In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00004-CR
___________________________
EX PARTE MICHAEL LORENCE
On Appeal from the 362nd District Court
Denton County, Texas
Trial Court No. F-2013-0530-D
Before Gabriel, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
This is an interlocutory appeal and cross-appeal from the denial of relief on a
pretrial application for writ of habeas corpus and from rulings on proposed evidentiary
exclusions. When the State moved forward with attempting to try Appellant Michael
Lorence for conspiracy to commit capital murder, he filed a pretrial application for writ
of habeas corpus based on a jury’s not-guilty verdict in his 2019 trial for the offense of
aggravated assault with a deadly weapon.1 Appellant sought to have the indictment for
the conspiracy charge dismissed on double-jeopardy grounds based on the doctrine of
collateral estoppel/issue preclusion. 2 The trial court denied Appellant’s application but
stated that there was evidence from the aggravated assault trial that needed to be
excluded because it would violate collateral estoppel with regard to going forward in
1
Appellant was initially tried and found guilty of the offense of aggravated assault
with a deadly weapon in 2015, but on appeal, this court reversed his conviction. See
Lorence v. State, No. 02-15-00398-CR, 2017 WL 4172077, at *16, *18 (Tex. App.—Fort
Worth Sept. 21, 2017, pet. ref’d) (mem. op. on reh’g, not designated for publication).
Appellant’s trial on remand, which was held in January 2019, resulted in the acquittal
that is the basis of the double-jeopardy claim that he raises in his pretrial application for
writ of habeas corpus in his conspiracy case.
2
As pointed out by both Appellant and the State, cases traditionally refer to this
doctrine as “collateral estoppel,” but the United States Supreme Court has noted that
“issue preclusion” is the more descriptive term. See Bravo-Fernandez v. United States, 137
S. Ct. 352, 356 n.1 (2016) (citing Yeager v. United States, 557 U.S. 110, 119 n.4, 129 S. Ct.
2360, 2367 n.4 (2009), and Restatement (Second) of Judgments § 27, cmt. b, pp. 251–
252 (Am. Law Inst. 1980)).
2
the conspiracy case. The trial court asked the parties to review the record from the
prior aggravated assault trials to determine which matters from those trials could not
be presented to or argued in front of the jury in the conspiracy trial. The trial court
adopted the evidentiary exclusions that were agreed to by the parties and granted other
evidentiary exclusions that Appellant had proposed.
In a single issue, Appellant argues that the trial court erred by denying his
application. Specifically, Appellant argues that the issue preclusion component of the
Double Jeopardy Clause “completely bars the State’s current prosecution of Appellant for
conspiracy to commit capital murder where a jury has previously acquitted Appellant
of the object of the conspiracy – aggravated assault with a deadly weapon – both as the
primary actor[] and as a party to the offense.” After reviewing the entire record of the
2019 trial and taking into account the pleadings, the evidence, and the charge, we
conclude that a rational jury did not necessarily decide whether Appellant “encouraged,
directed, aided[,] or attempted to aid Michael Speck in committing the offense of
Aggravated Assault, to wit: by helping plan the shooting of Nancy Howard.”
Accordingly, we affirm the portion of the trial court’s order denying relief on
Appellant’s pretrial application for writ of habeas corpus.
The State argues in its cross-appeal that because the only issue that the jury
decided against the State in Appellant’s 2019 retrial dealt with the identity of the
shooter, the trial court abused its discretion when it suppressed evidence that went
beyond that issue. Because we must view the evidence in the light most favorable to
3
the trial court’s ruling and because we are required to defer almost totally to the trial
court’s rulings on application-of-law-to-fact questions that turn on evaluating credibility
and demeanor, we hold that the trial court did not abuse its discretion by ruling that the
complained-of testimony should be excluded from the conspiracy trial. We therefore
affirm the remainder of the trial court’s order that includes the evidentiary exclusions
challenged by the State.
II. Background Facts
A. Overview
The victim, Nancy Howard,3 called 911 after she was shot above her left eyebrow
while in her garage in Carrollton on August 18, 2012. The police investigation revealed
that John Franklin Howard, who was Nancy’s husband at that time, had hired a man in
East Texas named Billie Johnson to kill Nancy.4 The investigation further revealed that
before Billie could carry out the murder-for-hire plan, he was arrested on drug charges.
Billie’s arrest, however, did not stop John from proceeding with the murder-for-hire
plan. Instead, Billie’s nephew Michael Alan Speck Jr. took over Billie’s role.
3
At the time of the 2019 trial, she went by the name Nancy Shore.
4
Because, unlike in Appellant’s prior appeal, the sufficiency of the evidence is not
at issue in these appeals, we do not attempt to delve into the lengthy history of the many
individuals that John and others brought into his scheme to have Nancy murdered. See
Lorence, 2017 WL 4172077, at *1, *4 (setting forth a diagram of the individuals who
received payments from John as part of the murder-for-hire scheme). Instead, we
include only a brief factual background that provides the context for the issues in these
appeals.
4
B. Speck’s Testimony
Speck testified at Appellant’s trial and gave his rendition of the events.5 Speck
testified that a few weeks after Billie was arrested, Speck met with John at a Whataburger
in Grapevine and said that he would take over Billie’s role and complete the job. John
gave Speck “a couple thousand” dollars and a picture of Nancy and her car. John said
that he would text Speck information about where to find Nancy and that it would most
likely be at church. Speck got his cousin Dustin Hiroms (who considered Billie his
stepdad) involved to purchase the gun and to be the driver.
A few weeks later, on June 18, 2012, Speck met with John at a closed-down
restaurant near a La Quinta in Farmers Branch. After the meeting near the La Quinta,
Speck returned to East Texas on June 19, lost contact with John, and no longer wanted
to have any involvement with him. Speck explained that at that time, he no longer
planned on carrying out the plot to kill Nancy because there were “too many people
involved in it” and because “[i]t was just too risky.” Speck also had a falling out with
Dustin. Speck was asked, “After you got back to East Texas from this La Quinta
meeting, did you want to involve Dustin anymore in the murder-for-hire plot to kill
5
Around the time that the State was scheduled to go to trial on the aggravated
assault charges pending against Speck for his involvement in Nancy’s injuries, he told
police for the first time that Appellant had been the trigger man. Speck accepted a plea
bargain for a twelve-year sentence in exchange for his testimony against Appellant;
Speck agreed that he had received the “deal of [the] century.”
5
Nancy Howard?” Speck replied, “No,” and explained that he was “going to be done
with it” and wanted Dustin to be done with it.
Speck said that approximately two weeks before the shooting, he reconnected
and met with John at the Whataburger in Grapevine. John gave Speck $5,000, agreed
to pay $150,000 after the shooting, and said that he would text Speck information about
when Nancy would be at church.
Speck then testified about his connection to Appellant. Speck said that he and
Appellant had become friends when Speck had lived in California and that Appellant
had reconnected with him on Facebook. Speck invited Appellant to come visit him in
Texas and asked him to bring his (Speck’s) brother Virgil Rodriguez, who also lived in
California, with him. To cover the cost of the gas, food, and lodging for the road trip,
on August 14, 2012, Speck wired $1,000 to Appellant’s fiancée at the time, Misti Ford.
Speck testified that Appellant, Misti, and Virgil arrived in Texas a few days later in
Misti’s vehicle.
After Appellant arrived in Texas, Speck talked to him alone outside Speck’s home
in Grand Saline and allegedly told him about the murder-for-hire plot. Speck explained
his plan: he would be the shooter, and Appellant would be the driver. Speck testified
that Appellant suggested that they reverse those roles because Speck had a young son.
After that conversation, Speck, Speck’s son, the mother of Speck’s son (Kayla),
Appellant, and Misti went to Tyler and rented a Nissan Altima because Misti’s car had
a tire issue.
6
The following day, on August 17, 2012, Speck drove Appellant in the Nissan to
Carrollton; they drove by Nancy’s house and the church so that Speck could show
Appellant “where it was going to take place.” They returned to Grand Saline that
evening.
