            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. PD-0088-10



                           RICKIE DAWSON YORK, Appellant

                                                 v.

                                  THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE TWELFTH COURT OF APPEALS
                           SMITH COUNTY



             K ELLER, P.J., delivered the opinion of the Court in which M EYERS, P RICE,
K EASLER, H ERVEY, and A LCALA, JJ., joined. W OMACK, J., filed a concurring opinion.
C OCHRAN, J., filed a concurring opinion in which J OHNSON, J., joined.


       We must resolve two issues in this case. First, did a police officer have reasonable suspicion

to detain appellant, who was asleep in a car, with the lights on and the engine running, parked on a

sidewalk in front of a gas station during the early morning hours? Second, does the doctrine of

collateral estoppel require the suppression of evidence in a subsequent prosecution when that

evidence was suppressed in an earlier prosecution arising from the same facts? The answer to the

first question is relatively straightforward. But to answer the second question, we must deconstruct
                                                                                        YORK — 2

earlier opinions from this Court and re-analyze the question from scratch.

                                        I. BACKGROUND

                                    A. Criminal Investigation

       Leland Shawn Johnson was a patrol officer for the City of Bullard, in Smith County. On his

way to Tyler1 at around 3:00 a.m. on October 16, 2007, he passed an Exxon gas station that was

outside the city limits of Bullard but still in Smith County.

       Officer Johnson was personally aware that this particular Exxon station had been burglarized

at least once during the previous two years, and he had been advised by deputies that other burglaries

had occurred there. The Exxon station was closed for the night, but a car was parked partially on

the sidewalk immediately in front of the Exxon store, with the headlights shining on the store

window. The headlights were shining into the business. From Officer Johnson’s vantage point on

the road, the car appeared to be almost touching the front door glass. The light from the headlights

was being reflected back into the vehicle, and the car did not appear to be occupied. Officer Johnson

parked behind the vehicle, turned his headlights off, and approached on foot.

       He saw that the car’s engine was running, the driver’s rear window was down, and appellant

was in the car asleep with the seat laid back. Officer Johnson did not smell any alcohol, nor did he

see any items in the car that might have been taken in a burglary. He watched appellant for a few

minutes and looked around for weapons before waking appellant up. Appellant expressed surprise

upon being awakened.

       Officer Johnson asked appellant for identification, and appellant said that he had left it at



       1
          Bullard “closed down” by 10:00 p.m., and officers working late-night shifts were allowed
to go to Tyler to get something to eat.
                                                                                          YORK — 3

home. Officer Johnson then asked appellant to step outside the vehicle. In the ensuing conversation,

appellant expressed confusion regarding where he was, saying that he was in the Chapel Hill area,

when he was not even close to there. Officer Johnson then asked if appellant had any weapons.

Appellant said that he did not, and he gave Officer Johnson consent to search his person. The search

revealed that appellant possessed marijuana and methamphetamine, and he was arrested. Appellant

gave Officer Johnson a false name after the arrest.2

                             B. First Prosecution: Failure to Identify

        The criminal district attorney’s office first prosecuted appellant in a county court at law for

the misdemeanor offense of failure to identify.3 The case was tried to a jury, with the sole evidence

being Officer Johnson’s testimony. In addition to facts outlined above, Officer Johnson testified

during cross-examination about whether he had seen appellant committing certain offenses:

        Q. Would you say that in those couple of minutes [of watching appellant sleeping],
        you were able to determine that there was not a burglary at that location going on?

        A. Well, I couldn’t say that there was one occurring at that time, yes.

        Q. Okay. And you didn’t see any kind of property or anything in the car, did you?

        A. Not from standing outside, no.

        Q. Nothing that would give you reason to believe that he had burglarized that store?



       2
           The facts elicited in the failure to identify prosecution were different in the following
respects from the testimony in this case: (1) Officer Johnson testified that the headlights were shining
on the window, but he did not specifically testify that the headlights were shining “into the business.”
(But one of the prosecutors argued to the county-court-at-law judge: “The car was -- the lights were
on inside the store illuminating the store.”) (2) Officer Johnson testified that the “rear windows”
were down, not just the driver’s rear window. (3) Officer Johnson did not testify about appellant’s
“Chapel Hill” statement. These differences are immaterial to our resolution of the issues before us.
        3
            See TEX . PENAL CODE § 38.02(b).
                                                                                            YORK — 4

        A. No.

                                                  ***

        Q. Officer, at that time when you asked for consent to search and continued your
        investigation, Mr. York hadn’t committed any type of felony offense within your
        view at that time, had he?

        A. No, he had not.

        Q. He had not committed any type of offense that would be considered a breach of
        the peace; is that correct?

        A. No, he had not.

        Q. He hadn’t committed any type of public order crime, such as a riot or something
        to that effect?

        A. No, he had not.

        Q. He had not committed, in your view, an offense under Chapter 49 of the Penal
        Code, which is DWI, intoxication manslaughter, that type of offense. He had not
        committed any, correct?

        A. No, he had not.

Officer Johnson also testified that a video of the incident existed, but he did not have it.

        Outside the presence of the jury, the parties and the county court at law judge discussed two

defense motions: a motion for directed verdict of acquittal and a motion to suppress evidence. Both

motions were based on the idea that the State failed to prove that appellant’s arrest or detention was

lawful. The defense first raised these motions after the State’s direct examination, but the judge

denied the motions at that time. After defense counsel’s cross-examination, the parties and the judge

resumed discussion of these issues, which included remarks by the judge regarding the officer being

outside of his jurisdiction. Ultimately, the judge granted the motion to suppress. Before bringing in

the jury, the judge stated: “Well, the court will enter a directed verdict of acquittal, based on the fact
                                                                                        YORK — 5

there is no evidence to go before the jury.”

       After the jurors were brought back into the courtroom, the judge explained to them:

       Basically, what I did was grant the defendant’s motion to suppress. I’m not
       necessarily finding the officer did anything wrong. He was outside of his
       jurisdiction, stopped to investigate what was going on. I don’t think there is anything
       wrong with that. But with him being outside his jurisdiction and him not testifying
       to any articulable facts as to how he thinks an offense might have been committed,
       I think the law requires me to grant the motion to suppress, which means y’all have
       no evidence in front of you.

                                                ***

       [Addressing appellant:] This officer did exactly what he was supposed to do. You’re
       getting away on a technicality.

Expecting the State to appeal this decision because of his other cases, the judge told defense counsel

that he could draft the findings of fact and conclusions of law. No written findings of fact and

conclusions of law are contained in the record before us.

                   C. Second Prosecution: Possession of Methamphetamine

       The criminal district attorney’s office later prosecuted appellant in district court for

possession of methamphetamine. The parties litigated the legality of Officer Johnson’s conduct

during a pretrial suppression hearing. At this hearing, the defense introduced the record of trial

proceedings from the failure-to-identify prosecution. Officer Johnson also testified, and a video of

the incident was played for the court. In addition to the facts outlined previously, Officer Johnson

testified that, as he approached appellant’s car, he believed that there was a “[p]ossible burglary in

progress.” Once he found appellant asleep in the car, Officer Johnson suspected possible offenses

of burglary, DWI, public intoxication, or trespass. With respect to the testimony outlined in part IB

of this opinion, Officer Johnson also explained that his testimony in the failure-to-identify
                                                                                           YORK — 6

prosecution reflected that he did not know particular offenses had been committed but that he was

conducting an investigation.

        Before the district judge, defense counsel argued that Officer Johnson lacked reasonable

suspicion or probable cause to detain appellant, that Officer Johnson’s investigation was prohibited

under Article 14.03(d)4 because he was outside of his jurisdiction, and that suppression should be

granted under the doctrines of res judicata5 and collateral estoppel.

        With respect to the Article 14.03(d) claim, defense counsel contended that Officer Johnson

did not observe any of the offenses for which Article 14.03(d) allows an out-of-jurisdiction officer

to perform an arrest.

        With respect to the collateral-estoppel question, defense counsel first explained that the

lawfulness of the arrest or detention is an element of the offense of failure to identify.6 He further

argued, based upon Fifth Circuit cases, that collateral estoppel could involve two different scenarios:

(1) barring the prosecution itself or (2) barring the relitigation of evidentiary facts.7 Defense counsel

contended that appellant’s case fell within the second scenario. He contended that Murphy v. State,8



        4
            TEX . CODE CRIM . PROC. art. 14.03(d).
        5
        Appellant’s “res judicata” claim was not really distinct from his collateral-estoppel claim,
and we need not make any further reference to it.
        6
          See TEX . PENAL CODE § 38.02(b) (“A person commits an offense if he intentionally gives
a false or fictitious name . . . to a peace officer who has (1) lawfully arrested the person [or] (2)
lawfully detained the person.”).
        7
          Defense counsel relied upon Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972);
Blackburn v. Cross, 510 F.2d 1014 (1975); United States v. Nelson, 599 F.2d 714 (5th Cir. 1979); and
United States v. Lee, 622 F.2d 787 (5th Cir. 1980).
        8
            239 S.W.3d 791 (Tex. Crim. App. 2007).
                                                                                         YORK — 7

upon which the prosecutors heavily relied, involved only the first scenario.

