Guadalupe De Leon Acuña, Appellant, v. The State of Texas, Appellee.

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Court of Appeals of Texas, Corpus Christi-Edinburg.

Guadalupe De Leon Acuña, Appellant, v. The State of Texas, Appellee.

NUMBER 13–13–00633–CR

Decided: February 25, 2016

Before Justices Garza, Perkes and Longoria

MEMORANDUM OPINION

In 2011, appellant Guadalupe De Leon Acuña was tried for the murder of Jose Guadalupe Fiscal and was acquitted by a jury.  Two years later, Acuña was tried for conspiring to commit the same murder.  She was convicted of the conspiracy offense, a second-degree felony, and was sentenced to twenty years' imprisonment.  See Tex. Penal Code Ann. §§ 15.02(a), 19.02(b)(1) (West, Westlaw through 2015 R.S.). On appeal, Acuña contends by three issues that her conspiracy conviction was precluded on grounds of double jeopardy and collateral estoppel.  Because we agree, we reverse and render judgment of acquittal.

I. Background

A. 2011 Murder Trial

Acuña was charged by indictment with murder on July 27, 2010, and a jury trial was held between April 12 and 19, 2011.  Immediately prior to trial, the trial court heard evidence on a motion to suppress custodial written statements Acuña made to police.  At the hearing, Investigator Fernando Tanguma testified that he spoke to Acuña in relation to a murder investigation on July 6, 2010 at the sheriff's office.  He stated that he advised Acuña of her Miranda rights and that she initialed a form detailing those rights.  See Miranda v. Arizona, 384 U.S. 436 (1966).  He stated that Acuña provided a written statement and did not at any time ask for an attorney or to terminate the interview.  He denied promising anything to Acuña, threatening her, or in any way coercing her to make her statement.

In her written statement, Acuña related that Jose Fiscal (also known as “Joe”) was her boyfriend and that they had been together for about two years.  Jose had been separated from his wife for about three years, and he had “many problems” with his estranged wife.

According to Acuña's statement, she accompanied Jose in his red Dodge truck to Donna Lakes in Donna, Texas, on July 3, 2010.  She and Jose “sat down on the rocks near the lake” when she received a text message.  She could not remember whether the message was from her son Antonio “Tony” De Leon or her brother-in-law Juan Salazar.  Acuña stated that she texted back that she was “at the beach/lake.”  She stated that “Juan and Tony know the place I was talking about.”  Several minutes later, Acuña noticed her beige Ford Expedition driving up, with Tony and Juan inside.  Both of the men got out of the truck and Juan started striking Jose with a wooden stick.  Acuña related that Tony handed a knife to Juan, and Juan began stabbing Jose. Juan passed the knife to Tony and Tony continued to stab Jose. Acuña “stepped back and could not believe what was happening.” Juan yelled at Acuña to get inside her vehicle;  as she did so, she heard Juan tell Tony to get a lighter.  As she drove away from the scene with Juan and Tony, she “noticed flames were coming out of [Jose]'s truck.”  On Juan's instructions, Acuña called her daughter Alejandra and asked Alejandra to have her boyfriend Ezequiel Gamez wait for them at Acuña's house.  When they arrived at the house, Juan told Gamez “to wet the truck with water.”  According to her statement, Acuña “was trying very hard to keep calm because [she] could not believe what had just happened.”  Acuña stated:  “I do not know why my son Antonio and Juan did what they did to [Jose].”

Investigator Leonor Garcia testified that she was present for the initial part of the interview, and then returned later after Acuña had given her statement to Tanguma. Garcia stated that Acuña then expressed interest in making another statement to “be completely truthful.”  Garcia advised Acuña of her Miranda rights, as Tanguma did earlier, and Acuña initialed a form containing those rights.  Acuña gave two additional statements. The first one stated in part as follows:

I want to say today I provided a statement to Investigator Fernando Tanguma and I did not say the whole truth about what I know of Jose Guadalupe Fiscal's death.  I failed to mention on Friday, July 2, 2010 I was at my house laying on the couch crying over waiting for Jose who was suppose[d] to show up at 10:00 P.M. and he never did.  Juan Salazar who occasionally visits saw me crying.  Juan asked me what was wrong.  I told Juan I was waiting for Jose and as always he was lying to me.  I told Juan that I was t[ir]ed of waiting for Joe who would never arrive and I was going to leave him․

