed. 180 (1947).
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determining whether collateral estoppel applies, Courts
have looked beyond the verdict and examined the record
of a prior proceeding and not based rulings on the
verdict of acquittal.
It is noteworthy that in both cases against
Appellant Acuna, the prosecution’s theory was one of
conspiracy162 - arguing that in order to convict
Appellant Acuna, the jury would need to find Appellant
162
According to Black’s Law Dictionary, Conspiracy is defined as a
confederation between two or more persons formed for the purpose of
committing, by their joint efforts, some unlawful or criminal act, or some
act which is lawful in itself, but becomes unlawful when done by the
concerted efforts of the conspirators. A person is guilty of conspiracy with
another person or persons to commit a crime if with the purpose of promoting
or facilitating its commission he: (a) agrees with such other person or
persons that they or one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation of to commit such crime;
or (b) agrees to aid such other person or persons in the planning or
commission of such crime or of an attempt or solicitation to commit such
crime.
Compare this to the Parties Charge in the Charge of the Court in the
first trial: All persons are parties to an offense who are guilty of acting
together in the commission of an offense. A person is criminally responsible
as a party to an offense if the offense is committed by her own conduct, by
the conduct of another for which she is criminally responsible, or both. A
person is criminally responsible for an offense committed by the conduct of
another if, acting with intent to promote or assist the commission of the
offense, she solicits, encourages, directs, aids, or attempts to aid the
other person to commit the offense. Mere presence alone will not constitute
one a party to an
offense. 1CR@196; TEX.PEN.CODE Section 7.02 (O’Connor’s Texas Criminal Codes
Plus (2010-2011); See Also Wooden v. State, 101 S.W.3d542, 546 (Tex.App.-Fort
Worth 2003, pet. ref’d.)(The evidence must show at the time of the offense
the parties were acting together, each contributing some part towards their
common purpose.)
Compare further with the definition of Conspiracy given the second jury
in the jury charge. 2CR81
Obviously then whether one calls it an agreement, acting together
toward a common purpose or they call it “conspiracy,” it’s the same thing.
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Acuna agreed, directed, texted the co-conspirators
and/or facilitated the common goal of murdering Fiscal
by luring the victim to a location where the co-
defendants were to cause the death of Jose Guadalupe
Fiscal, pursuant to some “agreement.”
In its closing remarks the second time around the
State argued:163
MS. PALACIOS: May it please the Court, ladies
and gentlemen of the jury, Defense Counsel. Good
morning, ladies and gentlemen. I'm going to have
two opportunities to address you this morning
because, as the State, I have the burden of proof,
okay? So the first thing that I want to talk to
you-all about is the Charge of the Court. And I
think that, if you think back to voir dire, you
will remember me talking about the Charge of the
Court, and that is what Judge Garza has just read
to you. These are your instructions, okay? When
you go back into the jury room, you will take this
with you, and you can reference it. Now, we talked
163
2RR10@14
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about a lot of this information during voir dire.
The definition of what "criminal conspiracy" is
given to you in here.164 And if you want to go back
and look at it, you should. "With intent that a
felony be committed, she agreed with one or more
persons or they or one or more of them engaged in
conduct that would constitute the offense and she
or one or more of them performed an overt act in
pursuance of this agreement."165 That was the
definition that you heard in voir dire. And we
broke it down and we talked about the different
elements of that definition. We talked about the
fact that an agreement constituting a conspiracy
may be inferred from the acts of the parties. Now,
why do I bring that up? Because you're not going
to have any type of language saying, "I agree with
you. I am going to kill Jose Fiscal." That is not
164
Again, obviously the State relied on evidence of a “conspiracy” in the
second trial the same way the State relied on the law of parties in the first
trial to show that Appellant Acuna should’ve been held responsible for the
murder because she “orchestrated it.” See Opening statement of first trial
165
Obviously right off the bat, the State in the second trial is relying on a
theory of conspiracy…. Compare this to the jury charge in the first trial
where the jury was instructed they were to convict if they found that
Appellant Acuna……_____________
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-- that's not what the State's burden is. You need
to infer from the communications that were
occurring between the parties that an agreement was
made.166 Now, what type of act are we talking about?
An "act" means a bodily movement, whether voluntary
or involuntary, and includes speech, okay? One of
the ways that we can prove an act is through
speech, the communication, the talking, the
instructions that were given. And I'm going to go
into more detail about these instructions later.
What is an "overt act"? It's any act knowingly
committed by one of the conspirators in an effort
to effect or accomplish some object or purpose of
the conspiracy. The act need not be criminal in
nature. The fact that Lupita took Jose out to Donna
Lake isn't in itself a criminal act, but she was
doing that to accomplish what? The death of Jose.
166
The same way the State argued Appellant Acuna was responsible for the
murder in the first trial. In the first trial the Jury was charged with
finding that Appellant Acuna asked the victim to drive to the crime scene;
whereas in the second trial State argued that she lured the victim to the
crime scene. In both cases, the State relied on the same text messages in
support of the State’s theory that Appellant Acuna, De Leon and Salazar had
reached an agreement and had a plan to kill Fiscal, because she communicated
through the text messages and she lured the victim and she ultimately
“orchestrated the murder.” 1CR@196; 2CR@83
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Now, you have heard talk about other individuals in
this case, and I do not want you to get sidetracked
when you go back into that jury room. You are not
here today, you haven't been here this week, to
decide the fate of Antonio De Leon. That is not
your concern. He either will have or has had his
day in court with a jury. You are not here to
decide the fate of Juan Manuel Salazar. The same
thing. He has his own day in court or he had it or
he will have it. You are here today to focus on
this defendant. Keep your focus on her. Now, Page
Two of the charge, under No. 4, begins what we call
our "application paragraph," and when you look at
that application paragraph, you're going to
recognize the wording that you saw in the
indictment, okay? Remember, we had four paragraphs
in our indictment, and I told you we have four ways
that we can prove that this defendant is guilty of
this offense. And if you read through Paragraph 4
-- I'm sorry -- No. 4, there's four paragraphs. In
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the first paragraph, we're alleging that she's
guilty because she took Jose to the location where
he would be killed.167 That's one way we can do it.
You'll see the word "or." Okay? And what that
means is if you think that I haven't proven that,
which I am going to disagree very, very
strenuously, go to the next paragraph. You can
find that she's guilty by notifying Juan Manuel
Salazar that she and Jose Fiscal were traveling to
the location where he would be killed.168 Go back to
those text messages. I'll go back into them in
more detail later. Again, you're going to see "or."
