Ex Parte Travis Todman v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00061-CR
No. 02-23-00062-CR
No. 02-23-00063-CR
No. 02-23-00064-CR
___________________________
Ex parte Travis Todman
On Appeal from the 371st District Court
Tarrant County, Texas
Trial Court Nos. 1570584, 1734243, 1742841, 1764911
Before Kerr, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
In a two-count indictment, the State charged Appellant Travis Todman with
manslaughter and racing on a highway causing death. See Tex. Penal Code Ann.
§ 19.04; Tex. Transp. Code Ann. § 545.420(a), (h). In September 2022, a jury acquitted
Todman of both offenses but found him guilty of racing on a highway, a lesser-
included offense of racing causing death. See Tex. Transp. Code Ann. § 545.420(a),
(d). The trial court assessed his punishment at 120 days in jail. Todman has not
appealed that conviction and sentence.
The State had also charged Todman in separate indictments with two counts of
failing to stop and render aid arising from the racing incident but did not proceed to
trial on those charges in September 2022. See id. § 550.021. In January 2023, however,
a grand jury reindicted Todman on those charges. Todman filed a pretrial application
for writ of habeas corpus arguing that collateral estoppel as embodied in the Fifth
Amendment’s Double Jeopardy Clause barred the State from prosecuting him for
failing to stop and render aid. The trial court denied Todman habeas relief, and
Todman has appealed. In a single issue, he argues that the State is collaterally
estopped from prosecuting him for failing to stop and render aid. We will affirm the
trial court’s orders denying Todman habeas relief in trial-court Cause Numbers
1734243, 1742841, and 1764911 and will dismiss for want of jurisdiction Todman’s
appeal from the trial court’s order in trial-court Cause Number 1570584.
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I. Background
In the early morning hours of October 28, 2018, Todman and Javon Torres
were racing their cars in the southbound lanes of McCart Avenue in Fort Worth.
Keenan Hilsabeck and Cody Nager were in a car traveling northbound on McCart
Avenue. Nager—who had been drinking that night—was driving, and Hilsabeck was
in the front passenger seat.
When Nager and Hilsabeck reached the intersection of McCart Avenue and
Columbus Trail, Nager started to turn left onto Columbus Trail on a yellow light but
braked in the intersection. Todman, who had a green light, struck Nager’s car. Nager
was badly injured, and Hilsabeck was killed. Todman was also injured but left the
scene by crawling to his home, which was 300 to 400 yards from the place of the
accident. Torres had avoided the collision and fled the scene.
A grand jury indicted and re-indicted Todman on multiple counts:
• Cause Number 1570584: (1) aggravated assault causing serious bodily
injury to Nager and (2) racing causing serious bodily injury to Nager;
• Cause Number 1570585: (1) manslaughter and (2) racing causing
Hilsabeck’s death;
• Cause Number 1734243 (partial re-indictment of 1570585):
(1) aggravated assault with a deadly weapon against Hilsabeck,
(2) manslaughter, (3) racing causing Hilsabeck’s death; and (4) failing
to stop and render aid to Hilsabeck; and
• Cause Number 1742841 (partial re-indictment of 1734243):
(1) manslaughter, (2) aggravated assault with a deadly weapon against
Nager, (3) racing causing Hilsabeck’s death, (4) failing to stop and
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render aid to Hilsabeck, and (5) failing to stop and render aid to
Nager.
Todman moved to quash the indictment in Cause Number 1742841, arguing
that it should be dismissed and quashed because it was brought more than three years
after the commission of the alleged offenses, and the State had failed to allege tolling
facts in the indictment. See Tex. Code Crim. Proc. Ann. art. 12.01. Just before voir
dire on the first day of Todman’s September 2022 trial, the trial court granted
Todman’s motion in part and quashed Counts 2, 3, and 5 in Cause Number 1742841.
See id. Over Todman’s objection, the State then opted to proceed to trial on the
indictment in Cause Number 1570585—manslaughter and racing causing Hilsabeck’s
death.
In its opening statement, the State explained to the jury that Todman had left
the scene of the accident. During the week-long trial, the jury heard testimony from,
among others, Nager; Torres; eyewitnesses to Todman’s and Torres’s racing, the
accident, and the accident’s aftermath; a police officer who had responded to the
accident and had located Todman at his home; a detective who had responded to and
investigated the accident; a medical examiner at the Tarrant County Medical
Examiner’s Office who testified about the cause and manner of Hilsabeck’s death
(blunt-force trauma and the accident, respectively); the State’s and Todman’s accident-
reconstruction experts; and a toxicologist with the Tarrant County Medical
Examiner’s Office.
