                           NUMBER 13-15-00569-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

JUAN ELIGIO GARCIA ADAMES,                                               Appellant,

                                         v.

STATE OF TEXAS,                                                          Appellee.


                  On appeal from the 398th District Court
                        of Hidalgo County, Texas.



                       MEMORANDUM OPINION
    Before Chief Justice Valdez, Justices Benavides, and Longoria
             Memorandum Opinion by Justice Longoria

      Appellant Juan Eligio Garcia Adames appeals his conviction by a jury for the

offense of capital murder. See TEX. PENAL CODE ANN. §§ 19.02(b)(1), 19.03(a)(2) (West,

Westlaw through 2017 1st C.S.). Because the State did not seek the death penalty,

appellant received an automatic life sentence in the Texas Department of Criminal
Justice—Institutional Division, without parole. See id. § 12.31(a) (West, Westlaw through

2017 1st C.S.).

      By fourteen issues appellant contends that: (1) the trial court abused its discretion

in denying his pretrial motion to dismiss; (2) the Double Jeopardy Clause of the Fifth

Amendment was violated when he was retried for capital murder as a primary actor; (3)

the doctrine of collateral estoppel in the Double Jeopardy Clause of the Fifth Amendment

guaranteed by the Due Process Clause of the Fourteenth Amendment was violated when

he was retried for capital murder as a primary actor; (4) the doctrine of double jeopardy

issue preclusion was violated when he was retried for capital murder as a primary actor;

(5) the doctrine of the law of the case was violated when the trial court included capital

murder as a primary actor in its jury charge; (6) the mandate doctrine was violated when

he was retried for capital murder as a primary actor; (7–11 and 14) there was jury charge

error; and (12–13) he received ineffective assistance of counsel. We affirm.

                              I.     PROCEDURAL HISTORY

A.    First Appeal

      In December 2006, a jury convicted appellant of the capital murder of Ann Marie

Garcia. On direct appeal, this Court found that the evidence was legally insufficient to

convict appellant as the primary actor of the murder because all of the evidence

established that co-defendant Luis Carlos Mares killed Ann Marie Garcia, but that the

evidence was legally sufficient to support a conviction as a party to the crime. Adames

v. State, No. 13-07-303-CR, 2010 WL 2862604, at *7–8 (Tex. App.—Corpus Christi July

22, 2010) aff’d, 353 S.W.3d 854 (Tex. Crim. App. 2011). In that opinion we reversed and

remanded because the jury charge allowed for appellant’s conviction as a party to the



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kidnapping but not as a party to Garcia’s murder. Id. at *8–9. Appellant thereafter filed a

petition for discretionary review in the Texas Court of Criminal Appeals claiming

entitlement to rendition of judgment of acquittal for alleged evidentiary insufficiency,

challenging this Court’s judgment finding sufficient evidence as to his culpability as a

party. See Adames, 353 S.W.3d at 854. The Texas Court of Criminal Appeals granted

discretionary review and affirmed our disposition of the case:

       The court of appeals applied the proper standard in conducting its
       evidentiary-sufficiency review and correctly found that the evidence was
       legally insufficient to support [Adames’s] conviction as a primary actor, but
       legally sufficient to support his conviction as a party.

Id. at 861.

B.     Writ of Habeas Corpus

       Following the Texas Court of Criminal Appeals’ ruling, the State initiated

proceedings to retry appellant for capital murder. As a pre-trial matter, appellant filed a

petition for writ of habeas corpus with the trial court in which he argued that a retrial would

violate his state and federal protections against double jeopardy. The trial court denied

appellant’s petition, and he appealed the denial. This Court reviewed his appeal and

affirmed the trial court’s ruling, stating that double jeopardy does not attach in a case in

which a conviction was overturned because of error in the charge presented to the jury.

See Ex parte Adames, No. 13-12-00600-CR, 2013 WL 2380907, at *3 (Tex. App.—

Corpus Christi May 30, 2013, no pet.) (mem. op., not designated for publication).

C.     Current Proceeding

       In August 2015, appellant’s second trial was held. The jury found appellant guilty

of capital murder and sentenced him to life imprisonment. This appeal followed.