On August 18, 2012, Speck and Appellant drove back to Carrollton. They went
to a Ross store to buy hoodies, caps, and gloves. Speck testified that they changed into
the clothes they had bought, went to Chili’s for alcoholic beverages, and then drove to
Nancy’s house.
While on the way to Nancy’s house, they saw her driving and began following
her. They parked and waited while Nancy was at church. Speck went inside the church
to use the restroom. After Speck had used the restroom, they drove back to Chili’s for
more drinks. Speck testified that he knew that Nancy would be done at church at 7
p.m., so they returned to the church parking lot and waited.
After Nancy returned to her car and drove out of the parking lot, the men
followed her. When she went through the drive-through at Taco Bueno, the men
parked and then left before her to beat her to her house. They went to the alley behind
her house, and Appellant got out of the car. Speck said that Appellant took the gun
that was in the glove box, and Speck drove down the alley and parked around the
corner. Speck heard one gunshot and drove back down the alley to pick up Appellant.
Speck testified that when he picked up Appellant, Appellant had a purse with
him. Speck said that they stopped at a business a few blocks away, and Appellant
7
disposed of the purse in a dumpster. Before returning to Grand Saline, they stopped
at Lake Tawakoni to dispose of the gun and their clothes. They arrived at Speck’s home
in Grand Saline around 10 p.m., and Speck told Kayla that “it was finished.”
On cross-examination, Speck admitted that after he was in jail, he had gotten
two large tattoos on his hands and across his knuckles to change his appearance.
C. Misti’s Testimony
Misti, who described Appellant as her ex-fiancé, testified that she and Appellant
came to Texas in August 2012 so that he could introduce her to an old friend of his
(Speck), whom he wanted to be his best man in their wedding. When Misti woke up
on August 18, Speck and Appellant were not at the house, and neither was the Nissan
Altima. Misti’s understanding from the night before was that Speck and Appellant were
planning to head to Dallas the following day (August 18) to check out a few side jobs.
Misti testified that when Speck and Appellant returned to Speck’s home in Grand
Saline on the night of August 18, Appellant “was acting different.” Misti explained that
Appellant was very quiet and was drinking alcohol and that he was usually not quiet and
did not drink alcohol. Misti testified that she was concerned about Appellant and asked
him what was bothering him; Misti said, “He told me that he shot somebody.” Misti
testified that she started crying and that Appellant gave her details even though she did
not ask for them:
He told me that him and Michael Speck went to kill some lady and that
he followed her home, went in her garage. When she got out of her car,
8
he shot her in the face, stole her purse and her groceries to make it look
like a burglary gone wrong, and then they left.
Misti said that Appellant cried as he told her about the events. Misti testified that she
did not call the police because she was afraid of getting in trouble.
That night, Misti and Appellant stayed in a hotel because it was more comfortable
than sleeping on the floor at Kayla and Speck’s one-bedroom home. The following
day, they went to Tyler to return the Nissan Altima, ate lunch in Tyler with Kayla and
Speck, and then drove back to California. They did not talk about the event during the
drive.
Misti testified that after they returned to California, she continued living with
Appellant. She said that they did not have an extra $75,000 or $5,000 or even $500 to
spend and that they did not make any major purchases. Misti testified that she and
Kayla continued to talk after Misti was back in California; although Misti initially said
that Kayla did not give her updates, she admitted that Kayla had called and had told her
that Speck had been arrested and that it was a murder-for-hire deal.
During the two months after their trip to Texas but before Misti ended her
relationship with Appellant, they talked about the event a couple of times. Misti said
that Appellant felt bad that he had shot a woman. Misti testified that she had asked
him why he was the shooter and that Appellant had said that “he didn’t want Michael
Speck to do it because he had a new family.”
9
When the lead investigator (Investigator Michael Wall) contacted Misti, she gave
two statements. In Misti’s first statement, she did not mention that either she or
Appellant were involved in the shooting; she claimed that they had learned about the
shooting after the fact. After the police told Misti that they had information that led
them to believe that she knew more about the shooting and that they needed to either
move forward with charging her as an accomplice for criminal solicitation of capital
murder or with using her as a witness, the whole tenor changed. Misti asked what would
happen to her kids, and the police said that they needed “the conclusion.” Misti agreed
that the police had made it clear to her, based on what they were saying and how they
were saying it, that they wanted her to tell them that Appellant was the shooter. Misti
then gave a statement that Appellant was the shooter. Misti admitted that it was in her
best interest to cooperate with the police so that they would not act on the warrant for
her arrest, which would have taken her away from her kids.
After Appellant was in jail, Misti talked to him on the phone, and he said that
“he wasn’t there” and that “he didn’t do anything.”
D. Testimony from Appellant’s Alleged Pod Mate
Grady Vollintine testified that he was in Denton County Jail and that during his
confinement, he had been in the same pod as Appellant for a couple of months. Grady
met with law enforcement in 2014 because “No Good,” which he claimed was
10
Appellant’s nickname, had told him some things.6 Grady testified that Appellant had
talked to him when they were alone in the rec yard and had told him that he had
messed up and how he [had] messed up. He wasn’t acting right. He drank
or took some pills or something. Anyway, he had got high, and his wife
or his fiancee, I’m not sure which one, had noticed he was acting weird,
acting funny, and confronted him. And whenever he was confronted, he
actually told her what had happened.
And he told me something about that she knew some item -- she
knew something that wasn’t released like in the press or in public, that she
knew of an item. I don’t know what that item was. But he told me that
she knew something, so they really took what she said real serious.
....
. . . He said, “I shot that b[---]h.” [Emphasis added.]
Grady admitted that any time Appellant was around other people, he was adamant that
he did not shoot Nancy, that he had done nothing wrong, and that he was not guilty.
E. Virgil
Virgil, Speck’s brother, testified that Speck had called him in August 2012 and
had asked if he wanted to take a road trip to Texas with Appellant to visit Speck. Prior
to the road trip, Virgil did not know Appellant or Misti.
Virgil testified that while they were in Grand Saline staying at Speck’s home,
Speck and Appellant had left a couple of times. Virgil asked to go along on the first
6
Grady met with Investigator Wall approximately three weeks before his federal
conspiracy trial.
11
outing, but Speck told him no. Virgil did not attempt to go along the second time that
Speck and Appellant left. Virgil did not know where they went.
F. Dustin
Dustin, Speck’s cousin, testified that he was aware that his mom (Stacey) and
Billie were getting money from John and knew “what they were being paid for.” Dustin
admitted that he was involved with Speck in the plan to kill Nancy. Although Dustin,
using money that Speck had given him, had bought a .380 off the street so that it could
not be traced, his main role was to be the driver for Speck.
Dustin went to Carrollton and met with John for the first time on July 4, 2012.
They “discussed a plan for Nancy Howard, and [John] told [Dustin] this is the way he
wanted it done, away from the house. He wanted it to look like a robbery.” Dustin
then returned to East Texas.
On August 4, John visited Dustin and brought him money.
On August 9, Dustin met with John in Mesquite. After that visit, Dustin
attempted to contact John again, but John never responded. Dustin testified that he
and Speck had a falling out and that he did not drive Speck to Nancy’s house on the
day of the offense.
On cross-examination, Dustin admitted that he had previously given a statement
saying that he could not recall where he was on August 18 (the day of the shooting).
Dustin agreed (1) that he had told the police that if he was going to do the shooting, it
would have to be done at the house; (2) that the plan was to go up to Nancy, rob her,
12
take her purse, dump her purse, and then go on living his life; and (3) that he had shell
casings all around when the police arrested him just days after the shooting. Dustin
said that he did not know Appellant; had never met him, seen him, or talked to him;
had not given him money; and did not know him from Adam.
G. Investigator Wall’s Testimony
Investigator Wall agreed that there was zero record of Appellant’s having any
contact with anyone except Speck. Investigator Wall testified that he believed that
Speck “was untruthful during all of [their] interviews.” Speck lied about how much
money he had received; Speck had never told Investigator Wall about the $150,000 (the
money that John promised to pay after Nancy had been murdered) that Speck testified
to during the trial. Speck also lied to Investigator Wall about his involvement with
John.
