2011-06

York, Rickie Dawson ( 2011 )

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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0088-10
RICKIE DAWSON YORK, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE TWELFTH COURT OF APPEALS
SMITH COUNTY
K ELLER, P.J., delivered the opinion of the Court in which M EYERS, P RICE,
K EASLER, H ERVEY, and A LCALA, JJ., joined. W OMACK, J., filed a concurring opinion.
C OCHRAN, J., filed a concurring opinion in which J OHNSON, J., joined.
We must resolve two issues in this case. First, did a police officer have reasonable suspicion
to detain appellant, who was asleep in a car, with the lights on and the engine running, parked on a
sidewalk in front of a gas station during the early morning hours? Second, does the doctrine of
collateral estoppel require the suppression of evidence in a subsequent prosecution when that
evidence was suppressed in an earlier prosecution arising from the same facts? The answer to the
first question is relatively straightforward. But to answer the second question, we must deconstruct
YORK — 2
earlier opinions from this Court and re-analyze the question from scratch.
I. BACKGROUND
A. Criminal Investigation
Leland Shawn Johnson was a patrol officer for the City of Bullard, in Smith County. On his
way to Tyler1 at around 3:00 a.m. on October 16, 2007, he passed an Exxon gas station that was
outside the city limits of Bullard but still in Smith County.
Officer Johnson was personally aware that this particular Exxon station had been burglarized
at least once during the previous two years, and he had been advised by deputies that other burglaries
had occurred there. The Exxon station was closed for the night, but a car was parked partially on
the sidewalk immediately in front of the Exxon store, with the headlights shining on the store
window. The headlights were shining into the business. From Officer Johnson’s vantage point on
the road, the car appeared to be almost touching the front door glass. The light from the headlights
was being reflected back into the vehicle, and the car did not appear to be occupied. Officer Johnson
parked behind the vehicle, turned his headlights off, and approached on foot.
He saw that the car’s engine was running, the driver’s rear window was down, and appellant
was in the car asleep with the seat laid back. Officer Johnson did not smell any alcohol, nor did he
see any items in the car that might have been taken in a burglary. He watched appellant for a few
minutes and looked around for weapons before waking appellant up. Appellant expressed surprise
upon being awakened.
Officer Johnson asked appellant for identification, and appellant said that he had left it at
1
Bullard “closed down” by 10:00 p.m., and officers working late-night shifts were allowed
to go to Tyler to get something to eat.
YORK — 3
home. Officer Johnson then asked appellant to step outside the vehicle. In the ensuing conversation,
appellant expressed confusion regarding where he was, saying that he was in the Chapel Hill area,
when he was not even close to there. Officer Johnson then asked if appellant had any weapons.
Appellant said that he did not, and he gave Officer Johnson consent to search his person. The search
revealed that appellant possessed marijuana and methamphetamine, and he was arrested. Appellant
gave Officer Johnson a false name after the arrest.2
B. First Prosecution: Failure to Identify
The criminal district attorney’s office first prosecuted appellant in a county court at law for
the misdemeanor offense of failure to identify.3 The case was tried to a jury, with the sole evidence
being Officer Johnson’s testimony. In addition to facts outlined above, Officer Johnson testified
during cross-examination about whether he had seen appellant committing certain offenses:
Q. Would you say that in those couple of minutes [of watching appellant sleeping],
you were able to determine that there was not a burglary at that location going on?
A. Well, I couldn’t say that there was one occurring at that time, yes.
Q. Okay. And you didn’t see any kind of property or anything in the car, did you?
A. Not from standing outside, no.
Q. Nothing that would give you reason to believe that he had burglarized that store?
2
The facts elicited in the failure to identify prosecution were different in the following
respects from the testimony in this case: (1) Officer Johnson testified that the headlights were shining
on the window, but he did not specifically testify that the headlights were shining “into the business.”
(But one of the prosecutors argued to the county-court-at-law judge: “The car was -- the lights were
on inside the store illuminating the store.”) (2) Officer Johnson testified that the “rear windows”
were down, not just the driver’s rear window. (3) Officer Johnson did not testify about appellant’s
“Chapel Hill” statement. These differences are immaterial to our resolution of the issues before us.
3
See TEX . PENAL CODE § 38.02(b).
YORK — 4
A. No.
***
Q. Officer, at that time when you asked for consent to search and continued your
investigation, Mr. York hadn’t committed any type of felony offense within your
view at that time, had he?
A. No, he had not.
Q. He had not committed any type of offense that would be considered a breach of
the peace; is that correct?
A. No, he had not.
Q. He hadn’t committed any type of public order crime, such as a riot or something
to that effect?
A. No, he had not.
Q. He had not committed, in your view, an offense under Chapter 49 of the Penal
Code, which is DWI, intoxication manslaughter, that type of offense. He had not
committed any, correct?
A. No, he had not.
Officer Johnson also testified that a video of the incident existed, but he did not have it.
Outside the presence of the jury, the parties and the county court at law judge discussed two
defense motions: a motion for directed verdict of acquittal and a motion to suppress evidence. Both
motions were based on the idea that the State failed to prove that appellant’s arrest or detention was
lawful. The defense first raised these motions after the State’s direct examination, but the judge
denied the motions at that time. After defense counsel’s cross-examination, the parties and the judge
resumed discussion of these issues, which included remarks by the judge regarding the officer being
outside of his jurisdiction. Ultimately, the judge granted the motion to suppress. Before bringing in
the jury, the judge stated: “Well, the court will enter a directed verdict of acquittal, based on the fact
YORK — 5
there is no evidence to go before the jury.”
After the jurors were brought back into the courtroom, the judge explained to them:
Basically, what I did was grant the defendant’s motion to suppress. I’m not
necessarily finding the officer did anything wrong. He was outside of his
jurisdiction, stopped to investigate what was going on. I don’t think there is anything
wrong with that. But with him being outside his jurisdiction and him not testifying
to any articulable facts as to how he thinks an offense might have been committed,
I think the law requires me to grant the motion to suppress, which means y’all have
no evidence in front of you.
***
[Addressing appellant:] This officer did exactly what he was supposed to do. You’re
getting away on a technicality.
Expecting the State to appeal this decision because of his other cases, the judge told defense counsel
that he could draft the findings of fact and conclusions of law. No written findings of fact and
conclusions of law are contained in the record before us.
C. Second Prosecution: Possession of Methamphetamine
The criminal district attorney’s office later prosecuted appellant in district court for
possession of methamphetamine. The parties litigated the legality of Officer Johnson’s conduct
during a pretrial suppression hearing. At this hearing, the defense introduced the record of trial
proceedings from the failure-to-identify prosecution. Officer Johnson also testified, and a video of
the incident was played for the court. In addition to the facts outlined previously, Officer Johnson
testified that, as he approached appellant’s car, he believed that there was a “[p]ossible burglary in
progress.” Once he found appellant asleep in the car, Officer Johnson suspected possible offenses
of burglary, DWI, public intoxication, or trespass. With respect to the testimony outlined in part IB
of this opinion, Officer Johnson also explained that his testimony in the failure-to-identify
YORK — 6
prosecution reflected that he did not know particular offenses had been committed but that he was
conducting an investigation.
Before the district judge, defense counsel argued that Officer Johnson lacked reasonable
suspicion or probable cause to detain appellant, that Officer Johnson’s investigation was prohibited
under Article 14.03(d)4 because he was outside of his jurisdiction, and that suppression should be
granted under the doctrines of res judicata5 and collateral estoppel.
With respect to the Article 14.03(d) claim, defense counsel contended that Officer Johnson
did not observe any of the offenses for which Article 14.03(d) allows an out-of-jurisdiction officer
to perform an arrest.
With respect to the collateral-estoppel question, defense counsel first explained that the
lawfulness of the arrest or detention is an element of the offense of failure to identify.6 He further
argued, based upon Fifth Circuit cases, that collateral estoppel could involve two different scenarios:
(1) barring the prosecution itself or (2) barring the relitigation of evidentiary facts.7 Defense counsel
contended that appellant’s case fell within the second scenario. He contended that Murphy v. State,8
4
TEX . CODE CRIM . PROC. art. 14.03(d).
5
Appellant’s “res judicata” claim was not really distinct from his collateral-estoppel claim,
and we need not make any further reference to it.
6
See TEX . PENAL CODE § 38.02(b) (“A person commits an offense if he intentionally gives
a false or fictitious name . . . to a peace officer who has (1) lawfully arrested the person [or] (2)
lawfully detained the person.”).
7
Defense counsel relied upon Wingate v. Wainwright,

