REVERSED and REMANDED and Opinion Filed September 13, 2019




                                           S   In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-19-00280-CR

                               EX PARTE CHRISTOPHER RION

                       On Appeal from the Criminal District Court No. 5
                                    Dallas County, Texas
                           Trial Court Cause No. WX18-90101-L

                              MEMORANDUM OPINION
                   Before Justices Whitehill, Partida-Kipness, and Pedersen, III
                                   Opinion by Justice Whitehill
       Christopher Rion appeals the trial court’s order denying his pretrial application for writ of

habeas corpus. In his sole issue, appellant contends the trial court erred and abused its discretion

in denying his writ application because collateral estoppel prohibits the State from trying him for

aggravated assault with a deadly weapon after he was acquitted for manslaughter. We reverse the

trial court’s order and remand the case to the trial court.

                                           BACKGROUND

       On August 1, 2015, appellant was involved in a two-vehicle collision at a busy intersection.

At the time of the collision, appellant was driving alone in his Dodge Challenger. The two

occupants in the other vehicle—a Toyota Highlander—were both injured in the crash. The

passenger in the Toyota succumbed to her injuries within a few days.

       Subsequently, the State charged appellant with manslaughter and aggravated assault with

a deadly weapon. The indictment for manslaughter alleged appellant did:
       recklessly cause the death of an individual, [C.P.], hereinafter called deceased, by
       OPERATING A MOTOR VEHICLE AT A SPEED NOT REASONABLE OR
       PRUDENT FOR THE CONDITIONS THEN EXISTING, AND BY FAILING TO
       CONTROL THE SPEED OF SAID MOTOR VEHICLE, AND BY FAILING TO
       KEEP A CLEAR LOOKOUT AND CONTROL OF SAID MOTOR VEHICLE,
       THEREFORE STRIKING THE MOTOR VEHICLE OCCUPIED BY
       DECEASED, And it is further presented in and to said Court that a deadly weapon,
       to wit: A MOTOR VEHICLE, was used and exhibited during the commission of
       the aforesaid offense.

       The indictment for aggravated assault charged appellant did:

       unlawfully then and there intentionally, knowingly and recklessly cause bodily
       injury to [C.L.], hereinafter called complainant, by OPERATING A MOTOR
       VEHICLE AT A SPEED NOT REASONABLE OR PRUDENT FOR THE
       CONDITIONS THEN EXISTING, AND BY FAILING TO CONTROL THE
       SPEED OF SAID MOTOR VEHICLE, AND BY FAILING TO KEEP A CLEAR
       LOOKOUT AND CONTROL OF SAID MOTOR VEHICLE, THEREFORE
       STRIKING THE MOTOR VEHICLE OCCUPIED BY COMPLAINANT, and said
       defendant did use and exhibit a deadly weapon, to wit: A MOTOR VEHICLE,
       during the commission of the assault.

Over appellant’s objection, the State elected to try the offenses separately.

       On April 24, 2018, a jury trial commenced in the manslaughter case. During the trial, the

basic facts of the case were undisputed. The accident occurred during the evening rush hour on a

clear day in front of many witnesses. The State called several witnesses, including the surviving

victim, C.L. The State’s witnesses gave consistent accounts of the events that transpired. The

evidence showed C.L.’s Toyota was stopped at a red light waiting to make a left turn when

appellant’s Dodge, traveling in the opposite direction at high speed, jumped the median, swerved

to avoid a light pole, and crashed head-on into C.L.’s vehicle with such a hard impact that the

Toyota was propelled backward 200 feet. The speed limit at the site of the accident was forty

miles per hour. The airbag module event data recorder retrieved from appellant’s car showed he

was traveling seventy-one miles per hour when the accident occurred and the accelerator pedal

was pressed to the floor until the moment of impact.




                                                –2–
       After the accident, appellant was briefly unconscious and upon reviving, stated he needed

to get away and that his friend was actually driving even though appellant was alone in the car.

