                IN THE COURT OF CRIMINAL APPEALS
                            OF TEXAS

                                                  NO. PD-0088-10


                                   RICKIE DAWSON YORK, Appellant

                                                           v.

                                            THE STATE OF TEXAS


                            On Discretionary Review of Case 12-08-00106-CR
                                     of the Twelfth Court of Appeals
                                              Smith County


         WOMACK, J., filed a concurring opinion.


         The Court has determined that for double-jeopardy-based collateral estoppel to bar the

relitigation of a fact, that fact must be an essential element in both the prior prosecution and the

subsequent prosecution.1 I believe that this rule is a correct statement of the law.

         I write separately to offer an alternate explanation for the rule, and to note its limitations.

         1
          The Court at times uses the terms “ultimate fact” instead of “essential element.” However, the Court also
argues that for an issue to be an “ultimate fact,” jeopardy must attach to it. Therefore, I believe that my statement of
the Court’s rule is accurate.
                                                                                                       York Concurrence - 2

                                                       I. Terminology

         This area of the law has an intricate terminology, which I have found it helpful to review.

         The common law of finality is known as res judicata,2 some parts of which have been

codified in statutes and rules, and some parts incorporated in the Federal Constitution. I shall first

address the underlying common law.

         Res judicata “specifies the effect that any adjudication has on all subsequent litigation.”3

Res judicata encompasses claim preclusion and issue preclusion.4 Claim preclusion prohibits a

second suit based on the same claim between the same parties.5 Issue preclusion prohibits a party

from relitigating an issue (such as a fact, a question of law, or an application of law to fact) that

was previously determined in a suit between the same parties.6 Issue preclusion comprises two

types of estoppel, collateral and direct. Collateral estoppel is issue preclusion in a suit that is

based on a different claim than the suit in which the issue was originally decided. Direct estoppel

is issue preclusion in a suit based on the same claim as the suit where the issue was originally




         2
             “A thing adjudicated.” B LACK ’S L AW D IC TIO N ARY (9 th ed. 2009).

         3
          R O BERT C. C ASAD & K EVIN M. C LERM O N T , R ES J U D IC ATA : A H AN DBO O K O N   ITS   T H EO RY , D O CTRIN E , AN D
P RACTICE 3 (2001).

         4
          Confusingly, claim preclusion has traditionally been referred to as “res judicata” and issue preclusion has
been referred to as “collateral estoppel.” See, e.g., Migra v. Warren City School Dist. Bd. Of Educ., 465 U.S. 75, 77
n.1 (1984). Both of these terms, however, have different uses, and the modern trend is to use the terms “claim
preclusion” and “issue preclusion.” Baker by Thomas v. General Motors, 522 U.S. 222, 233 n.5 (1998).

         5
           See 18 C H ARLES A LAN W RIG H T , A RTH U R R. M ILLER & E D W ARD N. C OOPER , F ED ERAL P RACTIC E &
P RO CEDU RE § 4402 (2d. 2002) (quoting Kaspar Wire Works, Inc. v. Leco Engr’g & Mach., Inc., 575 F.2d 530, 535-
36 (5th Cir. 1978)).

         6
             See R ESTATEM EN T (S ECO N D ) O F J U D GM EN TS § 27 (1982).
                                                                                              York Concurrence - 3

decided. Because claim preclusion will generally prohibit a second suit on the same claim,

questions of collateral estoppel are much more common than questions of direct estoppel.7

                                     II. Res Judicata and Double Jeopardy

         In the criminal law, claim preclusion has been subsumed by the Fifth Amendment

prohibition of double jeopardy.8 While a narrow interpretation of the Fifth Amendment would

cover only instances of claim preclusion,9 the Supreme Court has determined that the Fifth

Amendment also incorporates at least one type of issue preclusion. In Ashe v. Swenson,10 the

Supreme Court held that where a jury acquitted a defendant of robbing a poker player because it

did not believe he was one of the robbers, the Fifth Amendment barred prosecutors from

relitigating the issue of identity in another trial for the robbery of another player in the same

poker game.11

         Narrowly interpreted, Ashe applies only where the already proven fact from the first

prosecution is an essential element of the offense in both the first and second prosecutions. I shall




         7
          C ASAD & C LERM O N T , supra note 3, at 10 (noting that the term “collateral estoppel” has come to be
regarded as a generic term for both types of issue preclusion, but that the term “issue preclusion” is preferable).