        Throughout the hearing, defense counsel referred to the fact that jeopardy had attached in the

first prosecution when the suppression issue was decided. He also contended that the State had a full

and fair opportunity to litigate the issue because (1) the State could have put into evidence, in the

first prosecution, the additional evidence that was presented in the second prosecution, and (2) the

State could have appealed the trial court’s ruling in the first prosecution.

        Finding that Officer Johnson had adequate justification to conduct an investigative detention,

and relying upon Murphy to dispose of appellant’s collateral-estoppel argument, the district judge

denied the motion to suppress. Appellant pled guilty, and he pled true to two prior enhancement

allegations. Punishment was tried to the jury, and the jury sentenced him to sixty years in prison.

                                              D. Appeal

        Appellant raised his suppression issues on appeal.9 With respect to the collateral-estoppel

contention, he argued that the trial court in the failure-to-identify prosecution found two facts that

should have been given preclusive effect in the methamphetamine prosecution: (1) that the officer

was outside his jurisdiction, and (2) that none of the exceptions in Article 14.03 applied. Appellant

claimed that Murphy could be distinguished on the basis that it “centered on the legal conclusion of

a lack of probable cause” while appellant’s case turns upon prior factual determinations made by the

trial court in the failure-to-identify prosecution.

        The court of appeals observed that Article 14.03(d) allows an outside-of-jurisdiction officer

to detain a person for an offense committed in the officer’s presence if the offense is a felony or a



        9
        Other portions of our opinion reflect the content of the reasonable suspicion/Article 14.03
complaint made before the court of appeals.
                                                                                             YORK — 8

violation of Chapter 42 of the Penal Code.10 The court concluded that Officer Johnson had

reasonable suspicion to believe that appellant was committing a burglary.11 The court also concluded

that appellant parked his vehicle on a sidewalk in violation of Penal Code §42.03.12

        Relying upon our decision in Murphy, the court of appeals held that collateral estoppel

applies only to a previously litigated fact that constitutes an essential element of the offense in the

second prosecution.13 Consequently, the court concluded that principles of collateral estoppel did

not preclude the State from proving the legality of appellant’s detention and arrest because that issue

did not constitute an element of the offense of possession of methamphetamine.14

                                            II. ANALYSIS

                             A. Legality of Officer Johnson’s Conduct

                                      1. Appellant’s Contentions

        In his first ground for review, appellant complains that Officer Johnson’s discovery of the

methamphetamine was the product of an illegal detention. Appellant argues that a detention was

created by Officer Johnson’s act of blocking in appellant’s car, his request that appellant exit the

vehicle, and appellant’s compliance with that request. Appellant further argues that Officer Johnson

was outside of his jurisdiction, and as a result, his authority to detain depended upon reasonable


        10
          York v. State, No. 12-08-00106-CR, slip op. at 6 (Tex. App.–Tyler December 16, 2009)
(not designated for publication).
        11
             Id. at 5-6.
        12
           Id. at 6; see TEX . PENAL CODE §42.03(a)(1) (“A person commits an offense if, without
legal privilege or authority, he intentionally, knowingly or recklessly . . . obstructs a . . . sidewalk”).
        13
             York, No. 12-08-00106-CR, slip op. at 7 (citing Murphy, 239 S.W.3d at 795).
        14
             Id.
                                                                                          YORK — 9

suspicion to believe that an offense had been committed in his presence.15 Appellant contends that

Officer Johnson did not have reasonable suspicion to believe that he had observed appellant

committing burglary, DWI, public intoxication, obstruction of a sidewalk, or criminal trespass.

                                           2. Article 14.03

        We will assume without deciding that appellant is correct that an investigative detention

began when he complied with the officer’s request to exit his vehicle.16 And we will assume,

without deciding, that the term “arrest” in the relevant provisions of Article 14.03 includes

investigative detentions.17


        15
       Appellant also contends that Officer Johnson lacked reasonable suspicion under Fourth
Amendment standards, but as will become clear later, we need not address this contention.
       16
           In Garcia-Cantu v. State, we determined that the trial court’s finding that a detention had
occurred was supported by the convergence of a number of factors, including: the “boxing in” of the
defendant’s vehicle, the use of a spotlight, the early morning hour in which the conduct occurred,
the use of an authoritative tone of voice, shining a flashlight across the defendant’s eyes, and asking
for identification. 253 S.W.3d 236, 247-48, 250 (Tex. Crim. App. 2008). No spotlight was used in
the present case, and the district court was free to determine that the officer’s voice was not
authoritative.
         Of course, the defendant in Garcia-Cantu was also awake, which was not true in the present
case when Officer Johnson first approached the car. In G.M. v. State, the Supreme Court of Florida
held that a person is not seized if he is unaware of the police conduct that would constitute an
assertion of authority. 19 So. 3d 973, 983 (Fla. 2009). In that case, the defendant had not observed
that a police car’s flashing lights had been activated and became aware of police presence only after
an officer identified himself and ordered the defendant to spit out the marijuana. Id. In arriving at
its conclusion, the court cited “rare” and unpublished decisions from other courts that found no
seizure when the defendant was unconscious or asleep, including one decision finding no seizure
when the police blocked in a defendant’s car. Id. at 982 n.6. This holding seems consistent with
Supreme Court caselaw that the occurrence of a detention depends upon a suspect’s reasonable
perception of restraint and submission to a show of authority. See Brendlin v. California, 551 U.S.
249 (2007) (“[T]here is no seizure without actual submission” and the test is whether “a reasonable
person would have believed that he was not free to leave” or whether “a reasonable person would
feel free to decline the officers’ requests or otherwise terminate the encounter.”).
       17
           By its terms, Article 14.03 applies to “arrests,” but with respect to a different part of the
statute, we have held that “arrest” includes “detention.” State v. Kurtz, 152 S.W.3d 72, 79-80 (Tex.
                                                                                         YORK — 10

       As a city police officer, Officer Johnson was a peace officer as defined by Article 2.12(3).18

The controlling provision with respect to that type of peace officer is Article 14.03(g)(2), which

provides:

       A peace officer listed in Subdivision (3), Article 2.12, who is licensed under Chapter
       1701, Occupations Code, and is outside of the officer’s jurisdiction may arrest
       without a warrant a person who commits any offense within the officer’s presence
       or view, except that an officer described in this subdivision who is outside of that
       officer’s jurisdiction may arrest a person for a violation of Subtitle C, Title 7,
       Transportation Code, only if the offense is committed in the county or counties in
       which the municipality employing the peace officer is located.19

Officer Johnson had state-wide authority to arrest for any non-traffic offense committed within his

presence or view. Moreover, within Smith County—where the City of Bullard is located—Officer

Johnson’s authority to arrest for offenses committed within his presence or view extended to traffic

offenses as well.20 Consequently, because the Exxon station was located in Smith County, Officer

Johnson had the authority to arrest (and thus conduct an investigative detention) for any offense

committed within his presence or view.21 The question, then, is whether Officer Johnson had the



Crim. App. 2004).
       18
           TEX . CODE CRIM . PROC. art. 2.12(3) (peace officers include “police officers of an
incorporated city, town, or village”).
       19
            Id., art.14.03(g)(2).
       20
            At the time we decided Kurtz, a city police officer did not have the authority to arrest for
a traffic offense committed in his presence or view but outside of his jurisdiction. See Kurtz, 152
S.W.3d at 79-80 (quoting from then existing version of Article 14.03(g)). Authority to arrest within
the city police officer’s county was added by amendment in 2005. Acts 2005, 79th Leg., Ch. 1015,
§1, eff. Sept. 1, 2005.
       21
          Appellant did not have a driver’s license in his possession and his vehicle was parked on
a sidewalk, but it is not clear that either of these facts constituted a crime committed in Officer
Johnson’s presence. An operator of a motor vehicle must have a driver’s license in his possession
while operating a motor vehicle on a highway. See TEX . TRANSP . CODE §§521.021 & 521.025(a)(1).
                                                                                         YORK — 11

requisite level of suspicion that such an offense was being or had been committed.

