This appeal is taken from an order of Criminal District Court No. 5 which denied habeas corpus relief. The relator contends that the trial court erred by refusing to grant his pre-trial special plea of former jeopardy and by refusing to prohibit the State from seeking the death penalty in Cause No. F-88-86740-L. Appeal was brought to this court under the authority of Ex parte Robinson, 641 S.W.2d 552, 555 (Tex.Cr.App. 1982) seeking reversal of the trial court's denial as well as a writ of prohibition preventing future consideration of the death penalty. We disagree, affirm the trial court's denial of habeas relief, and deny application for a writ of prohibition.
On May 10, 1982, three employees of the Pizza Hut restaurant in Mt. Pleasant were found brutally stabbed, beaten, and shot to death. The relator, Calvin Loyd Padgett, was subsequently indicted by a grand jury in Titus County on three separate capital murder allegations. Cause Nos. 10,082, 10,083, and 10,084 alleged that Padgett intentionally caused the death of Howard McClaflin, Shirley Thompson, and George Landram respectively, while committing robbery.
On August 22, 1983, trial commenced in Titus County on the allegations contained in Cause No. 10,082. On September 20, 1983, the jury returned a verdict of guilty of capital murder. The trial proceeded to the punishment phase. Pursuant to TEX CODE CRIM.PROC.ANN. art. 37.071 (Vernon 1981 and Vernon Supp. 1984), the jury was presented with three special issues for determination. The jury answered special issues No. 1 and No. 3 in the affirmative. The jury failed to answer special issue No. 2 in either the affirmative or negative. In accordance with article 37.071(e), the trial court sentenced the defendant to confinement for life.
On November 7, 1983, Cause No. 10,083 was called for pre-trial hearing in Titus County. Defendant's motion for a change of venue was granted and the cause was transferred to Dallas County. This action was assigned Dallas County Cause No. F83-86740-L in Criminal District Court No. 5.
On February 1, 1984, the relator filed a pre-conviction writ of habeas corpus in the trial court with a special plea of former jeopardy. Padgett sought an order directing that the prosecution be restrained from seeking the death penalty in Cause F83-86740-L. Specifically, Padgett maintained that the jury's inability to answer special issue No. 2 in the previous trial amounted to a negative finding. Padgett asserts, therefore, the State was collaterally estopped from again litigating that particular issue under the rule originally advanced in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). The relief sought was denied and Padgett appeals from the denial.
Whether a non-finding by a jury in a capital murder trial during the punishment phase collaterally estops the prosecution from seeking the death penalty at subsequent prosecution involving a different victim murdered at the same transaction appears to be a matter of first impression in Texas.
Article 37.071 provides in pertinent part:
* * * * * *(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; . . .* * * * * *
(d) The court shall charge the jury that:*Page 305(1) it may not answer any issue "yes" unless it agrees unanimously; and
(2) it may not answer any issue "no" unless 10 or more jurors agree.
(e) If the jury returns an affirmative finding on each issue submitted under this article, the court shall sentence the defendant to death. If the jury returns a negative finding on or is unable to answer
any issue submitted under this article, the court shall sentence the defendant to confinement in the Texas Department of Corrections for life. . . .1
The Court of Criminal Appeals examined the impact of article 37.071 in Molandes v. State, 571 S.W.2d 3, 4 (Tex.Cr.App. 1978). In Molandes, the court held the provisions of the statute allowing the issues to be negatively answered with the concurrence of only ten jurors did not violate the defendant's right to a unanimous verdict under TEX. CONST. art. V, Sec. 13 or TEX CODE CRIM.PROC.ANN. art. 36.24 (Vernon 1981). In affirming, Judge Odom opined:
Molandes, 571 S.W.2d at 4.The provision here under attack, however, inures to the defendant's benefit in that it allows a favorable verdict resulting in life imprisonment to be returned on agreement of ten jurors, whereas the position urged by appellant would require a defendant in such circumstances to face the ordeal of a retrial and the possibility of a death-producing verdict by a new jury. We hold the constitutional right to a unanimous verdict in felony cases extends only to the return of a verdict adverse to the accused, and that the legislature may provide for the return of a verdict favorable to the accused on less than unanimous agreement.
In Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App. 1980), the court examined the proper disposition when an appellate court reversed for insufficiency of evidence the jury's affirmative answer to special issue No. 2. The court concluded the principle of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) barred seeking the death penalty on retrial. In Sanne v. State, 609 S.W.2d 762 (Tex.Cr.App. 1980) the court relied on Brasfield and held that once a jury answers no to special issue No. 2 the defendant should not be subjected to the threat of receiving death at retrial.
