DocketNumber: PD-0088-10
Judges: Keller, Meyers, Price, Keasler, Hervey, Alcala, Womack, Cochran, Johnson
Filed Date: 6/29/2011
Status: Precedential
Modified Date: 10/19/2024
delivered the opinion of the Court
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 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 Tyler
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 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.
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.
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.
*532 Q. Nothing that would give you reason to believe that he had burglarized that store?
A. No.
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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 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.
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[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
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)
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.
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.
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 violation of Chapter 42 of the Penal Code.
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.
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 suspicion to believe that an offense had been committed in his presence.
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.
As a city police officer, Officer Johnson was a peace officer as defined by Article 2.12(B).
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.
Investigative detentions are generally governed by the reasonable suspicion standard.
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.”
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 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.
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 by drugs.
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.
B. Collateral Estoppel
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.
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.
To support this proposition, we cited to our earlier decision in Ex parte Taylor and to the Fifth Circuit case of Neal v. Cain.
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.
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.
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 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.
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.
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 second trial.
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.”
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.”
Neal has already been discussed. De-drick’s quotation from Mock is actually contrary to Taylors 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.”
In Wingate, the State introduced extraneous offenses of which the defendant had previously been acquitted.
Finally, with respect to Murphy’s reliance upon Larlcin for the proposition that “[wjhile 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,”
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.”
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.
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
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.
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.”
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
It is axiomatic that even an erroneous acquittal counts as an acquittal for double-jeopardy purposes,
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 (identity) was “ultimate” in both prosecutions.
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.
b. The Ashe Approach
The formulation articulated in Ashe had been applied previously in Yates v. United, States
Comment p ruled out the use of eviden-tiary 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.”
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.
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 in criminal prosecutions. But the Fifth Circuit conducted an about-face in 1994 in Wright v. Whitley.
In Brackett, the Fifth Circuit retreated somewhat from this expansive interpretation of Dowling — characterizing Dowling more narrowly as a burden-of-proof case.
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.
d. The Restatement (Second)
The Restatement (Second) of Judgments has taken a dramatically different position from the original Restatement regarding the application of collateral estoppel to evi-dentiary facts. Comment j of § 27 eschews any distinction between “evidentia-ry” 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.”
A number of jurisdictions have adopted comment j in civil cases.
The Supreme Court has cited § 27 of the Restatement (Second) of Judgments in two recent double-jeopardy eases, but it has not cited to comment j or expressly addressed the issue currently before us.
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.
[T]he prosecution’s discovery rights in criminal cases are limited, both by rules*550 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.”
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.”
The State can obtain appellate review of a trial court’s ruling on a motion to suppress if the ruling is made before trial.
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.
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.
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.
. 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.
. 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.
. See Tex. Penal Code § 38.02(b).
. Tex.Code Crim. Proc. art. 14.03(d).
. Appellant's "res judicata " claim was not really distinct from his collateral-estoppel claim, and we need not make any further reference to it.
. 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.”).
. Defense counsel relied upon Wingate v. Wainwright, 464 F.2d 209 (5th Cir.1972); Blackburn v. Cross, 510 F.2d 1014 (5th Cir.1975); United States v. Nelson, 599 F.2d 714 (5th Cir.1979); and United States v. Lee, 622 F.2d 787 (5th Cir.1980).
. 239 S.W.3d 791 (Tex.Crim.App.2007).
. Other portions of our opinion reflect the content of the reasonable suspicion/Article 14.03 complaint made before the court of appeals.
. York v. State, No. 12-08-00106-CR, slip op. at 6, 2009 WL 4829996 (Tex.App.-Tyler December 16, 2009) (not designated for publication).
. 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").
. York, No. 12-08-00106-CR, slip op. at 7 (citing Murphy, 239 S.W.3d at 795).
. Id.
. 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.
. In State v. Garcia-Cantu, we determined that the trial court's finding that a detention
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, 127 S.Ct. 2400, 168 L.Ed.2d 132 (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.”).
. 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.Crim.App.2004).
. Tex.Code Crim. Proc. art. 2.12(3) (peace officers include "police officers of an incorporated city, town, or village”).
. Id., art.14.03(g)(2).
