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Cause No. 1357233 

In Re. V~ncent E. Beasley 

Relator, Pro-Se 

vs .: 

Honorable, Jean Hughes 

Devon Anderson, Dist. Attorney, ~ 

Respondent. ~ 

In the District Court of 

Harr J!~i~pymt ~~~~~s some 

pages that ar'e of poor quality 

at the time of imaging. 

the 228th Judicial Di~trict 

RECEIVED IN 

COURT OF CRIMINAL APPEALS 

APPLICATION FOR WRIT OF MANDAMUS ·OCT 19 2015 

TO THE HONORABLE JUDGE OF SAID COURT: A~~\~os~a, C~e~rk COMES NOW, Vincent E. Beasley, TDCJ-ID #1867323, Relator, pro 

se in the above Stylea and Numbered Cause of action and files this 

Original Application for Writ of Mandamus, pursuant to the Texas 

Constitution Art. 1. §10 and Tex. Const. Art. 1 §14, written in the 

U.S:C.A Const. A~end IV. V Mandated and Recognized In the First Court 

of Appeals (Hou .• 1st Dist) further set In the United States Court 

of Appeals for the Fifth Circuit would show this Honorable Court of 

the following:-

I. 

Vincent E. Beasley, TDCJ-ID #1867323, is an offender incarcerated in the Texas Department of Criminal Justice and is appearing pro 

