                                                                                               ACCEPTED
                                                                                          13-13-00633-CR
        FILED                                                             THIRTEENTH COURT OF APPEALS
                                                                                 CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS
                                                                                      9/3/2015 5:12:04 PM
        CORPUS CHRISTI                                                                   Dorian E. Ramirez
                                                                                                    CLERK
          9/3/15
DORIAN E. RAMIREZ, CLERK             NO.   13-13-0633-CR
BY DTello
                                                               RECEIVED IN
                                                         13th COURT OF APPEALS
                           In the                     CORPUS
                                    Thirteenth Court of       CHRISTI/EDINBURG, TEXAS
                                                         Appeals
                                                          9/3/2015 5:12:04 PM
                                       Edinburg, Texas
                                                           DORIAN E. RAMIREZ
                                                                  Clerk




                                    GUADALUPE DELEON ACUNA
                                           Appellant

                                               v.

                                       State of Texas
                                          Appellee



                On Appeal from Cause Number CR-4071-11-H
         389TH Judicial District Court of Hidalgo County, Texas
                       Hon. Jaime Garza Presiding


                               AMENDED APPELLANT’S BRIEF


        NO ORAL ARGUMENT REQUESTED                  O. RENE FLORES
                                                    State Bar Number 24012637
                                                    O. Rene Flores, P.C.
                                                    1308 S. 10th Avenue
                                                    Edinburg, Texas 78539
                                                    (956) 383-9090 Telephone
                                                    (956) 383-9050 Facsimile
                                                    Counsel for Appellant




        1|Page
            IDENTITY OF PARTIES AND COUNSEL

Appellant                        Appellate Counsel
Guadalupe DeLeon Acuna           Oscar Rene Flores
                                 O. Rene Flores, P.C.
                                 1308 S. 10th Avenue
                                 Edinburg, Texas 78539
                                 (956) 383-9090 Tel.
                                 (956) 383-9050 Fax

                                 Trial Counsel
                                 Rogelio Garza
                                 310 West University
                                 McAllen, Texas 78539
                                 (956) 316-1375 Tel.

                                 And

                                 Abiel Flores
                                 10213 N. 10th Street
                                 McAllen, Texas 78504
                                 (956) 386-0642 Tel.

Appellee                         Trial Counsel
State of Texas                   Hope Davis Palacios
                                 Hidalgo County DA
                                 Asst. Crim. D.A.
                                 100 N. Closner
                                 Edinburg, Texas 78539
                                 (956) 318-2300 Tel.
                                 (956) 318-2301 Fax

                                 Appellate Counsel
                                 Theodore “Ted” Hake
                                 Hidalgo County DA
                                 Appellate Division
                                 100 N. Closner
                                 Edinburg, Texas 78539
                                 (956) 318-2300 Tel.
                                 (956) 318-2301 Fax

2|Page
                   TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL……………………………………………………………2

TABLE OF CONTENTS…………………………………………………………………………………………………3

INDEX OF AUTHORITIES…………………………………………………………………………………………4

NOTE RGARDING CITATION…………………………………………………………………………………10

STATEMENT OF THE CASE……………………………………………………………………………………12

STATEMENT REGARDING ORAL ARGUMENT……………………………………………………13

ISSUES PRESENTED…………………………………………………………………………………………………14

STATEMENT OF FACTS……………………………………………………………………………………………14

SUMMARY OF THE ARGUMENT………………………………………………………………………………17

ARGUMENT………………………………………………………………………………………………………………………18

Issue One……………………………………………………………………………………………………………………18

Issue Two……………………………………………………………………………………………………………………19

Issue Three………………………………………………………………………………………………………………19

CONCLUSION………………………………………………………………………………………………………………119

PRAYER…………………………………………………………………………………………………………………………124

CERTIFICATE OF SERVICE………………………………………………………………………………125




3|Page
                 INDEX OF AUTHORITIES

CASES

 Abbate v. United States, 359 U.S. 187 (1959)…………………44

 Abney v. U.S., 431 U.S. 651, 660-62 (1977)………………………21

 Ashe v. Swenson, 397 U.S. 436, 445 n. 10 (1970)……………

………………………………………………………………………………………23, 27, 28, 29,30, 52

 Bartkus v. Illinois, 359 U.S. 121 (1959)……………………………44

 Blockburger v. United States, 284 U.S. 299, 304

  (1932)……………………………………………………………………………………………………………19, 39

 Brown v. Ohio, 432 U.S. 161 (1977)……………………………………38,39

 Crist v. Bretz, 437 U.S. 28,29 (1978)…………………………20, 48

 Ex Parte Lange, 85 U.S. 163, 168-169 (1873)……………………20

 Flittie v. Solem, 775 F.2d 933 (8th Cir. 1985), cert.

  denied, 475 U.S. 1025 (1986)………………………………………37, 39, 43

 Green v. United States, 355 U.S. 184, 187-88 (1957)

  …………………………………………………………………………………………………………38, 43,47, 51

 Harris v. Washington, 404 U.S. 55 (1971)……………………………35

 Heath v. Alabama, 474 U.S. 82 (1985)………………………………………44

 Hicks v. Unied States, 108 S.Ct. 95 (1987)………………………36


4|Page
 Hoag v. New Jersey, 356 U.S. 464 (1958)………………………………27

 Iannelli v. United States, 420 U.S. 770 (1975)……………39

 Illinois v. Vitale, 447 U.S. 410

  (1980)………………………………………………………………………………39, 40, 41, 42,46

 Illinois   v.   Somerville,   410   U.S.   458,      463

  (1973)………………………………………………………………………………………………………………………50

 People v. Goodman, 69 N.Y. 2d 32, 36-44, 503 N.E.2d35

  996, 999-1003, 511 N.Y.S.2d 565, 568-72 (1986)……………37

 Pinkerton v. United States, 328 U.S. 640, 66 S. Ct.

  1180, 90 L. Ed. 1489…………………………………………………………………………………57

 Riley v. State, 181 Ga. App. 667, 353 S.E.2d 598

  (1987)………………………………………………………………………………………………………………………36

 Sanabria v. United States, 437 U.S. 54, 64 (1978)……50

 Sealfon v. United States, 332 U.S. 575, 579, 68 S.

  Ct. 237, 92 L. Ed. 180 (1947)………………………………25, 26,50,77

 Simpson v. Florida, 403 U.S. 384 (1971)………………………………35

 Standefer v. United States, 447 U.S. 10 (1980)……………35

 The Evergreens v. Nunan, 141 F.2d 927 (2d Cir. 1944)

  cert. denied, 323 U.S. 720 (1944)……………………………………………37


5|Page
 Turner v. Arkansas, 407 U.S. 366 (1972)………………………………35

 United States v. Adams, 281 U.S. 202 (1930)……………………25

 United States v. Addington, 471 F.2d 560, 566 (10th

  Cir. 1973)……………………………………………………………………………………………………………44

 United States v. Crispino, 586 F.Supp. 1525 (D.N.J.

  1984)…………………………………………………………………………………………57, 58, 59,60

 United States v. Day, 591 F.2d 861 (D.C. Cir.

  1978)…………………………………………………………………………………………………………………………36

 United States v. Deerman, 837 F.2d 684, 690 (5th

  Cir.1988)………………………………………………………………………………………………………………20

 United States v. Gentile, 816 F.2d 1157 (7th Cir.

  1987)…………………………………………………………………………………………………………………………37

 United States v. Gornto, 792 F.2d 1028 (11th Cir.

  1986)3………………………………………………………………………………………………………………………36

 United States v. Johnson, 697 F.2d 735 (6th Cir.

  1983), cert. denied sub nom. …………………………………………………………36

 United States v. Keller, 624 F.2d 1154 (3d Cir. 1980)

  ………………………………………………………………………………………………………………………………………36

 United States v. Kills Plenty, 466 F.2d 240 (8th Cir.

  1972), cert. denied, 410 U.S. 916 (1973)
6|Page
  ………………………………………………………………………………………………………43, 44, 45,46

 United States v. Larkin, 605 F.2d 1360, 1361 (5th Cir.

  1979), cert. denied, 446 U.S. 939 (1980)……………………………25

 United States v. Levy, 803 F.2d 1390, 1397 (5th Cir.

  1986)…………………………………………………………………………………………………………………………39

 United States v. Mespoulede, 597 F.2d 329 (2d Cir.

  1979)…………………………………………………………………………………………………………………36,37

 United   States   v.   Mock,   640   F.2d   629   (5th   Cir.

  1981)…………………………………………………………………………………………………………………………59

 United States v. Mock,604 F.2d 341 (5th Cir.

  1979)…………………………………………………………………………………………………………………………58

 United States v. One Assortment of 89 Firearms, 465

  U.S. 354 (1984) ……………………………………………………………………………………………36

 United States v. Oppenheimer, 242 U.S.85

  (1916)………………………………………………………………………………………………………………………25

 United States v. Scott, 437 U.S. 82 (1978)……………50, 51

 United States v. Sutton, 732 F.2d 1483 (10th Cir.

  1984)…………………………………………………………………………………………………………………………37

 United States v. Van Cleave, 599 F.2d 954 (10th Cir.

  1979)…………………………………………………………………………………………………………………………37

7|Page
 United States v. Watts, 519 U.S. 148, 117 S. Ct.633,

  136 L.Ed.2d 554 (1991)……………………………………………………………………………77

 United States v. Wheeler, 435 U.S. 313, 328 (1978)…43

 Wingate v. Wainwright, 464 F.2d 209 (5th Cir.

  1972)…………………………………………………………………………………………………………………………36

 Yawn v. United States, 244 F.2d 235 (5th Cir.

  1957)…………………………………………………………………………………………………………………………54

 Yates v. United States, 354 U.S. 298 (1957)……………………37

STATUTES


 Texas Rules of Appellate Procedure 43 (O’Connor’s

  Texas Criminal Codes Plus (2014-2015)

 TEX. Penal. Code Ann. Section 15.02 O’Connor’s Texas

  Criminal Codes Plus (2010-2011)

 TEX. Penal. Code Ann. Section 19.02 (O’Connor’s Texas

  Criminal Codes Plus (2010-2011)




8|Page
Secondary Sources


 Black’s Law Dictionary 6th Edition………………………………………………78

 W. LAFAVE & J. ISRAEL, CRIMINAL PROCEDURE § 17.4

  (1985)………………………………………………………………………………………………………………………27

 Lugar, Criminal Law, Double Jeopardy and Res

  Judicata, 39 IOWA L. REV. 317 (1954)………………………………………27

 Mayers & Yarbrough, Bis Vexari: New Trials and

  Successive Prosecutions, 74 HARV. L. REV. 1

  (1960)………………………………………………………………………………………………………………………27

 Comment, Twice in Jeopardy, 75 YALE L.J. 262

  (1965)………………………………………………………………………………………………………………27,29

 Note, The Double Jeopardy Clause as a Bar to

  Reintroducing Evidence, 89 YALE L.J. 962 (1980)…………27

 Case Comment, The Use of Nonmutual Collateral

  Estoppel by Criminal Defendants: United States v.

  Standefer, 93 HARV. L. REV. 804 (1980)…………………………………35

 Vestal, Issue Preclusion and Criminal Prosecutions,

  65 IOWA L. REV. 281 (1980)…………………………………………………………………36




9|Page
 Note, Evidentiary Use of Prior Acquitted Crimes: The

    “Relative Burdens of Proof” Rationale, 64 WASH.

    U.L.Q. 189 (1986)……………………………………………………………………………………….37

 E. Imwinkelried, Uncharged Misconduct Evidence §

    10.06 at 12 (1984)…………………………………………………………………………………….37

 Note, Collateral Estoppel Effect of Prior Acquittals:

    United States v. Mespoulede, 46 BROOKLYN L. REV. 781

    (1980)………………………………………………………………………………………………………………………37

 Note, Perjury by Defendants: the Uses of Double

    Jeopardy and Collateral Estoppel, 74 HARV. L. REV.

    752, 758-59 (1961)………………………………………………………………………………………37

 Model        Rules    Of   Professional    Conduct    Rule    3.8(A)

    ………………………………………………………………………………………………………………………………………55

 Thomas,       The    Prohibition    of   Successive   Prosecutions

    for the Same Offense: In Search of a Definition, 71

    IOWA       L.     REV.   323     (1986)Comment,     supra     note

    12…………………………………………………………………………………………………………………………………39

 Westen & Drubel, Toward a General Theory of Double

    Jeopardy, 1978 SUP. CT. REV. 81 (1979)…………………………………50



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                       CONSTITUTUIONAL PROVISIONS

 Fifth Amendment to the Constitution of the United

     States of America ……………………………………………………18, 34, 35,122

 Fourteenth Amendment to the Constitution of the

     United States of America…………………………………………………………19, 122

                          Note regarding citation

        This appeal involves a double jeopardy challenge

and      as    such   required    the    undersigned     to    review    the

record on appeal in this case but also required review

of     the       record   from    the    previous      trial   ending    in

acquittal.            As such, throughout this brief, counsel

refers to both at different times.                     In an effort to

assist this Honorable Court, the following citations

are explained for easier reference throughout:

        For the Clerk’s Record in Trial Court Cause number

CR-2725-10-H, counsel cites for example 1CR@_, whereas

reference to the second trial – the instant case – will

be cited for example as 2CR@_.

        In addition, any reference to the Reporter’s Record

from       the    first   trial   will    be   cited    for    example   as


11 | P a g e
1RR_@_, whereas any reference to the Reporter’s Record

in the second trial – this case - will be cited for

example as “2RR_@_.”




12 | P a g e
TO THE HONORABLE JUSTICES OF THE THIRTEENTH COURT OF
APPEALS:


        Appellant, Guadalupe DeLeon Acuna, files this brief

requesting      reversal          of     the      trial   court’s     judgment,

rendering       a        judgment      of   acquittal      on      Count     One.1

Appellant Acuna respectfully shows:

                              STATEMENT OF THE CASE


A. Course           of     Proceedings/Disposition            in     the    Court
Below.

        This   was        a    criminal     case     brought       pursuant    to

Indictment in Hidalgo County Texas accusing Guadalupe

Acuna (hereinafter referred to as Appellant Acuna) of

Conspiracy to Commit Murder in trial court cause number

CR-4760-11-H.

        Prior to the instant prosecution, Appellant Acuna

was indicted for the offense of murder and acquitted in

Cause Number CR-2725-10-H. That case was tried to a

jury and Appellant Acuna was acquitted.2

        Then   Appellant         Acuna      was    indicted     by   a     Hidalgo

1
  Count Two was dismissed by the State - (First Trial Clerk's Transcript)
1CR@204, 205
2
  (First Trial Clerk's Transcript) 1CR@206

13 | P a g e
County         Grand    Jury   for   the   offense   of    Conspiracy      to

Commit Murder in Trial Court Cause Number CR-4071-11-H.3

This case was tried to a jury which convicted Appellant

Acuna          and     sentenced     her   to    imprisonment      in     the

Institutional            Division     of   the   Texas    Department       of

Corrections for a period of twenty (20) years.                          This

appeal ensued.4

                     STATEMENT REGARDING ORAL ARGUMENT

Appellant Acuna is not requesting Oral Argument at this

time.




3
  1CR@3-4; This new indictment was based on the same criminal episode as that
relied upon in the previous case, trial court cause number CR-2725-10-H,
where Appellant Acuna was acquitted; 1CR@8, 200
4
  See TRAP 43; TEX. Penal. Code Ann. Section 15.02 & 19.02; CR@3, 304


14 | P a g e
                                ISSUES PRESENTED

ISSUE ONE:

Appellant Acuna’s acquittal on                   the murder charge in

Cause number CR-2725-10-H bars a subsequent trial on a

charge         of   Conspiracy       to   Commit   Murder    -   the    same

murder.

ISSUE TWO:

The trial court erred in denying defendant’s Special

Plea of Double Jeopardy.5

ISSUE THREE:

The      doctrine        of     collateral     estoppel   bars    the    re-

introduction            of    evidence    previously   admitted    against

Appellant Acuna where Appellant Acuna was acquitted of

the same murder.6

                               STATEMENT OF FACTS

        Appellant            Acuna   submits    the    following        facts

pertinent to the issues on appeal.                        In trial Court

Cause Number CR-2725-10-H, Appellant Acuna was indicted

for the offense of Murder.7                 The facts at trial were as

5
    2CR@345, 327
6
    2CR@199; RR2@4-14
7
    1CR@8-9

15 | P a g e
follows.            On July 3, 2010, at the Donna Lakes in Donna,

Texas,         Jose       Guadalupe        Fiscal      was    murdered.         He   was

stabbed approximately 45 times and his body was burned

as      was         his   vehicle.8        The    investigation           identified

Antonio DeLeon and Juan Manuel Salazar as the “actual

killers.” They stabbed Fiscal; they burned his body.9

The        investigation               identified       Appellant         Acuna       as

DeLeon’s            mother       and    Salazar’s      sister-in-law.                They

lived          in     Donna,       Texas     together         with      the     victim,

Fiscal.10

        Fiscal,           upon     reconciling         with       his    wife,       Alma

Fiscal,         was       attempting       to     break      up    with       Appellant

Acuna, who he’d been seeing and living with for some

time.11             The    State       alleged    at    trial      that       Appellant

Acuna, in a fit of jealous rage, orchestrated a plan to

kill Fiscal.12 She was accused of “asking DeLeon and

Salazar to kill Fiscal.”                         It was the State’s theory

that Appellant Acuna wanted Fiscal dead and that she

8
  2RR7@24-25; 1RR5@22-24
9
  1RR3@41-42; 1RR4@53; 2RR7@110
10
   2RR7@94-96; 1RR4@47
11
   1RR5@160-161, 185; 2RR9@104
12
   1RR2@98,128

16 | P a g e
was      “criminally         responsible”        for    acts    committed    by

DeLeon and Salazar and the actual killing.                          According

to the State, she was the one who “asked” Fiscal to

take a drive to the crime scene; she was the one who

“asked” DeLeon and Salazar                    to kill Fiscal.13         These

facts came out during a trial in the 389th District

Court in trial court cause number CR-2725-10-H, where

the jury, after deliberating on the Law of Parties,

acquitted Appellant Acuna of Murder in April of 2011.14

        Then        in   September     of    2011,     Appellant   Acuna    was

indicted for “Conspiracy to Commit Murder.”                          She once

again was charged with the murder of Jose Guadalupe

Fiscal,         only      this   time       charged    with    conspiracy   to

commit the same murder.15 The defense entered a Special

Plea in Bar claiming Appellant Acuna was being twice

placed         in    jeopardy    for    the    same     offense    citing   the

acquittal in CR-2725-10-H. That Special Plea was denied



13
   The first jury was asked to find that Appellant Acuna “asked” the victim to
drive to the crime scene, whereas the second jury was asked to find that
Appellant Acuna “lured Jose Guadalupe Fiscal to the location where he was
killed.” 1CR@196; 2CR@82
14
    1CR@200
15
    2CR@3-4

17 | P a g e
and       Appellant       Acuna   was    forced       to   run    the   gauntlet

again.16

           At trial, the State presented the same theory,

witnesses and evidence as was presented to the first

jury.          Here, Appellant Acuna was accused of “performing

over acts in furtherance of the conspiracy” to commit

the murder by “luring” Fiscal to the place where was to

be killed; She was accused of “directing” DeLeon and

Salazar to kill Fiscal.                 This time, the jury convicted

Appellant Acuna of Conspiracy to Commit Murder and the

jury           assessed    punishment          at    imprisonment       in    the

Institutional             Division      of    the     Texas      Department   of

Corrections for a period of Twenty (20) years and a fin

e of $10,000.17


                           SUMMARY OF THE ARGUMENT


         Appellant Acuna was twice put in jeopardy for the

“same offense” in violation of her rights under the

Fifth          Amendment    and   the        Due    Process   Clause     of   the


16
     2CR@327,345
17
     2CR@87, 94

18 | P a g e
Fourteenth Amendment to the Constitution of the United

States of America.