         Investigative detentions are generally governed by the reasonable suspicion standard.22 Under

the Fourth Amendment, “reasonable suspicion” exists when an officer is aware of “specific

articulable facts that, when combined with rational inferences from those facts, would lead him to

reasonably suspect that a particular person has engaged or is (or soon will be) engaging in criminal

activity.”23 This standard is objective; the subjective intent of the officer conducting the detention

is irrelevant.24 In addition, reasonable suspicion does not depend on the “most likely explanation”

for a suspect’s conduct, and reasonable suspicion can exist even if the conduct is “as consistent with

innocent activity as with criminal activity.”25 The standard is logically the same in an article

14.03(g) context, except that the officer’s reasonable suspicion must be limited to whether the

suspect is committing, or had committed, an offense in the officer’s presence or view.26



An operator of a motor vehicle may not stop, stand, or park the vehicle on a “sidewalk,” Id.,
§545.302(a)(2), but a “sidewalk” is defined in part for this purpose as “the portion of a street that is
. . . between a curb or lateral line of a roadway and the adjacent property line.” Id., §541.302(16).
Because we do not address the Court of Appeals’s reliance upon the obstructing-a-sidewalk
provision found in Penal Code §42.03, we need not determine whether “sidewalk” in that statute has
a meaning different from the definition found in the Transportation Code.
         22
           United States v. Sokolow, 490 U.S. 1, 7 (1989); Terry v. Ohio, 392 U.S. 1, 30 (1968);
Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010).
         23
              Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001); see also Crain, 315 S.W.3d
at 52.
         24
              Garcia, 43 S.W.3d at 530.
         25
        Curtis v. State, 238 S.W.3d 376, 378-79 (Tex. Crim. App. 2007); see also Woods v. State,
956 S.W.2d 33, 38-39 (Tex. Crim. App. 1997).
         26
           See Stull v. State, 772 S.W.2d 449, 452 (Tex. Crim. App. 1989) (this Court has upheld
arrests under Article 14.01, which required commission of offense in an officer’s presence, “when
the police officers personally observed behavior that although not overtly criminal, was, when
                                                                                           YORK — 12

                                        3. Public Intoxication

        A person commits the offense of public intoxication if he “appears in a public place while

intoxicated to the degree that the person may endanger the person or another.”27 “Public place”

means “any place to which the public or a substantial group of the public has access and includes,

but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment

houses, office buildings, transport facilities, and shops.”28 A gas station is a shop, and it and the area

around it are places to which the public has access.29 We hold that the parking and sidewalk area

outside the Exxon station was a public place.

        The next question is whether Officer Johnson had reasonable suspicion to believe that

appellant was intoxicated to the degree that he might endanger himself or another. Before appellant

was awakened, Officer Johnson knew that: (1) it was around 3:00 a.m., (2) appellant was asleep in

his car, (3) the car’s engine was running, (4) the car was parked partially on the sidewalk very near




coupled with the officers’ prior knowledge, sufficient to establish probable cause that an offense was
then occurring”); Lunde v. State, 736 S.W.2d 665, 666-67 (Tex. Crim. App. 1987) (observing this
Court’s past rejection of sufficiency-of-the-evidence standard for determining when offense is
committed in presence under Article 14.01—instead employing probable cause standard traditionally
associated with arrests); Delgado v. State, 718 S.W.2d 718, 720-21 (Tex. Crim. App. 1986)
(commission of crime within presence requirement of Article 14.01 satisfied when officer had
probable cause to believe crime was being committed in his presence but it was later determined that
officer was incorrect); see also McGee v. State, 105 S.W.3d 609, 614 (Tex. Crim. App. 2003)
(following Stull and Lunde).
        27
             TEX . PENAL CODE §49.02(a).
        28
             Id., 1.07(40).
        29
            One court of appeals has held specifically that the parking lot of a convenience store is
a public place. Gonzalez v. State, 664 S.W.2d 797, (Tex. App.–Corpus Christi 1984), rev’d on other
grounds in unpublished disposition, aff’ing as modified on remand, 683 S.W.2d 791 (Tex. App.
Corpus Christi 1984).
                                                                                       YORK — 13

the door to the store, and (5) the headlights were on.

       The circumstances in the present case were sufficient to give rise to a reasonable suspicion

that would permit an investigative detention. From the circumstances present here, Officer Johnson

could reasonably suspect that appellant was intoxicated. And with the engine running, an intoxicated

driver might have awakened, and in his stupor, driven into the store. Or he might have returned to

the road, where he would pose a threat to others who were traveling.30 It would be reasonable to

suspect that appellant posed a danger to himself or others.31

       Although Officer Johnson did not smell alcohol as he approached the car, that fact did not

cause reasonable suspicion to dissipate, in part because appellant could still have been intoxicated


       30
           Being asleep with the engine running has been held to be an indication that a person had
operated his car earlier. See Denton v. State, 911 S.W.2d 388, 389-90 (Tex. Crim. App. 1995) (a
person “operates” a motor vehicle for purposes of DWI when he takes “action to affect the
functioning of his vehicle in a manner that would enable the vehicle’s use,” such as starting the
ignition and revving the accelerator).
       31
           Appellant cites several cases as buttressing his contention that Officer Johnson did not
have reasonable suspicion to believe that appellant was committing the offense of DWI or public
intoxication. Only one of those cases—State v. Griffey, 241 S.W.3d 700 (Tex. App.–Austin 2007,
pet. ref’d)—involves a sleeping suspect. In Griffey, a manager at a Whataburger restaurant called
the police at around 3:00 a.m. to report a person “passed out behind the wheel in the drivethrough.”
Id. at 702. Police found the suspect awake in her car, which was next to the drivethrough window.
Id. The trial court suppressed evidence from the stop, id. at 703, and the court of appeals affirmed.
Id. at 707. The court of appeals found that the officer lacked reasonable suspicion because the
citizen-informant tip was not corroborated, and was actually contradicted by the fact that the suspect
was awake when the officer arrived. Id.
         As a lower appellate court decision, Griffey is not binding on us. In any event, Griffey is
distinguishable because it dealt with the reliability of the information that the suspect was asleep.
In the present case, Officer Johnson personally observed the suspect sleeping.
         The Supreme Court of Colorado has stated, “Reasonable suspicion to make a stop for the
crime of driving under the influence may arise when a police officer sees a person asleep behind the
wheel of a car with its engine running.” People v. Brown, 217 P.3d 1252, 1256 (Colo. 2009). The
Supreme Court of Louisiana has held those facts, combined with the early morning hour and the
presence of the vehicle in the French Quarter of New Orleans, to be sufficient reasonable suspicion
to make an investigatory stop. State v. Keller, 403 So. 2d 693, 696 (La. 1981).
                                                                                      YORK — 14

by drugs.32 Nothing else occurred that would have negated reasonable suspicion before Officer

Johnson found the drugs on appellant’s person. To the contrary, the fact that appellant did not have

his driver’s license with him and was confused about his location served to reinforce a reasonable

suspicion of intoxication.

                                            4. Burglary

        Even before he parked behind appellant’s car, there was reasonable suspicion to believe that

a burglary was occurring. Officer Johnson knew that the Exxon station was closed, that the station

had been burglarized before, that it was about 3:00 a.m., that the headlights of appellant’s car were

shining into the store, and that appellant was parked too close to the store door (on the sidewalk).

These facts were sufficient for Officer Johnson to reasonably suspect that a burglary might be

occurring and to justify an investigation. When the officer approached the car on foot, he learned

that the engine was running, which would be consistent with it being a getaway car.

       Appellant contends that, even if Officer Johnson initially had reasonable suspicion to

investigate a possible burglary, that suspicion was later dispelled, and once the suspicion was

dispelled, he should have ended the detention. But even if appellant’s sleeping and subsequent

events had dispelled any reasonable suspicion that appellant was participating in a burglary, by that

time there was reasonable suspicion that he was guilty of public intoxication, as discussed above.

We overrule appellant’s first ground for review.




       32
         See TEX . PENAL CODE §49.01(2)(A). (The definition of “intoxicated” includes “not having
the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled
substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other
substance into the body.”)
                                                                                         YORK — 15

                                      B. Collateral Estoppel33

                                              1. Murphy

        The courts below relied upon our opinion in Murphy to resolve appellant’s collateral-estoppel

claim. For reasons that will become apparent, we shall examine the line of cases that led up to our

opinion in Murphy and reexamine our holding in that case.

        Murphy was stopped for speeding, and the stop resulted in the discovery of drugs and drug

paraphernalia.34 Murphy was first prosecuted in a justice-of-the-peace court for possession of drug

paraphernalia.35 He was acquitted during a bench trial at which the State failed to produce evidence

of speeding, and as a result, failed to establish the validity of the stop.36 He was later prosecuted in

district court for possession of a controlled substance.37 Alleging collateral estoppel, Murphy filed

a motion to suppress and a motion to dismiss the indictment.38 These motions were denied, and he

was ultimately convicted.39 We characterized Murphy’s claim before the court of appeals as being

whether the legality of the detention was litigated in the justice court.40


       33
          Appellant specifically relies upon the doctrine of collateral estoppel as articulated in Ashe
v. Swenson, 397 U.S. 436 (1970), which construed the doctrine as it was incorporated within the
Double Jeopardy Clause of the Fifth Amendment. Any argument based upon a notion of collateral
estoppel outside the double-jeopardy context is outside the scope of this opinion.
        34
             Murphy, 239 S.W.3d at 792.
        35
             Id. at 793.
        36
             Id.
        37
             Id.
        38
             Id.
        39
             Id.
        40
             Id. at 794.
                                                                                          YORK — 16

       In Murphy, we held that the collateral-estoppel inquiry involved a two-part analysis: (1)

determining exactly what facts were necessarily decided in the first proceeding, and (2) determining

whether those necessarily decided facts constitute essential elements of the offense in the second

trial.41 We said that this analysis applied “[t]o determine whether collateral estoppel bars a

subsequent prosecution or permits the prosecution but bars relitigation of certain specific facts.”42

       To support this proposition, we cited to our earlier decision in Ex parte Taylor and to the

Fifth Circuit case of Neal v. Cain.43 We also provided a “see also” citation to United States v.