se who can be located at the James A. Lynaugh Unit, 1098, South.Hwy 

2037, Pecos County, Fort Stockton, Tx 79735. Relator has exhausted 

his remedies and has no other remedy at law. The act sought to be 

compelled is ministerial. Not discretionary in nature and requires 

· Respondent to imme~iately Grant relief to Relator in his immediat~ 

release from William Stephens custody. He being the director of the 

' . - . 

~~~iication for Writ of Mandamus Page I 
Texas Department of Criminal Justice. Whereas Constitutional violation raises jurisdiction question, Relator shows by clear and convincing law set ~n both the Texas and United States'Supreme Court 

precedence at law. 

PREAMBLE 

Evans v. Michigan, 133 S.ct. 1069, 185 L.Ed 2d 124 (2013) citing: 

"Where retrial following a court. Decreed Acquittal was barred under 

Double Jeopardy Clause of the U.S. Constitution, even in cases where 

a Court misconstruced the statue under which a defendant was charged. 

And the Courts order acquitting Petitioner. Although based on an 

error of law, prevented the State from re-trial of the case. In contrast to procedural rulings which resulted in orders dismissing a 

case Granting a mistrial on a basis that was unrelated to factual 

guilt or innocence acquittals were substantiv~ rulings that was coneluded criminal proceedings and raised significant Double Jeopard' 

concerns". Basi~ally, since the Petitioner in the instant case has 

already been acquitted of the joindered offense of Burglary with the 

Intent to commit another felony Sexual Assault. The Substantive decision has already been made of acquittal by this court of Appeals See 

Beasley v. State, 426 S.W. 3d 140 (2012). Further "over the last half 

century since the United States Supreme Court first recognized that 

the Double Jeopardy Clause bars re-trial following a Court decreed 

acquittal. Even if the acquittal is based upon an egregiously erroneous foundation. A mistaken acquittal cannot be reviewed on error or 

otherwise without putting a defendant twice in Jeopardy, and thereby 

violating the U.S. Constitution". 

Therefore, this Court should recognize its rulings Mandated by 

Supreme·Court and Constitutional Precedence. 

Application for Writ of Mandamus Page II 
Cause No. 1357233 

In Re. Vfucent E. Beasley ~ s Relator 

~ s 

v. ~ s 

~ s 

Honorable Jean Hughes, Judge ~ s Respondent 

Devon Anderson, District Atty. ~ s 

CERTIFICATE OF INTERESTED PERSONS 

The undersigned Counsel of Record certifies that the following 

listed persons have an Interest in the outcome of this case these 

representations are made in order that the Judges of this Court may 

evaluate possible disqualification or recusal. 

1. Honorable Jean Hughes 

2. Vincent E. Beasley 

3. Devon Anderson 

District Attorney 

1201 Franklin, Suite 600 

Houston, Texas 77002-1923 

Harris County, District Judge 

Relator 

Counsel for Respondent 

Page 1 
TABLE OF CONTENTS 

Contents· Page 

Certificate of Interested Persons ..•.•..............•....... 1 

Table of 

Index of 

Contents ..... 

Authorities 

. . 

' 

Statement of Case .... · .................... · .................. . 

Statement of Jurisdiction ............•..•................... 

Statement of the Issues ..................................... . 

Statement of the Facts ..................................... . 

Arguments .............. ·• ................................... . 

Prayer ...... . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . • ......... . 

Verification .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Certificate of Service .......................... . . ....... . 

Page 2 

2 

3 

4 

5 

6 

7 

8' 

10 

11 

12 

9, 10 
"\ 

INDEX OF AUTHORITIES 

Cases Page 

Anderson v. State, 24.Cr. R 705. 7 S.W 40 (1886) .............. 7 

Ashe v. Swenson, 397 U.S. 436, 453-54, 25 L.Ed 90 S.ct ........ 11 

1189 (1970) 

Beasley v. State, 426 S.W. 3d 140 ~2012) ...................... II, 7 

Blackledge v. Perry, 417 U.S. 2194 S.ct. 2098, 40 L.Ed 2d ..... 7 

628 (1974) 

French v. Estelle, 692 F.2d· 1021 (5th Cir. 1982) .............. 10 

Johnson v. Estelle, 506 F.2d 347 (5th Cir. 1975) .............. 7,8,9,10 

Lowery v. Estelle, 696 F.2d 333 (5th Cir. 1983) ............... 8 

Martin Linen U.S. v. Martin Linen Co., 430 U.S. 564, 97 ....... 8 

S.ct. 1349 

McDonald v. Wainwright, 493 F.2d 204 (5th Cir. 1974) .......... 9 

Menna v. New York, 425 U.S. 61, 63 at 96 S.ct. 241 L.Ed (1975) 8, 10 