The following morning Saturday, July 3rd, 2010 at about 7:00 a.m. I looked at my phone and on the other couch Juan was asleep.  Juan woke up when he heard me calling Jose. Juan asked me if I had slept at all during the night.  I told him I was waiting for Jose and started crying for Jose. Juan told me he would help me.  I asked him as far as what he meant.  Juan told me in Spanish “si quieres te lo tumbo” which in English to me means “knock him out and giving him an ass whooping.”  I asked him what he meant by that comment.  Juan told me not to worry and I asked him if it meant he was going to be 6 feet down.  Juan again told me not to worry and that I asked too many questions.  Juan told me if I wanted it done he would take care of it.  I told Juan ok and asked him what he meant by taking care of him.  Juan again told me that I asked too many question [s].  Juan told me he was going to take care of it and Tony was not going to get his hands dirty.  I told Juan I did not want anyone to get in trouble.  Juan told me “ma before you even knew me I have done this work before.”  I asked him if what he meant by his comment was killing someone or beating the shit [out] of someone.  Juan told me not to worry about it․

Jose mentioned he was going to go to a wedding with his daughters.  I asked him “what about me.”  He told me he wanted to go alone with his girls because he did not want any drama with his ex wife Alma. I told him there you go again blocking me out and hung up on him.  I was hurt over what he had told me.  I started crying again and Juan asked me “now what.”  I told him I was tired and that mine and Jose plans would not work out when she was around.  I told Juan I did not want Jose to go to the wedding.  Juan told me he would take care of it.  I asked what he meant and he told me not to worry about it.  Jose arrived for me at about 11:00 A.M. and we went to the bank and the drive thru and then to a convenience store․  On our way home I told Jose ․ I wanted to go to Donna Lakes because Juan had already told me earlier to take him there so he could meet up with him.  When we got to Donna Lakes I got off the truck and sat on the rocks.  Jose was standing next to me.  I felt my cell phone vibrate and read a text message from Juan asking where I was at.  I texted him back saying I was at the beach.  This meant that we were already at Donna Lakes․

Juan and Tony my son arrived in my beige colored Expedition.  They both got off and I asked them what's up.  I already knew Juan was going to beat up Jose. I did not know my son was going to be involved in beating up Jose.  I heard Juan tell my son “dale Tony” which in English means “go for it.”  They both stabbed Jose several times and that's when I knew they were going to kill him.  I turned around not to see what they were doing.  I could hear Juan telling my son to do it.  I turned to look at my son and noticed he was stabbing Jose.  My son looked at me and was in shock as I was.  Jose fell to the ground and Juan told me he had finished him off.  I saw my son give something to Juan I think it was a knife.  I heard Juan tell Tony pour him the stuff.  I think it was kerosene.  I was already sitting in the driver's seat of the Expedition and Juan and Tony get in.  I heard Juan say “he had lighted him up.”  When I put the Expedition in reverse I saw fire coming out of Jose['s] truck.  When I was driving Juan told me “Go Guadalupe Go, don't look back.”  I drove all the way home ․ and I was in shock over what had happened.  I told Juan you were not supposed to do that.  Juan replied “that's how you do it.”  When we arrived at my house Juan and Tony took a shower.  Tony used my shower and Juan used the other one.  I asked Juan where the knife they had used was and he told me he had gotten rid of it.  He did not tell me where.

The second written statement that Acuña gave to Garcia read in its entirety as follows:

I want to add to my statement that I lied about not knowing that Juan and Tony were going to kill Jose when they arrived at Donna Lakes.  I knew they were going to do it because I had asked them to kill him.  I was under the impression it was going to take a few days but I was wrong.  About 1 month ago I had paid Aucencio Rivera $100.00 so he could kill Jose. I met with Aucencio at Donna Lakes where I gave him the cash.  He did not kill Jose because I did not arrive on time at my house.  I prolonged it so Jose would not be killed. [ 1  ] On Saturday, July 3rd, 2010 I knew Jose was going to be killed.  I regret asking anyone to kill Jose I loved him.

Acuña testified at the suppression hearing that she came to the sheriff's office after she saw “a lot of deputy cars” outside her home and police served her with a search warrant.  Tanguma asked if she would make a statement and she agreed.  She stated that Tanguma did not read her Miranda rights until after she signed the statement.  She stated that she asked Tanguma at some point whether she was free to leave, and Tanguma said:  “I'll have somebody take you home but you're not going to walk out that front door.  By that time I'll have a warrant for your arrest.”  She stated that Tanguma and Garcia were both present when she gave her second statement.  According to Acuña, Garcia told her “you need to tell me the f* * *king truth because I will get you with another charge [for lying].”  Acuña testified:

[Garcia] kept on insisting, insisting, and she kept yelling at me.  I felt pressured.  I just started talking, not knowing what I was saying.  And when she said I didn't have any emotions, I was crying.  I could not read the statements.  And I asked her to read it to me and she just glanced at me and told me to sign.  That was my mistake by signing and not reading them.

Acuña denied the truth of her third written statement, explaining:  “I wasn't thinking.  I was already under a lot of pressure between three investigators.”  She also denied telling investigators that she had seen her son Tony stab Jose. The trial court denied Acuña's motion to suppress the statements.