         8
           See U.S. C O NST . amend. V (“nor shall any person be subject for the same offense to be twice put in
jeopardy of life or limb”); see also C ASAD & C LERM O N T , supra note 3, at 23 (noting that double jeopardy and claim
preclusion are slightly different, and then concluding: “Because jeopardy attaches even before judgment, any
judgment that would be valid, final, and on the merits for purposes of [claim preclusion] would also be one covered
by double jeopardy. The existence of the double jeopardy protection thus has retarded the independent application of
the claim preclusion aspects of res judicata in repetitive criminal cases.”)

         9
            See United States v. Dixon, 509 U.S. 688, 703-12 (1993) (re-establishing and tracing the history of the
rule that the Fifth Amendment bars a subsequent prosecution only when the subsequent prosecution is for an offense
that meets the “same-elements” test laid out in Blockburger v. United States, 284 U.S. 299 (1932)).

         10
              397 U.S. 436 (1970).

         11
              Id., at 445-47.
                                                                               York Concurrence - 4

call this “essential-issue preclusion.” Since the abolition of federal common law in state cases,12

the only basis for the Supreme Court to interject a common-law concept like res judicata into a

state case like Ashe would be if that common-law concept were incorporated in the Constitution.

The Supreme Court’s repeated interpretations of the double jeopardy clause are adamant that

double-jeopardy analysis is grounded in the essential elements of an offense.13 Because only the

charged offense places a defendant in jeopardy of life or limb, the relitigation of facts that are not

elements of the offense in two prosecutions cannot create double jeopardy.

       Although the Fifth Amendment incorporates only essential-issue preclusion, this does not

mean that essential-issue preclusion is the only type of res judicata in criminal cases. Indeed,

Ashe stated that the use of “collateral estoppel” in criminal cases was already an “established rule

of federal law at least since [the] court’s decision … in United States v. Oppenheimer.”14 That

case was not a case of essential-issue preclusion.

       Oppenheimer had been charged with a federal offense, but the indictment was quashed

after the trial judge ruled that the statute of limitations for the offense had run.15 Oppenheimer

was later reindicted for the same offense when a ruling in an unrelated case determined that the




       12
            See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-80 (1938).

       13
            See Dixon, 509 U.S., at 703-712.

       14
            Ashe, 397 U.S. at 445.

       15
            United States v. Oppenheimer, 242 U.S. 85, 85 (1916).
                                                                                            York Concurrence - 5

statute of limitations was longer than first believed. The Supreme Court held that, while it was

not a Fifth Amendment matter,16 as a matter of res judicata the second prosecution was barred.17

                                               III. The Murphy Test

         The Court’s opinion discusses at length the test for issue preclusion that this Court had

come to use and which was stated in Murphy v. State:

         To determine whether collateral estoppel bars a subsequent prosecution or permits
         the prosecution but bars religitation of certain specific facts, this court has adopted
         the two-step analysis employed by the Fifth Circuit. See Neal v. Cain, 141 F.3d
         207, 210 (5th Cir. 1998); see also [Ex Parte Taylor, 101 S.W.3d 434, 440 (Tex.
         Cr. App. 2002)]. This court stated that 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.18

         On its face, this test purports to apply a two-part analysis to questions of both essential-

issue preclusion (where “collateral estoppel bars a subsequent prosecution”19) and non-essential-

issue preclusion (where “collateral estoppel … permits the prosecution but bars relitigation of

certain specific facts”). However, the second part of the two-part analysis requires that the fact-

to-be-barred be an element of the second offense. Thus, in analyzing whether issue preclusion

        16
           Id., at 87 (accepting the prosecution’s assertion that the case was one where “the defendant never has
been in jeopardy in the sense of being before a jury upon the facts of the offense charged”).

        17
           Id., at 87-88 (“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 5th Amendment
was not intended to do away with what in the civil law is a fundamental principle of justice in order, when a man
once has been acquitted on the merits, to enable the government to prosecute him a second time”(citation omitted)).