Investigator Wall agreed that John’s phone records show no connection to
Appellant. Investigator Wall also agreed that the forensic analysis of John’s computers
and an analysis of John’s financial records showed no connection to Appellant.
Investigator Wall further agreed that the only money that Appellant had any
connection to was the $1,000 that Speck had wired to Misti. Investigator Wall testified
that to his knowledge, Appellant was the only one “who didn’t get obscene amounts of
money for this” and that there “was a big-time money trail in this case from John
Howard to everybody else.”
13
Investigator Wall agreed that he had no physical evidence connecting Appellant
to the shooting on August 18, 2012. Investigator Wall also agreed that Appellant was
excluded as a contributor to the DNA that was found on Nancy’s purse.
III. Findings of Fact and Conclusions of Law 7
In conjunction with ruling on Appellant’s pretrial application for writ of habeas
corpus, the trial court ultimately issued the following findings of fact and conclusions
of law:
On June 21, 2019, August 23, 2019, and September 27, 2019, the Court
heard . . . [Appellant’s] Writ of Habeas Corpus. After considering all the
pleadings, evidence, and argument, the Court made the following Findings
of Fact and Conclusions of Law.
To the extent that any findings of fact below are construed to be
conclusions of law, they are expressly adopted as conclusions of law. To
the extent that any of the conclusions of law below are construed as
findings of fact, they are expressly adopted as findings of fact.
Findings of Fact
1. On March 25, 2013, the State indicted [Appellant] in F-2013-0530-
D for Conspiracy to Commit Capital Murder.
2. On March 25, 2013, the State indicted [Appellant] in F-2013-0531-
D for Aggravated Robbery.
3. On October 24, 2014, the [S]tate indicted [Appellant] in F-2014-
2002-D for Aggravated Assault with a Deadly Weapon.
4. The State proceeded to try [Appellant] in F-2014-2002-D for
Aggravated Assault with a Deadly Weapon.
7
In lieu of a procedural background, which is briefly summarized in footnote 1
above, we set forth the trial court’s findings of facts and conclusions of law.
14
5. A jury found [Appellant] guilty of Aggravated Assault in F-2014-
2002-D. However, the Second Court of Appeals reversed and
remanded for a new trial.
6. On January 23, 2019, on retrial, [Appellant] was found not guilty of
Aggravated Assault with a Deadly Weapon in F-2014-2002-D.
7. On January 29, 2019, the Aggravated Robbery case in F-2013-0531-
D was dismissed.
8. In F-2014-2002-D, the Aggravated Assault with a Deadly Weapon
retrial, the State requested an instruction pursuant to the law of
parties to be included in the jury charge.
9. The State drafted the proposed jury charge on the law of parties
that was submitted to the Court and ultimately contained in the jury
charge.
10. Nancy Howard testified that one man shot her. The evidence
showed that there was just one gun involved.
11. The key evidence that [Appellant] was the shooter came from the
testimony of three witnesses: (1) Michael Speck; (2) Misti Ford;
and (3) Grady Voll[i]ntine.
12. The clearly contested issues in this trial were (1) whether [Appellant
had] shot Nancy Howard and (2) whether or not [he] was a party
to the Aggravated Assault of Nancy Howard.
13. The jury charge allowed the jury to find [Appellant] guilty if (1) the
jury found that [he] intentionally or knowingly caused bodily injury
to Nancy Howard by shooting her with a firearm, or (2) the jury
found that the law of parties applied.
14. The law[-]of[-]parties charge submitted stated that the jury [could]
find [Appellant] guilty only if it found that (1) [he] encouraged,
directed, aided[,] or attempted to aid Michael Speck in committing
the offense of Aggravated Assault by helping plan the shooting of
Nancy Howard, and (2) Speck intentionally or knowingly caused
bodily injury to Nancy Howard by shooting Nancy Howard with a
15
firearm, and (3) during the commission of said assault, [Appellant]
used or exhibited a deadly weapon, a firearm.
15. Other evidence connected [Appellant] to the murder plot that did
not specifically indicate that [he] was the shooter.
16. Speck and [Appellant] rented a Nissan under [Appellant’s]
girlfriend’s name[,] and that car was the car in Carrollton at the time
of the assault.
17. Virgil Rodriguez, not listed as an accomplice in the jury charge,
testified that Speck and [Appellant] left Grand Saline together and
[that they] did not allow him to go with them.
18. Michael Wall testified that the church surveillance footage showed
two people in the Nissan at the church.
Conclusions of Law
1. Aggravated Assault and Conspiracy to Commit Capital Murder “are
separate offenses for double jeopardy purposes,” so this offense is
not barred by the [D]ouble [J]eopardy [C]lause. See United States v.
Felix, 503 U.S. 378, 390–92 (1992); see also Ex parte Chaddock, 369
S.W.3d 880, 889 (Tex. Crim. App. 2012) (Cochran, J., concurring);
Ex parte Brosky, 863 S.W.2d 783 (Tex. App.—Fort Worth 1993, no
pet.).
2. It is clear that Aggravated Assault and Criminal Conspiracy are
distinct statu[t]es, each of which requires proof of different
elements, so a “same elements” test is inapplicable. See Blockburger
v. U.S., 284 U.S. 299, 304 (1932). Likewise, one offense is not a
lesser-included offense of the other under a cognate-pleadings
approach. See Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007)
(reh’[g] denied).
3. The jury had a reasonable doubt that [Appellant] was the shooter.
4. Since the jury found [Appellant] not guilty, the jury either did not
believe that portion of the testimony of Michael Speck, Misti Ford,
and Grady Voll[i]ntine, or the jury did not find that that portion of
16
the testimony was sufficiently corroborated by non-accomplice
witness testimony.
5. A rational jury could have disbelieved Speck’s testimony about who
shot the victim if the jury thought that [he] was shifting the blame
to get a better plea-bargain agreement.
6. A rational jury could have disbelieved Ford’s and Vollintine’s
testimony about [Appellant’s] admissions because the jury thought
that the accomplices were trying to protect or benefit themselves.
7. The jury could only have found [Appellant] guilty as a party if the
jury found that [he] used or exhibited a firearm during the assault.
8. A rational jury could have grounded its verdict upon finding that
[Appellant] did not use or exhibit a deadly weapon. Therefore, the
jury did not necessarily find that [he] did not encourage, direct, aid,
or attempt to aid Michael Speck by helping him plan the shooting
of Nancy Howard. See Ashe v. Swenson, 397 U.S. 436, 444[, 90 S. Ct.
1189, 1194] (1970).
9. However, a rational jury could have doubted whether [Appellant]
was the shooter and still found that [Appellant] agreed with Speck
and others that “they or one of them” would murder Nancy
Howard for money and that he or one or more of them performed
overt acts in pursuance of that agreement because[] (1) more
evidence corroborated [Appellant’s] involvement in the plot than
specifically corroborated his role as the shooter, and (2) the jury
could have thought that Speck was lying specifically about who the
shooter was in order to benefit himself. See [id., 90 S. Ct. at 1194].
10. The State is precluded from relitigating whether [Appellant] was the
shooter and caused bodily injury to Nancy Howard by shooting her
with a firearm. The Court has reviewed the record of the previous
trials and [has] made specific rulings as to which evidence the State
is precluded from presenting.[8]
8
Those rulings are set forth and discussed below in part V. of the opinion, which
addresses the State’s appeal.
17
11. Whether [Appellant] shot Nancy Howard is not an essential
element of the Conspiracy to Commit Capital Murder charge
against [him].
12. Therefore, proceeding with the Conspiracy to Commit Capital
Murder charge against [Appellant] is not a violation of Double
Jeopardy or Collateral Estoppel since no evidence of [his] being the
shooter will be allowed in the trial of the Conspiracy charge.
For the above reasons, [Appellant’s] Writ of Habeas Corpus is
hereby DENIED.