By directing or telling Juan Salazar to kill Jose
Guadalupe Fiscal or by directing or telling Antonio
Rodriguez De Leon to kill Jose Guadalupe Fiscal.169
167
The first jury was charged with finding that Appellant Acuna “asked the
victim to drive to the crime scene;” the second jury was charged with finding
that Appellant Acuna “lured the victim to the place where he would be
killed.” 1CR@196; 2CR@82-83
168
The first jury was charged with finding that Appellant Acuna “gave notice
that she and the victim were on their way to the crime scene;” the second
jury was charged with finding that Appellant Acuna “notified that she and the
victim were traveling to the location where the victim was killed.” 1CR@196;
2CR@82-83
169
The first jury was charged with finding that Appellant Acuna “asked Juan
Salazar and Antonio DeLeon to kill victim;” the second jury was charged with
finding that Appellant Acuna “directed or told Juan Salazar or Antonio DeLeon
to kill victim.” 1CR@196; 2CR@82-83
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Okay? You can feel that she committed this offense
by committing each and every one of these acts, and
the argument that I'm going to make to you is she
most certainly did, or you can feel that she
committed one of those or two of them. Or you can
disagree amongst yourselves, but it's the same
result. It's still guilty of criminal conspiracy
to commit murder. Paragraph 6. You are allowed to
consider the previous relationship existing between
the accused and the deceased. I'm going to point
your attention to the text messages between the
Defendant and Jose. That's what this paragraph is
talking about. You're allowed to consider, based
on the evidence that's been presented to you, what
was happening between these two parties. And I'm
going to make an argument to you that that's
motive. I told you the State doesn't have to prove
motive, but we have. What was happening? Why was
this defendant angry? Go to those text messages and
read them. The last thing that I want to address
84 | P a g e
with you before I give Defense Counsel an
opportunity to make their arguments is the
"reasonable doubt" language, okay? I want you to
think back to voir dire and how we talked about
reasonable doubt, and we gave a hypothetical about
the rain that had occurred in the parking lot. And
I urge you, please use your common sense. Okay?
We are not required to prove this case beyond all
doubt. Just rely on your common sense and look at
the evidence that's been presented to you. And
don't look at it piece by piece by piece, as
Defense Counsel will probably ask you to do. But
look at the totality of the evidence. The witness'
affidavits or the witness' statements, the
testimony that you heard in the courtroom the text
messages that you saw, the Statement of Accused,
all of those things together. Look at all of it
together. Thank you.
Then:
MS. PALACIOS: Defense Counsel wants to remind you
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that you are holding Lupita's life in your hands.
What I want you to remember, what I need you to
remember is that on July 3rd, 2010, she held Jose's
life in her hands. And I want you to remember the
choice that she made on that day. She could have
stopped what she had set in motion. And was there
a plan? Yes, there was a plan. And who was in
charge of that plan? This woman. Using your common
sense, think about it. Was she going to have him
murdered in her home? Would that be a very good
plan? No. She had to get him out. Could she --
could she have him murdered in the middle of the
night? Based on the evidence that you heard, she
couldn't get him near her at night because Alma was
back in that house. Now, on July 3, 2010, a man's
smoldering body was found beside Donna Lakes. When
officers responded, they found that he had been
stabbed 45 times. In addition to that, his throat
had been slashed. He had been struck over the
head; a blow so strong that that alone could have
86 | P a g e
taken his life. And if that weren't enough, but
you add insult to injury, most of his body was
burnt. He was left there like a piece of trash.
And, yes, you had to see the pictures. You had to
know about it because we're here today because this
woman is accused of murder. And surprise,
surprise, that's exactly what happened. Now, when
investigators arrived at the scene, the first step
that they took, just as in the course of any
investigation, is to determine who this man was.
And they found his identification on his body, and
they were able to learn that this man was Jose
Guadalupe Fiscal. He was 38 years old. Now, the
very first thing you do during the course of an
investigation, you work your way backwards. Now we
know who he is. We need to know who he surrounds
himself with. So they got his phone records, and
they made notification with the family. And what
did they learn? He had a wife named Alma, and they
went to her. And he had a girlfriend by the name of
87 | P a g e
Lupita, and they found her, and they spoke to her.
And when you -- let's not get sidetracked. She gave
-- we heard three statements and three statements
of accused are what's in front of you, but there
were four statements. The first one was an
affidavit, and what do we know about that
affidavit? Investigator Palacios told you, she
didn't mention knowing anything about what had
happened to Joe. She didn't talk about any
problems she was having with Joe. She didn't say
anything about that. So what did investigators do?
They continued to talk to the people that Jose
knew. They talked to Renee Mejia. Renee Mejia --
remember, Renee is the girlfriend of Antonio, wife
now. And she had been at that home and Rene came
forward and she told you, "I went to the police
department and I lied when I spoke to them at
first." But they spoke to her again, and what did
they learn from Renee? They're starting to get an
understanding of what type of woman we're dealing
88 | P a g e
with. Renee told you that she was at the house with
Tony; that they were lying in the bedroom together
and Juan came in and said, "Let's go." They left.
They came back, and what did she say? What did she
notice? What happened when they came back? What
did she smell? Burnt, something burnt, like trash.
She saw Lupe and Juan come into the house, Lupe
telling them, "Stay in the room." Who is calling
the shots? Lupita. Renee notices Tony's hand.
Later, they're over to grandma's house, and what
does Renee tell you? What is she told? What is she
told, and who tells her? "Keep to the story. Stick
together. We were together." And Lupita doesn't
say it once. She says it twice. But Defense
Counsel would like you to believe that she's
scared, she's frozen. If she's frozen, why is this
woman continuing to give directions? Because she
is in charge of the plan. She's giving the
directions before it happened and after it
happened. And what else does Renee tell you? Who's
89 | P a g e
cleaning the Expedition? Well, it's not Lupita.
Who is it? Her boys, Juan and Tony. And Defense
Counsel wants you to think, oh, well, she's not
involved because she wasn't cleaning it. Guess
what? She's not involved in the cleanup. Why
isn't she involved in the cleanup? Because she's
the boss. The boss doesn't get their hands dirty.
The workers get their hands dirty. Jessica. You
heard testimony from Jessica. That is this
defendant's own sister. She was with her the day
before she came to court to testify. What did her
own sister tell you? Again, Lupita wasn't cleaning
the Expedition. But what did she say about her?
