I respectfully dissent. Calvin Loyd Padgett brings this appeal from an order of the district court denying him habeas corpus relief which we treat as application for writ of prohibition. In the present case Padgett seeks to prevent the State from seeking the death penalty in his pending trial for capital murder of one of three victims who were slain in one criminal episode. The State sought and failed to obtain the death penalty in a preceding trial for capital murder of one of the other three victims. Padgett contends that the principle of collateral estoppel bars the State from again seeking the death penalty against him. I agree. In my view the majority allows the State to again seek the death penalty after the ultimate fact issue of future dangerousness was resolved against the State in the prior trial. In my view the majority's holding violates the doctrine of collateral estoppel. Accordingly, I would grant the writ of prohibition.
We have jurisdiction over this appeal by virtue of Ex parte Robinson, 641 S.W.2d 552 (Tex.Cr.App. 1982). If a defendant properly raises a jeopardy issue prior to a second trial by application for writ of habeas corpus, an adverse decision on that application is immediately appealable to the court of appeals. 641 S.W.2d at 555 and n. 7. If a defendant is to avoid exposure to double jeopardy, his double jeopardy challenge must be reviewable before the subsequent exposure occurs. Abney v. United States, 431 U.S. 651, 660-662, 97 S.Ct. 2034, 2040-2041, 52 L.Ed.2d 651, 662 (1977). This same rule is applicable to a collateral estoppel challenge. Indeed, in Robinson the Court of Criminal Appeals reviewed a collateral estoppel claim in a habeas corpus appeal. 641 S.W.2d at 556. Although Padgett has advanced his claim by habeas appeal, at oral argument he stated that the true remedy he sought was a writ of prohibition; accordingly, the majority correctly treats this appeal as an application for writ of prohibition.
The record before us indicates that Padgett killed three people during the robbery of a restaurant in Titus County. Padgett was indicted by a Titus County grand jury on three capital murder charges. These three cases, cause numbers 10,082-10,084, were assigned to the 276th Judicial District Court of Titus County. On August 22, 1983, Padgett was brought to trial in cause no. 10,082, and that trial resulted in a conviction for capital murder. The trial court then conducted a punishment hearing and evidence was heard on the three punishment issues provided by TEX CODE CRIM.PROC.ANN. art. 37.071 (Vernon 1981).1 The bulk of the testimony was directed at the second punishment issue, i.e., whether Padgett would likely commit criminal acts of violence that would constitute a continuing threat to society. See TEX CODE CRIM.PROC.ANN. art. 37.071(b)(2). The jury returned a verdict answering the first and third punishment issues in the affirmative; however the jury did not answer the second issue.2 *Page 308 The trial court asked the jury if it had indeed failed to answer this issue and the jury responded in the affirmative. The court then asked the prosecutor and Padgett's counsel if they had any objections to the verdict. None was offered. The court thereupon accepted the verdict without requiring further deliberations and sentenced Padgett to life imprisonment, the only alternative available under Article 37.071.3
On November 7, 1983, pretrial hearings were scheduled in cause no. 10,083. Padgett's motion for change of venue was granted and this case was transferred to Dallas County, where it was assigned to the Criminal District Court Number Five of Dallas County, Texas. In that court, Padgett filed his application for writ of habeas corpus and the trial court denied relief. There, as here, Padgett contends that the State cannot again seek the death penalty when the issue of future dangerousness has been once litigated and resolved adversely to the State.
"Collateral estoppel is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply 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." Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469, 475 (1970). This principle precludes the government from relitigating issues determined in a prior judgment favorably to a defendant. United States v. Nelson, 599 F.2d 714, 716 (5th Cir. 1979). Therefore, we must examine the record to determine whether the issue of Padgett's future dangerousness has been resolved by a valid and final judgment. We must apply the principle of collateral estoppel with "realism and rationality," Ashe, 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475, while recognizing that "collateral estoppel does not have the surgical precision found in double jeopardy, for its basics are founded in equity and therefore command some flexibility." United States v. Larkin,605 F.2d 1360, 1369 (5th Cir. 1979), cert. denied,466 U.S. 939, 100 S.Ct. 2160, 64 L.Ed.2d 793 (1980). In Ashe, the accused allegedly robbed six poker players. Each was a separate and distinct offense. But the issue was not the character of these offenses. The issue was:
whether, after a jury determined by its verdict that the petitioner [Ashe] was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again. 397 U.S. 446, 90 S.Ct. 1195, 25 L.Ed.2d 477.