464 F.2d 209

(5th Cir. 1972);
Blackburn v. Cross,

510 F.2d 1014

(1975); United States v. Nelson,

599 F.2d 714

(5th Cir. 1979); and
United States v. Lee,

622 F.2d 787

(5th Cir. 1980).
8

239 S.W.3d 791

(Tex. Crim. App. 2007).
YORK — 7
upon which the prosecutors heavily relied, involved only the first scenario.
Throughout the hearing, defense counsel referred to the fact that jeopardy had attached in the
first prosecution when the suppression issue was decided. He also contended that the State had a full
and fair opportunity to litigate the issue because (1) the State could have put into evidence, in the
first prosecution, the additional evidence that was presented in the second prosecution, and (2) the
State could have appealed the trial court’s ruling in the first prosecution.
Finding that Officer Johnson had adequate justification to conduct an investigative detention,
and relying upon Murphy to dispose of appellant’s collateral-estoppel argument, the district judge
denied the motion to suppress. Appellant pled guilty, and he pled true to two prior enhancement
allegations. Punishment was tried to the jury, and the jury sentenced him to sixty years in prison.
D. Appeal
Appellant raised his suppression issues on appeal.9 With respect to the collateral-estoppel
contention, he argued that the trial court in the failure-to-identify prosecution found two facts that
should have been given preclusive effect in the methamphetamine prosecution: (1) that the officer
was outside his jurisdiction, and (2) that none of the exceptions in Article 14.03 applied. Appellant
claimed that Murphy could be distinguished on the basis that it “centered on the legal conclusion of
a lack of probable cause” while appellant’s case turns upon prior factual determinations made by the
trial court in the failure-to-identify prosecution.
The court of appeals observed that Article 14.03(d) allows an outside-of-jurisdiction officer
to detain a person for an offense committed in the officer’s presence if the offense is a felony or a
9
Other portions of our opinion reflect the content of the reasonable suspicion/Article 14.03
complaint made before the court of appeals.
YORK — 8
violation of Chapter 42 of the Penal Code.10 The court concluded that Officer Johnson had
reasonable suspicion to believe that appellant was committing a burglary.11 The court also concluded
that appellant parked his vehicle on a sidewalk in violation of Penal Code §42.03.12
Relying upon our decision in Murphy, the court of appeals held that collateral estoppel
applies only to a previously litigated fact that constitutes an essential element of the offense in the
second prosecution.13 Consequently, the court concluded that principles of collateral estoppel did
not preclude the State from proving the legality of appellant’s detention and arrest because that issue
did not constitute an element of the offense of possession of methamphetamine.14
II. ANALYSIS
A. Legality of Officer Johnson’s Conduct
1. Appellant’s Contentions
In his first ground for review, appellant complains that Officer Johnson’s discovery of the
methamphetamine was the product of an illegal detention. Appellant argues that a detention was
created by Officer Johnson’s act of blocking in appellant’s car, his request that appellant exit the
vehicle, and appellant’s compliance with that request. Appellant further argues that Officer Johnson
was outside of his jurisdiction, and as a result, his authority to detain depended upon reasonable
10
York v. State, No. 12-08-00106-CR, slip op. at 6 (Tex. App.–Tyler December 16, 2009)
(not designated for publication).
11

Id. at 5-6.

Id. at 6;

see TEX . PENAL CODE §42.03(a)(1) (“A person commits an offense if, without
legal privilege or authority, he intentionally, knowingly or recklessly . . . obstructs a . . . sidewalk”).
13
York, No. 12-08-00106-CR, slip op. at 7 (citing

Murphy, 239 S.W.3d at 795

).
14

Id. YORK —

9
suspicion to believe that an offense had been committed in his presence.15 Appellant contends that
Officer Johnson did not have reasonable suspicion to believe that he had observed appellant
committing burglary, DWI, public intoxication, obstruction of a sidewalk, or criminal trespass.
2. Article 14.03
We will assume without deciding that appellant is correct that an investigative detention
began when he complied with the officer’s request to exit his vehicle.16 And we will assume,
without deciding, that the term “arrest” in the relevant provisions of Article 14.03 includes
investigative detentions.17
15
Appellant also contends that Officer Johnson lacked reasonable suspicion under Fourth
Amendment standards, but as will become clear later, we need not address this contention.
16
In Garcia-Cantu v. State, we determined that the trial court’s finding that a detention had
occurred was supported by the convergence of a number of factors, including: the “boxing in” of the
defendant’s vehicle, the use of a spotlight, the early morning hour in which the conduct occurred,
the use of an authoritative tone of voice, shining a flashlight across the defendant’s eyes, and asking
for identification.

253 S.W.3d 236

, 247-48, 250 (Tex. Crim. App. 2008). No spotlight was used in
the present case, and the district court was free to determine that the officer’s voice was not
authoritative.
Of course, the defendant in Garcia-Cantu was also awake, which was not true in the present
case when Officer Johnson first approached the car. In G.M. v. State, the Supreme Court of Florida
held that a person is not seized if he is unaware of the police conduct that would constitute an
assertion of authority.

19 So. 3d 973

, 983 (Fla. 2009). In that case, the defendant had not observed
that a police car’s flashing lights had been activated and became aware of police presence only after
an officer identified himself and ordered the defendant to spit out the marijuana.

Id. In arriving

at
its conclusion, the court cited “rare” and unpublished decisions from other courts that found no
seizure when the defendant was unconscious or asleep, including one decision finding no seizure
when the police blocked in a defendant’s car.

Id. at 982

n.6. This holding seems consistent with
Supreme Court caselaw that the occurrence of a detention depends upon a suspect’s reasonable
perception of restraint and submission to a show of authority. See Brendlin v. California,

551 U.S. 249

(2007) (“[T]here is no seizure without actual submission” and the test is whether “a reasonable
person would have believed that he was not free to leave” or whether “a reasonable person would
feel free to decline the officers’ requests or otherwise terminate the encounter.”).
17
By its terms, Article 14.03 applies to “arrests,” but with respect to a different part of the
statute, we have held that “arrest” includes “detention.” State v. Kurtz,

152 S.W.3d 72

, 79-80 (Tex.
YORK — 10
As a city police officer, Officer Johnson was a peace officer as defined by Article 2.12(3).18
The controlling provision with respect to that type of peace officer is Article 14.03(g)(2), which
provides:
A peace officer listed in Subdivision (3), Article 2.12, who is licensed under Chapter
1701, Occupations Code, and is outside of the officer’s jurisdiction may arrest
without a warrant a person who commits any offense within the officer’s presence
or view, except that an officer described in this subdivision who is outside of that
officer’s jurisdiction may arrest a person for a violation of Subtitle C, Title 7,
Transportation Code, only if the offense is committed in the county or counties in
which the municipality employing the peace officer is located.19
Officer Johnson had state-wide authority to arrest for any non-traffic offense committed within his
presence or view. Moreover, within Smith County—where the City of Bullard is located—Officer
Johnson’s authority to arrest for offenses committed within his presence or view extended to traffic
offenses as well.20 Consequently, because the Exxon station was located in Smith County, Officer
Johnson had the authority to arrest (and thus conduct an investigative detention) for any offense
committed within his presence or view.21 The question, then, is whether Officer Johnson had the
Crim. App. 2004).
18
TEX . CODE CRIM . PROC. art. 2.12(3) (peace officers include “police officers of an
incorporated city, town, or village”).
19

Id., art.14.03(g)(2). 20

            At the time we decided Kurtz, a city police officer did not have the authority to arrest for
a traffic offense committed in his presence or view but outside of his jurisdiction. See

Kurtz, 152 S.W.3d at 79-80

(quoting from then existing version of Article 14.03(g)). Authority to arrest within
the city police officer’s county was added by amendment in 2005. Acts 2005, 79th Leg., Ch. 1015,
§1, eff. Sept. 1, 2005.
21
Appellant did not have a driver’s license in his possession and his vehicle was parked on
a sidewalk, but it is not clear that either of these facts constituted a crime committed in Officer
Johnson’s presence. An operator of a motor vehicle must have a driver’s license in his possession
while operating a motor vehicle on a highway. See TEX . TRANSP . CODE §§521.021 & 521.025(a)(1).
YORK — 11
requisite level of suspicion that such an offense was being or had been committed.
Investigative detentions are generally governed by the reasonable suspicion standard.22 Under
the Fourth Amendment, “reasonable suspicion” exists when an officer is aware of “specific
articulable facts that, when combined with rational inferences from those facts, would lead him to
reasonably suspect that a particular person has engaged or is (or soon will be) engaging in criminal
activity.”23 This standard is objective; the subjective intent of the officer conducting the detention
is irrelevant.24 In addition, reasonable suspicion does not depend on the “most likely explanation”
for a suspect’s conduct, and reasonable suspicion can exist even if the conduct is “as consistent with
innocent activity as with criminal activity.”25 The standard is logically the same in an article
14.03(g) context, except that the officer’s reasonable suspicion must be limited to whether the
suspect is committing, or had committed, an offense in the officer’s presence or view.26
An operator of a motor vehicle may not stop, stand, or park the vehicle on a “sidewalk,”

Id., §545.302(a)(2), but

a “sidewalk” is defined in part for this purpose as “the portion of a street that is
. . . between a curb or lateral line of a roadway and the adjacent property line.”