         18
              Murphy v. State, 239 S.W .3d 791, 795 (Tex. Cr. App. 2007).

        19
            Strictly speaking, essential issue preclusion does not bar prosecution, as claim preclusion or ordinary
double jeopardy would. Rather, it bars the State from litigating an essential element of the offense. That was the
narrow issue Ashe addressed. See Ashe, 397 U.S. at 446-47. Of course, if a prosecution were brought in such
circumstances, the defendant would be entitled to a directed verdict, which means that the prosecution would be
practically barred. Additionally, there may be due process and ethical problems with bringing a prosecution where
the State knew it would be unable to prove an essential element, but those matters are beyond the scope of the Fifth
Amendment.
                                                                                            York Concurrence - 6

applies, this test eliminates the possibility of non-essential-issue preclusion and leaves only

essential-issue preclusion.

       How had this Court come to apply a test to questions of non-essential issue preclusion

that eliminates the possibility of non-essential-issue preclusion? Murphy cited to Taylor for the

proposition that we use a test from the Fifth Circuit. In Taylor, the test was formatted differently:

       To determine whether collateral estoppel bars a subsequent prosecution (or
       permits prosecution but bars relitigation of certain specific facts) courts employ a
       two-step analysis. Courts 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.20

       It is not immediately clear to me what difference the parentheses make. Expressed

in this format, does the test present non-essential-issue preclusion as an alternative to

essential issue preclusion if the prongs of the test are not met? Or does it subject non-

essential issue preclusion to the same test as essential-issue preclusion?

       Taylor itself dealt with a pre-trial habeas applicant who alleged that an element of

the offense for which he was being prosecuted had been decided in a previous case in

which he had been acquitted.21 Thus it was a question of essential-issue preclusion

governed by Ashe. Taylor, even while discussing Ashe, still spoke broadly of “issue

preclusion” and cited to sources that discussed issue preclusion without differentiating




       20
            Taylor, 101 S.W .3d at 440 (citing Neal v. Cain, 141 F.3d 207, 210 (5th Cir. 1998)).

       21
            Id., at 336.
                                                                                         York Concurrence - 7

between essential and non-essential issues.22 The court of appeals decision which Taylor

affirmed treated the matter as one of essential-issue preclusion.23

        It is worthwhile to look at the authority for Taylor. It cited the Fifth Circuit’s

opinion in Neal v. Cain24as the source for its test.25 In Neal, the test is formatted differ-

ently and is preceded with an explanation:

        As the Supreme Court has recognized, the Double Jeopardy Clause incor-
        porates the doctrine of collateral estoppel. … As applied against the
        government in criminal cases, collateral estoppel may either bar a subse-
        quent prosecution, or it may prevent the relitigation of particular facts
        necessarily established in the prior proceeding. In determining whether
        collateral estoppel bars a subsequent prosecution, as Neal contends it
        does here, we engage in a two-step analysis. First, we must discern which
        facts were necessarily decided in the first proceeding. We then consider
        whether the facts necessarily decided in the first trial constitute essential
        elements of the offense in the second trial.26

        In this statement it is clear that the two-part test is meant to discriminate between

non-essential- and essential-issue preclusion. While Neal broadly discussed “collateral

estoppel,” the holding applied only to essential-issue preclusion. This makes sense in the

context of the case: Because Ashe constitutionalized only essential-issue preclusion, the

Fifth Circuit would not be deciding a matter of non-essential-issue preclusion in Neal,




        22
             See, e.g., id., at 442.

        23
             Ex parte Taylor, 2000 W L 19151, at *2, *6 (Tex. App.–Houston [14th Dist.] January 13, 2000) (mem.
op.).

        24
             141 F.3d 207 (5th Cir. 2008).

        25
             See Taylor, 101 S.W .3d, at 440 n.17.

        26
             Neal, 141 F.3d, at 210 (emphasis added) (citations omitted).
                                                                                               York Concurrence - 8

which was a claim for habeas relief from a state conviction.27 Through the confusion

caused by the general term “collateral estoppel,” Taylor and Murphy have suggested that

the test for essential issue preclusion also applied to questions of non-essential-issue

preclusion. Because this test, by its very terms, will never find something that it purports

to test for, i.e. non-essential-issue preclusion, we should use a different test.

         By my reading, the Court and I are in agreement that the Murphy rule is not an

accurate statement of the law, and today’s opinion replaces the Murphy rule.

                                     IV. The Need for a Texas Rule

         While I agree with the Court that the appellant has sought relief based only on

double jeopardy protections, I would like to observe that today’s holding does not

foreclose the possibility of non-essential-issue preclusion based on non-constitutional

grounds. The basis for my observation is two-fold. First, the language we have used in

many cases has presumed that “collateral estoppel” could apply to facts that were not

essential elements.28 Second, in at least one recent case this Court has explicitly held that

“collateral estoppel” applied to bar the State from relitigating a fact that was not an

essential element in either prosecution.