        The Double-Jeopardy Clause does not necessarily bar

subsequent prosecution for acts that can be proven and

punished under different statutory provisions requiring

proof of different elements.18

        However,    Collateral     Estoppel      guarantees      “when     an

issue of ultimate fact has once been determined by a

valid and final judgment, the issue cannot again be

litigated      between      the    same    parties      in    any    future

lawsuit.

        Collateral    estoppel      affects      successive         criminal

prosecutions in two ways. First, it completely bars

subsequent prosecution if a fact necessarily determined

in the former trial is an essential element of the

subsequent         prosecution.19      Second,       where     subsequent

prosecution is allowed to proceed, collateral estoppel

bars introduction or argumentation of facts necessarily



18
  Blockburger v. United States, 284 U.S. 299, 304 (1932).
19
  The first jury was instructed to deliberate on the Law of Parties; the
second trial requires the element of an "agreement.”

19 | P a g e
decided in the prior proceeding.20 In this appeal, both

applications of collateral estoppel are at issue.21

                        ARGUMENT AND AUTHORITIES

                        ISSUE NUMBER ONE (Re-stated)

Appellant Acuna’s acquittal on the murder charge in
Cause number CR-2710-10-H bars a subsequent trial on a
charge of conspiracy to commit the same murder.

                        ISSUE NUMBER TWO (Re-stated)

The trial court erred in denying defendant’s motion to
dismiss indictment on double jeopardy grounds.


                     ISSUE NUMBER THREE (Re-stated)

    The doctrine of collateral estoppel bars the re-
introduction of evidence previously admitted against
Appellant Acuna where Appellant Acuna was acquitted of
the same murder.

        Appellant    Acuna    respectfully       asks    this    Court    to

consider Issues 1, 2 and 3 together.                    Appellant Acuna

submits        the   following     Argument      and    Authorities       in

support of her argument for all three.

        The    Double   Jeopardy    Clause     protects      a   defendant

20
  See i.e. United States v. Deerman, 837 F.2d 684, 690 (5th Cir. 1988)
21
  The Double Jeopardy Clause bars a second prosecution for the same offense
once jeopardy attaches. Ex Parte Lange, 85 U.S. 163, 168-169 (1873). Since
the case in Cause No. CR-2725-10-H was actually litigated to a verdict of
acquittal, jeopardy attached. Crist v. Bretz, 437 U.S. 28,29 (1978).


20 | P a g e
from the risk of being punished twice for the same

offense.22 In this case the jury found Appellant Acuna

guilty based entirely on the conduct for which she was

already        tried     and    acquitted.23        In    the   Application

paragraph of the Jury Charge from the first trial, the

jury was instructed:

        Now,     if    you    find   from    the     evidence       beyond     a

        reasonable doubt that on or about JULY 3, 2010, in

        Hidalgo       County,    Texas,     Juan     Manuel     Salazar       or

        Antonio DeLeon, did then and there intentionally or

        knowingly cause the death of an individual, namely,

        Jose   Guadalupe        Fiscal,     by   stabbing       him   with    a

        deadly    weapon,       to   wit:    a   knife,       and   that     the

        Defendant,      GUADALUPE      DE    LEON     ACUNA,    acted      with

        intent to promote or assist the commission of the

        offense by Juan Manuel Salazar or Antonio DeLeon by

        encouraging,         directing,     aiding,      or   attempting     to

        aid Juan Manuel Salazar or Antonio DeLeon to commit
22
  Abney v. U.S., 431 U.S. 651, 660-62 (1977).
23
  2CR@199, 341, 345; The facts, evidence and theory of prosecution of the
instant for Conspiracy to Commit Murder are the same facts, evidence and
theory used by the prosecution in the first trial. The first jury was
instructed to consider the principles of the Law of Parties and in doing so
found in Appellant Acuna’s favor as evidenced by their verdict of not guilty.
1CR@195-196, 206

21 | P a g e
        the offense of MURDER, by asking Jose Guadalupe

        Fiscal to drive to the crime scene,24 or by texting

        Juan Manuel Salazar to give notice that she and

        Jose Guadalupe Fiscal were              on their        way to the

        crime scene,25 or by texting Antonio DeLeon that she

        wanted Jose Guadalupe Fiscal six feet under, or by

        texting    Antonio      DeLeon      that     she     wanted      Jose

        Guadalupe Fiscal down so so bad, or by asking Juan

        Manuel    Salazar    or    Antonio      DeLeon     to    kill    Jose

        Guadalupe Fiscal,26 then you will find the Defendant

        "Guilty" of the offense of MURDER as charged in the

        indictment.

               Unless you so find beyond a reasonable doubt,

        or if you have a reasonable doubt thereof, you will

        acquit the Defendant and say by your verdict, "Not
24
    The first jury was asked to find that Appellant Acuna “asked” the victim to
drive to the crime scene, whereas the second jury was asked to find that
Appellant Acuna “lured Jose Guadalupe Fiscal to the location where he was
killed.” 1CR@196; 2CR@82
25
   Note in the first trial, the jury was asked to find that Appellant Acuna
“gave notice” to Juan Manuel Salazar that she and the victim were on the way
to the crime scene, whereas the second jury charge was asked to find beyond a
reasonable doubt that Appellant Acuna “notified” Juan Manuel Salazar that she
and the victim were traveling to the location where he was to be killed.”
1CR@196; 2CR@82-83
26
   Note in the first trial, the jury was asked to find that Appellant Acuna
“asked” Juan Manuel Salazar or Antonio DeLeon to kill the victim, whereas the
second jury was asked to find beyond a reasonable doubt that Appellant Acuna
“dircetd or told” Juan Manuel Salazar or Antonio DeLeon to kill the victim.”
1CR@196; 2CR@83

22 | P a g e
        Guilty."27

        Reviewing        the    indictment         in   the    instant        case,

Appellant         Acuna    is     charged       with    “conspiracy”          where

specifically, she’s indicted for having an intent that

a murder be committed and entering into an agreement

with Antonio DeLeon and Juan Manuel Salazar that they

commit the murder. The State’s theory in this case was

Appellant Acuna’s “overt acts” in furtherance of the

conspiracy were that 1) she lured Jose Guadalupe Fiscal

to     the      location       where    he   was    killed;         2)    that    she

notified Salazar that she and the victim were on the

way to the location where the victim was to be killed;

3) that she directed or told Juan Manuel Salazar to

kill       Fiscal;   4)        that    she   directed     or        told    Antonio

DeLeon to kill Fiscal.28

        As stated by the United States Supreme Court in

Ashe v. Swenson:

          “In     more     recent       times      with       the        advent   of

        specificity in draftsmanship and the extraordinary

27
  1CR@195, 196, 200; 2CR@82-83, 87
28
  2CR@3-4; See also 1CR@196 (the jury charge from the first trial where the
jury was instructed to consider these exact ultimate facts.)

23 | P a g e
        proliferation of overlapping and related statutory

        offenses,      it     became     possible    for   prosecutors        to

        spin out a startling numerous series of offenses

        from a single alleged criminal transaction.“29

        Based on the facts and the law, Appellant Acuna

prays this Court find that the State of Texas by and

through its District Attorney of Hidalgo County should

have been barred from trying Appellant for the offense

of “Conspiracy to Commit Murder” after her acquittal

for      the    offense      of    the   same   Murder.         Accordingly,

Appellant        Acuna      avers     this   case   should      result   in    a

judgment of acquittal as it violated Appellant Acuna’s

rights against double jeopardy, collateral estoppel and

issue preclusion.

        “Cases involving the arcane principles of double

        jeopardy        and        collateral       estoppel       are    not

        susceptible       of      bright-letter     law    or   black-letter

        law; these areas are most often gray, and dimly to

        be seen.       Needless to say, one entering this field



29
     397 U.S. 436, 445 n. 10 (1970)

24 | P a g e
        must do so with trepidation.”30



A. Collateral Estoppel in Criminal Cases

        The    Supreme     Court        first    applied      “collateral

estoppel” to a criminal proceeding in United States v.

Oppenheimer.31 The claim there was not based on a prior

acquittal,      but    rather      on    a   pre-trial     legal     ruling

favorable to the defendant.32 Subsequently, in United

States v. Adams33 and Sealfon v. United States,34 the

Court recognized that collateral estoppel could apply

30
   United States v. Larkin, 605 F.2d 1360, 1361 (5th Cir. 1979), cert. denied,
446 U.S. 939 (1980)
31
   242 U.S.85 (1916)
32
    Id. at 86 The defendant in Oppenheimer obtained a ruling that his
prosecution for violating the Federal Bankruptcy Act was barred by the Act’s
statute of limitations. After the statute of limitations ruling was held to
be wrong in an unrelated case, the government again filed charges against the
defendant. In response, the defendant invoked the prior determination that
his prosecution was barred by the statute of limitations as a defense to the
subsequent prosecution. The Court explained that because the defendant had
never been in “jeopardy” on the charges, the double jeopardy clause did not
protect him from the subsequent prosecution. Id at 87. At any rate, the Court
stated 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.” While the Court ultimately held that the second
prosecution was barred, it did not base its decision on constitutional
considerations. Rather, the Court based its decision on the notion that “a
plea of the statute of limitations is a plea to the merits” (citation
omitted), and stated:
       The safeguard provided by the Constitution against the gravest abuses
       has tended to give the impression that when it did not apply in terms,
       there was no other principle that could. But the fifth amendment was
       not intended to do away with what in the civil law is a fundamental
       principle of justice (citation omitted), in order, when a man once has
       been acquitted on the merits, to enable the government to prosecute him
       a second time. Id at 88
33
   281 U.S. 202 (1930)
34
   332 U.S. 575 (1948)

25 | P a g e
to bar prosecution after acquittal on related charges.

In Adams, the Court held that the collateral estoppel

doctrine did not bar the second prosecution because the

acquittal was ambiguous.35 In Sealfon, the Court held

that the defendant’s acquittal on conspiracy charges

barred prosecution for aiding and abetting his alleged

co-conspirator            in    perpetrating          the    substantive

offense.36 The Court acknowledged that the two crimes

were not “the same offense within the meaning of the

double         jeopardy    clause,”     so    basic    double    jeopardy

protection did not prevent the defendant from being

prosecuted        and     punished    for    both.    Nevertheless,     the

Court barred the second prosecution on the basis of the

collateral estoppel doctrine.37


35
   Adams, 281 U.S. at 204. The defendant was being prosecuted for making a
false entry in a report on the defendant’s bank. Id. at 203. The Court found
that the defendant’s prior acquittal on false entry charges relating to
conduct that had occurred earlier in the course of the same allegedly
fraudulent transaction was not broad enough to foreclose the later
prosecution. Id. at 205. The Court concluded that the acquittal could reflect
the jury’s determination that, although the entries were false, the defendant
believed them to be true or justified. Id. The Court also concluded that,
despite such a determination by the acquitting jury, another jury could
conclude that the defendant had “acquired more accurate knowledge” before he
made the later report, which was the subject of the second prosecution. Id.
36
  Sealfon, 332 @580
37
   Id. at 578-80. The defendant in Sealfon had concededly written a letter
which furthered the goals of the alleged conspiracy. Id. at 576. The Court
noted that acquittal on the conspiracy charges could only reflect a decision

26 | P a g e
        None   of   the   early    collateral      estoppel     decisions

were decided on constitutional grounds.38 Because the

Court had previously applied the double jeopardy clause

only to protect against re-prosecution for the same

offense, and the courts had not yet construed “same

offense” broadly enough, commentators noted the need to

supplement double jeopardy protection.39

        The    Supreme     Court      provided       that      additional




that the defendant “did not do so pursuant to an agreement with [the alleged
coconspirator] Greenberg to defraud.” Id. at 580. Yet, the government’s only
theory in the second trial was that the defendant had written the letter
pursuant to an agreement with Greenberg and had thereby aided and abetted him
to defraud the government. The Court therefore held that once the first jury
had refused to find such an agreement, collateral estoppel barred the
government from a second attempt to establish an agreement between the
defendant and Greenberg. With no alternate theory on which to proceed, the
government was barred from conducting the second prosecution.
38
  See Hoag v. New Jersey, 356 U.S. 464 (1958) overruled by Ashe v. Swenson,
397 U.S. 436 (1970). In Hoag the Court rejected a claim for constitutional
protection. The Court approached the question as one of fundamental fairness.
The Court stated “[d]espite its wide employment, we entertain grave doubts
whether collateral estoppel can be regarded as a constitutional requirement.
Certainly this Court has never so held.” Id. at 471. See also W. LAFAVE & J.
ISRAEL, CRIMINAL PROCEDURE § 17.4 (1985)

39
  See e.g., Lugar, Criminal Law, Double Jeopardy and Res Judicata, 39 IOWA L.
REV. 317 (1954) (discussing inadequacy of “same transaction” test); Mayers &
Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 HARV. L.
REV. 1 (1960) (discussing problems with defining offense) [hereinafter
Mayers]; Comment, Twice in Jeopardy, 75 YALE L.J. 262 (1965) (discussing
problems in determining what constitutes “same offense”); see also Note, The
Double Jeopardy Clause as a Bar to Reintroducing Evidence, 89 YALE L.J. 962
(1980) (discussing the inadequacy of the “same offense” test and collateral
estoppel).




27 | P a g e
protection in Ashe v. Swenson.40 In Ashe, the Supreme

Court held collateral estoppel constitutes an aspect of

double jeopardy protection and, therefore, is binding

on the states.41

        There, Ashe was not prosecuted twice for the “same

offense” as defined by the Court, but the circumstances

of his re-prosecution after acquittal illustrated the

potential for prosecutorial abuse and circumvention of

double jeopardy protection.42

        So,     the    Ashe    Court     confronted     the     need    for

additional protection to further the overall purpose of

the double jeopardy clause. In Ashe, six participants

in a poker game were robbed by three or four masked

gunmen.43 After the robbery, the gunmen stole a car and

fled.44        Four   men,    one   of   whom   was   Bobby   Ashe,    were

charged with seven separate offenses-the armed robbery

of each of the six poker players and the theft of the


40
     397 U.S. 436 (1970).
41
   Id. at 445.
42
   Id. at 439-40.
43
   Id. at 437.
44
   Id. The car belonged to one of the six robbery victims and was later found
abandoned in a field. Id.

28 | P a g e
car.45 At Ashe’s first trial, the evidence established

clearly the named victim, Knight, was indeed a victim

of armed robbery and that his personal property, as

well as that of the other players, was taken in the

robbery.46 The evidence connecting Ashe to the incident,

however, was unconvincing because it was not clear that

there          had    been   four     robbers   and   the    three     other

defendants had been arrested together.47 Further, the

evidence identifying Ashe as one of the robbers was

weak.48 The jury acquitted Ashe.49 Six weeks later, the

state brought Ashe to trial for the robbery of a second

participant            in    the    same    poker   game.    This    second

proceeding did not place Ashe twice in jeopardy for the

“same offense” because each offense required proof of a

fact the other did not - the identity of the robbery

victim          and    his     loss    of    property.      Although    the


45
   Id. at 438
46
   Id. The Court noted that the proof was “unassailable.”
47
   Id. at 437. Three of the four defendants were arrested in the vicinity of
where police had found the stolen car, whereas Ashe was arrested “some
distance away” from that area. Id.
48
    Id. at 438. Two of the victims could not identify Ashe as one of the
robbers, while two other victims could identify Ashe only by the sound of his
voice or certain mannerisms. Id.
49
   Id. at 439.


29 | P a g e
prosecution failed to persuade the initial jury beyond

a reasonable doubt that Ashe was one of the robbers,

traditional double jeopardy protection as contemplated

at that time would not shield him from the successive

prosecutions.          The   state      was     thus     afforded       six

additional          opportunities     to      prove    that    Ashe     had

participated in the robbery. At the second trial, the

State presented more convincing evidence that Ashe had

been one of the robbers.50 As a result of this stronger

presentation, the second jury convicted Ashe for his

participation in the robbery.51

        As will by discussed further below, Appellant Acuna

urges this Court to recognize the similarity here.                        In

this case, the State presented a wealth of testimony

and evidence in the first trial.                 However, that first

jury found in favor of Appellant Acuna and acquitted

her.           The State then was afforded the opportunity to

“refine” their case and re-present the testimony and
50
   Id. at 439-40. The two victims who were unable to identify Ashe as one of
the robbers in the first trial were able in the second trial to identify him
through his physical features and mannerisms. Id. at 440. Moreover, one of
the witnesses who had not been helpful to the prosecution’s case in the first
trial was not called to testify in the re-prosecution. Id.
51
   Id. Ashe was sentenced to 35 years in the Missouri State Penitentiary. The
Missouri Supreme Court affirmed the conviction. Id.

30 | P a g e
evidence. The State was afforded to a “do-over” since

the first trial revealed its weaknesses.                              The State,

while          presenting            the   same     case,      presented         it

differently after seeing what worked and what didn’t

work the first time around.