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Throughout the trial, the State presented evidence proving that Todman had
left the scene of the accident. The State emphasized Todman’s flight in its closing
argument and pointed to it as evidence supporting Todman’s guilt. At the trial’s
conclusion, the jury was charged in relevant part as follows:
Now, therefore, if you find and believe from the evidence beyond a
reasonable doubt, that the Defendant, Travis Kirby Todman, on or about
the 28th day of October 2018, in the County of Tarrant, State of Texas,
did then and there recklessly, by driving a motor vehicle at excessive speed through a
multi-lane intersection while engaged in a race or speed competition with another motor
vehicle, cause the death of an individual, Keenan Hilsabeck, by driving said motor
vehicle into or against another motor vehicle occupied by Keenan Hilsabeck; and you
further find beyond a reasonable doubt that the death of Keenan
Hilsabeck would not have occurred but for the conduct of the
Defendant, operating alone or concurrently with another cause, then you
will find the Defendant guilty of the offense of Manslaughter as charged
in Count One of the Indictment.
Unless you so find and believe from the evidence beyond a
reasonable doubt, or if you have a reasonable doubt thereof, then you will
find the Defendant not guilty of the offense charged in Count One of the
Indictment; or if you find from the evidence that a concurrent cause was
clearly sufficient to produce Keenan Hilsabeck’s death and that the
Defendant’s conduct was clearly insufficient to produce Keenan
Hilsabeck’s death, or if you have a reasonable doubt thereof, then you
will find the Defendant not guilty of the offense charged in Count One
of the Indictment. In either event, you will next proceed to consider
Count Two of the Indictment.
Now, therefore, if you find and believe from the evidence beyond
a reasonable doubt, that the Defendant in the County of Tarrant and State
aforesaid on or about the 28th day of October 2018, did knowingly
participate in any manner in a race, vehicle speed competition, contest, a drag race or
acceleration contest, or in connection with a drag race, an exhibition of vehicle speed or
acceleration, or to make a vehicle speed record, and that as a result, Keenan Hilsabeck
did suffer death; and you further find that the death of Keenan Hilsabeck
would not have occurred but for the conduct of the Defendant, operating
alone or concurrently with another cause, then you will find the
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Defendant guilty of racing on a highway or roadway causing death as
charged in Count Two of the Indictment.
Unless you so find and believe from the evidence beyond a
reasonable doubt, or if you have a reasonable doubt thereof, then you will
find the Defendant not guilty of the offense charged in Count Two of the
Indictment and next consider whether he is guilty of racing on a highway
or roadway; or if you find from the evidence that a concurrent cause was
clearly sufficient to produce Keenan Hilsabeck’s death and that the
Defendant’s conduct was clearly insufficient to produce Keenan
Hilsabeck’s death, or if you have a reasonable doubt thereof, then you
will find the Defendant not guilty of the offense charged in Count Two
of the Indictment and next consider whether he is guilty of racing on a
highway or roadway.
Now, therefore, if you find and believe from the evidence beyond
a reasonable doubt, that the Defendant in the County of Tarrant and State
aforesaid on or about the 28th day of October 2018, did knowingly
participate in any manner in a race, vehicle speed competition, contest, a drag race or
acceleration contest, or in connection with a drag race, an exhibition of vehicle speed or
acceleration, or to make a vehicle speed record, then you will find the Defendant
guilty of racing on a highway or roadway.
Unless you so find and believe from the evidence beyond a
reasonable doubt, or if you have a reasonable doubt thereof, then you will
find the Defendant not guilty of racing on a highway or roadway.
[Emphases added.]
The jury acquitted Todman of manslaughter and racing causing death but
found him guilty of racing. Todman opted to have the trial court assess his
punishment.
Before the trial court assessed Todman’s punishment, a grand jury reindicted
Todman in January 2023 under Cause Number 1764911 on two counts of failure to
stop and render aid, alleging that on or about October 28, 2018, he did
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intentionally or knowingly operate a vehicle that became involved in an accident
resulting in death to Keenan Hilsabeck, and the said defendant did thereafter,
knowing said accident had occurred, intentionally or knowingly fail to
immediately stop at the scene of the accident or immediately return to
the scene of said accident, or fail to immediately determine if a person
had been injured or required aid in said accident, or fail to give the said
Travis Kirby Todman’s name and address to any person, or fail to
render reasonable assistance to Keenan Hilsabeck when it was then
apparent that Keenan Hilsabeck was in need of medical treatment, [and]
. . . intentionally or knowingly operate a vehicle that became involved in an
accident resulting in serious bodily injury to Cody Nager, and the said defendant
did thereafter, knowing said accident had occurred, intentionally or
knowingly fail to immediately stop at the scene of the accident or
immediately return to the scene of said accident, or fail to immediately
determine if a person had been injured or required aid in said accident,
or fail to give the said Travis Kirby Todman’s name and address to any
person, or fail to render reasonable assistance to Cody Nager when it
was then apparent that Cody Nager was in need of medical treatment[.]