Appellant did attempt to leave the scene and was apprehended by an off-duty police officer while

trying to climb a gate into a nearby apartment complex. A witness close enough to see appellant’s

eyes testified his pupils were dilated. Witnesses who looked into appellant’s vehicle saw a can of

aerosol keyboard cleaner on the floor board. No one smelled alcohol on appellant’s breath, and

he passed field sobriety tests. A paramedic treating the victims thought both would live, so

appellant was not required to give a sample of his blood for intoxication screening.

       The defense did not press the witnesses to try to undermine their credibility. Instead, the

defense focused on establishing that no witnesses could contradict appellant’s account that he had

just come from Walmart where he had purchased groceries that were locked in his trunk. The

defense also obtained admissions from witnesses that they did not know why appellant was

speeding and that crashes may happen for reasons other than driver recklessness, such as heart

attacks, diabetic comas, or for mental health reasons.

       After the State presented its case, the defense asked for a directed verdict on the ground

the State had failed to prove the element of recklessness and asked for the deadly weapon allegation

to be withdrawn. The State responded that it had shown recklessness because appellant was

driving seventy-one miles per hour in a forty-mile-per-hour traffic zone. The motion was denied.

       The defense presented three witnesses: appellant, a psychiatrist who had evaluated

appellant, and appellant’s father. Appellant testified he has suffered from mental illness since

childhood. He has been diagnosed as having attention deficit hyperactivity disorder (ADHD),

obsessive compulsive disorder, major anxiety, and major depression. He takes multiple prescribed

medications that are constantly being shifted as the effectiveness of the existing regimen wanes.

At the time of the accident, appellant was taking Adderal, Ambien, Lexapro, and Valium. All of

                                                –3–
these medications were prescribed for him and he was taking the correct doses at the correct times.

He had been on all of these medications for an extended period of time and had never been told

that he should not drive. Appellant denied drinking or taking any drugs not prescribed by a

physician. He had been driving since he was sixteen years old and had never had accidents, had

his license taken away, or been advised not to drive. He has never been in trouble for speeding or

drinking and driving. Until the accident, he had never had an episode where he thought he could

not drive. Because of his mental illness, appellant was not working and spent most of his time in

his apartment. When he would leave, he used GPS to navigate to his destination even if he was

familiar with the route. His parents provided him with money to live on and they purchased his

car for him.

       Appellant testified that he had no recollection of driving or the accident. He drove to

Walmart because it was the closet grocery store to his apartment. He waited until 3:00 p.m. to

leave because that was the first time all day he felt secure enough to venture out. At Walmart, he

purchased a month’s supply of groceries and was anxious about the size of the bill. He testified

he uses the aerosol keyboard cleaner in his car to blow cigarette ashes off the dashboard. He

smokes because the cigarettes calm him down. He admitted trying to leave the scene of the

accident because the crowd was hostile and made him anxious.

       Appellant testified he has not driven since the accident and uses Uber drivers to get around.

He becomes very anxious in cars. Since the accident, he has been diagnosed with post-traumatic

stress disorder and a bipolar condition. At one point, he started drinking and wanted to kill himself.

He has stopped drinking and has moved into a shared home with seven other people who are also

mentally ill. Appellant testified he never intended to harm anyone and did not feel he was being

reckless by driving to the store to buy groceries. Appellant expressed remorse for the accident.




                                                 –4–
       Dr. Lisa Clayton testified she is a psychiatrist who has testified in the past for both the

prosecution and the defense in various cases. The defense hired her to evaluate appellant. Dr.

Clayton testified she had diagnosed appellant with generalized anxiety disorder with panic attacks,

bipolar disorder, depression, and ADHD. Clayton testified that some panic attacks could be so

severe they become a psychotic episode in which the victim suffers a break from reality. Clayton

testified a patient like appellant would need frequent adjustments to his medications which would

work for a while and then stop. Clayton denied appellant was faking his illnesses, but she admitted

she had seen appellant only three times.