Id., §541.302(16). Because

we do not address the Court of Appeals’s reliance upon the obstructing-a-sidewalk
provision found in Penal Code §42.03, we need not determine whether “sidewalk” in that statute has
a meaning different from the definition found in the Transportation Code.
22
United States v. Sokolow,

490 U.S. 1

, 7 (1989); Terry v. Ohio,

392 U.S. 1

, 30 (1968);
Crain v. State,

315 S.W.3d 43

, 52 (Tex. Crim. App. 2010).
23
Garcia v. State,

43 S.W.3d 527

, 530 (Tex. Crim. App. 2001); see also

Crain, 315 S.W.3d at 52

.
24

Garcia, 43 S.W.3d at 530

.
25
Curtis v. State,

238 S.W.3d 376

, 378-79 (Tex. Crim. App. 2007); see also Woods v. State,

956 S.W.2d 33

, 38-39 (Tex. Crim. App. 1997).
26
See Stull v. State,

772 S.W.2d 449

, 452 (Tex. Crim. App. 1989) (this Court has upheld
arrests under Article 14.01, which required commission of offense in an officer’s presence, “when
the police officers personally observed behavior that although not overtly criminal, was, when
YORK — 12
3. Public Intoxication
A person commits the offense of public intoxication if he “appears in a public place while
intoxicated to the degree that the person may endanger the person or another.”27 “Public place”
means “any place to which the public or a substantial group of the public has access and includes,
but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment
houses, office buildings, transport facilities, and shops.”28 A gas station is a shop, and it and the area
around it are places to which the public has access.29 We hold that the parking and sidewalk area
outside the Exxon station was a public place.
The next question is whether Officer Johnson had reasonable suspicion to believe that
appellant was intoxicated to the degree that he might endanger himself or another. Before appellant
was awakened, Officer Johnson knew that: (1) it was around 3:00 a.m., (2) appellant was asleep in
his car, (3) the car’s engine was running, (4) the car was parked partially on the sidewalk very near
coupled with the officers’ prior knowledge, sufficient to establish probable cause that an offense was
then occurring”); Lunde v. State,

736 S.W.2d 665

, 666-67 (Tex. Crim. App. 1987) (observing this
Court’s past rejection of sufficiency-of-the-evidence standard for determining when offense is
committed in presence under Article 14.01—instead employing probable cause standard traditionally
associated with arrests); Delgado v. State,

718 S.W.2d 718

, 720-21 (Tex. Crim. App. 1986)
(commission of crime within presence requirement of Article 14.01 satisfied when officer had
probable cause to believe crime was being committed in his presence but it was later determined that
officer was incorrect); see also McGee v. State,

105 S.W.3d 609

, 614 (Tex. Crim. App. 2003)
(following Stull and Lunde).
27
TEX . PENAL CODE §49.02(a).
28

Id., 1.07(40). 29

            One court of appeals has held specifically that the parking lot of a convenience store is
a public place. Gonzalez v. State,

664 S.W.2d 797

, (Tex. App.–Corpus Christi 1984), rev’d on other
grounds in unpublished disposition, aff’ing as modified on remand,

683 S.W.2d 791

(Tex. App.
Corpus Christi 1984).
YORK — 13
the door to the store, and (5) the headlights were on.
The circumstances in the present case were sufficient to give rise to a reasonable suspicion
that would permit an investigative detention. From the circumstances present here, Officer Johnson
could reasonably suspect that appellant was intoxicated. And with the engine running, an intoxicated
driver might have awakened, and in his stupor, driven into the store. Or he might have returned to
the road, where he would pose a threat to others who were traveling.30 It would be reasonable to
suspect that appellant posed a danger to himself or others.31
Although Officer Johnson did not smell alcohol as he approached the car, that fact did not
cause reasonable suspicion to dissipate, in part because appellant could still have been intoxicated
30
Being asleep with the engine running has been held to be an indication that a person had
operated his car earlier. See Denton v. State,

911 S.W.2d 388

, 389-90 (Tex. Crim. App. 1995) (a
person “operates” a motor vehicle for purposes of DWI when he takes “action to affect the
functioning of his vehicle in a manner that would enable the vehicle’s use,” such as starting the
ignition and revving the accelerator).
31
Appellant cites several cases as buttressing his contention that Officer Johnson did not
have reasonable suspicion to believe that appellant was committing the offense of DWI or public
intoxication. Only one of those cases—State v. Griffey,

241 S.W.3d 700

(Tex. App.–Austin 2007,
pet. ref’d)—involves a sleeping suspect. In Griffey, a manager at a Whataburger restaurant called
the police at around 3:00 a.m. to report a person “passed out behind the wheel in the drivethrough.”

Id. at 702.

Police found the suspect awake in her car, which was next to the drivethrough window.

Id. The trial

court suppressed evidence from the stop,

id. at 703,

and the court of appeals affirmed.

Id. at 707.

The court of appeals found that the officer lacked reasonable suspicion because the
citizen-informant tip was not corroborated, and was actually contradicted by the fact that the suspect
was awake when the officer arrived.

Id. As a

lower appellate court decision, Griffey is not binding on us. In any event, Griffey is
distinguishable because it dealt with the reliability of the information that the suspect was asleep.
In the present case, Officer Johnson personally observed the suspect sleeping.
The Supreme Court of Colorado has stated, “Reasonable suspicion to make a stop for the
crime of driving under the influence may arise when a police officer sees a person asleep behind the
wheel of a car with its engine running.” People v. Brown,

217 P.3d 1252

, 1256 (Colo. 2009). The
Supreme Court of Louisiana has held those facts, combined with the early morning hour and the
presence of the vehicle in the French Quarter of New Orleans, to be sufficient reasonable suspicion
to make an investigatory stop. State v. Keller,

403 So. 2d 693

, 696 (La. 1981).
YORK — 14
by drugs.32 Nothing else occurred that would have negated reasonable suspicion before Officer
Johnson found the drugs on appellant’s person. To the contrary, the fact that appellant did not have
his driver’s license with him and was confused about his location served to reinforce a reasonable
suspicion of intoxication.
4. Burglary
Even before he parked behind appellant’s car, there was reasonable suspicion to believe that
a burglary was occurring. Officer Johnson knew that the Exxon station was closed, that the station
had been burglarized before, that it was about 3:00 a.m., that the headlights of appellant’s car were
shining into the store, and that appellant was parked too close to the store door (on the sidewalk).
These facts were sufficient for Officer Johnson to reasonably suspect that a burglary might be
occurring and to justify an investigation. When the officer approached the car on foot, he learned
that the engine was running, which would be consistent with it being a getaway car.
Appellant contends that, even if Officer Johnson initially had reasonable suspicion to
investigate a possible burglary, that suspicion was later dispelled, and once the suspicion was
dispelled, he should have ended the detention. But even if appellant’s sleeping and subsequent
events had dispelled any reasonable suspicion that appellant was participating in a burglary, by that
time there was reasonable suspicion that he was guilty of public intoxication, as discussed above.
We overrule appellant’s first ground for review.
32
See TEX . PENAL CODE §49.01(2)(A). (The definition of “intoxicated” includes “not having
the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled
substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other
substance into the body.”)
YORK — 15
B. Collateral Estoppel33
1. Murphy
The courts below relied upon our opinion in Murphy to resolve appellant’s collateral-estoppel
claim. For reasons that will become apparent, we shall examine the line of cases that led up to our
opinion in Murphy and reexamine our holding in that case.
Murphy was stopped for speeding, and the stop resulted in the discovery of drugs and drug
paraphernalia.34 Murphy was first prosecuted in a justice-of-the-peace court for possession of drug
paraphernalia.35 He was acquitted during a bench trial at which the State failed to produce evidence
of speeding, and as a result, failed to establish the validity of the stop.36 He was later prosecuted in
district court for possession of a controlled substance.37 Alleging collateral estoppel, Murphy filed
a motion to suppress and a motion to dismiss the indictment.38 These motions were denied, and he
was ultimately convicted.39 We characterized Murphy’s claim before the court of appeals as being
whether the legality of the detention was litigated in the justice court.40
33
Appellant specifically relies upon the doctrine of collateral estoppel as articulated in Ashe
v. Swenson,

397 U.S. 436

(1970), which construed the doctrine as it was incorporated within the
Double Jeopardy Clause of the Fifth Amendment. Any argument based upon a notion of collateral
estoppel outside the double-jeopardy context is outside the scope of this opinion.
34

Murphy, 239 S.W.3d at 792

.
35

                                                                                          YORK — 16
In Murphy, we held that the collateral-estoppel inquiry involved a two-part analysis: (1)
determining exactly what facts were necessarily decided in the first proceeding, and (2) determining
whether those necessarily decided facts constitute essential elements of the offense in the second
trial.41 We said that this analysis applied “[t]o determine whether collateral estoppel bars a
subsequent prosecution or permits the prosecution but bars relitigation of certain specific facts.”42
To support this proposition, we cited to our earlier decision in Ex parte Taylor and to the
Fifth Circuit case of Neal v. Cain.43 We also provided a “see also” citation to United States v.
Larkin.44 Relying upon Neaves v. State,45 the concurring opinion in Murphy explained that probable
cause to stop the defendant was not the same issue as guilt of possessing the controlled substance.46
At various stages of the proceedings, appellant has articulated three bases for distinguishing
this case from Murphy: (1) the present case involves specific fact findings, while Murphy involved
only legal conclusions, (2) the validity of the police officer’s conduct was an element of the offense
in appellant’s earlier prosecution, but that was not true of the defendant in Murphy, and (3) appellant
claims merely that certain evidentiary facts cannot be relitigated, while Murphy dealt with whether
the earlier acquittal necessarily barred the entire prosecution in the subsequent case.
41

Id. at 795.