She was feeling something. She was hurting. But
it wasn't for this guy. This isn't who she was
hurting for. She was worried about herself. She
was worried about what was going to happen to her
because, remember, this is all about her. She's
thinking, what about me? What's going to happen to
me? Am I going to go to jail? Because it's all
90 | P a g e
about her. Alma Fiscal told you that that phone
kept buzzing and buzzing and buzzing all night
long, and you know that's true because you have the
records. The text messages were coming over and
over and over again, so much that what did Jose do?
He went and parked his truck somewhere else. Why?
Because he knows this woman. He knows what she's
capable of doing. Why he had to slowly remove
himself from her. He parked his car somewhere else
and walked to his house, ladies and gentlemen, so
this woman wouldn't see his truck there. And what
does he tell his wife to do? "Get your car in the
garage. Put the door down." What did Jose know?
Jose, Jr. When Jose didn't answer those text
messages, she had the audacity to involve his
child. I mean, as a parent, you think about that.
She was so desperate to talk to Jose, to get him to
answer her phone calls, that she could cross a line
and bring a child into it. But wait a minute.
Let's not forget who we're talking about, right?
91 | P a g e
Because we're talking about a woman who would be so
cold and so calculating, so manipulative that she
would put a knife in her own son's hand. That is
the kind of woman that you're talking about. That
is this defendant. As the officers continue their
investigation, they get to the text messages. And
I implore you, please, go back and read these. And
the first text messages that I want you to read are
the ones from this defendant to Jose. Close your
eyes and you can just almost imagine her, how angry
she was sitting there on that phone, message after
message after message with no response. She was
boiling. She was enraged, and she was done. And
then look at the last text messages. She's so --
she's so afraid, right? She's so not in control.
What does she do at the end, because it's all about
her. The last messages that she sends, Jose is
dead. She knows that because she was there. But
she sends him messages. "Amor, where are you?"
"Where are you, señor?" She knows exactly where
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he's at. Those messages are coming in at 1:40,
2:14. She knows where he's at. So what is she
doing? She's taking care of the one person that
she always takes care of. Is it Jose? Is it her
own flesh and blood; her son, Tony? Or, no. Who is
it? It's Lupita because that's what it's always
all about. The communication between her, her son,
her brother-in-law, use your common sense, and you
take that and you apply it to what you heard from
the witnesses, from what they saw, what they
experienced. The Defendant's Statement of Accused.
Remember, she gave one affidavit where she said she
didn't know anything, and then she gave three
statements. We're not talking about a rush to
judgment. We're talking about a murder that took
place on July 3rd. We didn't have an arrest until
the early morning hours of July 7th. A rush to
judgment? This woman came in and gave a statement
and took off and was off for a couple of days.
That's not a rush to judgment. The investigators
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are getting information. They're picking up leads.
They're learning new information. That is their
job. That is what they're supposed to do. That's
what we want them to do. When those statements are
taken, what Defense Counsel wants you to do is they
want you to believe that when an officer,
investigator, knows that someone is lying, that's
it. They're just going to stop talking to them.
Especially when that person wants to keep talking.
What do they expect you to do? "You want to tell
me the truth? No, no, no, no. Don't tell me the
truth. Don't tell me the truth. You want to give
it to me, but, no, no, no. I don't want to hear it
because I already got a statement. We're done."
We're not done. You know, that statement is very --
all of them are very, very telling, but the last
one, you know, Defense Counsel wants you to believe
that they're putting words in her mouth; they're
making her say things. Why include that statement
saying, "I regret it. I loved Jose." Why include
94 | P a g e
that statement? I mean, you want this woman;
you've got her. Why are you going to put in -- why
put in language of love now? You're not going to
do that. That language is there because that's what
the Defendant said, and so that's what they put in
her statement. You know, Jose Fiscal will always be
remembered as this 38-year-old man. Always. And
his family has many, many, many beautiful moments
that they're going to remember with them. But
there are some moments that they will never share.
Jose, Jr., will walk across the aisle and receive
his college degree, and when he does that, his
father will not be sitting in the audience beaming
with pride. When Abby falls in love, her father
won't walk her down the aisle and give her away.
When little Gyselle grows up, she probably won't
remember the sound of her father's voice. She
won't remember the warmth of his hug. And why?
Because this woman would not allow it. She was not
going to let it happen. She was tired of it. She
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was sick of it. Nobody else was going to have
Jose. If she couldn't have him, no one would. She
showed him no mercy. And just stop and think what
45 stab wounds means. If she would have found
someone to shoot him in the back of the head, that
would have been an execution, but it would have
been more merciful than what happened to Jose that
afternoon. And I'm going to ask that of you go back
into that jury room and that you hold her
responsible for her actions. Thank you.
Clearly in both opening statements and the closing
argument in the last trial, the prosecution relied on
the same evidence to prove the offense. Further the
jury was instructed in the first trial - in Cause No.
CR-2725-10-H - that the guilt of a defendant in a
criminal case may be proved without evidence that he
personally did every act involved in the commission of
the crime charged. The law recognizes that ordinarily
anything a person can do for himself may also be
accomplished through the direction of another person as
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an agent or acting together with or under the direction
of another person of persons in a joint effort.170
The jury, in order to find the Defendant not guilty
in Cause No. CR-2725-10-H of “knowingly or
intentionally” committing the murder, after considering
the charge, necessarily decided those facts in favor of
Appellant Acuna. The first jury decided there was a
reasonable doubt Appellant Acuna acting alone or in
concert or joint effort knowingly or intentionally
caused the death of Jose Guadalupe Fiscal.171
Knowledge, intent, any agreement, any “overt act”
performed in furtherance of that agreement were
ultimate issues of fact and, because the jury has
considered them, the State cannot re-litigate this
issue.
B. State’s Evidence in Cause Number CR-2725-10-H
State’s witness Eduardo Aleman from the Hidalgo
County District Attorney’s Office was called to testify
at both trials. Aleman testified in his capacity as a
170
TEX.PEN.CODE Section 7.02 (O’Connor’s Criminal Codes Plus (2010-2011);
1CR@196, 2RR10@14,33
171
1CR@200
97 | P a g e
crime scene specialist with the Hidalgo County
Sheriff’s Department at both trials regarding the
“evidence.”172 In both trials, he testified about the
scene of a homicide at the Donna Lakes on July 3, 2010;
he testified regarding observations upon his arrival
and described what he observed for both juries.173,174
Aleman described video-taping and photographing the
crime scene, which video and photos were ultimately
entered into evidence at both trials and published to
both juries.175,176,177 Aleman is then walked through the
photos as both juries are allowed to review them once
they are admitted. Note the prosecutor takes her time
in both trials to go through each of the photos with
this witness. Although numbered differently, these
172
1RR5@20,21; 2RR7@20-22
173
Included in his testimony was how and what he observed at the crime scene
as regarding the victim’s vehicle, the victim’s body and the condition of
each. He testified he observed the body to be slightly burned or not
completely burned. Some of the victims clothing was burned off. He observed
the victim’s body, which was face down, to have stab wounds. He testified he
observed a blood trail between the burnt vehicle and the lake. The victim’s
hair was burned off of the victim’s head. There was blood around the body.