       Roger Rion, appellant’s father, denied that appellant was faking mental illness and testified

appellant had been treated for mental illness since he was nine years old. Rion testified appellant

was isolated with only a few friends, that appellant found it difficult to leave the house, that he had

disappeared several times, and he had attempted suicide. Rion testified the medications prescribed

for appellant seemed to be a matter of trial and error. Rion confirmed that he had bought

appellant’s car for him. Rion described appellant as a timid driver, very careful, and needing to

follow routines. Rion testified appellant was bruised badly in the accident but would not seek

medical attention. Rion testified appellant had applied for social security disability benefits, but

was rejected.

       After the testimony, the trial court charged the jury on manslaughter and, over appellant’s

objection, the lesser-included offense of criminally negligent homicide.              During closing

arguments, the State told the jury that this was not an intentional act and that appellant did not

intend to kill C.P. The State argued appellant was not negligent or careless, but was reckless.

According to the State, the evidence showed appellant was aware of a substantial risk of harm and

chose to disregard that risk:

       because he just wanted to speed, because he wanted to see how fast or how quickly
       his car could go from zero to however miles per hour or if he got behind the wheel
                                                 –5–
       knowing he’s on a number of prescription medications: Valium, Adderall, a number
       of—Lexapro—a number of different medications, that’s reckless, too. . . . Either
       this man gunned it down the road and took the life of someone else and someone
       else’s family, because he wanted to speed; or he took too many medications, mixed
       them up and then decided to drive. That’s still a conscious disregard. He was aware
       of his actions. He knew it was wrong. That’s what recklessness is.

The State briefly discussed causation and why the car would be considered a deadly weapon. The

State questioned why appellant did not put on additional evidence of his mental illnesses rather

than rely upon the testimony of a doctor who had seen him three times.

       The defense began its argument by acknowledging the pain of the victims’ family and

reminded the jury that what happened was an accident. The defense described appellant as honest,

forthright, respectful, and remorseful. The defense reminded the jury of Roger Rion’s testimony

about appellant being a timid driver with no traffic tickets. The defense argued this was the only

time appellant had ever suffered a “break.” The defense reminded the jury that after the accident,

appellant was suicidal, gave up driving, and stayed home. The defense went into the meaning of

“reckless” as charged in depth. The defense derided the State’s concern about appellant’s

groceries, the racing stripe on his car, the aerosol canister on the floor, and the speakers in the car.

The defense asked the jury to consider whether appellant, Dr. Clayton, and appellant’s father were

“fakers” or liars. The defense emphasized that there was no evidence appellant was intoxicated.

The defense lamented the treatment and lack of compassion for the mentally ill and suggested the

State had treated appellant’s illness insensitively. The defense contended the State was seeking

vengeance and not justice. The defense did not contest the evidence of appellant’s driving.

       After the defense finished its presentation, the prosecutor questioned appellant’s credibility

and briefly recounted the evidence about appellant’s driving.

       After the jury acquitted him, appellant filed an application for writ of habeas corpus arguing

a number of issues, including that the second prosecution for aggravated assault is subject to

collateral estoppel because relevant facts were necessarily decided in the manslaughter case. The
                                                 –6–
relevant facts appellant identified were the basic facts of the accident: the time and location of the

accident, the lack of intoxication, the driving actions appellant took and the speed in excess of the

posted speed limit, and the results of the accident to the vehicles and the victims. Appellant

contended these facts form an essential element of aggravated assault with a deadly weapon.

Appellant contended the facts he described were ultimate facts that cannot again be litigated in his

pending prosecution. At the conclusion of his collateral estoppel argument, appellant added, “And,

the jury already found that Defendant did not act recklessly. So even if a future jury were to find

that Defendant acted recklessly or with criminal negligence, facts that support such a finding were

already found in the negative by the prior jury.”

       The trial court denied relief and entered findings of fact and conclusions of law proposed

by the State. On the issue of collateral estoppel, the trial court found the facts appellant contended

were ultimate facts were not in dispute during the manslaughter trial, which focused instead on

appellant’s mental state. The trial court concluded the facts about appellant’s driving were not

decided in either party’s favor and could be litigated in a second trial. Thus, it denied relief on

appellant’s collateral estoppel claim regarding the facts. Regarding the issue of appellant’s mental

state, the trial court found that the issue of whether appellant disregarded a substantial and

unjustifiable risk that C.P. would die as a result of his conduct is not the same as the issue of

whether appellant disregarded a substantial and unjustifiable risk that C.L. would suffer bodily

injury as a result of his conduct. Because the issues would not be precisely the same in the first

and second trials, the trial court concluded the issue of appellant’s mental state is not subject to

collateral estoppel. The trial court denied relief. Appellant then appealed raising only the

collateral estoppel issue from his habeas application.