Larkin.44 Relying upon Neaves v. State,45 the concurring opinion in Murphy explained that probable

cause to stop the defendant was not the same issue as guilt of possessing the controlled substance.46

       At various stages of the proceedings, appellant has articulated three bases for distinguishing

this case from Murphy: (1) the present case involves specific fact findings, while Murphy involved

only legal conclusions, (2) the validity of the police officer’s conduct was an element of the offense

in appellant’s earlier prosecution, but that was not true of the defendant in Murphy, and (3) appellant

claims merely that certain evidentiary facts cannot be relitigated, while Murphy dealt with whether

the earlier acquittal necessarily barred the entire prosecution in the subsequent case.




       41
            Id. at 795.
       42
            Id.
       43
          Id. at 795 (citing Ex parte Taylor, 101 S.W.3d 434 (Tex. Crim. App. 2002) and Neal v.
Cain, 141 F.3d 207 (5th Cir. 1998)).
       44
            Id. at 796 (citing United States v. Larkin, 605 F.2d 1360, 1361 (5th Cir. 1979)).
       45
            767 S.W.2d 784 (Tex. Crim. App. 1989).
       46
            Murphy, 239 S.W.3d at 797 (Meyers, J., concurring).
                                                                                           YORK — 17

        We need not address appellant’s first articulated basis for distinguishing Murphy—that the

present case involves factual rather than legal issues. We will assume, without deciding, that

appellant has satisfied any requirement that the prior prosecution resolved a question of fact, and we

otherwise decline to address the matter.47

        The second basis presents a real difference between the present case and Murphy. The

validity of Murphy’s detention was not an element of the offense in his first prosecution. But the

validity of appellant’s detention was an element of the offense in appellant’s first prosecution.48

        Under the analysis articulated in Murphy, all that matters is an issue’s status in the

subsequent prosecution. The fact that an issue may have been an “essential element” in the earlier

prosecution does not appear to be relevant. Nevertheless, the Murphy court was not presented with

a situation in which an issue was an essential element in the earlier prosecution; whether the Murphy



        47
           In her concurring opinion, Judge Cochran concludes that the issues resolved in appellant’s
favor in the first prosecution were legal issues and that legal issues are not subject to collateral
estoppel. But the court of appeals did not resolve appellant’s claim on this basis; it relied solely on
Murphy.
         Also, whether Judge Cochran’s basis for resolving this case is correct can be questioned on
two levels. First, it is arguable that the trial court in the first prosecution did make a relevant factual
finding when it characterized the officer as “not testifying to any articulable facts as to how he thinks
the offense might have been committed.” Second, there may be a question about whether an issue
of law can be the subject of collateral estoppel. See Bobby v. Bies, 129 S. Ct. 2145, 2152 (2009)
(Double Jeopardy case in which the Supreme Court defined collateral estoppel in this way: “Issue
preclusion bars successive litigation of ‘an issue of fact or law’ that ‘is actually litigated and
determined by a valid and final judgment, and . . . is essential to the judgment.’”) (quoting
RESTATEMENT (SECOND ) OF JUDGMENTS § 27 (1980) (ellipsis in Bies); RESTATEMENT (SECOND ) OF
JUDGMENTS §§ 27(referring to issue preclusion as applying to “an issue of fact or law”), 28(2)
(listing exceptions to the preclusive effect of a prior determination of an issue of law). See also
Womack, J., concurring, post, at 2 (stating that issue preclusion can prohibit a party from relitigating
an issue “such as a fact, a question of law, or an application of law to fact”).
         We express no opinion on the question Judge Cochran’s concurrence raises.
        48
             See TEX . PENAL CODE §38.02(b)(1), (2).
                                                                                         YORK — 18

analysis governs such a case depends upon the rationale underlying Murphy’s holding.

        That observation leads us to the third proposed basis for distinguishing Murphy: that Murphy

dealt only with a claim that the entire second prosecution was barred. Appellant does not claim that

collateral estoppel bars the subsequent prosecution in his case; his claim is only that collateral

estoppel resolves certain evidentiary facts in his favor and thereby requires the granting of his motion

to suppress.49

        It is understandable that appellant would think that Murphy dealt with a bar to prosecution

rather than a bar to the relitigation of certain facts. Murphy had filed both a motion to dismiss and

a motion to suppress, and our opinion did not specifically focus on which of those motions we were

concerned with.50 A review of the court of appeals’s opinion in Murphy makes it clear, however,

that the defendant was basing his appeal solely on the motion to suppress.51 Murphy concerned the

relitigation of certain facts.

        But appellant’s misperception is also understandable because the Fifth Circuit case relied

upon in Murphy deals with a bar to prosecution rather than a bar to relitigation of certain issues.

In Neal, the Fifth Circuit said, “In determining whether collateral estoppel bars a subsequent

prosecution, as Neal contends it does here, we engage in a two-step analysis,” with the second step

being to determine whether the issues in question constitute essential elements of the offense in the




        49
          The practical effect of granting the motion to suppress may be to derail appellant’s
prosecution, but that is not the same as barring the prosecution from the outset.
        50
             See Murphy, 239 S.W.3d at 793-94.
        51
             Murphy v. State, 200 S.W.3d 753, 757 (Tex. App.–Texarkana 2006).
                                                                                        YORK — 19

second trial.52 So Neal stood only for the proposition that an issue must involve an essential element

in the second prosecution in order for that issue to be used as a basis for barring prosecution

altogether.53 Neal did not address what requirements apply when a defendant claims only that the

State may not relitigate certain underlying facts. We must look elsewhere to decide whether the

essential-element-in-the-subsequent-prosecution requirement applies when the defendant seeks only

to bar the proof of certain facts.

        Appellant’s attempted distinction also conflicts with Murphy’s own pronouncement that its

analysis applies to determine whether collateral estoppel “bars a subsequent prosecution or permits

the prosecution but bars relitigation of certain specific facts.”54

        As explained above, Murphy relied on Taylor for this proposition. Taylor did say that the

essential-element-in-the-subsequent-prosecution requirement applies to a claim that collateral

estoppel “bars the relitigation of certain facts.”55 But this language was itself dicta, because Taylor

involved a claim that the prosecution was entirely barred.56 The Taylor court relied upon Neal and



        52
          141 F.3d at 210 (emphasis added). For the two-step analysis, Neal cited United States v.
Brackett, 113 F.3d 1396 (5th Cir. 1997), but, as will be discussed later, Brackett avoided the issue
of whether the analysis applied when the defendant seeks only to bar the proof of certain facts. See
Brackett, 113 F.3d at 1401 n.9.
        53
           See Simon v. Commonwealth, 220 Va. 412, 416, 258 S.E.2d 567, 570 (1979) (“Courts are
in general agreement that in order to bar a subsequent prosecution for a different offense arising out
of the same transaction, a necessary element of the offense in the second trial must have been clearly
adjudicated in the earlier proceedings.”) (emphasis in original).
        54
             See Murphy, 239 S.W.3d at 795 (emphasis added).
        55
             Taylor, 101 S.W.3d at 440.
        56
          Id. at 439, 442-43 (Intoxication was an element of the offenses in both the first and second
prosecutions. Acquittal in the first prosecution created a collateral estoppel bar to the second.).
                                                                                       YORK — 20

Dedrick v. State57 as authority for the proposition.58 And Dedrick quoted from United States v.

Mock.59 None of these cases support the dicta in Taylor.60

       Neal has already been discussed. Dedrick’s quotation from Mock is actually contrary to

Taylor’s dicta. We quoted Mock as saying that facts established in the first prosecution may not be

relitigated in a second prosecution “either as ultimate or as evidentiary facts.”61 In support of this

statement, Mock cited the Fifth Circuit decisions in Wingate and Blackburn,62 two cases that were

relied upon by defense counsel at trial in the present case.63

       In Wingate, the State introduced extraneous offenses of which the defendant had previously

been acquitted.64 The court construed the collateral-estoppel protection articulated in Ashe, in which



       57
            623 S.W.2d 332 (Tex. Crim. App. 1981).
       58
            Taylor, 101 S.W.3d at 440 n.17.
       59
            623 S.W.2d at 336 (quoting United States v. Mock, 604 F.2d 341 (5th Cir. 1979)).
       60
            Taylor’s dicta would be consistent with these cases if the phrase “permits prosecution but
bars the relitigation of certain facts” were construed only to describe situations in which an offense
contains alternate elements, see e.g., Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Cr. App. 1991)
(capital murder by murder in the course of robbery or aggravated sexual assault), and the previously
litigated fact involves one or more, but not all, of the alternate elements. As narrowly construed,
Taylor would simply be saying that the essential-element-in-the-subsequent-prosecution requirement
applies when the defendant is claiming to bar proof of an element of the offense, whether that
element is a sole element (ending prosecution) or an alternate element (narrowing the State’s theories
of liability). But Murphy did not have such a narrow understanding of Taylor’s dicta, and as will
be seen below, the Fifth Circuit decisions that addressed the issue of barring the relitigation of
certain facts took a broad view about what kinds of facts were being discussed.
       61
            Dedrick, 623 S.W.2d at 336 (emphasis added) (quoting Mock, 604 F.2d at 343).
       62
            See Dedrick, 623 S.W.2d at 336 (quoting Mock, 604 F.2d at 343).
       63
            See this opinion, footnote 7.
       64
            Wingate, 464 F.2d at 210.
                                                                                       YORK — 21

the Supreme Court described collateral estoppel as the rule 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.”65 The Wingate court stated that it did not perceive any

meaningful difference, for double-jeopardy purposes, between prohibiting relitigation of an issue that

