NUMBER 13-15-00569-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JUAN ELIGIO GARCIA ADAMES, Appellant,
v.
STATE OF TEXAS, Appellee.
On appeal from the 398th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez, Justices Benavides, and Longoria
Memorandum Opinion by Justice Longoria
Appellant Juan Eligio Garcia Adames appeals his conviction by a jury for the
offense of capital murder. See TEX. PENAL CODE ANN. §§ 19.02(b)(1), 19.03(a)(2) (West,
Westlaw through 2017 1st C.S.). Because the State did not seek the death penalty,
appellant received an automatic life sentence in the Texas Department of Criminal
Justice—Institutional Division, without parole. See id. § 12.31(a) (West, Westlaw through
2017 1st C.S.).
By fourteen issues appellant contends that: (1) the trial court abused its discretion
in denying his pretrial motion to dismiss; (2) the Double Jeopardy Clause of the Fifth
Amendment was violated when he was retried for capital murder as a primary actor; (3)
the doctrine of collateral estoppel in the Double Jeopardy Clause of the Fifth Amendment
guaranteed by the Due Process Clause of the Fourteenth Amendment was violated when
he was retried for capital murder as a primary actor; (4) the doctrine of double jeopardy
issue preclusion was violated when he was retried for capital murder as a primary actor;
(5) the doctrine of the law of the case was violated when the trial court included capital
murder as a primary actor in its jury charge; (6) the mandate doctrine was violated when
he was retried for capital murder as a primary actor; (7–11 and 14) there was jury charge
error; and (12–13) he received ineffective assistance of counsel. We affirm.
I. PROCEDURAL HISTORY
A. First Appeal
In December 2006, a jury convicted appellant of the capital murder of Ann Marie
Garcia. On direct appeal, this Court found that the evidence was legally insufficient to
convict appellant as the primary actor of the murder because all of the evidence
established that co-defendant Luis Carlos Mares killed Ann Marie Garcia, but that the
evidence was legally sufficient to support a conviction as a party to the crime. Adames
v. State, No. 13-07-303-CR, 2010 WL 2862604, at *7–8 (Tex. App.—Corpus Christi July
22, 2010) aff’d, 353 S.W.3d 854 (Tex. Crim. App. 2011). In that opinion we reversed and
remanded because the jury charge allowed for appellant’s conviction as a party to the
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kidnapping but not as a party to Garcia’s murder. Id. at *8–9. Appellant thereafter filed a
petition for discretionary review in the Texas Court of Criminal Appeals claiming
entitlement to rendition of judgment of acquittal for alleged evidentiary insufficiency,
challenging this Court’s judgment finding sufficient evidence as to his culpability as a
party. See Adames, 353 S.W.3d at 854. The Texas Court of Criminal Appeals granted
discretionary review and affirmed our disposition of the case:
The court of appeals applied the proper standard in conducting its
evidentiary-sufficiency review and correctly found that the evidence was
legally insufficient to support [Adames’s] conviction as a primary actor, but
legally sufficient to support his conviction as a party.
Id. at 861.
B. Writ of Habeas Corpus
Following the Texas Court of Criminal Appeals’ ruling, the State initiated
proceedings to retry appellant for capital murder. As a pre-trial matter, appellant filed a
petition for writ of habeas corpus with the trial court in which he argued that a retrial would
violate his state and federal protections against double jeopardy. The trial court denied
appellant’s petition, and he appealed the denial. This Court reviewed his appeal and
affirmed the trial court’s ruling, stating that double jeopardy does not attach in a case in
which a conviction was overturned because of error in the charge presented to the jury.
See Ex parte Adames, No. 13-12-00600-CR, 2013 WL 2380907, at *3 (Tex. App.—
Corpus Christi May 30, 2013, no pet.) (mem. op., not designated for publication).
C. Current Proceeding
In August 2015, appellant’s second trial was held. The jury found appellant guilty
of capital murder and sentenced him to life imprisonment. This appeal followed.