        Ultimately,            the   Supreme     Court    in   Ashe    held      the

conviction could not stand.52 holding specifically the

initial acquittal resolved the issue of whether Ashe

was      one       of    the    robbers    and    resolved     it     in    Ashe’s

favor.53 The doctrine of collateral estoppel therefore

precluded           the        prosecution       from     re-litigating          the

question of Ashe’s identity as one of the robbers in

the       second         trial.54      Since     proof    of    identity         was

essential to the second prosecution, and was therefore

an      “issue          of     ultimate    fact,”       Ashe   could       not   be

convicted unless the prosecution could re-litigate that

issue. As a result, the collateral estoppel doctrine

shielded him from further prosecution for his alleged



52
     Id. at 445
53
     Id. at 446.
54
     Id.

31 | P a g e
involvement in the criminal episode.55

        Similarly,          in    the   instant     case,      the   first    jury

considered            the    ultimate       fact    of    whether     Appellant

Acuna,          Juan        Manuel      Salazar     and        Antonio     DeLeon

“conspired” or “agreed” that Fiscal be killed.                                 The

record on appeal is clear that the State’s theory in

the first trial was one of conspiracy.                           Although they

didn’t call it “conspiracy,”56 the State’s theory was

that Appellant Acuna wanted Fiscal dead; that Appellant

Acuna          directed      or     “orchestrated”        the    murder;      that

Appellant         Acuna       “called       upon   DeLeon      and   Salazar    to

commit          the     murder       for    her;   that     Appellant        Acuna

performed         these       “overt       acts”   in    furtherance     of    her

orchestration.              Argument regarding these assertions are

set out more specifically below.57

        The      Ashe       Court    acknowledged        the    difficulty      in

determining the issues resolved by a general verdict of

“not guilty” and called on earlier decisions applying


55
   Id.
56
   Note that Appellant Acuna was originally charged with “conspiracy” to
commit murder in Count Two of the first indictment – CR-2725-10-H. This
Count was dismissed by the State. 1CR204
57
   1CR@8, 196; 2CR@8

32 | P a g e
the collateral estoppel doctrine in federal criminal

cases for guidance:

        “The federal decisions have made clear that the

        rule of collateral estoppel in criminal cases is

        not       to    be    applied       with    the    hyper-technical       and

        archaic approach of a 19th century pleading book,

        but with realism and rationality. Where a previous

        judgment         of    acquittal         was     based   upon    a   general

        verdict,         as    is   usually        the    case,     this     approach

        requires a court to examine the record of a prior

        proceeding,            taking       into    account       the    pleadings,

        evidence, charge, and other relevant matter, and

        conclude         whether        a     rational       jury       could   have

        grounded its verdict upon an issue other than that

        which          the    defendant          seeks     to     foreclose     from

        consideration.58

The Court further stated:

        “any test more technically restrictive would, of

        course, simply amount to a rejection of the rule of

        collateral            estoppel      in     criminal      proceedings,     at
58
     Id. at 444

33 | P a g e
        least in every case where the first judgment was

        based upon a general verdict of acquittal.”59

        Because      neither      the     fact    that     a    robbery       had

occurred nor the identity of the victims was open to

question, the Court easily concluded that the first

trial had settled the question of whether Ashe had been

one of the robbers.60                Again, here, given the first

jury’s “general verdict” after having been instructed

to      consider       the     language    in    the   jury         charge,   any

agreement or “conspiracy” between Appellant Acuna, Juan

Salazar and Antonio DeLeon to commit this murder was no

longer open to question.61                  This “ultimate fact” was

settled by the first jury.

        Further, the Ashe Court addressed the relationship

of      the    collateral        estoppel       doctrine       to    the     Fifth

Amendment guarantee against double jeopardy. Noting the

potential         for    “unfair     and    abusive”       re-prosecutions

presented by the excess number of overlapping statutory

offenses         and     the      resultant       utilization           of    the

59
     Id.
60
     Id. at 446
61
     1CR@3, 196, 200; 2CR@8;

34 | P a g e
collateral estoppel doctrine as a federal rule of law

to      curb         these    abuses,62       the   Ashe      Court    concluded

collateral estoppel was indeed among the protections

afforded by the Fifth Amendment.63

        Since its decision in Ashe, the Supreme Court has

declined several invitations to limit the collateral

estoppel protection afforded criminal defendants.64 On

other fronts, however, the Supreme Court has refused to

extend         the     protection        and    has    even     restricted   it

somewhat.65 In Standefer v. United States,66 for example,

the Court refused to apply collateral estoppel to bar

prosecution            of     an    alleged    aider   and     abettor    merely

because the alleged principal had been acquitted.67 The

Court          has     also        limited    the   extent     of     protection


62
     Id. at 445-46 n.10.
63
     Id. at 445.
64
   See, e.g., Turner v. Arkansas, 407 U.S. 366 (1972) (acquittal bars re-
prosecution even though offenses could not have been tried jointly under
state law); Harris v. Washington, 404 U.S. 55 (1971) (acquittal bars re-
prosecution even though acquitting jury did not hear all the relevant
evidence); Simpson v. Florida, 403 U.S. 384 (1971) (acquittal absolutely bars
re-prosecution even though it was preceded by a conviction).
65
   Appellant Acuna avers that neither of these “limitations” apply in the
instant case, but for a more complete discussion of the doctrine of
collateral estoppel, points them out.
66
  447 U.S. 10 (1980)
67
   Id. at 25-26. For a discussion of Standefer, see Case Comment, The Use of
Nonmutual Collateral Estoppel by Criminal Defendants: United States v.
Standefer, 93 HARV. L. REV. 804 (1980)

35 | P a g e
afforded by the collateral estoppel doctrine in civil

cases.68       An    issue     may    be     re-litigated         in    a     civil

proceeding after acquittal on criminal charges as long

as the goal is remedial rather than punitive. Thus,

despite the counter-vailing interest in enforcing the

criminal        laws,     the       Court        has    applied        collateral

estoppel        strictly       in    criminal          cases   to      give     the

defendant        the    benefit      of     an    acquittal.69         The    Court

relaxes        the   protection       only       when    defendants          seek   a

benefit        of    someone    else’s       acquittal         and     when     the

doctrine has been invoked in civil cases.

        The Supreme Court has not recently addressed the

use       of   collateral       estoppel          regarding     use      of     the

doctrine to restrict the prosecution’s evidence/theory.

Some courts permit this use.70                     Many courts hold             the

68
   See, e.g., United States v. One Assortment of 89 Firearms, 465 U.S. 354
(1984) (acquittal on criminal charges involving firearms not preclusive of
subsequent in rem proceeding against firearms)
69
   1CR@200
70
   See, e.g., United States v. Gornto, 792 F.2d 1028 (11th Cir. 1986); United
States v. Johnson, 697 F.2d 735 (6th Cir. 1983), cert. denied sub nom. Hicks
v. Unied States, 108 S.Ct. 95 (1987); United States v. Mespoulede, 597 F.2d
329 (2d Cir. 1979); United States v. Day, 591 F.2d 861 (D.C. Cir. 1978);
Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972); Riley v. State, 181 Ga.
App. 667, 353 S.E.2d 598 (1987); see also United States v. Keller, 624 F.2d
1154 (3d Cir. 1980) (discussing the question and restating that circuit’s
position that the evidence is barred by non-constitutional doctrine of
collateral estoppel which prohibits re-litigation of decided facts); Vestal,
Issue Preclusion and Criminal Prosecutions, 65 IOWA L. REV. 281 (1980)

36 | P a g e
doctrine is limited to those cases where an ultimate

fact was resolved in the defendant’s favor in a prior

proceeding.71 The Supreme Court ultimately agrees. In

Yates          v.   United   States,72   over   a    decade    before   its

decision in Ashe, the Supreme Court stated: “The normal

rule is 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.”73

If     Courts        limit   the   doctrine     in   this     manner,   the

(courts more willing to use preclusion doctrine to foreclose repetitive
litigation); Note, Evidentiary Use of Prior Acquitted Crimes: The “Relative
Burdens of Proof” Rationale, 64 WASH. U.L.Q. 189 (1986) (suggests that courts
should exclude evidence from prior acquitted crimes only if it is necessary
to prove same ultimate fact); but see United States v. Gentile, 816 F.2d 1157
(7th Cir. 1987) (acquittal on charge of interstate commerce violation not
preclusive of use of same testimony on retrial to prove charge of cocaine
possession).
71
   See, e.g., Flittie v. Solem, 775 F.2d 933 (8th Cir. 1985), cert. denied,
475 U.S. 1025 (1986); United States v. Sutton, 732 F.2d 1483 (10th Cir.
1984); United States v. Van Cleave, 599 F.2d 954 (10th Cir. 1979); see also
People v. Goodman, 69 N.Y. 2d 32, 36-44, 503 N.E.2d 996, 999-1003, 511
N.Y.S.2d 565, 568-72 (1986) (declining to adopt the “evidentiary fact rule”
in that case); E. IMWINKELRIED, UNCHARGED MISCONDUCT EVIDENCE § 10.06 at 12
(1984) (“The majority view is that the collateral estoppel doctrine does not
apply to the subsequent use of evidence of the act as uncharged
misconduct.”); Note, Collateral Estoppel Effect of Prior Acquittals: United
States v. Mespoulede, 46 BROOKLYN L. REV. 781 (1980) (advocating that
collateral estoppel be limited to ultimate facts); Note, Perjury by
Defendants: the Uses of Double Jeopardy and Collateral Estoppel, 74 HARV. L.
REV. 752, 758-59 (1961) (discussing various approaches used by courts in
applying collateral estoppel in criminal cases); Note, supra note 39.
72
   354 U.S. 298 (1957).
73
   Id. at 338 (citing The Evergreens v. Nunan, 141 F.2d 927 (2d Cir. 1944))
(other citations omitted), cert. denied, 323 U.S. 720 (1944)).


37 | P a g e
doctrine         will     never     act   to    bar   evidence.        The   harm

against which collateral estoppel protects cannot be

prevented if the protection applies only when the fact

determined in the first trial is also an ultimate fact

in     the      second     trial.    Appellant        Acuna    advocates       the

broader construction of collateral estoppel discussed

hereinbelow.

B. Double Jeopardy Protection: “Same Offense” and Re-
use of Evidence

        Collateral          estoppel       is        not      the     principal

constitutional             protection          against        re-prosecution.

Double          jeopardy     bars     re-prosecution          for     the    same

offense.74 Double jeopardy applies equally whether the

initial prosecution ended in conviction or acquittal.75

Collateral estoppel therefore must be viewed against

the backdrop of basic double jeopardy protection.76

        The role that re-use of evidence, as opposed to

overlap of statutory elements, plays in defining the

“same          offense”    for    purposes      of    double        jeopardy   is

74
   See Brown v. Ohio, 432 U.S. 161 (1977); Green v. United States, 355 U.S.
184, 187-88 (1957)
75
   Brown, 432 U.S. 161, 165; LAFAVE, supra note 11, § 24.1
76
   2CR@199, 341, 345

38 | P a g e
unclear. The Supreme Court defined “same offense” in

Block-burger v. United States77 and has never departed

from       that   basic     definition.    “Where      the    same    act   or

transaction        constitutes      a    violation     of     two    distinct

statutory         provisions,      the    test    to    be     applied      to

determine whether there are two offenses or only one,

is      whether     each      provision     requires         proof    of    an

additional fact which the other does not.”78 In most

cases, comparing the statutory elements will determine

whether the offenses are the same under the Blockburger

test.79 Thus, the Blockburger definition of the “same

offense,”         renders    the   role    of    the   evidence       in    the

successive trials insignificant to that determination.80

        However, the Supreme Court’s decision in Illinois

v. Vitale suggests a broader definition of the “same

77
   284 U.S. 299 (1932)
78
   Id. at 304 (citations omitted).
79
    See, e.g., Flittie v. Solem, 775 F.2d 933, 937 (8th Cir. 1985), cert.
denied, 475 U.S. 1025 (1986). See generally Thomas, The Prohibition of
Successive Prosecutions for the Same Offense: In Search of a Definition, 71
IOWA L. REV. 323 (1986)(general review and analysis of tests applied by
various courts); Comment, supra note 12.
80
   See Iannelli v. United States, 420 U.S. 770 (1975), overruled by Brown v.
Ohio, 432 U.S. 161 (1977); United States v. Levy, 803 F.2d 1390, 1397 (5th
Cir. 1986); Note, supra note 12. In Iannelli the Court noted that “the test
focuses on the statutory elements of the offense. If each requires proof of a
fact that the other does not, the Blockburger test is satisfied,
notwithstanding a substantial overlap in the proof offered to establish the
crimes.” Iannelli, 420 U.S. at 785 n.17.

39 | P a g e
offense.”81 Under that definition, two offenses which

have no overlapping elements could be the same offense

for double jeopardy purposes if the prosecution relied

on the same evidence or theory in both. Prosecution of

the      second       offense     would      be    barred     by    the   core   of

double jeopardy because reliance on the same evidence

would          make    it   the      “same        offense.”    Adopting        this

definition            of    the      “same        offense”         will    operate

regardless of whether the first verdict is an acquittal

or     a       conviction;      it   will     operate       independently        of

collateral estoppel protection and will eliminate the

need           for    collateral      estoppel        protection          in   some

cases.

        In Vitale the Court confronted a claim of double

jeopardy protection where two offenses did not have

overlapping           elements;      the     prosecution       was    likely     to

rely on the             same theory in the second                   proceeding.82

81
   447 U.S. 410 (1980); See Eisenberg, Multiple Punishments for the “Same
Offense” in Illinois, 11 S. ILL. U.L.J. 217, 244-46 (1987); Thomas, supra
note 47, at 382-88.
82
  Vitale, 447 U.S. at 418. The second proceeding had not yet occurred because
of the litigation concerning the defendant’s double jeopardy claim, therefore
the prosecution had never had to commit itself to a theory of prosecution or
introduce evidence to support its claim. Nevertheless, as the dissenting

40 | P a g e
Vitale was convicted of failing to slow his automobile

at the time of a fatal accident. The state prosecuted

him for involuntary manslaughter, and Vitale claimed

the double jeopardy clause barred further prosecution.83

The statutory elements were not the same, but Vitale

argued         the      prosecution      intended        to     establish

manslaughter by demonstrating he failed to slow. The

Supreme        Court    discussed,    without     entirely      settling,

whether double jeopardy protection bars prosecution for

an offense that has different statutory elements but

will be established in part by proving all the elements

of an offense of which the defendant has already been

convicted and for which he has been punished. Because

the first prosecution led to conviction rather than

acquittal, the question of collateral estoppel did not

arise.84 Vitale contended the offenses were the same for

purposes        of    double   jeopardy.    However,     comparing      the


justices pointed out, throughout the lengthy process of litigating the double
jeopardy claim, the prosecution had never suggested that it had any other
theory on which to pursue the manslaughter charge. Id. at 423 (Stevens, J.,
dissenting).
83
   Id. at 413; Id. at 416-19.


84
     Id. at 418-19.

41 | P a g e
statutory elements of the two crimes did not establish

that they were the same offense.85 The resolution of

Vitale’s            double      jeopardy    argument       turned        on    his

prediction           that    the    prosecution      would    rely       on    his

“failure to slow” to establish an essential element of

the manslaughter offense. The Court’s majority stated

if      the     prosecution        could   establish    the       manslaughter

offense only by proving Vitale’s “failure to slow,” the

defendant’s claim that the second prosecution violated

his double jeopardy protection “would be substantial.”86

Similarly, in the instant case, the first jury settled

the issue of whether Appellant Acuna, Juan Salazar and

Antonio DeLeon acted together pursuant to an agreement

to       kill       Fiscal.87       Yet,    the     State’s       only       theory

presented           at   the     second     trial    was     that       in    fact

Appellant Acuna, Juan Salazar and Antonio DeLeon acted

together pursuant to an agreement to kill Fiscal.

         Vitale      thus    suggests      if   elements     of    an    offense

85
   Vitale, 447 U.S. at 418; In a given case the prosecution could establish
manslaughter by automobile without establishing failure to slow. Id. at 416-
419.
86
      Id.
87
     1CR@196, 200

42 | P a g e
already disposed of would be proven as ultimate facts

in the subsequent prosecution, the two are the “same

offense”         and   further      prosecution     and    punishment      is

foreclosed.88

C. Collateral Estoppel and Double Jeopardy - Preventing
Re-use of Evidence


        If      the    first     proceeding       ends     in     acquittal

collateral estoppel comes into play as well as basic

double         jeopardy   protection.89     United       States   v.    Kills

Plenty90        illustrates      a    situation      in     which      either

collateral         estoppel    or    the   conclusion      that     the   two

crimes were the “same offense” would have barred the

second prosecution if brought by the same sovereign.91


88
   See generally Flittie v. Solem, 775 F.2d 933 (8th Cir. 1985), cert. denied,
475 U.S. 1025 (1986); Eisenberg, supra note 50, at 244-46; Thomas, supra note
47, at 382-88.
89
   See Green v. Ohio, 455 U.S. 976, 980-81 (1982) (White, J., dissenting) (in
order denying certiorari dissent described collateral estoppel as an
“independent safeguard”); Ashe v. Swenson, 397 U.S. 436 (1970); United States
v. Williams, 341 U.S. 58, 64 n.64 (1951); Flittie, 775 F.2d 933; United
States v. Castro, 629 F.2d 456, 464-65 (7th Cir. 1980) (collateral estoppel
does not bar re-prosecution after a conviction; it only operates after
acquittal); LAFAVE, supra note 11, § 17.4
90
   466 F.2d 240 (8th Cir. 1972), cert. denied, 410 U.S. 916 (1973)
91
   At the time Kills Plenty was decided, it was unclear whether double
jeopardy operated to preclude federal prosecution after prosecution by tribal
authorities. In Kills Plenty the court did not resolve that issue, holding
instead that double jeopardy protection would not foreclose the second
prosecution because it was not the same offense as the first and collateral
estoppel did not operate. Kills Plenty, 466 F.2d at 243. The Supreme Court
has since decided that tribal authorities are a separate sovereign from the
state and federal authorities. See United States v. Wheeler, 435 U.S. 313,

43 | P a g e
In Kills Plenty the defendant was tried and acquitted

in tribal court on a charge of driving while under the

influence of intoxicating liquor.92 He was then charged

in federal court with involuntary manslaughter.93 The

second jury was given the option of convicting on the

same theory and same evidence rejected in the first

proceeding. To establish involuntary manslaughter the

second prosecution had to prove the defendant killed

the victim without malice and “that such killing was

done in the commission of a lawful act which might

produce death and that such act was done either in an

unlawful           manner    or     without        due      caution        or

circumspection.”94 In the first trial, the question of

whether the defendant was intoxicated at the time of

the accident was resolved in his favor, providing a


328 (1978). Therefore, double jeopardy protection would not actually operate
on the facts of the case. This gap in protection illustrates an important
limitation of double jeopardy protection. It operates only when both
prosecutions are brought by the same sovereign authority and, therefore, has
no impact on successive prosecutions by different states or by state and
federal authorities. See Heath v. Alabama, 474 U.S. 82 (1985); Abbate v.
United States, 359 U.S. 187 (1959); Bartkus v. Illinois, 359 U.S. 121 (1959);
United States v. Addington, 471 F.2d 560, 566 (10th Cir. 1973).
92
   Kills Plenty, 466 F.2d at 241.
93
   Id. at 241-42.
94
     Id. at 242.