“is one of ‘ultimate’ fact or merely an ‘evidentiary’ fact in the second prosecution.”66 The Fifth

Circuit held that, although the prosecution itself was not barred, because no part of the charged

offense had been previously litigated, the State was barred from introducing evidence of the

extraneous offenses for which the defendant had been acquitted.67 In Blackburn, the Fifth Circuit

explained that, in Wingate, “this Circuit significantly expanded the Ashe holding.”68 After Wingate,

the court said, “there is no difference between relitigating an ultimate fact or an evidentiary fact;

relitigation of either is prohibited.”69

        Finally, with respect to Murphy’s reliance upon Larkin for the proposition that “[w]hile there

is no bright-line or black-letter law that can resolve the issue of when collateral estoppel applies,

collateral estoppel is inapplicable in this case,”70 an examination of Larkin reveals that it supports

only the first half of this statement. The Larkin court referred to “arcane principles of double




        65
             See Id. at 212 (quoting Ashe, 397 U.S. at 443).
        66
             464 F.2d at 213.
        67
             Id. at 214.
        68
             510 F.2d at 1017.
        69
             Id.
        70
             Murphy, 239 S.W.3d at 795.
                                                                                         YORK — 22

jeopardy and collateral estoppel” that are “not susceptible of bright-letter law or black-letter law,”71

but the case did not involve the situation confronted in Murphy or that we confront today.72

        Neaves provides no real support for the holding in Murphy either. In Neaves, the defendant

obtained a negative finding in an administrative license-suspension hearing “upon the question

whether probable cause existed that [the defendant] had been driving while intoxicated.”73 In his

subsequent DWI prosecution, the defendant contended that the finding in the license-suspension

proceeding “estopped the State from attempting to establish in the instant trial that [the defendant]

had been driving while intoxicated.”74 We pointed out that the parties assumed that the ultimate

facts in the two proceedings were the same: that probable cause to believe DWI had been committed

(the ultimate fact in the license-suspension hearing) was the same ultimate fact as the actual

commission of DWI (the ultimate fact in the criminal trial).75 We held that this assumption was

incorrect.76 Because the defendant argued that the State was barred completely from proving the

commission of DWI, this Court never had occasion to address whether the prior finding in the

administrative license-suspension hearing could have been used to bar relitigation of issues raised

in a motion to suppress.77

        71
             605 F.2d at 1361.
        72
             Id., passim.
        73
             767 S.W.2d at 785.
        74
             Id.
        75
             Id. at 786.
        76
             Id. at 786-87.
       77
          A decade after Neaves, we decided that a finding in an administrative license-suspension
hearing does not even “implicate the rule of collateral estoppel as embodied in the Fifth Amendment
                                                                                          YORK — 23

        Furthermore, since our holding in Murphy, the Supreme Court has cited §27 of the

Restatement (Second) of Judgments in two recent double-jeopardy/collateral-estoppel cases.78 As

we will explain in more detail later, comment j of that portion of the Restatement challenges the

notion that collateral estoppel involves only the ultimate issues in a case.79 For these various reasons,

we will reexamine the question of when collateral estoppel bars relitigation of certain facts in a

subsequent prosecution.80

                             3. Ultimate Issue in the First Prosecution?

        As we have already noted, the validity of a detention or arrest was an element of the failure-

to-identify offense with which appellant was previously charged.81 As an element, it must be proven

beyond a reasonable doubt.82 In a motion to suppress setting, however, the propriety of an arrest or

detention need not be proven beyond a reasonable doubt.83 We do not often say what standard


guarantee against double jeopardy” because neither the successive-prosecution nor the multiple-
punishment aspects of double jeopardy are at issue. Reynolds v. State, 4 S.W.3d 13, 18-20 (Tex.
Crim. App. 1999).
        78
             Bies, 129 S. Ct. at 2152; Yeager v. United States, 129 S. Ct. 2360, 2367 n.4 (2009).
       79
             See RESTATEMENT (SECOND ) OF JUDGMENTS §27 cmt. j (1982).
        80
         Judge Womack’s concurrence contends that Murphy and Taylor read Neal v. Cain too
broadly. Womack, J., concurring, post, at 6-9. We agree, which is one reason we have chosen to
re-examine the matter.
        81
             TEX . PENAL CODE § 38.02(b).
        82
          TEX . PENAL CODE § 2.01 (“All persons are presumed to be innocent and no person may
be convicted of an offense unless each element of the offense is proved beyond a reasonable
doubt.”).
        83
           See Lalande v. State, 676 S.W.2d 115, 117-18, 117 n.4 (Tex. Crim. App. 1984) (State is
not required to prove propriety of a search beyond a reasonable doubt in a motion to suppress
hearing.); see also Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007) (recognizing that
“the burden is on the State to show that the officer had reasonable suspicion” but not specifying the
                                                                                         YORK — 24

applies in a motion-to-suppress setting, and we are unaware of any cases explicitly stating the State’s

standard of proof in establishing reasonable suspicion,84 but we conclude that the appropriate

standard is the one that applies to most85 constitutional suppression issues: preponderance of the

evidence.86

        In Dowling v. United States, the Supreme Court explained that collateral estoppel does not

bar relitigation of an issue resolved by a prior acquittal when, in the subsequent proceeding, the issue

is governed by a lower standard of proof.87 This holding defeats any attempt in the present case to

use the detention issue’s elemental status in the first prosecution as a basis for collateral estoppel.

The State’s failure to prove the validity of appellant’s arrest or detention beyond a reasonable doubt

(as an element of the failure-to-identify offense) does not result in a collateral-estoppel bar to

determining the validity of that arrest or detention by a preponderance of the evidence in a



nature of that burden).
        84
             See e.g., Castro, 227 S.W.3d at 741.
       85
         In at least one instance—the voluntariness of consent—the burden of proof is “clear and
convincing evidence.” State v. Ibarra, 953 S.W.2d 242 (Tex. Crim. App. 1997); Lalande, 676
S.W.2d at 117 n.4.
       86
           See Lego v. Twomey, 404 U.S. 477, 488-89 (1972) (In a case involving the voluntariness
of a confession, the Court stated that preponderance of the evidence is the standard employed by
federal courts “in Fourth and Fifth Amendment suppression hearings.”); Griffin v. State, 765 S.W.2d
422, 429-30 (Tex. Crim. App. 1989) (citing Lego in adopting preponderance of the evidence
standard in determining the voluntariness of a confession). The use of a preponderance of the
evidence standard at trial to determine the existence of “reasonable suspicion” should not be
confused with the “reasonable suspicion” standard that itself governs the police officer’s conduct in
the field. Reasonable suspicion that a crime is, has been, or soon will be committed is a standard
far short of preponderance of the evidence. Baldwin v. State, 278 S.W.3d 367, 371 (Tex. Crim. App.
2009) (“reasonable suspicion” is less than “probable cause,” which in turn is far short of
preponderance of the evidence).
        87
             493 U.S. 342, 348-49 (1990).
                                                                                           YORK — 25

subsequent suppression hearing.88 To prevail on his collateral-estoppel claim, then, appellant must

rely upon the detention issue’s status in the earlier prosecution as a suppression issue, governed by

the preponderance of the evidence standard.

        Complicating such reliance is the fact that the court in the failure-to-identify prosecution

erred in addressing the detention issue as a suppression issue. In Woods v. State, we held that, when

the validity of an arrest or detention is an element of the charged offense, litigating the validity of

the seizure as a suppression issue is inappropriate.89 Instead, the issue should simply be litigated as

part of the State’s case at trial.90

        And Woods is not satisfied by litigating the validity of a seizure during the trial, if it is still

litigated as a suppression issue. The trial judge’s role with respect to elements of the offense and

suppression issues differs significantly when the trial judge is not the finder of fact on the question

of guilt. With respect to suppression issues, the trial judge is always the “sole trier of fact and judge

of the credibility of the witnesses and the weight to be given to their testimony.”91 And with respect




        88
           Had the issue of guilt in the controlled-substance trial been contested and submitted to the
jury, and had the jury been given an instruction on the suppression issue under article 38.23, the
State’s burden before the jury would have been “beyond a reasonable doubt.” See TEX . CODE CRIM .
PROC. art. 38.23(a) (“the jury shall be instructed that if it believes, or has a reasonable doubt, that the
evidence was obtained in violation of the provisions of this article . . . .”). Even with a contested jury
trial on guilt, however, appellant would still have been required to show “a genuine dispute about
a material fact” before he would be entitled to an instruction. See id. (“In any case where the legal
evidence raises an issue hereunder . . . .”); Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim.
App. 2008).
        89
             153 S.W.3d 413, 415 (Tex. Crim. App. 2005) (construing TEX . PENAL CODE § 38.04).
        90
             Id.
        91
             Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007).
                                                                                           YORK — 26
to such issues, he can draw rational inferences in favor of either party.92 By contrast, when the trial

judge is not the finder of fact on the question of guilt, he can direct a verdict in the defendant’s favor

only if “after viewing the evidence in the light most favorable to the prosecution,” he cannot

conclude that “any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.”93

        Appellant’s trial in the failure-to-identify case was to a jury. Even if we assume that the trial

judge in that case believed all of Officer Johnson’s testimony (because he commented that Officer