[Emphases added.]
Unlike the re-indictment in Cause Number 1742841, this re-indictment included a
tolling paragraph.
As noted, Todman filed a pretrial application for writ of habeas corpus in
Cause Numbers 1570584, 1734243, 1742841, and 1764911 contending that the State
was collaterally estopped from prosecuting him again because in the first trial, the jury
found that he was not responsible for Hilsabeck’s death and that Todman’s racing did
not result in Hilsabeck’s death. After a hearing, the trial court found that the State was
not barred from prosecuting Todman for failing to stop and render aid (Count 4 in
both Cause Numbers 1734243 and 1742841 and both counts in Cause Number
1764911) but was barred from prosecuting all other offenses alleged in Cause
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Numbers 1570584, 1734243, and 1742841. 1 The trial court also ordered a stay of
prosecution pending this appeal.2
II. Standard of Review
Pretrial habeas relief is an extraordinary remedy. Ex parte Perry, 483 S.W.3d 884,
895 (Tex. Crim. App. 2016). A double-jeopardy claim is one of the very limited
circumstances in which a defendant can seek pretrial habeas relief. See Ex parte Weise,
55 S.W.3d 617, 619–20 (Tex. Crim. App. 2001). We review the trial court’s ruling on a
pretrial application for writ of habeas corpus for an abuse of discretion. See Ex parte
Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). In conducting our review, we
view the evidence in the light most favorable to the trial court’s ruling and defer to the
trial court’s fact findings supported by the record. See id.; Ex parte Paxton, 493 S.W.3d
292, 297 (Tex. App.—Dallas 2016, pet. ref’d). If resolving the ultimate question turns
on applying legal standards, we review the trial court’s determination de novo. Paxton,
493 S.W.3d at 297.
The trial court found that all charges in Cause Number 1570584 were barred
1
from prosecution. On the State’s dismissal motion, the trial court dismissed that case.
Todman’s appeal from the trial court’s ruling in Cause Number 1570584 is thus moot,
and we lack jurisdiction over it.
2
Shortly after Todman filed his notices of appeal in his habeas proceeding, the
trial court sentenced him to 120 days in jail for the racing offense. As noted, Todman
has not appealed his racing conviction and sentence.
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III. Applicable Law
The Fifth Amendment of the United States Constitution provides that no
person shall have life or limb twice put in jeopardy for the same offense. U.S. Const.
amend. V. Generally, this provision—the Double Jeopardy Clause—protects against
(1) a second prosecution for the same offense after acquittal, (2) a second prosecution
for the same offense after conviction, and (3) multiple punishments for the same
offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225 (1977); Ramos v. State,
636 S.W.3d 646, 651 (Tex. Crim. App. 2021).
The doctrine of collateral estoppel is embodied in the Fifth Amendment’s
guarantee against double jeopardy, is an “extremely important principle” in our
adversarial system, and “means 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,
90 S. Ct. 1189, 1194 (1970). “[C]ollateral estoppel requires that the precise fact[s]
litigated in the first prosecution have arisen in the same transaction, occurrence,
situation, or criminal episode that gave rise to the second prosecution.” Murphy v.
State, 239 S.W.3d 791, 795 (Tex. Crim. App. 2007). When confronted with whether
collateral estoppel bars a subsequent trial, courts must determine (1) what facts were
necessarily decided in the first proceeding and (2) whether those facts constitute
essential elements of the offense in the second trial. Ex parte Rion, 662 S.W.3d 890,
896 (Tex. Crim. App. 2022).
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Evaluating which facts the factfinder necessarily decided in the first trial
requires examining the entire trial record, the pleadings, the charge, and the attorneys’
arguments. Id. at 896–97. Before collateral estoppel can apply, a court must be able to
say that it would have been irrational for the jury to acquit the defendant in the first
trial without finding in his favor on a fact essential to conviction in the second. Id. at
897. Thus, collateral estoppel is restricted to cases in which the legal and factual
situations are identical. Id.Collateral estoppel must be applied with realism and rationality. Ex parte
Richardson, 664 S.W.3d 141, 143 (Tex. Crim. App. 2022). Collateral estoppel does not
preclude a second prosecution simply because it is unlikely—or even very unlikely—
that the original jury acquitted without finding the fact in question. Id. The mere
possibility that a fact may have been previously determined is insufficient to bar re-
litigation of that same fact in a second trial. Ex parte Watkins, 73 S.W.3d 264,
268 (Tex. Crim. App. 2002). A defendant has the burden to prove that the facts in
issue were necessarily decided in the prior proceeding. Murphy, 239 S.W.3d at 795.