At trial, Tanguma and Garcia reprised their suppression hearing testimony, and Acuña's written statements were read for the jury and entered into evidence.  When asked by the prosecutor why Acuña was charged with murder, Garcia replied:  “Because she asked and planned it.”

Catalina De Leon, Acuña's sister, testified that Juan was her husband but that they were separated.  At the time of the murder, Juan was living with Acuña “off and on,” and Jose would stay with Acuña sometimes.  On July 5, 2010, Catalina went to the house she shared with her mother and noticed that the side of the house was discolored, “like if they had thrown some sort of like a chemical on it.”  She observed Juan and Tony cleaning the inside of Acuña's Ford Expedition with a vacuum cleaner and a spray bottle that smelled of bleach.  Juan, Tony, and Acuña stayed in Catalina's room that night;  Catalina stated that “[t]hey couldn't sleep.”  When police executed a search warrant at Acuña's house, Acuña asked Catalina whether “they were going to take her” and if Catalinathought “she was going to do time.”  Catalina responded “[t]hat she wasn't.”  She conceded that she did not know of her sister's involvement in the murder at that time.

Rosalinda Fiscal, Jose's sister-in-law, testified that Acuña called her the day before the murder, sounding upset and asking whether Jose was going to get back together with his wife.

Renee Mejia, Tony's wife, stated that she lived with Tony, his sisters, Juan Salazar, and Acuña in Acuña's house.  On the day of the murder, Juan came into Tony's room and told Tony to leave with him.  Juan, Tony, and Acuña left in Acuña's Ford Expedition, and when they returned about an hour later they were “panicking” and ran towards the back of the house.  Mejia noticed that Tony had a new cut on his hand, and she sensed a “strong odor, like burning.”  Juan and Acuña said “[t]o close the door, not to open.”  Tony told Mejia “he had to speak—that Juan had done something but that he needed to speak to somebody higher than me․  I guess like a cop or somebody.”  Later, after Acuña returned from being interviewed at the sheriff's department, Acuña instructed Mejia:  “If anybody asked us anything to say that we were all together.”

Alma Fiscal, Jose's wife, testified that she had four children with Jose but separated from him in 2008 and moved to Louisiana with the children.  Jose began seeing Acuña in 2009.  Alma stated she would come back to the Rio Grande Valley frequently so that Jose could spend time with the children.  In 2010, she and Jose began talking about getting back together.  Because of his job, Jose could not move to Louisiana, so Alma made plans to return to Texas.  Alma arrived at Jose's house on July 1, 2010, and saw Acuña's truck in his driveway.  Alma testified that she told Jose she “wanted [Acuña] out.”  Alma stayed in Jose's house that night, and she noticed that Jose's phone was ringing frequently throughout the night.

Jose Fiscal Jr., the son of the decedent, testified that his father and his mother were going to get back together, but that “he needed time to get away from [Acuña].”  According to Jose Jr., Acuña was “[r]eally angry” when Jose told her to leave his house on July 1, 2010.

Investigator Jonathan Palacios obtained cell phone records for Acuña, Jose, Juan and Tony. The records revealed several text messages between Acuña and the three men around the time of the murder;  transcripts of the messages were entered into evidence.  According to the records, Acuña sent approximately 118 text messages to Jose between 12:01 a.m. on July 1 and 4:13 p.m. on July 3. In the messages, Acuña expresses anger at Jose for not coming to her house when he said he would, and for spending time instead with his wife.  Acuña repeatedly accused Jose of lying.  She texted:  “You messed up big time.”  Acuña disparaged Jose's wife and eventually told Jose that she wanted the relationship to end.

Text messages 2 between Acuña and her son Tony included the following, which were sent between 11:25 a.m. on July 1 and 4:04 p.m. on July 2:

[Tony:] Hey

[Acuña:] Before you come home pass by joes house call me as you there want to knw hows there

[Acuña:] I feel so hurt and disrespected by him he said he wz comming over and nothing yet I kno his gnna stay der

[Tony:] Imma take care of it

[Acuña:] Dont know wut to do its like ii want him 6Ft under wwhy doees this happen to me this happen to me

[Tony:] Thiers no car

[Acuña:] I Love You ․ Srry for you cing me like this

[Tony:] Its ok ma

[Acuña:] No pa im not just want out just want to die of so much pain cnt handle it

[Tony:] Don think dat way

[Acuña:] Amor ya no puedo con esto u knw I dnt say much but I have it bad.. Want him dwn soso bad․

[Tony:] I knw ma I knw as soon as I get it it will be done

[Acuña:] Hw is dat goin

[Tony:] Still waitin

[Acuña:] K

Text messages between Acuña and Juan included the following, sent between 10:14 a.m and 12:14 p.m. on July 3:

[Acuña:] Hey

[Acuña:] Come

[Acuña:] Call yr buddy

[Acuña:] Cz he might prolong it

[Juan:] Try it! to take him over there

[Acuña:] On my way to the beach

[Juan:] Were on our way too!