Id. 43 Id.

at 795 (citing Ex parte Taylor,

101 S.W.3d 434

(Tex. Crim. App. 2002) and Neal v.
Cain,

141 F.3d 207

(5th Cir. 1998)).
44

Id. at 796

(citing United States v. Larkin,

605 F.2d 1360

, 1361 (5th Cir. 1979)).
45

767 S.W.2d 784

(Tex. Crim. App. 1989).
46

Murphy, 239 S.W.3d at 797

(Meyers, J., concurring).
YORK — 17
We need not address appellant’s first articulated basis for distinguishing Murphy—that the
present case involves factual rather than legal issues. We will assume, without deciding, that
appellant has satisfied any requirement that the prior prosecution resolved a question of fact, and we
otherwise decline to address the matter.47
The second basis presents a real difference between the present case and Murphy. The
validity of Murphy’s detention was not an element of the offense in his first prosecution. But the
validity of appellant’s detention was an element of the offense in appellant’s first prosecution.48
Under the analysis articulated in Murphy, all that matters is an issue’s status in the
subsequent prosecution. The fact that an issue may have been an “essential element” in the earlier
prosecution does not appear to be relevant. Nevertheless, the Murphy court was not presented with
a situation in which an issue was an essential element in the earlier prosecution; whether the Murphy
47
In her concurring opinion, Judge Cochran concludes that the issues resolved in appellant’s
favor in the first prosecution were legal issues and that legal issues are not subject to collateral
estoppel. But the court of appeals did not resolve appellant’s claim on this basis; it relied solely on
Murphy.
Also, whether Judge Cochran’s basis for resolving this case is correct can be questioned on
two levels. First, it is arguable that the trial court in the first prosecution did make a relevant factual
finding when it characterized the officer as “not testifying to any articulable facts as to how he thinks
the offense might have been committed.” Second, there may be a question about whether an issue
of law can be the subject of collateral estoppel. See Bobby v. Bies,

129 S. Ct. 2145

, 2152 (2009)
(Double Jeopardy case in which the Supreme Court defined collateral estoppel in this way: “Issue
preclusion bars successive litigation of ‘an issue of fact or law’ that ‘is actually litigated and
determined by a valid and final judgment, and . . . is essential to the judgment.’”) (quoting
RESTATEMENT (SECOND ) OF JUDGMENTS § 27 (1980) (ellipsis in Bies); RESTATEMENT (SECOND ) OF
JUDGMENTS §§ 27(referring to issue preclusion as applying to “an issue of fact or law”), 28(2)
(listing exceptions to the preclusive effect of a prior determination of an issue of law). See also
Womack, J., concurring, post, at 2 (stating that issue preclusion can prohibit a party from relitigating
an issue “such as a fact, a question of law, or an application of law to fact”).
We express no opinion on the question Judge Cochran’s concurrence raises.
48
See TEX . PENAL CODE §38.02(b)(1), (2).
YORK — 18
analysis governs such a case depends upon the rationale underlying Murphy’s holding.
That observation leads us to the third proposed basis for distinguishing Murphy: that Murphy
dealt only with a claim that the entire second prosecution was barred. Appellant does not claim that
collateral estoppel bars the subsequent prosecution in his case; his claim is only that collateral
estoppel resolves certain evidentiary facts in his favor and thereby requires the granting of his motion
to suppress.49
It is understandable that appellant would think that Murphy dealt with a bar to prosecution
rather than a bar to the relitigation of certain facts. Murphy had filed both a motion to dismiss and
a motion to suppress, and our opinion did not specifically focus on which of those motions we were
concerned with.50 A review of the court of appeals’s opinion in Murphy makes it clear, however,
that the defendant was basing his appeal solely on the motion to suppress.51 Murphy concerned the
relitigation of certain facts.
But appellant’s misperception is also understandable because the Fifth Circuit case relied
upon in Murphy deals with a bar to prosecution rather than a bar to relitigation of certain issues.
In Neal, the Fifth Circuit said, “In determining whether collateral estoppel bars a subsequent
prosecution, as Neal contends it does here, we engage in a two-step analysis,” with the second step
being to determine whether the issues in question constitute essential elements of the offense in the
49
The practical effect of granting the motion to suppress may be to derail appellant’s
prosecution, but that is not the same as barring the prosecution from the outset.
50
See

Murphy, 239 S.W.3d at 793-94

.
51
Murphy v. State,

200 S.W.3d 753

, 757 (Tex. App.–Texarkana 2006).
YORK — 19
second trial.52 So Neal stood only for the proposition that an issue must involve an essential element
in the second prosecution in order for that issue to be used as a basis for barring prosecution
altogether.53 Neal did not address what requirements apply when a defendant claims only that the
State may not relitigate certain underlying facts. We must look elsewhere to decide whether the
essential-element-in-the-subsequent-prosecution requirement applies when the defendant seeks only
to bar the proof of certain facts.
Appellant’s attempted distinction also conflicts with Murphy’s own pronouncement that its
analysis applies to determine whether collateral estoppel “bars a subsequent prosecution or permits
the prosecution but bars relitigation of certain specific facts.”54
As explained above, Murphy relied on Taylor for this proposition. Taylor did say that the
essential-element-in-the-subsequent-prosecution requirement applies to a claim that collateral
estoppel “bars the relitigation of certain facts.”55 But this language was itself dicta, because Taylor
involved a claim that the prosecution was entirely barred.56 The Taylor court relied upon Neal and

52 141 F.3d at 210

(emphasis added). For the two-step analysis, Neal cited United States v.
Brackett,

113 F.3d 1396

(5th Cir. 1997), but, as will be discussed later, Brackett avoided the issue
of whether the analysis applied when the defendant seeks only to bar the proof of certain facts. See

Brackett, 113 F.3d at 1401

n.9.
53
See Simon v. Commonwealth,

220 Va. 412

, 416,

258 S.E.2d 567

, 570 (1979) (“Courts are
in general agreement that in order to bar a subsequent prosecution for a different offense arising out
of the same transaction, a necessary element of the offense in the second trial must have been clearly
adjudicated in the earlier proceedings.”) (emphasis in original).
54
See

Murphy, 239 S.W.3d at 795

(emphasis added).
55

Taylor, 101 S.W.3d at 440

.
56

Id. at 439,

442-43 (Intoxication was an element of the offenses in both the first and second
prosecutions. Acquittal in the first prosecution created a collateral estoppel bar to the second.).
YORK — 20
Dedrick v. State57 as authority for the proposition.58 And Dedrick quoted from United States v.
Mock.59 None of these cases support the dicta in Taylor.60
Neal has already been discussed. Dedrick’s quotation from Mock is actually contrary to
Taylor’s dicta. We quoted Mock as saying that facts established in the first prosecution may not be
relitigated in a second prosecution “either as ultimate or as evidentiary facts.”61 In support of this
statement, Mock cited the Fifth Circuit decisions in Wingate and Blackburn,62 two cases that were
relied upon by defense counsel at trial in the present case.63
In Wingate, the State introduced extraneous offenses of which the defendant had previously
been acquitted.64 The court construed the collateral-estoppel protection articulated in Ashe, in which
57

623 S.W.2d 332

(Tex. Crim. App. 1981).
58

Taylor, 101 S.W.3d at 440

n.17.

59 623 S.W.2d at 336

(quoting United States v. Mock,

604 F.2d 341

(5th Cir. 1979)).
60
Taylor’s dicta would be consistent with these cases if the phrase “permits prosecution but
bars the relitigation of certain facts” were construed only to describe situations in which an offense
contains alternate elements, see e.g., Kitchens v. State,

823 S.W.2d 256

, 258 (Tex. Cr. App. 1991)
(capital murder by murder in the course of robbery or aggravated sexual assault), and the previously
litigated fact involves one or more, but not all, of the alternate elements. As narrowly construed,
Taylor would simply be saying that the essential-element-in-the-subsequent-prosecution requirement
applies when the defendant is claiming to bar proof of an element of the offense, whether that
element is a sole element (ending prosecution) or an alternate element (narrowing the State’s theories
of liability). But Murphy did not have such a narrow understanding of Taylor’s dicta, and as will
be seen below, the Fifth Circuit decisions that addressed the issue of barring the relitigation of
certain facts took a broad view about what kinds of facts were being discussed.
61

Dedrick, 623 S.W.2d at 336

(emphasis added) (quoting

Mock, 604 F.2d at 343

).
62
See

Dedrick, 623 S.W.2d at 336

(quoting

Mock, 604 F.2d at 343

).
63
See this opinion, footnote 7.
64

Wingate, 464 F.2d at 210

.
YORK — 21
the Supreme Court described collateral estoppel as the rule that “when an issue of ultimate fact has
once been determined by a valid and final judgment, that issue cannot again be litigated between the
same parties in any future lawsuit.”65 The Wingate court stated that it did not perceive any
meaningful difference, for double-jeopardy purposes, between prohibiting relitigation of an issue that
“is one of ‘ultimate’ fact or merely an ‘evidentiary’ fact in the second prosecution.”66 The Fifth
Circuit held that, although the prosecution itself was not barred, because no part of the charged
offense had been previously litigated, the State was barred from introducing evidence of the
extraneous offenses for which the defendant had been acquitted.67 In Blackburn, the Fifth Circuit
explained that, in Wingate, “this Circuit significantly expanded the Ashe holding.”68 After Wingate,
the court said, “there is no difference between relitigating an ultimate fact or an evidentiary fact;
relitigation of either is prohibited.”69
Finally, with respect to Murphy’s reliance upon Larkin for the proposition that “[w]hile there
is no bright-line or black-letter law that can resolve the issue of when collateral estoppel applies,
collateral estoppel is inapplicable in this case,”70 an examination of Larkin reveals that it supports
only the first half of this statement. The Larkin court referred to “arcane principles of double
65
See

Id. at 212

(quoting

Ashe, 397 U.S. at 443

).

