                                                                                     ACCEPTED
                                                                                 13-15-00198-CR
                                                                 THIRTEENTH COURT OF APPEALS
                                                                        CORPUS CHRISTI, TEXAS
                                                                           7/15/2015 10:23:04 AM
                                                                          CECILE FOY GSANGER
                                                                                          CLERK

                         #13-15-00198-CR

                                                         FILED IN
                                                 13th COURT OF APPEALS
       Thirteenth Court of Appeals, Corpus   Christi
                                              CORPUS &CHRISTI/EDINBURG,
                                                       Edinburg         TEXAS
                                                 7/15/2015 10:23:04 AM
                                                    CECILE FOY GSANGER
                                                          Clerk
                   THE STATE OF TEXAS,
                             Appellant

                                 v.

                   ANDREW BERNWANGER,
                         Appellee


 ON STATE’S APPEAL FROM THE COUNTY COURT AT LAW NO. 1
         OF NUECES COUNTY, CAUSE #12-CR-0438-1


                      DEFENSE’S BRIEF


                                  R.C. Pate
                                  Tex. Bar #24052165
                                  321 S. Flores Street
                                  San Antonio, TX 78204
                                  210-275-7294 phone
                                  210-568-4726 fax
                                  rc.pate@gmail.com




ORAL ARGUMENT REQUESTED
                     IDENTITY OF PARTIES AND COUNSEL


Appellee:    Andrew Bernwanger, represented by

             Trial and Appellate Counsel:

                    Robert C. Pate, Jr.
                    321 Flores
                    San Antonio, TX 78204

             Initial Trial Counsel:

                    Les Cassidy
                    814 Leopard St.
                    Corpus Christi, TX 78401

Appellant: The State of Texas, District Attorney for the 105th Judicial
           District, represented by

             Appellate counsel:

                    A. Cliff Gordon, Asst. Dist. Atty.
                    Nueces County Courthouse
                    901 Leopard St., Rm. 206
                    Corpus Christi, TX 78401

             Trial and appellate counsel:

                    Mark Skurka, District Attorney
                    Dulce Salazar Valle, Asst. Dist. Atty.
                    Nueces County Courthouse
                    901 Leopard St., Rm. 206
                    Corpus Christi, TX 78401




                                            ii
                             TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL…………………………………………...ii

INDEX OF AUTHORITIES………………………………………………………….….iv

STATEMENT OF THE CASE…………………………………………………………...v

ISSUE PRESENTED………………………………………………………………….....vi

 The State chose to go forward on two municipal citations that were tried to a jury.
    That jury returned a verdict against the state. The State argues they incur no
    negative consequences from losing a jury trial in municipal court even when all
    evidence for the subsequent offense would be based on those charges. Does this
    violate the double jeopardy or, in the alternative, does collateral estoppel bar the
    second prosecution?...……………………………….…………………………… vi

STATEMENT OF FACTS……………………………………………………………..... 1

SUMMARY OF THE ARGUMENT…..………………………………………………... 1

ARGUMENT…..……………………………………………………………….…...…… 3

    I.     The Differences Between Ashe and Blockburger……...………………...... 3

    II.    Res Judicata………………………………………………………….……. 5

    III.   The State’s Cases Are Not Controlling In That None Of Them Involve Jury

           Verdicts…………………………………………………………………… 6

    IV.    The State’s Argument Concerning The Lack Of Evidence Is Likely Correct,
           But It Is Argued Insincerely…..……………...…………………………… 8

    V.     Policy Considerations Discourage the Court from Taking the State’s
           Position…………………….………………………………………….…... 9

PRAYER…..……………………………………………………………………………. 10

CERTIFICATE OF COMPLIANCE…..………………………………………………...11

CERTIFICATE OF SERVICE…..……………………………………………………... 11


                                          iii
                                     INDEX OF AUTHORITIES

Cases

Ashe v. Swenson, 397 U.S. 436 (1970) ............................................................ 2, 3, 4, 5, 10

Blockburger v. United States, 284 U.S. 299 (1932)........................................................... 3

Dowling v. United States, 493 U.S. 342 (1990).............................................................. 6, 7

