                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-09-00379-CR


LUIS REZA                                                              APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


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           FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                         MEMORANDUM OPINION1
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      Luis Reza appeals from a jury verdict convicting him of aggravated sexual

assault after he had been previously convicted of aggravated sexual assault

involving the same complainant. In two issues, he contends that his due process

rights were violated because the State’s actions raise an unrebutted presumption

of prosecutorial vindictiveness and that the trial court erred by denying his special

plea that the prosecution be barred. We affirm.

      1
       See Tex. R. App. P. 47.4.
                                  Background

      Appellant was indicted on May 14, 2008 in cause number CR10917 for

aggravated sexual assault of a child by digitally penetrating the sexual organ of

the complainant.   After a trial, a jury convicted appellant for that offense on

February 11, 2009 and assessed his punishment at ten years’ community

supervision. Appellant did not appeal the conviction.

      On March 4, 2009, a Hood County grand jury indicted appellant in cause

number CR11199 for aggravated sexual assault by causing the complainant’s

female sexual organ to contact his mouth. While testifying in cause number

CR10917, the complainant had described not only the digital penetration, but

also that appellant had “started kissing [her] on [her] neck and went all the way

down to [her] vagina” and “stuck his mouth there.” She repeated that testimony

at the trial in cause number CR11199. The jury in the latter case convicted

appellant of aggravated sexual assault of a child and assessed his punishment at

confinement for fifty years. He appeals that conviction and sentence.

                   Double Jeopardy and Collateral Estoppel

      In his second issue, appellant contends that the trial court erred by denying

his special plea because the prosecution of the second case is barred by

collateral estoppel, res judicata, and double jeopardy.2 According to appellant,

whether he caused the complainant’s sexual organ to contact his mouth was

      2
       We address appellant’s second issue first because if it is resolved in
appellant’s favor, the first issue is moot.


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“necessarily decided” in the first prosecution because the State elicited testimony

at the first trial that appellant did so and thus “used both acts to convict him of

penetrating the female sexual organ of the child.”        Appellant says the State

presented “considerable evidence” regarding both acts and referred to both in

closing arguments.

      Double Jeopardy

      Under section 22.021(a) of the penal code, causing the penetration of the

sexual organ of a child younger than fourteen by any means and causing the

sexual organ of a child younger than fourteen to contact the defendant’s mouth

are separate offenses, unless the circumstances of the latter offense are

subsumed in the former offense during the same criminal episode. Tex. Penal

Code § 22.021(a)(1), (b)(i), (iii) (Vernon 2003); Patterson v. State, 152 S.W.3d

88, 92 (Tex. Crim. App. 2004) (holding that penile contact with mouth, genitals, or

anus would be subsumed within offense of penile penetration); Vick v. State, 991

S.W.2d 830, 833 (Tex. Crim. App. 1999).           This is so for double jeopardy

purposes regardless of whether the prosecution for the separate offenses occurs

in the same or multiple prosecutions. See Gonzales v. State, 304 S.W.3d 838,

846–49 (Tex. Crim. App. 2010).

      In the first trial, the complainant testified that appellant kissed her from her

neck to her vagina, put his mouth on her vagina,3 and then stuck his finger in her


      3
       Appellant does not raise the sufficiency of the evidence to prove contact in
the second prosecution. Although the complainant was not a very young child

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vagina afterwards. Thus, she testified to separate offenses. See id.; Vick, 991

S.W.2d at 833. Appellant argues that the Texas Court of Criminal Appeals’s

holdings that each subsection of Penal Code section 22.021 entails different and

separate acts for double jeopardy purposes do “violence to the Fifth Amendment,

the Texas Penal Code, and the Texas Code of Criminal Procedure.”               He

contends that an essential difference between this case and Vick is that in Vick

the defendant was acquitted before his subsequent indictment, but here,

appellant was convicted and then indicted again. Therefore, appellant says, Vick

erased the double jeopardy protections afforded by our state and federal

constitutions.

      The Court of Criminal Appeals has addressed double jeopardy arguments

similar to appellant’s and rejected them; we are bound by those decisions.

Gonzales, 304 S.W.3d at 846–49; Vick, 991 S.W.2d at 833; Wiley v. State, 112

S.W.3d 173, 175 (Tex. App.––Fort Worth 2005, pet. ref’d).4




when she testified in the second trial, we note that even adults often incorrectly
use the word “vagina” to describe the external part of a female’s genitalia.
Regardless, it is clear from the complainant’s testimony that she is referring to
appellant’s kissing her on her female sexual organ.
      4
        Appellant also contends that the second prosecution is barred by res
judicata. But “[t]he doctrine of res judicata serves the same basic purposes and
principles in civil proceedings as double jeopardy does in the criminal context.”
Ex parte Watkins, 73 S.W.3d 264, 267 n.7 (Tex. Crim. App.), cert. denied, 537
U.S. 948 (2002). Therefore, our double jeopardy analysis disposes of appellant’s
res judicata argument.