66 464 F.2d at 213

.
67

Id. at 214.

68 510 F.2d at 1017

.
69
Id.
70

Murphy, 239 S.W.3d at 795

.
YORK — 22
jeopardy and collateral estoppel” that are “not susceptible of bright-letter law or black-letter law,”71
but the case did not involve the situation confronted in Murphy or that we confront today.72
Neaves provides no real support for the holding in Murphy either. In Neaves, the defendant
obtained a negative finding in an administrative license-suspension hearing “upon the question
whether probable cause existed that [the defendant] had been driving while intoxicated.”73 In his
subsequent DWI prosecution, the defendant contended that the finding in the license-suspension
proceeding “estopped the State from attempting to establish in the instant trial that [the defendant]
had been driving while intoxicated.”74 We pointed out that the parties assumed that the ultimate
facts in the two proceedings were the same: that probable cause to believe DWI had been committed
(the ultimate fact in the license-suspension hearing) was the same ultimate fact as the actual
commission of DWI (the ultimate fact in the criminal trial).75 We held that this assumption was
incorrect.76 Because the defendant argued that the State was barred completely from proving the
commission of DWI, this Court never had occasion to address whether the prior finding in the
administrative license-suspension hearing could have been used to bar relitigation of issues raised
in a motion to suppress.77

71 605 F.2d at 1361

.
72

Id., passim. 73

             767 S.W.2d at 785.
74

Id. 75 Id.

at 786.
76

Id. at 786-87.

       77
A decade after Neaves, we decided that a finding in an administrative license-suspension
hearing does not even “implicate the rule of collateral estoppel as embodied in the Fifth Amendment
YORK — 23
Furthermore, since our holding in Murphy, the Supreme Court has cited §27 of the
Restatement (Second) of Judgments in two recent double-jeopardy/collateral-estoppel cases.78 As
we will explain in more detail later, comment j of that portion of the Restatement challenges the
notion that collateral estoppel involves only the ultimate issues in a case.79 For these various reasons,
we will reexamine the question of when collateral estoppel bars relitigation of certain facts in a
subsequent prosecution.80
3. Ultimate Issue in the First Prosecution?
As we have already noted, the validity of a detention or arrest was an element of the failure-
to-identify offense with which appellant was previously charged.81 As an element, it must be proven
beyond a reasonable doubt.82 In a motion to suppress setting, however, the propriety of an arrest or
detention need not be proven beyond a reasonable doubt.83 We do not often say what standard
guarantee against double jeopardy” because neither the successive-prosecution nor the multiple-
punishment aspects of double jeopardy are at issue. Reynolds v. State,

4 S.W.3d 13

, 18-20 (Tex.
Crim. App. 1999).
78

Bies, 129 S. Ct. at 2152

; Yeager v. United States,

129 S. Ct. 2360

, 2367 n.4 (2009).
79
See RESTATEMENT (SECOND ) OF JUDGMENTS §27 cmt. j (1982).
80
Judge Womack’s concurrence contends that Murphy and Taylor read Neal v. Cain too
broadly. Womack, J., concurring, post, at 6-9. We agree, which is one reason we have chosen to
re-examine the matter.
81
TEX . PENAL CODE § 38.02(b).
82
TEX . PENAL CODE § 2.01 (“All persons are presumed to be innocent and no person may
be convicted of an offense unless each element of the offense is proved beyond a reasonable
doubt.”).
83
See Lalande v. State,

676 S.W.2d 115

, 117-18, 117 n.4 (Tex. Crim. App. 1984) (State is
not required to prove propriety of a search beyond a reasonable doubt in a motion to suppress
hearing.); see also Castro v. State,

227 S.W.3d 737

, 741 (Tex. Crim. App. 2007) (recognizing that
“the burden is on the State to show that the officer had reasonable suspicion” but not specifying the
YORK — 24
applies in a motion-to-suppress setting, and we are unaware of any cases explicitly stating the State’s
standard of proof in establishing reasonable suspicion,84 but we conclude that the appropriate
standard is the one that applies to most85 constitutional suppression issues: preponderance of the
evidence.86
In Dowling v. United States, the Supreme Court explained that collateral estoppel does not
bar relitigation of an issue resolved by a prior acquittal when, in the subsequent proceeding, the issue
is governed by a lower standard of proof.87 This holding defeats any attempt in the present case to
use the detention issue’s elemental status in the first prosecution as a basis for collateral estoppel.
The State’s failure to prove the validity of appellant’s arrest or detention beyond a reasonable doubt
(as an element of the failure-to-identify offense) does not result in a collateral-estoppel bar to
determining the validity of that arrest or detention by a preponderance of the evidence in a
nature of that burden).
84
See e.g.,

Castro, 227 S.W.3d at 741

.
85
In at least one instance—the voluntariness of consent—the burden of proof is “clear and
convincing evidence.” State v. Ibarra,

953 S.W.2d 242

(Tex. Crim. App. 1997);

Lalande, 676 S.W.2d at 117

n.4.
86
See Lego v. Twomey,

404 U.S. 477

, 488-89 (1972) (In a case involving the voluntariness
of a confession, the Court stated that preponderance of the evidence is the standard employed by
federal courts “in Fourth and Fifth Amendment suppression hearings.”); Griffin v. State,

765 S.W.2d 422

, 429-30 (Tex. Crim. App. 1989) (citing Lego in adopting preponderance of the evidence
standard in determining the voluntariness of a confession). The use of a preponderance of the
evidence standard at trial to determine the existence of “reasonable suspicion” should not be
confused with the “reasonable suspicion” standard that itself governs the police officer’s conduct in
the field. Reasonable suspicion that a crime is, has been, or soon will be committed is a standard
far short of preponderance of the evidence. Baldwin v. State,

278 S.W.3d 367

, 371 (Tex. Crim. App.
2009) (“reasonable suspicion” is less than “probable cause,” which in turn is far short of
preponderance of the evidence).
87

493 U.S. 342

, 348-49 (1990).
YORK — 25
subsequent suppression hearing.88 To prevail on his collateral-estoppel claim, then, appellant must
rely upon the detention issue’s status in the earlier prosecution as a suppression issue, governed by
the preponderance of the evidence standard.
Complicating such reliance is the fact that the court in the failure-to-identify prosecution
erred in addressing the detention issue as a suppression issue. In Woods v. State, we held that, when
the validity of an arrest or detention is an element of the charged offense, litigating the validity of
the seizure as a suppression issue is inappropriate.89 Instead, the issue should simply be litigated as
part of the State’s case at trial.90
And Woods is not satisfied by litigating the validity of a seizure during the trial, if it is still
litigated as a suppression issue. The trial judge’s role with respect to elements of the offense and
suppression issues differs significantly when the trial judge is not the finder of fact on the question
of guilt. With respect to suppression issues, the trial judge is always the “sole trier of fact and judge
of the credibility of the witnesses and the weight to be given to their testimony.”91 And with respect
88
Had the issue of guilt in the controlled-substance trial been contested and submitted to the
jury, and had the jury been given an instruction on the suppression issue under article 38.23, the
State’s burden before the jury would have been “beyond a reasonable doubt.” See TEX . CODE CRIM .
PROC. art. 38.23(a) (“the jury shall be instructed that if it believes, or has a reasonable doubt, that the
evidence was obtained in violation of the provisions of this article . . . .”). Even with a contested jury
trial on guilt, however, appellant would still have been required to show “a genuine dispute about
a material fact” before he would be entitled to an instruction. See

id. (“In any

case where the legal
evidence raises an issue hereunder . . . .”); Oursbourn v. State,

