Royal Gene Minshew v. The State of Texas--Appeal from 27th District Court of Lampasas County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00658-CR
Royal Gene Minshew, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
NO. 6601, HONORABLE JOE CARROLL, JUDGE PRESIDING
A jury found appellant Royal Gene Minshew guilty of aggravated assault and assessed punishment at imprisonment for ten years and a $10,000 fne. Tex. Penal Code Ann. 22.02(a)(1) (West 1994). On the jury's recommendation, the district court suspended imposition of sentence and placed appellant on community supervision. We will affirm the district court's judgment of conviction.

On August 22, 1995, appellant drove his van past Russell Clarke's residence at a speed Clarke considered excessive. A few minutes later, when he saw appellant returning, Clarke stepped into the road and held up his hand, intending to stop appellant and ask him to drive more slowly. Appellant swerved and struck Clarke with the van, then stopped and began to beat Clarke with a construction tool. Clarke sustained a broken leg and other injuries in this incident.

Appellant was originally indicted in Lampasas County cause number 6509. That indictment contained three counts accusing him of attempted murder, aggravated assault with a deadly weapon, and aggravated assault with serious bodily injury. Each count alleged that appellant struck Clarke with the construction tool; there was no allegation that appellant struck Clarke with the van. At appellant's trial in cause number 6509, a mistrial was declared after the jury could not reach a verdict. It is agreed that the jury informed the court in a note that it had voted to acquit appellant on counts one and two, attempted murder and aggravated assault with a deadly weapon, but could not reach a verdict with regard to the remaining count.

Following the mistrial, appellant was reindicted in the present cause. The new indictment contained four counts, two alleging aggravated assault with a deadly weapon (counts one and two) and two alleging aggravated assault with serious bodily injury (counts three and four). These counts alternately alleged that appellant struck Clarke with a construction tool (counts one and three) and with a motor vehicle (counts two and four). Appellant filed a "plea of jeopardy" pointing out that the first count of the new indictment was identical to the second count of the old indictment, as to which the first jury had voted to acquit. For that reason, the motion urged that prosecution on count one of the new indictment was barred by prior acquittal. The district court sustained the motion and ordered count one of the new indictment quashed. Ultimately, only count four of the new indictment, alleging that appellant intentionally, knowingly, or recklessly caused serious bodily injury to Clarke by striking him with a motor vehicle, was submitted to the jury.

Appellant now contends that his trial and conviction under count four of the new indictment constituted double jeopardy. Although he does not expressly say so, his argument in support of this contention relies on the collateral estoppel component of guarantee against double jeopardy. See Ashe v. Swenson, 397 U.S. 436 (1970). He argues as follows: (1) count two in cause number 6509 alleged that appellant caused bodily injury to Clarke by striking him with a construction tool, a deadly weapon; (2) the first jury voted to acquit appellant on count two, thereby finding that he did not cause bodily injury to Clarke as alleged; (3) the jury's finding estopped the State from relitigating the bodily injury element; (4) because a finding of serious bodily injury necessarily requires a finding of bodily injury, the State was improperly allowed to relitigate an issue decided against it at the first trial. The argument fails for at least two reasons.

First, the collateral estoppel doctrine bars relitigation of issues actually determined at a previous trial. Ashe, 397 U.S. at 442. In order to determine whether the State is collaterally estopped from relitigating an issue in a criminal case, a court must examine the record of the prior proceeding 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. at 444. The record from cause number 6509 is not before us. The jury's decision to acquit appellant on count two of cause 6509 might have been based on a finding that the State failed to prove bodily injury, but it might instead have been based on a finding that the State failed to prove that the bodily injury was caused by appellant striking Clarke with the construction tool, or on a finding that the construction tool was not shown to be a deadly weapon. On the record before us, appellant has failed to demonstrate that the jury at the first trial necessarily determined that appellant did not inflict bodily injury to Clarke.

Second, appellant's trial in cause number 6509 did not end in a verdict and final judgment. Absent a verdict on which a final judgment might be rendered, appellant remained under the initial jeopardy. Ex parte McAfee, 761 S.W.2d 771, 773 (Tex. Crim. App. 1988). In McAfee, the State abandoned one count of a two-count indictment after the defendant's first trial began. The jury could not reach a verdict on the remaining count and a mistrial was declared. The Court of Criminal Appeals held that double jeopardy did not bar the State from retrying the defendant on the previously abandoned count because, absent a final judgment at the first trial, the defendant's original jeopardy continued. Similarly, the jury in cause number 6509 did not return a verdict of acquittal on any count of that indictment, and no judgment of acquittal was rendered. The jury merely told the court in a note that it had voted to acquit appellant on two of the three counts. This did not terminate appellant's jeopardy on those counts and a retrial was not barred on double jeopardy grounds.

For the above reasons, point of error two is overruled.

In his remaining point of error, appellant contends the district court erred by refusing to admit in evidence the indictment in cause number 6509. Appellant argues without citation to pertinent authority that he should have been allowed to introduce the indictment to show that the State had changed its theory of prosecution.

Evidence that is not relevant is inadmissible. Tex. R. Evid. 402. Evidence is not relevant if it does not have a tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence. See Tex. R. Evid. 401. The State's failure to allege in the first indictment that appellant injured Clarke by striking him with a motor vehicle did not make that fact any less probable. Hence, the first indictment was irrelevant and the district court properly refused to admit it in evidence. Point of error one is overruled.

The judgment of conviction is affirmed.

 

John Powers, Justice

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: April 2, 1998

Do Not Publish

the motion and ordered count one of the new indictment quashed. Ultimately, only count four of the new indictment, alleging that appellant intentionally, knowingly, or recklessly caused serious bodily injury to Clarke by striking him with a motor vehicle, was submitted to the jury.

Appellant now contends that his trial and conviction under count four of the new indictment constituted double jeopardy. Although he does not expressly say so, his argument in support of this contention relies on the collateral estoppel component of guarantee against double jeopardy. See Ashe v. Swenson, 397 U.S. 436 (1970). He argues as follows: (1) count two in cause number 6509 alleged that appellant caused bodily injury to Clarke by striking him with a construction tool, a deadly weapon; (2) the first jury voted to acquit appellant on count two, thereby finding that he did not cause bodily injury to Clarke as alleged; (3) the jury's finding estopped the State from relitigating the bodily injury element; (4) because a finding of serious bodily injury necessarily requires a finding of bodily injury, the State was improperly allowed to relitigate an issue decided against it at the first