2RR7@24-25; 1RR5@22-24
174
1RR5@22-24; 2RR7@22-26
175
State’s Exhibits 46-88 at the first trial represent photos of the crime
scene at the Donna Lakes – the crime scene. State’s Exhibit 1-31 at the
second trial represent photos of the crime scene at the Donna Lakes – the
crime scene.
176
At the first trial, the video of the crime scene is represented by Exhibit
89. 1RR5@33-34; At the second trial, the crime scene video is represented by
Exhibit 32. 2RR7@37-38
177
1RR5@24-35; 2RR7@29-41
98 | P a g e
exhibits are the same photos used at both trials.
Aleman’s testimony served to show the victim was
stabbed multiple times and the victim was burned.178,179
State’s Witness Fernando Tanguma is called in his
capacity as an investigator with the Hidalgo County
Sheriff’s Department and his association with this
investigation.180 His initial duty here was to interview
Appellant Acuna at the Sheriff’s Office.181 The
statement taken by Tanguma on July 6, 2010 is published
to both juries and the Affidavit, represented by
State’s Exhibit 6 in the first trial and State’s
Exhibit 55 in the second trial, is read aloud to both
juries.182
Next Tanguma described a “body search warrant”
178
This evidence will prove critical at both trials as the State sought both
times to show Antonio De Leon and Juan Salazar actually stabbed the victim.
Aleman’s testimony also served the State’s theory in both trials by showing
that a gas can was found at a canal after receiving “information” from
Antonio De Leon – co-defendant. The State’s theory at both trials was in
fact this gas can was tied to the crime since Aleman has now provided both
juries evidence of the victim being burned.
179
1RR5@51-52; 2RR7@25-26
180
1RR2@102-104; 2RR8@95-96
181
1RR2@105; 2RR8@96 Note that before Tanguma even spoke with Appellant
Acuna, he already had a theory regarding her involvement: that Appellant
Acuna was a jilted lover and that she somehow had some involvement in the
killing of Fiscal. 1RR2@128 After Appellant Acuna gave Tanguma the initial
affidavit on July 6, 2010, he left her in the custody of Leonor Garcia.
1RR2@122, 131
182
1RR2@115-121; 2RR@111-115
99 | P a g e
executed on Antonio Rodriguez De Leon, Juan Manuel
Salazar, Guadalupe Acuna and Ezequiel Gamez.183 Note
the testimony regarding body search warrants is not
covered by the prosecution with this witness in the
second trial.184 This is important to note as the DNA
evidence/testimony that was adduced at the first trial
served to “exclude” Appellant Acuna’s DNA from any and
all evidence in this case subjected to analysis. In
other words, the DNA evidence didn’t do the State any
good the first time around; it was not necessary the
second time around.
State’s Witness Leonor Garcia testified in her
capacity as an investigator with the Sheriff’s
Department; she testified at both trials.185 Garcia
obtained phone records of Appellant Acuna and the
alleged co-conspirators, Juan Manuel Salazar and
183
1RR2@123-124 DNA Analyst Edna Zavala would be called to testify at the
first trial. Her testimony is discussed herein below. Interestingly, her
testimony would serve to show that Appellant Acuna was excluded from all
evidence submitted for analysis. This is important to consider since she was
NOT called to testify at the second trial - an example of the State getting
another shot at Appellant Acuna and “fixing” their case.
184
Rather, since the DNA proved to exclude evidence of Appellant Acuna at the
first trial and the first jury obviously found in favor of Appellant Acuna
the first time around, the State noticeably left this evidence out the second
time around.
185
1RR2@143; 2RR9@27
100 | P a g e
Antonio De Leon.186
She helped Tanguma interview Appellant Acuna; she
told both juries Appellant Acuna wasn’t being
truthful.187 Garcia suggested Appellant wanted to “come
clean,” and another statement was given by Appellant
Acuna.188 This statement was read aloud to both
juries.189 Then, Garcia testified about yet another
statement,190 represented in the record on appeal as
State’s Exhibit 8 in the first trial and State’s
Exhibit 57 at the second trial. This was entered into
evidence at both trials and read aloud to both
juries.191
On cross examination at the first trial, Garcia
admitted the investigation relied on a theory Appellant
186
1RR2@144; 2RR9@29; At both trials, there were “summaries” of text messages
between Appellant Acuna, Jose Fiscal, Antonio De Leon and Juan Salazar
published to the juries. They were identified as State’s Exhibits 20, 21 and
22 at the first trial.________________________ At the second trial, these
same “summaries” are identified as State’s Exhibits 37, 38 and 39. 2RR8@6-7
187
1RR2@146-149; 2RR9@33-36
188
1RR2@150-151, 164; 2RR9@37-38 By this time, Appellant Acuna has given an
initial statement to Investigator Palacios; she’s given one to Investigator
Tanguma and now she gives another to Investigator Leonor Garcia. This 3rd
statement was identified as State’s Exhibit 7 at the first trial. 1RR2@150-
151 It was designated as State’s Exhibit 56 at the second trial. 2RR9@39-40
189
1RR2@165-169; 2RR9@42-46
190
This statement will be the 4th statement given by Appellant Acuna and the
second statement given to Leonor Garcia. This statement was identified as
Exhibit 8 at the first trial and Exhibit 57 at the second trial. 1RR2@172-
175; 2RR9@48-50
191
1RR2@175; 2RR9@52
101 | P a g e
Acuna knew what she’d done and she’d planned it. In
other words, “they were going to go.” “She knew that
they were going to kill him.” “She lured him to where
she was at.”192 Garcia admitted at the first trial, by
the time she took the second statement, investigators
already had this theory of the crime.193 She admitted
the “phone records” cemented the investigators’ theory
Appellant was involved.194 State’s Exhibit 8 at the
first trial and State’s Exhibit 57 at the second trial
(same exhibit) was heavily relied upon by the State at
both trials to show Appellant Acuna knew “they” were
going to do it because she had asked them to do it.
“On Saturday, July 3, 2010, I knew Jose was going
to be killed. I regret asking anyone to kill Jose.