II. STATE AND FEDERAL CONSTITUTIONAL PROTECTIONS
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By his first six issues, appellant argues that his state and federal constitutional
protections were violated when he was retried for capital murder as a primary actor. As
a preliminary matter, we note that appellant’s arguments in this appeal are very similar to
those from his prior appeal of the denial of his writ of habeas corpus. 1 “Under the law of
the case doctrine, an appellate court’s resolution of a question of law in a previous appeal
of the same case will govern the disposition of the same issue when raised in a
subsequent appeal.” Zavala v. State, 956 S.W.2d 715, 718 (Tex. App.—Corpus Christi
1997, no pet.); see also Ware v. State, 736 S.W.2d 700, 701 (Tex. Crim. App. 1987)
(“[W]hen the facts and legal issues in a case on appeal are virtually identical with those
in a previous appeal in which the legal issues were resolved[,] then logic and reason
dictate that the appeals be viewed as the same case.”). However, the reconsideration or
further consideration of an issue on a second appeal is a matter of discretion. See Ex
parte Granger, 850 S.W.2d 513, 516 (Tex. Crim. App. 1993); Peden v. State, 917 S.W.2d
941, 956 (Tex. App.—Fort Worth 1996, pet. ref’d).
A. Double Jeopardy
The Fifth Amendment prohibition against double jeopardy protects against: “1) a
second prosecution for the same offense after acquittal; 2) a second prosecution for the
same offense after conviction; and 3) multiple punishments for the same offense.” Weinn
v. State, 326 S.W.3d 189, 192 (Tex. Crim. App. 2010) (citing Brown v. Ohio, 432 U.S.
161, 165 (1977)); Stephens v. State, 806 S.W.2d 812, 816 (Tex. Crim. App. 1990) (en
banc). “Conceptually, the State and Federal double jeopardy provisions are identical.”
1As with his petition for writ of habeas corpus, appellant’s motion to dismiss was also brought on
grounds of double jeopardy.
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Stephens, 806 S.W.2d at 815; see Ex parte Busby, 921 S.W.2d 389, 392 (Tex. App.—
Austin 1996, pet. ref’d).
This Court has already addressed this issue:
When a trial proceeds to a verdict and the conviction is reversed on appeal
“retrial is not automatically jeopardy-barred” unless the conviction was
reversed for insufficiency of the evidence. When a case is reversed
because of trial error, “double jeopardy does not attach.” This rule applies
when a conviction is overturned on appeal because of error in the jury
charge.
...
As we have already stated above, we overturned appellant’s conviction
because of error in the jury charge and we expressly overruled appellant’s
insufficiency issues. The court of criminal appeals confirmed our holding.
When a conviction is overturned on appeal because of error in charge
presented to the jury, double jeopardy does not attach.
Ex parte Adames, 2013 WL 2380907, at *2–3 (citations omitted). Having already held
that appellant’s conviction as a primary actor in his first trial was reversed as a result of
trial error, we again conclude that double jeopardy does not attach. See id.; see Burks v.
United States, 437 U.S. 1, 16 (1978) (holding that the Double Jeopardy Clause “does not
bar retrial of a defendant whose conviction was set aside because of an error in the
proceedings leading to conviction.”). Appellant’s first and second issues are overruled.
B. Collateral Estoppel
The doctrine of collateral estoppel is embodied within the Double Jeopardy Clause
of the Fifth Amendment, which is applicable to the states through the Fourteenth
Amendment. Murphy v. State, 239 S.W.3d 791, 794 (Tex. Crim. App. 2007) (citing Ashe
v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); U.S. CONST.
amend. V, XIV). While double jeopardy protects a defendant against a subsequent
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prosecution for an offense for which the defendant has been acquitted, collateral estoppel
deals only with relitigation of specific fact determinations. Id.
“Collateral estoppel 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 relating to the same event or situation.’” Id. (quoting
Ashe, 397 U.S. at 443, 90 S.Ct. 1189). A collateral estoppel analysis consists of two
questions: (1) Has a fact issue already been determined, adversely to the State, in a valid
and final judgment between the same parties? and (2) Is the State now trying to relitigate
that same fact issue? Ex parte Tarver, 725 S.W.2d 195, 199 (Tex. Crim. App. 1986).
Thus, for collateral estoppel to apply on a constitutional basis, jeopardy must have
attached or there must have been the equivalent of criminal punishment in the first
proceeding. State v. Rodriguez, 11 S.W.3d 314, 317–19 (Tex. App.—Eastland 1999, no
pet.); see also State v. Smiley, 943 S.W.2d 156, 158 (Tex. App.—Amarillo 1997, no pet.)
