Lett v. State

• Decision Date: 01 April 1987
• Docket Number: No. 2-85-280-CR,2-85-280-CR
• Parties: David Wayne LETT, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 367

727 S.W.2d 367

David Wayne LETT, Appellant, v. The STATE of Texas, State.

No. 2-85-280-CR.

Court of Appeals of Texas Fort Worth.

April 1, 1987.

Discretionary Review Granted June 24, 1987.

J.R. Molina, Fort Worth, for appellant.

Tim Curry, Criminal Dist. Atty. and C. Chris Marshall, Asst. Criminal Dist. Atty., for State.

Before FENDER, C.J., and BURDOCK and LATTIMORE, JJ.

OPINION

BURDOCK, Justice.

David Wayne Lett was convicted of the offense of aggravated kidnapping. See TEX.PENAL CODE ANN. sec. 20.04 (Vernon 1974). The jury assessed punishment at 25 years confinement.

We affirm.

Appellant alleges reversible error was committed because: (1) the doctrine of collateral estoppel barred his prosecution by the State; (2) the prosecutor commented on appellant's right not to testify; and (3) the court's charge on parole law violated the state and federal Constitutions.

Although the sufficiency of the evidence is not challenged, we shall recite the facts pertinent to appellant's points of error.

By posing as an Internal Revenue Service agent, appellant gained access to Belinda Minyard's home. Once inside, he forcibly abducted her at gunpoint. Appellant handcuffed Mrs. Minyard's hands behind her back, loaded her body into the trunk of a rental car, and drove her to a remote area near Santo, Texas. There he tied her to a tree. After a number of hours, Mrs. Minyard was able to free herself from the tree and walk to safety.

Appellant called Mrs. Minyard's husband, demanding a $1.2 million ransom. Later, appellant phoned Minyard with instructions on how to deliver the money. After numerous attempts to deliver the ransom, a time and place were selected. Mr. Minyard had informed the FBI, and agents awaited appellant at the scene of the ransom drop. When appellant attempted to claim the money, the FBI opened fire, wounding appellant. While fleeing the ambush by car, appellant nearly ran over special agent Bob Oakley. The following day, appellant surrendered to the Tarrant County Sheriff.

In his first point of error, appellant alleges the State was barred from prosecuting him by virtue of the doctrine of collateral estoppel. Prior to his trial in state court, appellant stood trial in federal court on charges of extortion and assault on a federal officer. 18 U.S.C. secs. 1951 (1984), 111 (1969). Appellant was convicted of extortion, but acquitted on the charge of assaulting Agent Oakley. Appellant contends the use against him in federal court of physical evidence and testimony, particularly Oakley's testimony, collaterally estopped the State from prosecuting him in a Texas court.

In Dedrick v. State, 623 S.W.2d 332, 336 (Tex.Crim.App.1981), the Court adopted the statement of applicable principles of collateral estoppel set forth in United States v. Mock, 604 F.2d 341, 343-44 (5th Cir.1979):

In principle, the law of collateral estoppel is clear; in application, it can be a slippery concept indeed. According to Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), 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.' Id. at 443, 90 S.Ct. at 1194. Thus, Ashe mandates two inquiries: First, what facts were necessarily determined in the first law suit? See United States v. Ballard, 586 F.2d 1060 (5th Cir.1978); Adams v. United States, 287 F.2d 701 (5th Cir.1961). Second, has the government in a subsequent trial tried to relitigate facts necessarily established against it in the first trial? Facts so established in the first trial may not be used in the second trial either as ultimate or as evidentiary facts. Blackburn v. Cross, 510 F.2d 1014 (5th Cir.1975); Wingate v. Wainwright, 464 F.2d 209 (5th Cir.1972). Thus, while the parent doctrine of double jeopardy bars a subsequent prosecution based on a different section of the criminal code when 'the evidence required to support a conviction upon one of them [the indictments] would have been sufficient to warrant a conviction upon the other,' its progeny, collateral estoppel, bars only the reintroduction or relitigation of facts already established against the government. To state the distinction in more prosaic terms, the traditional bar of double jeopardy prohibits the prosecution of the crime itself, whereas collateral estoppel, in a more modest fashion, simply forbids the government from relitigating certain facts in order to establish the fact of the crime. See United States v. Kramer, 289 F.2d 909 (2nd Cir.1961) (Friendly, J.).

