                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

 THE STATE OF TEXAS,                              §
                                                                  No. 08-08-00056-CR
                   Appellant,                     §
                                                                     Appeal from the
 v.                                               §
                                                                   210th District Court
 ANDREW JAMES COTTO,                              §
                                                                of El Paso County, Texas
                   Appellee.                      §
                                                                  (TC# 20070D02762)
                                                  §

                                           OPINION

       The State of Texas appeals the trial court’s order dismissing the case against Andrew Cotto

on grounds of collateral estoppel. We reverse.

                                         BACKGROUND

       Andrew Cotto, Roberto Corral, and Joseph Jones were indicted for manslaughter. After a

jury acquitted Jones of the offense, Cotto filed a motion to dismiss the case against him based on

collateral estoppel. According to his argument, because Jones, the principal actor, was acquitted,

and because Cotto’s trial would be based upon the same evidence and expert opinion surrounding

the cause of death, the State’s failure to prove death by homicide at Jones’ trial collaterally estops

the State from trying him for the same crime.

       The evidence presented at Jones’ trial was that Jones choked the victim while Corral held the

victim’s feet and Cotto held the victim’s arms. Although the medical examiner initially testified that

the cause of death was strangulation, he later testified that the victim suffered from asthma or some

other respiratory condition, which the medical examiner could not rule out as also being the cause

of death.
         At the motion-to-dismiss hearing, Cotto argued that the jury’s acquittal was a finding, based

on the medical examiner’s testimony, that the victim’s death was not a homicide. Therefore, he

asserted that because the evidence presented at Jones’ trial showed that Jones, being the one that

choked the victim, was the principal actor, and because Jones was acquitted of manslaughter, he

could not also be prosecuted for manslaughter as a party, that is, for aiding and abetting Jones in

committing the offense.

         The State disagreed, noting that although the medical examiner testified that the cause of

death was strangulation, the jury’s acquittal was not a finding of no homicide: “According to

[counsel] the jury says [the victim] didn’t die by homicide. That’s not what they said, they said they

didn’t find beyond a reasonable doubt that Joseph Jones is the one that killed [the victim].” The

State also pointed out that Section 7.03 of the Texas Penal Code provides that it is no defense under

the law of parties that the person for whose conduct the defendant is criminally responsible has been

acquitted.1 Finally, the State argued that because Cotto was not a party to Jones’ prosecution, that

is, that he had no right to control the litigation in Jones’ trial or appeal from the judgment, collateral

estoppel was inapplicable.

         The trial court rejected the applicability of Section 7.03, noting that is an affirmative defense,

not a bar to prosecution. He further rejected the State’s same-party argument, noting that because

Cotto was being prosecuted under the law of parties, he was the same party with regard to the same

offense and could have been prosecuted in Jones’ trial. The trial court then granted Cotto’s motion

and dismissed the case against him.


         1
            Section 7.03 provides that “[i]n a prosecution in which an actor’s criminal responsibility is based on the
conduct of another, the actor may be convicted on proof of commission of the offense and that he was a party to its
commission, and it is no defense . . . that the person for whose conduct the actor is criminally responsible has been
acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or
class of offense, or is immune from prosecution.” See T EX . P EN AL C O D E A N N . § 7.03(2) (Vernon 2003).
                                           DISCUSSION

        On appeal, the State contends that collateral estoppel does not bar Cotto’s prosecution for

manslaughter, despite Jones’ acquittal, because Cotto was not a party to Jones’ trial. We agree.

                                        Standard of Review

        Collateral estoppel is embodied within the double-jeopardy clause of the Fifth Amendment

and only concerns the relitigation of specific factual determinations between the same parties. Ashe

v. Swenson, 397 U.S. 436, 444-45, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Murphy v. State, 239

S.W.3d 791, 794 (Tex. Crim. App. 2007). Simply, “[c]ollateral estoppel means ‘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 relating to the same event or situation.’”

Murphy, 239 S.W.3d at 794 (quoting Ashe, 397 U.S. at 443).

        As a criminal defendant cannot rely on collateral estoppel to bar relitigation of a particular

fact in a subsequent proceeding unless he was a party to the previous proceeding, the dispositive

issue here, therefore, is the same-parties component. State v. Brabson, 976 S.W.2d 182, 184 (Tex.

Crim. App. 1998) (finding Department of Public Safety and District Attorney’s Office not the same

parties; thus, collateral estoppel did not bar District Attorney from litigating the issue of probable

cause at a suppression hearing even though that same issue was previously litigated at the revocation-

of-driver’s-license hearing). Such is a question of law that we review de novo. State v. Stevens, 235

S.W.3d 736, 740 (Tex. Crim. App. 2007); State v. Ayala, 981 S.W.2d 474, 477 (Tex. App.–El Paso

1998, pet. ref’d).