44 | P a g e
basis on which he could invoke collateral estoppel.95

However, intoxication was not necessarily essential to

conviction in the second proceeding; the prosecution

could          potentially   establish       involuntary        manslaughter

without proving intoxication. Therefore, the narrowest

application of collateral estoppel, to bar prosecution

by precluding re-litigation of issues of ultimate fact,

did not help the defendant. At the manslaughter trial,

the       Kills     Plenty    court     admitted     evidence          showing

defendant          was   intoxicated    at    the   time    of    the   fatal

collision and instructed the jury “that it is unlawful

to operate a motor vehicle upon a public highway while

in a state of intoxication.”96 Thus, although the jurors

might have based their guilty verdict on an unlawful

act       different       from   that    rejected          in    the    first

proceeding, they might equally have convicted because

they were convinced beyond a reasonable doubt that the

defendant had killed the victim while committing the

unlawful act of driving while intoxicated. The evidence

95
     Id
96
     Id. at 242.


45 | P a g e
and the jury instructions permitted, even invited, that

latter         resolution    of    the   case.   The    double    jeopardy

clause         should   protect     against      the    possibility     the

prosecution will obtain a conviction by re-litigating

an issue previously resolved in the defendant’s favor –

an acquittal.

        Like Vitale, the defendant in Kills Plenty could

have prevailed had he persuaded the court the second

charge was the “same offense” as the first. The second

charge in Kills Plenty could be viewed as the “same

offense” under the double jeopardy clause because the

prosecution relied on proof of intoxication. Under that

view, basic double jeopardy protection would bar the

second prosecution. In Kills Plenty, however, this was

merely         an   alternative    argument.     Because    the    initial

trial led to an acquittal, collateral estoppel would

also protect the defendant against further prosecution

on the basis of the same evidence and theory.

        Acquittal       on   the    substantive        charge    does   not

necessarily          preclude      or    limit   prosecution      on    the


46 | P a g e
conspiracy         charges         unless      collateral      estoppel   comes

into play. In such cases, therefore, protection will

not flow from basic double jeopardy protection. The

defendant         will        be    protected         by   the     doctrine   of

collateral         estoppel         or    not   at     all.    Therefore,     the

protection of the Collateral Estoppel doctrine must be

expanded to exclude evidentiary facts.97

II.   EXTENDING               COLLATERAL          ESTOPPEL         TO   EXCLUDE
EVIDENTIARY FACTS

        If an issue resolved in the defendant’s favor by an

acquittal is essential to the second prosecution, the

entire         prosecution          is    foreclosed          on   grounds    of

collateral estoppel, as it was in Ashe.98 In such a

case, a verdict could be achieved only by re-litigating

the previously resolved issue using the same facts,

evidence and prosecution theory.99

A. The Purpose of Collateral Estoppel


        Assessing        whether         and    how    collateral       estoppel

operates to preclude re-use of evidence after acquittal

97
     2CR@199
98
     Ashe, 397 U.S. at 446.
99
     2CR@199, 345

47 | P a g e
must focus on the purpose of collateral estoppel. In

Ashe, the Court did not speak at length to the purpose

of the doctrine. The Court merely stated: “Whatever

else double jeopardy may embrace ... it surely protects

a man who has been acquitted from having to ‘run the

gantlet’ a second time.”100 A clearer sense of the role

and       function          of       the     protection          must       incorporate

decisions           dealing          with    other    aspects          of   the   double

jeopardy clause and reasons why collateral estoppel is

constitutionally mandated.

         “A primary purpose served by the double jeopardy

clause         is    akin       to    that    served       by    doctrines        of    res

judicata            and    collateral         estoppel      -     to    preserve       the

finality            of     judgments.”101        In     a       frequently        quoted

passage         from       Green      v.     United    States,102           the   Supreme

Court          explained         the        reasons        for     providing           that

protection to the criminal defendant:

         The State with all its resources and power

         should           not    be     allowed       to        make    repeated
100
      Id. (citing Green v. United States, 355 U.S. 184, 190 (1957)).
101
      Crist v. Bretz, 437 U.S. 28, 33 (1978)
102
      355 U.S. 184 (1957).


48 | P a g e
         attempts        to    convict     an    individual         for   an

         alleged      offense,        thereby    subjecting         him   to

         embarrassment,              expense     and     ordeal           and

         compelling him to live in a continuing state

         of     anxiety        and     insecurity,       as    well       as

         enhancing       the       possibility    that    even       though

         innocent he may be found guilty.103

         Although there are situations where a defendant,

having once been put in jeopardy, may be tried again,104

the Supreme Court insists on unflagging double jeopardy

protection when the first proceeding ends in acquittal.

After conviction, a defendant is protected only from

further         prosecution          and   punishment         for     the       same

offense. When double jeopardy is invoked by a defendant

who has been in jeopardy and has not won an acquittal,

the Court will balance the defendant’s double jeopardy

interest         against       the     public    interest      in     enforcing

criminal          laws        to     determine    the     extent          of    the




103
      Id. at 187-88.
104
      LAFAVE, supra note 11, § 24.4.

49 | P a g e
protection.105

        But an acquittal occupies a particularly exalted

position in our system of criminal justice and commands

the       greatest     double       jeopardy    protection.106         After

acquittal, the constitution not only prohibits further

proceedings on the same offense, but also, through the

doctrine       of      collateral       estoppel,       prohibits       re-

litigation       of     individual      issues      resolved      in     the

defendant’s favor by the acquittal.107 The protection

flowing from an acquittal is absolute; it’s not subject

to compromise through application of balancing tests.108

Even a clearly erroneous acquittal is allowed to stand

as an absolute bar to further prosecution.109

        It’s   clear   once     a   defendant    wins    an    acquittal,


105
   See Illinois v. Somerville, 410 U.S. 458, 463 (1973). See generally Westen
& Drubel, Toward a General Theory of Double Jeopardy, 1978 SUP. CT. REV. 81
(1979) [hereinafter Westen].
106
    See generally Westen, supra note 83; See Sanabria v. United States, 437
U.S. 54, 64 (1978); but cf. United States v. Scott, 437 U.S. 82, 101 (1978)
(defendant seeks termination of trial without determination of guilt,
government’s appeal is not barred); see also Westen, supra note 83, at 84 (of
three interests served by double jeopardy, the most important is the
“interest in nullification,” an absolute interest in allowing the jury to
acquit against the evidence).
107
    1CR@200; 2CR@199, 327, 345; See, e.g., Sealfon v. United States, 332 U.S.
575 (1948)
108
    See Sanabria, 437 U.S. at 64; see generally Westen, supra note 83.
109
    See Sanabria, 437 U.S. at 64; see generally Westen, supra note 83.


50 | P a g e
additional      double     jeopardy       concerns    come    into    play.

After acquittal, if further proceedings are allowed,

the concern the prosecution will convict an innocent

person by presenting the same case to a new fact finder

is paramount.110 The prosecution, having failed in its

initial effort to convict a defendant cannot appeal to

correct any perceived unfairness to the prosecution’s

interest. The prosecution therefore may have a strong

incentive to seek an alternate way to achieve its goal

of conviction. A key purpose of collateral estoppel is

to avoid this risk.111 Protection against harassment by

successive prosecutions also comes into play in some

cases where collateral estoppel is the only source of

constitutional protection.112 If a theory or evidence

already found wanting by the acquitting fact finder is

an     important    aspect     of   the    prosecution’s       case,    the


110
    2CR@199; See United States v. Scott, 437 U.S. 82 (1978). In Scott, the
Court explained why protection against further prosecution is particularly
important after an acquittal: “To permit a second trial after an acquittal,
however, mistaken the acquittal may have been, would present an unacceptably
high risk that the government, with its vastly superior resources, might wear
down the defendant so that ‘even though innocent he may be found guilty.” Id.
at 91 (quoting Green v. United States, 355 U.S. 184, 188 (1957)). See Thomas,
supra note 47, at 337-340.
111
    See Comment, supra note 12.
112
    See Mayers, supra note 12; Vestal, supra note 39

51 | P a g e
chance of conviction may not be great, but permitting

the prosecution to proceed imposes on a defendant the

stress, embarrassment, and expense of the second trial.

Ashe illustrates these risks well. In Ashe, by using

the first trial, where defendant Ashe was acquitted, as

a dry run for the second, the prosecutor was able to

refine and improve the evidence that was presented to

the jury - precisely what the constitution forbids.113

What’s more, the prosecution was able to harass the

defendant by forcing him to trial again on charges he’d

fully          defended.    The      scope    of     collateral     estoppel

protection         must     be    defined     with    reference    to    these

double jeopardy concerns and to the specially protected

character         of   an        acquittal.    The     protection       of   an

acquittal is absolute.

        Two      concerns    are     most     pertinent     to    collateral

estoppel          protection.         First,         collateral     estoppel

protects a defendant against the risk of conviction or

113
   Much the way the State    was able to do in this case, where the DNA analyst
testified there was no       affirmative link to Appellant Acuna through her
analysis of the evidence      – this witness was not called to testify at the
second trial;    Ashe v.      Swenson, 397 U.S. 436, 447 (1970) (Black, J.,
concurring).


52 | P a g e
punishment because the prosecution was able to present

the case against the defendant to another fact-finder.

The       risk     to    the     defendant     flows     both      from   the

prosecutor’s opportunity to present the evidence in a

more           convincing       fashion,      having     evaluated        the

weaknesses in the prosecution case, and from the simple

opportunity to persuade another fact-finder, who may

prove more prone to convict than the first. Second,

collateral estoppel protects the defendant against the

harassment         and       accompanying    emotional       and   financial

expense of successive prosecutions.114 The prosecution

can        inflict       a     significant,     and     constitutionally

prohibited, burden on the defendant merely by again

holding          him    to    answer   charges,       even    if    ultimate

conviction is unlikely. These two concerns should guide

the courts in defining the scope of collateral estoppel

and determining its role in restricting the prosecution

in a criminal proceeding following an acquittal.


114
   Appellant Acuna retained counsel to defend her against these charges in the
first trial, however was unable to retain counsel to defend her in the second
trial. Her financial resources depleted, Appellant Acuna settled for
appointed counsel at the second trial and of course on appeal. 1CR@97;
2CR@110, 127, 155, 244, 247, 249, 252, 318-319

53 | P a g e
B. The Application of Collateral Estoppel to Exclude
Evidence

         When    the     risks        against   which    the    doctrine     of

collateral         estoppel        protects     are   present,      collateral

estoppel must shield the defendant by restricting the

prosecution. In some cases, reuse of evidence creates

those risks.            Appellant Acuna asserts the instant case

is one of those cases.

         Yawn v. United States115 is typical of the cases

raising this question and illustrates the need for a

collateral estoppel doctrine broad enough to provide a

remedy         even    if   no    issue    of   ultimate    fact     has   been

resolved         in     the       defendant’s      favor.      In   Yawn   the

defendant was first tried and acquitted for several

charges, all arising from his alleged possession of an

illegal still.116 The defendant was then tried on an

indictment charging conspiracy to violate the liquor

tax        laws.117         The       conspiracy      indictment       alleged

possession of the still as one overt act in furtherance


115
      244 F.2d 235 (5th Cir. 1957).
116
      Id. at 236
117
      Id.

54 | P a g e
of the conspiracy.118 The acquittal foreclosed further

attempts to convict the defendant of a charge which had

possession           of   the    still    as    an     essential    element.

Because        the     conspiracy      charge    could     be    established

without proving that the defendant possessed the still,

possession was not an issue of ultimate fact in the

conspiracy             prosecution.119         Therefore,          collateral

estoppel was not a complete bar to prosecution for the

conspiracy. But possession was alleged as an overt act

in     furtherance         of    the   conspiracy       and   the   evidence

demonstrating the defendant’s possession was presented

to     the     second     jury.120     Consequently,      the    defendant’s

double         jeopardy     protection         under    the     doctrine   of

collateral estoppel was threatened in two ways. First,

expecting         to      rely    on     the    evidence      demonstrating

possession, the prosecution was able to bring charges

that it might otherwise not have been able to bring,121

thus the prosecution was able to harass the defendant

118
    Id.
119
    Id. at 237
120
    Id.
121
    It is unethical for a prosecutor to bring charges without probable cause.
MODEL RULES OF PROFESSIONAL CONDUCT RULE 3.8(a) (Proposed Final Draft 1981).


55 | P a g e
by relying on its re-introduction of the same evidence

and theory in support of the conspiracy charge. Second,

the jury may have convicted the defendant of conspiracy

because the jury was convinced the defendant agreed to

violate          the     tax        laws    and     was     convinced       beyond       a

reasonable             doubt        that    he    possessed         the     still      in

furtherance of that goal. Thus, the prosecution may

have       prevailed          by        re-litigating       the    issue     resolved

against it by the previous acquittal and presenting

that issue to a second fact finder for resolution. The

prosecution may have convinced the second fact finder

to     accept         the     proposition         already        rejected        by   the

acquitting             jury.        Collateral        estoppel          should        have

protected             Yawn     by       excluding     the       evidence,        thereby

eliminating that aspect of the government’s conspiracy

case.          That    remedy       would    defeat       the     case    unless       the

prosecution             had     some        other     evidence          against        the

defendant and would also ensure that the prosecution

could          not    obtain        a    conviction       by    re-litigating          the

previously             rejected          proposition.             The     Yawn     Court


56 | P a g e
stated:

        “In the present case the Government had, and has,

        every right to establish the guilt of the accused

        of the separate offense of conspiracy to violate

        the     liquor   tax        laws    despite      the    acquittal      of

        unlawful possession of the still.122 But to allow

        the     Government     to     have     a    second     opportunity     to

        establish the precise fact of possession decided by

        another Court of competent jurisdiction in favor of

        the accused is to ignore the rule that ‘ ... the

        same facts cannot be twice litigated by the same

        sovereign against the same defendant.“123

        United     States      v.     Mock124      and   United       States   v.

Crispino125 illustrate other instances where collateral

estoppel        should   provide           protection     even    though       the

second         proceeding    does      not      depend    on    an     issue   of

ultimate fact resolved by the acquittal. In Mock and

Crispino        the   defendants        were       charged     with    narcotics

122
    See also Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L.
Ed. 1489.
123
     Id. at 237
124
     640 F.2d 629 (5th Cir. 1981).
125
     586 F.Supp. 1525 (D.N.J. 1984).


57 | P a g e
trafficking. After they were acquitted on the narcotics

charges,            the    defendants         were       charged      with     tax

violations. In each of the tax cases, the government

relied         on    the   theory      that     Mock    and   Crispino     didn’t

report         income      derived      from      narcotics        activity.    To

convict them the jury in each tax case would have to be

convinced           beyond      a    reasonable      doubt    of    the   “likely

source”         of     the      unreported          income.   In     Mock,     the

government’s main theory was that the defendant had

received and failed to report income from precisely the

conspiracy            of   which       he     had      been   acquitted;       the

prosecution even relied on the same witness who had

implicated Mock in the conspiracy trial.126 After Mock’s

conspiracy conviction was reversed and remanded, the

government re-prosecuted him, relying on evidence that

did      not        tend   to       establish     the    previously       charged

conspiracy, and obtained a conviction which withstood a

126
   United States v. Mock, 604 F.2d 341 (5th Cir. 1979) Prosecution introduced
testimony of Sandra Scott, testifying about Mock’s involvement with drugs at
a time close to but not covered by the first charges. The court rejected the
prosecution’s harmless error argument and reversed and remanded. Id. at 346-
47. The court concluded that both the extent of the duplicative testimony and
the prosecution’s reliance on proof of the same conspiracy made it unlikely
the jury would’ve convicted the defendant on the basis of proof of drug
activity independent of the acquitted conspiracy. Id. at 347.


58 | P a g e
collateral estoppel challenge.127 In Crispino, the court

ruled before trial that the government could not rely

on proof of the drug conspiracy to establish the likely

source         of    income,       but        refused       to    dismiss    the

indictment. The prosecution was free to introduce other

evidence supporting its tax charges, if it had any.

         In each case, the issues of ultimate fact resolved

by the acquittal of conspiracy charged in the first

trial were not issues of ultimate fact in the second.128

Nevertheless, the prosecution’s reliance on the theory

and       evidence       rejected        in    the        prior   drug   trials

presented           significant        risks         to     the     defendants’

interests. The threat in each case was that the second

jury would re-evaluate the defendant’s involvement in

the drug conspiracy, finding it the likely source of

income and thus base the conviction on the conclusion

already rejected in the initial acquittal. In Crispino,

the       court     even     commented         that        its    decision   was

“strongly bolstered by its conclusion the government,
127
      United States v. Mock, 640 F.2d 629, 632 (1981)
128
      United States v. Mock, 640 F.2d 629, 632 (1981)


59 | P a g e
disappointed by the results in the first trial, simply

polished and refined its evidence from that trial in an

effort to find some way, any way, of convicting this

defendant of criminal charges.”129 Collateral estoppel

should protect a defendant against the re-presentation

of a theory and evidence by the prosecution. If the

prosecution wants to continue to pursue a defendant who

has won an acquittal, collateral estoppel requires that

the prosecution find a new basis on which to proceed.

The       prosecution       should     not    be   able       to   avoid   that

prohibition by fitting the rejected theory and evidence

to new charges.

         Cases like Yawn, Mock, and Crispino demonstrate the

need for collateral estoppel protection to limit the

scope of re-prosecution after acquittal even where the

second prosecution does not involve the “same offense”

and no issue of ultimate fact in the second case has

been resolved in the defendant’s favor.

IV. Application of these principles to the instant case



129
      Crispino, 586 F.Supp. at 1535 (emphasis in original).

60 | P a g e
      A. The State’s Theory in Both Prosecutions130

        In trial court cause number CR-2725-10-H, Appellant

Acuna was charged by indictment as follows:

        “on or about the 3rd day of July, 2010 … did then

        and    there   intentionally      and   knowingly      cause    the

        death    of    an   individual,      namely     Jose    Guadalupe

        Fiscal, by stabbing him with a deadly weapon, to

        wit: a knife.131

        The     Prosecution      gave     the     following        Opening

Statement in that first case:

        Thank you, Your Honor.           May it please the Court,

        ladies and gentlemen of the jury, defense counsel

        and     co-counsel?      Good     afternoon,        ladies      and

        gentlemen. Ladies and gentlemen, the evidence that

        we will present to you will show you that this

        defendant was responsible for the death of Jose




130
    Note that the prosecution admits the State needs to have proven an
agreement to commit a conspiracy and overt acts in furtherance of that
conspiracy.   The State goes further and admits prior to the trial starting
that the evidence that will be presented this second tie around is “similar.”
RR2@13 As discussed herein, the evidence submitted to the first jury and that
submitted to the second jury is identical.
131
    Note that Count Two charging Appellant Acuna with Conspiracy to Commit
Murder was dismissed. 1CR@8, 204-205

61 | P a g e
        Guadalupe Fiscal.132 The evidence will show that Mr.

