Ex Parte Margaret Dean Berg A/K/A Mardean Berg

Opinion filed July 3, 2008

Opinion filed July 3, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                      Nos. 11-08-00074-CR & 11-08-00075-CR

                                           __________

          EX PARTE MARGARET DEAN BERG A/K/A MARDEAN BERG

                                         On Appeal from the 350th District Court

                                                          Taylor County, Texas

                                      Trial Court Cause Nos. 07261-D & 07262-D

                                             M E M O R A N D U M   O P I N I O N

These are appeals pursuant to Tex. R. App. P. 31 from the trial court=s orders granting Margaret Dean Berg a/k/a Mardean Berg=s pretrial petitions for writ of habeas corpus.  The State appeals.

Berg was originally indicted in 2002 for unlawfully appropriating an amount between $100,000 and $200,000 from Jim Taylor between May 5, 2000, and February 16, 2001.  In 2004, a jury found Berg not guilty.  In 2005, Berg was indicted for unlawful appropriation and misapplication of fiduciary property from Jim Taylor^[1] and Bobbie Taylor^[2] in the amount of $200,000 or more between January 9, 1998, and April 27, 2000.  In 2006, Berg filed petitions for writ of habeas corpus alleging that these indictments were barred by double jeopardy.  The trial court denied the 2006 petitions, and this court affirmed.  Berg v. State, Nos. 11-06-00092-CR & 11-06-00093-CR, 2006 WL 3746738  (Tex. App.CEastland Dec. 21, 2006, pet. ref=d). In December 2007, Berg filed new petitions for writ of habeas corpus contending that the present indictments were barred by the statute of limitations and by the doctrine of collateral estoppel.^[3]  Berg withdrew her argument concerning the statute of limitations.  The trial court granted the petitions finding that collateral estoppel prevented Berg=s prosecution under the 2005 indictments for her alleged activity between January 9, 1998, and April 27, 2000.

The first question before this court is whether the State may appeal.  Berg argues that no appeal may be taken by the State.  We disagree.  Tex. Code Crim. Proc. Ann. art. 44.01(a) (Vernon Supp. 2007) provides that the State may appeal an order where the trial court Asustains a claim of former jeopardy.@ Berg contends that the doctrine of collateral estoppel is not such Aa claim of former jeopardy.@  The State argues that the doctrine of collateral estoppel is Aembodied@ within the doctrine of double jeopardy.  By its definition, the doctrine of collateral estoppel involves a claim of former jeopardy:  collateral estoppel Ameans simply 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.@  Ashe v. Swenson, 397 U.S. 436, 443 (1970); Murphy v. State, 239 S.W.3d 791, 794 (Tex. Crim. App. 2007).  The State may appeal under Article 44.01(a), and Berg=s contentions are overruled.

The State argues in its sole issue in each appeal that the trial court erred in granting the petitions because the fact issue in the present indictments was not determined in the 2004 jury trial on the 2002 indictments.  We addressed this contention in Berg=s 2006 appeals and determined that neither double jeopardy nor collateral estoppel applied.  Berg, 2006 WL 3746738.

The issue before the jury in the 2004 trial was whether the State had proved beyond a reasonable doubt that Berg committed the offense alleged in the indictment: unlawful appropriation from Jim Taylor between May 5, 2000, and February 16, 2001.  The jury found that the State had not and acquitted Berg of the alleged May 5, 2000 through February 16, 2001 appropriations.

The present indictments involve not only the offense of unlawful appropriations but also the offense of misapplication of fiduciary property against not only Jim Taylor but also Bobbie Taylor from January 9, 1998, through April 27, 2000. These allegations do not involve the previously resolved fact issues:  the time frame is different, misapplication is a different offense, and the allegations regarding Bobbie Taylor constitutes a new complaint.  Berg, 2006 WL 3746738.

The issue is sustained, and the orders of the trial court are vacated.

JIM R. WRIGHT

CHIEF JUSTICE

July 3, 2008

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.

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^[1]Cause No. 11-08-00074-CR.

^[2]Cause No. 11-08-00075-CR.

^[3]A pretrial petition for writ of habeas corpus is an appropriate means to raise a claim of collateral estoppel.  Ex parte Taylor, 101 S.W.3d 434, 439 (Tex. Crim. App. 2002).