Ex parte Johnson
| Decision Date | 02 November 1971 |
| Docket Number | No. 44733,44733 |
| Citation | 472 S.W.2d 156 |
| Parties | Ex parte Billy Lee JOHNSON. |
| Court | Texas Court of Criminal Appeals |
Roy E. Greenwood, Huntsville, for appellant.
Jim D. Vollers, State's Atty., Austin, for the State.
This is an application for post conviction relief under Article 11.07, Vernon's Ann.C.C.P.
Appellant's conviction for assault with intent to rape was appealed to this Court and affirmed in Johnson v. State, 432 S.W.2d 98 (1968). His first two grounds of error in that appeal related to former jeopardy. Subsequent to our affirmance, the Supreme Court of the United States handed down its opinion in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), and the concurring opinion of Presiding Judge Onion of this Court in Hutchings v. State, 466 S.W.2d 584 (1971), was written. Reliance is had upon both Ashe and Hutchings by appellant in this application.
Petitioner urges the doctrine of collateral estoppel. He contends that his acquittal on May 22, 1967, on a charge of burglary of a private residence at night with intent to commit rape precludes his being tried thereafter, on October 4, 1967, for assault with intent to commit rape where both of the charges arose out of the same transaction. Long prior to Ashe v. Swenson, supra, the Supreme Court of the United States, in Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180 (1948), pointed out that the question in a subsequent prosecution is whether the jury's verdict in the prior trial was a determination favorable to the petitioner of the facts essential to conviction in the latter case. This depends upon the facts adduced in each trial and the instructions under which the jury arrived at its verdict in the first trial.
The United States Court of Appeals for the Second Circuit, in discussing Sealfon, said the application of the principle of collateral estoppel has two phases. First, it is necessary to define what the first judgment determined. As Sealfon explains, this is a process in which the Court must look not simply to the pleadings, but to the record of the prior trial as well. 1 Secondly, it is necessary to resolve how that determination bears on the second case. United States v. Kramer, 289 F.2d 909 (2d Cir. 1961).
In United States v. Lopez, 420 F.2d 313 (2d Cir. 1969), again discussing the Sealfon holding, the Court said:
'* * * invocation of a prior judgment as collateral estoppel in a criminal trial requires the court to determine exactly what the earlier judgment decided.'
As applied to the case at bar we must determine exactly what the prior jury in the burglary of a private residence at night with intent to commit rape decided. The case before us is not as simple as Ashe, because in that case the question of identity of petitioner as being one of the robbers was the sole issue decided in the prior trial which resulted in acquittal. 2
It is important to note that the elements of the crime of burglary of a private residence at night with intent to commit rape are not the same as those of assault with intent to commit rape....
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State v. Tijerina, 701
...essential issues were, that the jury had to determine in arriving at their verdict, collateral estoppel does not apply. Ex parte Johnson, 472 S.W.2d 156 (Tex.Cr.App.1971). We have previously referred to the various events that occurred at the courthouse as the 'incident' merely for ease of ......
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Douthit v. State, 44266
...of the former trial is before this Court to examine so we do not know upon what the jury grounded its verdict. See Ex parte Billy Ray Johnson, Tex.Cr.App., 472 S.W.2d 156, and Hutchings v. State, Tex.Cr.App., 466 S.W.2d 584. Even without the record we do not see how a verdict of not guilty ......
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Sutton v. State
...acquittal on considerations other than identity since Abshire positively identified appellant as his assailant. See Ex parte Billy Ray Johnson, Tex.Cr.App., 472 S.W.2d 156. The offenses are separate and distinct and are not based on the same acts of appellant. See Waller v. Florida, 397 U.S......