        Fiscal was hit over the head. He was struck so

        violently       that       he      was     probably         rendered

        unconscious.        After which, he was stabbed multiple

        times.    And as if that weren't enough, Mr. Fiscal's

        body was set on fire. Now, ladies and gentlemen,

        the State is not going to bring a witness to you

        who will tell you that this defendant personally

        struck that blow to the              victim's head.         Not one

        witness will come into this courtroom and tell you

        that she held the knife that was used to stab Jose.

        But    what   the    State   will    prove      to   you   beyond   a

        reasonable doubt is that this woman is completely

        responsible     for       Jose    Fiscal's      death,     that   she

        orchestrated        the   entire    --    the   entire     situation

        that    occurred     on    July    3rd,   2010.133    You'll      hear

132
    Right off the bat in the first case, the State concedes in its opening
remarks the evidence would show Appellant Acuna was “responsible” for the
death of the victim.    This first jury is told they would not hear evidence
Appellant Acuna committed the murder herself. The jury was later instructed
they were to convict if they believed Appellant Acuna was “criminally
responsible” for the death if she acted with intent that the offense occur
and aided, assisted or directed another in the commission of the offense.
1CR@196; TEX.PEN.CODE Section 7.02
133
    Here, the State’s theory becomes clear: that Appellant Acuna was the one
directing the killing – that she “orchestrated it.”       This becomes even
clearer when the indictment of the second trial is reviewed to reveal the

62 | P a g e
        evidence that Jose and Alma Fiscal began dating

        years ago. Eventually they married and they raised

        four children, and you'll hear testimony that there

        were good times and there were bad times just as

        any marriage.         Eventually the bad times outnumbered

        the    good    times    and        Jose   and    Alma      went      their

        separate      ways.         Alma     moved      to   the       state     of

        Louisiana where she worked in a refinery and Jose

        stayed behind in the Valley where he worked in a

        cabinetry business with his family. And you'll hear

        testimony      that    their       children      were      a    priority

        between the two of them, that Alma would come down.

        She would bring her children. Jose will spend time

        with his children. During the summer he spent time

        with   them.      You'll     hear     testimony        that     he     also

        shared time with another individual, and that's the

        defendant     who     sits    before      you    today,        Guadalupe

        Acuna,     also     known     as     Lupita.     And    you'll         hear

        evidence -- testimony that Jose spent a great deal

State charged Appellant Acuna with Conspiracy to Commit Murder alleging the
exact same “overt acts” alleged to have committed by her in the application
paragraph of the first jury charge.

63 | P a g e
        of time with Lupita.             Lupita lived in a home in

        Donna and she's raising five children.                     She had a

        daughter by the name of -- or has a daughter by the

        name of Alejandra, a son by the name of Antonio,

        another       daughter       named     Maria   and    two    smaller

        children and Jose spent time with Lupita and the

        children.       You'll also hear testimony that she had

        a brother-in-law by the name of Juan Manuel Salazar

        who    also    stayed    at    her     house   off   and    on.   But,

        ladies and gentlemen, Jose came to a point in his

        life when he realized who the person was that he

        wanted to wake up in bed next to every morning.

        And that's when the problems arose because Lupita

        wasn't that person.           She wasn't that woman.          It was

        Alma.     And Jose called his wife and he told her I

        want to make a fresh start.                 I want to make this

        right.        And Jose purchased a home for that fresh

        start, and he asked her to come home. But he also

        told    her    that     he    needed    a   little   bit    of    time

        because Jose knew this woman and he knew that it


64 | P a g e
        wouldn't be easy to walk away from her. Now, Alma

        was scheduled to return to the Valley July 3rd but

        she needed a few days early and she walked into

        that home that Jose had purchased for her with that

        fresh   start   and   she   had   an   unexpected     surprise

        because when Alma returned to that home, Lupita was

        there.134   And, of course, this angered Alma and she

        told Jose you need to get her out of here. And

        that's when Jose made a very important decision.

        He looked at Lupita and he told her to leave but he

        wasn't the only person making a decision that day.

        Because she left but she too had made a decision.

        Jose Fiscal would not walk away from her.                    She

        would make sure of it, and who would she look to?

        She would look to the two closest men in her life -

        - her brother-in-law, Juan Manuel Salazar, and her

        own son, Antonio.     She wanted Jose down. She wanted

        him six feet under.      And you'll have an opportunity




134
   Although not necessary to prove, the State lays out the motive for the
killing…the same motive relied upon in the second trial.

65 | P a g e
        to read the text messages135 that occurred between

        Lupita and her brother-in-law and her son.136 July

        3rd, 2010 was       a hot, windy day. Fireworks were

        being sold on the side of the road.                   People were

        making plans      to enjoy the         holiday.        Lupita was

        making plans too.       On July 3rd, 2010 she lured Jose

        Fiscal to Donna Lakes.          And when she was there and

        she was ready, she sent word to her brother-in-law

        and to her son and they came and they did exactly

        what Lupita wanted them to do.137 You'll also see

        that through a statement, several statements that

        this defendant gave to the investigators at the

        sheriff's department, and she'll tell you in her

        own    words,   exactly      what     happened      and    why     it

        happened. At the close of the evidence, the State

        will ask that you find this defendant guilty of



135
    The text messages proved to be the “cornerstone” piece of evidence used in
the first trial by prosecutors to show the communication which the State
relied on in showing there was collaboration between Appellant Acuna, DeLeon
and Salazar.
136
     Here, during the first trial, the State shows how important the text
messages were to show the communication between Appellant Acuna and the co-
defendants in order to prove the “criminal responsibility.”
137
    Again, the State relying on the theory that Appellant Acuna and the co-
defendants collaborated to kill the victim.

66 | P a g e
         murder.     Thank you.138

         The first jury rejected this theory and by way of

its Verdict expressed this rejection.139 This acquittal

in      Cause       No.   CR-2725-10-H       conclusively     established

Appellant Acuna did not commit the substantive offense

of “Murder.” Note the jury charge in the first trial

instructed the jury to convict if they believed beyond

a reasonable doubt that she was responsible for the

death of Fiscal under the Law of Parties.140                        In fact,

the jury charge specifically instructed the jury to

convict        if    they   found    Appellant      Acuna   acted    in   the

identical way with which she was charged by indictment

in the second case – this case.141 In other words, the

jury charge from the first trial actually presented the

jury with an opportunity to deliberate, consider and/or

“find” ultimate facts showing Appellant Acuna entered

into an agreement with Juan Manuel Salazar and Antonio




138
      State’s Opening Statement at first trial; 1RR2@98
139
      1CR@195-200, 206
140
      1CR@195-196
141
      1CR@196; 2CR@8-3-4

67 | P a g e
                               142
DeLeon to kill Fiscal.               The jury, by their verdict of

“not guilty” clearly rejected that notion and found in

favor of Appellant Acuna.143

        Five    (5)   months   after    her    acquittal,      Appellant

Acuna was again placed in jeopardy in trial court cause

number CR-4071-11-H.144 Here, charging Appellant Acuna

as follows:

        On or about the 3rd day of July, 2010, with the

        intent that murder, a felony, be committed, agree

        with Juan Manuel Salazar and Antonio Rodriguez De

        Leon that one of them would engage in conduct that

        would    constitute     said     offense,      and     the    said

        defendant performed an overt act in pursuance of

        said    agreement,     to    wit:   luring     Jose    Guadalupe

        Fiscal to the location where he was killed.


142
    Note that the first jury was instructed on the definition of the Law of
Parties.     That definition included that “all persons are parties to an
offense who are guilty of acting together in the commission of an offense.”
1CR196; TEX.PEN.Code Section 7.02; See Also Wooden v. State, 101 S.W.3d542,
546 (Tex.App.-Fort Worth 2003, pet. ref’d.)(The evidence must shpw at the
time of the offense the parties were acting together, each contributing some
part towards their common purpose.) Obviously then whether one calls it
“acting together toward a common purpose” or they call it “conspiracy,” it’s
the same thing.
143
    1CR@196, 200
144
    The first jury returned an acquittal on the murder charge on April 20,
2011; the indictment charging Appellant Acuna with this Conspiracy to Commit
Murder was filed September 13, 2011. 1CR@200; 2CR@3-4

68 | P a g e
        And………… On or about the 3rd day of July, 2010, with

        the intent that murder, a felony, be committed,

        agree   with   Juan   Manuel   Salazar   and   Antonio

        Rodriguez De Leon that one of them would engage in

        conduct that would constitute said offense, and the

        said defendant performed an overt act in pursuance

        of said agreement, to wit: notifying Juan Manuel

        Salazar that the said defendant and Jose Guadalupe

        Fiscal were traveling to the location where Jose

        Guadalupe Fiscal was killed.

        And………… On or about the 3rd day of July, 2010, with

        the intent that murder, a felony, be committed,

        agree   with   Juan   Manuel   Salazar   and   Antonio

        Rodriguez De Leon that one of them would engage in

        conduct that would constitute said offense, and the

        said defendant performed an overt act in pursuance

        of said agreement, to wit: directing or telling

        Juan Manuel Salazar to kill Jose Guadalupe Fiscal.

        And………… On or about the 3rd day of July, 2010, with

        the intent that murder, a felony, be committed,


69 | P a g e
         agree     with     Juan        Manuel    Salazar   and    Antonio

         Rodriguez De Leon that one of them would engage in

         conduct that would constitute said offense, and the

         said defendant performed an overt act in pursuance

         of said agreement, to wit: directing or telling

         Antonio Rodriguez De Leon to kill Jose Guadalupe

         Fiscal.145

         This second time around,146 the State stated in its

opening remarks:

         The man that was found on that dirt road had been

         struck    over    the    head.      He    had   been   stabbed   45

         times, and his body had been set on fire.                His name

         was Jose Fiscal. He was a son. He was a brother. He

         was a father. Now, Mr. Fiscal had met a young woman

         named Alma, and the two of them had a relationship

         when they were young. It resulted in the birth of a

         child, and the two of them married. They would go

         on to have three more children, and, as in most

         relationships, the evidence is going to show that


145
      CR@3-4
146
      CR-4071-11-H, the instant case.

70 | P a g e
        there were good times and there were bad times.

        And, at some point, the two decided to move their

        separate ways. You'll hear evidence or testimony

        that Alma relocated to the state of Louisiana to

        work.    And you'll hear that Jose stayed behind and

        worked with his family. There was visitation of the

        child. There was communication between the two. But

        Jose has entered into another relationship. And the

        evidence is going to show that, in fact, he entered

        into this relationship with the Defendant during

        the time that he was still with Alma. And as Alma

        moved away, he carried on this relationship with

        the Defendant. Now, the evidence will show that, at

        some    point,   Jose   realized   that   he   had   made   a

        mistake. He realized that he wanted to have his

        family and he wanted to be with his wife.            He had

        made a mistake. That mistake was the Defendant.

        Now, Jose began to communicate with his wife, Alma,

        and the evidence will show that she decided to come

        back, to come back to the Valley, but Jose knew who


71 | P a g e
        he was dealing with it. The evidence is going to

        show that Jose couldn't just walk away from Lupita

        because he knew what she was capable of doing. Now,

        Alma made her way back to the Valley. Jose had

        purchased a new home for them to share with their

        children. And the evidence will show that when Alma

        walked into that house, the Defendant was still

        there. Why? Because Jose hadn't gotten away from

        her yet because he knew who he was dealing with.

        He knew what she was capable of. But Jose made an

        important    decision      in   that   home   that   day.   That

        decision would result in the loss of his life, the

        decision that he made that day, telling this woman

        to leave. He asked her to leave that house. And the

        evidence will show that this angered Lupita. She

        would make him pay for that choice. Now, Lupita

        lived in a home with several of her children. She

        had    a   daughter   by    the   name   of   Alejandra,     and

        Alejandra had a boyfriend who was sharing the home,

        named Ezekiel Gamez. The Defendant had a son living


72 | P a g e
        in that home.     His name was Antonio De Leon. He had

        a girlfriend     he would date        at times      named Rene

        Mejia. The Defendant also had her brother-in-law,

        Juan Manuel Salazar, who was living in that home at

        that time because he was estranged from her sister.

        The evidence will show that Lupita ran that house.

        She made the decisions on what was going to happen

        in that home. And when Jose asked her to leave his

        new home, she had made a decision, but she knew she

        wasn't capable of carrying out that decision by

        herself. So what did she do?          She turned to two men

        that she controlled, her son and her brother-in-

        law.   And you will hear, through her own words,

        text messages147 that she shared with the two of

        them, a statement of accused or a confession that

        she gave investigators.148 You will hear what she

        did. In her own words, she tells her son, "I want




147
    The text messages are revealed to be a critical component of the
prosecution…again.
148
    The Same statements and/or confessions that were used against Appellant
Acuna in the first trial.

73 | P a g e
        him    down."149     The    evidence          will    show    that    this

        Defendant lured the victim to Donna Lakes and that

        she contacted her son and her brother-in-law and

        told them to come, and that she knew Jose would be

        murdered out there that day.150                      She knew because

        she is the one person who wanted it done. Now,

        you're    going     to     hear       this    presented       by   way    of

        witnesses.         You're    going       to     see    text    messages.

        You're    going      to    see    the        Defendant's      statement.

        And,    at   the     close       of    all     the    evidence      that's

        presented,     I'm    confident          that    you    will       have   no

        other choice but to find this defendant guilty.

        Thank you.

        By way of these “opening statements,” it’s apparent

the prosecution had every intent of presenting the same

case to both juries, using the same evidence, the same

witnesses and the same theory.151

        The first jury, by finding Defendant was not guilty


149
     Yet another critical piece of evidence that was used when Appellant Acuna
was tried the first time.
150
     This passage in the prosecution second opening statement is almost word for
word from the State’s opening statement in the first trial.
151
    2RR2@13; 2RR7@9 and 1RR2@98

74 | P a g e
in        Cause     No.     CR-2725-10-H          of     “knowingly       or

intentionally           “causing   the    death    of    Jose    Guadalupe

Fiscal,”       decided     reasonable      doubt       existed   Appellant

Acuna committed the offense of murder.152                    Further, in

reaching this verdict, the jury considered the Law of

Parties, as they were instructed.153 Therefore, not only

did      the   first     jury   decide    Appellant      Acuna   was   “not

guilty”        as   a    principal,      their    verdict    illustrates

reasonable doubt Appellant Acuna acted as a party.                      But

more specifically, by their verdict, the first jury

rejected the notion that Appellant Acuna “asked Jose

Guadalupe Fiscal to drive to the crime scene” as part

of her agreement154 with Antonio DeLeon and Juan Manuel

Salazar that Fiscal be killed; they rejected the notion

that Appellant Acuna “texted Juan Manuel Salazar to

give him notice that she and Fiscal were on their way




152
    TEX.PEN.CODE Section 19.02 (O’Connor’s Texas Criminal Codes Plus (2010-
2011); 1CR@196, 206; 7.02
153
    1CR@196
154
    Note the first paragraph of the indictment in CR-4071-11-H is the same as
the application paragraph (paragraph 5) of the jury charge in CR-2725-10-H;
the jury found in favor of Appellant Acuna in the first trial regarding this
issue, while the indictment in the second case charges the same conduct
already rejected by that first jury. 1CR@196; 2CR@3

75 | P a g e
to the crime scene” as part of her agreement155 with

DeLeon and Salazar that Fiscal be killed; they rejected

the      notion    that    she    texted    Antonio      DeLeon    that   she

wanted         Fiscal   “six     feet    under”    or   that   she    texted

Deleon that she wanted Fiscal “down so so bad;” they

rejected the notion that she “asked Juan Manuel Salazar

or Antonio DeLeon to kill Fiscal.”156 We know the first

jury in fact deliberated specifically on these notions

because         these     very    notions    were       included     in   the

application paragraph of the jury charge in the first

case.157        They    believed    by     their    verdict       there   was

“reasonable doubt” Appellant Acuna, acted alone in this

endeavor.          They believed by the verdict a reasonable

doubt existed Appellant Acuna acted together with Juan

Salazar and/or Antonio DeLeon with intent to promote or

assist the commission of the murder by Salazar and/or

155
    Note the second paragraph of the indictment in CR-4071-11-H is the same as
the application paragraph (paragraph 5) of the jury charge in CR-2725-10-H;
the jury found in favor of Appellant Acuna in the first trial regarding this
issue, while the indictment in the second case charges the same conduct
already rejected by that first jury. 1CR@196; 2CR@3-4
156
     Note the third and fourth paragraph of the indictment in CR-4071-11-H
charges the same conduct as that contained in the application paragraph
(paragraph 5) of the jury charge in CR-2725-10-H; the jury found in favor of
Appellant Acuna in the first trial regarding this issue, while the indictment
in the second case charges the same conduct already rejected by that first
jury. 1CR@196; 2CR@8-9
157
    1CR@196

76 | P a g e
Deleon.        The first jury believed by their verdict that

a reasonable doubt existed Appellant Acuna encouraged,

directed, aided or even attempted to aid Salazar or

DeLeon in their efforts to kill Fiscal.158

        The jury’s verdict of acquittal cannot necessarily

be said to be a finding of any “fact.”159                     Because that

is the rule of law, Ashe requires a reviewing court:

         “to    examine      the     record      of     the      prior

         proceeding, taking into account the pleadings,

         evidence,      charge,        and      other       relevant

         matter160in order to assess the applicability

         of collateral estoppel. The inquiry must be

         set in a practical frame and viewed with an

         eye     to       all      circumstances           of       the

         proceedings.”161

        In each case where collateral estoppel barred re-

litigation of facts, there’s been an acquittal, which

in and of itself is not a finding of fact. However, in

158
    TEX.PEN.CODE Section 7.02 (O’Connor’s Texas Criminal Codes Plus (2010-
2011); 1CR@ 196, 200, 202, 206,
159
    United States v. Watts, 519 U.S. 148, 117 S. Ct.633, 136 L.Ed.2d 554 (1991)
160
    397 U.S. at 444, 90 S. Ct. at 1194 (footnote omitted),
161
    Id. quoting Sealfon v. United States, 332 U.S. 575, 579, 68 S. Ct. 237, 92
L. Ed. 180 (1947).

77 | P a g e
determining whether collateral estoppel applies, Courts

have looked beyond the verdict and examined the record

of a prior proceeding and not based rulings on the

verdict of acquittal.

