Ex Parte Infante

• Decision Date: 05 November 2004
• Docket Number: No. 06-04-00020-CR.,06-04-00020-CR.
• Citation: 151 S.W.3d 255
• Parties: Ex Parte David INFANTE.
• Court: Texas Court of Appeals

151 S.W.3d 255

Ex Parte David INFANTE.

No. 06-04-00020-CR.

Court of Appeals of Texas, Texarkana.

Submitted November 4, 2004.

Decided November 5, 2004.

Mark Breding, Crumley and Breding, Quitman, for appellant.

Henry Whitley, Special Assistant District Attorney, Marcus D. Taylor, District Attorney, Quitman, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Chief Justice MORRISS.

David Infante appeals the trial court's denial of his pretrial application for writ of habeas corpus. A jury recently acquitted him of aggravated sexual assault. Infante now asks us to bar the State from prosecuting him in five remaining cases (in which the charges range from indecency with a child to aggravated sexual assault) because he was acquitted on the other charge. Based on the record before us and the applicable law, we affirm the trial court's judgment.

I. Factual and Procedural Background

On August 2, 2001, a grand jury charged Infante in cause number 16,841-2001-A with the aggravated sexual assault of S.I., a child.¹ See Tex. Pen.Code Ann. § 22.021 (Vernon Supp.2004-2005). More specifically, the indictment in 16,841-2001-A alleged,

that on or about the 25th day of May A.D. 2001, and before the presentment of this indictment, in the County and State aforesaid, DAVID INFANTE, hereinafter styled Defendant, did then and there intentionally and knowingly cause the mouth of [S.I.], a child who was then and there younger than 14 years of age and not the spouse of the defendant, to contact the sexual organ of the defendant, against the peace and dignity of the State.

The grand jury also indicted Infante in four other cases. In 16,842-2001-A, the indictment charged him with aggravated sexual assault and alleged,

that on or about the 25th day of May A.D. 2001, and before the presentment of this indictment, in the County and State aforesaid, DAVID INFANTE, hereinafter styled Defendant, did then and there intentionally and knowingly cause the sexual organ of [S.I.], a child who was then and there younger than 14 years of age and not the spouse of the defendant, to contact the mouth of the defendant, against the peace and dignity of the State.

In 16,843-2001-A, Infante was also charged with aggravated sexual assault, and that indictment alleged,

that on or about the 11th day of May A.D. 2001, and before the presentment of this indictment, in the County and State aforesaid, DAVID INFANTE, hereinafter styled Defendant, did then and there intentionally and knowingly cause the penetration of the female sexual organ of [S.I.], a child who was then and there younger than 14 years of age and not the spouse of the defendant, by defendant's finger, against the peace and dignity of the State.

In 16,844-2001-A, the grand jury charged Infante with indecency with a child. See Tex. Pen.Code Ann. § 21.11(a)(2) (Vernon 2003). More specifically, that indictment alleged,

that on or about the 27th day of April A.D. 2001, and before the presentment of this indictment, in the County and State aforesaid, DAVID INFANTE, hereinafter styled Defendant, did then and there, with intent to arouse and gratify the sexual desire of said defendant, intentionally and knowingly engage in sexual contact with [S.I.], by touching the female sexual organ of [S.I.], a child younger than 17 years of age and not the spouse of the defendant, against the peace and dignity of the State.

In 16,845-2001-A, Infante was also charged with indecency with a child by sexual contact, and that indictment alleged,

that on or about the 27th day of April A.D. 2001, and before the presentment of this indictment, in the County and State aforesaid, DAVID INFANTE, hereinafter styled Defendant, did then and there, with the intent to arouse and gratify the sexual desire of said defendant, intentionally and knowingly engage in sexual contact with [S.I.], by touching the anus of [S.I.], a child younger than 17 years of age and not the spouse of the defendant, against the peace and dignity of the State.

On January 16, 2002, another grand jury returned a sixth indictment against Infante in cause number 17,046-2002-A. This indictment charged Infante with "intentionally and knowingly caus[ing] the anus of [S.I.], a child who was then and there younger than 14 years of age and not the spouse of the defendant, to contact the mouth of the defendant, against the peace and dignity of the State." The alleged offense occurred May 25, 2001.

