      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


              SUPPLEMENTAL OPINION ON MOTION FOR REHEARING



                                       NO. 03-00-00126-CR



                                    Michael Highfill, Appellant

                                                  v.

                                   The State of Texas, Appellee



    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
        NO. 0983143, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING



               We grant appellant’s motion for rehearing to address the contentions raised therein.

               Appellant’s first ground for rehearing is that this Court erred by concluding that the

evidence is legally sufficient to sustain his conviction as a party to capital murder under penal code

section 7.02(a)(2). Tex. Penal Code Ann. § 7.02(a)(2) (West 1994). Appellant repeats the

arguments he made on original submission. We remain unpersuaded by these arguments, and

continue to find the evidence sufficient for the reasons stated in our original opinion.

               Next, appellant urges that we erred by concluding that the evidence is legally sufficient

to sustain his conviction as a party to capital murder under penal code section 7.02(b). Id. § 7.02(b).

Once again, appellant repeats the arguments he made on original submission, adding only that this

Court’s interpretation of section 7.02(b) is contrary to the rules of statutory construction. We have

reconsidered our discussion of section 7.02(b), both as it relates to the sufficiency of the evidence
issue and as it relates to appellant’s jury charge issues, and are satisfied that we correctly applied the

statute.

                In his third ground for rehearing, appellant complains that we failed to address his

collateral estoppel argument. Appellant advanced this argument in support of his contention that the

district court erred by authorizing his conviction on the conspiracy theory of parties liability. See id.

Appellant argued that section 7.02(b) should not have been submitted to the jury because Rebecca

Walton, the person who actually shot Luis Flores, “was acquitted of every theory of capital murder,

including the conspiratorial one.” He added that “the existence of a conspiracy was also settled in

Walton’s trial and was precluded as a matter of collateral estoppel.”

                The collateral estoppel doctrine bars relitigation between the same parties of issues

actually determined at a previous trial. Ashe v. Swenson, 397 U.S. 436, 442 (1970); Ex parte Tarver,

725 S.W.2d 195, 198 (Tex. Crim. App. 1986). Appellant was not a party to Walton’s trial. And as

we noted on original submission, the record before us does not show that the jury at Walton’s trial

necessarily found that she did not conspire with appellant to rob Flores. See Ashe, 397 U.S. at 444;

State v. Sauceda, 980 S.W.2d 642, 647 (Tex. Crim. App. 1998). Appellant’s collateral estoppel

argument is without merit.

                In his fourth ground for rehearing, appellant criticizes our handling of his contentions

that he was entitled to a jury instruction on “independent impulse” and that his trial attorneys were

ineffective for failing to request the instruction. These issues are moot in light of Solomon v. State,

No. 73,459, slip op. at 17, 2001 Tex. Crim. App. LEXIS 49, at *28 (Tex. Crim. App. June 20, 2001)

(no “independent impulse”defense; charge tracking section 7.02(b) is sufficient). We will nevertheless

address appellant’s complaints because they misstate our original opinion.

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                We did not hold, as appellant asserts, that he was not entitled to an “independent

impulse” instruction because there was no evidence that he conspired with Walton to rob Flores.

Instead, we held that there was no evidence that the murder of Flores was not committed in

furtherance of the conspiracy, or that the murder should not have been anticipated by appellant. The

“independent impulse” defense presupposed a conspiracy between the defendant and the other party.

See Mayfield v. State, 716 S.W.2d 509, 513 (Tex. Crim. App. 1986). Evidence that appellant did

not conspire with Walton did not raise the issue.

                As to trial counsel’s failure to request the “independent impulse” instruction, we did

not state that this may have been a strategic decision. To the contrary, we noted counsel’s testimony

at the new trial hearing disclaiming any strategic rationale for not requesting the instruction. We held

the failure to request the instruction was not ineffectiveness because the issue was not raised by the

evidence. Our statement that “[c]ounsel could have reasonably concluded that it would be

inconsistent with this defense strategy to request instructions implicitly admitting appellant’s active

involvement in the capital murder,” cited by appellant in his motion for rehearing, was made in

reference to appellant’s contention that his attorneys were ineffective for failing to request jury

instructions on mistake of fact and duress. As we stated on original submission, appellant’s trial

attorneys were not asked at the new trial hearing why they did not request these instructions.

                Finally, appellant asserts that we “ignore[d] virtually every argument Appellant

advanced throughout his brief” by concluding that the district court’s failure to apply the law of

parties to the facts of the case benefitted appellant. This assertion misstates both the record and our

original opinion. The district court did apply the law of parties to the facts of the case by first

instructing the jury on the abstract law of parties, then authorizing appellant’s conviction if the jury

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found that he murdered Flores “either acting alone or with another or others as a party to the offense,

as that term is hereinbefore defined.” See Chatman v. State, 846 S.W.2d 329, 332 (Tex. Crim. App.

1993). We stated in our original opinion that there was no evidence in the record as to why counsel

did not request a more detailed or explicit application of the law to the facts (appellant’s real

complaint). We also noted that because the law of parties enlarges the defendant’s liability, it has

been suggested that it is to the defendant’s benefit not to have this theory more specifically delineated

in the application paragraph. See Romo v. State, 568 S.W.2d 298, 302 (Tex. Crim. App. 1978) (op.

on reh’g). Appellant’s protestations of harm notwithstanding, neither his original brief nor his motion

for rehearing offers any explanation as to how he would have benefitted from a more detailed

application of the law of parties. Appellant simply failed to overcome the strong presumption that

counsel rendered reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 771

(Tex. Crim. App. 1994).

                With this additional discussion, we again overrule each of appellant’s points of error

on appeal.




                                                Jan P. Patterson, Justice

Before Chief Justice Aboussie, Justices Yeakel and Patterson

Filed: July 26, 2001

Do Not Publish

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