        It     is   noteworthy     that     in     both   cases     against

Appellant Acuna, the prosecution’s theory was one of

conspiracy162        -   arguing     that     in    order     to    convict

Appellant Acuna, the jury would need to find Appellant


162
    According to Black’s Law Dictionary, Conspiracy is defined as a
confederation between two or more persons formed for the purpose of
committing, by their joint efforts, some unlawful or criminal act, or some
act which is lawful in itself, but becomes unlawful when done by the
concerted efforts of the conspirators. A person is guilty of conspiracy with
another person or persons to commit a crime if with the purpose of promoting
or facilitating its commission he: (a) agrees with such other person or
persons that they or one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation of to commit such crime;
or (b) agrees to aid such other person or persons in the planning or
commission of such crime or of an attempt or solicitation to commit such
crime.
       Compare this to the Parties Charge in the Charge of the Court in the
first trial: All persons are parties to an offense who are guilty of acting
together in the commission of an offense. A person is criminally responsible
as a party to an offense if the offense is committed by her own conduct, by
the conduct of another for which she is criminally responsible, or both. A
person is criminally responsible for an offense committed by the conduct of
another if, acting with intent to promote or assist the commission of the
offense, she solicits, encourages, directs, aids, or attempts to aid the
other person to commit the offense. Mere presence alone will not constitute
one a party to an
offense. 1CR@196; TEX.PEN.CODE Section 7.02 (O’Connor’s Texas Criminal Codes
Plus (2010-2011); See Also Wooden v. State, 101 S.W.3d542, 546 (Tex.App.-Fort
Worth 2003, pet. ref’d.)(The evidence must show at the time of the offense
the parties were acting together, each contributing some part towards their
common purpose.)
       Compare further with the definition of Conspiracy given the second jury
in the jury charge. 2CR81
       Obviously then whether one calls it an agreement, acting together
toward a common purpose or they call it “conspiracy,” it’s the same thing.



78 | P a g e
Acuna          agreed,    directed,     texted     the    co-conspirators

and/or facilitated the common goal of murdering Fiscal

by      luring      the   victim   to   a   location      where   the   co-

defendants were to cause the death of Jose Guadalupe

Fiscal, pursuant to some “agreement.”

          In its closing remarks the second time around the

State argued:163

                 MS. PALACIOS:     May it please the Court, ladies

         and gentlemen of the jury, Defense Counsel. Good

         morning, ladies and gentlemen.              I'm going to have

         two     opportunities     to    address    you    this   morning

         because, as the State, I have the burden of proof,

         okay?      So the first thing that I want to talk to

         you-all about is the Charge of the Court.                  And I

         think that, if you think back to voir dire, you

         will remember me talking about the Charge of the

         Court, and that is what Judge Garza has just read

         to you.      These are your instructions, okay?                When

         you go back into the jury room, you will take this

         with you, and you can reference it. Now, we talked
163
      2RR10@14

79 | P a g e
        about a lot of this information during voir dire.

        The    definition    of    what   "criminal       conspiracy"       is

        given to you in here.164          And if you want to go back

        and look at it, you should.               "With intent that a

        felony be committed, she agreed with one or more

        persons or they or one or more of them engaged in

        conduct that would constitute the offense and she

        or one or more of them performed an overt act in

        pursuance    of     this   agreement."165          That    was    the

        definition that you heard in voir dire.                      And we

        broke it down and we talked about the different

        elements of that definition.              We talked about the

        fact that an agreement constituting a conspiracy

        may be inferred from the acts of the parties. Now,

        why do I bring that up?            Because you're not going

        to have any type of language saying, "I agree with

        you. I am going to kill Jose Fiscal."                  That is not


164
    Again, obviously the State relied on evidence of a “conspiracy” in the
second trial the same way the State relied on the law of parties in the first
trial to show that Appellant Acuna should’ve been held responsible for the
murder because she “orchestrated it.” See Opening statement of first trial
165
    Obviously right off the bat, the State in the second trial is relying on a
theory of conspiracy…. Compare this to the jury charge in the first trial
where the jury was instructed they were to convict if they found that
Appellant Acuna……_____________

80 | P a g e
        -- that's not what the State's burden is.                    You need

        to     infer     from        the    communications      that     were

        occurring between the parties that an agreement was

        made.166 Now, what type of act are we talking about?

        An "act" means a bodily movement, whether voluntary

        or involuntary, and includes speech, okay?                     One of

        the    ways    that     we    can   prove   an    act   is    through

        speech,        the    communication,        the    talking,       the

        instructions that were given.               And I'm going to go

        into more detail about these instructions later.

        What is an "overt act"?                It's any act knowingly

        committed by one of the conspirators in an effort

        to effect or accomplish some object or purpose of

        the conspiracy.          The act need not be criminal in

        nature. The fact that Lupita took Jose out to Donna

        Lake isn't in itself a criminal act, but she was

        doing that to accomplish what?               The death of Jose.

166
   The same way the State argued Appellant Acuna was responsible for the
murder in the first trial.     In the first trial the Jury was charged with
finding that Appellant Acuna asked the victim to drive to the crime scene;
whereas in the second trial State argued that she lured the victim to the
crime scene.   In both cases, the State relied on the same text messages in
support of the State’s theory that Appellant Acuna, De Leon and Salazar had
reached an agreement and had a plan to kill Fiscal, because she communicated
through the text messages and she lured the victim and she ultimately
“orchestrated the murder.” 1CR@196; 2CR@83

81 | P a g e
        Now, you have heard talk about other individuals in

        this case, and I do not want you to get sidetracked

        when you go back into that jury room.          You are not

        here today, you haven't been here this week, to

        decide the fate of Antonio De Leon.            That is not

        your concern. He either will have or has had his

        day in court with a jury.           You are not here to

        decide the fate of Juan Manuel Salazar.            The same

        thing.    He has his own day in court or he had it or

        he will have it.       You are here today to focus on

        this defendant.     Keep your focus on her. Now, Page

        Two of the charge, under No. 4, begins what we call

        our "application paragraph," and when you look at

        that     application   paragraph,     you're      going    to

        recognize    the    wording   that    you   saw     in    the

        indictment, okay? Remember, we had four paragraphs

        in our indictment, and I told you we have four ways

        that we can prove that this defendant is guilty of

        this offense.      And if you read through Paragraph 4

        -- I'm sorry -- No. 4, there's four paragraphs. In


82 | P a g e
        the    first   paragraph,      we're    alleging      that    she's

        guilty because she took Jose to the location where

        he would be killed.167        That's one way we can do it.

        You'll see the word "or."              Okay?      And what that

        means is if you think that I haven't proven that,

        which    I     am   going      to      disagree      very,      very

        strenuously, go to the next paragraph.                     You can

        find that she's guilty by notifying Juan Manuel

        Salazar that she and Jose Fiscal were traveling to

        the location where he would be killed.168 Go back to

        those text messages.           I'll go back into them in

        more detail later. Again, you're going to see "or."

        By directing or telling Juan Salazar to kill Jose

        Guadalupe Fiscal or by directing or telling Antonio

        Rodriguez De Leon to kill Jose Guadalupe Fiscal.169


167
    The first jury was charged with finding that Appellant Acuna “asked the
victim to drive to the crime scene;” the second jury was charged with finding
that Appellant Acuna “lured the victim to the place where he would be
killed.” 1CR@196; 2CR@82-83
168
    The first jury was charged with finding that Appellant Acuna “gave notice
that she and the victim were on their way to the crime scene;” the second
jury was charged with finding that Appellant Acuna “notified that she and the
victim were traveling to the location where the victim was killed.” 1CR@196;
2CR@82-83
169
    The first jury was charged with finding that Appellant Acuna “asked Juan
Salazar and Antonio DeLeon to kill victim;” the second jury was charged with
finding that Appellant Acuna “directed or told Juan Salazar or Antonio DeLeon
to kill victim.” 1CR@196; 2CR@82-83

83 | P a g e
        Okay? You can feel that she committed this offense

        by committing each and every one of these acts, and

        the argument that I'm going to make to you is she

        most    certainly    did,    or   you   can     feel    that    she

        committed one of those or two of them.                 Or you can

        disagree     amongst      yourselves,    but    it's    the    same

        result.      It's still guilty of criminal conspiracy

        to commit murder. Paragraph 6.               You are allowed to

        consider the previous relationship existing between

        the accused and the deceased.            I'm going to point

        your attention to the text messages between the

        Defendant and Jose.         That's what this paragraph is

        talking about.         You're allowed to consider, based

        on the evidence that's been presented to you, what

        was happening between these two parties.                   And I'm

        going   to    make   an    argument     to    you   that    that's

        motive. I told you the State doesn't have to prove

        motive, but we have.         What was happening?           Why was

        this defendant angry? Go to those text messages and

        read them. The last thing that I want to address


84 | P a g e
        with     you    before     I    give     Defense        Counsel    an

        opportunity      to      make    their     arguments       is     the

        "reasonable doubt" language, okay? I want you to

        think back to voir dire and how we talked about

        reasonable doubt, and we gave a hypothetical about

        the rain that had occurred in the parking lot. And

        I urge you, please use your common sense.                       Okay?

        We are not required to prove this case beyond all

        doubt.    Just rely on your common sense and look at

        the evidence that's been presented to you.                        And

        don't    look   at    it   piece   by    piece     by    piece,    as

        Defense Counsel will probably ask you to do.                      But

        look at the totality of the evidence.               The witness'

        affidavits      or     the      witness'     statements,          the

        testimony that you heard in the courtroom the text

        messages that you saw, the Statement of Accused,

        all of those things together.              Look at all of it

        together. Thank you.

Then:

        MS. PALACIOS:        Defense Counsel wants to remind you


85 | P a g e
        that you are holding Lupita's life in your hands.

        What I want you to remember, what I need you to

        remember is that on July 3rd, 2010, she held Jose's

        life in her hands.     And I want you to remember the

        choice that she made on that day.     She could have

        stopped what she had set in motion.     And was there

        a plan?     Yes, there was a plan.    And who was in

        charge of that plan?    This woman. Using your common

        sense, think about it. Was she going to have him

        murdered in her home?     Would that be a very good

        plan?     No.   She had to get him out. Could she --

        could she have him murdered in the middle of the

        night?    Based on the evidence that you heard, she

        couldn't get him near her at night because Alma was

        back in that house. Now, on July 3, 2010, a man's

        smoldering body was found beside Donna Lakes. When

        officers responded, they found that he had been

        stabbed 45 times. In addition to that, his throat

        had been slashed.      He had been struck over the

        head; a blow so strong that that alone could have


86 | P a g e
        taken his life.         And if that weren't enough, but

        you add insult to injury, most of his body was

        burnt.    He was left there like a piece of trash.

        And, yes, you had to see the pictures.               You had to

        know about it because we're here today because this

        woman    is    accused    of    murder.        And    surprise,

        surprise, that's exactly what happened. Now, when

        investigators arrived at the scene, the first step

        that    they   took,    just   as   in   the   course    of   any

        investigation, is to determine who this man was.

        And they found his identification on his body, and

        they were able to learn that this man was Jose

        Guadalupe Fiscal.        He was 38 years old. Now, the

        very first thing you do during the course of an

        investigation, you work your way backwards. Now we

        know who he is.        We need to know who he surrounds

        himself with.      So they got his phone records, and

        they made notification with the family.                 And what

        did they learn?        He had a wife named Alma, and they

        went to her. And he had a girlfriend by the name of


87 | P a g e
        Lupita, and they found her, and they spoke to her.

        And when you -- let's not get sidetracked. She gave

        -- we heard three statements and three statements

        of accused are what's in front of you, but there

        were     four     statements.             The       first     one    was     an

        affidavit,        and       what     do       we     know     about        that

        affidavit?         Investigator           Palacios      told        you,    she

        didn't    mention       knowing          anything      about        what    had

        happened     to    Joe.            She    didn't       talk     about       any

        problems she was having with Joe.                       She didn't say

        anything about that. So what did investigators do?

        They continued to talk                   to   the people        that       Jose

        knew.     They talked to Renee Mejia.                   Renee Mejia --

        remember, Renee is the girlfriend of Antonio, wife

        now.     And she had been at that home and Rene came

        forward and she told you, "I went to the police

        department      and     I    lied    when       I   spoke     to     them   at

        first."     But they spoke to her again, and what did

        they learn from Renee?               They're starting to get an

        understanding of what type of woman we're dealing


88 | P a g e
        with. Renee told you that she was at the house with

        Tony; that they were lying in the bedroom together

        and Juan came in and said, "Let's go."                  They left.

        They came back, and what did she say?                  What did she

        notice? What happened when they came back?                       What

        did she smell? Burnt, something burnt, like trash.

        She saw Lupe and Juan come into the house, Lupe

        telling them, "Stay in the room." Who is calling

        the    shots?        Lupita.     Renee     notices    Tony's   hand.

        Later, they're over to grandma's house, and what

        does Renee tell you? What is she told?                 What is she

        told, and who tells her? "Keep to the story.                   Stick

        together.       We were together." And Lupita doesn't

        say    it   once.      She     says    it   twice.     But    Defense

        Counsel      would    like     you    to    believe    that    she's

        scared, she's frozen.             If she's frozen, why is this

        woman continuing to give directions?                   Because she

        is     in   charge    of   the     plan.      She's     giving    the

        directions      before       it      happened    and     after     it

        happened. And what else does Renee tell you?                   Who's


89 | P a g e
        cleaning the Expedition?      Well, it's not Lupita.

        Who is it?     Her boys, Juan and Tony.     And Defense

        Counsel wants you to think, oh, well, she's not

        involved because she wasn't cleaning it.            Guess

        what?     She's not involved in the cleanup.          Why

        isn't she involved in the cleanup? Because she's

        the boss.    The boss doesn't get their hands dirty.

        The workers get their hands dirty. Jessica.           You

        heard    testimony   from   Jessica.    That   is    this

        defendant's own sister.     She was with her the day

        before she came to court to testify.       What did her

        own sister tell you?    Again, Lupita wasn't cleaning

        the Expedition. But what did she say about her?

        She was feeling something.     She was hurting.       But

        it wasn't for this guy.      This isn't who she was

        hurting for.    She was worried about herself.        She

        was worried about what was going to happen to her

        because, remember, this is all about her.           She's

        thinking, what about me?    What's going to happen to

        me?     Am I going to go to jail?      Because it's all


90 | P a g e
        about her. Alma Fiscal told you that that phone

        kept    buzzing       and     buzzing    and    buzzing      all    night

        long, and you know that's true because you have the

        records.        The text messages were coming over and

        over and over again, so much that what did Jose do?

        He went and parked his truck somewhere else.                         Why?

        Because he knows this woman.                   He knows what she's

        capable of doing.               Why he had to slowly remove

        himself from her. He parked his car somewhere else

        and walked to his house, ladies and gentlemen, so

        this woman wouldn't see his truck there.                         And what

        does he tell his wife to do?                  "Get your car in the

        garage.        Put the door down." What did Jose know?

        Jose,    Jr.        When      Jose    didn't    answer      those    text

        messages,       she    had     the    audacity       to   involve     his

        child. I mean, as a parent, you think about that.

        She was so desperate to talk to Jose, to get him to

        answer her phone calls, that she could cross a line

        and    bring    a     child    into     it.    But   wait    a    minute.

        Let's not forget who we're talking about, right?


91 | P a g e
        Because we're talking about a woman who would be so

        cold and so calculating, so manipulative that she

        would put a knife in her own son's hand.    That is

        the kind of woman that you're talking about.     That

        is this defendant. As the officers continue their

        investigation, they get to the text messages.    And

        I implore you, please, go back and read these.    And

        the first text messages that I want you to read are

        the ones from this defendant to Jose.     Close your

        eyes and you can just almost imagine her, how angry

        she was sitting there on that phone, message after

        message after message with no response.     She was

        boiling.   She was enraged, and she was done. And

        then look at the last text messages. She's so --

        she's so afraid, right?   She's so not in control.

        What does she do at the end, because it's all about

        her.    The last messages that she sends, Jose is

        dead.   She knows that because she was there.     But

        she sends him messages.    "Amor, where are you?"

        "Where are you, señor?"   She knows exactly where


92 | P a g e
        he's at.      Those messages are coming in at 1:40,

        2:14.      She knows where he's at. So what is she

        doing?     She's taking care of the one person that

        she always takes care of.           Is it Jose? Is it her

        own flesh and blood; her son, Tony?           Or, no. Who is

        it?     It's Lupita because that's what it's always

        all about. The communication between her, her son,

        her brother-in-law, use your common sense, and you

        take that and you apply it to what you heard from

        the     witnesses,   from    what   they    saw,   what   they

        experienced. The Defendant's Statement of Accused.

        Remember, she gave one affidavit where she said she

        didn't    know   anything,    and   then    she    gave   three

        statements.      We're not talking about a            rush to

        judgment.     We're talking about a murder that took

        place on July 3rd.      We didn't have an arrest until

        the early morning hours of July 7th.                A rush to

        judgment?     This woman came in and gave a statement

        and took off and was off for a couple of days.

        That's not a rush to judgment.             The investigators


93 | P a g e
        are getting information.        They're picking up leads.

        They're learning new information.             That is their

        job.     That is what they're supposed to do.        That's

        what we want them to do. When those statements are

        taken, what Defense Counsel wants you to do is they

        want     you   to   believe     that   when    an   officer,

        investigator, knows that someone is lying, that's

        it.    They're just going to stop talking to them.

        Especially when that person wants to keep talking.

        What do they expect you to do?          "You want to tell

        me the truth?       No, no, no, no.     Don't tell me the

        truth.    Don't tell me the truth.       You want to give

        it to me, but, no, no, no.        I don't want to hear it

        because I already got a statement.             We're done."

        We're not done. You know, that statement is very --

        all of them are very, very telling, but the last

        one, you know, Defense Counsel wants you to believe

        that they're putting words in her mouth; they're

        making her say things.         Why include that statement

        saying, "I regret it.         I loved Jose."    Why include


94 | P a g e
        that   statement?     I   mean,   you   want   this   woman;

        you've got her.     Why are you going to put in -- why

        put in language of love now?        You're not going to

        do that. That language is there because that's what

        the Defendant said, and so that's what they put in

        her statement. You know, Jose Fiscal will always be

        remembered as this 38-year-old man.            Always.   And

        his family has many, many, many beautiful moments

        that they're   going to remember with them.              But

        there are some moments that they will never share.

        Jose, Jr., will walk across the aisle and receive

        his college degree, and when he does             that, his

        father will not be sitting in the audience beaming

        with pride.    When Abby falls in love, her father

        won't walk her down the aisle and give her away.

        When little Gyselle grows up, she probably won't

        remember the   sound of her       father's voice.        She

        won't remember the warmth         of his hug.     And why?