After the jury acquitted Infante of aggravated sexual assault in 16,843-2001-A, Infante filed a pretrial application for writ of habeas corpus seeking to bar the State from further prosecuting him on the remaining charges. See Tex.Code Crim. Proc. Ann. art. 11.08 (Vernon 1977). The trial court denied relief. Infante now appeals.

II. Standard of Review

Usually, the decision to grant an application for writ of habeas corpus "lies within the discretion of the trial court, and the exercise of that discretion will not be disturbed unless clearly abused." Ex parte Pipkin, 935 S.W.2d 213, 215 (Tex.App.-Amarillo 1996, pet. ref'd). But the abuse of discretion standard is not appropriate if the trial court's decision regarding a habeas application does not turn on witness credibility or demeanor. Ex parte Mann, 34 S.W.3d 716, 718 (Tex.App.-Fort Worth, no pet.). In such a case, the appellate court must review de novo the trial court's application of law to facts. Id. The standard of review is altered from reviewing for abuse of discretion because the trial court is not in an appreciably better position than the appellate court to determine the correct application of law to facts. Id. (citing Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997)); see also Ex parte Nagle, 48 S.W.3d 213, 215-16 (Tex.App.-San Antonio 2000, no pet.). In the case now before us, the trial court's decision to deny relief did not turn on witness credibility. Accordingly, we will review the trial court's ruling under the de novo standard.

III. Collateral Estoppel

Infante first contends the doctrine of collateral estoppel, as set forth in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), precludes prosecution of the remaining charges. Infante essentially argues that the previous acquittal forecloses his identity as the perpetrator of any type of sexual abuse against S.I. According to Infante, because the jury acquitted him, it necessarily concluded he was not the perpetrator and, therefore, cannot be tried in any of the remaining five cases. We disagree.

Collateral estoppel, though it finds its origins in civil litigation, is embodied in the Fifth Amendment's protection from double jeopardy and applies with force to state criminal proceedings. Id. at 443, 445, 90 S.Ct. 1189; Ex parte Watkins, 73 S.W.3d 264, 267 (Tex.Crim.App.2002). Collateral estoppel "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, 397 U.S. at 443, 90 S.Ct. 1189.

Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to `examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.'

Id. (quoting Mayers & Yarborough, Bis Vexari: New Trials and Successive Prosecutions, 74 HARV. L.REV. 1, 38-39 (1960)).

Even if identity had been shown to be the reason for Infante's acquittal in the case numbered 16,843-2001-A, an offense alleged to have occurred May 11, 2001, that finding should not preclude prosecution of any of the other offenses, since they were alleged to have been committed on different occasions, that is, April 27 or May 25, 2001.

Also, even if the alleged offenses all arose from the same occurrence, the acquittal should not preclude prosecution on the other charges, since identity was not shown to be the determinative issue on the acquittal. While Infante did contest, in the case in which he was acquitted, whether he was the one who sexually assaulted S.I., identity was not the only disputed issue at trial. In fact, it appears not to have been even the principal issue. Infante also argued that the injuries to S.I.'s hymen (as reported by Kim Basinger, the sexual assault nurse examiner, and which the State argued proved the sexual assault occurred), might instead be attributable to a naturally occurring "hymenal fissure." During cross-examination, the nurse described a hymenal fissure as "a place in which the hymen has been disrupted. It's healed over. It can be caused by a number of things." The nurse further conceded that a hymenal fissure is not caused by sexual abuse.

Infante also suggested that the injury to S.I.'s hymen might have accidentally occurred during one of the many times he changed S.I.'s diaper. S.I.'s mother testified at trial that, while she was at work Infante had some responsibility for taking care of S.I. Infante's responsibilities frequently included changing S.I.'s diapers. According to the mother's testimony, Infante often rushed through the diaper change, rather than being slow and gentle. There was also evidence that S.I. had severe, chronic diaper rash. Even S.I.'s mother said S.I. complained of experiencing pain when her mother cleansed the infected area with a baby wipe.

Clearly, more than merely the perpetrator's identity was at issue. Given the possibility that the jury's verdict turned on an issue other than identity — a possibility that Infante conceded during the trial court's habeas hearing — we cannot conclude Infante's acquittal in cause number 16,843-2001-A necessarily precludes the State's prosecution in the remaining cases. Thus, Infante's collateral estoppel argument fails. Cf. Sutton v....