IV. Analysis
Here, Todman contends that collateral estoppel bars the State from
prosecuting him for failing to stop and render aid to Hilsabeck and to Nager because
(1) the State seeks to prosecute him based on the same facts that the jury decided in
his favor in the first trial and (2) those facts are essential elements of failing to stop
and render aid. He further argues that because the State “was allowed an illegal
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severance” of the failing-to-stop-and-render-aid charges, it is estopped from re-
litigating those charges and has waived any objection to the jeopardy bar. We address
each of these arguments in turn.
Manslaughter required proof that Todman caused Hilsabeck’s death, see Tex.
Penal Code Ann. § 19.04(a). Similarly, racing causing death required proof that
Todman’s racing resulted in Hilsabeck’s death. See Tex. Transp. Code Ann.
§ 545.420(h). In contrast, failure to stop and render aid merely requires proof that
Todman operated a vehicle involved in an accident that resulted in or was reasonably
likely to result in injury or death:
(a) The operator of a vehicle involved in an accident that results or is
reasonably likely to result in injury to or death of a person shall:
(1) immediately stop the vehicle at the scene of the accident or as
close to the scene as possible;
(2) immediately return to the scene of the accident if the vehicle is
not stopped at the scene of the accident;
(3) immediately determine whether a person is involved in the
accident, and if a person is involved in the accident, whether that
person requires aid; and
(4) remain at the scene of the accident until the operator complies
with the requirements of Section 550.023.
....
(c) A person commits an offense if the person does not stop or does not
comply with the requirements of this section.
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Id. § 550.021(a), (c).3 In other words, a failure-to-stop-and-render aid prosecution does
not require proof that a driver caused the accident. See id.; see also Curry v. State,
622 S.W.3d 302, 311 n.7 (Tex. Crim. App. 2019); Boudreaux v. State, 631 S.W.3d 319,
327 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d). The driver only has to be
involved in the accident. See Tex. Transp. Code Ann. § 550.021(a); Curry, 622 S.W.3d
at 311 n.7.
According to Todman, his failing to stop at the scene was necessarily decided
in the first trial. Todman admits that Hilsabeck died in the accident and that
Todman’s trial was “‘utterly devoid’ of any indication that the first jury could have
rationally found that a death didn’t occur.” And he does not contend that the jury
made any findings regarding Nager’s injuries from the accident. Todman asserts—and
the State agrees—that by acquitting him of manslaughter and of racing causing death
but convicting him of racing, the jury necessarily determined that his racing (1) did
not cause Hilsabeck’s death and (2) did not result in Hilsabeck’s death. Todman
further argues that because the State relied heavily on his failing to stop at the scene as
proof of his guilt in the first trial and because the jury determined that his driving did
If the accident results in the death of a person, an offense under Section
3
550.021 is a second-degree felony. Tex. Transp. Code Ann. § 550.021(c)(1)(A). The
offense is a third-degree felony if the accident resulted in seriously bodily injury, as
defined by Section 1.07 of the Texas Penal Code. Id. § 550.021(c)(1)(B); see Tex. Penal
Code Ann. § 1.07(a)(46). Todman thus faces two felony counts.
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not cause or result in Hilsabeck’s death, the State cannot now prosecute him for an
offense based on Todman’s involvement in the accident. We disagree.
Nothing in the jury’s verdict in the first trial necessarily decided that Todman
was not involved in the accident or any issue related to his post-accident
responsibilities. Although Todman’s first prosecution arose from the same accident
that gave rise to his second prosecution, the facts necessarily decided in the first case
do not constitute essential elements of the failing-to-stop-and-render-aid offenses.
The mere fact that the accident central to the first prosecution is the basis for
Todman’s second prosecution does not automatically bar the State’s prosecuting him
for failing to stop and render aid. Cf. Ex parte Desormeaux, 353 S.W.3d 897, 899, 901–
03 (Tex. App.—Beaumont 2011, pet. ref’d) (concluding that jury’s acquitting
stepmother of intentionally or knowingly causing her stepson’s death by choking him,
shaking him, and striking his head on an object did not collaterally estop State from
prosecuting stepmother for injury to a child based on her failing to seek medical
treatment for the child). And the jury’s hearing testimony in the first trial that Todman
did not stop and render aid following the accident does not establish that the jury
necessarily decided that issue in his favor because the jury was not asked to resolve
that issue. Cf. Richardson, 664 S.W.3d at 148–51 (explaining that even though jury
heard evidence about a second shooting during defendant’s first trial, that fact did not
establish that the jury necessarily determined the defendant’s culpability for that
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second shooting when it acquitted him as a primary actor or party in the first
shooting).