259 S.W.3d 159

, 177 (Tex. Crim.
App. 2008).
89

153 S.W.3d 413

, 415 (Tex. Crim. App. 2005) (construing TEX . PENAL CODE § 38.04).
90

Id. 91 Wiede

v. State,

214 S.W.3d 17

, 24-25 (Tex. Crim. App. 2007).
YORK — 26
to such issues, he can draw rational inferences in favor of either party.92 By contrast, when the trial
judge is not the finder of fact on the question of guilt, he can direct a verdict in the defendant’s favor
only if “after viewing the evidence in the light most favorable to the prosecution,” he cannot
conclude that “any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.”93
Appellant’s trial in the failure-to-identify case was to a jury. Even if we assume that the trial
judge in that case believed all of Officer Johnson’s testimony (because he commented that Officer
Johnson had done nothing wrong), the judge could still have drawn inferences against the State in
resolving the motion to suppress. In doing so, he would have infringed on the jury’s role in resolving
the question of guilt.94
It is axiomatic that even an erroneous acquittal counts as an acquittal for double-jeopardy
92
Roy v. State,

90 S.W.3d 720

, 723 (Tex. Crim. App. 2002) (“An appellate court reviewing
a trial court’s ruling on a motion to suppress must view the record evidence and all reasonable
inferences therefrom in the light most favorable to the trial court's ruling.”).
93
Jackson v. Virginia,

443 U.S. 307

, 319 (1979) (emphasis in original) (sufficiency of the
evidence standard); McDuff v. State,

939 S.W.2d 607

, 613 (Tex. Crim. App. 1997) (motion for
directed verdict is construed as a challenge to the sufficiency of the evidence).
94
If, in addition to assuming that the judge believed all of Officer Johnson’s testimony, we
further assumed that the judge drew all inferences in the prosecution’s favor, then appellant’s
collateral-estoppel claim would fail, under any understanding of collateral estoppel, because the issue
on which appellant seeks preclusion would not be essential to the judgment: To acquit the defendant
in the failure-to-identify prosecution, it is not necessary for the trial judge to conclude that the State
failed to prove the legality of the seizure by a preponderance of the evidence; it is only necessary to
conclude that the State failed to do so beyond a reasonable doubt. See RESTATEMENT OF
JUDGMENTS § 68 (preclusive effect accorded only to a prior determination that is “essential to the
judgment”); RESTATEMENT (SECOND ) OF JUDGMENTS §27 (same). However, if the trial judge had
in fact viewed the entire record (including inferences) in the State’s favor, and still believed that the
State failed to prove the validity of the seizure, he could have granted appellant’s motion for directed
verdict without granting the motion to suppress (or independent of the motion to suppress).
YORK — 27
purposes,95 and one Supreme Court case suggests this is true even in the context of collateral
estoppel.96 Nevertheless, a distinction could possibly be made between giving preclusive effect to
ultimate issues resolved by an acquittal that was wrongly procured and giving preclusive effect to
an evidentiary issue that should never have been litigated in the first place. Assuming, without
deciding, that such a distinction does not, by itself, defeat appellant’s claim in the present case,97 we
consider the continuing validity of the proposition that collateral estoppel applies only when the issue
in question constitutes an essential element in the subsequent prosecution.
4. Ultimate Issue in the Second Prosecution?
a. Ashe
The Supreme Court’s formulation of collateral estoppel in Ashe, by including a reference to
“an issue of ultimate fact,” in itself suggests that the issue upon which preclusion is sought should
be an ultimate issue in at least one (and perhaps both) of the prosecutions. In Ashe, the issue
95
Moreno v. State,

294 S.W.3d 594

, 600 (Tex. Crim. App. 2009) (relying upon Fong Foo
v. United States,

369 U.S. 141

(1962)).
96
See Sanabria v. United States,

437 U.S. 54

, 72-73, 77-78 (1978);

id. at 72-73

(Acquittal
for insufficient proof of the element that the defendant was connected to a particular gambling
business would bar prosecution for any crime which shared that element.);

id. at 77-78

(Judgment
of acquittal in which Government’s evidence was erroneously excluded “is final and unreviewable”
and “absolutely bars a second trial.”).
97
We note that the prosecutor in the failure-to-identify prosecution did not object to the trial
court considering appellant’s motion to suppress and did not draw the trial court’s attention to
Woods. We need not decide whether the failure to object at that stage has procedural default
consequences for the State in a subsequent prosecution. See State v. Mercado,

972 S.W.2d 75

, 77-78
(Tex. Crim. App. 1998) (notions of procedural default apply to the State); Ex parte Granger,

850 S.W.2d 513

(Tex. Crim. App. 1993) (distinguishing prior case of Stephens v. State,

806 S.W.2d 812

(Tex. Crim. App. 1990) on the basis that the State in Stephens was barred from prosecuting a lesser-
included offense in a subsequent trial after acquittal for the greater offense on appeal on legal
insufficiency grounds when a lesser-included-offense instruction had not been submitted in the
earlier trial, and the State had failed to request one).
YORK — 28
(identity) was “ultimate” in both prosecutions. The defendant was prosecuted for robbing one of six
individuals at a poker game and was acquitted.98 The State then prosecuted the defendant for
robbing a second individual at the game.99 But the only rationally conceivable issue in dispute in the
first prosecution was whether the defendant was one of the robbers.100 Because the jury, by its
verdict, found that ultimate issue in the defendant’s favor, collateral estoppel barred the subsequent
prosecution for robbing a second individual at that same game.101
The Ashe court also explained that collateral estoppel, though originally developed in civil
litigation, had been a rule in criminal cases for over fifty years.102 Notably, the Supreme Court
suggested that collateral estoppel might be at least as protective in criminal cases as in civil cases
when it quoted Justice Holmes’s statement 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.”103 We must keep in mind, however, that this statement was quoted in connection with the
Ashe formulation of the collateral-estoppel rule.
b. The Ashe Approach
The formulation articulated in Ashe had been applied previously in Yates v. United States104
98

Ashe, 397 U.S. at 437-39

.
99

Id. at 439-40.

Id. at 445.

Id. 102 Id.

at 443.
103

Id. (quoting United

States v. Oppenheimer,

242 U.S. 85

, 87 (1916)).
104

354 U.S. 298

(1957).
YORK — 29
to preclude the application of collateral estoppel to issues that were not ultimate in nature. In Yates,
the defendants were convicted of conspiring to advocate the overthrow of the United States
government by force and violence.105         One of the defendants had prevailed at an earlier
denaturalization proceeding, which may have involved the litigation of some facts that were also
relevant to the criminal proceeding.106 Among other things, this defendant claimed that the
determinations made in the denaturalization case were relevant to the criminal proceeding, “even if
they do not conclude it, and hence that [the defendant] should be entitled to an instruction giving
those determinations such partial conclusive effect as they might warrant.”107 The Supreme Court
held that “the doctrine of collateral estoppel does not establish any such concept of ‘conclusive
evidence’ as that contended for” by the defendant.108 “The normal rule,” the Supreme Court
explained, “is that 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.”109 In support of this “normal
rule,” the Supreme Court cited The Evergreens v. Nunan110 and comment p of § 68 of the original
Restatement of Judgments.111
105

Id. at 300.

Id. at 335.

Id. at 337.

Id. at 337-38.

Id. at 338.

141 F.2d 927

(2d Cir. 1944).
111

Yates, 354 U.S. at 338

.
YORK — 30
Comment p ruled out the use of evidentiary facts in the civil collateral-estoppel context:
“Evidentiary facts. The rules stated in this Section are applicable to the determination of facts in
issue, but not to the determination of merely evidentiary facts, even though the determination of the
facts in issue is dependent upon the determination of the evidentiary facts.”112
In The Evergreens, Judge Learned Hand addressed, in the civil context, the question of
whether a previously litigated fact must be an ultimate issue in the first or second lawsuits in order
to be given preclusive effect under the doctrine of collateral estoppel.113 He observed that there was
a conflict in authority regarding whether an issue must be an ultimate fact in the first suit.114 He was
aware of no case, however, that allowed facts decided in the first suit (ultimate or not) to be used as
mere “mediate data” in the second.115 Confronted with a dearth of authority, and being free to
decide, the court did “not hesitate to hold” that, even assuming “mediate data” decided in the first
suit could be used to establish “ultimate” facts in the second, no fact decided in the first
suit—whether “ultimate” or “mediate”—could conclusively establish anything other than an
“ultimate” fact in the second suit.116
c. The Fifth Circuit and Other Jurisdictions
As discussed earlier in this opinion, the Fifth Circuit—in the Wingate line of cases—
departed from the Ashe approach and took an expansive view of the collateral-estoppel protection
112
RESTATEMENT OF JUDGMENTS § 68 cmt. p.
113
The

Evergreens, 141 F.2d at 928-931

.
114

Id. at 928-29.

Id. at 930.

Id. at 930-31.