IV. Appellant’s Appeal
In the sole issue in Appellant’s appeal, he argues that the trial court erred by
denying relief on his application because the issue preclusion component of the Double
Jeopardy Clause “completely bars the State’s current prosecution of Appellant for
conspiracy to commit capital murder where a jury has previously acquitted Appellant
of the object of the conspiracy – aggravated assault with a deadly weapon – both as the
primary actor[] and as a party to the offense.” We first set forth the standard of review
and the relevant law before applying that law to determine whether collateral estoppel
bars Appellant’s prosecution for conspiracy.
A. Standard of Review
We review the trial court’s ruling on a pretrial writ of habeas corpus for an abuse
of discretion. Ex parte Paxton, 493 S.W.3d 292, 297 (Tex. App.—Dallas 2016, pet. ref’d).
We view the evidence in the light most favorable to the trial court’s ruling and uphold
it absent an abuse of discretion. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App.
2006). We defer to the trial court’s findings of fact supported by the record, especially
18
when the fact findings arise from evaluating credibility and demeanor. Paxton, 493
S.W.3d at 297. We also defer to the trial court’s application of the law to the facts if
resolving the ultimate question turns on an evaluation of credibility and demeanor. Id.
If resolving the ultimate question turns on applying legal standards, we review the trial
court’s determination de novo. Id. “A decision to apply collateral estoppel is a question
of law, applied to the facts, for which de novo review is appropriate.” State v. Stevens,
235 S.W.3d 736, 740 (Tex. Crim. App. 2007).
B. The Law
In a recent opinion, the Texas Court of Criminal Appeals set forth the
relationship between double jeopardy and collateral estoppel:
The Double Jeopardy Clause of the Fifth Amendment provides that no
person shall be “subject for the same offence to be twice put in jeopardy
of life or limb.” U.S. Const. amend. V. This clause 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. North Carolina v. Pearce, 395 U.S. 711,
717, 89 S. Ct. 2072, [2076] (1969); Aekins v. State, 447 S.W.3d 270, 274
(Tex. Crim. App. 2014).
In Ashe v. Swenson, the Supreme Court recognized that the Fifth
Amendment guarantee against double jeopardy also embodies the
principle of collateral estoppel as a constitutional requirement. . . . 397
U.S. [at] 445, 90 S. Ct. [at 1195] . . . .
. . . Collateral estoppel “stands for an extremely important
principle[:] . . . when an issue of ultimate fact has once been determined
by a valid and final judgment, that issue cannot again be litigated between
the same parties in any future lawsuit.” Id. at 443, 90 S. Ct. [at 1194].
Thus, as we explained in Rollerson:
19
[U]nder the collateral-estoppel component of double
jeopardy, the government may not litigate a specific
elemental fact to a competent factfinder (judge or jury),
receive an adverse finding by that factfinder on the specific
fact, learn from its mistakes, hone its prosecutorial
performance, and relitigate that same factual element that
the original factfinder had already decided against the
government.
Rollerson v. State, 227 S.W.3d 718, 730 (Tex. Crim. App. 2007); Ashe,
397 U.S. at 447, 90 S. Ct. [at 1196] (“‘No doubt the prosecutor felt the
state had a provable case on the first charge and, when he lost, he did what
every good attorney would do—he refined his presentation in light of the
turn of events at the first trial.’ But this is precisely what the constitutional
guarantee forbids.”).
Therefore[,]
[i]n applying the doctrine of collateral estoppel, courts must
first determine whether the jury determined a specific fact,
and if so, how broad—in terms of time, space[,] and
content—was the scope of its finding. Before collateral estoppel
will apply to bar relitigation of a discrete fact, that fact must necessarily
have been decided in favor of the defendant in the first trial.
Ex parte Watkins, 73 S.W.3d 264, 268 (Tex. Crim. App. 2002) (emphasis
added); see also Rollerson, 227 S.W.3d at 731 (emphasizing same).
Ex parte Adams, 586 S.W.3d 1, 4–5 (Tex. Crim. App. 2019).
In a prior opinion, the Texas Court of Criminal Appeals set forth a more detailed
explanation, including the steps for analyzing a collateral estoppel issue and the
application of those steps:
The scope of facts that were actually litigated determines the scope of the
factual finding covered by collateral estoppel. Guajardo[ v. State], 109
S.W.3d [456,] 460 [(Tex. Crim. App. 2003)]; [Ex parte] Taylor, 101 S.W.3d
[434,] 442 [(Tex. Crim. App. 2002)]. The very fact or point at issue in the
pending case must have been determined in the prior proceeding. Taylor,
20
101 S.W.3d at 441. The defendant must meet the burden of proving that
the facts in issue were necessarily decided in the prior proceeding.
Guajardo, 109 S.W.3d at 460.
To determine whether collateral estoppel bars a subsequent
prosecution or permits the prosecution but bars relitigation of certain
specific facts, this court has adopted the two-step analysis employed by the
Fifth Circuit. See Neal v. Cain, 141 F.3d 207, 210 (5th Cir. 1998); see also
Taylor, 101 S.W.3d at 440. This court stated that 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. Taylor, 101 S.W.3d at 440.
The first prong is fairly simple; the particular fact litigated in the
first prosecution, in which a final judgment was entered, must be the exact
fact at issue in the second prosecution. . . .
In applying the doctrine of collateral estoppel, its limitations must
be kept in mind. Although collateral estoppel requires that the precise fact
litigated in the first prosecution have arisen in the same transaction,
occurrence, situation, or criminal episode that gave rise to the second
prosecution, the fact litigated must also be an essential element of the
subsequent offense. [Id.]; Neal, 141 F.3d at 210. Specifically, if the
necessarily decided fact litigated in the first prosecution constitutes an
essential element framed within the second prosecution’s offense, then
the “essential element of the offense” prong is satisfied. See Taylor, 101
S.W.3d at 440.
Murphy v. State, 239 S.W.3d 791, 795 (Tex. Crim. App. 2007) (footnote omitted).
However, the Supreme Court emphasized in Ashe that
the 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
21
with an eye to all the circumstances of the proceedings.” Sealfon v. United
States, 332 U.S. 575, 579, 68 S. Ct. 237, 240[ (1948)]. 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.[9]
397 U.S. at 444, 90 S. Ct. at 1194 (footnotes omitted).
C. Analysis
1. What issues were necessarily decided in the aggravated
assault trial
Appellant contends that throughout the trial the contested issue was not just
whether he had shot Nancy but also “whether he even knew of, or was involved at all in, the
existence of any conspiracy or plan to kill [her], versus whether he was just an
unknowing stooge of Speck.” Appellant argues that the jury’s “not guilty” verdict
means that the jury necessarily and explicitly decided that (1) Appellant did not shoot
Nancy on or about August 18, 2012, and (2) Appellant did not act with the intent to
promote or assist the commission of the offense by encouraging, directing, aiding, or
attempting to aid Speck or the listed accomplices in committing the offense of
aggravated assault by helping plan her shooting. After reviewing the 2019 trial record,
the arguments, and the jury charge, we disagree with Appellant’s second conclusion. As
explained in the following analysis, the conjunctive wording of the charge on the law of
9
“A general verdict returned in the guilt phase of a criminal trial frequently makes
it difficult to determine precisely which historical facts a jury found to support an
acquittal.” Watkins, 73 S.W.3d at 269. “This task is considerably less difficult[,
however,] when a jury is given special fact issues to determine.” Id.
22
parties allowed the jury to find Appellant “not guilty” if any one of the three listed acts
was not proven beyond a reasonable doubt, and one of the listed acts was whether
Appellant had used or had exhibited a deadly weapon in the form of a firearm. Further,
the evidence and arguments presented at trial were not such that the jury’s acquittal of
Appellant means that it necessarily decided that Appellant had not helped plan the
shooting.
As directed by the Adams opinion, we begin with the jury charge, as it is “the
natural place to begin” when “determining which facts were necessarily determined by
the jury” because it “told the jury the particular circumstances under which it was to
return a ‘Not Guilty’ verdict.” See 586 S.W.3d at 6. The jury charge from the aggravated
assault trial, which was admitted into evidence at the pretrial habeas hearing in the
conspiracy case, included a law-of-parties instruction:
A person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, or by the conduct of another for which
he is criminally responsible, or both. Each party to an offense may be
charged with the commission of the offense.