I loved him.”195
Then at the second trial, again, Garcia admits the
evidence used to arrest Appellant Acuna was the same
text messages and same confession. And before that
192
1RR2@186
193
1RR2@188-189
194
1RR2@190
195
State’s Exhibit 8 at the first trial and State’s Exhibit 57 at the second
trial; 1RR2@190; 2RR9@48-50
102 | P a g e
statement represented by State’s Exhibit 8 in the first
trial and State’s Exhibit 57 in the second trial was
taken where Garcia admitted she’d already received the
text message evidence from the phone records. She also
admitted that investigators “had all talked.”196 Clearly
then, at both trials, the evidence by this witness was
identical. Further, this witness admitted at both
trials that the evidence heavily relied upon in
supporting the theory Appellant Acuna was involved was
the text message evidence and Appellant Acuna’s
statements.
At the first trial, Garcia responds to the
prosecutor that Appellant Acuna was not charged with
murder because she knew about the killing of Jose
Fiscal. Rather, she was charged with Murder because
she “asked and planned it.”197
Garcia then admitted on cross examination at the
first trial that the investigation revealed and she
believed Appellant Acuna’s son, Antonio De Leon and
196
2RR9@54, 57-58
197
States Exhibit 8 at First Trial ; State’s Exhibit 57 at Second Trial;
1RR2@200
103 | P a g e
Appellant Acuna’s brother-in-law, Juan Salazar were the
ones who stabbed Jose Fiscal.198 Garcia advised she
corroborated Appellant Acuna communicated with Antonio
Rodriguez De Leon and Juan Salazar; that she was “going
to the beach; that her vehicle had been seen at the
crime scene.”199 This was further driven home to the
first jury on re-direct by the prosecutor where she
called on Garcia to confirm with regards to the
statements Appellant Acuna provided, Antonio Rodriguez
De Leon and Juan Salazar were acting on Appellant
Acuna’s request.
“And the actions that they (Antonio De Leon and
Juan Salazar) took on July 3rd, 2010 were requested
by Appellant Acuna.”200
Then at the second trial, this portion of Appellant
Acuna’s statement was read in response to the
prosecutor’s questioning of Garcia.
“I regret asking anyone to kill Jose. I loved him.”
The prosecutor made it a point to ask this witness,
198
1RR2@203-204
199
1RR2@203
200
1RR2@205-206
104 | P a g e
“who said that?” Garcia responded “Appellant Acuna said
that.”201
CLEARLY, the State’s theory of prosecution in the
first case was one of conspiracy even though Appellant
Acuna was charged with the substantive offense of
Murder.202 It is equally clear the same theory of
prosecution was implemented and relied upon by the
State at the second trial, using this witness’
testimony.
State’s Witness Aaron Reyes Garcia testified he
worked and lived close to the Donna Lakes. While
eating lunch on July 3, 2010, this witness noticed a
plume of smoke coming from the Donna Lakes.203 He
testified upon discovering the plume of smoke, he went
to the street to get a closer look; that’s when he says
he saw a “light brown SUV,” possibly an Expedition.
This witness identified State’s Exhibit 16 as possibly
201
2RR9@99
202
TEX.PEN.CODE Section 19.02 (O’Connor’s Texas Criminal Codes Plus (2010-
2011)….and acquitted…
203
1RR3@7-9; 2RR7@46-47
105 | P a g e
being the same light brown SUV he saw that day.204
State’s Exhibit 16 at the first trial represented a
photo of Appellant Acuna’s vehicle.205 CLEARLY, this
witness served both prosecutions by placing Appellant
Acuna and/or her vehicle at the scene of the murder.
State’s Witness Jonathan Palacios testified in his
capacity as the lead investigator in this case.206
Preliminarily, he talks about what he observed at the
crime scene and then turned to what his role was in the
investigation.207 Palacios then talked about how he
made it to an address on King Drive, an address where
the victim’s family advised Jose Fiscal was living with
his girlfriend, “Lupita.”208 “Lupita” was identified as
Appellant Acuna.209 Palacios takes a statement from
Appellant.210 After, Palacios returned to 2510 King
Drive and confirmed the occupants; “Lupita’s” son,
204
State’s Exhibit 16 in the first trial. 1RR3@11-12 Note that no exhibit was
sponsored by this witness at the second trial although he described the same
vehicle at the second trial as a brownish/cream SUV like an expedition.
2RR7@48; A photo referred to as State’s Exhibit 35 depicting the victim’s
vehicle would later be sponsored by state’s witness Renee Mejia. 2RR7@62-63
205
1RR3@10-11
206
1RR3@27-29, 30; 1RR4@64-65; 2RR7@89-90
207
1RR3@30-33, 35-37; 2RR7@91-92
208
2510 King Drive in Donna, Texas was the residence where Appellant Acuna and
the victim lived together. 2RR7@94-96
209
1RR3@37-38
210
1RR3@39-40
106 | P a g e
Antonio De Leon and brother-in-law, Juan Salazar were
among the occupants of the home.211 These two were named
as co-conspirators and were also the subject of the
State’s theory; they were the actual killers.212
Palacios advised the jury he called upon fellow
investigators, Joshua Kaltenbach, Leonor Garcia and
even the FBI to assist in obtaining phone records.
Phone records were obtained for Appellant Acuna,
Antonio De Leon, Juan Salazar and Jose Fiscal.213 These
records were admitted at the first trial as State’s
Exhibits 19, 19A, 19B and 19C at the first trial amd
State’s Exhibits 40, 41 and 42 at the second trial
representing the phone records of Appellant Acuna, Juan
Salazar and Antonio De Leon.214 These exhibits contained
numerous records of communications between various
individuals.215
“But based on the State’s theory that these three
211
The testimony at both trials was developed to identify these two
individuals as Co-defendants; they were identified at both trials as the ones
with whom Appellant Acuna agreed to kill Jose Fiscal.
212
1RR3@41-42; (See Leonor Garcia’s testimony)
213
1RR3@43-44, 50-51, 54-55; 1RR4@19; 2RR7@105-107
214
1RR3@53-54; Three disks containing phone records and text messages. A
“significant” amount of information is contained on these three disks.