                                                 –7–
                                      STANDARD OF REVIEW

       An applicant for habeas corpus relief must prove the applicant’s claims by a preponderance

of the evidence. See Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006).

       In reviewing the trial court’s order, we view the facts in the light most favorable to the trial

court’s ruling, and we uphold the ruling absent an abuse of discretion. Id.; Ex parte Paxton, 493

S.W.3d 292, 297 (Tex. App.—Dallas 2016, pet. ref’d).

       The trial court, as fact finder, is the exclusive judge of witness credibility. Ex parte

Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006). We afford almost total deference to a

trial court’s factual findings when those findings are based upon credibility and demeanor. Id.;

Paxton, 493 S.W.3d at 297. If, however, the trial court’s determinations are questions of law, or

else are mixed questions of law and fact that do not turn on an evaluation of witnesses’ credibility

and demeanor, then we owe no deference to the trial court’s determinations and review them de

novo. State v. Ambrose, 487 S.W.3d 587, 596–97 (Tex. Crim. App. 2016); Paxton, 493 S.W.3d at

297. “A decision to apply collateral estoppel is a question of law, applied to the facts, for which

de novo review is appropriate.” State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007).

                                     COLLATERAL ESTOPPEL

       The doctrine of collateral estoppel arises from the Fifth Amendment’s bar against double

jeopardy. Ex parte Watkins, 73 S.W.3d 264, 267 (Tex. Crim. App. 2002). Collateral estoppel

arises “when an issue of ultimate fact has once been determined by a valid and final judgment, that

issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson,

397 U.S. 436, 443 (1970). In the criminal law context, the doctrine operates to prevent the State

from contesting in any subsequent proceedings between the parties any discrete fact the jury

necessarily determined in a criminal defendant’s favor. Watkins, 73 S.W.3d at 268.




                                                –8–
       To determine whether collateral estoppel applies to a subsequent prosecution, courts use a

two-step analysis: (1) determining 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. Ex parte Taylor, 101 S.W.3d 434, 440 (Tex. Crim. App. 2002).

       To determine whether a jury necessarily found a fact in a defendant’s favor and the scope

of the findings regarding specific historical facts that may not be litigated again in a second

criminal trial, a reviewing court must not adopt a hypertechnical approach, but rather consider with

realism and rationality the entire trial record, the pleadings, the charge, and the arguments of

counsel. Ashe, 397 U.S. at 444; Taylor, 101 S.W.3d at 441–42; Watkins, 73 S.W.3d at 268–69.

       Collateral estoppel applies only to cases where the legal and factual situations are identical

and it may apply to a phase, issue of fact, or congeries of fact. Taylor, 101 S.W.3d at 441. A party

may not avoid application of the doctrine simply by advancing new or different evidence on an

issue already litigated between the parties. Id.

       “A general verdict returned in the guilt phase of a criminal trial frequently makes it difficult

to determine precisely which historical facts a jury found to support an acquittal.” Watkins, 73

S.W.3d at 269. The defendant bears the burden to demonstrate that the issue the defendant seeks

to foreclose was actually decided in the first proceeding. Guajardo v. State, 109 S.W.3d 456, 460

(Tex. Crim. App. 2003).

       Appellant was tried for manslaughter and criminal negligence.             A person commits

manslaughter if he or she recklessly causes the death of another. TEX. PENAL CODE ANN. § 19.04;

Shroeder v. State, 123 S.W.3d 398, 400–01 (Tex. Crim. App. 2003). Under the penal code:

       A person acts recklessly, or is reckless, with respect to circumstances surrounding
       his conduct or the result of his conduct when he is aware of but consciously
       disregards a substantial and unjustifiable risk that the circumstances exist or the
       result will occur. The risk must be of such a nature and degree that its disregard
       constitutes a gross deviation from the standard of care that an ordinary person
       would exercise under all the circumstances as viewed from the actor’s standpoint.
                                                   –9–
TEX. PENAL CODE ANN. § 6.03(c).

