              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                          NO. PD-0711-18



                  EX PARTE BRANDON JOSEPH ADAMS, Appellant



             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE ELEVENTH COURT OF APPEALS
                             TAYLOR COUNTY

               W ALKER, J., delivered the opinion for a unanimous Court. K ELLER,
P.J., filed a concurring opinion in which H ERVEY, Y EARY, and S LAUGHTER, JJ.,
joined.

                                           OPINION


        This case involves the doctrine of collateral estoppel embodied in the Double Jeopardy

Clause of the Fifth Amendment. At issue is whether the State can prosecute Appellant, Brandon

Joseph Adams, for aggravated assault for stabbing Joe Romero after Appellant was acquitted in an

earlier trial of aggravated assault for stabbing Joe’s brother, Justin Romero, in the same incident. We

find that collateral estoppel is inapplicable to the facts of this case, and the State is not barred from

prosecuting Appellant. We reverse the judgment of the court of appeals.
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                                           I — Background

        The reporter’s record of the first trial shows that Justin Romero and Luke Hisey became

involved in a physical fight, which ended after Appellant stabbed Justin and Justin’s brother, Joe,

who was standing nearby. According to Alisha Graves, Joe’s then-girlfriend, Justin and Hisey

exchanged words and then began fighting and rolling on the ground. Graves heard Joe tell Appellant

that he needed to stay out of it. She also heard Joe tell Justin and Hisey to cut it out and that the fight

was already over. Joe again told Appellant that he needed to back off. Joe repeated to Justin and

Hisey that it was time to cut it out because they were going to wake up the next morning and

apologize to each other. The next thing Graves saw was Appellant over Justin, and she heard

someone yelling that there was a knife. At that point, Justin came out of the fight, and he was

bleeding. Graves added that while Justin was on the ground fighting with Hisey, she saw Appellant

stab Justin several times in the back, and she also saw Joe get stabbed in the back or upper shoulder

area.

        According to Joe, when Justin and Hisey began arguing, Joe initially tried to calm the two

down. Because Justin and Hisey would not stop, Joe relented and told them to “go ahead and get it

over with,” and the two started fighting. They squared up, and it was a fair fight until Hisey was

knocked down. Joe pushed Justin back to allow Hisey to get up in order for the fight to stay fair.

Hisey was knocked down and let back up three different times. Eventually, Justin and Hisey started

wrestling or rolling around on the ground. After Joe told the two of them “that’s enough” and

attempted to pull Justin off of Hisey, Joe felt hot liquid on himself not realizing that he had been

stabbed. At that point, Justin yelled that someone had a knife, and then Justin began wrestling with

Appellant.
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        According to Justin, he was fighting and wrestling Hisey on the ground for about thirty

seconds until Joe broke them up and said “that’s enough.” Justin stood up and was then blindsided

by Appellant, who came swinging a fist at Justin. Justin and Appellant then started fighting on the

ground until Graves came out and started screaming that Appellant had a knife. Graves, Joe, and

Justin all said that Appellant did not speak a word during the entire incident.

        According to Hisey, he was attacked by Justin and ended up face down on the ground. Hisey

covered his ears and face while Justin pummeled him about the head. He was then knocked

unconscious and remembered very little else.

        According to Appellant, Justin and Hisey were on the ground. Hisey was laying on the

ground and getting his head pummeled by Justin. Appellant attempted to approach and break up the

fight, but Joe stood in the way and said “just let them fight.” Appellant replied that “it’s not even a

fight, he’s out,” referring to Hisey. Appellant went around Joe, and when Appellant got to Justin to

pull him away from Hisey, Joe hit Appellant. Appellant stepped back and started to panic, so he

reached for his pocketknife. At that point, Justin came at him, and Appellant just started swinging

his knife. Appellant guessed that he hit Joe, but he did not know how close Joe was to him. Justin

tackled Appellant, and Appellant felt a couple of punches so he just started swinging the knife and

hit Justin. Admitting that he stabbed both Justin and Joe, Appellant said that he was trying to protect

himself and Hisey. Hisey was down, and with both brothers coming at Appellant, he felt

overwhelmed and was afraid that, just as Justin would not stop pummeling Hisey, the brothers would

not stop pummeling Appellant, either.