                II.     STATE AND FEDERAL CONSTITUTIONAL PROTECTIONS

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        By his first six issues, appellant argues that his state and federal constitutional

protections were violated when he was retried for capital murder as a primary actor. As

a preliminary matter, we note that appellant’s arguments in this appeal are very similar to

those from his prior appeal of the denial of his writ of habeas corpus. 1 “Under the law of

the case doctrine, an appellate court’s resolution of a question of law in a previous appeal

of the same case will govern the disposition of the same issue when raised in a

subsequent appeal.” Zavala v. State, 956 S.W.2d 715, 718 (Tex. App.—Corpus Christi

1997, no pet.); see also Ware v. State, 736 S.W.2d 700, 701 (Tex. Crim. App. 1987)

(“[W]hen the facts and legal issues in a case on appeal are virtually identical with those

in a previous appeal in which the legal issues were resolved[,] then logic and reason

dictate that the appeals be viewed as the same case.”). However, the reconsideration or

further consideration of an issue on a second appeal is a matter of discretion. See Ex

parte Granger, 850 S.W.2d 513, 516 (Tex. Crim. App. 1993); Peden v. State, 917 S.W.2d

941, 956 (Tex. App.—Fort Worth 1996, pet. ref’d).

A.      Double Jeopardy

        The Fifth Amendment prohibition against double jeopardy 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.” Weinn

v. State, 326 S.W.3d 189, 192 (Tex. Crim. App. 2010) (citing Brown v. Ohio, 432 U.S.

161, 165 (1977)); Stephens v. State, 806 S.W.2d 812, 816 (Tex. Crim. App. 1990) (en

banc). “Conceptually, the State and Federal double jeopardy provisions are identical.”




        1As with his petition for writ of habeas corpus, appellant’s motion to dismiss was also brought on
grounds of double jeopardy.

                                                    4
Stephens, 806 S.W.2d at 815; see Ex parte Busby, 921 S.W.2d 389, 392 (Tex. App.—

Austin 1996, pet. ref’d).

       This Court has already addressed this issue:

       When a trial proceeds to a verdict and the conviction is reversed on appeal
       “retrial is not automatically jeopardy-barred” unless the conviction was
       reversed for insufficiency of the evidence. When a case is reversed
       because of trial error, “double jeopardy does not attach.” This rule applies
       when a conviction is overturned on appeal because of error in the jury
       charge.

       ...

       As we have already stated above, we overturned appellant’s conviction
       because of error in the jury charge and we expressly overruled appellant’s
       insufficiency issues. The court of criminal appeals confirmed our holding.
       When a conviction is overturned on appeal because of error in charge
       presented to the jury, double jeopardy does not attach.

Ex parte Adames, 2013 WL 2380907, at *2–3 (citations omitted). Having already held

that appellant’s conviction as a primary actor in his first trial was reversed as a result of

trial error, we again conclude that double jeopardy does not attach. See id.; see Burks v.

United States, 437 U.S. 1, 16 (1978) (holding that the Double Jeopardy Clause “does not

bar retrial of a defendant whose conviction was set aside because of an error in the

proceedings leading to conviction.”). Appellant’s first and second issues are overruled.

B.     Collateral Estoppel

       The doctrine of collateral estoppel is embodied within the Double Jeopardy Clause

of the Fifth Amendment, which is applicable to the states through the Fourteenth

Amendment. Murphy v. State, 239 S.W.3d 791, 794 (Tex. Crim. App. 2007) (citing Ashe

v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); U.S. CONST.

amend. V, XIV). While double jeopardy protects a defendant against a subsequent




                                             5
prosecution for an offense for which the defendant has been acquitted, collateral estoppel

deals only with relitigation of specific fact determinations. Id.

       “Collateral 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.’” Id. (quoting

Ashe, 397 U.S. at 443, 90 S.Ct. 1189). A collateral estoppel analysis consists of two

questions: (1) Has a fact issue already been determined, adversely to the State, in a valid

and final judgment between the same parties? and (2) Is the State now trying to relitigate

that same fact issue? Ex parte Tarver, 725 S.W.2d 195, 199 (Tex. Crim. App. 1986).

       Thus, for collateral estoppel to apply on a constitutional basis, jeopardy must have

attached or there must have been the equivalent of criminal punishment in the first

proceeding. State v. Rodriguez, 11 S.W.3d 314, 317–19 (Tex. App.—Eastland 1999, no

pet.); see also State v. Smiley, 943 S.W.2d 156, 158 (Tex. App.—Amarillo 1997, no pet.)