       A person commits criminally negligent homicide if the person causes the death of an

individual by criminal negligence. Id. at 19.05(a); Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim.

App. 2005).

       A person acts with criminal negligence, or is criminally negligent, with respect to
       circumstances surrounding his conduct or the result of his conduct when he ought
       to be aware of a substantial and unjustifiable risk that the circumstances exist or the
       result will occur. The risk must be of such a nature and degree that the failure to
       perceive it constitutes a gross deviation from the standard of care that an ordinary
       person would exercise under all the circumstances as viewed from the actor’s
       standpoint.

TEX. PENAL CODE ANN. § 6.03(d). The jury charge submitted by the trial court closely tracks the

statutory definitions.

       Appellant now stands accused of aggravated assault. Under the facts of this case, a person

commits aggravated assault if the person intentionally, knowingly, or recklessly causes bodily

injury to another and uses or exhibits a deadly weapon during the commission of the assault. TEX.

PENAL CODE ANN. §§22.01(a)(1), 22.02(a).

       In applying the mental states described in § 6.03, the mental state may apply to: (1) the

nature of the conduct; (2) the result of the conduct; or (3) the circumstances surrounding the

conduct. McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). All three offenses at

issue in this case are “result of conduct” offenses.        See Shroeder, 123 S.W.3d at 400–01

(manslaughter is a “result of conduct” offense in which recklessness must go to the conduct

causing the death); Stinecipher v. State, 438 S.W.3d 155, 161–62 (Tex. App.—Tyler 2014, no pet.)

(criminally negligent homicide is a result-oriented offense with the gravamen of the offense being

an individual’s death); Landrian v. State, 268 S.W.3d 532, 537 (Tex. Crim. App. 2008)

(aggravated assault is also a result-of-conduct offense).



                                               –10–
        The jury’s determination of a culpable mental state is usually based upon inferences the

jury draws from the attendant circumstances. See Lane v. State, 763 S.W.2d 785, 787 (Tex. Crim.

App. 1989).

                               What Facts Were Necessarily Decided

        Turning to the first step of the collateral estoppel analysis, appellant contends the following

facts were necessarily decided by the jury in his first trial:

           On August 1, 2015 at about 5:30 p.m., an accident occurred on the 5400 block
            of Arapaho in Dallas at the intersection with Prestonwood involving a Dodge
            driven by Appellant and a 2006 Highlander driven by [C.L.]. Appellant failed
            to drive in a single lane of traffic, crossed over into the eastbound lane, jumped
            the median, and collided into the front of the Highlander.

           At the time of impact, Appellant was driving about 71 miles-per-hour. The
            speed-limit on that section of Arapaho is 40 miles-per-hour.

           The impact caused the Highlander to travel backwards about 200 feet and
            stopping on the sidewalk in the 5500 block of Arapaho. The Highlander was
            facing westbound and the Dodge was facing southbound. The impact caused
            non-life-threatening injuries to [C.L.] and life-threatening injuries to [C.P.] who
            was riding in the front passenger-seat. Four days later, [C.P.] passed away at
            the Medical Center of Plano. (Record references omitted).

Appellant further contends that the jury necessarily decided he was not guilty of the mens rea of

recklessness.

        The State disagrees that any of the facts appellant identifies were ultimately decided by the

jury because they were uncontested at trial. We agree with the State that such facts were not

necessarily determined against the State as appellant suggests. See Taylor, 101 S.W.3d at 440.

        Appellant further contends that the issue of whether he acted with the necessary mens rea

of recklessness required to convict him of manslaughter was an ultimate issue decided by the jury.

The State responds that appellant failed to prove his mental state was the ultimate issue at trial

because appellant put forth evidence to support theories that as a safe and careful driver, appellant

could not have been speeding; that appellant was unaware of the risk; and that appellant suffered

                                                 –11–
a blackout caused by a panic attack that absolved him from criminal responsibility for the accident.