Johnson had done nothing wrong), the judge could still have drawn inferences against the State in

resolving the motion to suppress. In doing so, he would have infringed on the jury’s role in resolving

the question of guilt.94

        It is axiomatic that even an erroneous acquittal counts as an acquittal for double-jeopardy



        92
           Roy v. State, 90 S.W.3d 720, 723 (Tex. Crim. App. 2002) (“An appellate court reviewing
a trial court’s ruling on a motion to suppress must view the record evidence and all reasonable
inferences therefrom in the light most favorable to the trial court's ruling.”).
        93
          Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original) (sufficiency of the
evidence standard); McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (motion for
directed verdict is construed as a challenge to the sufficiency of the evidence).
        94
            If, in addition to assuming that the judge believed all of Officer Johnson’s testimony, we
further assumed that the judge drew all inferences in the prosecution’s favor, then appellant’s
collateral-estoppel claim would fail, under any understanding of collateral estoppel, because the issue
on which appellant seeks preclusion would not be essential to the judgment: To acquit the defendant
in the failure-to-identify prosecution, it is not necessary for the trial judge to conclude that the State
failed to prove the legality of the seizure by a preponderance of the evidence; it is only necessary to
conclude that the State failed to do so beyond a reasonable doubt. See RESTATEMENT OF
JUDGMENTS § 68 (preclusive effect accorded only to a prior determination that is “essential to the
judgment”); RESTATEMENT (SECOND ) OF JUDGMENTS §27 (same). However, if the trial judge had
in fact viewed the entire record (including inferences) in the State’s favor, and still believed that the
State failed to prove the validity of the seizure, he could have granted appellant’s motion for directed
verdict without granting the motion to suppress (or independent of the motion to suppress).
                                                                                           YORK — 27
purposes,95 and one Supreme Court case suggests this is true even in the context of collateral

estoppel.96 Nevertheless, a distinction could possibly be made between giving preclusive effect to

ultimate issues resolved by an acquittal that was wrongly procured and giving preclusive effect to

an evidentiary issue that should never have been litigated in the first place. Assuming, without

deciding, that such a distinction does not, by itself, defeat appellant’s claim in the present case,97 we

consider the continuing validity of the proposition that collateral estoppel applies only when the issue

in question constitutes an essential element in the subsequent prosecution.

                           4. Ultimate Issue in the Second Prosecution?

                                                 a. Ashe

        The Supreme Court’s formulation of collateral estoppel in Ashe, by including a reference to

“an issue of ultimate fact,” in itself suggests that the issue upon which preclusion is sought should

be an ultimate issue in at least one (and perhaps both) of the prosecutions. In Ashe, the issue


        95
          Moreno v. State, 294 S.W.3d 594, 600 (Tex. Crim. App. 2009) (relying upon Fong Foo
v. United States, 369 U.S. 141 (1962)).
        96
           See Sanabria v. United States, 437 U.S. 54, 72-73, 77-78 (1978); id. at 72-73 (Acquittal
for insufficient proof of the element that the defendant was connected to a particular gambling
business would bar prosecution for any crime which shared that element.); id. at 77-78 (Judgment
of acquittal in which Government’s evidence was erroneously excluded “is final and unreviewable”
and “absolutely bars a second trial.”).
        97
            We note that the prosecutor in the failure-to-identify prosecution did not object to the trial
court considering appellant’s motion to suppress and did not draw the trial court’s attention to
Woods. We need not decide whether the failure to object at that stage has procedural default
consequences for the State in a subsequent prosecution. See State v. Mercado, 972 S.W.2d 75, 77-78
(Tex. Crim. App. 1998) (notions of procedural default apply to the State); Ex parte Granger, 850
S.W.2d 513 (Tex. Crim. App. 1993) (distinguishing prior case of Stephens v. State, 806 S.W.2d 812
(Tex. Crim. App. 1990) on the basis that the State in Stephens was barred from prosecuting a lesser-
included offense in a subsequent trial after acquittal for the greater offense on appeal on legal
insufficiency grounds when a lesser-included-offense instruction had not been submitted in the
earlier trial, and the State had failed to request one).
                                                                                       YORK — 28
(identity) was “ultimate” in both prosecutions. The defendant was prosecuted for robbing one of six

individuals at a poker game and was acquitted.98 The State then prosecuted the defendant for

robbing a second individual at the game.99 But the only rationally conceivable issue in dispute in the

first prosecution was whether the defendant was one of the robbers.100 Because the jury, by its

verdict, found that ultimate issue in the defendant’s favor, collateral estoppel barred the subsequent

prosecution for robbing a second individual at that same game.101

       The Ashe court also explained that collateral estoppel, though originally developed in civil

litigation, had been a rule in criminal cases for over fifty years.102 Notably, the Supreme Court

suggested that collateral estoppel might be at least as protective in criminal cases as in civil cases

when it quoted Justice Holmes’s statement that, “It cannot be that the safeguards of the person, so

often and so rightly mentioned with solemn reverence are less than those that protect from a liability

in debt.”103 We must keep in mind, however, that this statement was quoted in connection with the

Ashe formulation of the collateral-estoppel rule.

                                        b. The Ashe Approach

       The formulation articulated in Ashe had been applied previously in Yates v. United States104



       98
            Ashe, 397 U.S. at 437-39.
       99
             Id. at 439-40.
       100
             Id. at 445.
       101
             Id.
       102
             Id. at 443.
       103
             Id. (quoting United States v. Oppenheimer, 242 U.S. 85, 87 (1916)).
       104
             354 U.S. 298 (1957).
                                                                                         YORK — 29
to preclude the application of collateral estoppel to issues that were not ultimate in nature. In Yates,

the defendants were convicted of conspiring to advocate the overthrow of the United States

government by force and violence.105         One of the defendants had prevailed at an earlier

denaturalization proceeding, which may have involved the litigation of some facts that were also

relevant to the criminal proceeding.106 Among other things, this defendant claimed that the

determinations made in the denaturalization case were relevant to the criminal proceeding, “even if

they do not conclude it, and hence that [the defendant] should be entitled to an instruction giving

those determinations such partial conclusive effect as they might warrant.”107 The Supreme Court

held that “the doctrine of collateral estoppel does not establish any such concept of ‘conclusive

evidence’ as that contended for” by the defendant.108 “The normal rule,” the Supreme Court

explained, “is that a prior judgment need be given no conclusive effect at all unless it establishes one

of the ultimate facts in issue in the subsequent proceeding. So far as merely evidentiary or ‘mediate’

facts are concerned, the doctrine of collateral estoppel is inoperative.”109 In support of this “normal

rule,” the Supreme Court cited The Evergreens v. Nunan110 and comment p of § 68 of the original

Restatement of Judgments.111



        105
              Id. at 300.
        106
              Id. at 335.
        107
              Id. at 337.
        108
              Id. at 337-38.
        109
              Id. at 338.
        110
              141 F.2d 927 (2d Cir. 1944).
        111
              Yates, 354 U.S. at 338.
                                                                                         YORK — 30
        Comment p ruled out the use of evidentiary facts in the civil collateral-estoppel context:

“Evidentiary facts. The rules stated in this Section are applicable to the determination of facts in

issue, but not to the determination of merely evidentiary facts, even though the determination of the

facts in issue is dependent upon the determination of the evidentiary facts.”112

        In The Evergreens, Judge Learned Hand addressed, in the civil context, the question of

whether a previously litigated fact must be an ultimate issue in the first or second lawsuits in order

to be given preclusive effect under the doctrine of collateral estoppel.113 He observed that there was

a conflict in authority regarding whether an issue must be an ultimate fact in the first suit.114 He was

aware of no case, however, that allowed facts decided in the first suit (ultimate or not) to be used as

mere “mediate data” in the second.115 Confronted with a dearth of authority, and being free to

decide, the court did “not hesitate to hold” that, even assuming “mediate data” decided in the first

suit could be used to establish “ultimate” facts in the second, no fact decided in the first

suit—whether “ultimate” or “mediate”—could conclusively establish anything other than an

“ultimate” fact in the second suit.116

                               c. The Fifth Circuit and Other Jurisdictions

        As discussed earlier in this opinion, the Fifth Circuit—in the Wingate line of cases—

departed from the Ashe approach and took an expansive view of the collateral-estoppel protection



       112
              RESTATEMENT OF JUDGMENTS § 68 cmt. p.
        113
              The Evergreens, 141 F.2d at 928-931.
        114
              Id. at 928-29.
        115
              Id. at 930.
        116
              Id. at 930-31.
                                                                                         YORK — 31
in criminal prosecutions. But the Fifth Circuit conducted an about-face in 1994 in Wright v.