1RR4@22; 2RR8@5-6
215
1RR4@22; 2RR8@5
107 | P a g e
individuals were involved in this killing, we were
looking for communications between them and these
three numbers were ‘filtered’ out – those belonging
to Appellant Acuna, Juan Salazar and Antonio De
Leon. We filtered their numbers out and further
filtered by date concentrating on the dates July 1-
3, 2010, given that the victim was found July 3,
2010.216
Investigators included filters of the victim’s
phone number.217 Given the voluminous nature of these
phone records,218 Palacios testified it would be helpful
to present the text messages in a summarized format.219
State’s Exhibit(s) 20, 21 and 22 are offered and
admitted representing “summaries” of State’s Exhibits
19, 19A, 19B and 19C, given that they were very
voluminous.220
216
1RR4@22-23; 2RR8@7-8
217
1RR4@23; 2RR8@8-23
218
State’s Exhibit 19, 19A, 19B, and 19Cat the first trial. State’s Exhibits
40, 41 and 42 at second trial. 2RR8@5-6
219
1RR4@24; Investigator and the prosecution actually go through the texts
from the victim and Appellant Acuna at both trials. 2RR8@8-23
220
2RR8@7-8; 1RR4@24; The summary contained in State’s Exhibit 20 at the
first trial and State’s Exhibit 37 at the second trial contains the text
messages between Appellant Acuna and the victim Fiscal from July 1, 2010 at
12:01 a.m. to July 3, 2010 at 4:13 p.m. 1RR4@25; 2RR8@8 State’s Exhibit 21
at the first trial and States Exhibit 39 at the second trial represents text
108 | P a g e
Investigator Palacios and the prosecutor in the
both trials publish these exhibits to the jury and go
through each text message communication. Referring to
the summary of text messages contained in the last page
of State’s Exhibit 20 in the first trial, there’s a
text message at 11:24a.m. where Appellant Acuna texted
the victim and told him, “come for me.”221 Palacios
testified he was able to confirm Appellant Acuna and
the victim were together after that time.222 He used
the surveillance footage at Pepe’s Drive Thru in Donna.
Relying on information provided by Appellant Acuna in
her Statement of Accused, Palacios in fact recovered
video surveillance from Pepe’s Drive-thru in Donna
where it was determined the victim and Appellant Acuna
messages between Appellant Acuna and her son Antonio De Leon between July 1,
2010 at 11:25 a.m. and July 5, 2010 at 4:49 p.m. 1RR4@25; 2RR8@23-24
State’s Exhibit 22 at the first trial and State’s Exhibit 38 at the second
trial represents text messages between Appellant Acuna and Juan Salazar
between July 2, 2010 at 4:40 p.m. and July 3, 2010 at 12:14 p.m. 1RR4@26;
2RR8@26
221
2RR8@23;
222
Note that there are three (3) more text messages recorded from Appellant
Acuna to the victim after that. Palacios tells the jury that by the time
those texts are sent, the victim’s body had already been found. 1RR4@41; At
the second trial, Palacios makes this point as well when he testifies that he
was called to the crime scene “before lunch” when these last texts came in
after lunch. 2RR8@23
109 | P a g e
stopped on the day of the murder.223 This footage was
represented by State’s Exhibit 18 at the first trial
and was published to the jury to corroborate the
investigation.224
Next, Palacios goes through the summary of text
messages between Appellant Acuna and Antonio De Leon;
this is done at both trials. Notably, the jury hears
about a text from Appellant Acuna to Antonio De Leon,
to wit:
“It’s like I want him six-feet under.” “I want him
down so, so bad.”225
Palacios and the prosecutor then discuss the
summary of text messages showing communications between
Appellant Acuna and Juan Salazar. Notably here, the
prosecution is relying on text messages where Appellant
Acuna is receiving texts from Juan Salazar; he tells
her to try to take him over there;226 where Appellant
223
Appellant Acuna in her Statement of Accused told investigators that she and
Fiscal had stopped at Pepe’s on the way to the Donna Lakes that day.
1RR4@41;
224
1RR3@45-48.
225
1RR4@41-44; 2RR8@24-25
226
Given the State’s theory that Appellant Acuna “lured” the victim to the
Donna lakes where he was murdered, “him” here likely refers to Jose Fiscal.
2RR8@26-28
110 | P a g e
Acuna tells Juan Salazar that they are on their way to
the “beach,” which Palacios confirms means the Donna
Lakes.227 There are text messages where Appellant Acuna
and Juan Salazar text each other confirming they are in
fact “there.”228 Palacios testified these texts back and
forth about being on the way to the beach and about
being at the beach showed Appellant Acuna was with the
victim and Juan Salazar and Antonio De Leon were in
fact together.229
These text messages led to a search warrant for
2510 King Drive, where Appellant Acuna lived together
with Antonio De Leon and Juan Salazar.230 Investigators
discovered among other items, a beige Ford Expedition,
which Palacios described as “recently cleaned and/or
detailed.”
“It was extremely clean. The carpet had striation
patterns as if recently vacuumed, the outside of
the vehicle was very clean as if it had just been
227
1RR4@47; 2RR8@27
228
1RR4@44-46; 2RR8@27
229
1RR4@46; Palacios confirmed this by way of Appellant Acuna’s Statement of
Accused and the surveillance footage from Pep’s Drive Thru admitted as
State’s Exhibit 18. 1RR4@47; 2RR8@26-28
230
1RR4@47
111 | P a g e
washed.”231
Those present at the residence when search warrant
was executed included, Appellant Acuna, Antonio De
Leon, Juan Salazar and Renee Mejia. Each agreed to
accompany investigators to the Sheriff’s Department.232
Later that day, Juan Salazar was arrested and charged
with murder; his arrest was based on witness
statements, co-defendant’s statements of accused,
physical evidence and DNA evidence.233 Antonio De Leon
gave a statement; he was arrested that day as well.
His arrest was based on his own statement of accused,
phone communications, text messages, physical evidence
collected, co-defendant’s statements and witness
statements.234 Ezequiel Gamez was also arrested and
charged with tampering with evidence as the
investigation revealed he washed the Expedition
belonging to Appellant Acuna.235 Gamez’ arrest was based
on co-Defendant statements, witness statements, along
231
1RR4@47-48; 2RR7@107-108
232
1RR4@48-53; 2RR7@108-109
233
1RR4@53; 2RR7@110
234
1RR4@53-54; 2RR7@110
235
Ezequiel Gamez was the boyfriend to Appellant Acuna’s daughter at the time.
1RR4@52; 2RR7@110-111
112 | P a g e
with his own statement of accused.236 Appellant Acuna
was also arrested that day; her arrest was based on
physical evidence collected, co-defendant statements,
witness statements, and phone texts and
communications.237
After these arrests were made and after additional
information was received,238 another search was
conducted at a canal called Relampago. Investigators
went there searching for a punctured black trash bag
with a tire iron and bloody clothing. Once there,
Investigators recovered a gas can and camp fuel.239 The
significance of this find was investigators received
“information”240 there would be found a black bag
containing bloody clothing, the gas can used to burn
the victim and his vehicle and a knife.241
Next, Palacios tells the jury about a knife that
236
1RR4@54-55
237
1RR4@55
238
Note that the record in the first trial illustrates that co-defendant
Antonio De Leon gave his own Statement of Accused. However, when asked about
“information received from Antonio De Leon, the defense objected and the
witness did not answer. However, it’s easy to glean from the record that the
information regarding evidence of the murder dumped at a nearby canal in fact
came from Antonio De Leon, co-defendant. 2RR7@111-112
239
2RR7@112
240
Note again that this “information” likely came from the Statement of
Accused given by co-defendant Antonio De Leon.
