Opinion
NO. 01-16-00484-CR
03-30-2017
DONEL HUNTSBERRY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court Harris County, Texas
Trial Court Case No. 1497774
MEMORANDUM OPINION
Appellant Donel Huntsberry pleaded guilty to the felony offense of felon in possession of a firearm and the trial court assessed his punishment at fifteen years' imprisonment. In his sole point of error with two subparts, appellant argues that the trial court erred by impermissibly considering his acquittal in a murder case arising out of the same transaction when assessing his punishment in violation of (1) his due process right to a fair trial, and (2) the constitutional protection against double jeopardy embodied in the collateral estoppel doctrine. We affirm the trial court's judgment.
Background
Appellant, a convicted felon, shot his uncle in the chest with a pistol during a domestic altercation. Appellant fled the scene and was arrested three days later. During a search of appellant's vehicle, police discovered a pistol containing one fired shell casing that matched the description of the weapon used in the shooting. The firearm was found inside a stuffed animal in the back seat of a vehicle that was linked to appellant by DNA and fingerprint evidence. Several months after appellant was charged with his uncle's murder, he was charged with the additional offense of felon in possession of a firearm.
A jury acquitted appellant of the murder charge. After the trial, appellant pleaded guilty to the felon in possession of a firearm charge before the same judge who had presided over the murder trial. A PSI report was prepared which reflects that appellant admitted to possessing the gun found during the murder investigation, and to being on parole for a previous felony conviction when he possessed the weapon. During the PSI hearing appellant stated, "I have reviewed the PSI and I have no objections." The PSI report was admitted into evidence as Defendant's Exhibit 1. No other testimony or evidence was admitted at the hearing.
Although defense counsel and the State referred to appellant's acquittal during the PSI hearing, the State told the trial court that it was not attempting to relitigate the issue of appellant's guilt or innocence with respect to the murder charge, and that it deferred to the jury's resolution of that issue. Specifically, the State told the trial court:
Your Honor, I want to make it clear. I'm not here trying to undermine the jury's verdict. They looked at the evidence in that case and they made the determination on their own. Though I may disagree with that assessment, I'm not here to argue with what the jury did.
Prior to assessing appellant's punishment in this case, the trial court judge listed some of the factors that informed his decision on punishment. Specifically, the trial court stated:
You know you have one, two, three aggravated robbery cases; one robbery case; one aggravated assault case; acquitted in a case that resulted in the death where—an altercation that resulted in the death of an individual. And you forfeited your right to have a weapon long ago, long ago. But that's something that you don't give much—well, you apparently don't care much about. So I'm going to sentence you to 15 years TDC. Good luck, sir.Appellant made no objection that the trial court had impermissibly considered his acquittal on the murder charge when assessing his punishment in this case.
Appellant's Constitutional Challenges
Appellant argues that the trial court's reference to the murder case demonstrates that it punished him for an alleged bad act that had not been proven beyond a reasonable doubt, and that the trial court's alleged reliance upon the murder acquittal violated his constitutional right to due process and a fair trial. Appellant further contends that the trial court violated his Fifth Amendment protection against double jeopardy embodied in the collateral estoppel doctrine by considering his acquittal on the murder charge as an aggravating factor in sentencing. U.S. CONST. amend. V; Ashe v. Swenson, 397 U.S. 436, 445-46, 90 S. Ct. 1189, 1195 (1970). The State argues that appellant has not preserved these complaints for our review.
Code of Criminal Procedure article 37.07 provides that a court may consider "evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible." TEX. CODE CRIM. PROC. ANN., art. 37.07, § 3(a)(1) (West 2007).
To preserve most issues for appellate review, a party must bring the issue to the trial court's attention by timely request, objection, or motion. See TEX. R. APP. P. 33.1(a). This rule also applies to many constitutional errors. See generally Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014) (failure to object at trial may waive even errors of constitutional magnitude).
A. Due Process and a Fair Trial
Although every defendant has a constitutionally protected due process right to a fair trial, a defendant waives such errors for appellate review if he fails to object on this ground. See id. at 844 (citations omitted); Clark v. State, 365 S.W.3d 333, 340 (Tex. Crim. App. 2012) (concluding that defendant's evidentiary objections did not preserve error relating to alleged violations of rights to due process and fair trial).