(holding that collateral estoppel is a subset of double jeopardy and has no application
unless claimant previously placed in jeopardy); Nichols v. Scott, 69 F.3d 1255, 1269–70
(5th Cir. 1995) (finding no due process basis, independent of the Double Jeopardy
Clause, for the application of collateral estoppel); Showery v. Samaniego, 814 F.2d 200,
203 (5th Cir. 1987) (explaining that collateral estoppel applies insofar as it is necessary
to safeguard against the risk of double jeopardy). As we have already noted, jeopardy
did not attach as appellant’s original conviction was reversed on trial error grounds,
invalidating the final judgment of the trial court. See Adames, 353 S.W.3d at 863.
Appellant’s third and fourth issues are overruled.
C. Law of the Case and Mandate Doctrine
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The “law of the case” doctrine provides that an appellate court’s resolution of a
question of law in a previous appeal of the same case will govern the disposition of the
same issue should there be another appeal. Ware v. State, 736 S.W.2d 700, 701 (Tex.
Crim. App. 1987) (refusing to review for the second time the evidence offered at a
suppression hearing). The public policy behind the application of the “law of the case”
doctrine is to prevent useless relitigation of issues already decided and to promote judicial
economy. See LeBlanc v. State, 826 S.W.2d 640, 644 (Tex. App.—Houston [14th Dist.]
1992, pet. ref’d).
Appellant argues in his fifth point of error that the law of the case doctrine was
violated when he “was again tried for capital murder as a primary actor after the court of
criminal appeals approved this court of appeals’ prior holding that no evidence existed to
convict [him] as a primary actor at the first trial by jury.” Appellant’s argument is
misplaced. As we have previously stated, this Court’s reversal was not based on
insufficient evidence, but rather on trial error. “The State may retry a defendant after a
successful appeal because the ‘original conviction has, at the defendant’s behest, been
wholly nullified and the slate wiped clean.’” Ex parte Fortune, 797 S.W.2d 929, 936 (Tex.
Crim. App. 1990) (citing North Carolina v. Pearce, 395 U.S. 711, 721 (1969)). The jury
charge error caused this Court to reverse appellant’s first conviction and wipe the slate
clean.
In short, reversal for trial error, as distinguished from evidentiary
insufficiency, does not constitute a decision to the effect that the
government has failed to prove its case. As such, it implies nothing with
respect to the guilt or innocence of the defendant. Rather, it is a
determination that a defendant has been convicted through a judicial
process which is defective in some fundamental respect, e.g., incorrect
receipt or rejection of evidence, incorrect instructions, or prosecutorial
misconduct. When this occurs, the accused has a strong interest in
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obtaining a fair readjudication of his guilt free from error, just as society
maintains a valid concern for insuring that the guilty are punished.
Burks, 437 U.S. 1, 18 (1978) (emphasis added). Appellant’s approach to this issue is
simply another way of arguing that he is being retried for the same crime for which
appellate courts have already determined the evidence produced at trial was insufficient.
This Court expressly overruled appellant’s insufficiency issues in his first appeal, and the
court of criminal appeals affirmed our holding. Adames, 353 S.W.3d at 862–63.
Appellant’s fifth issue is overruled.
Appellant also contends that the trial court erred by violating the mandate doctrine
when it “disregarded the letter and the spirit” of the court of criminal appeals’ affirmation
of our opinion in his first conviction appeal. Again, appellant’s argument is misplaced.
The mandate of the court of criminal appeals was to reverse and remand the case to the
trial court due to trial error. Because appellant’s conviction was reversed only on the
grounds of incorrect jury instructions, no bar exists to further prosecution of the same
charge. See Burks, 437 U.S. at 15. Appellant’s sixth issue is overruled.
III. CHARGE ERROR
In his seventh through eleventh and fourteenth points of error, appellant argues
that the trial court’s jury charge was erroneous. Specifically, issues seven through eleven
are based on appellant’s argument that the charge should not have contained the primary
actor criminal theory of liability because he should not have been retried for capital murder
as a primary actor based on the principles of double jeopardy, collateral estoppel, law of
the case doctrine, and the mandate doctrine. Having already overruled appellant’s
arguments on each of these grounds, we cannot conclude the charge was erroneous for
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the inclusion of capital murder as a primary actor on the bases raised by appellant.
Therefore, appellant’s issues seven through eleven are overruled.
In issue fourteen, appellant argues the charge was fundamentally erroneous
because “it failed to make a finding as to whether Mares caused Ann Marie Garcia’s death
or that her death occurred.”
A. Standard of Review
We review a claim of jury charge error through a two-step process. Phillips v.
