                                                                                                  ACCEPTED
                                                                                             13-15-00076-CR
        FILED                                                                THIRTEENTH COURT OF APPEALS
IN THE 13TH COURT OF APPEALS                                                        CORPUS CHRISTI, TEXAS
        CORPUS CHRISTI                                                                 12/10/2015 2:05:13 AM
                                                                                            Dorian E. Ramirez
         12/10/15                                                                                      CLERK

DORIAN E. RAMIREZ, CLERK             NO. 13-15-00076-CR
BY DTELLO                                                      RECEIVED
                                                                  FILED IN
                                       COURT OF APPEALS13th COURT OF APPEALS
                                                       CORPUS CHRISTI/EDINBURG, TEXAS
                                  THIRTEENTH   DISTRICT OF12/10/2015
                                                           TEXAS 2:05:13 AM
                                                            DORIAN E. RAMIREZ
                                                                   Clerk

                               STATE OF TEXAS v. MATTHEW AKIN


                       FROM THE 319TH DISTRICT COURT, NUECES COUNTY, TEXAS
                                    CAUSE NO. 14-CR-4010-G,
                               THE HONORABLE DAVID STITH PRESIDING

                                         APPELLEE

       John M. Lamerson
       Attorney at Law
       State Bar No. 24076495
       P.O. Box 241
       Corpus Christi, TX 78403
       Tel: (361) 816-9969
       Fax: (866) 935-5634

                               ORAL ARGUMENT NOT REQUESTED
                           APPELLEE’S BRIEF

                          NO. 13-15-00076-CR

                            COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS


                 STATE OF TEXAS v. MATTHEW AKIN


            FROM THE 319TH DISTRICT COURT, NUECES COUNTY, TEXAS
                         CAUSE NO. 14-CR-4010-G,
                    THE HONORABLE DAVID STITH PRESIDING


TO THE HONORABLE COURT OF APPEALS:

     NOW COMES, Defendant, Appellee herein, files and submit his Brief

in this appeal from a dismissal of the indictment in the underlying cause,

and would respectfully show as follows:
                                      TABLE OF CONTENTS

Table of Contents                 ………………………….……………                                           3

Index of Authorities              ………………………….……………                                           4

Statement of the Case ………………………….……………                                                       6

Issues Presented                  ………………………….……………                                           6

Statement of Facts                ………………………….……………                                               7

Summary of the Argument ................................................                         8

Argument .........................................................................               9

Issue 1: The State Did Not Preserve Error at the Trial Court
Stage      .........................................................................             9

Issue 2: The Trial Court Properly Dismissed the Indictment Based
on Collateral Estoppel/Double Jeopardy Grounds .........                                     11

Prayer          ..........................................................................   17

Certificate of Service            .......................................................    18

Certificate of Compliance ....................................................               19
                        INDEX OF AUTHORITIES

Texas Cases:

Barnett v. State, 615 S.W.2d 220, 222 (Tex.Cr.App.1981 …………....         15

Bell v. State, 938 S.W.2d 35 (Tex. Crim. App. 1996) ………..………....        11

Dedrick v. State, 623 S.W.2d 332 (Tex. Cr.App.1981)      ………..…..       14

Ex parte Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012)     …………....       15

Ex parte Ervin, 991 S.W.2d 804 (Tex.Cr.App. 1999) ………..………....          13

Ex parte Kopecky, 821 S.W.2d 957 (Tex.Cr.App. 1992)      …………....       13

Ex Parte Tarver, 725 S.W.2d 195 (Tex. Crim. App. 1986) ..……….....       14

Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002)    ………..…..       11

Headrick v. State, 988 S.W.2d 226 (Tex.Cr.App. 1999)     …………....       13

Reynolds v. State, 4 S.W.3d 13 (Tex. Crim. App. 1999)    .……....    16, 17

State v. Brabson, 976 S.W.2d 182 (Tex. Crim. App. 1998) .……..........   17

State v. Rhinehart, 333 S.W. 3d 154 (Tex. Crim. App. 2011) ………..        11

State v. Mercado, 972 S.W.2d 75 (Tex. Crim. App. 1998) …………....         11

Federal Cases:

