      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-05-00159-CR



                                 Luther Wayne Cobb, Appellant

                                                  v.

                                   The State of Texas, Appellee




       FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
           NO. 54851, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant Luther Wayne Cobb of indecency with a child by contact

and assessed a punishment of twenty years’ imprisonment and a $10,000 fine. See Tex. Pen. Code

Ann. § 21.11 (West 2003). In his only point of error, appellant contends the trial court erred at the

punishment stage by permitting the State to offer evidence of an extraneous act for which appellant

had been tried and acquitted in a military tribunal. We find that reversible error is not presented and

affirm the judgment of conviction.

               Appellant was convicted for engaging in sexual contact with K.H., a child younger

than seventeen, by touching her breast with the intent to arouse or gratify his sexual desire. Over

appellant’s objection at the punishment phase, the State was permitted to offer evidence that in 1999,
four years before the charged offense, appellant sexually assaulted a thirteen-year-old girl.1 Although

there is no evidence of this in the record, it was agreed by the parties below that appellant had been

prosecuted in a military court-martial for the 1999 assault and acquitted. At trial, appellant objected

that the introduction of this evidence constituted double jeopardy, but he does not bring this

contention forward on appeal. He also objected that evidence of the 1999 assault was irrelevant,

barred by collateral estoppel, and impermissible character evidence.

                 In Stuart v. State, the defendant was tried for aggravated rape. 561 S.W.2d 181 (Tex.

Crim. App. 1978). At the guilt stage, the State introduced evidence that the defendant had

committed two other rapes, apparently to prove lack of consent. Id. The record showed that the

defendant had been tried and acquitted for one of the earlier rapes. Id. The court of criminal appeals

held that the admission of the extraneous offense for which the defendant had been acquitted was

error:


          We feel that any application of an exception to the rule against admission of
          extraneous offenses must necessarily be to an occurrence which has not already been
          conclusively established by a verdict of acquittal to have not been an extraneous
          offense in the first place. The prosecution should not be allowed an exception when
          they have failed to come within the ambit of the general rule.


Id. at 182 (citation omitted). Although the court did not use the term “collateral estoppel,” it appears

that this was the basis for its holding, as the authorities cited for the holding were Ashe v. Swenson

and two Fifth Circuit opinions applying it. Ashe v. Swenson, 397 U.S. 436 (1970); Blackburn v.




    1
         The evidence was offered through the testimony of the complainant and her mother.

                                                   2
Cross, 510 F.2d 1014 (5th Cir. 1975); Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972). In

addition, the court of criminal appeals has since described the holding in Stuart as based on collateral

estoppel. Dedrick v. State, 623 S.W.2d 332, 336 (Tex. Crim. App. 1981).

                In Ashe, the Court held that the Fifth Amendment guarantee against double jeopardy

includes a collateral estoppel element. 397 U.S. at 445. This means that “when an issue of ultimate

fact has once been determined by a valid and final judgment, that issue cannot again be litigated

between the same parties in any future lawsuit.” Id. at 443. When considering a collateral estoppel

claim, trial and appellate courts must examine the entire record of the prior proceeding to determine

whether a rational finder of fact could have grounded its verdict on an issue other than the one that

the defendant seeks to foreclose from consideration. Id. at 444.

                The State of Texas was not a party to the court-martial proceeding on which appellant

relies. See United States v. Angleton, 314 F.3d 767, 776 (5th Cir. 2002) (collateral estoppel did not

bar federal prosecution after unsuccessful state prosecution, citing dual sovereignty doctrine).

Moreover, the court of criminal appeals has recently held that a defendant asserting a collateral

estoppel claim must introduce the complete record of the earlier proceeding, which appellant did not

do. Guajardo v. State, 109 S.W.3d 456, 457 (Tex. Crim. App. 2003). For both of these reasons,

appellant’s collateral estoppel argument fails.

                Appellant’s argument that the 1999 sexual assault was irrelevant other than to show

his bad character also fails. At the punishment stage, evidence may be offered as to any matter the

court deems relevant to punishment including, rules 404 and 405 notwithstanding, evidence of an

extraneous crime or bad act that is shown beyond a reasonable doubt to have been committed by the

                                                   3
defendant. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2005); see Tex. R. Evid.

404, 405. Appellant argues that evidence cannot be relevant if it is untrue, but the jury was properly

instructed not to consider the evidence regarding the 1999 assault unless it found beyond a

reasonable doubt that appellant committed the offense.2

               The point of error is overruled and the judgment of conviction is affirmed.




                                               __________________________________________

                                               Jan P. Patterson, Justice

Before Justices B. A. Smith, Patterson and Puryear

Affirmed

Filed: July 7, 2006

Do Not Publish




   2
      In ruling that the 1999 incident was admissible at the punishment stage, the court prohibited
any mention of the court martial proceeding or its result. Appellant does not complain of this and
therefore we do not address it. We note, however, that the court of criminal appeals has held that
when evidence of extraneous crimes is admitted at the punishment stage, the punishment assessed
for those crimes is also relevant and admissible. Sunbury v. State, 88 S.W.3d 229, 235 (Tex. Crim.
App. 2002); Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999).

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