State, 463 S.W.3d 59, 64–65 (Tex. Crim. App. 2015). We first determine whether there
was error in the charge and, if so, whether that error was harmful. Id. Preservation of
error becomes an issue in the second step because it determines the degree of harm
required for reversal. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). If
error was preserved, we must reverse if the record shows the defendant suffered “some
harm” as a result of it. Id. When an appellant alleges error in the jury charge but the
alleged error was not objected to at trial, as here, we will reverse only if we find error
causing egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013)
(citing Almanza v. State, 686 S.W.2d 157,171 (Tex. Crim. App. 1985) (op. on reh’g)).
Egregious harm will be found only if the error deprived the defendant of a fair and
impartial trial. Id. The record must disclose actual rather than theoretical harm, and the
error must have affected the very basis of the case, deprived the defendant of a valuable
right, or vitally affected a defensive theory. Id. ln reviewing for egregious harm, we
consider “the entire jury charge, the state of the evidence, including the contested issues
and weight of probative evidence, the argument of counsel and any other relevant
information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171.
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B. Applicable Law and Relevant Facts
The application paragraph of a jury charge tells the jury under what circumstances
it can find the defendant guilty. McFarland v. State, 928 S.W.2d 482, 515 (Tex. Crim.
App. 1996) overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim.
App. 1998). Here, the charge’s application paragraphs included the option of finding guilt
under the law of parties. The trial court’s charge read:
If you find from the evidence beyond a reasonable doubt that on or about
OCTOBER 23, 2003, in Hidalgo County, Texas, LUIS CARLOS MARES,
and the Defendant, JUAN ELIGIO GARCIA ADAMES, then and there knew
of the intent, if any, of the said LUIS CARLOS MARES to cause the death
of an individual, namely, ANN MARIE GARCIA, by strangulation, and the
LUIS CARLOS MARES was then and there in the course of committing or
attempting to commit the offense of Aggravated Kidnapping, and the
Defendant, acting with the intent to promote or assist the commission of
Capital Murder, solicited, encouraged, directed, aided or attempted to aid
LUIS CARLOS MARES in the commission of the Capital Murder by injecting
the said ANN MARIE GARCIA with heroin or driving the vehicle while LUIS
CARLOS MARES strangled the said ANN MARIE GARCIA with a shoe
lace, then you will find the Defendant guilty of the offense of CAPITAL
MURDER as charged in the indictment.
Under the law of parties, a person may be criminally responsible for the murder committed
by another person if “acting with intent to promote or assist” the murder, “he solicits,
encourages, directs, aids, or attempts to aid the other person” to commit the murder. See
TEX. PEN. CODE ANN. § 7.02(a)(2) (West, Westlaw 2017 through 1st C.S.).
C. Analysis
Appellant contends that the trial court’s charge “fails to require the jury to find that
Luis Carlos Mares committed the ‘essential elements of the murder offense’” and “fails to
provide the jury with a party law instruction regarding ‘essential elements of the murder
offense.’” Specifically, appellant contends that the charge does not require the jury to find
that Mares’s conduct caused the death of the victim, nor does it require that the jury find
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that the victim’s death occurred. Appellant argues that “The application of party law in
the application paragraph only applies to aggravated kidnapping and to Mr. Adames
knowledge of and his aiding of Mares’s intent to cause the death of ANN MARIE GARCIA
by driving the vehicle or injecting heroin, but not to her actual murder.” We disagree.
The language of the application paragraph clearly authorizes conviction of
appellant as a party to capital murder, specifically referencing the manner in which Mares
allegedly caused the death of Garcia by strangulation. A plain reading of the paragraph
explains that the jury is authorized to find appellant guilty as a party only if they find that
he was “acting with the intent to promote or assist the commission of Capital Murder.”
Furthermore, the paragraph specifically calls for the jury to determine whether the
appellant “solicited, encouraged, directed, aided or attempted to aid LUIS CARLOS
MARES in the commission of the Capital Murder by injecting the said ANN MARIE
GARCIA with heroin or driving the vehicle while LUIS CARLOS MARES strangled the
said ANN MARIE GARCIA with a shoe lace.” The application paragraph addresses the
elements of capital murder as a party, the death of the victim by strangulation, and the
actor as Luis Carlos Mares. Finding no error in the jury charge, we conclude that the
instruction did not deprive appellant of a fair and impartial trial. We overrule appellant’s
fourteenth issue.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
In issues twelve and thirteen, appellant argues that he received ineffective
assistance of counsel. Specifically, he argues that his defense counsel was deficient by
failing to object to the jury charge’s inclusion of the primary actor theory of criminal liability
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and by failing to object to Mares’s testimony relating to the primary actor theory of criminal
liability because the primary actor theory of liability was barred by double jeopardy.