Ashe v. Swenson, 397 U.S. 436 (1970) …….………...............      12, 13, 14

Blockburger v. U.S., 284 U.S. 299 (1932)      ……………..………......          12

Jeffers v. U.S., 432 U.S. 137 (1977)    ……………………..………....               13

U.S. v. Dixon, 509 U.S. 688 (1993)      ……………………..………....               13
Waller v. Florida, 397 U.S. 387 (1970)   ...…..……….....................   13, 14

United States Constitution:

U.S. CONST. amend. V         ……..…………....………………………….                          9

Texas Constitution:

Tex. Const. Art. I, § 14 ……..…………....…………………………..…….                          9

Tex. Const. Art. V, §8 ……..……..…………....………………………….                            9

Texas Codes:

Tex. Code of Crim. P. Art. 1.10    ….…………....……………………                         9

Tex. Code of Crim. P. Art. 1.11    ….…………....……………………                         9

Tex. Code of Crim. P. Art. 11.01   ….…………....……………………                         9

Tex. Code of Crim. P. Art. 11.05   ….…………....……………………                         9

Tex. Code of Crim. P. Art. 11.08   ….…………....……………………                         9

Tex. Code of Crim. P. Art. 11.23   ….…………....……………………                         9

Tex. Code of Crim. P. Art. 28.13   ….…………....……………………                         9
                        STATEMENT OF THE CASE

     Appellee wishes to add the following:

     On November 6, 2014, a no-arrest indictment was issued for Matthew

Akin, Appellee. Matthew Akin was arrested on December 23, 2014. On

December 31, 2014, Defendant filed his Pre-Trial Application for Writ of

Habeas Corpus and Motion to Dismiss the Indictment seeking relief from

double jeopardy pursuant to Arts. 1.10, 1.11, 11.01, 11.05, 11.08, 11.23

and 28.13 of the Texas Code of Criminal Procedure; Art. I, §14, and Art. V,

§8 of the Texas Constitution; and the Fifth Amendment to the United States

Constitution. The State did not file any response to this Application or

Motion.   On January 26, 2015, the trial court granted Defendant’s

Application/Motion. Despite the fact that it filed no response to defendant’s

application/motion or in any way preserved error, the state filed its appeal

on February 11, 2015.

                          ISSUES PRESENTED

Issue 1: The State Did Not Preserve Error at the Trial Court Stage

Issue 2: The Trial Court Properly Dismissed the Indictment Based on
Collateral Estoppel/Double Jeopardy Grounds
                          STATEMENT OF FACTS

      Appellee wishes to add the following:

      On June 3, 2014, it was alleged that Mathew Akin physically and/or

verbally/emotionally abused Paul Wolf, a resident of the State School at

which Mr. Akin was employed. On November 5, 2014, this incident was

investigated and adjudicated by the Texas Health and Human Services

Commission in Docket Number 14-0632-P. In said cause, it was

determined that the Grievant, Matthew Akin, did not physically and

verbally/emotionally abuse the Resident, Paul Wolf. On November 6, 2014,

Mathew Akin was indicted for Injury to a Child, Elderly Individual, or

Disabled Individual, a Third Degree Felony, which was alleged to have

occurred on June 3, 2014. This subsequent indictment charges the

Defendant with the same conduct against the same victim as in Docket

Number 14-0632-P.         The foregoing indictment, and its subsequent

dismissal by the trial court, are the subject of this appeal.
                       SUMMARY OF ARGUMENT