York v. State, 342 S.W.3d 528 (Tex. Crim. App. 2011)..................................................... 6




                                                       iv
                            STATEMENT OF THE CASE

Nature of the Case                        On November 6, 2011, The Corpus Christi
                                          Police Department stopped Andrew
                                          Bernwager and gave him citations for
                                          Running a Stop Sign and Passing on the
                                          Wrong Side of the Road. They also arrested
                                          him for Driving While Intoxicated. The
                                          DWI was investigated subsequent to the
                                          traffic offenses.
Course of Proceedings                     On February 24, 2015, The State of Texas,
                                          through their agent, the City Attorney for
                                          Corpus Christi, proceeded to trial on the
                                          two traffic citations in one setting. That
                                          trial was to a jury, who returned a verdict
                                          of Not Guilty.

Trial Court’s Disposition                 On March 9, 2015, the trial court signed
                                          Trial Court’s Order Granting the Claim of
                                          Collateral Estoppel based upon the jury’s
                                          verdict.




                                      v
                                 ISSUE PRESENTED

The State chose to go forward on two municipal citations that were tried to a jury. That
jury returned a verdict against the State. The State argues they incur no negative
consequences from losing a jury trial in municipal court even when all evidence for the
subsequent offense would be based on those charges. Does this violate double jeopardy,
or, in the alternative, does collateral estoppel bar the second prosecution?




                                            vi
                                  STATEMENT OF FACTS

       On November 6, 2011, Andrew Bernwanger was stopped by CCPD Officer

Saldana and subsequently charged with the offenses of Driving While Intoxicated,

Running a Stop Sign, and Passing on the Wrong Side of the Road. CR 5, 8. Brief of

Appellant at 1 (State’s Brief).

       On February 24, 2015, The State of Texas proceeded to trial against Andrew

Bernwanger on the two traffic citations. Both offenses were tried to the same jury. CR

70. At said trial, Officer Saldana testified to all the traffic violations that were the basis of

the reasonable suspicion for this DWI stop. CR 70; RR 9. The jury found Andrew

Bernwanger not guilty of both traffic charges. State’s Brief 10 n.5.

       On March 9, 2015, the Judge ordered that the two not guilty verdicts collaterally

estopped the State from re-litigating the issues of Defendant’s stop. Thus, all evidence

seized after that point in time was suppressed as fruit of the poisonous tree. CR70, The

State appealed.

                           SUMMARY OF THE ARGUMENT

       Andrew Bernwanger has already been found not guilty of Running a Stop Sign

and Passing on the Wrong Side of the Road by a jury of his peers. CR 70, State’s Brief 1,

10 n.5. However, the State wants to argue yet again that he actually committed these

offenses, and this time it wants to do so at a lower burden of proof (State’s Brief 3).

       Procedurally, Defendant was placed in Jeopardy for the possible punishments of

those crimes and a potentially more serious offense in 2011. Moreover, he was also

arrested (CR 7), placed on bond (CR 8-11), compelled to hire two different lawyers (CR

                                               1
12, 48-52, 64-65)1, and subjected to pending charges for three and a half years (CR 5-6,

70). Despite winning a jury trial on the issue (CR 70; State’s Brief 1) and having the

Judge agree his prosecution was barred by the State (CR 70), Defendant is enduring

prolonged procedural limbo again with the State’s appeal (CR 71-76).

       This is exactly the repetitive prosecution prohibited by both the United States and

Texas Constitutions. Ashe v Swansen, 397 US 436 (1970). The State chose to go

forward with the traffic ticket trials and lost. Now they want to try the same case again at

a lower burden of proof.

       The Defense does concede, however, that the entirety of the trial transcript should

have been admitted at the lower court hearing on this issue. While the documents

provided to the court about the traffic tickets, which were discussed in RR 6-7, are

conspicuously absent from the Clerk’s record, the entirety of the transcript is likely

necessary to come to a determination on this issue. In so realizing, Defense asked the

State if they would agree to a remand for a hearing to introduce said transcript. The State

denied such a request. As such, the Defense asks this court to remand the case back to

the trial court for a hearing, wherein defendant can introduce the recording of the entire

trial proceeding and the county court can make specific findings in regards to which

issues are precluded from litigation.