We disagree that these are three separate theories.

       The defense did not put forward the evidence that appellant was a safe and careful driver

to challenge the State’s evidence of his speeding. Instead, such evidence was introduced to buttress

the defense contention that appellant’s apparent reckless behavior resulted from a temporary

mental health breakdown rather than an intent to drive recklessly.

       Similarly, the State’s argument that defense counsel raised in final argument a separate

issue regarding whether appellant was aware of the risk ignores the context of defense counsel’s

statements. During final argument, defense counsel argued:

       As I told you, I don’t like lawyer language. But, we have to talk about it. When
       you look at reckless—this is page two of the Charge—you look at it from the
       standpoint of the person charged. The standpoint of the person charged is not the
       State. It’s not some of the other folks that are looking at you, some of the other
       prosecutors that are watching us, it’s from [appellant’s] point of view. Was
       [appellant] actually aware of the risk? What evidence did you hear, any of you all,
       that he’s ever had a break before; that he’s aware of it; that he’s had 20, 30 speeding
       tickets, red light tickets, he’s not actually aware of anything and consciously
       disregards? . . . That means that you have to be willful in your actions. . . . You
       have to be aware of it. There has to be some type of forewarning. There has to be
       some type of element beforehand, and that didn’t happen. Again, as tragic as this
       is, it’s simply not reckless. It’s simply not an offense.

       The argument defense counsel made did not raise a separate ground for acquitting appellant

but rather again buttressed the defense theory that appellant suffered a mental breakdown that

rendered him not criminally liable for his conduct. Reading the record with the realism and

rationality required by the standard of review, the jury was tasked to determine whether, as the

State contended, appellant deliberately drove recklessly and caused C.P.’s death or, as the defense

contended, he suffered a psychotic breakdown and never had the necessary mens rea of

recklessness.

       Although not controlling in this case, we consider Taylor instructive. In Taylor, the

defendant’s two passengers died after the defendant lost control of his car and collided with another
                                               –12–
vehicle.      See Taylor, 101 S.W.3d at 436.        The defendant was charged with intoxication

manslaughter for the death of one passenger with the indictment alleging he was intoxicated with

alcohol. Id. After a jury acquitted him, the State sought to prosecute him for the death of the other

passenger on a charge of intoxication manslaughter alleging the defendant was intoxicated by

either alcohol and marijuana or marijuana alone. Id. The defendant filed a pretrial application for

writ of habeas corpus contending collateral estoppel barred any further prosecutions based upon

intoxication. Id. at 439. The trial court denied relief concluding the jury in the first trial determined

only the issue of intoxication with alcohol. Before the court of criminal appeals, the court

determined that the jury necessarily concluded appellant was not intoxicated by alcohol and did

not drive recklessly at an excessive speed into another vehicle. Id. at 442. Analyzing the trial

record, the court observed,

        The source of appellant’s intoxication was not a disputed fact in the first trial. It
        was only the more general issue of intoxication was he or wasn’t he that was
        disputed, and upon this issue, the appellant prevailed. Had appellant’s defense been
        one of conceding the fact of intoxication, but contesting the manner in which he
        became intoxicated, the situation would, of course, be different.

Id. at 443.

        As in Taylor, the present case requires a close reading of the record focusing on the defense

raised and a determination of the scope of the jury’s finding. In the present case, the jury was

given a choice between the State’s interpretation of events, that appellant made a conscious

decision to drive at a high rate of speed, lost control of his car, and killed C.P., or the defense’s

version, which conceded he was speeding and lost control of his car, but explained he was suffering

from an unexpected psychotic break and is blameless for the accident. The jury chose the defense’s

explanation of events and thus necessarily determined that appellant lacked the mens rea of

recklessness necessary to convict him of manslaughter or criminal negligence.