The record reflects that appellant did not object that the PSI report included information regarding the murder charge and his acquittal on that charge, or that the trial court's consideration of this information violated his rights to due process and a fair trial. We therefore conclude that appellant failed to preserve his due process and fair trial complaints for appellate review. See TEX. R. APP. P. 33.1(a); Clark, 365 S.W.3d at 340.
To the extent that appellant is attempting to challenge the trial court's consideration of his murder charge and his acquittal on the grounds that the State failed to prove the extraneous bad act beyond a reasonable doubt, we note that appellant did not raise this issue in the trial court. Because the record reflects that appellant did not object that the State had failed to prove the extraneous bad act of his murder charge and his resulting acquittal beyond a reasonable doubt, appellant has waived any challenge to the trial court's consideration of this information on an evidentiary basis. See Sanders v. State, 422 S.W.3d 809, 815-16 (Tex. App.—Fort Worth 2014, pet. ref'd) (holding defendant who did not object at trial waived complaint that State failed to prove extraneous offense beyond reasonable doubt); see also Reyes v. State, 361 S.W.3d 222, 230-31 (Tex. App.—Fort Worth 2012, pet. ref'd) (defendant must object to presentation of evidence in PSI report before its admission in order to perfect appellate consideration of alleged constitutional violations contained in report).
B. Double Jeopardy and Collateral Estoppel
Appellant also argues that the trial court violated his Fifth Amendment protection against double jeopardy embodied in the collateral estoppel doctrine by considering the homicide for which he was acquitted as an aggravating factor in sentencing. U.S. CONST. amend. V; Ashe, 397 U.S. at 445-46, 90 S. Ct. at 1195.
Collateral estoppel is a corollary of the Fifth Amendment prohibition against double jeopardy made applicable to the states through the Fourteenth Amendment. See Ex parte McNeil, 223 S.W.3d 26, 29 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (citing Ashe, 397 U.S. at 445, 90 S. Ct. at 1195). However, double jeopardy and collateral estoppel are not identical doctrines. Ex parte Watkins, 73 S.W.3d 264, 267 (Tex. Crim. App. 2002); Husain v. State, 161 S.W.3d 642, 647 (Tex. App.—San Antonio 2005, pet. ref'd). Double jeopardy bars retrial of a criminal offense, while collateral estoppel bars retrial of specific and discrete facts that have been fully and fairly adjudicated. Ex parte Watkins, 73 S.W.3d at 267; Husain, 161 S.W.3d at 647.
1. Double Jeopardy
Appellant did not object that the trial court's consideration of the murder charge and acquittal violated his protection against double jeopardy. Nevertheless, a defendant may raise a double jeopardy claim for the first time on appeal if: (1) the undisputed facts show the double-jeopardy violation is clearly apparent from the face of the record, and (2) enforcement of usual rules of procedural default serves no legitimate state interest. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000).
When evaluated in context, the trial judge's statement during the punishment hearing does not indicate that the court was considering appellant's murder charge and acquittal as such, or in isolation, when assessing his punishment. Rather, the list of appellant's prior encounters with the law recited by the court reflects that the court was considering appellant's prior conduct as a whole. The fact that a jury absolved appellant of criminal conduct in the death of his uncle does not change the conduct which caused that death. Appellant may not have been convicted of murder but he was unquestionably a felon in possession of a firearm, involved in a confrontation with another person which led to a death. Appellant's conduct during this confrontation can be considered by the court without giving rise to any double jeopardy considerations. Therefore, the undisputed facts in this case do not show a double-jeopardy violation that is clearly apparent from the face of the record. See Gonzalez, 8 S.W.3d at 643.
Furthermore, double jeopardy does not prevent a sentencing court from considering a jury's verdict of acquittal, so long as the evidence, presented in a subsequent proceeding, is governed by a lower standard of proof. See United States v. Watts, 519 U.S. 148, 156-57, 17 S. Ct. 633, 637-38 (1997). Consideration of acquitted conduct at sentencing is "consistent with the Double Jeopardy Clause" because it "does not result in 'punishment' for any offense other than the one of which the defendant is convicted." Id. at 154-55, 17 S. Ct. at 636.