                                                                                         YORK — 31
in criminal prosecutions. But the Fifth Circuit conducted an about-face in 1994 in Wright v.
Whitley.117 In that case, the defendant was acquitted of two weapon-possession charges, and he was
subsequently charged with murder.118 The defendant sought, unsuccessfully, to use the fact of those
earlier acquittals to bar certain testimony regarding his possession of a rifle.119 Rejecting the
defendant’s claim, the Fifth Circuit decided that Wingate’s “broader reading of Ashe”—applying
collateral estoppel to the relitigation of evidentiary facts—“has not been accepted by the Supreme
Court.”120 Instead, the Fifth Circuit found that the Supreme Court’s decision in Dowling “teaches
that the Ashe holding only bars relitigation of a previously rejected factual allegation where that fact
is an ultimate issue in the subsequent case.”121
In Brackett, the Fifth Circuit retreated somewhat from this expansive interpretation of
Dowling—characterizing Dowling more narrowly as a burden-of-proof case.122 The Fifth Circuit
believed that Dowling’s burden-of-proof holding effectively limited the doctrine of collateral
estoppel to the prosecution’s attempt to relitigate an essential element of an offense because “only
ultimate facts must be established beyond a reasonable doubt.”123 The Fifth Circuit found it
“difficult to conceive of a case in which collateral estoppel would bar admission or argumentation
117

11 F.3d 542

(5th Cir. 1994).
118

Id. at 545.

        119
Id.
120

Id. at 545.

Id. at 546.

Brackett, 113 F.3d at 1401

. For discussion of Dowling’s holding on burden of proof, see
this opinion, ante.
123

Brackett, 113 F.3d at 1401

n.9.
YORK — 32
of facts necessarily decided in the first trial, without completely barring the subsequent prosecution,”
but it stated, “[W]e have no occasion to consider whether Dowling has overruled this line of
decisions, and we leave that question for another day.”124
There is a split among the federal circuits and various other jurisdictions on whether
collateral estoppel can ever apply to facts that are merely evidentiary in the second prosecution.125
d. The Restatement (Second)
The Restatement (Second) of Judgments has taken a dramatically different position from the
124

Id. 125 For

authority in favor of extending collateral estoppel to such evidentiary facts, see United
States v. Moffett,

882 F.2d 885

, 889, 889 n.2 (4th Cir. 1989); United States v. Castillo-Basa,

483 F.3d 890

, 897 n.4 (9th Cir. 2007) (contending that a restriction of collateral estoppel to issues of ultimate
fact is “completely without foundation”); United States v. Carter,

60 F.3d 1532

, 1535 (11th Cir.
1995); Laughlin v. United States,

344 F.2d 187

, 189-92 (D.C. Cir. 1965) (collateral-estoppel effect
accorded the suppression of tape recordings in earlier prosecution); State v. Aparo,

223 Conn. 384

,
408 n.9,

614 A.2d 401

, 413 n.9 (1992) (referring to “well established rule that collateral estoppel
may exclude evidence in certain cases”); Underwood v. State,

722 N.E.2d 828

, (Ind. 2000) (citing
Little v. State,

501 N.E.2d 412

(Ind. 1986));

Little, 501 N.E.2d at 413-14

(relying in part upon
Mock)); People v. Acevedo,

69 N.Y.2d 478

, 484-87,

508 N.E.2d 665

, 669-71 (Ct. App. 1987);
Commonwealth v. Holder,

569 Pa. 474

, 479-80, 479 ns.3, 4,

805 A.2d 499

, 502, 502 ns.3, 4 (2002)
(citing RESTATEMENT (SECOND ) OF JUDGMENTS §27);

Simon, 220 Va. at 416-18

, 258 S.E.2d at 570-
71; State v. Thomas,

124 Wis. 2d 101

, 122,

369 N.W.2d 145

, 155 (1985).
For authority against applying collateral estoppel to evidentiary facts, see United States v.
Bailin,

977 F.2d 270

, 277 n.9 (7th Cir. 1992) (earlier Second Circuit case, “insofar as it held that
issue preclusion applies to evidentiary as well as ultimate facts, has been partially overruled by
Dowling”); Flittie v. Solem,

775 F.2d 933

, 942 (8th Cir. 1985) (stating the law of the Eighth Circuit
as “collateral estoppel does not bar relitigation of facts that are evidentiary in the second
prosecution”); State v. Gusman,

125 Idaho 805

, 809,

874 P.2d 1112

, 1116 (1994) (“Collateral
estoppel only precludes the relitigation of ultimate issues of fact.”) (emphasis in original); State v.
Sharkey,

574 N.W.2d 6

, 9 (Iowa 1997) (“[C]ollateral estoppel applies only to ultimate facts, not to
evidentiary facts.”); State v. Glenn,

160 N.H. 480

, 492-93,

9 A.3d 161

, 171 (2010) (“[C]ollateral
estoppel does not forbid the relitigation of an issue as one of evidentiary fact, even if the State has
lost on the same issue as one of ultimate fact to be proven beyond a reasonable doubt in a prior
trial.”) (brackets and internal quotation marks omitted); Eatherton v. State,

810 P.2d 93

, 99 (Wyo.
1991) (adopting rule as articulated in Flittie).
YORK — 33
original Restatement regarding the application of collateral estoppel to evidentiary facts. Comment
j of § 27 eschews any distinction between “evidentiary” and “ultimate” facts and takes the position
that the appropriate question “is whether the issue was actually recognized by the parties as
important and by the trier as necessary to the first judgment.”126 In support of this position, the
comment makes two arguments: (1) that the “line between ultimate facts and evidentiary facts is
often impossible to draw,” and (2) that, “great effort may have been expended by both parties” in
litigating the issue “and it may well have been regarded as the key issue in dispute.”127
A number of jurisdictions have adopted comment j in civil cases.128 Although the doctrine
of collateral estoppel was originally developed in civil cases, one question is whether collateral
estoppel in the criminal law must match any evolution in the civil law or whether developments in
the civil law have gone further than is appropriate for criminal cases. The Restatement (Second) of
Judgments is by its terms limited to “the preclusive effects of judgments in civil actions” and so
takes no position on whether its principles apply in criminal cases.129 A perusal of the authorities
126
RESTATEMENT (SECOND ) OF JUDGMENTS §27 cmt. j.
127

Id. 128 Rodriguez-Garcia

v. Miranda-Marin,

610 F.3d 756

, 771 (1st Cir. 2010) (“[C]ollateral
estoppel is no longer limited to ultimate issues: necessary intermediate findings can now be used to
preclude litigation.”) (emphasis in original); Synanon Church v. United States,

820 F.2d 421

, 426-27
(D.C. Cir. 1987) (rejecting The Evergreens view in favor of the Restatement (Second)); Meier v.
Commissioner,

91 T.C. 273

, 283-86 (1988) (same); Smith v. Roane,

284 Ark. 568

, 570,

683 S.W.2d 935

, 936 (1985) (same); Comes v. Microsoft Corp.,

709 N.W.2d 114

, 121 (Iowa 2006) (adopting
comment j); In Re Zachary G.,

159 N.H. 146

, 151,

982 A.2d 367

, 372 (2009) (favorable citation to
comment j); see also Winters v. Lavine,

574 F.2d 46

, 58 n.12 (2d Cir. 1978) (criticizing rule from The
Evergreens and citing favorably a tentative draft of comment j).
129
RESTATEMENT (SECOND ) OF JUDGMENTS, Ch. 1: Introduction, Scope Note; see also

id., § 85,

Reporter’s Notes, last para. (“The preclusive effect in a subsequent criminal prosecution of a
prior civil judgment against the government is outside the scope of this Restatement.”).
YORK — 34
discussed above reveals that New Hampshire and Iowa have retained the Ashe approach in criminal
cases despite being receptive in civil cases to the “new” approach embodied in comment j.130
The Supreme Court has cited §27 of the Restatement (Second) of Judgments in two recent
double-jeopardy cases, but it has not cited to comment j or expressly addressed the issue currently
before us.131 Though it has characterized as “more descriptive,” §27’s use of the term “issue
preclusion” in place of “collateral estoppel,”132 the Court nevertheless continues to refer to the
“ultimate fact” language found in Ashe.133
In Standefer v. United States, the Supreme Court recognized that the doctrine of collateral
estoppel may carry limitations in criminal cases that do not exist in civil cases.134 Standefer was
charged as a party to official misconduct.135 The official in question was also charged but was
acquitted on some of the counts.136 Standefer wished to use that acquittal to establish that he could
not have aided the commission of those counts.137 In declining to permit the nonmutual use of
collateral estoppel, the Supreme Court explained that “the Government is often without the kind of
130
Compare, this opinion, footnotes 125 and 128.
131
See

Bies, 129 S. Ct. at 2152

Yeager, 129 S. Ct. at 2367

n.4.
132

Yeager, 129 S. Ct. at 2367

n.4.
133

Id. at 2367;

Bies, 129 S. Ct. at 2153

.
134

447 U.S. 10

(1980).
135

Id. at 11.

Id. at 13.

