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Collateral estoppel blocks the state from prosecuting a man a second time for intoxication manslaughter based on a different allegation regarding the source of intoxication, a divided Texas Court of Criminal Appeals held on Nov. 6. In a 6-3 decision, the court held in Ex Parte Taylor that Philip Daniel Taylor’s acquittal of intoxication manslaughter in connection with one death in a two-car accident prevents the state from attempting to prove in another trial an alternative theory of intoxication for causing the death of a second person. “The doctrine of collateral estoppel does not depend upon slight differences in statutory language or an alternate ‘manner and means;’ it depends upon the scope of a specific factual finding in a particular case,” Judge Cathy Cochran wrote for the majority. According to the opinion, a Brazos County jury acquitted Taylor of intoxication manslaughter and involuntary manslaughter for the death of Michelle James, a passenger in his car when the accident occurred on May 26, 1996. The state presented evidence that Taylor had been drinking wine prior to the accident and that his blood alcohol concentration was above the level allowed by law, but a toxicology expert for the defense testified that Taylor’s BAC was below the legal level of .10, the opinion said. Cochran noted in the opinion that the state dismissed an indictment against Taylor in connection with the death of the second passenger, Kyla Blaisdell, but re-indicted him after learning that he allegedly told Blaisdell’s mother that he and the girls had been smoking marijuana before the accident. This time, the state alleged that marijuana or a combination of marijuana and alcohol caused Taylor to be intoxicated, the opinion said. Multiple substances that cause a person to become intoxicated are not distinct elements of separate intoxication offenses, Cochran said in the opinion. The state tried to “tap dance its way around collateral estoppel” by claiming the manner and means of intoxication were not addressed by the jury in the first trial, says Brian Wice, a Houston solo who represents Taylor. “The ultimate issue of intoxication by whatever means had been litigated, and the state had lost. It didn’t make any difference if they had alleged alcohol, marijuana or Baker’s vanilla,” Wice says. “No fact issue necessarily decided by the jury would have to be re-litigated,” says Jeff Van Horn, an assistant state prosecuting attorney. In the first trial, the jury considered only if Taylor was intoxicated by alcohol, Van Horn says. The second prosecution would allow the jury to consider whether Taylor was intoxicated by marijuana or a combination of marijuana and alcohol, he says. Taylor sought to block a second trial, but the 272nd District Court in Bryan denied his application for a pre-trial writ of habeas corpus. Houston’s 14th Court of Appeals held in January 2000 that collateral estoppel barred the second trial. Justice Don Wittig wrote the 14th Court’s opinion, in which he was joined by Justice Richard Edelman and Justice Maurice Amidei. “The doctrine of collateral estoppel, although first developed in civil litigation has been an established rule of federal criminal law for more than 75 years and is embodied within the constitutional protection against a defendant being placed in jeopardy twice for the same crime,” Wittig said in the opinion. COURT CITES ‘ASHE’ The 14th Court and the Court of Criminal Appeals cited the U.S. Supreme Court’s 1970 decision in Ashe v. Swenson, which states that collateral estoppel “means simply that when an issue of ultimate fact has been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Cochran said in the Court of Criminal Appeals opinion that the source of Taylor’s intoxication was not a disputed issue in the first trial. What was disputed, the opinion said, is whether Taylor was intoxicated, and he prevailed on that issue. “Thus, considering the question in a practical, common-sense manner, it is evident that there is no reasonable possibility that the jury in the first trial could have decided, based upon this evidence that [Taylor] was intoxicated but not because of alcohol,” Cochran said in the opinion. The 14th Court, in its review, concluded that “implicit in the jury’s verdict is a factual finding that [Taylor] did not cause the accident because of intoxication.” Cochran said the CCA has not found evidence in the trial record that contradicts the appeals court’s conclusion and the state has not shown any such evidence. “My gut reaction is that the court reached the right result for the wrong reason,” says George Dix, a University of Texas School of Law professor who specializes in criminal law. Dix says he has a problem with Cochran’s conclusion that the jury found Taylor was not intoxicated. “In fact, of course, the jury did not find anything of the sort. It was not told to do so,” he says. “What it did find was that the prosecution has not proved certain things beyond a reasonable doubt.” Cochran says in the majority opinion that the 14th Court’s opinion does not impose a broad collateral estoppel bar to relitigating an alternative statutory manner or means in any case. Dix says the Court of Criminal Appeals’ explanation of why reprosecution was barred in this case suggests that prosecution will be barred in more cases than it was prior to the decision in Taylor. Courts and prosecutors will have difficulty determining when prosecution is barred under Taylor, he says. Judge Barbara Hervey said in a dissenting opinion that the jury could have acquitted Taylor without necessarily finding that he wasn’t intoxicated by alcohol. Hervey said in the opinion that the majority’s decision adds a new element to the collateral estoppel doctrine that Ashe and other U.S. Supreme Court decisions don’t require. The doctrine applies only to issues of ultimate fact that were decided in the first trial, but Taylor expands Ashe to preclude litigating in a second trial the issues of ultimate fact that could have been decided in the first trial, the dissenting opinion said. Judge Mike Keasler joined in Hervey’s opinion. Sharon Keller, presiding judge of the court, also dissented.

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