Palacios testified that Juan and Tony were arrested at some point, and that Gamez was arrested for tampering with evidence by washing Acuna's Ford Expedition.3  According to Palacios, police found a small knife at Acuna's mother's residence, and Acuna's mother stated that Acuña had given her the knife to hide in a small green container.

An autopsy of Jose showed that he had been stabbed approximately 45 times and his body was 68 percent burned.  The cause of death was determined to be multiple stab wounds to the torso and blunt force head trauma.  Police searched Acuña's residence and recovered some knives, clothing, and a shower caddy which field-tested positive for blood.  Police divers recovered an empty gallon gas can from a canal near the crime scene.  Inside Acuña's Ford Expedition, police found a newspaper open to a page containing an article about Jose's murder.

Acuña testified in her own defense.  She denied that she killed anyone, caused anyone to be killed, or asked anyone to kill anyone for her.  She stated that she saw Jose being killed.  When asked why she “didn't ․ stop them,” she replied:  “I tried.”  She stated that she loved Jose “[v]ery much” and she denied that Jose had been making plans to reunite with Alma. She stated that Alma would frequently call Jose, and “[i]f he wouldn't answer, she would start calling my phone and harassing me and sending me text messages.”  According to Acuña, Alma was “a little bit controlling over [Jose] due to child support money, that's all she wanted.”  Acuña stated:  “It got to the point that [Jose], you know, he wanted—he kept on telling me he wanted me to be with him, to give him some time.”  She stated that Jose had lied to her in the past and, on July 1, 2010, she became suspicious again that Jose was lying to her.

Acuña testified that, on July 3, 2010, she went with Jose to Donna Lakes.  She testified:

We were about to leave already, Jose and myself.  I see my truck pull up.  I'm already by the door to get on the truck so we can leave.  Juan gets off the driver side and I see my son get off the passenger side.  I asked him what's up.  He didn't say a word.  He just came and I saw him hit Jose with a stick over the head, which I moved back, and I was asking what was going on.  Then I saw my son punch him, and I asked him to stop.  And when I asked him to stop, Juan yelled at me to get in my truck and to shut up.  I didn't see what happened, just when he—blow to the head.

She stated that she followed Juan's instructions because she was scared.  She yelled “[t]hree times” for the men to stop but they did not listen.  Later, she saw smoke coming from the truck.  According to Acuña, “[t]he only thing Juan told me afterwards, he grabbed me and told me to keep my mouth shut, to keep in mind I had three kids.  If I want to keep them to keep my mouth shut.”  She denied telling anyone to wash her car.  She also denied that she paid Aucencio Rivera $100 to kill Jose;  instead, she claimed that Rivera “borrowed the money and he paid it back that same day.”

Acuña testified with respect to her first written custodial statement that “[Tanguma] gave it to me to sign.  I did not read it.  I was nervous.  I wasn't thinking.  I signed it.” When asked by defense counsel why the jury should believe that she was not “part of the plan” to kill Jose, Acuña replied:  “I would never want to hurt anybody.  I have my children, and I suffered a lot.  And my children, I'm the only person they have in their life.”

At closing argument, the prosecutor observed that one can commit murder either by “do[ing] it yourself ․ or you can have someone else do it.”  He acknowledged that there was “no evidence [Acuña] stabbed the victim.”  Instead, “[w]hat we have is a law of parties in this case․  These three individuals acting together.”

The jury was instructed on the law of parties.  See Tex. Penal Code Ann. § 7.02 (West, Westlaw through 2015 R.S.).  The application paragraph of the jury charge instructed the jury to find Acuña guilty only if it found beyond a reasonable doubt that:  (1) Juan and Tony intentionally caused Jose's death by stabbing him with a knife;  and (2) Acuña, with intent to promote or assist the commission of the offense, encouraged, directed, aided, or attempted to aid Juan and Tony in murdering Jose by (a) asking Jose “to drive to the crime scene,” (b) texting Juan “to give notice that she and [Jose] were on their way to the crime scene,” (c) texting Tony that “she wanted [Jose] six feet under,” (d) texting Tony that “she wanted [Jose] down so so bad,” or (e) asking Juan or Tony to kill Jose. See id.  The jury was also instructed not to consider Acuña's custodial statements for any purpose unless it believed beyond a reasonable doubt that the statements were made freely and voluntarily.

The jury returned a verdict of not guilty.

B. 2013 Conspiracy Trial

Acuña was indicted for conspiring to murder Jose on September 13, 2011, less than five months following her acquittal on the murder charge.