Mere presence alone will not make a person a party to an offense.
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.
That instruction was followed by two charging paragraphs under which the jury could
find Appellant guilty of aggravated assault:
Now if you find from the evidence beyond a reasonable doubt that on or
about the 18th day of August, 2012, in Denton County, Texas[,] the
23
defendant, MICHAEL LORENCE, did then and there intentionally or
knowingly cause bodily injury to Nancy Howard by shooting Nancy
Howard with a firearm, and the defendant did then [and] there, during the
commission of said Assault, use or exhibit a deadly weapon, to wit: a
firearm as alleged in the indictment, you will find the defendant guilty of
Aggravated Assault, as charged in the indictment; or
If you believe from the evidence beyond a reasonable doubt that
the defendant, MICHAEL LORENCE, did then and there, acting with
intent to promote or assist the commission of the offense, either
encouraged, directed, aided[,] or attempted to aid Michael Speck in
committing the offense of Aggravated Assault, to wit: by helping plan the
shooting of Nancy Howard, and Michael Speck, on or about the 18th day
of August, 2012, in Denton County, Texas, did then and there
intentionally or knowingly cause bodily injury to Nancy Howard by
shooting Nancy Howard with a firearm, and the defendant did then and
there, during the commission of said assault, use or exhibit a deadly
weapon, to-wit: a firearm, then you will find MICHAEL LORENCE,
guilty of Aggravated Assault, as charged in the indictment.
If you do not so believe, or if you have a reasonable doubt thereof,
you will find the defendant not guilty. [Emphasis added.]
The charge also contained the following instructions regarding the corroboration
that is necessary for certain testimony:
Upon the law of accomplice witness testimony, you are instructed that
Billie Johnson, John Howard, Stacey Serenko, Michael Speck, Kayla
Christman, Dustin Hiroms, and [Misti] Ford, were accomplices, if any
offense was committed, as alleged in the indictment. With this in mind,
you are further instructed that you cannot convict the defendant upon the
testimony of Billie Johnson, John Howard, Stacey Serenko, Michael
Speck, Kayla Christman, Dustin Hiroms, or [Misti] Ford alone, unless you
first believe that the testimony is true and shows the guilt of the defendant
as charged in the indictment, and then you cannot convict the defendant
unless the testimony of Billie Johnson, John Howard, Stacey Serenko,
Michael Speck, Kayla Christman, Dustin Hiroms, or [Misti] Ford is
corroborated by other evidence tending to connect the defendant with the
offense charged. The corroboration is not sufficient if it merely shows
the commission of the offense. The corroboration must tend to connect
24
the defendant with the commission of the offense. Then, from all the
evidence, you must believe beyond a reasonable doubt that the defendant
is guilty of the offense charged against him.
Testimony of another accomplice is not sufficient to corroborate
the testimony of an accomplice. The corroborative evidence, in other
words, must be from some source other than accomplices. Proof that the
defendant was merely present in the company of the accomplice shortly
before or after the time of any offense that was committed is not, in itself,
sufficient corroboration of the accomplice’s testimony. That evidence,
however, can be considered along with other suspicious circumstances.
A defendant may not be convicted of an offense on the testimony
of a person to whom the defendant made a statement against the
defendant’s interest during a time when the person was imprisoned or
confined in the same correctional facility as the defendant unless the
testimony is corroborated by other evidence tending to connect the
defendant with the offense committed. Corroboration is not sufficient if
the corroboration only shows that the offense was committed.
The law-of-parties instruction and the paragraph charging Appellant with
aggravated assault as a party (the law-of-parties charge) form the crux of Appellant’s
appeal.
According to the paragraph that charged Appellant with aggravated assault as the
shooter, the jury was instructed to return a “not guilty” verdict if the jury found that
the State did not prove beyond a reasonable doubt that Appellant was the principal
actor who shot Nancy and used or exhibited a firearm while doing so. According to
the paragraph that charged Appellant with aggravated assault as a party, the jury was
required to return a “not guilty” verdict if the jury found that the State did not prove
beyond a reasonable doubt the following three acts:
(1) Appellant helped Speck plan the shooting of Nancy Howard, and
25
(2) Speck shot Nancy with a firearm, and
(3) Appellant used or exhibited a firearm during the offense.
The parties agree that the jury’s “not guilty” verdict means that they found that
Appellant was not the shooter under the paragraph charging him as a principal and that
they moved on to the paragraph charging him as a party. As to the law-of-parties
charge, Appellant and the State part ways regarding their interpretations of the jury’s
“not guilty” verdict. Appellant contends that the jury necessarily found that he was not
a party to the offense. The State, however, contends that the compound nature of the
law-of-parties charge “prevents us from discovering what the jury actually decided
about the first section of the parties charge.”10
We must ask whether the fact that Appellant was not the shooter in combination
with the charge, argument, and other evidence prompts the conclusion that the jury also
necessarily decided that Appellant did not aid or assist Speck in committing the offense.
Our analysis turns on the conjunctive wording in the law-of-parties charge, which
required the jury to make three affirmative findings before it could find Appellant guilty
as a party. Our particular focus is on part (3) of the law-of-parties charge; it repeats the
deadly-weapon language from the latter portion of the paragraph charging Appellant as
the shooter—stating that “the defendant” (instead of Speck) used or exhibited a
It is unclear why the instruction has the italicized reference to “the defendant.”
10
Appellant claims that the reference was a “syntactical error” and should have instead
been a reference to Michael Speck. No matter its origin, the instruction includes the
term.
26
firearm. Although the parties agree that the jury found that Appellant was not the
shooter, we must determine whether there is evidence of two guns possessed by
separate individuals. Under a two-gun theory, Appellant would not have been the
shooter but could have aided Speck by brandishing a gun while Speck committed the
aggravated assault against Nancy. We therefore review the record to determine whether
the jury necessarily found that Appellant did not use or exhibit a firearm (i.e., evidence
was presented showing that only one person—-the shooter—exhibited a firearm).
After this analysis, we agree with the State that
[t]hough the jury charge included a law[-]of[-]parties instruction, the
compound nature of that instruction, in light of the nature of the evidence
and the defensive strategy, prevents us from discovering what the jury
actually decided about whether [Appellant] encouraged, directed, aided[,]
or attempted to aid Speck in committing the offense. A rational jury still
could have found that [Appellant] was involved in the agreement to kill
Nancy Howard even though it did not find that he was the shooter
because it could have disbelieved—or found not sufficiently
corroborated—the specific evidence that pointed to [Appellant] as the
shooter.
At trial, Speck testified about only one gun—its purchase, its placement in the
glove box, its alleged use by Appellant, and its disposal in the lake. There is no
testimony about a second gun. Moreover, Nancy testified that she saw only one person
with a gun, and that person was the shooter.
We next review the record regarding how the State and Appellant addressed the
law of parties during voir dire and during the trial. During voir dire, the State went over
the law of parties using the classic bank robbery example to show how everyone who
27
was involved—including the person who drove and the person who went into the bank
with the shooter but did not exhibit a gun—would be guilty. The defense responded
in its portion of voir dire as follows:
[DEFENSE COUNSEL:] . . . [L]ike the prosecutor was explaining
earlier. It’s the classic law school example, the bank robbery example.
Okay?
And we could all be guilty under the law of parties, but if I just
happen to know you and we’re friends and I wasn’t part of it at all, am I
guilty?
VENIREPERSON: No.
[DEFENSE COUNSEL]: Why not? . . . .
VENIREPERSON: Because you didn’t -- you weren’t there. You
weren’t involved.
[DEFENSE COUNSEL]: I didn’t do anything. Right? But I know
all those people. I may have been friends with them. Right?
VENIREPERSON: Uh-huh.