241
1RR4@57; 2RR7@11-112
113 | P a g e
was found at 410 Jalapeno Drive home, Appellant Acuna’s
mother’s home. Guadalupe Bustamante Acuna gave
information about a knife her daughter, Appellant Acuna
gave her to hide. As it turns out, the knife was not
affirmatively linked to the crime.242
Next, Palacios admits that there was no DNA
evidence affirmatively linking Appellant Acuna to this
crime.243 While Palacios admits he took an affidavit
from Renee Mejia, he admits no information was provided
by Mejia that would have led to Appellant Acuna’s
arrest.244 Palacios could not point to any physical
evidence corroborating Appellant Acuna’s involvement in
this crime other than a general statement “the physical
evidence was corroborated.”245 Regarding the gas can
found at the canal believed by the investigation to be
the gas can used to burn the victim and his vehicle,
242
1RR4@59-60, 62, 68, 107-108; 2RR7@113-114
243
1RR4@73; 2RR7@114
244
1RR4@101; The prosecution did not cover this area at the second trial with
this witness. Notably, it did not inure to the benefit of the first
prosecution. It’s not surprising the prosecution chose to “refine” the
presentation at the second trial and leave this out.
245
1RR4@106-107; Again, the prosecution did not cover this area at the second
trial either with this witness. Notably, it did not inure to the benefit of
the first prosecution so it’s not surprising the prosecution chose to
“refine” their presentation at the second trial and leave this out.
114 | P a g e
Palacios admits no tests were run on that gas can to
confirm it was in fact the gas can used in this case.246
The prosecution makes sure to re-direct the witness
at the first trial and remind the jury that the text
messages were considered in determining whether
Appellant Acuna should be arrested.247 Then at the
second trial, on cross examination, this witness admits
the text message communication was critical in arriving
at probable cause for the arrest of Appellant Acuna.248
CLEARLY, the State’s theory of prosecution in the
first case was one of conspiracy even though Appellant
Acuna was charged with the substantive offense of
Murder.249 It is equally clear the same theory of
prosecution was implemented and relied upon by the
State at the second trial, using this witness’
testimony.
State’s Witness Sandra Rangel is called to testify
in her capacity as a Crime Scene Specialist with the
246
1RR4@108-109
247
1RR4@119; 2RR8@6-27
248
2RR8@61-62
249
TEX.PEN.CODE Section 19.02 (O’Connor’s Texas Criminal Codes Plus (2010-
2011)….and acquitted…
115 | P a g e
Sheriff’s Department.250 She attended the autopsy. Her
duties included photographing the autopsy and
recovering physical evidence.251 She sponsors video and
photos that she took at crime scene and at autopsy.252
She testified about her efforts to recover evidence at
that residence as well.253 Rangel testified about her
involvement in executing a search at a canal on
Military Highway 281, at Relampago. This is the same
canal referred to by Investigator Palacios. She
photographed the area and assisted in recovering
evidence at the canal. She helped describe the gas can
that was recovered.254
Rangel described the processing of the beige
Expedition recovered in this case, belonging to
Appellant Acuna. She helped publish photographs of the
vehicle and commented that it was “very, very clean.”255
State’s Witness Edna Zavala was called to testify
for the State in her capacity as a DNA Analyst employed
250
1RR4@142; 2RR8@63
251
1RR4@143-144; 2RR8@63-68; Victim’s burnt and bloody clothing, fingernail
clippings, hair, some currency that was on the victim’s person when he died
252
1RR4@146-151
253
1RR4@151-153
254
1RR4@155-159-172; 2RR8@68-69
255
1RR4@160-164; RR8@70-72
116 | P a g e
by DPS and here to testify specifically regarding DPS
Crime Lab number L3M84452.256 She testified about
receiving known samples from the suspects and the
victim in this case.257 As it relates to Appellant
Acuna, her DNA profile was excluded from any and all
items of evidence submitted for analysis/comparison.258
We know that at the first trial, her testimony served
no purpose but to “exclude” Appellant Acuna from any
affirmative link to this offense. Naturally, then the
State decided she would not serve their cause. This is
an example of the State learning from the first trial
what worked and what did not. The State adjusted and
of course this witness was not called back to testify
at the second trial.
State’s witness Alma Fiscal was called to testify
for the State at both trials.259 She was called to
256
1RR4@183; Note that Edna Zavala is NOT called to testify at the second
trial. As previously noted, this witness did not serve the prosecution in any
way. In fact her testimony at the first trial was that Appellant Acuna was
not “biologically connected” to the evidence submitted for analysis.
Conceivably then and more likely – probably – the State left this witness out
when they presented the case to the second jury. It did not inure to the
benefit of the prosecution the second time around.