1 It should be noted Defense Counsel’s notice of appearance of counsel is missing from
the Clerk’s record along with other documents which will be discussed later in this brief.
                                             2
   I.      The Differences Between Ashe And Blockburger

        There are at least two types of actual double jeopardy. The first category, which is

frankly the easiest to understand, is the Blockburger type. This type of double jeopardy

is defined as both crimes having an element that is distinct from the elements of the other.

Blockburger v. United States, 284 U.S. 299 (1932). This type of jeopardy is what

prevents the State from getting two guilty verdicts. A guilty verdict on one crime in a

Blockburger scheme prevents the state from pursuing guilty verdicts on other cases

lacking distinct elements. The defense completely cedes the argument that the cases

involved before the court today do not meet the Blockburger criteria. Had the State

prevailed at the trial on the traffic tickets, double jeopardy would in no way prevent it

from prevailing at the DWI trial.

        A completely different type of double jeopardy occurs when a person is found not

guilty for some reason. See generally Ashe v. Swansen, 397 U.S. 436 (1970). When the

State tries a case and loses, it should not get to re-try the case with a slightly different fact

scenario (which would be allowable under Blockburger). In Ashe, the defendant was

accused of being one of a group of persons who robbed a poker game. The State first

charged Ashe with robbing Victim 1, and the jury returned a “not guilty” verdict. After

using the first trial as a practice run, the State called different identifying witnesses and

coached them better on what to say to on the stand in the robbery charge for Victim 2.

The second jury found Ashe guilty. The United States Supreme Court said that such trial

tactics are precisely what was barred by the double jeopardy clause of the U.S.

Constitution.

                                               3
"Collateral estoppel" is an awkward phrase, but it stands for an extremely
important principle in our adversary system of justice. It means simply 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.
Although first developed in civil litigation, collateral estoppel has been an
established rule of federal criminal law at least since this Court's decision more
than 50 years ago in United States v. Oppenheimer, 242 U.S. 85. As Mr. Justice
Holmes put the matter in that case, “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.” 242 U.S. at 87. As a rule of federal law, therefore,
“it is much too late to suggest that this principle is not fully applicable to a former
judgment in a criminal case, either because of lack of ‘mutuality’ or because the
judgment may reflect only a belief that the Government had not met the higher
burden of proof exacted in such cases for the Government's evidence as a whole,
although not necessarily as to every link in the chain.” United States v.
Kramer, 289 F.2d 909, 913.

The federal decisions have made clear that 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. 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.” The inquiry
"must be set in a practical frame, and viewed with an eye to all the circumstances
of the proceedings." Sealfon v. United States, 332 U.S. 575, 579. Any test more
technically restrictive would, of course, simply amount to a rejection of the rule of
collateral estoppel in criminal proceedings, at least in every case where the first
judgment was based upon a general verdict of acquittal.

Straightforward application of the federal rule to the present case can lead to but
one conclusion. For the record is utterly devoid of any indication that the first jury
could rationally have found that an armed robbery had not occurred, or that Knight
had not been a victim of that robbery. The single rationally conceivable issue in
dispute before the jury was whether the petitioner had been one of the robbers.
And the jury, by its verdict, found that he had not. The federal rule of law,
therefore, would make a second prosecution for the robbery of Roberts wholly
impermissible.

The ultimate question to be determined, then, in the light of Benton v. Maryland,
supra, is whether this established rule of federal law is embodied in the Fifth
Amendment guarantee against double jeopardy. We do not hesitate to hold that it

                                       4
         is. For whatever else that constitutional guarantee may embrace, North Carolina v.
         Pearce, 395 U.S. 711, 717, it surely protects a man who has been acquitted from
         having to "run the gauntlet" a second time. Green v. United States, 355 U.S. 184,
         190.

Ashe v. Swenson, 397 U.S. 436, 443-46, 90 S.Ct. 1189, 1194-95 (1970).

         This second running of “the gauntlet” is precisely what the State intends to do to

Andrew Bernwanger. The state should be Collaterally Estopped because it is

attempting to litigate this second lawsuit under a separate cause of action, Driving

While Intoxicated, that is based on common issues which have already been litigated

and determined in the first suit, Running a Stop Sign and Passing on the Wrong Side

of the Road.