                                                 –13–
       Viewing the full record from the trial, we conclude the ultimate issue the jury decided was

that appellant did not recklessly cause the death of C.P by consciously disregarding a substantial

and unjustified risk that his conduct in driving seventy-one miles per hour in a forty-mile-per-hour

zone and losing control of his vehicle causing it to cross the median and striking C.L.’s vehicle

would result in C.P.’s death. By not convicting appellant of the lesser-included offense of

criminally negligent homicide, the jury further necessarily concluded that appellant did not fail to

perceive a substantial and unjustifiable risk that C.P.’s death could result from his conduct.

                         Necessarily Decided Facts as Essential Elements

       Turning to the second factor in our collateral estoppel analysis, appellant contends the

necessarily decided fact that he did not act recklessly is an essential element of the State’s case for

aggravated assault because it is the least of the three mental states the State has the option to prove

for aggravated assault and there is no evidence that he intentionally or knowingly caused the

accident.

       The State contends that because all three of the relevant offenses—manslaughter,

criminally negligent homicide, and aggravated assault—are “result of conduct” offenses, a second

prosecution would not be subject to collateral estoppel because the issue of appellant’s mental state

would be different in the aggravated assault case. The State contends the issue of whether

appellant disregarded a substantial and unjustifiable risk that C.P. would die as a result of his

conduct is different from the issue of whether he disregarded a substantial and unjustifiable risk

that C.L would suffer bodily injury as a result of his conduct.

       The State asks us to engage in the sort of hypertechnical analysis disapproved in Ashe. See

Ashe, 397 U.S. at 444 (“the rule of collateral estoppel in criminal cases is not to be applied with

the hypertechnical and archaic approach of a 19th century pleading book, but with realism and

rationality.”). Using the State’s very restrictive analysis would amount to a rejection of any use

                                                –14–
of collateral estoppel in criminal proceedings where the first judgment rested upon a general

verdict of acquittal. See Murphy v. State, 239 S.W.3d 791, 794 (Tex. Crim. App. 2007). The

jury’s necessary determination was that appellant lacked the mens rea to be reckless with regard

to the conduct causing the accident that resulted in C.P.’s death and C.L.’s injuries.

       An aggravated assault may be committed intentionally, knowingly, or recklessly. See TEX.

PENAL CODE ANN. §§ 22.01(a)(1), 22.02(a). The current indictment against appellant charges all

three possible mental states. Although the State conceded there was no such evidence in its final

argument to the jury, we cannot conclude it is collaterally estopped from trying appellant for

intentionally or knowingly causing the accident. However, if the State pursues the aggravated

assault charge against appellant on a theory that he was reckless, then the precise issue raised,

litigated, and finally determined in appellant’s favor in the manslaughter case—that appellant was

not reckless in driving seventy-one miles per hour, losing control of his vehicle, and causing a

collision—would be an essential element of the offense in the second trial. See Id. §§ 22.01(a)(1),

22.02(a); Taylor, 101 S.W.3d at 440.

                                           CONCLUSION

       We conclude the trial court abused its discretion in denying the relief requested by

appellant on the issue of whether the State may try him for aggravated assault under a theory that

he was reckless in causing the accident. We conclude that the issue of appellant’s recklessness in

causing the accident is subject to collateral estoppel. See Taylor, 101 S.W.3d at 440.




                                               –15–
       Accordingly, we reverse the trial court’s order denying appellant’s pretrial writ of habeas

corpus and we remand this case to the trial court for further proceedings consistent with this

opinion.




                                                 /Bill Whitehill/
                                                 BILL WHITEHILL
                                                 JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
190280F.U05




                                              –16–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 EX PARTE CHRISTOPHER RION                          On Appeal from the Criminal District Court
                                                    No. 5, Dallas County, Texas
 No. 05-19-00280-CR                                 Trial Court Cause No. WX18-90101-L.
                                                    Opinion delivered by Justice Whitehill,
                                                    Justices Partida-Kipness and Pedersen, III
                                                    participating.

       Based on the Court’s opinion of this date, the order of the trial court denying relief on
appellant’s pretrial application for writ of habeas corpus is REVERSED and the cause
REMANDED for further proceedings consistent with this opinion.


Judgment entered September 13, 2019




                                             –17–