         27
            For its essential issue preclusion test, Neal cited to United States v. Brackett, 113 F.3d. 1396, 1398 (5th
Cir. 1997), a federal prosecution that addressed both essential and non-essential issue preclusion. Because non-
essential issue preclusion is not a constitutional matter, the Fifth Circuit’s discussions on the topic carry less weight
in determining how we should address the issue.

         28
            Such language appears in numerous cases cited by the Court: Murphy, 239 S.W .3d, at 795 (purporting to
apply an issue preclusion test to situations where issue preclusion “permits the prosecution but bars religitation of
certain specific facts”); Taylor, 101 S.W .3d at 440 (same); Dedrick v. State, 623 S.W .2d 332, 336 (Tex. Cr. App.
1981) (quoting Fifth Circuit precedent for the proposition that facts “established in the first trial may not be used in
the second trial either as ultimate or as evidentiary facts”); Neaves v. State, 767 S.W .2d 784, 786 (Tex. Cr. App.
1989) (applying a rule from a New York state case that differentiated between situations where “res judicata” merely
barred the relitigation of “facts or issues” decided in a prior case, and situations where it barred a subsequent
prosecution).
                                                                                              York Concurrence - 9

         The petitioner in Ex parte Watkins killed his wife and shot her lover.29 The State

first tried him for the murder of his wife. The jury found him guilty, but during the

punishment phase determined that he had acted “under the immediate influence of sudden

passion arising from an adequate cause,”30 and sentenced him to ten years’ community

supervision.31 The State then indicted him for the attempted capital murder and attempted

murder of his wife’s lover. Watkins applied for a pre-trial writ of habeas corpus alleging

that (1) ordinary double jeopardy barred the attempted-capital-murder prosecution,

because the State had charged him with attempting to intentionally kill more than one

person32 and he already had been punished for the murder of his wife, and (2) “collateral

estoppel” barred the State from relitigating the punishment-phase issue of whether he

acted with sudden passion.33 The Second Court of Appeals determined that ordinary

double jeopardy was inapplicable, because the elements of attempted capital murder were

distinct from the elements of murder charged in the first trial.34 The Court of Appeals




         29
              73 S.W .3d 264, 266 (Tex. Cr. App. 2002).

         30
          See T EX . P EN AL C O D E § 19.02(d) (reducing murder to a second-degree felony if the factfinder, during the
punishment phase, finds by a preponderance of the evidence that the defendant “caused the death [while] under the
immediate influence of sudden passion arising from an adequate cause”).

         31
              Watkins, 73 S.W .3d, at 267.

         32
              See T EX . P EN AL C O D E § 19.03(a)(7).

         33
          Ex Parte Watkins, 52 S.W .3d 858, 860-62 (Tex. App.–Fort W orth 2001), aff’d 73 S.W 3d. 264 (Tex. Cr.
App. 2002).

         34
              Id., at 862.
                                                                                              York Concurrence - 10

determined, however, that “collateral estoppel” did apply to bar the State from relitigating

the punishment issue of sudden passion.35 We granted review.

         After noting the distinctions between double jeopardy and “collateral estoppel,”36

we held that if a jury determines a punishment-phase special issue in the defendant’s

favor, “the doctrine of collateral estoppel bars the State from relitigating it in a second

trial”37 and affirmed the Court of Appeals.38

         The circumstances of Watkins illustrate one good reason why this Court should

not categorically eliminate the possibility of non-essential-issue preclusion: Our statutes

present several situations where an issue decided by a factfinder during the punishment




         35
            Id., at 861 (“Thus, after the jury in Appellant’s first trial determined that he acted in sudden passion, an
ultimate issue on punishment, the State may not hale him before a new jury to relitigate that issue again.”
(international quotation ommitted)).

         36
              Watkins, 73 S.W .3d, at 267-68.

         37
           Id., at 269. I note that the Court in Watkins seems to have believed that the case before it was controlled
by Ashe. Id., at 268. W hile I believe that Watkins was correct in its collateral estoppel holding, as I have laid out
above I do not believe it necessarily involved Ashe because the case was one of non-essential issue preclusion.