Id. YORK —

35
‘full and fair opportunity to litigate’ that is a prerequisite of estoppel.”138 The Court pointed to
several aspects of criminal law that make this so:
[T]he prosecution’s discovery rights in criminal cases are limited, both by rules of
court and constitutional privileges; it is prohibited from being granted a directed
verdict or from obtaining a judgment notwithstanding the verdict no matter how clear
the evidence in support of guilt . . .; it cannot secure a new trial on the ground that an
acquittal was plainly contrary to the weight of the evidence . . .; and it cannot secure
appellate review where a defendant has been acquitted.139
The Court also noted rules of evidence that are unique to criminal law that might make evidence
inadmissible against one defendant that is admissible against another, and the Court pointed to the
“important federal interest in the enforcement of the criminal law.”140 And though the concern about
the admissibility of evidence could possibly be met on a case-by-case basis by conducting a pretrial
hearing to determine whether a trial court’s evidentiary ruling had deprived the government of a
chance to present its case the first time around, that process “could prove protracted and
burdensome.”141
The ability of a party to fully and fairly litigate the claim in question is also a part of the
Restatement (Second) approach. Under § 28, the Restatement (Second) outlines an exception to the
general rule of issue preclusion, when “[t]he party against whom preclusion is sought could not, as
a matter of law, have obtained review of the judgment in the initial action.”142 The prosecution
138

Id. at 22.

Id. 140 Id.

at 23-24.
141

Id. at 24.

       142
RESTATEMENT (SECOND ) OF JUDGMENTS, § 28(1).
YORK — 36
cannot obtain review of an acquittal,143 and so a precondition for applying the Restatement (Second)
scheme to criminal cases seems to be absent.144 It is true that the absence of appellate review is not
always “an essential predicate of estoppel”145 (see Ashe, for example), but the collateral-estoppel
doctrine is “premised upon an underlying confidence that the result achieved in the initial litigation
was substantially correct,” and in the absence of appellate review, such confidence is often
unwarranted.146 Thus, the absence of review counsels in favor of retaining the narrower Ashe
approach to collateral estoppel in criminal cases.
The State can obtain appellate review of a trial court’s ruling on a motion to suppress if the
ruling is made before trial.147 But, under Woods, the trial court in the present case was not authorized
to rule upon the legality of the detention before trial. Even in the more common case in which such
authority exists, a trial court is not required to rule on a motion to suppress before trial,148 and
143
See

Standefer, supra

.
144
See RESTATEMENT (SECOND ) OF JUDGMENTS, § 85(3) (“A judgment against the
prosecuting authority is preclusive against the government only under the conditions stated in §§ 27-
29.”);

id., §85 cmt.

g (“If the matter adjudicated was one of affirmative defense and the defendant
had the burden of establishing the defense by a preponderance of the evidence, it would be
appropriate to treat the issue as conclusive against the government in a subsequent civil action.
However, the government usually does not have a right of appellate review of a criminal judgment,
so that the exception created in §28(1) would ordinarily deny preclusive effect to the finding even
in the case of an affirmative defense. Hence it would be a rare case in which an acquittal could result
in preclusion against the government in a subsequent civil action.”).
145

Standefer, 447 U.S. at 23

.
146

Standefer, 447 U.S. at 23

.
147
TEX . CODE CRIM . PROC. art. 44.01(a)(5).
148
Calloway v. State,

743 S.W.2d 645

, 649 (Tex. Crim. App. 1988); Bell v. State,

442 S.W.2d 716

, 719 (Tex. Crim. App. 1969).
YORK — 37
sometimes a trial court may find it useful to carry the motion along with the trial on the merits.149
e. Interests underlying Double Jeopardy and Criminal Cases
But even when a motion to suppress is granted pretrial, the State has the option to simply
dismiss the case, and in doing so, prevent the attachment of jeopardy to the first prosecution.150 If
jeopardy has not attached, then no aspect of double jeopardy, including its collateral-estoppel
component, is implicated.151 This fact suggests that suppression issues are simply not the type of
issues that implicate double jeopardy in the first place. When a defendant is placed in jeopardy, he
is placed in jeopardy for the elements of the offense, not for mere evidentiary matters. Such a view
is consistent with the Supreme Court’s rejection of the Grady v. Corbin152 same-conduct standard,
and its reaffirmation of the importance of the elements of the offense in the double-jeopardy
context.153
149
See Garza v. State,

126 S.W.3d 79

, 84-85 (Tex. Crim. App. 2004) (error preserved by late
objection when trial judge indicated that motion to suppress would be carried with trial).
150
See Ortiz v. State,

933 S.W.2d 102

, 105-06 (Tex. Crim. App. 1996) (jeopardy attaches
in Texas when the jury is sworn in a jury trial, when the defendant pleads to the indictment in a
bench trial, or when a plea agreement is accepted in a plea-bargain setting)
151
See United States v. Martin Linen Supply Co.,

430 U.S. 564

, 569 (1977) (before double-
jeopardy protections are implicated, jeopardy must have attached); State v. Moreno,

294 S.W.3d 594

,
597 (Tex. Crim. App. 2009) (same);

Reynolds, 4 S.W.3d at 20

(collateral estoppel not implicated by
civil administrative proceeding [a proceeding in which jeopardy would never attach]); Guajardo v.
State,

109 S.W.2d 456

, 462-63 (Tex. Crim. App. 2003) (Meyers, J., concurring) (collateral estoppel,
as a component of double jeopardy, does not apply to determinations made in a proceeding that was
dismissed before jeopardy attached); United States v. Dionisio,

503 F.3d 78

, 85 (2d Cir. 2007)
(same).
152

495 U.S. 529

(1990).
153
See United States v. Dixon,

509 U.S. 688

, 703-09 (1993);

id. at 704

(adopting J. Scalia’s
Grady dissent);

Grady, 495 U.S. at 529

(Scalia, J., dissenting) (The language of the Double Jeopardy
Clause “protects individuals from being twice put in jeopardy ‘for the same offence,’ not for the
same conduct or actions.”).
YORK — 38
Perhaps for this reason, the Supreme Court has never abandoned Ashe’s “ultimate fact”
language. For jeopardy to attach to an issue in the first prosecution, the issue must be “ultimate”
rather than merely evidentiary. If jeopardy does not attach to a particular issue in the first
prosecution, then that issue cannot become the basis for collateral estoppel in a subsequent
prosecution. Indeed, the Fifth Circuit’s conclusion in Brackett that the burden-of-proof holding in
Dowling would effectively exempt evidentiary facts from the operation of collateral estoppel seems
to be based on the idea that the issue on which preclusion is sought would be an ultimate issue in the
first prosecution, so that the issue in the first prosecution would nearly always be subject to the
beyond-a-reasonable-doubt standard of proof, while an evidentiary fact in a second prosecution
would nearly always be subject to a lesser standard proof.154
In the present case, the legality of the detention was an ultimate issue in the first prosecution,
but, as explained above, that status as an ultimate issue does not help appellant because of the lesser
burden of proof with respect to suppression hearings. If, on the other hand, he relies upon the county
court at law’s resolution of the detention issue solely as a suppression issue—so that the burden of
proof in the two prosecutions is the same—then we are confronted with an issue that was not an
ultimate issue in either prosecution. To accord collateral-estoppel protection, under the rubric of
double jeopardy, to such an issue would stray far from the theoretical groundings of the Double
Jeopardy Clause and the Supreme Court’s earlier pronouncements on the issue of collateral
154
See

Brackett, 113 F.3d at 1401

n.9 (“Because only ultimate facts must be established
beyond a reasonable doubt, however, Dowling effectively limits the doctrine of collateral estoppel
to cases in which the government seeks to relitigate an essential element of the offense.”).
YORK — 39
estoppel.155
In light of our discussion, we reaffirm the bottom-line result in Murphy as controlling where
a defendant seeks to bar the relitigation of suppression issues on the basis of double jeopardy. That
is, the State is not barred by the Double Jeopardy Clause from relitigating a suppression issue that
was not an ultimate fact in the first prosecution and was not an ultimate fact in the second
prosecution. We overrule appellant’s second ground for review.
The judgment of the court of appeals is affirmed.
Delivered: June 29, 2011
Publish
155
Judge Womack’s concurrence raises some interesting (and complex) questions regarding
both the scope of the collateral estoppel doctrine within the double-jeopardy protection and whether
the collateral estoppel doctrine has any vitality outside the double-jeopardy context. Does the
double-jeopardy protection—via Ashe’s “ultimate fact” language—include the application of
collateral estoppel to defenses (e.g. self-defense) and punishment-mitigation issues (e.g. sudden
passion), and if not, should preclusive effect be given to jury findings on these types of issues on
some other basis? See United States v. Oppenheimer,

242 U.S. 85

(1916) (pre-Ashe case applying
collateral estoppel to a statute of limitations defense); Ex parte Watkins,

73 S.W.3d 264

, 267-72
(Tex. Crim. App. 2002) (applying collateral estoppel to sudden-passion punishment-mitigation issue
under the rubric of double jeopardy in the pretrial habeas setting);

Guajardo, 109 S.W.3d at 468-69

(Tex. Crim. App. 2003) (Hervey, J., concurring) (arguing that collateral estoppel does not exist in
criminal cases outside the double-jeopardy context). Should we re-think some of our other
precedents (besides Murphy) in light of evolving Supreme Court jurisprudence? We need not address
those questions here. It is enough here to hold that double-jeopardy protections are not involved
when the issues on which the defendant seeks preclusion are not ultimate in nature.