On March 29, 2012, Acuña filed a special plea of double jeopardy, contending that she “has already been prosecuted for a different offense arising out of the same criminal episode that was or should have been consolidated into one trial” and was acquitted of that offense.  See Tex.Code Crim. Proc. Ann. art. 27.05 (West, Westlaw through 2015 R.S.) (“A defendant's only special plea is that he has already been prosecuted for the same or a different offense arising out of the same criminal episode that was or should have been consolidated into one trial, and that the former prosecution:  (1) resulted in acquittal․”).

At a pre-trial hearing on April 2, 2012, defense counsel asked the trial court to take judicial notice of the prior acquittal and of the jury charge in the prior case, arguing in part that the jury in the conspiracy case should be instructed that a prior jury had already found certain elements in Acuña's favor.  In particular, while acknowledging that the offenses of conspiracy and murder have different elements, counsel argued that the jury in the prior case, by declining to find Acuña guilty under the law of parties, had already determined the issue of whether Acuña conspired with Tony and Juan to murder Jose. The trial court took judicial notice of the prior verdict but denied the request to instruct the jury as to the prior jury's findings.  The court then heard Acuña's motion to suppress her custodial statements.  Investigators Tanguma and Garcia gave largely the same testimony as they did in the earlier trial, and the trial court denied the motion.

At trial, which began on September 24, 2013, witnesses gave substantially the same testimony as they did in the 2011 trial.  Again, the State's principal pieces of evidence were Acuña's custodial statements and her text messages.  And again, the jury charge instructed the jury not to consider the custodial statements unless it believed beyond a reasonable doubt that they were made freely and voluntarily.  The jury was instructed to find Acuña guilty only if it found beyond a reasonable doubt that:  (1) Acuña, intending that murder be committed, agreed with Juan and Tony that one of them would engage in conduct that would constitute murder;  and (2) Acuña performed an overt act in pursuance of the agreement by (a) “luring [Jose] to the location where he was killed,” (b) “notifying [Juan] that [Acuña] and [Jose] were traveling to the location where [Jose] was killed,” (c) “directing or telling [Juan] to kill [Jose],” or (d) “directing or telling [Tony] to kill [Jose].” The jury found Acuña guilty and assessed punishment at twenty years' imprisonment and a $10,000 fine.  This appeal followed.

II. Discussion

By her first issue, Acuña argues that her acquittal in the 2011 murder case bars a subsequent trial for conspiring to commit the same murder.  By her second issue, she contends that the trial court erred in denying her request to dismiss the conspiracy case on double jeopardy grounds.  By her third issue, she contends that the doctrine of collateral estoppel bars the re-introduction of evidence previously admitted against her in the 2011 murder case.  As Acuña does in her brief, we will address the issues together.

A. Standard of Review and Applicable Law

The Double Jeopardy Clause, contained within the Fifth Amendment to the United States Constitution and applicable to the states through the Fourteenth Amendment, protects an accused against a second prosecution for the same offense for which he has been previously acquitted or previously convicted.  U.S. Const. amend.  V (“No person shall ․ be subject for the same offence to be twice put in jeopardy of life or limb ․”);  id. amend.  XIV;  Littrell v. State, 271 S.W.3d 273, 275 (Tex.Crim.App.2008) (citing Brown v. Ohio, 432 U.S. 161, 164 (1977)).  Two offenses are not considered the “same” if “each provision requires proof of a fact which the other does not.”  Littrell, 271 S.W.3d at 276 (citing Blockburger v. United States, 284 U.S. 299, 304 (1932) (“The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”)).  Flowever, we “focus on the elements alleged in the charging instrument—not on the offense as defined in the Penal Code.” Garfias v. State, 424 S.W.3d 54, 58 (Tex.Crim.App.2014);  Ex parte Denton, 399 S.W.3d 540, 546 (Tex.Crim.App.2013).  “Under this so-called cognate-pleadings approach, double-jeopardy challenges can be made even against offenses that have different statutory elements, if the same facts required to convict are alleged in the indictment.”  Garfias, 424 S.W.3d at 58–59.

The doctrine of collateral estoppel provides “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 relating to the same event or situation.”  Murphy v. State, 239 S.W.3d 791, 794 (Tex.Crim.App.2007) (citing Ashe v. Swenson, 397 U.S. 436, 445 (1970)).  The doctrine is embodied within the Double Jeopardy Clause.  Id. (citing Ashe, 397 U.S. at 445).  To decide whether collateral estoppel bars a subsequent prosecution, a court 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.  Id. at 795.  “In each case, courts must review the entire trial record to determine—'with realism and rationality'—precisely what fact or combination of facts the jury necessarily decided and which will then bar their relitigation in a second criminal trial.”  Ex parte Taylor, 101 S.W.3d 434, 441 (Tex.Crim.App.2002) (quoting Ashe, 397 U.S. at 444).  The defendant must meet the burden of proving that the facts in issue were necessarily decided in the prior proceeding.  Murphy, 239 S.W.3d at 795;  see Guajardo v. State, 109 S.W.3d 456, 460 (Tex.Crim.App.2003) (“The burden is ‘on the defendant to demonstrate, by examination of the record of the first proceeding, that the [factual] issue he seeks to foreclose was actually decided in the first proceeding.’ ” (quoting Schlro v. Farley, 510 U.S. 222, 232 (1994)).