        Because this woman would not allow it.          She was not

        going to let it happen.      She was tired of it.        She


95 | P a g e
        was sick of it.                Nobody else was going to have

        Jose.       If she couldn't have him, no one would. She

        showed him no mercy.             And just stop and think what

        45 stab wounds means.                 If she would have found

        someone to shoot him in the back of the head, that

        would have been an execution, but it would have

        been more merciful than what happened to Jose that

        afternoon. And I'm going to ask that of you go back

        into    that      jury     room      and    that    you     hold    her

        responsible for her actions. Thank you.

        Clearly in both opening statements and the closing

argument in the last trial, the prosecution relied on

the same evidence to prove the offense.                           Further the

jury was instructed in the first trial - in Cause No.

CR-2725-10-H          -   that    the    guilt     of   a   defendant      in    a

criminal case may be proved without evidence that he

personally did every act involved in the commission of

the crime charged. The law recognizes that ordinarily

anything        a    person      can    do   for   himself    may    also       be

accomplished through the direction of another person as


96 | P a g e
an agent or acting together with or under the direction

of another person of persons in a joint effort.170

        The jury, in order to find the Defendant not guilty

in        Cause          No.        CR-2725-10-H      of       “knowingly        or

intentionally” committing the murder, after considering

the charge, necessarily decided those facts in favor of

Appellant Acuna.                The first jury decided there was a

reasonable doubt               Appellant Acuna         acting alone or in

concert        or    joint          effort    knowingly     or     intentionally

caused         the        death        of     Jose    Guadalupe         Fiscal.171

Knowledge,           intent,         any     agreement,     any    “overt      act”

performed           in     furtherance          of   that      agreement       were

ultimate       issues          of    fact     and,   because      the   jury    has

considered          them,       the     State    cannot     re-litigate        this

issue.

      B. State’s Evidence in Cause Number CR-2725-10-H

        State’s      witness         Eduardo     Aleman     from    the   Hidalgo

County District Attorney’s Office was called to testify

at both trials.                Aleman testified in his capacity as a

170
    TEX.PEN.CODE Section 7.02 (O’Connor’s Criminal Codes Plus (2010-2011);
1CR@196, 2RR10@14,33
171
    1CR@200

97 | P a g e
crime          scene   specialist     with      the     Hidalgo      County

Sheriff’s         Department    at    both    trials      regarding      the

“evidence.”172         In both trials, he testified about the

scene of a homicide at the Donna Lakes on July 3, 2010;

he testified regarding observations upon his arrival

and described what he observed for both juries.173,174

Aleman         described    video-taping     and      photographing      the

crime scene, which video and photos were ultimately

entered into evidence at both trials and published to

both juries.175,176,177        Aleman is then walked through the

photos as both juries are allowed to review them once

they are admitted.            Note the prosecutor takes her time

in both trials to go through each of the photos with

this       witness.        Although   numbered     differently,       these
172
    1RR5@20,21; 2RR7@20-22
173
    Included in his testimony was how and what he observed at the crime scene
as regarding the victim’s vehicle, the victim’s body and the condition of
each.    He testified he observed the body to be slightly burned or not
completely burned. Some of the victims clothing was burned off. He observed
the victim’s body, which was face down, to have stab wounds. He testified he
observed a blood trail between the burnt vehicle and the lake. The victim’s
hair was burned off of the victim’s head. There was blood around the body.
2RR7@24-25; 1RR5@22-24
174
    1RR5@22-24; 2RR7@22-26
175
    State’s Exhibits 46-88 at the first trial represent photos of the crime
scene at the Donna Lakes – the crime scene.       State’s Exhibit 1-31 at the
second trial represent photos of the crime scene at the Donna Lakes – the
crime scene.
176
    At the first trial, the video of the crime scene is represented by Exhibit
89. 1RR5@33-34; At the second trial, the crime scene video is represented by
Exhibit 32. 2RR7@37-38
177
    1RR5@24-35; 2RR7@29-41

98 | P a g e
exhibits       are   the       same    photos     used    at    both   trials.

Aleman’s        testimony        served      to   show    the     victim    was

stabbed multiple times and the victim was burned.178,179

        State’s Witness Fernando Tanguma is called in his

capacity as an investigator with the Hidalgo County

Sheriff’s       Department           and    his   association       with    this

investigation.180 His initial duty here was to interview

Appellant        Acuna         at     the    Sheriff’s         Office.181   The

statement taken by Tanguma on July 6, 2010 is published

to     both     juries     and       the    Affidavit,     represented       by

State’s        Exhibit     6    in    the    first   trial       and   State’s

Exhibit 55 in the second trial, is read aloud to both

juries.182

        Next    Tanguma        described      a   “body   search       warrant”

178
    This evidence will prove critical at both trials as the State sought both
times to show Antonio De Leon and Juan Salazar actually stabbed the victim.
Aleman’s testimony also served the State’s theory in both trials by showing
that a gas can was found at a canal after receiving “information” from
Antonio De Leon – co-defendant.     The State’s theory at both trials was in
fact this gas can was tied to the crime since Aleman has now provided both
juries evidence of the victim being burned.
179
    1RR5@51-52; 2RR7@25-26
180
    1RR2@102-104; 2RR8@95-96
181
     1RR2@105; 2RR8@96 Note that before Tanguma even spoke with Appellant
Acuna, he already had a theory regarding her involvement: that Appellant
Acuna was a jilted lover and that she somehow had some involvement in the
killing of Fiscal.    1RR2@128 After Appellant Acuna gave Tanguma the initial
affidavit on July 6, 2010, he left her in the custody of Leonor Garcia.
1RR2@122, 131
182
    1RR2@115-121; 2RR@111-115

99 | P a g e
executed        on    Antonio    Rodriguez        De     Leon,   Juan   Manuel

Salazar, Guadalupe Acuna and Ezequiel Gamez.183                              Note

the testimony regarding body search warrants is not

covered by the prosecution with this witness in the

second trial.184 This is important to note as the DNA

evidence/testimony that was adduced at the first trial

served to “exclude” Appellant Acuna’s DNA from any and

all evidence in this case subjected to analysis. In

other words, the DNA evidence didn’t do the State any

good the first time around; it was not necessary the

second time around.

        State’s       Witness    Leonor     Garcia       testified      in   her

capacity         as     an    investigator         with      the    Sheriff’s

Department;           she    testified     at     both    trials.185    Garcia

obtained        phone       records   of    Appellant       Acuna    and     the

alleged         co-conspirators,           Juan    Manuel        Salazar     and

183
    1RR2@123-124 DNA Analyst Edna Zavala would be called to testify at the
first trial. Her testimony is discussed herein below. Interestingly, her
testimony would serve to show that Appellant Acuna was excluded from all
evidence submitted for analysis. This is important to consider since she was
NOT called to testify at the second trial - an example of the State getting
another shot at Appellant Acuna and “fixing” their case.
184
    Rather, since the DNA proved to exclude evidence of Appellant Acuna at the
first trial and the first jury obviously found in favor of Appellant Acuna
the first time around, the State noticeably left this evidence out the second
time around.
185
    1RR2@143; 2RR9@27

100 | P a g e
Antonio De Leon.186

        She helped Tanguma interview Appellant Acuna; she

told        both      juries     Appellant         Acuna      wasn’t      being

truthful.187          Garcia suggested Appellant wanted to “come

clean,” and another statement was given by Appellant

Acuna.188        This      statement       was     read    aloud     to    both

juries.189         Then,    Garcia     testified      about    yet     another

statement,190         represented      in    the    record    on   appeal    as

State’s         Exhibit     8   in   the    first     trial    and     State’s

Exhibit 57 at the second trial. This was entered into

evidence         at     both    trials      and    read    aloud     to    both

juries.191

        On cross examination at the first trial, Garcia

admitted the investigation relied on a theory Appellant

186
    1RR2@144; 2RR9@29; At both trials, there were “summaries” of text messages
between Appellant Acuna, Jose Fiscal, Antonio De Leon and Juan Salazar
published to the juries. They were identified as State’s Exhibits 20, 21 and
22 at the first trial.________________________       At the second trial, these
same “summaries” are identified as State’s Exhibits 37, 38 and 39. 2RR8@6-7
187
    1RR2@146-149; 2RR9@33-36
188
    1RR2@150-151, 164; 2RR9@37-38 By this time, Appellant Acuna has given an
initial statement to Investigator Palacios; she’s given one to Investigator
Tanguma and now she gives another to Investigator Leonor Garcia.        This 3rd
statement was identified as State’s Exhibit 7 at the first trial. 1RR2@150-
151 It was designated as State’s Exhibit 56 at the second trial. 2RR9@39-40
189
    1RR2@165-169; 2RR9@42-46
190
    This statement will be the 4th statement given by Appellant Acuna and the
second statement given to Leonor Garcia. This statement was identified as
Exhibit 8 at the first trial and Exhibit 57 at the second trial. 1RR2@172-
175; 2RR9@48-50
191
    1RR2@175; 2RR9@52

101 | P a g e
Acuna knew what she’d done and she’d planned it. In

other words, “they were going to go.”                   “She knew that

they were going to kill him.” “She lured him to where

she was at.”192        Garcia admitted at the first trial, by

the time she took the second statement, investigators

already had this theory of the crime.193                    She admitted

the “phone records” cemented the investigators’ theory

Appellant was involved.194              State’s Exhibit 8 at the

first trial and State’s Exhibit 57 at the second trial

(same exhibit) was heavily relied upon by the State at

both trials to show Appellant Acuna knew “they” were

going to do it because she had asked them to do it.

        “On Saturday, July 3, 2010, I knew Jose was going

        to be killed.      I regret asking anyone to kill Jose.

        I loved him.”195

        Then at the second trial, again, Garcia admits the

evidence used to arrest Appellant Acuna was the same

text messages and same confession.                    And before that


192
    1RR2@186
193
    1RR2@188-189
194
    1RR2@190
195
    State’s Exhibit 8 at the first trial and State’s Exhibit 57 at the second
trial; 1RR2@190; 2RR9@48-50

102 | P a g e
statement represented by State’s Exhibit 8 in the first

trial and State’s Exhibit 57 in the second trial was

taken where Garcia admitted she’d already received the

text message evidence from the phone records.                       She also

admitted that investigators “had all talked.”196 Clearly

then, at both trials, the evidence by this witness was

identical.             Further,    this    witness      admitted    at     both

trials          that    the     evidence    heavily      relied     upon     in

supporting the theory Appellant Acuna was involved was

the       text        message    evidence     and       Appellant    Acuna’s

statements.

        At      the     first    trial,     Garcia      responds    to      the

prosecutor that Appellant Acuna was not charged with

murder          because   she    knew     about   the    killing    of     Jose

Fiscal.           Rather, she was charged with Murder because

she “asked and planned it.”197

        Garcia then admitted on cross examination at the

first trial that the investigation revealed and she

believed Appellant Acuna’s son, Antonio De Leon                             and

196
   2RR9@54, 57-58
197
   States Exhibit 8 at First Trial ; State’s Exhibit 57 at Second Trial;
1RR2@200

103 | P a g e
Appellant Acuna’s brother-in-law, Juan Salazar were the

ones who stabbed Jose Fiscal.198                   Garcia advised she

corroborated Appellant Acuna communicated with Antonio

Rodriguez De Leon and Juan Salazar; that she was “going

to the beach; that her vehicle had been seen at the

crime scene.”199          This was further driven home to the

first jury on re-direct by the prosecutor where she

called          on   Garcia   to    confirm    with    regards    to   the

statements Appellant Acuna provided, Antonio Rodriguez

De      Leon     and   Juan   Salazar   were    acting     on    Appellant

Acuna’s request.

         “And the actions that they (Antonio De Leon and

         Juan Salazar) took on July 3rd, 2010 were requested

         by Appellant Acuna.”200

         Then at the second trial, this portion of Appellant

Acuna’s          statement    was     read    in      response    to   the

prosecutor’s questioning of Garcia.

         “I regret asking anyone to kill Jose. I loved him.”

         The prosecutor made it a point to ask this witness,

198
      1RR2@203-204
199
      1RR2@203
200
      1RR2@205-206

104 | P a g e
“who said that?” Garcia responded “Appellant Acuna said

that.”201

        CLEARLY, the State’s theory of prosecution in the

first case was one of conspiracy even though Appellant

Acuna           was    charged       with    the     substantive         offense     of

Murder.202            It    is    equally     clear      the     same      theory    of

prosecution            was       implemented       and     relied    upon     by    the

State           at    the        second     trial,       using      this    witness’

testimony.

        State’s            Witness   Aaron       Reyes     Garcia    testified       he

worked          and    lived       close    to    the    Donna    Lakes.        While

eating lunch on July 3, 2010, this witness noticed a

plume           of    smoke      coming     from     the    Donna       Lakes.203    He

testified upon discovering the plume of smoke, he went

to the street to get a closer look; that’s when he says

he saw a “light brown SUV,” possibly an Expedition.

This witness identified State’s Exhibit 16 as possibly




201
    2RR9@99
202
    TEX.PEN.CODE Section 19.02 (O’Connor’s Texas Criminal Codes Plus (2010-
2011)….and acquitted…
203
    1RR3@7-9; 2RR7@46-47

105 | P a g e
being       the        same      light    brown   SUV   he       saw    that    day.204

State’s Exhibit 16 at the first trial represented a

photo       of        Appellant      Acuna’s      vehicle.205         CLEARLY,     this

witness served both prosecutions by placing Appellant

Acuna and/or her vehicle at the scene of the murder.

        State’s Witness Jonathan Palacios testified in his

capacity              as   the    lead     investigator          in    this    case.206

Preliminarily, he talks about what he observed at the

crime scene and then turned to what his role was in the

investigation.207                  Palacios     then    talked         about   how   he

made it to an address on King Drive, an address where

the victim’s family advised Jose Fiscal was living with

his girlfriend, “Lupita.”208 “Lupita” was identified as

Appellant             Acuna.209     Palacios      takes      a    statement        from

Appellant.210               After,       Palacios   returned           to   2510   King

Drive           and    confirmed         the   occupants;        “Lupita’s”        son,

204
    State’s Exhibit 16 in the first trial. 1RR3@11-12 Note that no exhibit was
sponsored by this witness at the second trial although he described the same
vehicle at the second trial as a brownish/cream SUV like an expedition.
2RR7@48;    A photo referred to as State’s Exhibit 35 depicting the victim’s
vehicle would later be sponsored by state’s witness Renee Mejia. 2RR7@62-63
205
    1RR3@10-11
206
    1RR3@27-29, 30; 1RR4@64-65; 2RR7@89-90
207
    1RR3@30-33, 35-37; 2RR7@91-92
208
    2510 King Drive in Donna, Texas was the residence where Appellant Acuna and
the victim lived together. 2RR7@94-96
209
    1RR3@37-38
210
    1RR3@39-40

106 | P a g e
Antonio De Leon and brother-in-law, Juan Salazar were

among the occupants of the home.211 These two were named

as co-conspirators and were also the subject of the

State’s           theory;      they     were    the        actual     killers.212

Palacios          advised      the     jury     he     called       upon    fellow

investigators,            Joshua      Kaltenbach,          Leonor    Garcia    and

even      the      FBI    to   assist    in    obtaining       phone       records.

Phone           records     were     obtained        for    Appellant        Acuna,

Antonio De Leon, Juan Salazar and Jose Fiscal.213 These

records were admitted at the first trial as State’s

Exhibits 19, 19A, 19B and 19C at the first trial amd

State’s Exhibits 40, 41 and 42 at the second trial

representing the phone records of Appellant Acuna, Juan

Salazar and Antonio De Leon.214 These exhibits contained

numerous          records      of     communications         between       various

individuals.215

        “But based on the State’s theory that these three

211
     The testimony at both trials was developed to identify these two
individuals as Co-defendants; they were identified at both trials as the ones
with whom Appellant Acuna agreed to kill Jose Fiscal.
212
    1RR3@41-42; (See Leonor Garcia’s testimony)
213
    1RR3@43-44, 50-51, 54-55; 1RR4@19; 2RR7@105-107
214
    1RR3@53-54; Three disks containing phone records and text messages.     A
“significant” amount of information is contained on these three disks.
1RR4@22; 2RR8@5-6
215
    1RR4@22; 2RR8@5

107 | P a g e
        individuals were involved in this killing, we were

        looking for communications between them and these

        three numbers were ‘filtered’ out – those belonging

        to Appellant Acuna, Juan Salazar and Antonio De

        Leon.      We filtered their numbers out and further

        filtered by date concentrating on the dates July 1-

        3, 2010, given that the victim was found July 3,

        2010.216

        Investigators        included     filters      of    the    victim’s

phone number.217 Given the voluminous nature of these

phone records,218 Palacios testified it would be helpful

to present the text messages in a summarized format.219

State’s         Exhibit(s)    20,    21   and   22     are    offered     and

admitted representing “summaries” of State’s Exhibits

19,      19A,    19B   and    19C,   given      that    they       were   very

voluminous.220

216
    1RR4@22-23; 2RR8@7-8
217
    1RR4@23; 2RR8@8-23
218
    State’s Exhibit 19, 19A, 19B, and 19Cat the first trial. State’s Exhibits
40, 41 and 42 at second trial. 2RR8@5-6
219
    1RR4@24; Investigator and the prosecution actually go through the texts
from the victim and Appellant Acuna at both trials. 2RR8@8-23
220
     2RR8@7-8; 1RR4@24; The summary contained in State’s Exhibit 20 at the
first trial and State’s Exhibit 37 at the second trial contains the text
messages between Appellant Acuna and the victim Fiscal from July 1, 2010 at
12:01 a.m. to July 3, 2010 at 4:13 p.m. 1RR4@25; 2RR8@8 State’s Exhibit 21
at the first trial and States Exhibit 39 at the second trial represents text

108 | P a g e
        Investigator       Palacios   and   the    prosecutor        in   the

both trials publish these exhibits to the jury and go

through each text message communication. Referring to

the summary of text messages contained in the last page

of State’s Exhibit 20 in the first trial, there’s a

text message at 11:24a.m. where Appellant Acuna texted

the victim and told him, “come for me.”221                       Palacios

testified he was able to confirm Appellant Acuna and

the victim were together after that time.222                      He used

the surveillance footage at Pepe’s Drive Thru in Donna.