The State in its opening statement told the jury that
[Appellant], that man over there, came up behind Nancy Howard on a
Saturday, August 18th of 2012, in her garage in Carrollton, came up
behind her, put his arm around her neck, and put a gun to her head,
demanded her purse. As she spun around, handed him her purse and her
Taco Bueno bag that she had just gone through the drive-through, he shot
her point-blank in the left temple.
The bullet traveled through her skull, down her throat, and lodged
in her left shoulder -- excuse me, her right shoulder, where it stands still
today.
They were complete strangers. This was a murder-for-hire plot,
and [Appellant] was the ultimate hitman.
28
During closing arguments, the State argued,
Ladies and gentlemen of the jury, on August 18th of 2012 in Grand Saline,
Texas, [Appellant] and Michael Speck got into a rented silver Nissan
Altima and left out on a mission that day, and that mission was to kill
Nancy Howard.
....
And as she pulled out of the parking lot having attended a [church]
service[ and] stopped at the Taco Bueno, there were two individuals who
were following her: Michael Speck and Michael Lorence. And as Nancy
made her way home and Michael Speck dropped off Michael Lorence in
that alleyway, there was one individual with a gun: Michael Lorence. And
there was one who approached Nancy, acted like it was a robbery, and
ended up shooting her in the face, almost killing her, taking her purse,
dumping it in a nearby oil cannister dumpster, and then ultimately making
their way back to Grand Saline, getting rid of the clothes and getting rid
of the gun on the way back.
....
This is the law in front of you: Then and there intentionally or
knowingly caused bodily injury to Nancy Howard by shooting Nancy
Howard with a firearm and during the commission of said assault used or
exhibited a deadly weapon, a firearm. Nothing about money exchanging hands,
nothing about meetings taking place. It’s simply whether or not the offense of
aggravated assault with a deadly weapon was committed.
And ultimately you have two options. The first being the charge as
indicted. And then we talked a lot about what we call the law of parties,
and we talked about that in voir dire. The common example used was the
bank robbery. If you and I are going to rob a bank, it doesn’t matter if
I’m the driver and you go in there and get the money and rob the bank.
It doesn’t matter if I’m the lookout. It doesn’t matter if I go in there and
get the money. As long as we’re working as a team aiding each other, then
we are both equally responsible for robbing that bank regardless of our
role. And that’s -- we talked about the law of parties, and that’s what you
see in the second paragraph. We talk about aiding or attempting to aid
Michael Speck.
29
And so what you ultimately have are what we call two charging
paragraphs. It’s kind of an “or” scenario. Did [Appellant] shoot Nancy
Howard, or did he aid or attempt to aid or direct or encourage Michael
Speck in the shooting of Nancy Howard? And that’s why you see those
two paragraphs in there for you to consider.
So we heard from a lot of different people in this case, and it was
quite the cast of characters. We’ll admit that. We don’t have saints for
witnesses. But when you want to dance with the devil, you’ve got to deal
with the demons first, and that’s the individuals who come before you in
cases like this when we’re talking about a big deal going on, when we’re
talking about ultimately shooting someone for potential money being
involved.
But at the end of the day, there’s only two, and it’s the final two
people who carried out this job, and that is Michael Speck and Michael
Lorence. [Emphasis added.]
The defense’s closing argument offered a theory of another shooter by
emphasizing that Dustin, Speck’s cousin, considered Billie, the person originally hired
to be the shooter, a father figure and had agreed that he (Dustin) wanted to make Billie
proud by taking over his role in the scheme. Defense counsel said, “And if you’re sitting
there at the end of this thinking, I wonder if it was Dustin? You are done, folks.” The
defense also pointed to Speck as the possible shooter: “And Billie Johnson, his
patriarch uncle, was the one who learned that -- who was orchestrating, puppeteering
this whole thing, learned Speck had done the shooting.” Right before defense counsel
ended her closing argument, she stated,
And so think about it, follow the law, and -- a note on the parties thing.
That only comes from Michael Speck. And they have never suggested
that he was anything other than the shooter, P.S. There is no evidence of
helping Michael Speck plan anything. Okay? So just consider that. And
then even if there were from Michael Speck, you have to have independent
30
corroboration of it, you know, in the law, and there’s not. There’s zero
because that did not happen.
The parties’ passing references to the law of parties and the vague references to
Appellant’s involvement in planning the shooting do not trump the charge in this case.
Based on the record and the jury’s finding pursuant to the charge’s principal
paragraph—that Appellant was not the shooter—we hold that the jury necessarily
decided that Appellant did not use or exhibit a firearm during the offense. And because
of the unique structure of the charging paragraphs, the jury’s finding that Appellant was
not the shooter forced it to find that Appellant was not liable as a party even if he
otherwise promoted or assisted in the plan to shoot Nancy. Under the conjunctive
language in the law-of-parties charge, the jury was required to render a “not guilty”
verdict if the State failed to prove just one of the three parts of the law-of-parties charge.
See State v. Sauceda, Nos. 14-96-00287-CR, 14-96-00288-CR, 1999 WL 1041499, at *3
(Tex. App.—Houston [14th Dist.] Nov. 18, 1999, pet. ref’d) (op. on remand, not
designated for publication) (“Under this charge, because all three factors were stated
conjunctively rather than disjunctively, the State had to prove all three in order to secure
a guilty verdict. Therefore, the jury could have returned a not[-]guilty verdict if any of
those three factors was not proved[.]” (footnote omitted)). Thus, we cannot say that
the jury necessarily made either of the first two findings under the law-of-parties charge
just because we know that the jury necessarily made the third finding—which
incorporated the deadly-weapon portion from the paragraph charging Appellant as the
31
shooter—and thus the necessarily made finding is precluding the jury from finding
Appellant guilty as a party.
Appellant tries to deflect attention away from the significance of the charge’s
language, but in the end, that effort is unavailing. Throughout Appellant’s brief, he
complains about the law-of-parties charge, which was submitted by the State over his
objection. He argues that the law-of-parties charge “vastly expand[ed] the conduct for
which [he] could be found guilty such that [he] could be found guilty if he had any role,
however[] insignificant, in the planned attack on [Nancy].” Appellant correctly points
out that “[t]he jury charge is one component to a complete analysis in this case” and
spends several pages of his brief setting forth some of the State’s references to a plan,
a scheme, or a plot, contending that “such references were a constant refrain from the
State throughout trial.” Despite the fact that the State referenced Appellant’s
involvement in the murder-for-hire scheme during the aggravated assault trial,11 we
must determine whether the State is collaterally estopped from prosecuting the
conspiracy offense based on what issues the jury necessarily decided, not on whether the
issue of Appellant’s involvement in the murder-for-hire scheme was emphasized during
the aggravated assault trial. See Ex parte McNeil, 223 S.W.3d 26, 30 (Tex. App.—
Houston [1st Dist.] 2006, pet. ref’d) (citing Watkins, 73 S.W.3d at 268–69). As explained
11
The State concedes in its brief, “It is true that the State did not hide from the
jury the fact that there was a conspiracy to kill Nancy Howard.”
32
above, the only issues that the jury necessarily decided were that Appellant was not the
shooter and that Appellant did not use or exhibit a firearm during the offense.
Appellant further argues that because he was acquitted “of the object of the
conspiracy – aggravated assault with a deadly weapon – both as the primary actor[] and
as a party,” the State is collaterally estopped from trying him for conspiracy. Appellant
cites a conspiracy case that correctly sets forth the law but deals with a different factual
scenario than the one presented here. Appellant relies on Acuña v. State, in which Acuña
was acquitted of murder following a trial in which a parties charge was submitted. No.