A decision to apply or not to apply collateral estoppel is a question of law applied to facts, for which de novo review is appropriate.  State v. Stevens, 235 S.W.3d 736, 740 (Tex.Crim.App.2007);  Ex parte Bolivar, 386 S.W.3d 338, 344 (Tex.App.—Corpus Christi 2012, no pet.).

B. Analysis

We begin by observing that the Double Jeopardy Clause does not generally prohibit the State from prosecuting an individual for both an offense and conspiracy to commit that same offense.  See United States v. Felix, 503 U.S. 378, 391 (1992) (noting that a conspiracy to commit a crime is a separate offense from the crime itself).  And here, the two crimes with which Acuña was charged—murder and conspiracy to commit murder—each contain elements that the other does not.  See Blockburger, 284 U.S. at 304;  Littrell, 271 S.W.3d at 276.  In particular, the indictment in the murder case alleged that Acuña intentionally or knowingly caused Jose's death by stabbing him with a knife;  and the indictment in the conspiracy case alleged, among other things, that Acuña agreed with Juan and Tony that one of them would engage in conduct that would constitute murder.  Those elements are unique to the particular crimes charged.  See Tex. Penal Code Ann. § 19.02(b) (“A person commits an offense if he ․ intentionally or knowingly causes the death of an individual ․”);  id. § 15.02(a) (“A person commits criminal conspiracy if, with intent that a felony be committed:  (1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense;  and (2) he or one or more of them performs an overt act in pursuance of the agreement.”).  Therefore, the crimes are not the “same” under the Blockburger test.  See Blockburger, 284 U.S. at 304;  Littrell, 271 S.W.3d at 276.

Nevertheless, our inquiry does not stop there.  Collateral estoppel may apply, notwithstanding the fact that the crimes are not the “same” for double jeopardy purposes, if facts that were “necessarily decided” in the first trial constitute essential elements of the offense in the second trial.  See Murphy, 239 S.W.3d at 795.  In Ashe v. Swenson, the United States Supreme Court held:

[T]he 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.”  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.

Ashe,397 U.S. at 444 (footnotes omitted) (quoting Sealfon v. United States, 332 U.S. 575, 579 (1948)).  In that case, the petitioner Ashe and three alleged accomplices were accused of robbing six men who were engaged in a poker game.  Id. at 437.  Ashe was tried and acquitted of robbing one of the poker players.  Id. at 438.  There was no dispute that the robbery occurred, but the “evidence that [Ashe] had been one of the robbers was weak.” Id. Six weeks later, Ashe was tried again, this time for the robbery of another participant in the poker game.  Id. at 439.  In the second trial, the “witnesses were for the most part the same, though this time their testimony was substantially stronger on the issue of the [Ashe]'s identity.”  Id. at 439–40.  “The case went to the jury on instructions virtually identical to those given at the first trial,” and Ashe was convicted.  Id. at 440.

The Ashe Court found that the jury in the first case could not have rationally concluded that an armed robbery did not occur, and there was no dispute as to the identity of the victims;  therefore, “[t]he single rationally conceivable issue in dispute before the jury was whether [Ashe] had been one of the robbers.”  Id. at 445.  Because the jury's verdict in the first case necessarily indicated that Ashe was not one of the robbers, a second prosecution for the robbery was “wholly impermissible,” even though the elements of the two crimes were nominally different.  Id.

We believe the instant case is analogous to Ashe. Following Acuña's 2011 murder trial, the jury could not have rationally concluded that Juan and Tony did not intentionally cause Jose's death—that issue was undisputed and supported by uncontroverted evidence.  Therefore, the “single rationally conceivable issue in dispute before the jury” was whether Acuña, with intent to promote or assist the murder, encouraged, directed, aided, or attempted to aid Juan and Tony by engaging in any one or more of five specified acts.4  See id.;  Tex. Penal Code Ann. § 7.02(a)(2) (“A person is criminally responsible for an offense committed by the conduct of another if ․ acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense․”).  By returning a verdict of not guilty, the 2011 jury necessarily found as a matter of fact that Acuña did not, with the requisite intent, encourage, direct, aid, or attempt to aid Juan and Tony by engaging in any of those five specified acts.  The question, then, is whether this “necessarily decided” fact constituted an essential element of the crime charged in the 2013 case.  See Murphy, 239 S.W.3d at 795.

