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Click here for the full text of this decision FACTS:In the summer of 2003, three separate houses in Lamar County � all on the outskirts of Paris, Texas � were burglarized on three consecutive days. Someone burgled Floyd McCoin’s house first. On July 15, 2003, McCoin, who had left home after eating lunch, came back with his grandson around 2 p.m. to find that his house had been burglarized and ransacked. The next day, a burglar invaded James Hines’ house. Hines left his home in the morning to fix a flat tire at a gas station. When he returned, he noticed that his dog was out and his back door open. He knew something was amiss, and he quickly realized that he had been burglarized and his house ransacked. He called the police and when a detective arrived, they noticed a revolver cylinder in the front bedroom and then found the cylinder pin for that revolver outside. Mr. Hines did not own a revolver, but he noticed that the cylinder “had some shells in it.” This upset Hines, because it meant that the burglar was armed when he entered and ransacked the house. On July 17, 2003, the day after the Hines burglary, Neil Norrell’s house was burglarized. Someone forced open his front door with a crowbar or large screwdriver and emptied his gun cabinet of ten guns, including shotguns, rifles, semi-automatic pistols and revolvers. The burglar also stole his extensive collection of uncirculated coins. Joe Tuttle, the lead detective, quickly connected all three crimes. He noted that the burglaries occurred on consecutive days; all three homes were “in the rural country, off a country road”; all were burglarized in the daytime when no one was home; and similar items were taken during each burglary. Police alerted local merchants to look out for uncirculated coins. On July 18, 2003, the day after the Norrell burglary, the owner of Pappy’s Food Mart told police that “a black male and a black female in a grayish-looking suburban” had just brought in some uncirculated coins. A few hours later, police detained Kerry Larnez Rollerson and LaTonya Brigham at Westside Checking after they came in to cash in some brand new coins. Rollerson had a small brown bank bag full of uncirculated coins. Norrell’s engraved briefcase was found in Brigham’s car. Kerry’s brother, Cory Rollerson, watched as his brother was arrested. When he heard that Kerry was being arrested on a burglary investigation involving guns and coins, Cory went to his mother’s house to collect some guns and jewelry things he knew “didn’t belong in [his] mom’s house” that he had noticed in her home a couple of days before. Cory piled four or five handguns, a jewelry box and other items onto a bedspread, put the wrapped-up pile into his truck and drove to a vacant house that his father had given him on Graham Street. He backed the truck into the yard, took out the blanket with “the stuff” in it, and went behind the barn to bury it. Neighbors, however, called the police who came before Cory could bury all of the goods, including several guns. Meanwhile, Tuttle, learning that Kerry sometimes stayed at his mother’s house, obtained her consent to search the house. In the back room, where Kerry’s tennis shoes were tucked by the end of the bed, police found: 1. Hines’ television and binoculars; and 2. an orange-handled long screwdriver, the width of which, said Tuttle, matched the pry marks on Norrell’s front door. Kerry’s right tennis shoe matched a shoe print lifted from McCoin’s house. Authorities charged Kerry with: 1. burglary of a habitation, theft of a firearm and felon in possession of a firearm in relation to the McCoin break-in; 2. burglary of a habitation in relation to the Hines break-in; and burglary of a habitation, theft of a firearm, and felon in possession of a firearm in relation to the Norrell break-in. After hearing the evidence, the trial judge found Kerry guilty of all seven counts. He also entered deadly-weapon findings on all counts. On appeal, Kerry challenged all of the convictions and deadly-weapon findings on sufficiency grounds. He had some success. In the McCoin case, the 6th Court of Appeals reversed the burglary and theft convictions for factual insufficiency, but it affirmed the conviction for felon in possession of a firearm. In the Hines case, the 6th Court reversed the burglary conviction for factual insufficiency. But in the Norrell case, the 6th Court affirmed all three convictions. The 6th Court also found the evidence legally insufficient to support any of the deadly-weapon findings, so it deleted those findings from the four convictions it affirmed. It also declared that the state could not seek a deadly-weapon finding on retrial of any of the reversed counts. The CCA granted review on only two points: the legal and factual sufficiency findings underlying the convictions for the theft of a firearm and felon in possession of a firearm offenses in the Norrell case; and the 6th Court’s statement in the Hines case that the state could not again seek a deadly-weapon finding. HOLDING:The CCA affirmed Kerry’s convictions for “theft of a firearm” and “felon in possession of a firearm” in the Norrell case, but it disavowed the 6th Court’s statement that the state cannot relitigate the deadly-weapon issue in the Hines case. The CCA found that the 6th Court properly held that the totality of evidence, including Kerry’s personal possession of Norrell’s stolen coins and the fact that Kerry’s brother Cory attempted to bury one of Norrell’s handguns that Cory found in the back room in his mother’s home, was legally and factually sufficient to sustain Kerry’s conviction for stealing Norrell’s handgun during that same burglary. The CCA also found that the trial judge heard significant circumstantial evidence that proved beyond a reasonable doubt that Kerry possessed Norrell’s handgun and hence was guilty of both the theft of that firearm and of being a felon in possession of a firearm. Moving on to the second point of error, the CCA framed the question as: Does the failure of the state to produce sufficient evidence to support an affirmative finding of the use or exhibition of a deadly weapon prevent the state from again seeking such an affirmative finding on retrial after an appellate reversal of conviction? The state asserted that such relitigation was not barred, because double jeopardy does not apply to sentencing proceedings of a trial for a noncapital offense. Kerry conceded this point but argued that it was not dispositive of the question involved in this case. Kerry stated that “while pure Double Jeopardy principles may permit the State to seek a deadly weapon finding the second time around, principles of collateral estoppel do not.” The CCA found that, under the circumstances of the case, neither double jeopardy nor collateral estoppel barred the relitigation of the deadly-weapon issue. The CCA stated that Kerry failed to cite, and it could not find, any case from any jurisdiction in which a court applied the doctrine of collateral estoppel when the original factfinder found a fact to be true, but a reviewing court found the evidence insufficient to support that fact. “Such a rule,” the CCA stated, “is antithetical to the principles of collateral estoppel which are intended to prevent only the relitigation of an original factfinder’s finding on specific, elemental facts.” Thus, the CCA held that the neither double jeopardy nor collateral estoppel barred the state from seeking a deadly weapon finding in any retrial of the Hines burglary, because the original factfinder found for, not against, the deadly-weapon finding. OPINION:Cochran, J., delivered the opinion of the court, in which Keller, P.J., and Meyers, Price, Johnson, Keasler, Hervey and Holcomb, JJ., joined. DISSENT:Womack, J., dissented without a written opinion.

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