13-13-00633-CR, 2016 WL 744712, at *1, *6 (Tex. App.—Corpus Christi–Edinburg
Feb. 25, 2016, no pet.) (mem. op., not designated for publication). The State then tried
Acuña for conspiring to commit the same murder, and a jury found her guilty of
conspiracy. Id. at *1, *6–7. The court of appeals reversed, holding that “[i]n this case,
there is no perceptible difference between, on the one hand, performing an act ‘with
intent to promote or assist’ [the victim’s] murder, and on the other hand, performing
the same act ‘in pursuance of’ an agreement to commit the same murder” and that “the
2011 jury [in the murder trial] already necessarily decided the issue of whether Acuña
performed one of the specified acts ‘in pursuance of’ an agreement to murder [the
victim]—an essential element of the conspiracy offense.” Id. at *10. Acuña is
distinguishable because here, although Appellant was acquitted as the shooter, it cannot
be said that the jury necessarily decided that he had no role as a party in helping plan
33
the shooting; the conjunctive law-of-parties charge relieved the jury of necessarily
deciding that issue.
Accordingly, based on what the jury was required to decide in the principal
charging paragraph and the law-of-parties charge, as well as the evidence and arguments
presented at trial, the jury necessarily decided only that Appellant was not the shooter
and did not use or exhibit a firearm during the offense.
2. Whether the necessarily decided issues constitute essential
elements of conspiracy
We now move to the second step of the Ashe collateral-estoppel analysis and
determine whether the necessarily decided issues constitute essential elements of the
conspiracy offense. Based on the analysis that follows, we conclude that the necessarily
decided issues—that Appellant was not the shooter and that he did not use or exhibit
a firearm—are not essential elements of Appellant’s conspiracy charge.
The indictment in the conspiracy case states as follows:
THE GRAND JURORS, in and for the County of Denton, State of
Texas, duly organized, impaneled, and sworn as such, at the January Term,
A.D., 2013, of the District Court of the 158th Judicial District in and for
said county and state, upon their oaths, present in and to said Court that
MICHAEL LORENCE, who is hereinafter styled defendant, pursuant to
one scheme or continuing course of conduct that began on or about the
15th day of February[] 2010, and continued until on or about the 18th day
of August[] 2012, and anterior to the presentment of this Indictment, in
the county and state aforesaid, did then and there, with intent that Capital
Murder, a felony, be committed, agree with Stacey Serenko, Dustin
Hiroms, Stephanie Delacerda, Anthony Rendine, Ryan Rogers, Michael
Speck, Billie Johnson[,] and John Howard that they or one of them would
engage in conduct that would constitute said offense, to-wit: cause the
death of Nancy Howard in exchange for money, and Stacey Serenko,
34
Dustin Hiroms, Stephanie Delacerda, Anthony Rendine, Ryan Rogers,
Michael Speck, Billie Johnson[,] and John Howard performed an overt act
in pursuance of said agreement, to-wit: embezzled money to pay to have
Nancy Howard murdered, had phone conversations regarding the
conspiracy to commit the Capital Murder of Nancy Howard, received and
sent texts regarding the conspiracy to commit Capital Murder of Nancy
Howard, procured photos of Nancy Howard, paid to have Nancy Howard
murdered, accepted payment for murdering Nancy Howard, met with one
or more of the co-conspirators, drove by Nancy Howard’s house,
followed Nancy Howard, performed surveillance on Nancy Howard, took
photos of Nancy Howard’s house, and shot Nancy Howard with a
firearm[.]
The essential elements of conspiracy in this case include an intent that capital murder
be committed, an agreement with the named individuals that one of them would engage
in conduct that would cause Nancy’s death in exchange for money, and the named
individuals acted in furtherance of that agreement by performing various tasks leading
up to and including shooting Nancy.
As set forth in the preceding analysis, the issues necessarily decided by the jury
in the aggravated assault trial were whether Appellant was the shooter and whether he
used or exhibited a firearm, and the jury found by its verdict that Appellant was not the
shooter and that he did not use or exhibit a firearm. See Ashe, 397 U.S. at 445, 90 S. Ct.
at 1195; Murphy, 239 S.W.3d at 795. The State is therefore collaterally estopped from
relitigating those issues. See McNeil, 223 S.W.3d at 31 (citing Watkins, 73 S.W.3d at 269).
However, collateral estoppel does not bar the State from prosecuting Appellant for a
conspiracy relating to Nancy’s shooting.
35
Here, by finding Appellant not guilty of aggravated assault with a deadly weapon,
the jury necessarily found only that Appellant did not shoot Nancy or use or exhibit a
firearm; these are not essential elements of the conspiracy charge in this case.
Furthermore, contrasting the allegations in the conspiracy indictment with the
aggravated assault indictment12 and the jury charge in the aggravated assault
prosecution, it is apparent that the issues are not identical. Due to the conjunctive
nature of the law-of-parties charge in the aggravated assault trial, a rational jury could
have grounded its verdict solely on the issue of whether Appellant used or exhibited a
firearm during the offense without addressing whether Appellant helped plan the
shooting. Thus, the issues that the jury necessarily decided in the aggravated assault
trial are not essential elements of the offense of conspiracy as charged in Appellant’s
indictment. See id. at 32.
The indictment in the aggravated assault case is as follows:
12
THE GRAND JURORS, in and for the County of Denton, State of
Texas, duly organized, impaneled, and sworn as such, at the July Term,
A.D., 2014, of the District Court of the 362nd Judicial District in and for
said county and state, upon their oaths, present in and to said Court that
MICHAEL LORENCE, who is hereinafter styled defendant, on or about
the 18th day of August[] 2012 and anterior to the presentment of this
Indictment, in the county and state aforesaid, did then and there
intentionally or knowingly cause bodily injury to [Nancy] by shooting
[Nancy] with a firearm, and the defendant did then and there, during the
commission of said assault, use or exhibit a deadly weapon, to-wit: a
firearm[.]
36
3. Disposition of Appellant’s Appeal
Because Appellant did not meet his burden of showing that the jury in the
aggravated assault trial necessarily decided that he did not help plan Nancy’s shooting,
collateral estoppel does not preclude his prosecution for conspiracy. See Adams, 586
S.W.3d at 8; Sauceda, 1999 WL 1041499, at *4. Accordingly, we hold that the trial court
did not abuse its discretion by denying Appellant’s pretrial application for writ of habeas
corpus seeking relief from double jeopardy based on collateral estoppel, and we
overrule Appellant’s sole issue.
V. The State’s Appeal 13
In its sole issue, the State argues in its cross-appeal that because the only issue
the jury decided against the State dealt with the identity of the shooter, the trial court
abused its discretion when it suppressed evidence that went beyond that issue.
13
At the outset of the State’s appeal we note that Article 44.01 of the Texas Code
of Criminal Procedure allows the State to appeal certain matters. See generally Tex. Code
Crim. Proc. Ann. art. 44.01(a)(5). In construing this statute, the Texas Court of Criminal
Appeals has held that Article 44.01 is not limited solely to pretrial rulings that suppress
“illegally obtained” evidence. State v. Medrano, 67 S.W.3d 892, 903 (Tex. Crim. App.
2002). Article 44.01(a)(5) permits the State to “appeal an adverse ruling on any pretrial
motion to suppress evidence as long as the other requirements of the statute are met,”
including a motion to exclude. Id. Here, the State’s prosecuting attorney has met the
remaining requirements of the statute by certifying to the trial court that jeopardy has
not attached, the appeal is not taken for the purpose of delay, and the evidence
suppressed by the trial court is of substantial importance in this case. See Tex. Code
Crim. Proc. Ann. art. 44.01(a)(5).