Therefore, in applying the principle of collateral estoppel in the present case, we must ask whether an issue of ultimate fact with respect to the entire criminal episode was litigated and resolved favorably to Padgett.
It is obvious that the issue of Padgett's future dangerousness was litigated at the first trial. It is also obvious that this issue was an issue of ultimate fact with respect to the entire criminal episode that was litigated and resolved adversely to the State in the first trial. During the guilt-innocence phase of trial, the State presented evidence of all three killings. The court's charge on punishment, of course, allowed the jury to consider all evidence introduced at trial in their deliberations. The State also introduced evidence of Padgett's prior criminal record. Finally, the State called as a witness Dr. Clay Griffith, who testified that Padgett would be a continuing threat to society based on a hypothetical question containing Padgett's prior criminal record, the facts of the charged offense, and the facts of the other two killings.
The jury, however, failed to answer the second punishment issue. Thus, we must consider the effect of their failure to do so. *Page 309 The State argues that the jury made no finding on the second punishment issue, and that, therefore, the doctrine of collateral estoppel does not apply. The appellant argues that the jury's failure to answer constitutes a legislative required "no" answer. I agree with the appellant. Although the jury was unable to resolve this issue, the Code of Criminal Procedure treats the inability to reach an answer the same as a negative answer; in both cases, the defendant may not be sentenced to death and instead must be sentenced to life imprisonment. TEX CODE CRIM.PROC.ANN. art. 37.071(e) (Vernon Supp. 1984). Thus, the result of the jury's failure to answer an issue is a legislative directed negative answer. Because the legislature has chosen to give the same result to both a jury "no" and a jury "blank" finding, we are compelled to honor this choice. Accordingly, I would hold that the jury's failure to make a finding on the issue of future dangerousness constitutes a negative finding on this issue for purposes of the application of collateral estoppel.4
I recognize that there is legislative history showing that Article 37.071(e) was enacted for the purpose of preventing a mistrial when a jury is unable to answer one of the special punishment issues. HOUSE COMM. ON JURISPRUDENCE, BILL ANALYSIS, TEX. H.B. 1164, 67th Leg. (1981). Whatever the underlying purpose may be, the legislature, however, has determined that the failure to answer a punishment issue shall be treated the same as a negative answer, and we may not fashion a different rule.
In light of my conclusion that the second punishment issue was answered "no," I turn to a consideration of the effect of that negative answer. In Sanne v. State, 609 S.W.2d 762, 766-767 (Tex.Cr.App. 1980), the court held that, once a jury had answered the second punishment issue in the negative, upon reversal and retrial, the constitutional protections against double jeopardy prohibited the State from again seeking the death penalty. I see no reason for a different result when the doctrine of collateral estoppel is invoked. Thus, I conclude that the legislative "no" answer requires that the relief sought be granted. The issue of Padgett's future dangerousness was thoroughly litigated in the first trial. The jury heard evidence of all three killings, Padgett's prior criminal record, and psychiatric testimony on this issue. The jury was unable to determine whether Padgett would constitute a continuing threat to society with respect to this entire criminal transaction and the other available evidence. I would hold, therefore, that the doctrine of *Page 310 collateral estoppel bars the State from again litigating this issue in a trial for the killing of another one of the victims.
Therefore, should Padgett be convicted of capital murder in this pending case, I would order the judge of the Criminal District Court Number Five of Dallas County to sentence Padgett to life imprisonment without hearing evidence on any of the special punishment issues of Article 37.071. Accordingly, in my view, an appropriate writ of prohibition should issue from this court.
WHITHAM, J., joins in this dissent.
(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.
TEX CODE CRIM.PROC.ANN. art. 37.071(b)(1)-(3).
(d) The court shall charge the jury that:
(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.
TEX CODE CRIM.PROC.ANN. art. 37.071(c) and (d).
The court of appeals held that the trial court was not collaterally estopped from considering the aggravating factor; the court held that there was no conclusive jury finding on the presence or absence of the aggravating factor. 53 Ill.December 20, 423 N.E.2d 212. The defendant argued that the jury's inability to resolve the issue constituted a finding that the aggravating factor was not present. The court termed this "a strained construction of general statutory language." 53 Ill.December 21, 423 N.E.2d 213.
I find Hipkins to be distinguishable from the case before us. Unlike the Illinois statute, article 37.071(e) gives the same effect to the failure to make a finding as a negative finding. Thus, it is not a "strained reading" of statutory language to say that under article 37.071(e), the lack of a finding is equivalent to a negative finding.