        Appellant was charged in two separate causes with aggravated assault against Justin and Joe

Romero. The case alleging Justin as the victim went to trial first. The jury charge, instructing the jury
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on aggravated assault with a deadly weapon and aggravated assault by causing serious bodily injury,

also included defensive issues of use of deadly force in defense of a third person. The jury ultimately

returned a verdict of “Not Guilty,” and Appellant was acquitted.

        The State then proceeded to trial on the instant case which alleged Joe as the victim.

Appellant filed a pre-trial application for writ of habeas corpus claiming that the second prosecution

would involve the same issue that was decided in the first trial, namely, whether Appellant was

justified in using force in defense of a third person. Because of this, Appellant argued that the second

trial was barred by collateral estoppel. A hearing was held, and Appellant presented the trial court

with evidence including the transcript of the first trial, the jury’s instructions from the first trial, and

the judgment of acquittal.

        In response, the State argued to the trial court that collateral estoppel did not apply because

Appellant was tried for allegedly committing aggravated assault against Justin, and Appellant’s

defensive theory—defense of a third party—related to whether Appellant was justified in his use of

force specifically against Justin. The instant case, the State argued, involved a different issue because

the alleged victim, and the person against whom Appellant’s use of force was directed, was Joe, a

completely different person; thus, a jury decision that Appellant was justified in using force against

Justin was not a decision that Appellant was justified in using force against Joe. Deciding the matter

on the arguments of counsel, the trial court agreed with the State and denied Appellant’s pre-trial

application for writ of habeas corpus. The case proceeded to trial, the jury was unable to reach a

verdict, and a mistrial was declared.

        Appellant appealed the denial of his pre-trial habeas application, and the court of appeals held

that Appellant’s prosecution for aggravated assault as to Joe was collaterally estopped. Ex parte
                                                                                                         5

Adams, — S.W.3d —, No. 11-17-00332-CR, 2018 WL 2994360 at *4 (Tex. App.—Eastland June

14, 2018). The court of appeals reversed the trial court’s denial of Appellant’s pre-trial habeas

application and remanded with instructions to the trial court to grant habeas relief. Id. at *4. The

State petitioned this Court for discretionary review, asking:

        When a defendant is acquitted on a defense of a third person theory after stabbing a
        person engaged in a fight with a friend, does the collateral estoppel component of the
        Double Jeopardy Clause as articulated in Ashe v. Swenson and this Court’s opinions
        bar his subsequent prosecution for stabbing another person who was not fighting?

We find that Appellant’s subsequent prosecution is not barred by collateral estoppel. Appellant’s

acquittal in the first trial was based on a defense specific to Justin Romero, and the issue of whether

Appellant was justified in his use of force against Joe Romero, who was not fighting Hisey, was not

necessarily decided by the jury in the first trial such that it is now subject to collateral estoppel.

                         II — Double Jeopardy and Collateral Estoppel

        The Double Jeopardy Clause of the Fifth Amendment provides that no person shall be

“subject for the same offence to be twice put in jeopardy of life or limb.” U.S. CONST . amend. V.

This clause protects against: (1) a second prosecution for the same offense after acquittal; (2) a

second prosecution for the same offense after conviction; and (3) multiple punishments for the same

offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969); Aekins v. State, 447 S.W.3d 270, 274

(Tex. Crim. App. 2014).

        In Ashe v. Swenson, the Supreme Court recognized that the Fifth Amendment guarantee

against double jeopardy also embodies the principle of collateral estoppel as a constitutional

requirement. Ashe v. Swenson, 397 U.S. 436, 445 (1970). In Ashe, the evidence showed that three

or four masked men robbed six men playing poker. Id. at 437. Ashe was put on trial for robbing one
                                                                                                        6

of the poker players, but the jury found Ashe “not guilty due to insufficient evidence.” Id. at 439. The

State of Missouri then put Ashe on trial a second time for the robbery of one of the other poker

players, and the second jury found Ashe guilty. Id. at 439–40. The Supreme Court determined that,

at the first trial, the “single rationally conceivable issue in dispute before the jury was whether [Ashe]

had been one of the robbers.” Id. at 445. This was so because the first jury could not have rationally

found, from the record of the first trial, that the robbery did not occur or that the victim named in the

first trial was not a victim of that robbery. Id.; see also id. at 438 (“The proof that an armed robbery

had occurred . . . was unassailable.”). Missouri was therefore barred by the doctrine of collateral

estoppel from trying Ashe for the robbery of any of the other poker players, because identity would

be an ultimate issue in each such trial and Ashe had already been acquitted of being one of the

robbers. Id. at 446.