Id.

For the following reasons, we cannot agree with appellant's position that his acquittal on the assault charge in federal court absolved him of any guilt stemming from Minyard's abduction. First, we note the rule of collateral estoppel bars relitigation of the same fact issues between the same parties. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469, 475 (1970); Dedrick, 623 S.W.2d at 336; Polvado v. State, 689 S.W.2d 945, 948 (Tex.App.--Houston [14th Dist.] 1985, pet. ref'd.). Although appellant was the defendant in both cases, the parties were not the same. The federal government prosecuted the assault case, while the State of Texas brought the aggravated kidnapping charge. Appellant was charged with violating the statutes of two separate sovereigns. See Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959).

Second, collateral estoppel only arises when a prior judgment has resulted in an actual acquittal of the defendant. Lozano v. State, 676 S.W.2d 433, 436 (Tex.App.--Waco 1984, no pet.). Appellant cannot clearly establish that the rule of collateral estoppel would apply here, since the record reveals that on the basis of the evidence heard in federal court appellant was convicted of the offense of extortion. See 18 U.S.C. sec. 1951 (1984). Clearly, appellant's conviction for extortion in federal court did not preclude his prosecution for aggravated kidnapping in state court. Bartkus, 359 U.S. at 136, 79 S.Ct. at 685, 3 L.Ed.2d at 694.

Third, the prosecutions involved different issues as well as different parties. The Supreme Court in Ashe stated that when an acquittal is based upon a general verdict, a court is required 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 granted its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." Ashe, 397 U.S. at 444, 90 S.Ct. at 1194. The record before us contains the transcription of the court reporter's notes, the pleadings, charge, and other relevant matter from federal criminal cause no. 4-84-136, in which appellant was acquitted of assault and convicted of extortion. In many respects, the record in the federal case is similar to the one in the kidnapping case.

The elements of the offense of assaulting certain officers or federal employees, codified at 18 U.S.C. sec. 111 (1969), are:

1. the act or acts of forcibly assaulting resisting, opposing a federal officer ¹ while such officer was engaged in the performance of his duties; and

2. the doing of such acts willfully.

United States v. Bell, 767 F.2d 405, 407 (8th Cir.1985).

Count two of the State's indictment in the aggravated kidnapping case set forth the following elements as prerequisites to a conviction for that offense:

(1) the appellant

(2) intentionally or knowingly

(3) abducts

(4) another person

(5) by secreting and holding her in a place where she would unlikely be found

(6) with the intent to prevent her liberation

(7) with the intent to hold her for ransom or reward.

See also TEX.PENAL CODE ANN. secs. 20.03, 20.04 (Vernon 1974). Clearly, each offense required proof of facts not required in the other. Ex parte Wornell, 633 S.W.2d 904, 905 (Tex.Crim.App.1982). We cannot conclude from the jury's general verdict of acquittal in the federal trial for assault that an issue of fact necessary for conviction on the aggravated kidnapping charge was resolved against the State. Appellant's first point of error is overruled.

In appellant's second point of error, he alleges the prosecutor commented during jury argument on his failure to testify. During closing argument at the punishment stage of the trial, the assistant district attorney stated:

That man right there. That man right there who walked in another child's home, two other children's home, and took their mother, and he wants to come up here mewin' and pewkin' about what you're going to do?

[DEFENSE COUNSEL]: Your Honor, we're going to object to the prosecutor has made a direct statement about the defendant's right not to testify, so alluded to it directly to the jury. I would so object.

THE COURT: Overruled.

[DEFENSE COUNSEL]: Note my exception to the Court's ruling. [Emphasis supplied.]

The purpose of closing argument is to facilitate the jury in properly analyzing the evidence presented at trial, so that it may arrive at a just and reasonable conclusion based on the evidence alone and not on any fact not admitted into evidence. Campbell v. State, 610 S.W.2d 754, 756 (Tex.Crim.App.1980). To be permissible, jury argument must fall within one of the following four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Cannon v. State, 668 S.W.2d 401, 404 (Tex.Crim.App.1984); Darden v. State, 629 S.W.2d 46, 52 (Tex.Crim.App.1982).

When an argument exceeds the permissible bounds of the above areas, such will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violates a mandatory statute, or injects into the trial proceedings new facts harmful to the accused. Bell v. State, 724 S.W.2d 780 (Tex...