United States v. Saltzman, 537 F.3d 353, 359 {5th Cir. 2008) .. 7 

United States v. Scott, 437 U.S. 82, 98 S.ct. 2187 L.Ed (1970) 8 

Evans Vi Michigan, 133 S.ct. 1069, 185 L.Ed. 2d 124 (2013) .... II 

Constitutions Statutes and Ru~es: 

U.S. Canst. Amend V ................................ .......... ·. I 

U.S. Const. Amend 14 ............ ............................... I 

Tex. Const. Art. 1 §10 .............. . · .......................... 4 

Te x . Cons t . Art . _1 § 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . 5 , 6 , 7 , 8 , .11 

Tex. Const. Art. 1 §13 ........................................ 5,6,8 

Tex. Code. Crim. Proc. Ann. Art. 11.42 ........................ 6 

Tex. Code. Crim. Proc. Ann. Art. 11.45 ......•................. 6 

Tex. Code. Crim. Proc. Ann. Art. 1.15 ........................ 10 

Page 3 
STATEMENT OF THE CASE 

Relator challenged the Director's custody of him currently 

pursuant Judgment and sentence in the 15th District Court for the 

228th District Court of Harris County, Texas, Case No. 135723301010 

(The Instant Case) for the offense of Sexual Assault which has been 

reindicted from the primary case of Burglary with the Intent to commit another felony Sexual Assault Cause No. 1204247,. following a 

trial where the jury given the wrongful instruction as to lesser 

included offense found the Relator guilty of the not lessor-included 

offense of Sexual Assault, violation of Tex. Const. Art. 1 §10, Which 

on Direct Appeal. The First Court of Appeals (Hou Dist) Reversed and 

Remanded to the proper lessor included offense of Criminal Trespass. 

The Court of Appeals .Honorable Judge Jane Bland held that: The Jury 

effectively acquitted defendant of Burglary with the intent to commit 

Sexual Assault. By the finding of any lessor charge. The State moved 

to dismiss the Criminal Trespass and reindicted the Relator in the 

instant case. To which he plead guilty on June 17, 2013, on the same 

·Relator filed Motion to Withdraw plea and was denied twice. Being 

sentenced to Eight (8) years confinement in violation of clearly 

establish Constitutional Law. 

Page 4 
STATEMENT OF JURISDICTION 

Jurisdiction of this Court of Appeals is invoked under the 

Rules of Appellate Procedure 57.2.3. Texas Code of Criminal Procedure, as a Writ of Mandamus from the denial of Writ of Habeas Corpus pursuant Art. 11.07, and Vincent E. Beasley seeks Writ of Mandamus, that Respondents follow Mandate set in the Texas Constitution 

Art. 1 §13, 14, Which provides this Cburt with subject matter Jurisdiction. 

Page 5 
STATEMENT OF THE ISSUES 

(1) Relator asserts the State has no Jurisdiction under the Double 

Jeopardy Clause in the Texas Constitution Art. 1§ 13, 14. 

(2) State has failed to follow the Mandate of the Court of Appeals 

(1st Dist. Hou) 

(3) Supreme Court has decided that a guilty plea doesn't forclose 

a claim of Jurisdiction question in Double Jeopardy. 

(4) No Evidence of (DNA) is actual innocence where (DNA) evidence 

where not presented in the first trial. 

(5) The State having no Jurisdiction the sentence is void. Judgment 

is void pursuant to Tex. Code. Crim. Proc. Ann. Art. 11.42 and 11.45. 

Page 6 · 
STATEMENT OF FACTS 

Relator was charged with Burglary with the Intent to commit 

another felony Sexual Assault on or about Feb 9, 2009, then going 

to trial Feb 11, 2011, was wrongfully convicted of a not lessor-

·included offense of Sexual Assault, which in a successful Appeal 

The Court of Appeals Reversed the verdict of the lower Court more 

importantly prosecutors continued to vindictively prosecute to a 

greater charge than the Mandate. Blackledge v. Perry, 417 U.S. 21 

28-29 (1974) also U.S. v. Saltzman, 537 F.3d 353, 359 (5th Cir. 2008) 

In which violates Collateral Estoppels Double Jeopardy. In the precedence set in Ashe v. Swenson, 397 U.S. 436 (1970) where there is a 

established acquittal the State is Estopped from second action. 

Const. Amend. Tex. Art. 1 §14 Cited: V.T.C.A. Tex. Const. Art 1§14 

"The guarun ty in this section of the Texas Cons ti tu tion is 

Broader in scope, for not only can a person not be put on 

trial a second time for an offense of which he has once been 

placed in Jeopardy, hence discharge for valid causes without 

a verdict while former conviction and acquittal ar,e based upon 

verdicts rendered. Anderson v. State, 24 CR. R 705,7 S.W.40 ' 

(1886)" 

The Court of Appeals (1st Dist. Hou) Cause No. 01-11-00143 on 

July 26, 2012, Beasliy v. State·, 426 S.W. 3d 140 (2012) recognized 