     The State did not preserve any error at the trial court stage as it

relates to any of their points of error. They did not file any response to

Defendant’s Motion to Dismiss, and Motion for Rehearing, or provide any

oral argument that would have preserved such error. In the alternative, the

trial court properly granted Defendant’s Pre-Trial Application for Writ of

Habeas Corpus and Motion to Dismiss the Indictment seeking relief from

double jeopardy pursuant to Arts. 1.10, 1.11, 11.01, 11.05, 11.08, 11.23

and 28.13 of the Texas Code of Criminal Procedure; Art. I, §14, and Art. V,

§8 of the Texas Constitution; and the Fifth Amendment to the United States

Constitution, as the prosecution of Matthew Akin by the Nueves County

District Attorney’s Office was barred by the Double Jeopardy Clauses

contained in Art. I, §14 of the Texas Constitution; the Fifth Amendment of

the United States Constitution; and Arts. 1.10 and 28.13 of the Texas Code

of Criminal Procedure and the related doctrine of collateral estoppel in that

the State is seeking to prosecute the Defendant again on discreet factual

issues that have already been litigated and decided against the State
                       ANALYSIS AND ARGUMENT

I: The State Did Not Preserve Error at the Trial Court Stage

      The State did not preserve any error as it relates to any of their points

of error at the trial court stage.   Specifically, they did not preserve the

argument that a sovereign employer imposes discipline on an employee no

different from that permitted by a private employer, double jeopardy is

inapplicable.   They further did not preserve error that an administrative

agency and District Attorney are not the same party for purposes of

collateral estoppel.

      On December 31, 2014, Defendant filed his Pre-Trial Application for

Writ of Habeas Corpus and Motion to Dismiss the Indictment seeking relief

from double jeopardy pursuant to Arts. 1.10, 1.11, 11.01, 11.05, 11.08,

11.23 and 28.13 of the Texas Code of Criminal Procedure; Art. I, §14, and

Art. V, §8 of the Texas Constitution; and the Fifth Amendment to the United

States Constitution. The State did not file any response to this Application

or Motion. On January 26, 2015, after minimal argument in which the State

did not address any specific arguments or case law, Judge Stith signed the

order granting Defendant’s Application/Motion.      The State did not file a
Motion for New Trial or any other sort of Motion to preserve any error it

believed had occurred.

      To the extent that the State now makes any argument, Appellee

objects that it does not comport with its argument to the trial court. See Bell

v. State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996) (explaining that the

grounds raised on appeal must comport with the objections made before

the trial court). Moreover, a reviewing court cannot reverse the trial court’s

judgment on grounds not presented to it. See State v. Rhinehart, 333 S.W.

3d 154, 162 (Tex. Crim. App. 2011) (stating that “ordinary rules of

procedural default” apply to “losing party” in trial court); Hailey v. State, 87

S.W.3d 118, 121–22 (Tex. Crim. App. 2002) (“It is well-settled that . . . it

violates ordinary notions of procedural default for a Court of Appeals to

reverse a trial court’s decision on a legal theory not presented to the trial

court by the complaining party.”) (quotations omitted); State v. Mercado,

972 S.W.2d 75, 78 (Tex. Crim. App. 1998) (en banc) (“[I]n cases in which

the State is the party appealing, the basic principle of appellate

jurisprudence that points not argued at trial are deemed to be waived

applies equally to the State and the defense.”). None of the grounds

referenced by the State in their appeal were raised at the trial court level in
any way that could have preserved the error for the Appeals court. Thus,

Appellee asks this Honorable Court to overrule the State’s issues.

II: The Trial Court Properly Dismissed the Indictment Based on
Collateral Estoppel/Double Jeopardy Grounds

  A. Collateral Estoppel

     If this Honorable Court holds the issue is properly presented, then the

trial court properly dismissed the subject indictment based on Collateral

Estoppel/Double Jeopardy Grounds. The State correctly points out that In

the criminal context, collateral estoppel has two potential bases:

constitutional collateral estoppel and issue preclusion. However, the State

incorrectly posits to the Court that the Appellee has only raised the issue of

constitutional collateral estoppels and not issue preclusion.      The plain

language of Defendant’s Motion to Dismiss raises both bases for dismissal

of the subject indictment, and it can be inferred that the trial court

dismissed the subject suit based on both grounds.

