Opinion
No. 05-05-01502-CR.
January 23, 2007. DO NOT PUBLISH Tex. R. App. P. 47 051502F.U05.
On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F02-00557-N.
Before Justices Morris, Whittington, and Richter.
OPINION
In this appeal, Burnice Wilson complains error occurred during his retrial on punishment. Following appellant's conviction, this Court reversed the trial court's judgment on punishment only and remanded the case for a new punishment hearing. Appellant now complains the trial court erred by admitting an enhancement offense into evidence and the jury failed to follow the court's charge. Concluding appellant's arguments are without merit, we affirm the trial court's judgment. A jury convicted appellant of robbery at his first trial. When he appealed the robbery conviction, this Court concluded the punishment evidence in the case was "insufficient to support the jury's finding appellant committed the [1987] offense after the [1980] offense became final." Wilson v. State, No. 05-02-01233-CR at 7 (Tex.App.-Dallas 2003, pet. ref'd). We further stated that the "jury's erroneous finding of true to the [1987] offense enhancement paragraph resulted in the jury's consideration of the wrong range of punishment." Id. at 7-8. At retrial on punishment, the State dropped the 1980 enhancement offense from the indictment and offered proof of the 1987 offense, felony-level possession of a controlled substance, for which he was convicted in Oklahoma. The indictment for the case alleged that appellant had been charged by indictment in the Oklahoma offense. At the punishment hearing, the defense put on evidence that appellant had actually been charged by information with the offense of possession of a controlled substance with intent to distribute. In his first issue, appellant complains the trial court erred by "admitting into evidence for punishment enhancement purposes a conviction this Court previously ruled was not supported by the evidence." Appellant argues the jury should not have been able to consider evidence of the 1987 Oklahoma drug possession conviction as an enhancement offense because this Court had previously held the evidence supporting the conviction was legally insufficient. He further contends the State was collaterally estopped from reusing the offense and the doctrine of law of the case prevented the State from reusing the offense at the second punishment hearing. We disagree. Initially, appellant relies on the case of Jones v. State, 711 S.W.2d 634 (Tex.Crim.App. 1986), to argue that because this Court had previously found the evidence insufficient on an element of the enhancement offense, that enhancement offense could no longer be used to enhance appellant's punishment. In Jones, the court of criminal appeals applied the principle of double jeopardy to bar reusing an enhancement offense at a retrial on punishment. See id. at 636. That court, however, has since overruled the holding in Jones. See Bell v. State, 994 S.W.2d 173, 175 (Tex.Crim.App. 1999). In Bell, the court adopted the Supreme Court's holding in Monge v. California, 524 U.S. 721 (1998), that it would not violate federal double jeopardy principles to allow the State a second chance to present its proof of a previous conviction. Bell, 994 S.W.2d at 175. Accordingly, appellant's argument relying on Jones is not well taken. Appellant further argues that, because this Court made a determination that the enhancement evidence was legally insufficient in the previous trial, the State was collaterally estopped from using the Oklahoma conviction in his punishment retrial. Under the doctrine of collateral estoppel, when an "issue of ultimate fact" has previously been determined by a "valid and final judgment," that issue may not again be litigated between the same parties in any future lawsuit. Ex parte Watkins, 73 S.W.3d 264, 268 (Tex.Crim.App. 2002). Before collateral estoppel may apply to bar relitigation of a discrete fact, "that fact must necessarily have been decided in favor of the defendant in the first trial." Id. (emphasis in original). It is the defendant's burden to show the record affirmatively demonstrates that the fact in question was previously determined. Lamb v. State, 186 S.W.3d 136, 142 (Tex.App.-Houston [1st Dist.] 2005, no pet.). To the extent collateral estoppel may apply to a conclusion of this Court, the discrete issue we decided in the previous case was that "the evidence was insufficient to support the jury's finding appellant committed the Oklahoma offense after the Missouri offense became final." Wilson, No. 05-02-01233-CR at 7. In the opinion, we implied that the appropriate range of punishment for the case would have been for the robbery offense enhanced by one previous enhancement offense. Our conclusion was limited to the specific issue of the finality of the 1980 conviction before the 1987 conviction. See id. at 8. There was no conclusion made by this Court that could collaterally estop the State from reusing the Oklahoma conviction as an enhancement offense. Finally, appellant argues that this Court is bound by its previous holding under the doctrine of the "law of the case." This doctrine provides that an appellate court's resolution of a question of law in a previous appeal of the same case will determine the disposition of the identical issue when it is raised in a later appeal. See Duncan v. State, 151 S.W.3d 564, 566 (Tex.App.-Fort Worth 2004, pet. ref'd). The law of the case doctrine is designed to promote judicial consistency and efficiency by eliminating the need for appellate courts to prepare opinions discussing previously resolved matters. Id. Here, the only relevant issue previously resolved by this Court was that the State failed to prove finality of the 1980 conviction before the 1987 Oklahoma conviction. This Court made no further conclusions about the sufficiency of the evidence proving appellant had committed the 1987 Oklahoma offense. Accordingly, the law of the case doctrine does not apply to appellant's retrial on punishment. For all the reasons discussed above, we resolve appellant's first issue against him. In his second issue, appellant complains "the jury committed error by failing to follow the law as contained in the court's charge." Specifically, appellant argues the jury could not have found the Oklahoma enhancement offense true because the jury charge instructed the jury to consider whether he had committed the offense for which he had been indicted, but proof at trial showed he had been charged with the felony offense by information. Appellant further argues that the charged offense, as noted in the jury instructions, was possession of a controlled substance, but proof of the offense admitted into evidence showed he had actually been convicted of possession of a controlled substance with intent to distribute. Appellant contends the variance between the proof at trial from the facts alleged in the jury charge shows the jury erred in finding the enhancement offense true. Evidence admitted at trial showed appellant had been charged by information with "feloniously" committing the offense of possession of cocaine with intent to distribute. He was convicted and sentenced to twenty years' confinement. Appellant admitted at trial he had pleaded guilty on June 10, 1987 to possession of a controlled substance with intent to distribute and had received a twenty-year sentence. To be fatal, a variance between the charge and the proof of a previous conviction used to enhance punishment must be both material and prejudicial to the defendant. Rodriguez v. State, 31 S.W.3d 772, 776 (Tex.App.-Austin 2000), aff'd, 104 S.W.3d 87 (Tex.Crim.App. 2003). Appellant has not alleged or shown how he was misled, surprised, or unable to determine what previous conviction the State sought to use in the retrial of his punishment hearing. See id. Thus, there is no fatal variance in his case. See Freda v. State, 704 S.W.2d 41, 43 (Tex.Crim.App. 1986); Hall v. State, 619 S.W.2d 156, 158 (Tex.Crim.App. 1980). We resolve appellant's second issue against him. We affirm the trial court's judgment.