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      Collateral Estoppel

      Appellant also contends that even if the second prosecution is not barred

by double jeopardy, it should be barred by collateral estoppel.            Collateral

estoppel means “that when an issue of ultimate fact has once been determined

by a valid and final judgment, that issue cannot again be litigated between the

same parties in any future lawsuit relating to the same event or situation.”

Murphy v. State, 239 S.W.3d 791, 794 (Tex. Crim. App. 2007) (quoting Ashe v.

Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 1194 (1970)). The scope of facts

that were actually litigated determines the scope of the factual finding covered by

collateral estoppel. Murphy, 239 S.W.3d at 795. The very fact or point at issue

in the pending case must have been determined in the prior proceeding. Id. The

defendant must meet the burden of proving that the facts in issue were

necessarily decided in the prior proceeding. Id.

      To determine whether collateral estoppel bars a subsequent prosecution or

permits the prosecution but bars relitigation of certain specific facts, the Court of

Criminal Appeals has adopted the two-step analysis employed by the Fifth

Circuit. Id.; see Neal v. Cain, 141 F.3d 207, 210 (5th Cir. 1998). A court must

determine (1) exactly what facts were necessarily decided in the first proceeding,

and (2) whether those “necessarily decided” facts constitute essential elements

of the offense in the second trial.     Murphy, 239 S.W.3d at 795.         Although

collateral estoppel requires that the precise fact litigated in the first prosecution

have arisen in the same transaction, occurrence, situation, or criminal episode


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that gave rise to the second prosecution, the fact litigated must also be an

essential element of the subsequent offense. Id. Specifically, if the necessarily

decided fact litigated in the first prosecution constitutes an essential element

framed within the second prosecution’s offense, then the “essential element of

the offense” prong is satisfied. Id.

      Here, although the complainant testified about both offenses at both trials,

nothing in the record indicates that the jury in the first case necessarily decided

whether appellant made his mouth contact her sexual organ.             The charge

instructed the jury to find appellant guilty if it unanimously found that he

penetrated the complainant with his finger; it did not include any instructions

about mouth-to-genital contact. In addition, although appellant suggests that the

prosecution relied heavily on the mouth-to-genital contact in the first prosecution,

the complainant’s direct testimony of what appellant did to her spans only six

pages and also consists of her testimony that he attempted to penetrate her with

his penis and that he made her hold his penis.5 The prosecutor did mention the

mouth-to-genital contact in his closing argument in the first case but on only one

page, along with the other described acts, and in response to the defense’s

allegation that the complainant was making the whole story up.

      Appellant cites Gongora v. State as a factually similar case, but it is

distinguishable.   916 S.W.2d 570 (Tex. App.––Houston [1st Dist.] 1996, pet.

      5
        The complainant gave basically the same account in the second case, but
that testimony was more detailed and covered approximately fourteen pages.


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ref’d). Gongora was convicted of delivery of at least four grams of a controlled

substance based on a buy by police officers who had negotiated for five kilos of

cocaine. Id. at 572–73. Appellant brought one brick into an apartment to show

the officers, and the officers later found another brick in Gongora’s truck; both

bricks were admitted into evidence in the delivery trial, and the prosecutor used

the weights of both bricks to establish that the total amount possessed was more

than four hundred grams.        Id.   The First District Court of Appeals held that

Gongora could not subsequently be prosecuted for possession of the second

brick with intent to deliver because “the State presented both bricks as part of the

offense of delivery for which appellant was being tried.”          Id. at 577.    Here,

however, the State did not present the mouth-to-genital contact and digital

penetration as the same offense although the complainant did describe the acts

as part of one criminal episode.

      We conclude and hold that the mouth-to-genital contact was not

necessarily decided in the first case and therefore that the prosecution in the

second case was not barred by collateral estoppel.           We overrule appellant’s

second issue.

                           Prosecutorial Vindictiveness

      Appellant contends in his first issue that the State prosecuted him in

CR11199, the second case, in retaliation for appellant’s exercising his

constitutional right to a jury trial in the first case; according to appellant, the State




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prosecuted him for the second offense because it was displeased that the first

jury assessed a probated sentence rather than a term of confinement.

      Due process protects defendants from prosecutorial vindictiveness.

Blackledge v. Perry, 417 U.S. 21, 28–29, 94 S. Ct. 2098, 2102–03 (1974). As

the Court of Criminal Appeals has explained,

             [A] decision to prosecute violates due process when criminal
      charges are brought in retaliation for the defendant’s exercise of his
      legal rights. Thus, the Supreme Court has held that, under specific,
      limited circumstances, the presumption that a prosecution is
      undertaken in good faith gives way to either a rebuttable
      presumption of prosecutorial vindictiveness or proof of actual
      vindictiveness.