     A comparison of the allegations in the administrative case and the

subject indictment reveals that they encompass the same facts and

allegations. This means that they are the same offense or contain some of

the same elements for double jeopardy and collateral estoppel purposes.

Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.2d 306 (1932);

U.S. v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); Ex
parte Ervin, 991 S.W.2d 804 (Tex.Cr.App. 1999); Ashe v. Swenson, 397

U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Headrick v. State, 988

S.W.2d 226 (Tex.Cr.App. 1999). Since the State sought to prosecute the

Appellee again for conduct already litigated and decided against the State,

this subsequent prosecution is barred by the Collateral Estoppel Doctrine of

the Double Jeopardy clause.

     The Double Jeopardy Clause protects against multiple prosecutions

for the same offense. Jeffers v. U.S., 432 U.S. 137, 97 S.Ct. 2207, 53

L.Ed.2d 168 (1977); Ex parte Kopecky, 821 S.W.2d 957 (Tex.Cr.App.

1992). The Collateral Estoppel Doctrine provides that when an issue of

ultimate fact has been determined by a valid and final judgment, that issue

cannot again be litigated between the same parties in any future lawsuit.

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

Headrick v. State, 988 S.W.2d 226 (Tex.Cr.App. 1999).

     Despite the State’s protestations to the contrary, the fact that the

Nueces County District Attorneys’ Office and the Texas Health and Human

Services Commission are different Texas agencies, one administrative and

one a district attorney’s office, has no bearing in this analysis. The United

States Supreme Court held in Waller v. Florida, 397 U.S. 387, 388 (1970),

that even though they derived from different constitutional and statutory
sources, “the apt analogy to the relationship between municipal and state

governments is to be found in the relationship between the government of a

Territory and the Government of the United States.” The Waller court ruled

that “that the Florida courts were in error to the extent of holding that—even

if a person has been tried in a municipal court for the identical offense with

which he is charged in a state court, this would not be a bar to the

prosecution of such person in the proper state court.” Waller at 388.

      Likewise, the Texas Court of Criminal Appeals has ruled multiple

times that collateral estoppel applies even when one of the hearings

involved is an administrative hearing. In Ex Parte Tarver, 725 S.W.2d 195

(Tex. Crim. App. 1986), the Court held:

            The Supreme Court of the United States has stated that the
            doctrine of collateral estoppel "means simply 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." Ashe v. Swenson, 397 U.S.
            436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469, 475 (1970). The
            doctrine is not to be applied hypertechnically, but requires a
            reviewing court to examine the record to determine just what
            issue has been foreclosed between the parties. Id. "To state the
            distinction in more prosaic terms, the traditional bar of double
            jeopardy prohibits the prosecution of the crime itself, whereas
            collateral estoppel, in a more modest fashion, simply forbids the
            government from relitigating certain facts in order to establish
            the fact of the crime." Dedrick v. State, 623 S.W.2d 332, 336
            (Tex. Cr.App.1981) (Rehearing denied en banc), quoting United
            States v. Mock, 604 F.2d 341 (CA5 1979).
           Applying this test to the instant case, it is clear that a fact issue,
           i.e. whether applicant assaulted the complainant, has been
           found adversely to the State. The trial court is the sole trier of
           fact at a probation revocation hearing. McDonald, supra at 199;
           Barnett v. State, 615 S.W.2d 220, 222 (Tex.Cr.App.1981). As
           such, the district court found that the allegation the State sought
           to prove in the revocation hearing, that applicant had assaulted
           the complainant, is not true. The State is now attempting to
           relitigate that same issue. The doctrine of collateral estoppel
           bars such a relitigation.

     In 2012, the Texas Court of Criminal Appeals re-affirmed Tarver in Ex

parte Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012). In Doan, the Court

emphasized that the doctrine of collateral estoppels applies as long as

there are substantial similarities in issues and procedure. Doan at 13. The

issues and procedures are identical in the administrative and judicial

proceedings in this case. The same factual issues are implicated, and both

the State and the Defendant were represented by counsel at the

administrative hearing, with a sworn Texas judge presiding over the

hearing and over the appeal. The prosecuting authority in the

administrative hearing represented the same interests as the State in this

present case, as both were alleging the same facts and circumstances.