        In holding that Missouri was barred from prosecuting Ashe a second time, the Supreme Court

stated that “[f]or whatever else that constitutional guarantee [against double jeopardy] may embrace,

it surely protects a man who has been acquitted from having to ‘run the gauntlet’ a second time.” Id.

at 445–46. Collateral estoppel “stands for an extremely important principle . . . 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.” Id. at 443.

        Thus, as we explained in Rollerson:

        [U]nder the collateral-estoppel component of double jeopardy, the government may
        not litigate a specific elemental fact to a competent factfinder (judge or jury), receive
        an adverse finding by that factfinder on the specific fact, learn from its mistakes,
        hone its prosecutorial performance, and relitigate that same factual element that the
        original factfinder had already decided against the government.

Rollerson v. State, 227 S.W.3d 718, 730 (Tex. Crim. App. 2007); Ashe, 397 U.S. at 447 (“‘No doubt
                                                                                                        7

the prosecutor felt the state had a provable case on the first charge and, when he lost, he did what

every good attorney would do—he refined his presentation in light of the turn of events at the first

trial.’ But this is precisely what the constitutional guarantee forbids.”).

        Therefore:

        In applying the doctrine of collateral estoppel, courts must first determine whether
        the jury determined a specific fact, and if so, how broad—in terms of time, space and
        content—was the scope of its finding. Before collateral estoppel will apply to bar
        relitigation of a discrete fact, that fact must necessarily have been decided in favor
        of the defendant in the first trial.

Ex parte Watkins, 73 S.W.3d 264, 268 (Tex. Crim. App. 2002) (emphasis added); see also Rollerson,

227 S.W.3d at 731 (emphasizing same).

        The Supreme Court, in Currier v. Virginia, recently reiterated the requirement that the

specific issue be necessarily decided. Currier v. Virginia, 138 S.Ct. 2144, 2150 (2018). The Ashe

test is a demanding one, and Ashe forbids a second trial only if a conviction in the second trial

requires a finding in the government’s favor on an issue the jury necessarily resolved in the

defendant’s favor in the first trial. Id. A second trial “is not precluded simply because it is

unlikely—or even very unlikely—that the original jury acquitted without finding the fact in

question.” Id. (quoting Yeager v. United States, 557 U.S. 110, 133-34 (2009) (Alito, J., dissenting));

see also Watkins, 73 S.W.3d at 268–69 (“The mere possibility that a fact may have been determined

in a former trial is insufficient to bar relitigation of that same fact in a second trial.”). Thus, courts

must be able to say that “it would have been irrational for the jury” to acquit in the first trial without

finding in the defendant’s favor on a fact essential to a conviction in the second, in order to say that

the second trial is tantamount to a trial of the same offense as the first and thus forbidden by the

Double Jeopardy Clause. Id. (quoting Yeager, 557 U.S. at 127) (Kennedy, J., concurring)).
                                                                                                     8

                   III — What Issue Was Necessarily Decided in the First Trial?

        The court of appeals, in considering which issue was determined in the first trial, concluded

that “[t]he only issue upon which the jury could have acquitted Adams was on the defensive issue

submitted to the jury.” Adams, 2018 WL 2994360 at *2. After reviewing the record, we agree that

Appellant’s acquittal was due to a jury finding in his favor on the defensive issue. However, the

court of appeals applied the brush too broadly. The defensive issue decided by the jury at the first

trial did not encompass both Justin and Joe. The defensive issue in first trial specifically related to

Justin only, and the jury did not necessarily decide the matter as to Joe.

        In determining which facts were necessarily determined by the jury, the natural place to begin

is the jury’s instructions from the first trial, which told the jury the particular circumstances under

which it was to return a “Not Guilty” verdict. The instructions, which were admitted into evidence

at the pre-trial habeas hearing, reveal that Appellant was charged in the first trial with aggravated

assault under two paragraphs: (1) aggravated assault by use of a deadly weapon; and (2) aggravated

assault by causing serious bodily injury. For paragraph one, the instructions told the jury that it

should find Appellant “Not Guilty” under two circumstances. First, the jury was to return a “Not

Guilty” verdict if the jury found that the State did not prove aggravated assault by use of a deadly

weapon.1


        1
             Specifically, the application section relating to paragraph one of the indictment told the
jury:

        You must decide whether the state has proved, beyond a reasonable doubt, three
        elements. The elements are that –