Relying on information provided by Appellant Acuna in

her Statement of Accused, Palacios in fact recovered

video           surveillance   from   Pepe’s    Drive-thru      in    Donna

where it was determined the victim and Appellant Acuna




messages between Appellant Acuna and her son Antonio De Leon between July 1,
2010 at 11:25 a.m. and July 5, 2010 at 4:49 p.m.          1RR4@25; 2RR8@23-24
State’s Exhibit 22 at the first trial and State’s Exhibit 38 at the second
trial represents text messages between Appellant Acuna and Juan Salazar
between July 2, 2010 at 4:40 p.m. and July 3, 2010 at 12:14 p.m.     1RR4@26;
2RR8@26
221
    2RR8@23;
222
     Note that there are three (3) more text messages recorded from Appellant
Acuna to the victim after that.     Palacios tells the jury that by the time
those texts are sent, the victim’s body had already been found.   1RR4@41; At
the second trial, Palacios makes this point as well when he testifies that he
was called to the crime scene “before lunch” when these last texts came in
after lunch. 2RR8@23

109 | P a g e
stopped on the day of the murder.223                   This footage was

represented by State’s Exhibit 18 at the first trial

and      was    published    to    the    jury    to    corroborate       the

investigation.224

        Next, Palacios goes through the summary of text

messages between Appellant Acuna and Antonio De Leon;

this is done at both trials. Notably, the jury hears

about a text from Appellant Acuna to Antonio De Leon,

to wit:

        “It’s like I want him six-feet under.” “I want him

        down so, so bad.”225

        Palacios    and     the    prosecutor       then     discuss      the

summary of text messages showing communications between

Appellant Acuna and Juan Salazar. Notably                        here, the

prosecution is relying on text messages where Appellant

Acuna is receiving texts from Juan Salazar; he tells

her to try to take him over there;226 where Appellant


223
    Appellant Acuna in her Statement of Accused told investigators that she and
Fiscal had stopped at Pepe’s on the way to the Donna Lakes that day.
1RR4@41;
224
    1RR3@45-48.
225
    1RR4@41-44; 2RR8@24-25
226
    Given the State’s theory that Appellant Acuna “lured” the victim to the
Donna lakes where he was murdered, “him” here likely refers to Jose Fiscal.
2RR8@26-28

110 | P a g e
Acuna tells Juan Salazar that they are on their way to

the “beach,” which Palacios confirms means the Donna

Lakes.227 There are text messages where Appellant Acuna

and Juan Salazar text each other confirming they are in

fact “there.”228 Palacios testified these texts back and

forth about being on the way to the beach and about

being at the beach showed Appellant Acuna was with the

victim and Juan Salazar and Antonio De Leon were in

fact together.229

        These text messages led to a search warrant for

2510 King Drive, where Appellant Acuna lived together

with Antonio De Leon and Juan Salazar.230                  Investigators

discovered among other items, a beige Ford Expedition,

which Palacios described as “recently cleaned and/or

detailed.”

        “It was extremely clean. The carpet had striation

        patterns as if recently vacuumed, the outside of

        the vehicle was very clean as if it had just been

227
    1RR4@47; 2RR8@27
228
    1RR4@44-46; 2RR8@27
229
    1RR4@46; Palacios confirmed this by way of Appellant Acuna’s Statement of
Accused and the surveillance footage from Pep’s Drive Thru admitted as
State’s Exhibit 18. 1RR4@47; 2RR8@26-28
230
    1RR4@47

111 | P a g e
        washed.”231

        Those present at the residence when search warrant

was      executed      included,    Appellant       Acuna,     Antonio      De

Leon, Juan Salazar and Renee Mejia.                      Each agreed to

accompany investigators to the Sheriff’s Department.232

Later that day, Juan Salazar was arrested and charged

with        murder;     his    arrest      was      based     on     witness

statements,           co-defendant’s       statements         of    accused,

physical evidence and DNA evidence.233                   Antonio De Leon

gave a statement; he was arrested that day as well.

His arrest was based on his own statement of accused,

phone communications, text messages, physical evidence

collected,        co-defendant’s          statements        and      witness

statements.234          Ezequiel    Gamez     was    also     arrested    and

charged         with     tampering        with      evidence        as    the

investigation           revealed     he     washed      the        Expedition

belonging to Appellant Acuna.235 Gamez’ arrest was based

on co-Defendant statements, witness statements, along

231
    1RR4@47-48; 2RR7@107-108
232
    1RR4@48-53; 2RR7@108-109
233
    1RR4@53; 2RR7@110
234
    1RR4@53-54; 2RR7@110
235
    Ezequiel Gamez was the boyfriend to Appellant Acuna’s daughter at the time.
1RR4@52; 2RR7@110-111

112 | P a g e
with his own statement of accused.236 Appellant Acuna

was also arrested that day; her arrest was based on

physical evidence collected, co-defendant statements,

witness           statements,           and          phone     texts        and

communications.237

        After these arrests were made and after additional

information            was     received,238          another       search   was

conducted at a canal called Relampago. Investigators

went there searching for a punctured black trash bag

with       a    tire   iron     and    bloody    clothing.         Once   there,

Investigators recovered a gas can and camp fuel.239 The

significance of this find was investigators received

“information”240             there    would     be    found    a    black   bag

containing bloody clothing, the gas can used to burn

the victim and his vehicle and a knife.241

        Next, Palacios tells the jury about a knife that

236
    1RR4@54-55
237
    1RR4@55
238
     Note that the record in the first trial illustrates that co-defendant
Antonio De Leon gave his own Statement of Accused. However, when asked about
“information received from Antonio De Leon, the defense objected and the
witness did not answer. However, it’s easy to glean from the record that the
information regarding evidence of the murder dumped at a nearby canal in fact
came from Antonio De Leon, co-defendant. 2RR7@111-112
239
    2RR7@112
240
     Note again that this “information” likely came from the Statement of
Accused given by co-defendant Antonio De Leon.
241
    1RR4@57; 2RR7@11-112

113 | P a g e
was found at 410 Jalapeno Drive home, Appellant Acuna’s

mother’s        home.     Guadalupe        Bustamante        Acuna      gave

information about a knife her daughter, Appellant Acuna

gave her to hide.           As it turns out, the knife was not

affirmatively linked to the crime.242

        Next,   Palacios        admits   that        there   was   no    DNA

evidence affirmatively linking Appellant Acuna to this

crime.243       While Palacios admits he took an affidavit

from Renee Mejia, he admits no information was provided

by     Mejia    that    would    have    led    to    Appellant     Acuna’s

arrest.244       Palacios could not point to any physical

evidence corroborating Appellant Acuna’s involvement in

this crime other than a general statement “the physical

evidence was corroborated.”245                 Regarding the gas can

found at the canal believed by the investigation to be

the gas can used to burn the victim and his vehicle,


242
    1RR4@59-60, 62, 68, 107-108; 2RR7@113-114
243
    1RR4@73; 2RR7@114
244
    1RR4@101; The prosecution did not cover this area at the second trial with
this witness.     Notably, it did not inure to the benefit of the first
prosecution.    It’s not surprising the prosecution chose to “refine” the
presentation at the second trial and leave this out.
245
    1RR4@106-107; Again, the prosecution did not cover this area at the second
trial either with this witness. Notably, it did not inure to the benefit of
the first prosecution so it’s not surprising the prosecution chose to
“refine” their presentation at the second trial and leave this out.

114 | P a g e
Palacios admits no tests were run on that gas can to

confirm it was in fact the gas can used in this case.246

        The prosecution makes sure to re-direct the witness

at the first trial and remind the jury that the text

messages              were        considered       in     determining       whether

Appellant             Acuna       should     be    arrested.247     Then     at    the

second trial, on cross examination, this witness admits

the text message communication was critical in arriving

at probable cause for the arrest of Appellant Acuna.248

        CLEARLY, the State’s theory of prosecution in the

first case was one of conspiracy even though Appellant

Acuna           was    charged       with    the     substantive        offense     of

Murder.249            It     is    equally     clear     the     same     theory    of

prosecution             was       implemented      and    relied    upon     by    the

State           at     the        second    trial,       using     this    witness’

testimony.

        State’s Witness Sandra Rangel is called to testify

in her capacity as a Crime Scene Specialist with the


246
    1RR4@108-109
247
    1RR4@119; 2RR8@6-27
248
    2RR8@61-62
249
    TEX.PEN.CODE Section 19.02 (O’Connor’s Texas Criminal Codes Plus (2010-
2011)….and acquitted…

115 | P a g e
Sheriff’s Department.250                  She attended the autopsy.              Her

duties            included        photographing         the        autopsy       and

recovering physical evidence.251 She sponsors video and

photos that she took at crime scene and at autopsy.252

She testified about her efforts to recover evidence at

that residence as well.253 Rangel testified about her

involvement          in      executing         a   search     at    a    canal    on

Military Highway 281, at Relampago. This is the same

canal           referred     to    by     Investigator        Palacios.          She

photographed           the        area     and     assisted    in       recovering

evidence at the canal.                   She helped describe the gas can

that was recovered.254

        Rangel       described           the     processing    of       the   beige

Expedition           recovered           in    this   case,        belonging      to

Appellant Acuna.              She helped publish photographs of the

vehicle and commented that it was “very, very clean.”255

        State’s Witness Edna Zavala was called to testify

for the State in her capacity as a DNA Analyst employed
250
    1RR4@142; 2RR8@63
251
    1RR4@143-144; 2RR8@63-68; Victim’s burnt and bloody clothing, fingernail
clippings, hair, some currency that was on the victim’s person when he died
252
    1RR4@146-151
253
    1RR4@151-153
254
    1RR4@155-159-172; 2RR8@68-69
255
    1RR4@160-164; RR8@70-72

116 | P a g e
by DPS and here to testify specifically regarding DPS

Crime           Lab    number   L3M84452.256    She     testified     about

receiving             known   samples   from   the    suspects   and    the

victim in this case.257                 As it relates to Appellant

Acuna, her DNA profile was excluded from any and all

items of evidence submitted for analysis/comparison.258

We know that at the first trial, her testimony served

no purpose but to “exclude” Appellant Acuna from any

affirmative link to this offense.                    Naturally, then the

State decided she would not serve their cause.                      This is

an example of the State learning from the first trial

what worked and what did not.                  The State adjusted and

of course this witness was not called back to testify

at the second trial.

         State’s witness Alma Fiscal was called to testify

for the State at both trials.259                     She was called to

256
    1RR4@183; Note that Edna Zavala is NOT called to testify at the second
trial. As previously noted, this witness did not serve the prosecution in any
way. In fact her testimony at the first trial was that Appellant Acuna was
not “biologically connected” to the evidence submitted for analysis.
Conceivably then and more likely – probably – the State left this witness out
when they presented the case to the second jury.     It did not inure to the
benefit of the prosecution the second time around.
257
    1RR4@192-193
258
    1RR4@204-205, 210
259
      1RR5@156; 2RR9@101

117 | P a g e
identify the victim, as she is his wife.                  Exhibit 90 is

offered to help the jury identify the victim.260                        She

provided context to the marriage and advised the jury

they were married 15 or 16 years and they had children

of the marriage as well. Then the jury was told the

victim was involved           with another woman which caused

problems between them.           The “other woman” was Appellant

Acuna.261       An apparent decision was made between Alma

Fiscal and the victim; they decided they’d give their

marriage another try and decided when and where they’d

reunite.        During this time, the victim was still in a

relationship       with     Appellant       Acuna.        The    victim’s

apparent plan was to break off the relationship with

Appellant Acuna “little by little.”262

        Alma Fiscal returned to the valley on July 1, 2010

and went to “the house” where she saw the victim and

Appellant Acuna home at the time.263                   Alma confronted


260
    1RR5@157; Note that no exhibit was sponsored by this witness to identify
the victim, however it was clear from her testimony at the second trial that
she was the victim’s wife and the father of their children. 2RR9@101-103;
Note that Renee Mejia would be called upon to sponsor the photo of the victim
in this case. 2RR7@61 referred to as State’s Exhibit 33
261
    1RR5@158-159; 2RR9@102-103
262
    1RR5@160-161, 185; 2RR9@104
263
    1RR5@162-163; 2RR9@106

118 | P a g e
the       victim       and     demanded     Appellant    Acuna     leave      the

residence, as it was “her house.”                       Alma testified at

that point, the victim spoke with Appellant Acuna and

Appellant Acuna had a “pissed off” face;”                          Appellant

Acuna left with a trash bag full of clothes.264 Later

that       night,       Alma    testifies     the     victim’s   phone     kept

going off, ringing and texting, etc.                          Alma saw the

victim ignore these calls and texts.265                      That night, the

victim’s             truck   was    missing    from    the    house,     as   he

claimed it had broken down; the victim also advised

Alma to put her car in the garage and lock it.                                His

reasoning was “just in case.”266

         State’s        witness     Jose    Fiscal     testified    at     both

trials as well.267                 This is the victim’s son who was

called before the jury to discuss how his father, the

victim, wanted to get back together with his mom, Alma

Fiscal but he couldn’t do it right away.                         He said the

victim told him he needed to pack his things and they

needed          to    move   out    while   she,    Appellant    Acuna,       was
264
      1RR5@163-164, 193; 2RR9@107
265
      1RR5@166-168; 2RR@108
266
      1RR5@167, 194; 2RR9@109
267
      1RR5@187; 2RR9@115

119 | P a g e
gone.268         Lastly,    this      witness    left    the    jury    with   a

comment that Appellant Acuna supposedly made.                          He told

the jury Appellant Acuna remarked in the past if his

dad ever messed up with her, to be sure the cops pick

her up and a body bag for his dad.269

         State’s     witness       Renee    Mejia       testified      at   both

trials.270        She     was   the     girlfriend/wife        of   Antonio    De

Leon.           She testified she and her husband lived at the

2510 King Drive address with Appellant Acuna and Juan

Salazar.271          Mejia left the house on July 3, 2010 at

around 10:30 or 11 a.m.                  She returned at around 11:00

or 12:00.          When she got back, she, Antonio De Leon and

their       children       were    in    their   room     watching      movies.

While they were there, Juan came in and told Antonio to

go       with      him.         They     left    in     Appellant       Acuna’s

expedition.272             Then    Appellant     Acuna,     Juan     and    Tony

returned together around 12 or 1.                     Mejia testified she

didn’t see what they were driving when they came back


268
      1RR5@190-191; 2RR9@118
269
      1RR5@196; 2RR9@121
270
      1RR5@94; 2RR7@50
271
      1RR5@95-96; 2RR7@50-51
272
      1RR5@97-98; 2RR7@59-60

120 | P a g e
but she saw Lupita and Juan enter the house and “they

were panicking.” She saw them run toward the back of

the house. She was in her room and she heard them come

in and opened her bedroom door.                       When she did this,

they yelled for me to close the door.                      I could smell an

odor       of   “burning”      as     they    ran   by     my   room.273   When

Antonio         got   home,    he     came   into    the    room   and     Mejia

noticed the cut on his finger.                  He didn’t have that cut

when he left the house earlier.                     He was acting scared;

he was acting different than when he left.274                         I saw the

Expedition         after    they      got    home   and    it   was    muddy.275

Antonio told her Juan Salazar had done something to

Juan Fiscal.276

         Later after “Lupita” came back from the sheriff’s

office, Mejia said that Appellant told everyone to say

that they’d been together and to stick to the story.

But Mejia said that was a lie because she knew Lupita

had left with Joe.277 Then Juan made a comment that if


273
      1RR5@99-100-101; 2RR7@65
274
      1RR5@101-102; 2RR7@66-67
275
      1RR5@103; 2RR7@68
276
      1RR5@103
277
      RR5@106, 117 ; 2RR7@69-70, 77

121 | P a g e
you say anything, you “drop.”278 So the first time Mejia

spoke with the investigators, she stuck to the story;

later, she went back and told them “everything.”279

         CLEARLY, the State’s theory of prosecution in the

first case was one of conspiracy even though Appellant

Acuna           was    charged         with    the     substantive        offense    of

Murder.280            It    is    equally       clear      the     same     theory   of

prosecution            was       implemented         and    relied    upon     by    the

State           at    the        second       trial,       using     this    witness’

testimony.

                                        CONCLUSION

         Appellant Acuna was twice put in jeopardy for the

“same offense” in violation of her rights under the

Fifth       Amendment            and    the    Due     Process      Clause     of    the

Fourteenth Amendment to the Constitution of the United

States of America.

         Collateral Estoppel guarantees “when an issue of


278
      1RR5@107; 2RR7@77
279
      1RR5@108


280
   TEX.PEN.CODE Section 19.02 (O’Connor’s Texas Criminal Codes Plus (2010-
2011)….and acquitted…

122 | P a g e
ultimate fact has once been determined by a valid and

final judgment, the issue cannot again be litigated

between         the   same   parties     in     any    future    lawsuit.

Appellant        Acuna     avers   the      evidence    in    this     case

illustrates the same theory and evidence was presented

to the second jury after acquittal by the first.

        This     second    trial   should       have   been     completely

barred since the first jury determined an ultimate fact

in the former trial which was an essential element of

this subsequent prosecution. Further, this subsequent

prosecution – even if allowed – should have only been

allowed without introduction or argumentation of facts

necessarily decided in the prior proceeding.

                                   PRAYER

        For the reasons set forth herein, Appellant Acuna

prays this Court reverse the judgement of the Court

below and render a judgment of acquittal and/or enter

an order barring the re-trial of Defendant upon the

indictment        and     dismissing     this    indictment      and    the

prosecution based thereon upon the fact that she was


123 | P a g e
acquitted in Cause No. CR-2725-10-H of the exact same

conduct she was charged with in the case at bar.

        In the alternative, this Court should rule that the

Doctrine of Collateral Estoppel barred the introduction

in the trial of the case at bar of evidence that was

used against the defendant in Cause No. CR-2725-10-H.

Accordingly Appellant Acuna’s rights guaranteed by the

5th Amendment’s Double Jeopardy Clause were violated. As

such,       Appellant   Acuna   prays   this   Court   reverse   and

render a judgment of acquittal and/or reverse and Order

this indictment dismissed with prejudice.

        Appellant Acuna prays that this Court sustain these

points and render a judgement of acquittal.

                                 Respectfully submitted,

                                 O. Rene Flores, P.C.
                                 1308 S. 10th Ave.
                                 Edinburg, TX 78539
                                 (956) 383-9090
                                 (956) 383-9050

                                 By:/S/ O. Rene Flores
                                    O. Rene Flores
                                    SBN 24012637




124 | P a g e
                         CERTIFICATE OF SERVICE

        I hereby certify that a true and accurate copy of

the foregoing Amended          Appellate Brief was served in

accordance with the rules on the following persons:

        Theodore “Ted” Hake
        Assistant District Attorney
        Hidalgo County District County Attorney
        Appellate Division
        Hidalgo County Courthouse
        100 N. Closner
        Edinburg, Texas 78539
        By: Hand delivery


        Appellant Guadalupe Acuna
        TDCJ Number 01886272
        Texas Department of Corrections
        Mountain View Unit
        Gatesville, TX 76528
        CM/RRR 7009 2250 0001 0464 8372


                                      /S/ O. Rene Flores
                                      O. Rene Flores



                       CERTIFICATE OF COMPLIANCE

        Pursuant to TRAP 9.4 (3), I hereby certify this

Brief contains 23,606 words.


                                 /S/ O. Rene Flores
                                 O. Rene Flores

125 | P a g e