the acquittal Tex. Code. Crim. Proc. Art 1.11 Acquittal of higher 

offense as Jeopardy" 

Under Johnson v. Estelle, 506 F.2d 347 (5th ar. 1975). The 

issues that would be presented in second proceeding would substantially duplicate those presented in the first proceedings. 

Page 7 

.. 
ARGUMENT 

Relator's guilty plea meets the Menna exception. See Menna v. 

New York, 425 U.S. 61, 63 at 96 S.cL 241, 242 L.Ed (1975). The 

Double Jeopardy Clause however prohibits the government from convicti~g the ~fendant regaidless of the factual guilt, because the 

State lacks Jurisdiction from haling a defendant i~to ~urt to face 

charges as also recognizes in the Texas Constitution Art 1§14. 

Whereas the acquittal of the Relators Burglary with the Intent to 

commit Sexual Assault prohibited the State's ~cond action. The V.T.C.A. 

Tex. Const. Art 1§ 13, 14 made the acknowledgement of the Federal 

precedence of Johnson v. Estelle, 506 F.2d 347 Q5th Cir. 1975) "Where 

a determination of innocence on one of two issues was the cause of 

an acquittal and a determination of guilt on both issues is necessary 

for a subsequent conviction. The State is stopped from bringing the 

action". The Court of Appeals has affirmed that acquittal. Further, 

Lowery v. Estelle, 696 F. 2d 333 (5th Cir. 1983). "The Supreme Court 

has defined acquittal as the ruling Judge whatever is lable, which 

actually representls g_ resolution in the defendant's favor, correct 

or not, of some or all of the factual elements.of the offense charged 

Martin Linen United States v. Martin Linen Supply Co.,430 U.S. 564, 97 

S.ct. 1389, 51 L.Ed 2d 642, 430 U.S. at 571, 97 S.ct. at 1355", 

United States v. Scott, 437 U.S. 82, 98 S.ct; 2187, 2197, 57 L.Ed 2d 

65 (1978). Green and Price v. Georgia, 398 U.S. 323, 9a S.ct. 1757, 

26 L.Ed 300 (1970) recognized the partial acquittal implicit in a 

jurys return of a guilt verdict on a lessor included offense following 

the trial on th~ greater charge. In which the Relator has not been 

tried on the les~or included offense charge as Mandate because 

Sexual Assault is not a lessor included offense of Burglary with the 

intent to commit another felony Sexual Assault. The acquittal of the 

Page 8 
joinder offenses is still an acquit tal. As held in MclDOnald v. Wainwright, 493 F.2d 204 (5th Cir. 1974), "On this record the State l)Ot 

only violated basic principles of Double Jeopardy but collateral 

Estoppel. Having failed to prove illegal certain acts once. 1t cannot be permitted to prove again simply by chan~ing the name of the 

crime. Relator asserts that the State made the same mistake in its 

i.nquiry 40 years ago in Johnson by its application on the blockburger test which doesn't apply to rules of ~llateral Esteppel. 

Relator showing that because of closeness of recognized case 

Johnson v. Estelle, 506 F.2d 347 (5th Ur. 1975) clearly defines 

the outcome of this Petition will end in reversal. we look to the 

paralles of the two cases: 

JOHNSON V. ESTELLE, 506 F.2d 347 

1) Mr. Johnson was charged with 

Burglary with the intent to 

commit Aggravated Rape. 

2) Mr. Johnson was acquitted by 

a Jury of Burglary with the 

intent to commit Rape. 

3) Mr. Johnson was reindicted 

and convicted of Assault with 

intent to commit Rape. 

4) Mr. Johnson filed a application' for Writ of Habeas Corpus 

both 11.07 and 28 u.s.c. §2254 

after which both were denied. 

5) Mr. Johnson's case. was determine by the Court of Appeals 

for the Fifth Circuit to be 

Double Jeopardy and relief was 

Granted (Reversed). 

BEASLEY V. STATE, 426 S.W. 3d 140 

1) Mr. Beasley was charged with Burglary with the intent to commit the 

Sexual Assault. 

2) Mr. Beasley·was acquitted of 

Burglary with the intent to commit 

Sexual Assault. 

3) Mr. Beasley was reindicted and 

convicted of Sexual Assault. 

4) Mr. Beasley also filed Application for Writs of Habeas Corpus 

11.07 and denied without written 

order. 

5) Mr. Beasley now holds this Court 

to the precedence set by Federal 

Court and Grant relief. 

The Court reversed the lower Courts decision holding where a 

determination of innocence one of two i~sues was the cause of an 

acquittal and a ~etermination of guilt on both i~sues is necessary 

Page 9 
£or a subsequent conviction. The State :Ls Estopped from bringing 

the action. The Respondent fails to show i.n there analysis of .. J:o'hnson where charged offenses are different When in comparison of the 

