De La Rosa v. Lynaugh

• Decision Date: 05 May 1987
• Docket Number: No. 85-2809,85-2809
• Parties: Roberto DE LA ROSA Petitioner-Appellant, v. James A. LYNAUGH, Interim Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 259

817 F.2d 259

Roberto DE LA ROSA Petitioner-Appellant, v. James A. LYNAUGH, Interim Director, Texas Department of Corrections, Respondent-Appellee.

No. 85-2809.

United States Court of Appeals Fifth Circuit.

May 5, 1987.

Charmaine R. Bissell, Sharon Kutzschbach, Huntsville, Tex., for petitioner-appellant.

S. Michael Bozarth, William C. Zapalac, Asst. Attys. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, RANDALL, and HIGGINBOTHAM, Circuit Judges.

JOHN R. BROWN, Senior Circuit Judge:

Roberto De La Rosa appeals the District Court's denial of his Petition for Writ of Habeas Corpus. De La Rosa entered a bar and fired a gun at Joe Lee, Jr., killing both Lee and an eight year old bystander, John David Rodriguez. Petitioner claims under the Fifth Amendment that the State of Texas is collaterally estopped from trying him in a subsequent trial for the murder of Joe Lee, Jr., since he was previously tried and convicted of voluntary manslaughter for the homicide of the bystander using a theory of transferred intent. The State of Texas pursued convictions of murder in both trials and there was no evidence or argument in either trial that De La Rosa changed his state of mind between firing the two shots at Lee.

A collateral estoppel attack requires this court to make a realistic and practical inquiry into the jury's verdict of voluntary manslaughter in the Rodriguez case to determine what issues that jury necessarily found in reaching its verdict and what issues remained for the Lee jury to consider. Douthit v. Estelle, 540 F.2d 800, 803 (5th Cir.1976). A careful examination of the Rodriguez case, including the pleadings, testimony, closing arguments of counsel, and jury charge, demonstrates that the State introduced no evidence whatsoever to support its contention that De La Rosa changed his state of mind between firing the shot that killed Lee and the shot that killed Rodriguez and that their reliance on De La Rosa's testimony is misplaced. We therefore reverse the District Court's denial of De La Rosa's Petition for Habeas Corpus.

I.

On December 19, 1981, De La Rosa entered the Astro Lounge in Corpus Christi, Texas, and fired his .32 caliber pistol once or twice at Joe Lee, Jr. who had shot and killed De La Rosa's daughter two months earlier. Lee and his friend Juan Mata rushed toward De La Rosa and struggled with him over the gun. Another shot was fired during the struggle. Mata wrestled the gun away from De La Rosa and shot De La Rosa in the wrist and the side. Mata also attempted to shoot De La Rosa in the head, but the gun did not fire. De La Rosa was taken to the hospital and placed in intensive care. His intended victim, Joe Lee, Jr., and the eight year old bystander, John David Rodriguez, both lay dead on the barroom floor.

De La Rosa was indicted separately for the murder of Rodriguez and Lee. Presumably because the prosecutor surmised that the case of the innocent eight year old was the more compelling, De La Rosa was first tried for the murder of Rodriguez. There was no evidence offered at the Rodriguez trial of any relationship between De La Rosa and Rodriguez or of any knowledge by De La Rosa that Rodriguez was even in the bar. ¹ The State prosecuted De La Rosa for the murder of Rodriguez under a theory of transferred intent and conceded during oral argument that the jury necessarily based its verdict on transferred intent. The State introduced no evidence of a reduced state of mind.

The State pursued a theory of vengeance for the earlier slaying of De La Rosa's daughter, ² while De La Rosa sought acquittal on the basis of self-defense and claimed that a third party, Juan Mata, had actually fired the shot that killed Rodriguez. Neither party argued at either trial that the shot that killed Rodriguez was the second shot fired by De La Rosa or that it was fired with a reduced state of mind resulting from the struggle over the gun.