         38
             Id., at 275. Under the rule announced today, Watkins was wrongly decided if it was indeed a double
jeopardy case, as the Court says. The sudden-passion special issue in Watkins was a defensive special issue, not an
essential element of the offense in either prosecution, thus application of the rule announced by the Court today
would deny relief.
          The jury question at issue in Watkins did not place the defendant in jeopardy, as that word is understood in
Fifth Amendment jurisprudence, at either trial because the question could not have resulted in increased punishment.
If answered in the affirmative, W atkins’s punishment range would be reduced; if answered in the negative, his
punishment range would remain the same as if the question had never been asked.
          It is true, as the Court observes, that Ashe referred to collateral estoppel barring relitigation of an “issue of
ultimate fact,” not an “essential element.” However, when Ashe used the phrase “issue of ultimate fact” it was
describing the common-law rule of issue preclusion as applied by the federal courts. The degree to which Ashe
constitutionalized that federal common-law rule is, logically, limited by the scope of the Fifth Amendment, which
only protects defendants from being twice placed in jeopardy for the same offense. W e should read Ashe as simply
expanding the application of the Fifth Amendment to situations where the defendant is twice placed in jeopardy for
the same element in two prosecutions. This interpretation more closely ties double-jeopardy-based issue preclusion
to the ordinary, claim-preclusion effect of the double jeopardy clause, which only applies when all of the elements of
two charged offenses overlap.
                                                                                              York Concurrence - 11

phase in one case could be an issue for the factfinder in a subsequent case.39 Additionally,

our exclusionary rule allows the jury to determine during the guilt phase whether it

believes beyond a reasonable doubt that evidence was seized legally.40 If these matters

came up in a subsequent prosecution, they would normally not be essential elements of

the offense,41 and thus essential-issue preclusion would not bar their relitigation.

         At a minimum, I believe that in these situations common-law issue preclusion

should protect the integrity of the original factfinder’s determination and bar relitigation

in a subsequent prosecution.42

                                V. The Limits of Double Jeopardy Protections

         I disagree with the Court’s treatment of Ashe’s limitations. By falling back to the

“ultimate fact” language used in Ashe itself - but not in the Supreme Court’s subsequent

Fifth Amendment cases - the Court simply invites litigation about the definition of




         39
            See id., at 269 n.14 (listing statutory special punishment-phase issues that can be given to jurors,
including: finding a deadly-weapon was used, T EX . P ENAL C O D E § 12.35(c)(1); finding that an offense was
committed because of bias or prejudice, T EX . P EN AL C OD E § 12.47(a); finding that murder was committed because
of sudden passion, T EX . P ENAL C O D E 19.03(d); finding that kidnapper voluntarily released a victim in a safe place,
T EX . P ENAL C O D E § 20.04(d); finding that the defendant is the same person as that convicted in a prior case as set out
in an enhancement paragraph, T EX . P EN AL C O D E § 12.42).

         40
              T EX . C OD E C RIM . P RO C . art. 38.23(a).

         41
          As I shall discuss shortly, under Supreme Court precedent any punishment-phase issue that could increase
the maximum possible sentence, such as a finding that the offense was committed because of bias or prejudice,
would be considered an element of the offense, and thus relitigation may be barred by essential-issue preclusion.

         42
            Cf. Rollerson v. State, 227 S.W .3d 718, 729-32 (Tex. Cr. App. 2007) (where original factfinder found
appellant used a deadly weapon in commission of burglary but court of appeals found evidence of deadly-weapon
use legally insufficient, the State could relitigate the deadly-weapon question at a second trial because collateral
estoppel protects determinations made by the original factfinder, not the appellate court).
                                                                                           York Concurrence - 12

“ultimate fact.”43 I believe that my approach, in which double-jeopardy-based issue

preclusion follows the contours of the Supreme Court’s double jeopardy jurisprudence,

avoids these problems. An analysis of two cases, Oppenheimer and Watkins,44 which

arguably involve “ultimate facts” but certainly do not involve essential elements, shows

the limits of where I believe double-jeopardy-based issue preclusion applies.

         First, Oppenheimer itself stated that the Fifth Amendment’s double jeopardy

protections did not apply in that case.45 Oppenheimer dealt with a second prosecution

after the first prosecution was determined to be barred by the statute of limitations.

