# Hutchings v. State

> Court of Criminal Appeals of Texas · March 17, 1971 · 466 S.W.2d 584

URL: https://www.frixlaw.com/law-library/cases/9682560

## Case

- **Full name:** John Allen HUTCHINGS, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** March 17, 1971
- **Citations:** 466 S.W.2d 584; 1971 Tex. Crim. App. LEXIS 1793
- **Precedential status:** Published
- **Opinion:** Concurrence by Onion
- **Judges:** Morrison, Onion
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

ONION, Presiding Judge
(concurring).
In Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 , the United States Supreme Court declared the double jeopardy provisions of the Fifth Amendment applicable to the states overruling Palko v. Connecticut, 302 U.S. 319 , 58 S.Ct. 149 , 82 L.Ed. 288 . And North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 *586 L.Ed.2d 656 , accorded the Benton holding full retroactive effect. See also Ashe v. Swenson, 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 .
In Ashe v. Swenson, supra, the court held that the federal rule of collateral es-toppel is embodied in the Fifth Amendment’s guaranty against double jeopardy. Noting that “collateral estoppel” is an awkward phrase, the court said: “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.”
In Ashe, which involved an armed robbery of six poker players, the federal rule of collateral estoppel made wholly impermissible a second trial for the robbery of one of the players where the single rationally conceivable issue in dispute before the jury, which had acquitted the defendant in an earlier trial for the robbery of another of the players, was whether the defendant had been one of the robbers.
The court was careful to point out the approach to be used in applying the rule of collateral estoppel. The court wrote:
“The federal decisions have made clear 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 with an eye to all the circumstances of the proceedings.’ Sealfon v. United States, 332 U.S. 575, 579 , 68 S.Ct. 237, 240 [ 92 L.Ed. 180 , 184]. 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.”
In the case at bar we do not have before us the record of the prior proceeding. The indictment, evidence, 1 court’s charge and other relevant matters of prior proceedings were not brought forward in this record. Although this case was tried after the decision in Ashe, it was not tried with that case in mind.
In light of these circumstances, I concur in the result that we are unable to determine the applicability of Ashe.
The prosecution relies upon Articles 1399 and 1400, Vernon’s Ann.P.C., to sustain its position. In a case where the rule of collateral estoppel is clearly applicable, the continued viability and constitutionality of these statutes will have to be decided by this court. In light- of the record, this case on direct appeal is not that case.
For the reasons stated, I concur.
. There was an attempt at a stipulation as to the evidence of the prior trial, but it is not clear that it was entered into by all the parties.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9682560. Public record. Not legal advice.