The indictment preceding the 2013 trial contained four paragraphs, each alleging that:  (1) Acuña, with intent that murder be committed, agreed with Juan and Tony that one of them would engage in conduct constituting murder;  and (2) Acuña performed an overt act in pursuance of that agreement.  See Tex. Penal Code Ann. § 15.02(a).  The four paragraphs differed only in that they contained different alleged “overt acts.”5  Crucially, each of the overt acts alleged in the indictment is identical to one of the five specific acts of encouragement alleged in the 2011 jury charge.  The first overt act alleged in the conspiracy indictment was that Acuña “lur[ed Jose] to the location where he was killed”;  this is equivalent to the allegation in the murder case that Acuña asked Jose “to drive to the crime scene” because there was no evidence in either trial that Acuña “lured” Jose in any manner other than by asking him to drive to Donna Lakes—which is indisputably the location where Jose was killed.  The second overt act alleged in the conspiracy indictment was that Acuña “notified Juan] that [she] and [Jose] were traveling to the location where [Jose] was killed”;  this is equivalent to the allegation in the murder case that Acuña texted Juan “to give notice that she and [Jose] were on their way to the crime scene” because there was no evidence in either trial that Acuña “notified” Juan of her and Jose's whereabouts in any manner other than by texting Juan. The third and fourth overt acts alleged in the conspiracy indictment were that Acuña “direct[ed] or t[old]” Juan or Tony to kill Jose;  this is equivalent to the allegation in the murder case that Acuña asked Juan or Tony to kill Jose.

As shown by its verdict of not guilty, the 2011 jury necessarily rejected the allegations that Acuña, “with intent to promote or assist” the murder, “encouraged, directed, aided or attempted to aid” Juan and Tony by committing any of the aforementioned acts.  On the other hand, the question presented in the 2013 case was whether Acuña “performed an overt act in pursuance of the agreement” to murder Jose by committing any one of the aforementioned acts.  Though these questions differ slightly in terms of their precise wording, we do not perceive any significant difference in the meaning of the words.  “Promote” is defined in part as “to help bring (as an enterprise) into being,” Merriam–Webster's Collegiate Dictionary 933 (10th ed.);  “assist” as “to give support or aid,” id. at 70;  “encourage” as “to give help or patronage to,” id. at 381;  “direct” as “to carry out the organizing, energizing, and supervising of,” id. at 328;  and “aid” as “to give assistance,” id. at 24.  “Pursuance” means “the act of pursuing,” especially “a carrying out or into effect.”  Id. at 950.  In this case, there is no perceptible difference between, on the one hand, performing an act “with intent to promote or assist” Jose's murder, and on the other hand, performing the same act “in pursuance of” an agreement to commit the same murder.  There was no evidence adduced in either trial that would support a finding that Acuña did any of the specified acts “in pursuance of” an agreement to murder Jose but without the “intent to promote or assist” that murder.  That is to say, the 2011 jury already necessarily decided the issue of whether Acuña performed one of the specified acts “in pursuance of” an agreement to murder Jose—an essential element of the conspiracy offense.  See T ex.  Penal Code Ann. § 15.02.

In response, the State points to United States v. Watts, in which the United States Supreme Court pointed out that, when a jury returns a general verdict of not guilty, “the jury cannot be said to have ‘necessarily rejected’ any facts” because “it is impossible to know exactly why a jury found a defendant not guilty on a certain charge.”  519 U.S. 148, 155 (1997) (per curiam).  Watts, however, involved situations where the State sought to introduce evidence in a subsequent proceeding in which a lower standard of proof was required.  Specifically, the Watts Court addressed whether sentencing courts could consider conduct of the defendants for which the defendants had been acquitted in separate proceedings.  See id. at 149.  In ruling that the sentencing courts could consider such conduct, the Court noted that the defendants' previous acquittal “sheds no light on whether a preponderance of the evidence” established the facts alleged in the earlier case.  Id. at 157.  That is, “an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof.”  Id. at 156 (citing Dowling v. United States, 493 U.S. 342, 349 (1990));  see United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361 (1984) (concluding that “neither collateral estoppel nor double jeopardy bars a civil, remedial forfeiture proceeding initiated following an acquittal on related criminal charges”).  The instant case is distinguishable from Watts because both the 2011 and 2013 proceedings were full trials on the merits, at which the State had the same burden to establish Acuna's guilt beyond a reasonable doubt.  To the extent the State contends that Watts categorically prohibits any court from deducing any “necessarily decided” facts from a jury's general not-guilty verdict, the Texas Court of Criminal Appeals disagrees.  See State v. Sauceda, 980 S.W.2d 642, 647, 647 n.2 (Tex.Crim.App.1998) (rejecting the suggestion that the Watts Court, by stating that “it is impossible to know exactly why a jury found a defendant not guilty on a certain charge,” intended to overrule Ashe, which calls upon courts to “review the entire record and determine whether the jury could rationally have based its verdict upon an issue other than that which the [appellant] seeks to foreclose from consideration”);  see also Ex parte Taylor, 101 S.W.3d 434, 440 n.17 (Tex.Crim.App.2002) (same).

