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



                     Ex parte BRANDON JOSEPH ADAMS, Appellant



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

            K ELLER, P.J., filed a concurring opinion in which H ERVEY, Y EARY and
S LAUGHTER, JJ., joined.

       The fact that Joe and Justin were different victims is not enough, by itself, to distinguish this

case from Ashe v. Swenson.1 In Ashe, three or four masked men robbed six people at a poker game.2

The defendant was tried for robbing one of six players and acquitted.3 The defendant was

subsequently tried for robbing one of the other poker players.4 As in the present case, the



       1
           397 U.S. 436 (1970).
       2
           Id. at 437.
       3
           Id. at 438-39.
       4
           Id. at 439.
                                                                   ADAMS CONCURRENCE — 2

prosecutions in Ashe involved multiple victims.

        But the defense in Ashe applied to all of the victims. Ashe’s defense—and the only rational

basis for the acquittal in the first prosecution—was that he was not one of the masked robbers.5 So

even though there were six victims in Ashe, the basis for acquitting the defendant applied to all of

them—the defendant was either one of masked robbers or he was not.

        The present case is different because Appellant’s self-defense claim as to Justin does not

necessarily apply to Joe. Evidence in the first prosecution suggested that Justin was an aggressor in

the fight but that Joe was merely trying to break it up. A jury’s conclusion that Appellant acted in

self-defense against Justin would not rationally require it to also believe that he acted in self-defense

against Joe. Consequently, unlike in Ashe, the prior prosecution did not necessarily resolve against

the State an issue of fact crucial to the second prosecution.

        I join the Court’s opinion.

Filed: October 9, 2019

Publish




        5
            Id. at 441, 445.