(holding that collateral estoppel is a subset of double jeopardy and has no application

unless claimant previously placed in jeopardy); Nichols v. Scott, 69 F.3d 1255, 1269–70

(5th Cir. 1995) (finding no due process basis, independent of the Double Jeopardy

Clause, for the application of collateral estoppel); Showery v. Samaniego, 814 F.2d 200,

203 (5th Cir. 1987) (explaining that collateral estoppel applies insofar as it is necessary

to safeguard against the risk of double jeopardy). As we have already noted, jeopardy

did not attach as appellant’s original conviction was reversed on trial error grounds,

invalidating the final judgment of the trial court. See Adames, 353 S.W.3d at 863.

Appellant’s third and fourth issues are overruled.

C.     Law of the Case and Mandate Doctrine



                                              6
         The “law of the case” doctrine provides that an appellate court’s resolution of a

question of law in a previous appeal of the same case will govern the disposition of the

same issue should there be another appeal. Ware v. State, 736 S.W.2d 700, 701 (Tex.

Crim. App. 1987) (refusing to review for the second time the evidence offered at a

suppression hearing). The public policy behind the application of the “law of the case”

doctrine is to prevent useless relitigation of issues already decided and to promote judicial

economy. See LeBlanc v. State, 826 S.W.2d 640, 644 (Tex. App.—Houston [14th Dist.]

1992, pet. ref’d).

         Appellant argues in his fifth point of error that the law of the case doctrine was

violated when he “was again tried for capital murder as a primary actor after the court of

criminal appeals approved this court of appeals’ prior holding that no evidence existed to

convict [him] as a primary actor at the first trial by jury.”      Appellant’s argument is

misplaced.     As we have previously stated, this Court’s reversal was not based on

insufficient evidence, but rather on trial error. “The State may retry a defendant after a

successful appeal because the ‘original conviction has, at the defendant’s behest, been

wholly nullified and the slate wiped clean.’” Ex parte Fortune, 797 S.W.2d 929, 936 (Tex.

Crim. App. 1990) (citing North Carolina v. Pearce, 395 U.S. 711, 721 (1969)). The jury

charge error caused this Court to reverse appellant’s first conviction and wipe the slate

clean.

                 In short, reversal for trial error, as distinguished from evidentiary
         insufficiency, does not constitute a decision to the effect that the
         government has failed to prove its case. As such, it implies nothing with
         respect to the guilt or innocence of the defendant. Rather, it is a
         determination that a defendant has been convicted through a judicial
         process which is defective in some fundamental respect, e.g., incorrect
         receipt or rejection of evidence, incorrect instructions, or prosecutorial
         misconduct. When this occurs, the accused has a strong interest in

                                              7
       obtaining a fair readjudication of his guilt free from error, just as society
       maintains a valid concern for insuring that the guilty are punished.

Burks, 437 U.S. 1, 18 (1978) (emphasis added). Appellant’s approach to this issue is

simply another way of arguing that he is being retried for the same crime for which

appellate courts have already determined the evidence produced at trial was insufficient.

This Court expressly overruled appellant’s insufficiency issues in his first appeal, and the

court of criminal appeals affirmed our holding.        Adames, 353 S.W.3d at 862–63.

Appellant’s fifth issue is overruled.

       Appellant also contends that the trial court erred by violating the mandate doctrine

when it “disregarded the letter and the spirit” of the court of criminal appeals’ affirmation

of our opinion in his first conviction appeal. Again, appellant’s argument is misplaced.

The mandate of the court of criminal appeals was to reverse and remand the case to the

trial court due to trial error. Because appellant’s conviction was reversed only on the

grounds of incorrect jury instructions, no bar exists to further prosecution of the same

charge. See Burks, 437 U.S. at 15. Appellant’s sixth issue is overruled.

                                   III.   CHARGE ERROR

       In his seventh through eleventh and fourteenth points of error, appellant argues

that the trial court’s jury charge was erroneous. Specifically, issues seven through eleven

are based on appellant’s argument that the charge should not have contained the primary

actor criminal theory of liability because he should not have been retried for capital murder

as a primary actor based on the principles of double jeopardy, collateral estoppel, law of

the case doctrine, and the mandate doctrine.        Having already overruled appellant’s

arguments on each of these grounds, we cannot conclude the charge was erroneous for




                                             8
the inclusion of capital murder as a primary actor on the bases raised by appellant.

Therefore, appellant’s issues seven through eleven are overruled.

      In issue fourteen, appellant argues the charge was fundamentally erroneous

because “it failed to make a finding as to whether Mares caused Ann Marie Garcia’s death

or that her death occurred.”

A.    Standard of Review

      We review a claim of jury charge error through a two-step process. Phillips v.