        1.        the defendant, in Taylor County, Texas, on or about the 18th day of October,
                  2015, caused bodily injury to Justin Paul Romero; and
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       Second, even if the jury agreed that the State proved aggravated assault by use of a deadly

weapon, the jury was to return a “Not Guilty” verdict if it found that the State failed to overcome the

defensive theory. The application section relating to deadly force in defense of another told the jury:

       If you have found the state has proved the offense beyond a reasonable doubt, you
       must next decide whether the state has proved that the defendant’s conduct was not
       justified by defense of another.

       To decide the issue of defense of another, you must determine whether the state has
       proved, beyond a reasonable doubt, one of the following elements. The elements are
       that –

       1.      the defendant did not believe his conduct was immediately necessary to
               protect Luke Hisey against Justin Paul Romero’s use or attempted use of
               unlawful deadly force; or

       2.      the defendant’s belief was not reasonable; or

       3.      under the circumstances as the defendant reasonably believed them to be, the
               defendant would not have been permitted to use force or deadly force to
               protect himself against the unlawful force or unlawful deadly force with
               which the defendant reasonably believed Justin Paul Romero was threatening
               Luke Hisey.

       ...

       If you find that the state has failed to prove, beyond a reasonable doubt, either


       2.      The defendant did this –
               a.     intending to cause bodily injury; or
               b.     knowing that he would cause bodily injury; and

       3.      the defendant, during the alleged assault, used a knife, a deadly weapon.

       ...

       If you all agree the state has failed to prove, beyond a reasonable doubt, one or more
       of elements 1, 2 and 3 listed above, you must find the defendant “not guilty” of
       aggravated assault as alleged in the first paragraph of the indictment.

Rep. R. vol. 3, Applicant’s Ex. 2, 5.
                                                                                                     10

          element 1, 2 or 3 listed above, you must find the defendant “not guilty” of the offense
          of aggravated assault as alleged in paragraph one of the indictment.

Rep. R. vol. 3, Applicant’s Ex. 2, at 7–8. The jury was similarly instructed as to paragraph two of

the indictment, and it was to find Appellant “Not Guilty” if it agreed that the State failed to prove

aggravated assault by causing serious bodily injury,2 or, if it agreed that the State proved aggravated

assault by causing serious bodily injury, it nevertheless found that the State failed to overcome the

defense.3 Thus, by its “Not Guilty” verdict, the jury must have either determined that the State failed

to prove aggravated assault or that the State failed to disprove the defense. From our review of the

evidence of the first trial, the “single rationally conceivable issue in dispute before the jury,” Ashe,

397 U.S. at 445, was whether Appellant was reasonably acting to defend Hisey against Justin’s

attack.

          At trial, Appellant did not contest whether aggravated assault was proven. The defense voir

dire predominantly discussed the defensive issue and the State’s burden to disprove the defense. In

his testimony, Appellant did not deny that there was an assault,4 and during closing argument,



          2
              Id. at 10.
          3
              Id. at 12.
          4
                    Q.         . . . And that’s something we’ve let this jury know from the
                               beginning is that there was an assault, correct?

          A.        Right, correct.

          Q.        And you don’t deny that, correct?

          A.        No, sir.

Rep. R. vol. 3, Applicant’s Ex. 1, Rep. R. vol. 2, 44–45 in State v. Adams, No. 26,816-A (42nd Dist.
Ct., Taylor Cty., Tex. Sept. 19, 2017).
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counsel began by stating that “there was an assault” and then proceeded to focus on the defensive

issue.5

          Furthermore, from the testimony of the first trial, including that of Appellant himself, the

question of whether Appellant committed aggravated assault by the use of a deadly weapon or by

causing serious bodily injury could not rationally be in dispute. Regarding whether Appellant caused

Justin’s injuries, Appellant testified that he was swinging his knife at Justin, and there was ample

evidence that Justin was stabbed. There was no evidence that some other person stabbed Justin.

Indeed, Graves testified that she actually saw Appellant stab Justin.

          As for evidence showing that Appellant caused Justin’s injuries intentionally or knowingly,

Appellant explained that when he drew his knife, he was trying to protect himself and Hisey. In

addition, Appellant’s intent may be inferred from the extent of Justin’s injuries. Nisbett v. State, 552

S.W.3d 244, 267 (Tex. Crim. App. 2018); Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App.