elements of offenses in both cases. Since both Relator and Johnson 

where both charged ~ith Burglary with intent in Assaultive crime an 

both acquit ted where the element's of proof ar~ the same also. Both 

still stem from the s~me criminal transaction. And both have a joinder of two issues in the first indictment of which the acquittal is 

the same. 

(2) Actual Innocence - No Evidence (DNA). Applicant co~tent~ that 

he was denied due process because the State fails to introduce any 

evidence of the Relators; guilt beyond a reasonable doubt. It shall 

be necessary for the State to introduce evidence into the records, 

and said evidence shall be accepted by the Court as basis for its 

Judgment, and in no event shall a person charged ee convicted upon 

his plea without evidence to support the same. Tex. Code. Crim. Proc. 

Ann. Art 1.15 See Johnson, 722 S.W. 2d at 422. Supporting evidence 

has not been submitted. French v. Estelle, 692 F.2d 1021 (5th Cir. 

1982~~ The (DNA) was not introduced in the first trial nor was it 

submitted to the Judge in the second proceedings. 

PRAYER 

WHEREFORE, PREMISES, CONSIDERED. Relator, respectfully requests 

to be placed in the.recommended out patient and meeting an exceptions 

held in Me·nna v. New York, 425 U.S. 61, 46 L.Ed 195 96 S.ct 241 (1975). 

Mr. Justice Brennan agrees that where the St~te is precluded by the 

United States Constitution from Haling a defendant into Court on a 

charge be set aside even if the conviction was enter pursuant to a 

counsel plea of guilty, Ante at 62, 44-46 L.Ed 2d 197. But on his 

Page 10 
view that the Double Jeopardy Clause bar the prosecution from offenses growing the sam~ criminal tr~nsaction. The State is barred from 

mounting ·a successive prosecution. He believes that the proper disposition of the case is not remand rut outright reversal See Asfu!e v. 

Swenson~ 397 U.S. 436, 453-54, 25 L.Ed 90 S.ct. 1189 (1970) Tex. 

Const. Art 1 §14. Relator brought this litigation in good faith and 

·has substantially prevailed through due course of law. 

SO PRAYED on this the )~ day of October, 2015.· 

Respectfully Submitted, 

VERIFICATION 

I, Vincent E. Beasley, TDCJ-ID #1867323, declar~ under the 

penalty of perjury that the foregoing set of facts presented within this Application for Writ pf Mandamus, Memorandum of Law and 

Brief in support are true and this .Honorable Court will GRANT him 

Relief. 

Page 11 

·Respectfully Submitted, 

x4r~ VLncent E. Beasl¢y 

TDCJ-ID #1867325 

James A. Lynaugh Unit 

1098, South Hwy~2037 

Fort Stockton, Tx 79735 
CERTIFICATE OF SERVICE 

I, Vincent E. Beasley, TDCJ-ID #1867323, certify that this the 

/¥ .day of October, 2015, the foregoing Writ of Mandamus pursuant 

Rule of Appellate Procedure 52.1, was served upon all parties of 

interest and Harris County District Attorney, Devon Anderson at the 

District Attorneys office, 1201 Franklin Suite 600, Houston, Texas 

77002-1923. A paper copy of this document will be :served by First 

Glass United States Mail Postage pre-paid by Mr. Vincent E. Beasley 

TDCJ-ID #1867323. 

Page 12 

Respectfully Submitted, 

Vincent E. Beasley 

TDCJ-ID #1867323 

James A. Lynaugh Unit 

1098, South Hwy 2037 

Fort Stockton, Tx 79735 
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MANDATE 

Qeourt rtf ~peal~ 

jftrst m.istrict of ~.e~as 

NO. 01-11•00143-CR 

VINCENT ERIC .BEASLEY, Appellant 

v. 

THE STATE OF TEXAS, Appellee 

~ 

Appeal fr~m the 228th District Court of Harris Gounty. (Tr. Ct. No. 1204247). 

TO THE 228TH DISTRICT COURT OF 'IIA.lUUS COUNTY, GREETINGS:· 

Before this Court, on the 26th day of July 2012, the cause upon appeal to revise or to 

revetse your judgment was determined. This Court made its· order in these words: 

~:·: 

"' 

This case is an appeal from the .final judgment signed by 

tbe trial coUrt on February 24, · 2011. After submitting the 

ca,s~ on the appe11ate record and the ~guments properly raised· 

by the parties, the Court holds that there was reversible error in 

the· trial court's judgment. Accordingly, the Court reverses the 

trial. court's judgment and remands the case to the trial court 

for further proceedings .. 

The Court orders that this decision be certified below 

for observance .. 

Judgment rendered July ~6, 2012 . 

Panel consists of.Justices Keyes, Bland, and Sharp. Opinion 

delivered by Justice Bland. 

STATE'S 

EXHIBIT 

l) 
We'stlaw.. 

426 S.W.3d 140 

(Cite as: 426 S.W.3d 140) 

c 

Court of Appeals of Texas, 

Houston (1st Dist.). 