State, 463 S.W.3d 59, 64–65 (Tex. Crim. App. 2015). We first determine whether there

was error in the charge and, if so, whether that error was harmful. Id. Preservation of

error becomes an issue in the second step because it determines the degree of harm

required for reversal. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). If

error was preserved, we must reverse if the record shows the defendant suffered “some

harm” as a result of it. Id. When an appellant alleges error in the jury charge but the

alleged error was not objected to at trial, as here, we will reverse only if we find error

causing egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013)

(citing Almanza v. State, 686 S.W.2d 157,171 (Tex. Crim. App. 1985) (op. on reh’g)).

      Egregious harm will be found only if the error deprived the defendant of a fair and

impartial trial. Id. The record must disclose actual rather than theoretical harm, and the

error must have affected the very basis of the case, deprived the defendant of a valuable

right, or vitally affected a defensive theory. Id. ln reviewing for egregious harm, we

consider “the entire jury charge, the state of the evidence, including the contested issues

and weight of probative evidence, the argument of counsel and any other relevant

information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171.



                                            9
B.     Applicable Law and Relevant Facts

       The application paragraph of a jury charge tells the jury under what circumstances

it can find the defendant guilty. McFarland v. State, 928 S.W.2d 482, 515 (Tex. Crim.

App. 1996) overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim.

App. 1998). Here, the charge’s application paragraphs included the option of finding guilt

under the law of parties. The trial court’s charge read:

       If you find from the evidence beyond a reasonable doubt that on or about
       OCTOBER 23, 2003, in Hidalgo County, Texas, LUIS CARLOS MARES,
       and the Defendant, JUAN ELIGIO GARCIA ADAMES, then and there knew
       of the intent, if any, of the said LUIS CARLOS MARES to cause the death
       of an individual, namely, ANN MARIE GARCIA, by strangulation, and the
       LUIS CARLOS MARES was then and there in the course of committing or
       attempting to commit the offense of Aggravated Kidnapping, and the
       Defendant, acting with the intent to promote or assist the commission of
       Capital Murder, solicited, encouraged, directed, aided or attempted to aid
       LUIS CARLOS MARES in the commission of the Capital Murder by injecting
       the said ANN MARIE GARCIA with heroin or driving the vehicle while LUIS
       CARLOS MARES strangled the said ANN MARIE GARCIA with a shoe
       lace, then you will find the Defendant guilty of the offense of CAPITAL
       MURDER as charged in the indictment.

Under the law of parties, a person may be criminally responsible for the murder committed

by another person if “acting with intent to promote or assist” the murder, “he solicits,

encourages, directs, aids, or attempts to aid the other person” to commit the murder. See

TEX. PEN. CODE ANN. § 7.02(a)(2) (West, Westlaw 2017 through 1st C.S.).

C.     Analysis

       Appellant contends that the trial court’s charge “fails to require the jury to find that

Luis Carlos Mares committed the ‘essential elements of the murder offense’” and “fails to

provide the jury with a party law instruction regarding ‘essential elements of the murder

offense.’” Specifically, appellant contends that the charge does not require the jury to find

that Mares’s conduct caused the death of the victim, nor does it require that the jury find

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that the victim’s death occurred. Appellant argues that “The application of party law in

the application paragraph only applies to aggravated kidnapping and to Mr. Adames

knowledge of and his aiding of Mares’s intent to cause the death of ANN MARIE GARCIA

by driving the vehicle or injecting heroin, but not to her actual murder.” We disagree.

       The language of the application paragraph clearly authorizes conviction of

appellant as a party to capital murder, specifically referencing the manner in which Mares

allegedly caused the death of Garcia by strangulation. A plain reading of the paragraph

explains that the jury is authorized to find appellant guilty as a party only if they find that

he was “acting with the intent to promote or assist the commission of Capital Murder.”

Furthermore, the paragraph specifically calls for the jury to determine whether the

appellant “solicited, encouraged, directed, aided or attempted to aid LUIS CARLOS

MARES in the commission of the Capital Murder by injecting the said ANN MARIE

GARCIA with heroin or driving the vehicle while LUIS CARLOS MARES strangled the

said ANN MARIE GARCIA with a shoe lace.” The application paragraph addresses the

elements of capital murder as a party, the death of the victim by strangulation, and the

actor as Luis Carlos Mares. Finding no error in the jury charge, we conclude that the

instruction did not deprive appellant of a fair and impartial trial. We overrule appellant’s

fourteenth issue.