Whitley.117 In that case, the defendant was acquitted of two weapon-possession charges, and he was

subsequently charged with murder.118 The defendant sought, unsuccessfully, to use the fact of those

earlier acquittals to bar certain testimony regarding his possession of a rifle.119 Rejecting the

defendant’s claim, the Fifth Circuit decided that Wingate’s “broader reading of Ashe”—applying

collateral estoppel to the relitigation of evidentiary facts—“has not been accepted by the Supreme

Court.”120 Instead, the Fifth Circuit found that the Supreme Court’s decision in Dowling “teaches

that the Ashe holding only bars relitigation of a previously rejected factual allegation where that fact

is an ultimate issue in the subsequent case.”121

        In Brackett, the Fifth Circuit retreated somewhat from this expansive interpretation of

Dowling—characterizing Dowling more narrowly as a burden-of-proof case.122 The Fifth Circuit

believed that Dowling’s burden-of-proof holding effectively limited the doctrine of collateral

estoppel to the prosecution’s attempt to relitigate an essential element of an offense because “only

ultimate facts must be established beyond a reasonable doubt.”123 The Fifth Circuit found it

“difficult to conceive of a case in which collateral estoppel would bar admission or argumentation


       117
              11 F.3d 542 (5th Cir. 1994).
        118
              Id. at 545.
        119
              Id.
        120
              Id. at 545.
        121
              Id. at 546.
       122
           Brackett, 113 F.3d at 1401. For discussion of Dowling’s holding on burden of proof, see
this opinion, ante.
        123
              Brackett, 113 F.3d at 1401 n.9.
                                                                                          YORK — 32
of facts necessarily decided in the first trial, without completely barring the subsequent prosecution,”

but it stated, “[W]e have no occasion to consider whether Dowling has overruled this line of

decisions, and we leave that question for another day.”124

        There is a split among the federal circuits and various other jurisdictions on whether

collateral estoppel can ever apply to facts that are merely evidentiary in the second prosecution.125

                                     d. The Restatement (Second)

        The Restatement (Second) of Judgments has taken a dramatically different position from the



        124
              Id.
        125
            For authority in favor of extending collateral estoppel to such evidentiary facts, see United
States v. Moffett, 882 F.2d 885, 889, 889 n.2 (4th Cir. 1989); United States v. Castillo-Basa, 483 F.3d
890, 897 n.4 (9th Cir. 2007) (contending that a restriction of collateral estoppel to issues of ultimate
fact is “completely without foundation”); United States v. Carter, 60 F.3d 1532, 1535 (11th Cir.
1995); Laughlin v. United States, 344 F.2d 187, 189-92 (D.C. Cir. 1965) (collateral-estoppel effect
accorded the suppression of tape recordings in earlier prosecution); State v. Aparo, 223 Conn. 384,
408 n.9, 614 A.2d 401, 413 n.9 (1992) (referring to “well established rule that collateral estoppel
may exclude evidence in certain cases”); Underwood v. State, 722 N.E.2d 828, (Ind. 2000) (citing
Little v. State, 501 N.E.2d 412 (Ind. 1986)); Little, 501 N.E.2d at 413-14 (relying in part upon
Mock)); People v. Acevedo, 69 N.Y.2d 478, 484-87, 508 N.E.2d 665, 669-71 (Ct. App. 1987);
Commonwealth v. Holder, 569 Pa. 474, 479-80, 479 ns.3, 4, 805 A.2d 499, 502, 502 ns.3, 4 (2002)
(citing RESTATEMENT (SECOND ) OF JUDGMENTS §27); Simon, 220 Va. at 416-18, 258 S.E.2d at 570-
71; State v. Thomas, 124 Wis. 2d 101, 122, 369 N.W.2d 145, 155 (1985).
         For authority against applying collateral estoppel to evidentiary facts, see United States v.
Bailin, 977 F.2d 270, 277 n.9 (7th Cir. 1992) (earlier Second Circuit case, “insofar as it held that
issue preclusion applies to evidentiary as well as ultimate facts, has been partially overruled by
Dowling”); Flittie v. Solem, 775 F.2d 933, 942 (8th Cir. 1985) (stating the law of the Eighth Circuit
as “collateral estoppel does not bar relitigation of facts that are evidentiary in the second
prosecution”); State v. Gusman, 125 Idaho 805, 809, 874 P.2d 1112, 1116 (1994) (“Collateral
estoppel only precludes the relitigation of ultimate issues of fact.”) (emphasis in original); State v.
Sharkey, 574 N.W.2d 6, 9 (Iowa 1997) (“[C]ollateral estoppel applies only to ultimate facts, not to
evidentiary facts.”); State v. Glenn, 160 N.H. 480, 492-93, 9 A.3d 161, 171 (2010) (“[C]ollateral
estoppel does not forbid the relitigation of an issue as one of evidentiary fact, even if the State has
lost on the same issue as one of ultimate fact to be proven beyond a reasonable doubt in a prior
trial.”) (brackets and internal quotation marks omitted); Eatherton v. State, 810 P.2d 93, 99 (Wyo.
1991) (adopting rule as articulated in Flittie).
                                                                                       YORK — 33
original Restatement regarding the application of collateral estoppel to evidentiary facts. Comment

j of § 27 eschews any distinction between “evidentiary” and “ultimate” facts and takes the position

that the appropriate question “is whether the issue was actually recognized by the parties as

important and by the trier as necessary to the first judgment.”126 In support of this position, the

comment makes two arguments: (1) that the “line between ultimate facts and evidentiary facts is

often impossible to draw,” and (2) that, “great effort may have been expended by both parties” in

litigating the issue “and it may well have been regarded as the key issue in dispute.”127

       A number of jurisdictions have adopted comment j in civil cases.128 Although the doctrine

of collateral estoppel was originally developed in civil cases, one question is whether collateral

estoppel in the criminal law must match any evolution in the civil law or whether developments in

the civil law have gone further than is appropriate for criminal cases. The Restatement (Second) of

Judgments is by its terms limited to “the preclusive effects of judgments in civil actions” and so

takes no position on whether its principles apply in criminal cases.129 A perusal of the authorities


       126
             RESTATEMENT (SECOND ) OF JUDGMENTS §27 cmt. j.
       127
             Id.
       128
            Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756, 771 (1st Cir. 2010) (“[C]ollateral
estoppel is no longer limited to ultimate issues: necessary intermediate findings can now be used to
preclude litigation.”) (emphasis in original); Synanon Church v. United States, 820 F.2d 421, 426-27
(D.C. Cir. 1987) (rejecting The Evergreens view in favor of the Restatement (Second)); Meier v.
Commissioner, 91 T.C. 273, 283-86 (1988) (same); Smith v. Roane, 284 Ark. 568, 570, 683 S.W.2d
935, 936 (1985) (same); Comes v. Microsoft Corp., 709 N.W.2d 114, 121 (Iowa 2006) (adopting
comment j); In Re Zachary G., 159 N.H. 146, 151, 982 A.2d 367, 372 (2009) (favorable citation to
comment j); see also Winters v. Lavine, 574 F.2d 46, 58 n.12 (2d Cir. 1978) (criticizing rule from The
Evergreens and citing favorably a tentative draft of comment j).
       129
            RESTATEMENT (SECOND ) OF JUDGMENTS, Ch. 1: Introduction, Scope Note; see also id.,
§ 85, Reporter’s Notes, last para. (“The preclusive effect in a subsequent criminal prosecution of a
prior civil judgment against the government is outside the scope of this Restatement.”).
                                                                                      YORK — 34
discussed above reveals that New Hampshire and Iowa have retained the Ashe approach in criminal

cases despite being receptive in civil cases to the “new” approach embodied in comment j.130

       The Supreme Court has cited §27 of the Restatement (Second) of Judgments in two recent

double-jeopardy cases, but it has not cited to comment j or expressly addressed the issue currently

before us.131 Though it has characterized as “more descriptive,” §27’s use of the term “issue

preclusion” in place of “collateral estoppel,”132 the Court nevertheless continues to refer to the

“ultimate fact” language found in Ashe.133

       In Standefer v. United States, the Supreme Court recognized that the doctrine of collateral

estoppel may carry limitations in criminal cases that do not exist in civil cases.134 Standefer was

charged as a party to official misconduct.135 The official in question was also charged but was

acquitted on some of the counts.136 Standefer wished to use that acquittal to establish that he could

not have aided the commission of those counts.137 In declining to permit the nonmutual use of

collateral estoppel, the Supreme Court explained that “the Government is often without the kind of




       130
             Compare, this opinion, footnotes 125 and 128.
       131
             See Bies, 129 S. Ct. at 2152; Yeager, 129 S. Ct. at 2367 n.4.
       132
             Yeager, 129 S. Ct. at 2367 n.4.
       133
             Id. at 2367; Bies, 129 S. Ct. at 2153.
       134
             447 U.S. 10 (1980).
       135
             Id. at 11.
       136
             Id. at 13.
       137
             Id.
                                                                                          YORK — 35
‘full and fair opportunity to litigate’ that is a prerequisite of estoppel.”138 The Court pointed to

several aspects of criminal law that make this so:

       [T]he prosecution’s discovery rights in criminal cases are limited, both by rules of
       court and constitutional privileges; it is prohibited from being granted a directed
       verdict or from obtaining a judgment notwithstanding the verdict no matter how clear
       the evidence in support of guilt . . .; it cannot secure a new trial on the ground that an
       acquittal was plainly contrary to the weight of the evidence . . .; and it cannot secure
       appellate review where a defendant has been acquitted.139