   II.      Res Judicata

         If the jury had rendered a guilty verdict in Andrew Bernwanger’s trial, it is likely

that res judicata would bar the defense from raising the validity of the stop in a motion to

suppress. The Defense would in effect be (1) bringing a claim in a second action that is

based on the same facts at issue in the first action; (2) seeking an additional or alternative

remedy to the action sought earlier; and (3) bringing a claim that could have been joined

in the first action. Res judicata would be employed in this situation to bring the matter to

a close instead of allowing the Defense to bring subsequent litigation after an unfavorable

first ruling on the basic elements of the claim. It is important to note here that the Defense

risked something for the reward it received of the not guilty verdict.




                                               5
   III.   The State’s Cases Are Not Controlling In That None Of Them Involve

          Jury Verdicts

       The State primarily relies upon York v State 342 S.W.3d 438 (Tex. Crim. App.

2011) and Dowling v United States 493 U.S. 342 (1990). Each case is quite

distinguishable. If you will note in the second paragraph of the Ashe quote above it talks

about what to do when a jury returns a verdict, however neither of the cases relied upon

by the State are about jury verdicts.

       In York, a county court judge granted a motion to suppress erroneously in a

misdemeanor trial. The Judge had somehow misinterpreted the code of criminal

procedure to believe that an officer outside the city limits of the city he was

commissioned did not have the authority to investigate a possible burglary. The State

then proceeded on a felony charge, where the District judge made a correct ruling on the

motion to suppress. This case is quite distinguishable from the current one. First, there is

no jury finding. Second, it is not the Fifth Amendment protections of double jeopardy

that govern this judicial estoppel claim, but, rather, whether the district court was bound

to follow the county court’s incorrect ruling. The issue at hand was purely a question of

law, not an interpretation of what factually happened on the day in question. For all these

reasons, York is not controlling over the present case.

       The next case the State relies upon is Dowling. This case concerns whether

testimony offered under rule 404(b) is allowed when the defendant was acquitted of the

crime about which the person was testifying. While the court held that such testimony

being admitted was error, that error was harmless and not double jeopardy. A rule of

                                              6
character evidence does not set precedent for cases in which a defendant was found not

guilty by a jury of the very crime for which he is detained before subsequent

investigation reveals yet another crime.

         Furthermore the dicta of Dowling the state relies upon repeatedly uses the word

civil.

         In United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), for
         example, we unanimously agreed that a gun owner's acquittal on a charge of
         dealing firearms without a license did not preclude a subsequent in rem forfeiture
         proceeding against those firearms, even though forfeiture was only appropriate if t
         he jury in the forfeiture proceeding concluded that the defendant had committed
         the underlying offense. Because the forfeiture action was a civil proceeding, we
         rejected the defendant's contention that the Government was estopped from
         relitigating the issue of the defendant's alleged wrongdoing:

         "[The acquittal did] not prove that the defendant is innocent; it merely proves the
         existence of a reasonable doubt as to his guilt. . . . The jury verdict in the criminal
         action did not negate the possibility that a preponderance of the evidence could
         show that [the defendant] was engaged in an unlicensed firearms business. . . . It is
         clear that the difference in the relative burdens of proof in the criminal and civil
         actions precludes the application of the doctrine of collateral estoppel."Id., at 361-
         362.

Dowling v. United States, 493 U.S. 342, 349, 110 S.Ct. 668, 672-73 (1990).

         The State is trying to take law used to allow civil litigation after a not guilty

verdict to allow another criminal trial. Their logic does not follow from the law.

Certainly, civil cases can be brought after an acquittal, but a civil trial never involves

jeopardy in a constitutional context.

         As the Court can see, none of the cases the State relies upon stand for the principal

that they cite. There is no authority which allows the state to re-litigate the jury’s finding

of not guilty at a motion to suppress setting.