A. Standard of Review
We evaluate claims that counsel was ineffective under the standard articulated by
the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984).
To obtain reversal under Strickland requires a defendant to show both (1) that his counsel
performed deficiently and (2) that the deficient performance prejudiced the defendant’s
case. Id. Deficient performance means that counsel’s errors were so serious that he was
not functioning “within the range of competence demanded of attorneys in criminal cases
as reflected by prevailing professional norms.” Nava, 415 S.W.3d at 307. Prejudice
means that there is a “reasonable probability” that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Ex parte Napper, 322
S.W.3d 202, 248 (Tex. Crim. App. 2010) (internal quotation marks omitted).
We indulge a strong presumption that counsel’s challenged actions were not
deficient but the result of sound trial strategy. Nava, 415 S.W.3d at 307–08. The
appellant has the burden to show the contrary by the preponderance of the evidence.
Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). If the record does not
contain counsel’s explanation for his challenged actions, we will not find deficient
performance unless the challenged conduct “was so outrageous that no competent
attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005) (internal quotation marks omitted). In other words, we will “assume a
strategic motivation if any can possibly be imagined.” Ex parte Miller, 330 S.W.3d 610,
616 n. 9 (Tex. Crim. App. 2009).
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Regarding the prejudice prong, a “reasonable probability” is one that that is
sufficient to undermine confidence in the outcome. Id. A “reasonable probability” is not
the same as a preponderance of the evidence because “[t]he result of a proceeding can
be rendered unreliable, and hence the proceeding itself unfair, even if the errors of
counsel cannot be shown by a preponderance of the evidence to have determined the
outcome.” Strickland, 466 U.S. at 694.
B. Applicable Law and Analysis
Both of appellant’s ineffective assistance of counsel claims rely on his argument
that he should not have been retried as a primary actor in the capital murder. First, he
argues that his attorney should have objected to the trial court’s charge that contained
the primary actor theory of criminal liability because it was a violation of double jeopardy,
and second, he argues his attorney should have objected to testimony related to the
theory that he was a primary actor because it was irrelevant on the same grounds. As
we have already discussed above, there was no bar to relitigation on the primary actor
theory of criminal liability.
The State was not barred from presenting evidence and pursuing a theory of
criminal liability that appellant was the primary actor. See Burks, 437 U.S. at 16.
Therefore, appellant’s trial counsel did not render ineffective assistance in failing to object
to the inclusion of the primary actor theory of criminal liability in the jury charge when he
reasonably could have determined that the instructions were applicable to the case. See
generally Hardin v. State, 951 S.W.2d 208, 211 (Tex. App.—Houston [14th Dist.] 1997,
no pet.) (rejecting appellant’s claim for ineffective assistance when trial counsel failed to
request article 38.23 instruction when appellant was not entitled to instruction); see Ex
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parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App. 2005) (“[A] reasonably competent
counsel need not perform a useless or futile act, such as requesting a jury instruction to
which the defendant is not legally entitled or for which the defendant has not offered
legally sufficient evidence to establish. Requesting a jury instruction to which one is not
legally entitled, merely for the sake of making the request, is not the benchmark for a
competent attorney.”) (footnote omitted). Appellant’s twelfth issue is overruled.
Appellant argues that the testimony of Mares was irrelevant insofar as it discussed
the theory of criminal liability as a primary actor. Again, appellant relies on his argument
that double jeopardy prevented him from being retried as a primary actor. Appellant
argues that Mares’s testimony went against the holding in his first appeal, both by this
Court and the court of criminal appeals. As we have already stated, the State was not
barred from presenting evidence and pursuing a theory of criminal liability that appellant
was the primary actor. See Burks, 437 U.S. at 16. Again, counsel cannot be held to be
deficient where he reasonably could have determined the testimony was relevant and his
objection would be overruled. See Chandler, 182 S.W.3d at 356. Appellant’s thirteenth
issue is overruled.
V. CONCLUSION
We affirm the judgment of the trial court.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
18th day of October, 2018.
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