The Court also noted rules of evidence that are unique to criminal law that might make evidence

inadmissible against one defendant that is admissible against another, and the Court pointed to the

“important federal interest in the enforcement of the criminal law.”140 And though the concern about

the admissibility of evidence could possibly be met on a case-by-case basis by conducting a pretrial

hearing to determine whether a trial court’s evidentiary ruling had deprived the government of a

chance to present its case the first time around, that process “could prove protracted and

burdensome.”141

       The ability of a party to fully and fairly litigate the claim in question is also a part of the

Restatement (Second) approach. Under § 28, the Restatement (Second) outlines an exception to the

general rule of issue preclusion, when “[t]he party against whom preclusion is sought could not, as

a matter of law, have obtained review of the judgment in the initial action.”142 The prosecution




       138
             Id. at 22.
       139
             Id.
       140
             Id. at 23-24.
       141
             Id. at 24.
       142
             RESTATEMENT (SECOND ) OF JUDGMENTS, § 28(1).
                                                                                         YORK — 36
cannot obtain review of an acquittal,143 and so a precondition for applying the Restatement (Second)

scheme to criminal cases seems to be absent.144 It is true that the absence of appellate review is not

always “an essential predicate of estoppel”145 (see Ashe, for example), but the collateral-estoppel

doctrine is “premised upon an underlying confidence that the result achieved in the initial litigation

was substantially correct,” and in the absence of appellate review, such confidence is often

unwarranted.146 Thus, the absence of review counsels in favor of retaining the narrower Ashe

approach to collateral estoppel in criminal cases.

        The State can obtain appellate review of a trial court’s ruling on a motion to suppress if the

ruling is made before trial.147 But, under Woods, the trial court in the present case was not authorized

to rule upon the legality of the detention before trial. Even in the more common case in which such

authority exists, a trial court is not required to rule on a motion to suppress before trial,148 and




        143
              See Standefer, supra.
       144
              See RESTATEMENT (SECOND ) OF JUDGMENTS, § 85(3) (“A judgment against the
prosecuting authority is preclusive against the government only under the conditions stated in §§ 27-
29.”); id., §85 cmt. g (“If the matter adjudicated was one of affirmative defense and the defendant
had the burden of establishing the defense by a preponderance of the evidence, it would be
appropriate to treat the issue as conclusive against the government in a subsequent civil action.
However, the government usually does not have a right of appellate review of a criminal judgment,
so that the exception created in §28(1) would ordinarily deny preclusive effect to the finding even
in the case of an affirmative defense. Hence it would be a rare case in which an acquittal could result
in preclusion against the government in a subsequent civil action.”).
        145
              Standefer, 447 U.S. at 23.
        146
              Standefer, 447 U.S. at 23.
       147
              TEX . CODE CRIM . PROC. art. 44.01(a)(5).
       148
          Calloway v. State, 743 S.W.2d 645, 649 (Tex. Crim. App. 1988); Bell v. State, 442
S.W.2d 716, 719 (Tex. Crim. App. 1969).
                                                                                       YORK — 37
sometimes a trial court may find it useful to carry the motion along with the trial on the merits.149

                    e. Interests underlying Double Jeopardy and Criminal Cases

        But even when a motion to suppress is granted pretrial, the State has the option to simply

dismiss the case, and in doing so, prevent the attachment of jeopardy to the first prosecution.150 If

jeopardy has not attached, then no aspect of double jeopardy, including its collateral-estoppel

component, is implicated.151 This fact suggests that suppression issues are simply not the type of

issues that implicate double jeopardy in the first place. When a defendant is placed in jeopardy, he

is placed in jeopardy for the elements of the offense, not for mere evidentiary matters. Such a view

is consistent with the Supreme Court’s rejection of the Grady v. Corbin152 same-conduct standard,

and its reaffirmation of the importance of the elements of the offense in the double-jeopardy

context.153

        149
          See Garza v. State, 126 S.W.3d 79, 84-85 (Tex. Crim. App. 2004) (error preserved by late
objection when trial judge indicated that motion to suppress would be carried with trial).
        150
            See Ortiz v. State, 933 S.W.2d 102, 105-06 (Tex. Crim. App. 1996) (jeopardy attaches
in Texas when the jury is sworn in a jury trial, when the defendant pleads to the indictment in a
bench trial, or when a plea agreement is accepted in a plea-bargain setting)
        151
           See United States v. Martin Linen Supply Co., 430 U.S. 564, 569 (1977) (before double-
jeopardy protections are implicated, jeopardy must have attached); State v. Moreno, 294 S.W.3d 594,
597 (Tex. Crim. App. 2009) (same); Reynolds, 4 S.W.3d at 20 (collateral estoppel not implicated by
civil administrative proceeding [a proceeding in which jeopardy would never attach]); Guajardo v.
State, 109 S.W.2d 456, 462-63 (Tex. Crim. App. 2003) (Meyers, J., concurring) (collateral estoppel,
as a component of double jeopardy, does not apply to determinations made in a proceeding that was
dismissed before jeopardy attached); United States v. Dionisio, 503 F.3d 78, 85 (2d Cir. 2007)
(same).
        152
              495 U.S. 529 (1990).
        153
          See United States v. Dixon, 509 U.S. 688, 703-09 (1993); id. at 704 (adopting J. Scalia’s
Grady dissent); Grady, 495 U.S. at 529 (Scalia, J., dissenting) (The language of the Double Jeopardy
Clause “protects individuals from being twice put in jeopardy ‘for the same offence,’ not for the
same conduct or actions.”).
                                                                                          YORK — 38
        Perhaps for this reason, the Supreme Court has never abandoned Ashe’s “ultimate fact”

language. For jeopardy to attach to an issue in the first prosecution, the issue must be “ultimate”

rather than merely evidentiary. If jeopardy does not attach to a particular issue in the first

prosecution, then that issue cannot become the basis for collateral estoppel in a subsequent

prosecution. Indeed, the Fifth Circuit’s conclusion in Brackett that the burden-of-proof holding in

Dowling would effectively exempt evidentiary facts from the operation of collateral estoppel seems

to be based on the idea that the issue on which preclusion is sought would be an ultimate issue in the

first prosecution, so that the issue in the first prosecution would nearly always be subject to the

beyond-a-reasonable-doubt standard of proof, while an evidentiary fact in a second prosecution

would nearly always be subject to a lesser standard proof.154

       In the present case, the legality of the detention was an ultimate issue in the first prosecution,

but, as explained above, that status as an ultimate issue does not help appellant because of the lesser

burden of proof with respect to suppression hearings. If, on the other hand, he relies upon the county

court at law’s resolution of the detention issue solely as a suppression issue—so that the burden of

proof in the two prosecutions is the same—then we are confronted with an issue that was not an

ultimate issue in either prosecution. To accord collateral-estoppel protection, under the rubric of

double jeopardy, to such an issue would stray far from the theoretical groundings of the Double

Jeopardy Clause and the Supreme Court’s earlier pronouncements on the issue of collateral




       154
            See Brackett, 113 F.3d at 1401 n.9 (“Because only ultimate facts must be established
beyond a reasonable doubt, however, Dowling effectively limits the doctrine of collateral estoppel
to cases in which the government seeks to relitigate an essential element of the offense.”).
                                                                                      YORK — 39
estoppel.155

        In light of our discussion, we reaffirm the bottom-line result in Murphy as controlling where

a defendant seeks to bar the relitigation of suppression issues on the basis of double jeopardy. That

is, the State is not barred by the Double Jeopardy Clause from relitigating a suppression issue that

was not an ultimate fact in the first prosecution and was not an ultimate fact in the second

prosecution. We overrule appellant’s second ground for review.

        The judgment of the court of appeals is affirmed.



Delivered: June 29, 2011
Publish




        155
            Judge Womack’s concurrence raises some interesting (and complex) questions regarding
both the scope of the collateral estoppel doctrine within the double-jeopardy protection and whether
the collateral estoppel doctrine has any vitality outside the double-jeopardy context. Does the
double-jeopardy protection—via Ashe’s “ultimate fact” language—include the application of
collateral estoppel to defenses (e.g. self-defense) and punishment-mitigation issues (e.g. sudden
passion), and if not, should preclusive effect be given to jury findings on these types of issues on
some other basis? See United States v. Oppenheimer, 242 U.S. 85 (1916) (pre-Ashe case applying
collateral estoppel to a statute of limitations defense); Ex parte Watkins, 73 S.W.3d 264, 267-72
(Tex. Crim. App. 2002) (applying collateral estoppel to sudden-passion punishment-mitigation issue
under the rubric of double jeopardy in the pretrial habeas setting); Guajardo, 109 S.W.3d at 468-69
(Tex. Crim. App. 2003) (Hervey, J., concurring) (arguing that collateral estoppel does not exist in
criminal cases outside the double-jeopardy context). Should we re-think some of our other
precedents (besides Murphy) in light of evolving Supreme Court jurisprudence? We need not address
those questions here. It is enough here to hold that double-jeopardy protections are not involved
when the issues on which the defendant seeks preclusion are not ultimate in nature.