Appellant acknowledges that "same transaction contextual extraneous offense evidence [in the current case] necessarily included information from the alleged murder." "[E]xtraneous-offense evidence may . . . be admissible as same-transaction contextual evidence . . . where several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction." Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005) (citing Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993)) (internal quotations omitted). Same transaction contextual extraneous evidence, however, can be admitted and used during the punishment phase without proof beyond a reasonable doubt. See Atkinson v. State, 404 S.W.3d 567, 573-74 (Tex. App.—Houston [1st Dist.] 2010, pet ref'd). Furthermore, extraneous misconduct that is presented in a PSI report, as in this case, does not have to be established beyond a reasonable doubt to be considered by the trial court during the punishment phase. Smith v. State, 227 S.W.3d 753, 763-64 (Tex. Crim. App. 2007) (stating that trial court may consider extraneous offenses in PSI report even if offenses not proven beyond reasonable doubt).
Even if the trial court considered such information when assessing appellant's punishment, the court's consideration of the circumstances giving rise to the homicide and appellant's subsequent acquittal on murder charges does not violate due process because neither same-transaction contextual evidence nor evidence of extraneous misconduct presented in a PSI report must be established beyond a reasonable doubt to be considered by the trial court during punishment. See Watts, 519 U.S. at 156-57, 17 S. Ct. at 637-38. Accordingly, we hold that appellant has not preserved his double jeopardy challenge for appellate review. See Gonzalez, 8 S.W.3d at 643.
2. Collateral Estoppel
Appellant did not object to the trial court's consideration of his acquittal on the murder charge on collateral estoppel grounds. Although we have not addressed whether a collateral estoppel challenge must be preserved for appellate review, two of our sister courts have held in published opinions that a collateral estoppel complaint cannot be raised for the first time on appeal. Gonzalez v. State, 301 S.W.3d 393, 400 (Tex. App.—El Paso 2009, pet. ref'd); Hughes v. State, 16 S.W.3d 429, 431 (Tex. App.—Waco 2000, no pet.).
Even if we were to hold that a collateral estoppel complaint could be raised for the first time on appeal, we still find no error in the present case. In order to determine whether collateral estoppel bars relitigation of certain facts, we 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." Ex parte Taylor, 101 S.W.3d 434, 440 (Tex. Crim. App. 2002) (internal quotations omitted). Appellant does not point to any facts that were "necessarily decided" in the first proceeding that constituted essential elements of the offense litigated in this case and were relitigated during the punishment hearing. Although both defense counsel and the State referred to appellant's prior murder charge and his acquittal on that charge during the PSI hearing, neither the trial court nor counsel attempted to relitigate appellant's guilt or innocence with respect to the charge or any facts that were "necessarily decided" in the first proceeding. Aside from the PSI report which provided some context with regard to the homicide and ensuing investigation that uncovered the firearm in appellant's possession, no evidence or testimony was admitted during the hearing. See e.g., McGee v. State, 197 S.W.3d 802, 805 (Tex. App.—Houston [1st Dist.] 2006), aff'd, 233 S.W.3d 315 (Tex. Crim. App. 2007) (stating that in case in which there "is an acquittal on one of the charges and conviction on another the State cannot relitigate the acquittal at the punishment phase hearing by introducing testimony that is relevant only to the charge on which the defendant was acquitted.").
Furthermore, collateral estoppel does not bar relitigation of an issue resolved by a prior acquittal when the issue in the subsequent proceeding is governed by a lower standard of proof. Dowling v. United States, 493 U.S. 342, 348-49, 110 S. Ct. 668, 672 (1990). As previously discussed, neither same transaction contextual evidence nor evidence of extraneous misconduct presented in a PSI report must be established beyond a reasonable doubt to be considered by the trial court during punishment. The trial court's reference to the homicide and appellant's acquittal on murder charges does not violate collateral estoppel. See id.
We overrule appellant's sole issue.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Chief Justice Radack and Justices Brown and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).