Acquittal in the first prosecution created a collateral estoppel bar to the second.). 623 S.W.2d 332 (Tex.Crim.App. 1981).Taylor, 101 S.W.3d at 440 n. 17.
At a habeas corpus proceeding, the writ applicant bears the burden of presenting evidence to support his allegation of collateral estoppel. See Dedrick v. State, 623 S.W.2d 332, 339 (Tex.Crim.App. [Panel Op.]1981); Ex parte Ayers, 921 S.W.2d 438, 440 (Tex.App. — Houston [1st Dist.] 1996, no pet.); see also Ex parte Kimes, 872 S.W.2d 700, 703 (Tex.Crim.App. 1993) (burden is on writ applicant to prove facts that will entitle him to habeas relief). The trial court's ruling in a habeas corpus proceeding should not be overturned absent a clear abuse of discretion.
It is the defendant's duty to establish his plea of former jeopardy under the collateral estoppel rule. Dedrick v. State, 623 S.W.2d 332, 339 (Tex.Crim.App. 1981); Flores v. State, 906 S.W.2d 133, 141 (Tex.App. — San Antonio 1995, no pet.). Such plea must be supported by evidence.
. . . To state the distinction in more prosaic terms, the traditional bar of double jeopardy prohibits the prosecution of the crime itself, whereas collateral estoppel, in a more modest fashion, simply forbids the government from relitigating certain facts in order to establish the fact of the crime. Dedrick v. State, 623 S.W.2d 332, 336 (Tex.Cr.App. 1981) (citing United States v. Mock, 604 F.2d 341 (5th Cir. 1979). Ashe mandates only two inquires in criminal collateral estoppel:
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. Id. at 443, 90 S.Ct. at 1194; see Dedrick v. State, 623 S.W.2d 332, 336 (Tex.Crim.App. 1981). "Application of the rule depends upon whether some issue necessary for the prosecution's case in the second trial has necessarily been found for the defendant in the first trial."
From our reading of the case law, protections against "double jeopardy" afforded by the fifth amendment and Texas Constitution art. I, sec. 14, are identical, at least as to the doctrine of the collateral estoppel component. See, e.g., Dedrick v. State, 623 S.W.2d 332, 336 (Tex.Cr.App. 1981). The Fifth Circuit in United States v. Mock, 604 F.2d 341 (1979), in its review of Ashe v. Swenson, quoted the core of the Supreme Court's definition of collateral estoppel to mean:
Collateral estoppel, as embodied in the Fifth Amendment guarantee against double jeopardy, means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970); Dedrick v. State, 623 S.W.2d 332, 336 (Tex.Crim.App. 1981). The doctrine requires the reviewing court to examine the record of the prior proceeding to determine whether a rational jury could have based its general verdict upon an issue other than that which the defendant seeks to foreclose from consideration. If the former verdict must have been based on the issue in question, it cannot be relitigated.
Appellant contends the use against him in federal court of physical evidence and testimony, particularly Oakley's testimony, collaterally estopped the State from prosecuting him in a Texas court. In Dedrick v. State, 623 S.W.2d 332, 336 (Tex.Crim.App. 1981), the Court adopted the statement of applicable principles of collateral estoppel set forth in United States v. Mock, 604 F.2d 341, 343-44 (5th Cir. 1979): In principle, the law of collateral estoppel is clear; in application, it can be a slippery concept indeed.
(2) whether those "necessarily decided" facts constitute essential elements of the offense in the second trial.Neal v. Cain, 141 F.3d 207, 210 (5th Cir. 1998); see also Dedrick v. State, 623 S.W.2d 332, 336 (Tex.Crim.App. 1981) (quoting United States v. Mock, 604 F.2d 34l, 343 (5th Cir. 1979).
Collateral estoppel involves the preclusion of relitigating an issue of ultimate fact which has already been litigated. Dedrick v. State, 623 S.W.2d 332 (Tex.Cr.App. 1981). Because there is nothing in the record to indicate that the issue of probable cause to arrest appellee had been previously litigated (as there is nothing indicating that the justice court concluded that there was an absence of such probable cause), there was no collateral estoppel bar to litigating that issue in the instant cause.