                        IV.     INEFFECTIVE ASSISTANCE OF COUNSEL

       In issues twelve and thirteen, appellant argues that he received ineffective

assistance of counsel. Specifically, he argues that his defense counsel was deficient by

failing to object to the jury charge’s inclusion of the primary actor theory of criminal liability




                                               11
and by failing to object to Mares’s testimony relating to the primary actor theory of criminal

liability because the primary actor theory of liability was barred by double jeopardy.

A.     Standard of Review

       We evaluate claims that counsel was ineffective under the standard articulated by

the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984).

To obtain reversal under Strickland requires a defendant to show both (1) that his counsel

performed deficiently and (2) that the deficient performance prejudiced the defendant’s

case. Id. Deficient performance means that counsel’s errors were so serious that he was

not functioning “within the range of competence demanded of attorneys in criminal cases

as reflected by prevailing professional norms.” Nava, 415 S.W.3d at 307. Prejudice

means that there is a “reasonable probability” that “but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Ex parte Napper, 322

S.W.3d 202, 248 (Tex. Crim. App. 2010) (internal quotation marks omitted).

       We indulge a strong presumption that counsel’s challenged actions were not

deficient but the result of sound trial strategy. Nava, 415 S.W.3d at 307–08. The

appellant has the burden to show the contrary by the preponderance of the evidence.

Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). If the record does not

contain counsel’s explanation for his challenged actions, we will not find deficient

performance unless the challenged conduct “was so outrageous that no competent

attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.

Crim. App. 2005) (internal quotation marks omitted). In other words, we will “assume a

strategic motivation if any can possibly be imagined.” Ex parte Miller, 330 S.W.3d 610,

616 n. 9 (Tex. Crim. App. 2009).



                                             12
       Regarding the prejudice prong, a “reasonable probability” is one that that is

sufficient to undermine confidence in the outcome. Id. A “reasonable probability” is not

the same as a preponderance of the evidence because “[t]he result of a proceeding can

be rendered unreliable, and hence the proceeding itself unfair, even if the errors of

counsel cannot be shown by a preponderance of the evidence to have determined the

outcome.” Strickland, 466 U.S. at 694.

B.     Applicable Law and Analysis

       Both of appellant’s ineffective assistance of counsel claims rely on his argument

that he should not have been retried as a primary actor in the capital murder. First, he

argues that his attorney should have objected to the trial court’s charge that contained

the primary actor theory of criminal liability because it was a violation of double jeopardy,

and second, he argues his attorney should have objected to testimony related to the

theory that he was a primary actor because it was irrelevant on the same grounds. As

we have already discussed above, there was no bar to relitigation on the primary actor

theory of criminal liability.

       The State was not barred from presenting evidence and pursuing a theory of

criminal liability that appellant was the primary actor.       See Burks, 437 U.S. at 16.

Therefore, appellant’s trial counsel did not render ineffective assistance in failing to object

to the inclusion of the primary actor theory of criminal liability in the jury charge when he

reasonably could have determined that the instructions were applicable to the case. See

generally Hardin v. State, 951 S.W.2d 208, 211 (Tex. App.—Houston [14th Dist.] 1997,

no pet.) (rejecting appellant’s claim for ineffective assistance when trial counsel failed to

request article 38.23 instruction when appellant was not entitled to instruction); see Ex



                                              13
parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App. 2005) (“[A] reasonably competent

counsel need not perform a useless or futile act, such as requesting a jury instruction to

which the defendant is not legally entitled or for which the defendant has not offered

legally sufficient evidence to establish. Requesting a jury instruction to which one is not

legally entitled, merely for the sake of making the request, is not the benchmark for a

competent attorney.”) (footnote omitted). Appellant’s twelfth issue is overruled.

       Appellant argues that the testimony of Mares was irrelevant insofar as it discussed

the theory of criminal liability as a primary actor. Again, appellant relies on his argument

that double jeopardy prevented him from being retried as a primary actor. Appellant

argues that Mares’s testimony went against the holding in his first appeal, both by this

Court and the court of criminal appeals. As we have already stated, the State was not

barred from presenting evidence and pursuing a theory of criminal liability that appellant

was the primary actor. See Burks, 437 U.S. at 16. Again, counsel cannot be held to be

deficient where he reasonably could have determined the testimony was relevant and his

objection would be overruled. See Chandler, 182 S.W.3d at 356. Appellant’s thirteenth

issue is overruled.

                                   V.      CONCLUSION

       We affirm the judgment of the trial court.

                                                               NORA L. LONGORIA
                                                               Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
18th day of October, 2018.


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