Oppenheimer was therefore never in jeopardy in the first case; thus his second prosecu-

tion was not a second jeopardy.46 While the “acquittal” in Oppenheimer was “on the

merits” of the case, the Supreme Court has since made clear that a judgment of acquittal

that does not address issues of guilt or innocence does not necessarily bar an appeal or




        43
            The term “ultimate fact” is not self-defining, nor has its meaning always been consistent with what the
Court believes it to mean. See, e.g., Laughlin v. United States, 344 F.2d 187, 191-92 (D.C. Cir. 1965) (using as
definition of “ultimate facts” as “those [facts] which the law makes the occasion for imposing its sanctions,” and
holding that a trial court’s determination that certain evidence was inadmissible was an “ultimate fact” subject to
issue preclusion in a second prosecution).

         44
              See Sections II and III, supra.

         45
            See Oppenheimer, 242 U.S., at 88 (the Fifth Amendment “has tended to give the impression that when it
did not apply in terms, there was no other principle that could. But the 5th Amendment was not intended to do away
with what in the civil law is a fundamental principle of justice,” namely common-law res judicata; the Court then
cited to Jeter v. Hewitt, 63 U.S. 352, 364 (1859), a civil case where the Court, as authorized by a Louisiana statute,
applied common-law claim preclusion).

        46
           Id., at 87 (accepting the prosecution’s assertion that the case was one where “the defendant never has
been in jeopardy in the sense of being before a jury upon the facts of the offense charged,” which is the sense in
which the Fifth Amendment recognizes jeopardy). For this reason, I also disagree with Judge Cochran’s citation of
Oppenheimer as a double jeopardy case.
                                                                                              York Concurrence - 13

retrial.47 The Supreme Court in Ashe used Oppenheimer to show that the federal courts

applied common-law “collateral estoppel” in criminal cases, what it called “the federal

rule,” but because Oppenheimer was never in jeopardy during his first prosecution, and

because the statute of limitations was not an element of the offense, Oppenheimer is not a

case where double-jeopardy-based issue preclusion should apply.48

          Second, in Watkins, we were ultimately ambivalent regarding whether double

jeopardy reached the case at all,49 but applied issue preclusion nonetheless. In determining

whether double jeopardy applied to a fact determined during the punishment phase of a

prior proceeding, Watkins discussed Monge v. California50 and Apprendi v. New Jersey.51




          47
            United States v. Scott, 437 U.S. 82, 90-91, 98-99 (1978); see Kruelski v. Conn. Super. Ct. for the Judicial
Dist. of Danbury, 316 F.3d 103, 109-11 (2nd Cir. 2003) (where trial judge dismissed case, after jeopardy attached,
on defendant’s motion that prosecution was barred by the statute of limitations, prosecution’s appeal and subsequent
retrial was not barred by double jeopardy protections)

          48
            Ashe, 397 U.S., at 443-44. Other cases seem to have uniformly viewed Oppenheimer as an example of
collateral estoppel. At the risk of heterodoxy, I cannot agree with that analysis.
          The motion that the Oppenheimer Court ruled on was a “plea in bar.” A plea in bar was not an assertion of
issue preclusion, but rather claim preclusion. See W RIG H T , M ILLER & C O O PER , supra note 5, at § 4402 (quoting Fifth
Circuit case describing claim preclusion as being composed of the doctrines of bar and merger, and distinguishing
claim preclusion and issue preclusion); C ASAD & C LERM O N T , supra note 3, at 82-85. Bolstering this observation is
the fact that the Court referred to “res judicata,” which, while also an overarching term for the law of finality, has
traditionally been used to refer specifically to claim preclusion. Additionally, Oppenheimer discussed the
“judgment” of the first court, not its findings, and noted that “[a] plea to the statute of limitations is a plea to the
merits”; this is more in line with claim preclusion analysis than issue preclusion analysis. Finally, I note that
Oppenheimer was a second prosecution based on the exact same claim as a prior prosecution, yet Oppenheimer was
never in jeopardy during the first prosecution. Upon close reading, it appears to me that Oppenheimer was a case
neither of double jeopardy nor issue preclusion, but rather common-law claim preclusion.

          49
               See Watkins, 73 S.W .3d, at 274 (“this type of double jeopardy or collateral estoppel claim” (emphasis
added).