The State further argues that Acuña has not met her burden because “the defense's approach at [the 2011] trial had involved attacking every aspect of the State's case,” thereby “preclud[ing] drawing any conclusions concerning any particular findings upon which the jury based its verdict.”  The State emphasizes that a major issue in both trials was the voluntariness of Acuña's custodial statements,6 and it claims that this “provides another possible basis for the [2011] jury's general verdict besides the issue of how [Acuña] had acted as a party to commission of the murder she relies on in support of her collateral estoppel claim.  It is true that we cannot, merely from the 2011 jury's general verdict of not guilty and an examination of the record, discern precisely which defensive arguments were accepted and which, if any, were rejected—in particular, there is no way to tell whether the 2011 jury found that Acuña's custodial statements were made freely and voluntarily.  But we can, for the reasons set forth above, determine from the verdict and the record that the 2011 jury must have rejected the State's allegations regarding each of the five specific acts of encouragement set forth in the jury charge.  Whether that rejection was “based on issues regarding [Acuña]'s statement,” as the State suggests, or whether it was based on some other reason, the jury in the murder case necessarily decided those particular fact issues, and the State was therefore barred from relitigating them in the conspiracy trial.

We believe Acuña has met her burden to establish that one of the essential elements of the conspiracy charge had been previously “necessarily decided” in her favor by a valid and final judgment.  See Murphy, 239 S.W.3d at 795.  Accordingly, the trial court erred in denying her special plea insofar as it alleged that her conspiracy prosecution was barred by the doctrine of collateral estoppel, applicable through the Fifth and Fourteenth Amendments to the United States Constitution.  See Ashe, 397 U.S. at 445.  We sustain Acuña's issues on appeal.

III. Conclusion

We reverse the judgment of the trial court and render judgment of acquittal.

FOOTNOTES

1.   The portion of the statement regarding Acuña's payment to Aucencio Rivera was initially redacted in the version entered into evidence at trial at State's Exhibit 8. However, after Acuña testified that she never asked anyone to kill Jose, the trial court ruled that the entire statement was admissible, including the previously-redacted portion, and it admitted the entire statement as State's Exhibit 143.  Based on this evidence, the initial 2011 indictment also charged Acuña with solicitation of murder, see Tex. Penal Code Ann. § 15.03(a) (West, Westlaw through 2015 R.S.);  however, the State opted to dismiss that charge prior to trial.

2.   All text messages are reproduced here with spelling errors and abbreviations as in the originalexhibit.

3.   Juan and Tony were convicted separately for the murder of Jose.

4.   We note that, although Acuña was initially charged in the 2011 indictment with having committed murder as a principal, the prosecution was—from the outset—based entirely on Acuña's alleged culpability as a party to the offense.  In her 2011 opening statement, the prosecutor acknowledged that the State was making no allegation that Acuña had personally murdered Jose:Ladies and gentlemen, the evidence that we will present to you will show you that this defendant was responsible forthe death of Jose Guadalupe Fiscal.  The evidence will show that Mr. Fiscal was hit over the head.  He was struck so violently that he was probably rendered unconscious.  After which, he was stabbed 45 times.  And as if that weren't enough, Mr. Fiscal's body was set on fire.Now, ladies and gentlemen, the State is not going to bring a witness to you who will tell you that this defendant personally struck that blow to the victim's head.  Not one witness will come into this courtroom and tell you that she held the knife that was used to stab Jose.  But what the State will prove to you beyond a reasonable doubt is that this woman is completely responsible for Jose Fiscal's death, that she orchestrated the entire—the entire situation that occurred on July 3rd, 2010.Further, the 2011 jury was instructed to convict Acuña only if it found her guilty as a party to the offense;  it did not ask whether Acuña was guilty as a principal.

5.   The jury charge in the 2013 case tracked the indictment.

6.   The State notes that, during its deliberations following the 2011 trial, the jury sent a note to the trial court asking why State's Exhibits 8 (Acuna's initial custodial statement with the Aucencio Rivera allegations redacted) and 143 (the entire statement) were different.  See supra note 1. The State argues that the existence of this note “suggests that [the 2011 jury's] general verdict was based on issues regarding Appellant's statement.”

Memorandum Opinion by Justice Garza