The trial court instructed the jury on the charge of murder as well as voluntary manslaughter, sudden passion, and adequate cause. The court also instructed the jury on all included offenses under a theory of transferred intent. Under the State's transferred intent theory, the jury's inquiry was De La Rosa's conduct and intent toward Lee when both shots were fired. The fact that De La Rosa missed and struck a bystander with one shot allows his state of mind toward his intended victim to be transferred to the actual victim. ³

The voluntary manslaughter instruction stated, "if you find ... Robert De La Rosa, did then and there unlawfully shoot a firearm at Joe Lee intending to kill him thereby but missed Joe Lee and hit and killed John Rodriguez instead ... under the immediate influence of sudden passion arising from adequate cause ... then you will find the Defendant guilty of Voluntary Manslaughter." ⁴ The jury convicted De La Rosa of voluntary manslaughter for the shooting and death of Rodriguez and sentenced him to serve ten years. ⁵

Chapter Two

The State then proceeded to try De La Rosa for the murder of Lee. The trial court denied De La Rosa's Motion to Quash the Indictment on the grounds of collateral estoppel and double jeopardy. The parties introduced nearly the same evidence as was presented at the Rodriguez trial and the court gave nearly the same instructions to the jury. However, the second jury found De La Rosa guilty of murder. De La Rosa had again selected jury sentencing and received a ten-year sentence which the trial court cumulated with his ten-year sentence for the Rodriguez homicide.

De La Rosa appealed both convictions alleging insufficient evidence for the Rodriguez conviction and collateral estoppel/double jeopardy for the Lee conviction. Both verdicts were affirmed. De La Rosa v. State, 660 S.W.2d 642 (Tex.App.--Corpus Christi 1983) (Rodriguez Trial); De La Rosa v. State, No. 13-83-185-CR (Tex.App.--Corpus Christi 1984) (Lee Trial). De La Rosa's Petition for Habeas Corpus pursuant to Tex.Code Crim.Pro.Ann. art. 1107 (Vernon's 1977 & Supp.1981), asserting his confinement under the verdict in the Lee trial unconstitutionally violated the doctrine of collateral estoppel, was denied by the Texas Court of Criminal Appeals and the District Court.

II.

The Supreme Court defines collateral estoppel as one aspect of the double jeopardy clause ⁶ requiring "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, 25 L.Ed.2d 469, 475 (1970); see also, United States v. Levy, 803 F.2d 1390, 1398 (5th Cir.1986). In order for the doctrine of collateral estoppel to apply, the issue or fact must necessarily have been decided in favor of the defendant in the first trial. Johnson v. Estelle, 506 F.2d 347, 350 (5th Cir.), cert. denied, 422 U.S. 1024, 95 S.Ct. 2619, 45 L.Ed.2d 682 (1975). When a "fact is not necessarily determined in a former trial, the possibility that it may have been does not prevent reexamination of the issue." Adams v. United States, 287 F.2d 701, 705 (5th Cir.1961).

We are instructed by the Supreme Court to apply collateral estoppel with realism and rationality. "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.' " Ashe, 397 U.S. at 444, 90 S.Ct. at 1194, 25 L.Ed.2d at 475-76.

Judge Wisdom set out a straightforward two step inquiry for collateral estoppel analysis in United States v. Levy, 803 F.2d 1390, 1398-99 (5th Cir.1986). "The court must first determine what facts were necessarily decided in the first trial ... us[ing] 'realism and rationality.' ... [T]he court must then assess whether the government is attempting to relitigate those facts in the second proceeding." Id.

Our analysis is therefore primarily factual, determining whether a rational jury could have found a change in De La Rosa's state of mind between firing the shot which killed Rodriguez and firing the shot which killed Lee. ⁷ The relevant inquiry in both cases, due to the State's use of transferred intent, is what De La Rosa's state of mind was toward Lee at two different points in time. In other words, whether De La Rosa fired at Lee with the intent to kill Lee once with adequate cause for sudden passion and once without adequate cause for sudden passion. As we stated in United States v. Mock, 604 F.2d 341, 343 (5th Cir.1979), "[i]n principle, the law of collateral estoppel is clear, in application, it can be a slippery concept indeed." The path upon which we are about to depart is indeed slippery. ⁸

III. The Shootist

De La Rosa claimed he entered the Astro Lounge in order to sell his pick-up truck to the owner of the bar. He stated that he removed the pistol from the glove compartment and put it in his pocket while cleaning out the truck that morning. The owner of the bar was not present and De La Rosa decided to wait for him. When Joe Lee, Jr. and his friend Juan Mata entered the bar through the rear door, De La Rosa left to avoid any trouble.

Later that afternoon De La Rosa returned to the bar for the stated purpose of seeing if the owner had returned. De La Rosa testified that when he returned to the bar he was threatened by Lee who said he would kill De La Rosa. As Lee said this, Lee began to rise from his chair with his arms near his side. No one else heard Lee threaten De La Rosa. Because of Lee's shooting of De La Rosa's daughter, physical attacks on De La Rosa, and other violent acts of which De La...