                        Does Collateral Estoppel Bar Accomplice’s Trial?

        Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), is the

controlling case on whether an accomplice may be tried for the same offense after the principal was
acquitted. In that case, Standefer was accused of aiding and abetting a revenue official in accepting

compensation beyond that authorized by law. Id. at 11-12. After the revenue official was acquitted

of accepting unlawful payments, Standefer moved to dismiss the charges, arguing, on principles of

collateral estoppel, that because the principal was acquitted, he could not be convicted of aiding and

abetting that principal. Id. at 13. In rejecting this argument, the Supreme Court traced the origins

of aiding and abetting, and found that there was “a clear intent to permit the conviction of accessories

to federal criminal offenses despite the prior acquittal of the actual perpetrator of the offense.” Id.

at 19. The Court further noted that collateral estoppel would not bar the accomplice’s trial because

through lenity, compromise, or mistake the jury might have reached an irrational result in the prior

trial, which was not subject to review at the government’s instigation. Id. at 21-23. Although

“symmetry of results may be intellectually satisfying, it is not required;” thus, the acquittal of a

principal does not bar the conviction of an accomplice. Id. at 25.

        The Court of Criminal Appeals likewise rejected a similar complaint in Ex parte Thompson,

179 S.W.3d 549 (Tex. Crim. App. 2005). There, Thompson contended that he was factually

innocent of capital murder when a different jury found the principal guilty of only felony murder.

Id. at 551-52. In rejecting the argument, the Court noted that it “is well-established that one

accomplice may be found guilty of a different, more serious offense than other accomplices,” and

that the acquittal of the principal does not prevent conviction of his accomplice, regardless of

whether the acquittal of the principal occurs before or after the accomplice’s trial. Id. at 553-54.

        In short, simply because Jones was acquitted of manslaughter does not bar the State from

prosecuting Cotto for the same offense, using the same evidence. See United States v. Mollier, 853

F.2d 1169, 1176 (5th Cir. 1988) (stating it is “consistent and lawful for one jury to acquit one

defendant and another jury to convict a second defendant on the very same evidence,” and that “the
jury is permitted to exercise leniency, so that it can even acquit a defendant whom it considers guilty

of the crime as charged and convict another on the same crime”) (emphasis in original). Rather,

collateral estoppel would only bar such prosecution if Cotto was a party to the litigation in Jones’

prosecution, an issue we reach below.

                                     Are the Parties the Same?

       The trial court ruled that because Cotto was a party to the offense, he was necessarily a party

to Jones’ prosecution. We disagree. As noted before, collateral estoppel forbids relitigation of an

issue between the same parties that litigated the issue in a prior lawsuit. See, e.g., Ashe, 397 U.S.

at 443; Murphy, 239 S.W.3d at 794; Brabson, 976 S.W.2d at 184. Whether collateral estoppel

should apply therefore depends on whether the two cases involved the same parties. See Moreno v.

State, 1 S.W.3d 846, 858 (Tex. App.–Corpus Christi 1999, pet. ref’d); Ramirez v. State, No. 14-04-

00952-CR, 2005 WL 1690634, at *6 (Tex. App.–Houston [14th Dist.] July 21, 2005, pet. ref’d)

(mem. op., not designated for publication).

       Here, Cotto, although a party to the offense, was not a party to the litigation in the State’s

prosecution of Jones. The parties in that case were the State of Texas and Jones, whereas the parties

in the trial yet to be had are the State and Cotto. Indeed, Cotto had no power to control the course

of the proceedings in Jones’ prosecution. See Reynolds v. State, 4 S.W.3d 13, 17 (Tex. Crim. App.

1999) (noting that the same party in the collateral-estoppel context connotes someone who had the

power to control the course of the previous litigation). Because the parties are different, Cotto

cannot claim collateral estoppel bars his trial based on Jones’ acquittal. See Moreno, 1 S.W.3d at

858; State v. Lovington, No. 07-08-0313-CR, 2009 WL 3643529, at *2 (Tex. App.–Amarillo Nov.

4, 2009, no pet.) (mem. op., not designated for publication); Ramirez, 2005 WL 1690634, at *6

(cases rejecting collateral estoppel as a bar to subsequent prosecution for co-defendants under the
law of parties when those defendants were not the “same parties” involved in the previous litigation

of the same crime). Accordingly, we sustain the State’s sole issue.

                                         CONCLUSION

       The trial court’s order dismissing the case against Cotto is reversed, and the case is remanded

for further proceedings.



                                              GUADALUPE RIVERA, Justice

January 29, 2010

Before Chew, C.J., McClure, and Rivera, JJ.

(Publish)