Regarding his improper-severance argument, Todman complains that by
choosing to go to trial on the indictment charging him with manslaughter and racing
causing Hilsabeck’s death––after the trial court had quashed Counts 2 (aggravated
assault with a deadly weapon against Nager), 3 (racing causing Hilsabeck’s death), and
5 (failing to stop and render aid to Nager) in Cause Number 1742841 (the indictment
on which the State had announced ready the week before trial)––the State “effectively
severed out the[ ] quashed counts and has now come back, after the acquittals, and
reindicted them as new charges.” Todman further complains that the State “essentially
obtained a severance, which is prohibited by Texas law.”
To the extent that habeas relief could be available for Todman’s improper-
severance complaint in the double-jeopardy context,4 we would overrule it. The State
may prosecute a defendant “in a single criminal action for all offenses arising out of
the same criminal episode.” Tex. Penal Code Ann. § 3.02(a). And “[w]henever two or
more offenses have been consolidated or joined for trial under Section 3.02, the
defendant shall have a right to a severance of the offenses.” Id. § 3.04(a). But while a
defendant has a right to severance, he has no right to have his offenses consolidated
into a single trial. See Nelson v. State, 864 S.W.2d 496, 498 (Tex. Crim. App. 1993).
4
Todman argues, in effect, that the State’s improper attempt at severance
should not allow it to violate collateral-estoppel principles.
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Todman next argues that denying him habeas relief in this case effectively
“allows the State to offensively use severance to get a dress-rehearsal trial to hedge
against acquittals” and “allows the [S]tate an [end run around] the trial court’s ruling in
quashing illegal counts.” 5 According to Todman, “[d]epending on how creative[ly] the
[S]tate can leap-frog indictments, there could be no limit on how many times an
individual could face trial for a single event with no finality.” In support of his
argument, Todman points to the court of criminal appeals’s reasoning in Ex parte
Taylor:
[I]ssue preclusion cannot be defeated simply by advancing new or
different evidence to support the same issue already litigated. Thus, a
party who neglects to submit the evidence that would support a legal
theory that the party withheld in a first proceeding, cannot later point to
its own omission as justification for pursuing a second proceeding.
Ex parte Taylor, 101 S.W.3d 434, 441–42 (Tex. Crim. App. 2002) (footnotes omitted).
Here, however, the failing-to-stop-and-render aid issue wasn’t litigated in the first trial,
so we find this reasoning inapposite.
As noted, when the State reindicted Todman under Cause Number
5
1764911 for failing to stop and render aid to Hilsabeck and to Nager, the State
included a tolling paragraph. “Defects in a tolling paragraph are reparable and ‘do not
destroy a trial court’s power or jurisdiction to proceed,’ and so ‘may not be raised by
means of a pretrial writ of habeas corpus.’” See Ex parte Edwards, 663 S.W.3d 614,
617 (Tex. Crim. App. 2022) (quoting Ex parte Smith, 178 S.W.3d 797, 803 (Tex. Crim.
App. 2005)). Likewise, the absence of a tolling paragraph (as to the indictment in
Cause Number 1742841) is a reparable defect and is not cognizable by pretrial habeas.
See id. at 617.
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Todman has failed to prove that the facts at issue in his failing-to-stop-and-
render-aid prosecution were necessarily decided in the first trial. See Murphy,
239 S.W.3d at 795. After examining the entire trial record, the pleadings, the charge,
and the attorneys’ arguments, we have determined that the facts necessarily decided in
the first trial—that Todman’s racing did not cause or result in Hilsabeck’s death—are
not essential elements of failing to stop and render aid at an accident resulting in
Hilsabeck’s death and Nager’s injuries, which requires (among other things) a finding
only that Todman operated a vehicle involved in that accident. See Rion, 662 S.W.3d at
896–97. The trial court thus did not abuse its discretion by denying Todman habeas
relief. We overrule his only issue.
V. Conclusion
Having overruled Todman’s only issue, we affirm the trial court’s orders
denying Todman habeas relief in trial-court Cause Numbers 1734243, 1742841, and
1764911. We dismiss for want of jurisdiction Todman’s appeal from the trial court’s
order in trial-court Cause Number 1570584.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 3, 2023
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