          50
               524 U.S. 721 (1998)

          51
               530 U.S. 466 (2000).
                                                                             York Concurrence - 14

       In Monge, the Supreme Court held that double jeopardy did not apply to

noncapital sentencing proceedings.52 During the sentencing phase of Monge’s state trial,

the prosecutor sought to enhance Monge’s sentence on the basis that Monge had previ-

ously been convicted of a violent crime.53 The prosecutor presented evidence of a prior

conviction and asserted that Monge had personally committed a violent act during the

offense, but the evidence of the conviction did not contain details of the offense. The trial

court found the allegation true and enhanced Monge’s sentence accordingly. A state court

of appeals overturned the enhancement for lack of evidence and ruled that double

jeopardy barred the state from relitigating the issue on remand.54 The Supreme Court held

that because punishment-phase punishment enhancers, as a general rule, did not consti-

tute elements of the offense, the punishment phase question did not place Monge in

jeopardy and thus relitigating it would not constitute double jeopardy.55

       Apprendi involved a due process challenge to a New Jersey law that elevated the

sentencing range if the trial judge found “by a preponderance of the evidence” that the

offense was a hate crime.56 The Supreme Court held, “Other than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.”57 The

       52
            Monge, 524 U.S., at 724.

       53
            Id., at 725.

       54
            Id., at 726.

       55
            Id., at 728-29.

       56
            Apprendi, 530 U.S., at 468-69.

       57
            Id., at 490.
                                                                                          York Concurrence - 15

Court arrived at this holding by determining that when a punishment-phase question

increases the maximum possible sentence, that question is not a mere “sentencing factor,”

but is actually an element of an aggravated offense.58

         We decided Watkins less than two years after Apprendi, when the continued

validity of Monge was in question.59 Nine years later, though, Monge’s core holding

remains good law; as a general rule, questions decided during the punishment phase do

not place the defendant in jeopardy. Combining Monge and Apprendi, the scope of

double jeopardy protections during the punishment phase becomes clear: When a

punishment-phase issue increases the maximum possible punishment, that question is an

element of the offense and its relitigation may be barred by double jeopardy,60 but double

jeopardy has no application to the relitigation of punishment issues that do not increase

the maximum possible sentence.61




         58
              Id., at 494-95.

        59
           See, e.g., Watkins, 73 S.W .3d, at 271 (Apprendi had “significantly curtailed” Monge; in Apprendi, “[t]he
Court distanced itself from Monge … ”).

           60
              See United States v. Blanton, 476 F.3d 767, 772-73 (9th Cir. 2007) (Apprendi modified Monge such that
double jeopardy barred the prosecution from appealing a trial court’s finding that the prosecution had failed to prove
a punishment enhancer beyond a reasonable doubt; since enhancer was an element of the offense, trial court’s
finding, even if based on erroneous legal interpretation, was an acquittal). But see Rollerson v. State, 227 S.W .3d
718, 730-32 (Tex. Cr. App. 2007) (where appellant “concede[d] that relitigation of the deadly-weapon issue is not
barred by double jeopardy,” double jeopardy did not bar the State from relitigating a punishment enhancer that
increased the maximum possible sentence on remand after appellate court determined there was insufficient evidence
for trial court to have found punishment enhancer true; neither opinion nor briefs made mention of Apprendi).

        61
           See United States v. Rosales, 516 F.3d 749, 757-58 (9th Cir. 2008), cert. denied, 553 U.S. 1095 (double
jeopardy did not bar prosecutor from appealing trial court’s refusal to apply a sentencing enhancement that would
have increased the minimum sentence imposed).
                                                                                           York Concurrence - 16

         Watkins dealt with a punishment-phase question that could not have increased the

defendant’s maximum possible punishment. Simply put, it did not place Watkins in

jeopardy of anything. Thus federal double jeopardy protections were inapplicable.

         Because Ashe’s constitutional issue preclusion derives from the Fifth Amend-

ment’s prohibition on double jeopardy,62 the first step to applying it accurately is to

analyze which situations implicate the Fifth Amendment at all. By not clearly noting the

limits of Ashe in its opinion today, the Court may keep us from analyzing essential- and

non-essential-issue preclusion claims under the correct law in future cases.


Filed: June 29, 2011

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         62
            The Supreme Court has referred to Ashe-derived collateral estoppel as “[t]he collateral-estoppel effect
attributed to the Double Jeopardy Clause.” Dixon, 509 U.S., at 705. I believe this is an accurate description. W here
repeated prosecutions for the same offense elements are at issue, application of the double jeopardy clause will result
in issue preclusion. In claims to which the double jeopardy clause does not apply, it will have no effect of any sort.
Therefore, any issue preclusion in those cases will be an effect from applying a different doctrine.