257
1RR4@192-193
258
1RR4@204-205, 210
259
1RR5@156; 2RR9@101
117 | P a g e
identify the victim, as she is his wife. Exhibit 90 is
offered to help the jury identify the victim.260 She
provided context to the marriage and advised the jury
they were married 15 or 16 years and they had children
of the marriage as well. Then the jury was told the
victim was involved with another woman which caused
problems between them. The “other woman” was Appellant
Acuna.261 An apparent decision was made between Alma
Fiscal and the victim; they decided they’d give their
marriage another try and decided when and where they’d
reunite. During this time, the victim was still in a
relationship with Appellant Acuna. The victim’s
apparent plan was to break off the relationship with
Appellant Acuna “little by little.”262
Alma Fiscal returned to the valley on July 1, 2010
and went to “the house” where she saw the victim and
Appellant Acuna home at the time.263 Alma confronted
260
1RR5@157; Note that no exhibit was sponsored by this witness to identify
the victim, however it was clear from her testimony at the second trial that
she was the victim’s wife and the father of their children. 2RR9@101-103;
Note that Renee Mejia would be called upon to sponsor the photo of the victim
in this case. 2RR7@61 referred to as State’s Exhibit 33
261
1RR5@158-159; 2RR9@102-103
262
1RR5@160-161, 185; 2RR9@104
263
1RR5@162-163; 2RR9@106
118 | P a g e
the victim and demanded Appellant Acuna leave the
residence, as it was “her house.” Alma testified at
that point, the victim spoke with Appellant Acuna and
Appellant Acuna had a “pissed off” face;” Appellant
Acuna left with a trash bag full of clothes.264 Later
that night, Alma testifies the victim’s phone kept
going off, ringing and texting, etc. Alma saw the
victim ignore these calls and texts.265 That night, the
victim’s truck was missing from the house, as he
claimed it had broken down; the victim also advised
Alma to put her car in the garage and lock it. His
reasoning was “just in case.”266
State’s witness Jose Fiscal testified at both
trials as well.267 This is the victim’s son who was
called before the jury to discuss how his father, the
victim, wanted to get back together with his mom, Alma
Fiscal but he couldn’t do it right away. He said the
victim told him he needed to pack his things and they
needed to move out while she, Appellant Acuna, was
264
1RR5@163-164, 193; 2RR9@107
265
1RR5@166-168; 2RR@108
266
1RR5@167, 194; 2RR9@109
267
1RR5@187; 2RR9@115
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gone.268 Lastly, this witness left the jury with a
comment that Appellant Acuna supposedly made. He told
the jury Appellant Acuna remarked in the past if his
dad ever messed up with her, to be sure the cops pick
her up and a body bag for his dad.269
State’s witness Renee Mejia testified at both
trials.270 She was the girlfriend/wife of Antonio De
Leon. She testified she and her husband lived at the
2510 King Drive address with Appellant Acuna and Juan
Salazar.271 Mejia left the house on July 3, 2010 at
around 10:30 or 11 a.m. She returned at around 11:00
or 12:00. When she got back, she, Antonio De Leon and
their children were in their room watching movies.
While they were there, Juan came in and told Antonio to
go with him. They left in Appellant Acuna’s
expedition.272 Then Appellant Acuna, Juan and Tony
returned together around 12 or 1. Mejia testified she
didn’t see what they were driving when they came back
268
1RR5@190-191; 2RR9@118
269
1RR5@196; 2RR9@121
270
1RR5@94; 2RR7@50
271
1RR5@95-96; 2RR7@50-51
272
1RR5@97-98; 2RR7@59-60
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but she saw Lupita and Juan enter the house and “they
were panicking.” She saw them run toward the back of
the house. She was in her room and she heard them come
in and opened her bedroom door. When she did this,
they yelled for me to close the door. I could smell an
odor of “burning” as they ran by my room.273 When
Antonio got home, he came into the room and Mejia
noticed the cut on his finger. He didn’t have that cut
when he left the house earlier. He was acting scared;
he was acting different than when he left.274 I saw the
Expedition after they got home and it was muddy.275
Antonio told her Juan Salazar had done something to
Juan Fiscal.276
Later after “Lupita” came back from the sheriff’s
office, Mejia said that Appellant told everyone to say
that they’d been together and to stick to the story.
But Mejia said that was a lie because she knew Lupita
had left with Joe.277 Then Juan made a comment that if
273
1RR5@99-100-101; 2RR7@65
274
1RR5@101-102; 2RR7@66-67
275
1RR5@103; 2RR7@68
276
1RR5@103
277
RR5@106, 117 ; 2RR7@69-70, 77
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you say anything, you “drop.”278 So the first time Mejia
spoke with the investigators, she stuck to the story;
later, she went back and told them “everything.”279
CLEARLY, the State’s theory of prosecution in the
first case was one of conspiracy even though Appellant
Acuna was charged with the substantive offense of
Murder.280 It is equally clear the same theory of
prosecution was implemented and relied upon by the
State at the second trial, using this witness’
testimony.
CONCLUSION
Appellant Acuna was twice put in jeopardy for the
“same offense” in violation of her rights under the
Fifth Amendment and the Due Process Clause of the
Fourteenth Amendment to the Constitution of the United
States of America.
Collateral Estoppel guarantees “when an issue of
278
1RR5@107; 2RR7@77
279
1RR5@108
280
TEX.PEN.CODE Section 19.02 (O’Connor’s Texas Criminal Codes Plus (2010-
2011)….and acquitted…
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ultimate fact has once been determined by a valid and
final judgment, the issue cannot again be litigated
between the same parties in any future lawsuit.
Appellant Acuna avers the evidence in this case
illustrates the same theory and evidence was presented
to the second jury after acquittal by the first.
This second trial should have been completely
barred since the first jury determined an ultimate fact
in the former trial which was an essential element of
this subsequent prosecution. Further, this subsequent
prosecution – even if allowed – should have only been
allowed without introduction or argumentation of facts
necessarily decided in the prior proceeding.
PRAYER
For the reasons set forth herein, Appellant Acuna
prays this Court reverse the judgement of the Court
below and render a judgment of acquittal and/or enter
an order barring the re-trial of Defendant upon the
indictment and dismissing this indictment and the
prosecution based thereon upon the fact that she was
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acquitted in Cause No. CR-2725-10-H of the exact same
conduct she was charged with in the case at bar.
In the alternative, this Court should rule that the
Doctrine of Collateral Estoppel barred the introduction
in the trial of the case at bar of evidence that was
used against the defendant in Cause No. CR-2725-10-H.
Accordingly Appellant Acuna’s rights guaranteed by the
5th Amendment’s Double Jeopardy Clause were violated. As
such, Appellant Acuna prays this Court reverse and
render a judgment of acquittal and/or reverse and Order
this indictment dismissed with prejudice.
Appellant Acuna prays that this Court sustain these
points and render a judgement of acquittal.
Respectfully submitted,
O. Rene Flores, P.C.
1308 S. 10th Ave.
Edinburg, TX 78539
(956) 383-9090
(956) 383-9050
By:/S/ O. Rene Flores
O. Rene Flores
SBN 24012637
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CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of
the foregoing Amended Appellate Brief was served in
accordance with the rules on the following persons:
Theodore “Ted” Hake
Assistant District Attorney
Hidalgo County District County Attorney
Appellate Division
Hidalgo County Courthouse
100 N. Closner
Edinburg, Texas 78539
By: Hand delivery
Appellant Guadalupe Acuna
TDCJ Number 01886272
Texas Department of Corrections
Mountain View Unit
Gatesville, TX 76528
CM/RRR 7009 2250 0001 0464 8372
/S/ O. Rene Flores
O. Rene Flores
CERTIFICATE OF COMPLIANCE
Pursuant to TRAP 9.4 (3), I hereby certify this
Brief contains 23,606 words.
/S/ O. Rene Flores
O. Rene Flores
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