Doan at 14.

     The Court of Criminal Appeals has held that an administrative

adjudication does not necessarily collaterally estopp criminal prosecution.
See Reynolds v. State, 4 S.W.3d 13 (Tex. Crim. App. 1999). However, the

Reynolds holding is distinguishable from this present case. The issue in the

Reynolds case was whether an adjudication in a licensing hearing

collaterally estopped a criminal prosecution for Driving While Intoxicated.

The issue in the administrative hearing was whether the Defendant’s

license could be revoked for failing to give a breath test. The administrative

hearing did not involve the issue of whether the driver was intoxicated.

Indeed, as the Reynolds court held: “To invoke double jeopardy protection,

the initial proceeding involved need not necessarily be a criminal

‘prosecution,’ but it must be ‘essentially criminal’ in nature.” Reynolds at 25.

In our present case, the issue taken up by the administrative court was

whether Mathew Akin physically and verbally/emotionally abused Paul

Wolf, the exact same “essentially criminal” issue that is being alleged by

the State in this current indictment. As such, the conduct complained of

was essentially criminal in nature in both proceedings.

   B. Brabson

      The State heavily relies on State v. Brabson, 976 S.W.2d 182, 187

(Tex. Crim. App. 1998) to support its proposition that an administrative

agency and District Attorney are not the same party for purposes of

collateral estoppels. However, the facts of Brabson are nearly identical to
the facts of Reynolds, and can be distinguished for the exact same

reasons. In Brabson, as in Reynolds, the Defendant was arrested for and

eventually charged with driving while intoxicated (DWI), and The Texas

Department of Public Safety sought to revoke appellee's driver's license at

an administrative hearing. As in Reynolds, the administrative hearing in

Brabson did not involve the issue of whether the driver was intoxicated, and

did not involve the same “essentially criminal” nature as the administrative

hearing in this present case, and as such is distinguishable.

         Likewise, Brabson stands for the proposition that Texas Department

of Public Safety and the Dallas County District Attorney are not the same

parties. However, the Court of Criminal Appeals holding is limited to the

extent of litigating the issue of probable cause for appellee's arrest at the

suppression hearing in the criminal prosecution, and not the final

adjudication thereof. The basis of Appellee’s collateral estoppels argument

is not the exclusion of certain evidence or the relitigation of certain issues,

as was in the issue of Brabson, but that the essentially criminal actions

complained of by the State has been finally adjudicated in the Appellee’s

favor.
                                        PRAYER

      Appellee, Matthew Akin, respectfully requests this Honorable Court to

affirm the ruling of the trial court.

                                         Respectfully Submitted

                                         John M. Lamerson
                                         The Lamerson Law Firm
                                         State Bar No. 24076495
                                         P.O. Box 241
                                         Corpus Christi, Texas 78403
                                         Telephone: (361) 816-9969
                                         Facsimile: (866) 935-5634
                                         lamersonlawfirm@gmail.com

                                         By /S/ John Michael Lamerson
                                         JOHN M. LAMERSON

                                         Attorney for Defendant Matthew Akin
                       CERTIFICATE OF SERVICE

     I hereby certify that a true, correct, and complete copy of the

foregoing was served on all counsel of record via e-filing and via

facsimile (361.888.0700) to the Nueces County District Attorney's Office,

901 Leopard Street, Room 206, Corpus Christi, TX 78401 in accordance

with the Texas Rules of Appellate Procedure on this day, December 9,

2015.


                                   /S/ John Michael Lamerson
                                   JOHN M. LAMERSON
                       RULE 9.4(I) CERTIFICATION

      In compliance with the Texas Rule of Appellate Procedure 9.4(i)(3), I

certify that the number of words in this brief, excluding those matters listed

in Rule 9.4(i)(I), is 3,001 per the Word software used to write this

document.



                                    /S/ John Michael Lamerson
                                    JOHN M. LAMERSON