Padgett maintains that the jury's failure to answer special issue No. 2 is analogous to a negative finding under article 37.071. He reasons that since the statute provides that a negative finding or no finding at all dictates imposition of life imprisonment, the issue has been finally determined. This contention is without merit.
Prior to 1981, article 37.071 did not provide for disposition of a case when the jury was unable to answer one or more of the punishment issues. The trial court was forced to declare a mistrial as in all other criminal cases where the jury is unable to agree on punishment. See TEX CODE CRIM.PROC.ANN. art. 37.07, Sec. 3(c) (Vernon 1965). In order to avoid having the lengthy delay and great expense of retrying the guilt/innocence and punishment of the defendant for capital murder, the legislature sought to eliminate this situation.2 In light of the constitutional requirement that a unanimous verdict is required unless a less than unanimous verdict inures to the benefit of the accused, Molandes, 571 S.W.2d at 4, the legislature had few alternatives in dealing with the hung-jury/retrial situation in capital cases.
An almost identical situation to the case at bar was recently addressed by an Illinois appellate court. In People v. Hipkins, 97 Ill. App.3d 174, 53 Ill.December 16, 423 N.E.2d 208 (1981) (reh'g denied) the defendant appealed from a 50 to 100 year sentence. After returning a guilty verdict the jury was asked to determine whether the defendant had acted intentionally, or with knowledge that the acts which caused the death created a strong possibility of death or great bodily harm. The jury returned a verdict indicating they were unable to unanimously find that the factor of aggravation existed. At a subsequent sentencing hearing before the court the defendant *Page 306 argued the predicate aggravating factor could not be considered because collateral estoppel barred subsequent determination of a matter previously resolved in the defendant's favor. In rejecting the appellant's contention the court squarely addressed the applicability of the collateral estoppel doctrine to a jury's inability to answer a death penalty special issue:
Hipkins, 97 Ill. App.3d 174, 53 Ill.December at 20, 423 N.E.2d at 212.The essential problem with the estoppel argument advanced by the defense is the fact that the jury did not affirmatively find that the aggravating factor did not exist. Rather, the jury was unable to unanimously find that the factor did exist. From the record, then, all that can be concluded is that the jury was unable to reach a unanimous conclusion about the presence or absence of the aggravating factor. Thus there was never any conclusive decision by the jury on this factual issue sufficient to act as a bar by way of estoppel. While collateral estoppel applies to criminal proceedings, an essential predicate to its application is the presence of a valid and final determination of an issue of ultimate fact. (People v. Ward (1978), 72 Ill.2d 379, 382, 21 Ill.December 178, 381 N.E.2d 256.) So, even assuming, arguendo, that collateral estoppel or some variant thereof, would preclude a trial judge from finding the presence of an aggravating factor after a jury had conclusively decided its absence, in the instant case there was no final and conclusive determination by the jury of the factual issue concerning the presence or absence of the aggravating factor of knowledge. The defense argues that the statutory language in Section 9-1(g) (Ill.Rev.Stat. 1977, ch. 38, par. 9-1(g))3 transforms the lack of an affirmative finding on the question into an affirmative finding that the factor did not exist. We disagree. In applying collateral estoppel, the courts are obliged to look with "realism and rationality" in addressing the issue concerning which factual questions were actually decided previously, so as to act as a bar. (People v. Ward (1978), 72 Ill.2d 379, 384, 21 Ill.December 178, 381 N.E.2d 256.) The inquiry must be set in a practical framework and viewed with an eye to all the circumstances of the proceedings. (72 Ill.2d 379, 384, 21 Ill.December 178, 381 N.E.2d 256.) It is clear from the jury's verdict that it was unable to make an affirmative finding either way on the factual question of the defendant's knowledge. A strained construction of general statutory language will not transform such a failure to reach a finding into a finding so that the principles underlying estoppel will be applied in the instant case.
In Texas, as in Illinois, the Court of Criminal Appeals has held that in order to invoke the doctrine of collateral estoppel an issue of fact must have been resolved ordetermined to bar relitigation. See Welch v. State,543 S.W.2d 378, 382 (Tex.Cr.App. 1976); Lamberson v. State,509 S.W.2d 328, 329 (Tex.Cr.App. 1974); Jones v. State, 514 S.W.2d 255, 256 (Tex.Cr.App. 1974). In the instant situation the jury was unable to answer special issue No. 2. This inability to answer did not amount to a determination, and therefore, the doctrine of collateral estoppel does not apply.
We hold the State is not precluded from seeking the death penalty in Cause No. F-88-86740-L. The trial court's denial of
*Page 307 habeas corpus relief is affirmed and relator's application for a writ of prohibition is denied.
Unless the jury unanimously finds that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to a term of imprisonment under Chapter V of the Unified Code of Corrections.