. 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.
. 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). 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.
. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Crain v. State, 315 S.W.3d 43, 52 (Tex.Crim.App.2010).
. Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App.2001); see also Crain, 315 S.W.3d at 52.
. Garcia, 43 S.W.3d at 530.
. 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).
. 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 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).
. Tex. Penal Code § 49.02(a).
. Id., 1.07(40).
. 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, affing as modified on remand, 683 S.W.2d 791 (Tex.App.-Corpus Christi 1984).
. 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).
. 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).
. See Tex. Penal Code § 49.01(2)(A). (The definition of "intoxicated” includes "not hav-
.Appellant specifically relies upon the doctrine of collateral estoppel as articulated in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (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.
. Murphy, 239 S.W.3d at 792.
. Id. at 793.
. Id.
. Id.
. Id.
. Id.
. Id. at 794.
. Id. at 795.
. Id.
. 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)).
. Id. at 796 (citing United States v. Larkin, 605 F.2d 1360, 1361 (5th Cir.1979)).
. 767 S.W.2d 784 (Tex.Crim.App.1989).
. Murphy, 239 S.W.3d at 797 (Meyers, J., concurring).
. 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, - U.S. -, 129 S.Ct. 2145, 2152, 173 L.Ed.2d 1173 (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(re-ferring 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 553 (stating that issue preclusion can prohibit a party from relitigat-ing an issue "such as a fact, a question of law, or an application of law to fact”).
. See Tex. Penal Code § 38.02(b)(1), (2).
. 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.
. See Murphy, 239 S.W.3d at 793-94. '
. Murphy v. State, 200 S.W.3d 753, 757 (Tex. App.-Texarkana 2006).
. 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.
.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).
. See Murphy, 239 S.W.3d at 795 (emphasis added).
. Taylor, 101 S.W.3d at 440.
. 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.).
. 623 S.W.2d 332 (Tex.Crim.App.1981).
. Taylor, 101 S.W.3d at 440 n. 17.
. 623 S.W.2d at 336 (quoting United States v. Mock, 604 F.2d 341 (5th Cir.1979)).
. 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.
. Dedrick, 623 S.W.2d at 336 (emphasis added) (quoting Mock, 604 F.2d at 343).
. See Dedrick, 623 S.W.2d at 336 (quoting Mock, 604 F.2d at 343).
. See this opinion, footnote 7.
. Wingate, 464 F.2d at 210.
. See Id. at 212 (quoting Ashe, 397 U.S. at 443, 90 S.Ct. 1189).
. 464 F.2d at 213.
. Id. at 214.
. 510 F.2d at 1017.
. Id.
. Murphy, 239 S.W.3d at 795.
. 605 F.2dat 1361.
. Id., passim.
. 767 S.W.2d at 785.
. Id.
. Id. at 786.
. Id. at 786-87.
. 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 guarantee against double jeopardy” because neither the successive-prosecution nor the multiple-punishment aspects of double jeopardy are at issue. Reynolds v.
. Bies, 129 S.Ct. at 2152; Yeager v. United States,-U.S.-, 129 S.Ct. 2360, 2367 n. 4, 174 L.Ed.2d 78 (2009).
. See Restatement (Second) of Judgments § 27 cmt. j (1982).
. Judge Womack's concurrence contends that Murphy and Taylor read Neal v. Cain too broadly. Womack, J., concurring, post, at 555-57. We agree, which is one reason we have chosen to re-examine the matter.
. Tex. Penal Code § 38.02(b).
. 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.").
. 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 5.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 nature of that burden).
. See e.g., Castro, 227 S.W.3d at 741.
. 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.
. See Lego v. Twomey, 404 U.S. 477, 488-89, 92 S.Ct. 619, 30 L.Ed.2d 618 (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 volun-tariness 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
. 493 U.S. 342, 348-49, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990).
. 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...."); Oursboum v. State, 259 S.W.3d 159, 177 (Tex.Crim.App.2008).
. 153 S.W.3d 413, 415 (Tex.Crim.App.2005) (construing Tex. Penal Code § 38.04).
. Id.
. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App.2007).
. 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.”).
. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original) (sufficiency of the evidence standard); McDuff v. State, 939 S.W.2d 607, 613
. 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).
. State v. Moreno, 294 S.W.3d 594, 600 (Tex. Crim.App.2009) (relying upon Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962)).
. See Sanabria v. United States, 437 U.S. 54, 72-73, 77-78, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); id. at 72-73, 98 S.Ct. 2170 (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, 98 S.Ct. 2170 (Judgment of acquittal in which Government's evidence was erroneously excluded "is final and unreviewable” and "absolutely bars a second trial.”).
. 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
. Ashe, 397 U.S. at 437-39, 90 S.Ct. 1189.
. Id. at 439-40, 90 S.Ct. 1189.
. Id. at 445, 90 S.Ct. 1189.
. Id.
. Id. at 443, 90 S.Ct. 1189.
. Id. (quoting United States v. Oppenheimer, 242 U.S. 85, 87, 37 S.Ct. 68, 61 L.Ed. 161 (1916)).
. 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356(1957).
. Id. at 300, 77 S.Ct. 1064.
. Id. at 335, 77 S.Ct. 1064.
. Id. at 337, 77 S.Ct. 1064.
. Id. at 337-38, 77 S.Ct. 1064.
. Id. at 338, 77 S.Ct. 1064.
. 141 F.2d 927 (2d Cir.1944).
. Yates, 354 U.S. at 338, 77 S.Ct. 1064.
. Restatement of Judgments § 68 cmt. p.
. The Evergreens, 141 F.2d at 928-931.
. Id. at 928-29.
. Id. at 930.
. Id. at 930-31.
. 11 F.3d 542 (5th Cir.1994).
. Id. at 545.
. Id.
. Mat545.
. Id. at 546.
. Brackett, 113 F.3d at 1401. For discussion of Dowling’s holding on burden of proof, see this opinion, ante.
. Brackett, 113 F.3d at 1401 n. 9.
. Id.
. 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, 515 N.Y.S.2d 753, 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 Kramsvogel, 124 Wis.2d 101, 122, 369 N.W.2d 145, 155 (1985).
For authority against applying collateral es-toppel 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 evidentia-ry 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) ("[Cjollateral estoppel does not forbid the re-litigation 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).
. Restatement (Second) of Judgments § 27 cmt. j.
. Id.
. Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756, 771 (1st Cir.2010) ("[C]ollateral es-toppel 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).
. 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.”).
. Compare, this opinion, footnotes 125 and 128.
. See Bies, 129 S.Ct. at 2152; Yeager, 129 S.Ct. at 2367 n. 4.
. Yeager, 129 S.Ct. at 2367 n. 4.
. Id. at 2367; Bies, 129 S.Ct. at 2153.
. 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980).
. Id. at 11, 100 S.Ct. 1999.
. Id. at 13, 100 S.Ct. 1999.
. Id.
. Id. at 22, 100 S.Ct. 1999.
. Id.
. Id. at 23-24, 100 S.Ct. 1999.
. Id. at 24, 100 S.Ct. 1999.
. Restatement (Second) of Judgments, § 28(1).
. See Standefer, supra.
. 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.”).
. Standefer, 447 U.S. at 23, 100 S.Ct. 1999.
. Standefer, 447 U.S. at 23, 100 S.Ct. 1999.
. Tex.Code Crim. Proc. art. 44.01(a)(5).
. 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).
. 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).
. 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)
. See United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 51 L.Ed.2d 642 (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.3d 456, 462-63 (Tex.Crim.App.2003) (Meyers, X, 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).
. 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).
. See United States v. Dixon, 509 U.S. 688, 703-09, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); id. at 704, 113 S.Ct. 2849 (adopting J. Scalia's Grady dissent); Grady, 495 U.S. at 529, 110 S.Ct. 2084 (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.”).
. See Brackett, 113 F.3d at 1401 n. 9 ("Because only ultimate facts must be established beyond a reasonable doubt, however, Dowling
. Judge Womack's concurrence raises some interesting (and complex) questions regarding both the scope of the collateral estop-pel 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, 37 S.Ct. 68, 61 L.Ed. 161 (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 v. State, 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 Mwphy) 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.