             A constitutional claim of prosecutorial vindictiveness may be
      established in either of two distinct ways: 1) proof of circumstances
      that pose a “realistic likelihood” of such misconduct sufficient to raise
      a “presumption of prosecutorial vindictiveness,” which the State must
      rebut or face dismissal of the charges; or 2) proof of “actual
      vindictiveness”––that is, direct evidence that the prosecutor’s
      charging decision is an unjustifiable penalty resulting solely from the
      defendant’s exercise of a protected legal right.

             Under the first prong, if the State pursues increased charges
      or an enhanced sentence after a defendant is convicted, exercises
      his legal right to appeal, and obtains a new trial, the Supreme Court
      has found a presumption of prosecutorial vindictiveness. In the very
      few situations in which this presumption does apply, it can be
      overcome by objective evidence in the record justifying the
      prosecutor’s action. The defendant must prove that he was
      convicted, he appealed and obtained a new trial, and that the State
      thereafter filed a greater charge or additional enhancements. The
      burden then shifts to the prosecution to come forward with an
      explanation for the charging increase that is unrelated to the
      defendant’s exercise of his legal right to appeal. The trial court
      decides the issue based upon all of the evidence, pro and con, and
      the credibility of the prosecutor’s explanation.




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             Under the second prong, when the presumption does not
      apply, the defendant may still obtain relief if he can show actual
      vindictiveness. To establish that claim, a defendant must prove, with
      objective evidence, that the prosecutor’s charging decision was a
      “direct and unjustifiable penalty” that resulted “solely from the
      defendant’s exercise of a protected legal right.” Under this prong,
      the defendant shoulders the burden of both production and
      persuasion, unaided by any legal presumption. Once again, the trial
      judge decides the ultimate factual issue based upon the evidence
      and credibility determinations.

            Under either prong, “[i]f the defendant is unable to prove
      actual vindictiveness or a realistic likelihood of vindictiveness, a trial
      court need not reach the issue of government justification.” That is,
      the State may stand mute unless and until the defendant carries his
      burden of proof under either prong.

Neal v. State, 150 S.W.3d 169, 173–75 (Tex. Crim. App. 2004) (citations omitted)

(emphasis added).

      The rationale behind the vindictiveness presumption is that by bringing

more serious charges after a successful appeal, a prosecutor could chill the

defendant’s exercise of the right to appeal. Blackledge, 412 U.S. at 29, 94 S. Ct.

at 2103; Woodson v. State, 777 S.W.2d 525, 529 (Tex. App.––Corpus Christi

1989, pet. ref’d). However, the rationale behind the presumption does not apply

if the bringing of more serious charges would not work to chill the defendant’s

exercise of a statutory or constitutional right. Woodson, 777 S.W.2d at 529; see

Castleberry v. State, 704 S.W.2d 21, 27–28 (Tex. Crim. App. 1984).

      Appellant acknowledges that this case does “not fit neatly with most

prosecutorial vindictiveness cases.” However, he claims that he at least raised a

presumption of prosecutorial vindictiveness, which the State did not rebut. In



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Chaffin v. Stynchcombe, a sentencing vindictiveness case, the Supreme Court

refused to apply the presumption when a second jury imposed a greater

sentence in a retrial than had a prior jury. 412 U.S. 17, 32–35, 93 S. Ct. 1977,

1985–87 (1973).     The Court held that the second jury had no stake in the

outcome of the second trial’s being different from the first, as it did not know the

length of the first sentence. Id. at 26–27, 93 S. Ct. at 1982–84.

      Although this is not a resentencing case, the same principle applies here.

The State had no way of knowing when it initially charged appellant whether he

would seek a jury trial or bench trial. And appellant did not bring forward any

evidence regarding the terms of offered and rejected plea deals, if any, that

would show the length of sentence the State was willing to bargain for or that the

State was willing to forego any additional charges. Thus, there is nothing to

indicate that future appellants in the same situation would be deterred from

seeking a jury trial by the possibility that the State would charge a new, separate

offense after the jury’s verdict.     Although constrained by concerns about

allocation of resources, the State would have been just as free to pursue charges

on the new, separate offense even if appellant had received the maximum

punishment in the first case.

      Moreover, we agree with the reasoning of the Fourteenth Court of Appeals

that an appellant’s exercising his right not to appeal a probated sentence does

not raise a presumption of prosecutorial vindictiveness when the State later

charges and convicts that appellant of a new, separate offense arising out of the


                                        10
same transaction. Williams v. State, No. 14-08-01079-CR, 2010 WL 3307456, at

*4 (Tex. App.––Houston [1st Dist.] Aug. 24, 2010, pet. ref’d) (mem. op., not

designated for publication). We conclude and hold that the facts of this case do

not warrant such a presumption and that the trial court did not abuse its

discretion by concluding that the evidence did not show actual vindictiveness by

the State. Accordingly, we overrule appellant’s first issue.

                                   Conclusion

      Having overruled both of appellant’s issues, we affirm the trial court’s

judgment.




                                                    TERRIE LIVINGSTON
                                                    CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 7, 2011




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