Sutton v. State

• Decision Date: 22 November 1972
• Docket Number: No. 45339,45339
• Citation: 495 S.W.2d 912
• Parties: Donald SUTTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 912

495 S.W.2d 912

Donald SUTTON, Appellant, v. The STATE of Texas, Appellee.

No. 45339.

Court of Criminal Appeals of Texas.

Nov. 22, 1972.

Rehearing Denied June 27, 1973.

James P. Finstrom, Paul Chitwood, Dallas, for appellant.

Henry Wade, Dist. Atty., Robert T. Baskett, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

This is an appeal from a conviction for robbery. After the jury returned a verdict of guilty, punishment was assessed by the court at life.

The sufficiency of the evidence is not challenged.

At the outset, appellant contends ¹ the court erred when it refused to charge the jury in accordance with his written request that 'if the jury finds that the single rationally conceivable issue in dispute in appellant's prior jury trial went to the identity of Officer Abshire's assailant then they would acquit appellant.'

Following the robbery of a Safeway store at 2849 East Ledbetter, Dallas, on March 28, 1970 (the prosecution in the instant case growing out of same), the robbers fired at Officer Abshire of the Dallas Police Department when the officer attempted to stop the getaway car on Bonnie View Road. In a trial for assault with intent to murder, Abshire identified appellant as the person who fired a pistol at him from the fleeing vehicle. Appellant was acquitted for the offense of assault with intent to murder upon Officer Abshire.

Appellant urges that the only rationally conceivable issue before the jury in the former trial (assault upon peace officer with intent to murder) was that of identity, thus the doctrine of collateral estoppel applies, and that the State cannot try him for the offense of robbery. Appellant urges that the issue of collateral estoppel was raised by his special plea and the testimony and that the court was in error in refusing to grant his requested charge.

In urging that the doctrine of collateral estoppel applies in the instant case, appellant relies on Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469. In Ashe v. Swenson, supra, the accused was first tried with having robbed one of the participants at a poker game by the name of Knight. The court instructed the jury that if it found that accused participated in the robbery, the theft of any money from Knight would sustain a conviction, and that if accused was one of the robbers, he was guilty even though he had not personally robbed Knight. The jury found accused 'not guilty due to insufficient evidence.' Thereafter, accused, following denial of his motion for dismissal based on the previous acquittal, was tried for having robbed another participant at the same poker game by the name of Roberts and was convicted. The United States Supreme Court said that the Fifth Amendment guarantees against double jeopardy, applicable to state courts through the Fourteenth Amendment by virtue of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, embodies collateral estoppel as a constitutional requirement. The court held since the jury, in the first trial where identification testimony was weak, had determined by its verdict that accused was not one of the robbers, the State, under the doctrine of collateral estoppel, was constitutionally foreclosed from relitigating that issue in another trial.

In Ashe v. Swenson, supra, the United States Supreme Court noted that 'collateral estoppel' is an awkward phrase and said, 'It 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.'

The Court, in Ashe v. Swenson, supra, noted that in the first trial, there could be no question but what an armed robbery had occurred or that Knight had been a victim leaving the only issue in dispute whether accused was one of the robbers. The jury in the first trial having found by its verdict that accused was not one of the robbers, the United States Supreme Court held that the State could not bring accused to trial again to litigate that same issue.

In Harris v. Washington, 404 U.S. 55, 92 S.Ct. 183, 30 L.Ed.2d 212, the United States Supreme Court found that the holding in Ashe v. Swenson was applicable where the ultimate issue was identity of the person who had mailed a package containing a bomb which exploded and killed two persons and injured another. In the first state court trial before a jury, defendant was acquitted of murder of one of the victims. The Supreme Court held that prosecutions for murder and assault with respect to other victims of the explosion were barred even though the issue of identity was not fully litigated at the prior trial.

In the recent case of Turner v. Arkansas, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798, the United States Supreme Court again found the holding in Ashe v. Swenson, supra, applicable. In an Arkansas murder prosecution, the trial court had instructed the jury on criminal responsibility of an accessory to the effect that it must find defendant guilty of first degree murder if it found that he had killed decedent either with premeditation or unintentionally during the course of a robbery. The Supreme Court said that the only logical conclusion from the general verdict of acquittal was that the jury had found that defendant was not present at the scene of the robbery and murder, even if the murder had actually been committed by his brother.

The Court held that the subsequent prosecution for robbery was foreclosed as the State was collaterally estopped from relitigating the issue whether defendant had been present at the scene.

Appellant, in the instant case, introduced the transcription of the court reporter's notes from the first trial in order that a determination could be made of what ultimate issue of fact was determined in the first trial. ²

We find that the instant case does not fall within the framework of Ashe v Swenson, supra; Harris v. Washington, supra, and Turner v. Arkansas, supra. We deem it unnecessary to detail the elements which constitute the two separate offenses of robbery and assault upon a peace officer with intent to commit murder. Patently, the elements of the two offenses are poles apart and the jury could have based its 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. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435; McMillan v. State, Tex.Cr.App., 468 S.W.2d 444. The victims of the two offenses in the instant case were not the same. An examination of the transcription of the court reporter's notes at the first trial of appellant reflects that the victims of the robbery were not even witnesses at the assault case. The two offenses did not occur at the same time or at the same location.

In Ashe v. Swenson, supra, the United States Supreme Court, citing Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180, said in examining the record of the prior proceeding in determining whether a jury grounded its verdict upon an issue other than the one on which the defendant seeks to foreclose from consideration, the inquiry 'must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.' The United States Supreme Court went on to say, 'The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a nineteenth century pleading book, but with realism and rationality.'

We have attempted to make our inquiry in the light of what was said in Ashe v. Swenson, supra, and conclude that the identity of appellant as one of the robbers of the Safeway store was not the single rational conceivable issue at the prior trial. We hold, as a matter of law, that the rule of collateral estoppel is not applicable to the instant case. There being no issue of fact to be determined by a jury, the court properly rejected appellant's requested charge. In view of our holding under this ground of error, it follows that appellant's contentions that the court was in error in refusing to allow him to read his special plea of former acquittal to the jury and voir dire the jury on the law surrounding the issue of prior acquittal are without merit.

Appellant contends that the court erred when it failed to charge the jury on the law of the primary offense charged against appellant by the indictment.

The appellant points to the language of the indictment which recites 'and then and thereby using and exhibiting a firearm, to-wit: a gun,' and urges that the order of the trial court did not delete the firearms portion of the robbery indictment. While the State's motion to delete the firearms portion of the indictment tracked the language of the indictment, the order of the court, in its judgment, reads: 'Upon written motion of the District Attorney, the following wording of the indictment 'and then and thereby using and exhibiting a firearm to-wit: a pistol' is hereby dismissed.' Appellant argues that the word 'gun' appears in the indictment and in the State's motion, while the court's order refers to 'pistol.' Appellant cites no authority in support of this contention. The words 'and then and thereby using and exhibiting a firearm, to-wit: a gun' were stricken from the indictment and no objection was offered by appellant. See Thomas v. State, Tex.Cr.App., 451 S.W.2d 907. In Mason v. State, Tex.Cr.App., 472 S.W.2d 787, complaint was made that the part of the judgment reciting dismissal of the firearms portion of the indictment did not follow the exact language of the motion. This Court held in Mason that the State's waiver of the firearms portion of the judgment was not...