                                                7
   IV.      State’s Argument About The Lack of Evidence Is Likely Correct, But It Is

            Argued Insincerely

         Under the doctrine of collateral estoppel, the trial court should review the record

of the first trial to decide what issues have been found against the State. The Defense

produced at the hearing copies of the acquittal, a copy of the jury instructions, and a copy

of each of the charging documents filed against Defendant. RR 6-7. Defense fully

admits that he did not ask those to be marked and admitted, because the court told him

they did not have time for an evidentiary hearing. RR6. However Defense counsel did

file them with the court and thought they were part of the Clerk’s record. It is clear they

did not make it before this court. Also that day Defense did not have a copy of the

transcript of the original proceeding. RR 7.

         Defense must now concede that under a claim of collateral estoppel, there needs to

be the full hearing before the trial court can grant such a claim. Defense is now in

possession of the transcript and is ready to present it to the trial court. For that reason, we

ask this court to grant the Defense request for remand and a hearing on the subject. At

such a hearing the trial court could listen to the recording, and make a determination on

what issues have been precluded from further prosecution.

         In an attempt to not waste this Court’s time, Defense asked the State if they would

agree to the remand. They refused such an agreement. As such they make their argument

insincerely. They want this court to allow a second prosecution for the events of

November 6, 2011, (any and all evidence of which would have come after the alleged



                                               8
events he has been found not guilty of) without following the procedure they outline in

their brief.

       They claim that the appropriate procedure for a collateral estoppel claim is for the

trial court to first examine the entire record of the first trial to decide what issues are

precluded from re-litigation. When the defense agrees that such a hearing would be

beneficial to this court, the State says they will not agree to a remand. In essence, they

want to argue the controlling law in such a way as to not consider the underlying facts.

Such an argument is flawed.

       V. Policy Considerations Discourage The Court From Taking The State’s

               Position

       What the State is attempting to do here is play a lawyer game about how the

Defendant is punished for the behavior of Running a Stop Sign and Passing on the Wrong

Side of the Road. Res judicata surely bars the defendant from arguing his motion to

suppress had he lost the trial in Municipal Court. A judgment from the municipal court

would certainly be enough evidence to defeat a motion to suppress. Why is it that what is

good for the goose is not good for the gander? A more detailed look at how the parties

have control over such an issue will reveal this is an affront to normal notions of fair play

and justice.

       The State is the only party in control of whether jeopardy attaches in any

proceeding. This is so because they always have the power of dismissal. They can avoid

a trial taking place at all. The Defendant’s only remedy when the state announces for

trial is to go and win the trial. Even then jeopardy has attached. Jeopardy attaches in a

                                               9
plea and also if the defendant loses the trial. Thus the State is in sole control of whether

jeopardy attaches. They get to choose their which the prefer: take the issue of stopping at

a stop sign to the county judge at a motion to suppress, or take it to a jury at the

municipal court. They made a choice and don’t like the outcome. They can not be

allowed to, in every case, chose to have two trials over the very same issue. Such is an

affront to justice, and precisely the rationale prohibited in Ashe.

       The State made a lawyer decision to proceed to a jury in a trial on the tickets.

Such a choice should carry risk to balance the possible reward. The reward would be a

guilty verdict barring re-litigation over the motion to suppress. The State should not get a

second bite at the apple because of a clever lawyer decision. Such would encourage

double prosecutions for every traffic offense that is the reasonable suspicion for any stop.

If the State won at the trial the defense could not argue it to a judge because of res

judicata.

       However when the state loses the trial, they simply argue the same facts again and

attempt to claim the lower burden.     The purpose of the double jeopardy clause is to

prevent precisely such lawyer games.

                                          PRAYER

       For the foregoing reasons we ask the court to issue a remand to the trial court

ordering them to have a hearing on why the jury returned a verdict of not guilty. In the

alternative, we ask the court to uphold the trial court’s order and respectfully request oral

argument before this court.

                          CERTIFICATE OF COMPLIANCE

                                              10
According to the word count of the computer program used to prepare this document, it

contains 3,226 words

                             CERTIFICATE OF SERVICE


On July 15, 2015, a true copy of the foregoing was served via eServe on the following:

A. Cliff Gordon
Asst. Dist. Atty., 105th Dist.
Nueces County Courthouse
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
                                  /s/ R.C. Pate__________________
                                  R.C. Pate




                                           11