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A. The Evidentiary Exclusions
As mentioned above, although the trial court denied Appellant’s pretrial
application for writ of habeas corpus, the trial court granted many of Appellant’s
requests for evidence to be excluded from the conspiracy trial. Specifically, the trial
court excluded “all of the items [that] the State and [Appellant] agreed on, as listed in
the State’s Response to Defense Proposed Exclusions, pages two through fifteen, in
addition to the following:” all photo lineups; all photos of Appellant, with the
exceptions he requested; the agreed portions of the 911 call (State’s Exhibit 56); the
agreed portions of Appellant’s interview (State’s Exhibit 299); Misti’s second statement
(State’s Exhibit 328); and seven other items from the 2019 trial. The trial court also
excluded “all of the items [that] the State and Appellant agreed on, as listed in the State’s
Response to Defense Proposed Exclusions From 2015 Trial, pages two through
eleven,” in addition to twenty-two listed items. The trial judge explained his rationale
for excluding various evidence when he stated at the hearing that “if anything [was]
pointing to [Appellant] as the shooter, then that’s excluded” because it would “violate
collateral estoppel or double jeopardy with regard to going further on a conspiracy
case.” On appeal, the State challenges only the following evidentiary exclusions, which
are from the 2019 trial unless otherwise specified:
• Misti’s testimony about why Speck and Appellant left town, that they reserved a
room, and that they returned that night;
38
• Investigator Wall’s testimony that there appeared to be two people in the car
based on surveillance footage;
• All of Vollintine’s testimony;
• Investigator Wall’s testimony about whether he had found any evidence relating
to a Facebook conversation, text message, or communication about “a job six
feet under, nails in a coffin, or anything like that”;
• Kayla’s testimony from the 2015 trial that Appellant knew what the job was, that
he was good with the job, and that he had a gun prior to the shooting;
• Speck’s testimony from the 2015 trial that it was down to him and Appellant to
finish the job, that he and Appellant had spoken on the phone about a murder-
for-hire job in Texas, that he had shown Appellant a picture of Nancy and her
car, that the purpose of renting the car was to drive to do the shooting, that they
went to Ross to buy clothes and about what they had bought, about a specific
time when he was supposed to see Nancy, about following Nancy to church,
about whether he or Appellant had gloves, and about whether he or Appellant
had the gun; and
• Investigator Wall’s testimony from the 2015 trial that there was a passenger in
the car and about trying to enhance the surveillance video.
39
The State agrees that evidence of Appellant as the shooter cannot be admitted in the
conspiracy trial but contends that the above testimony does not identify Appellant as
the shooter.
B. Standard of Review
Like any ruling on the admission of evidence, a trial court’s ruling on a motion
to suppress14 is reviewed for an abuse of discretion. Amador v. State, 275 S.W.3d 872,
878 (Tex. Crim. App. 2009); see also Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim.
App. 2000) (applying abuse-of-discretion standard when reviewing the trial court’s
decision to exclude evidence). Therefore, we must uphold the trial court’s ruling if it is
reasonably supported by the record and is correct under any theory of law applicable to
the case. Amador, 275 S.W.3d at 878–79; see also Hereford v. State, 339 S.W.3d 111, 117–
18 (Tex. Crim. App. 2011); Stevens, 235 S.W.3d at 740; Armendariz v. State, 123 S.W.3d
401, 404 (Tex. Crim. App. 2003).
As explained in Medrano, there is no difference between a “motion to suppress”
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and a “motion to exclude”:
Texas law concerning pretrial motions . . . under article 28.01, § 1(6)[]
do[es] not distinguish between a “motion to suppress evidence” and a
“motion to exclude evidence.” There was no reason for the Texas
legislature to include “motion to exclude” in article 44.01 because it is not
found in article 28.01, either. There is no such statutory term in Texas law
as a pretrial “motion to exclude,” either for the defendant to file or for the
State to appeal.
67 S.W.3d at 901. We therefore treat Appellant’s proposed exclusions, which were
developed in response to the trial court’s request at the conclusion of the writ hearing,
as a motion to suppress evidence from the conspiracy trial.
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We defer almost totally to the trial court’s rulings on questions of historical fact
and application-of-law-to-fact questions that turn on evaluating credibility and
demeanor, but we review de novo application-of-law-to-fact questions that do not turn
on credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.
2007); Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68
S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
In other words, we view the evidence in the light most favorable to the trial
court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); State v. Kelly,
204 S.W.3d 808, 819 (Tex. Crim. App. 2006). We then review the trial court’s legal
ruling de novo unless its explicit fact findings that are supported by the record are also
dispositive of the legal ruling. Kelly, 204 S.W.3d at 818.
C. Analysis
The State contends that “[b]ecause none of the [challenged] testimony
specifically identified [Appellant] as the shooter, collateral estoppel did not require its
suppression[.]” The State relies on a Fifth Circuit case and a case from the Houston
First District Court of Appeals in support of its argument. But holdings of the Fifth
Circuit are not binding on the Texas Court of Criminal Appeals or on this court, see
Stewart v. State, 686 S.W.2d 118, 121 (Tex. Crim. App. 1984); Villarreal v. State, 267
S.W.3d 204, 208 (Tex. App.—Corpus Christi–Edinburg 2008, no pet.) (“Fifth Circuit
precedent is not binding on Texas courts[.]”), and neither are decisions of our sister
courts. See Landaverde v. State, Nos. 05-19-00175-CR, 05-19-00176-CR, 2020 WL
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2897108, at *10 (Tex. App.—Dallas June 3, 2020, pet. filed) (mem. op., not designated
for publication); Delamora v. State, 128 S.W.3d 344, 359 (Tex. App.—Austin 2004, pet.
ref’d). Additionally, neither the Fifth Circuit case nor the case from the First Court of
Appeals analyzes the admissibility of specific pieces of witnesses’ testimony. In U.S. v.
Brackett, the Fifth Circuit reversed the district court, which had concluded that all evidence
introduced in the possession of the prosecution must be suppressed in the conspiracy
trial. 113 F.3d 1396, 1400, 1402 (5th Cir. 1997). In McNeil v. State, an appeal from
McNeil’s arson conviction, the First Court of Appeals reviewed the admissibility of
evidence—that a child was found dead in the house—in the arson trial after McNeil’s
earlier acquittal of capital murder; McNeil is thus not in the same procedural posture, as
the First Court was not making a pretrial determination on evidence that should be
suppressed in a later trial on a different offense. 398 S.W.3d 747, 755–56 (Tex. App.—
Houston [1st Dist.] 2011, pet. ref’d). Both Brackett and McNeil are therefore
distinguishable.
As noted by Appellant,
it is important to recognize that there are no appellate opinions identified by
the State nor known to [defense] counsel that do what the State requests
this [c]ourt of [a]ppeals to do in its cross-appeal: sit as if it were the trial
court and make pretrial rulings about the admissibility of a plethora of
evidentiary issues prior to trial. Indeed, that is exactly what the standard
of abuse of discretion prohibits an appellate court from doing.
Instead, viewing the evidence in the light most favorable to the trial court’s ruling, as
we are required to do, we cannot say that the trial court—who sat through both the
42
2015 trial and the 2019 trial, saw the witnesses, and heard all of the testimony—abused
its discretion by excluding the challenged evidence that the State seeks to admit during
the conspiracy trial. The trial court was in the best position to judge the credibility and
the demeanor of the witnesses and to determine whether the challenged evidence points
to Appellant as the shooter and thus must be excluded from the conspiracy trial. We
therefore decline the State’s invitation to reevaluate the witnesses’ credibility. See Thomas
v. State, No. 09-16-00232-CR, 2018 WL 915194, at *4 (Tex. App.—Beaumont Feb. 14,
2018, no pet.) (mem. op., not designated for publication) (stating that in a bench trial,
the trial judge is the sole judge of the credibility of the witnesses and that we do not
reevaluate the weight and credibility of the evidence produced at trial or substitute our
judgment for that of the factfinder) (citing Johnson v. State, 571 S.W.2d 170, 173 (Tex.
Crim. App. [Panel Op.] 1978), and King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App.
2000)).
Based on the abuse-of-discretion standard of review that we are required to
apply, 15 we hold that the trial court did not abuse its discretion by ruling that the
challenged testimony should be excluded from the conspiracy trial. Accordingly, we
overrule the State’s sole issue.
15
Both the State and Appellant agree that this is the standard that applies here.
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VI. Conclusion
Having overruled Appellant’s sole issue, we affirm the portion of the trial court’s
order denying relief on Appellant’s pretrial application for writ of habeas corpus seeking
to be free from double jeopardy based on collateral estoppel. Having overruled the
State’s sole issue in its cross-appeal, we affirm the remainder of the trial court’s order
that includes the challenged evidentiary exclusions.
/s/ Dabney Bassel
Dabney Bassel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: September 3, 2020
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