1995); see also Fearance v. State, 620 S.W.2d 577, 584 (Tex. Crim. App. 1980) (“Thus, we may say

that the repeated stabbing of [the victim] by appellant while astride him is enough . . . to find that

it was done deliberately, and, perforce, intentionally.”). Justin testified that he suffered fifteen or

sixteen stab wounds. His hospital records indicated that he had eleven injuries. Whichever amount

is correct, the number of injuries is strong evidence that Justin’s injuries were intentionally inflicted.

          Finally, the evidence does not leave room to characterize what occurred as a mere simple

assault instead of aggravated assault by use of a deadly weapon or by causing serious bodily injury.

Justin testified that he had to have surgery, and his hospital records confirmed that he had to have


          5
            Id. at 62 (“Was there an assault? Yes, there was an assault. But our law provides
justification for an assault or a defense to an assault, and that’s what we tried to stay on point to and
that we’ve tried to show you.”).
                                                                                                     12

surgery to repair a collapsed lung. The records also indicated that Justin had a sucking chest wound,

which a doctor testified could be fatal and is a common cause of death among trauma victims. Justin

further testified that as a consequence of injuries to his arm, he now has impaired use of his hand.

Because Appellant used the knife in a manner capable of causing death or serious bodily injury, the

knife was a deadly weapon, and Appellant caused serious bodily injury.

        From the evidence of the first trial, the jury could not have rationally found that Appellant

did not commit aggravated assault or that Justin was not the victim of that assault. See Ashe, 397

U.S. at 445. The evidence of Appellant’s aggravated assault against Justin, along with Appellant’s

defensive strategy of admitting assault but justifying it as necessary to defend Hisey from Justin, lead

to the conclusion that the jury’s “Not Guilty” verdict could have only come about because the jury

accepted Appellant’s defense that he needed to step in to protect Hisey.

        Therefore, we agree with the court of appeals that “[t]he only issue upon which the jury could

have acquitted [Appellant] was on the defensive issue submitted.” Adams, 2018 WL 2994360 at *2.

However, the defensive issue that was submitted to the jury told the jury what it had to find in order

to acquit Appellant:

        If you find that the state has failed to prove, beyond a reasonable doubt, either
        element 1, 2 or 3 listed above, you must find the defendant “not guilty” of the offense
        of aggravated assault as alleged in paragraph one of the indictment.

Rep. R. vol. 3, Applicant’s Ex. 2, at 8. Because the jury found Appellant “Not Guilty,” it must have

found that the State failed to prove any of the three elements, which were:

        1.      the defendant did not believe his conduct was immediately necessary to
                protect Luke Hisey against Justin Paul Romero’s use or attempted use of
                unlawful deadly force; or

        2.      the defendant’s belief was not reasonable; or
                                                                                                     13


        3.      under the circumstances as the defendant reasonably believed them to be, the
                defendant would not have been permitted to use force or deadly force to
                protect himself against the unlawful force or unlawful deadly force with
                which the defendant reasonably believed Justin Paul Romero was threatening
                Luke Hisey.

Id. at 7–8 (emphasis added). Plainly, the jury’s “Not Guilty” verdict meant it determined that

Appellant was justified in his use of force against “Justin Paul Romero,” specifically. The issue

submitted to the jury did not ask the jury to determine whether Appellant was justified in his use of

force against Joe.

        Therefore, the jury’s determination in favor of Appellant on the defensive issue does not

mean that the jury necessarily decided that Appellant was justified in using force against Joe.

Perhaps the jury did agree during deliberations that Appellant also justifiably used force against Joe.

But that was not a basis the jury was given from which it could find Appellant “Not Guilty.”

Appellant’s acquittal could have only come about due to the jury finding he was justified in using

force against Justin. Because the issue in regard to Joe was not necessarily decided in the first trial,

the State was not barred from litigating the issue in a second trial.

                                          IV — Conclusion

        In conclusion, the jury’s “Not Guilty” verdict acquitting Appellant of aggravated assault

against Justin Romero was not a final jury determination that Appellant was justified in using force

against Joe Romero to defend Hisey. Collateral estoppel as to the latter issue does not apply. The

judgment of the court of appeals is reversed, and the matter is remanded for proceedings consistent

with this opinion.
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Delivered: October 9, 2019
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