Vincent Eric BEASLEY, Appellant 

v. 

The STATE of Texas, Appellee. 

No. 01-11-00143-CR. 

July 26, 2012. 

Background: Defendant who was charged with 

burglary of a habitation with the intent to commit 

sexual assault was convicted in the 228th District 

Court, Harris County, Marc C. Carter, J., of.sexual 

assault. Defendant appealed. 

Holdings: The Court of Appeals, Jane Bland, J., 

held that: 

(1) sexual assault was not a lesser-included offense 

of burglary of a habitation with intent to commit 

sexual assault as the latter offense was alleged in 

indictment; 

(2) erroneous submission of sexual assault as lesser-included offense caused egregious harm; 

;ll{ (3) for double jeopardy purposes, jury. ef~ectiv:ly 

acquitted defendant of burglary of a hab1tat10n w1th 

intent to commit sexual assault by finding him 

guilty of sexual assault; 

( 4) acquittal on sexual assault was not appropriate 

disposition on appeal given the sufficiency of the 

evidence to establish each element of that offense, 

and jeopardy did not attach to prevent state from 

pursuing an indictment for sexual assault; and 

(5) case would be remanded for new trial on proper 

lesser-included offense of criminal trespass, which 

jury was prevented by jury charge error from considering. 

Reversed and remanded for new trial. 

West Headnotes 

(1] Indictment and Information 210 €:=188 

STATE'S 

EXHIBIT 

210 Indictment and Information 

21 OXIII Included Offenses 

Page 1 

210kl88 k. Sufficiency of charge of lesser 

offense. Most Cited Cases 

Constitutional right to notice of criminal 

charges does not prevent the state from prosecuting 

or the trial court from instructing the jury on a lesser-included offense of the charged crime, even if 

the indidment does not expressly allege it. 

U.S.C.A. Const.Amend. 6; Vernon's Ann.Texas 

Const. Art. I, § I 0. 

[2] Criminal Law 110 €=795(1.5) 

11 0 Criminal Law 

IIOXX Trial 

llOXX(G).Instructions: Necessity, Requisites, and Sufficiency 

11 Ok795 Grade or Degree of Offense; Included Offenses 

110k795(1.5) k. Relation between offenses; sufficiency of charging instrument. Most 

Cited Cases 

To determine whether an offense is a lesserincluded offense of another offense, the reviewing 

court must ask whether the indictment for the greater-inclusive offense either: (I) alleges all of the elements of the lesser-included offense, or (2) alleges 

elements plus facts, including descriptive averments, such as non-statutory manner and means, 

that are alleged for purposes of providing notice, 

from which all of the elements of the lesser-included offense may be deduced. 

(3] Indictment and Information 210 €=191(.5) 

210 Indictment and Information 

21 OXIII Included Offenses 

21 Ok 191 Different Offense Included in Offense Charged 

210kl91(.5) k. In general. Most Cited 

·cases 

Whether an offense is a lesser-included offense 

of an offense charged in indictment is a question of 

(_ © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. 
-1 ~_: __ -------------------------------------------- -----------

if:1 

I. 

Billy Lee JOHNSON, Petitioner-Appellant. v. W. J. ESTELLE, Director, Texas Department of 

Corrections, Respondent-Appellee · 

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 

506 F.2d 347; 1975 U.S. App. LEXIS 16662 

No. 73-3945 

January 9, 1975 

Editorial Information: Prior History 

Appeal from the United States District Court for the Northern District of Texas. 

Judges: Goldberg. Godbold and Morgan. Circuit Judges. 

CASE SUMMARY 

PROCEDURAL POSTURE: Appellant sought review of a decision of the United States District Court for 

the Northern District of Texas. that denied appellant's writ of habeas corpus petition after appellant was 

convicted of assault with intent to commit rape after an acquittal on charges stemming from the same 

incident. The denial of defendant's writ of habeas corpus petition on double jeopardy grounds was 

improper because the issues presented in a second criminal trial substantially duplicated those presented 

in the first trial. 

OVERVIEW: Appellant was found not guilty by a jury of the crime of burglary of a private residence at 

nighttime with intent to commit rape. Five months later appellant was convicted of assault with intent to 

commit rape. on charges stemming from the same incident for which he was acquitted in his first trial. 

Appellant"s conviction was upheld on direct appeal. The state courts and the district court de~ied 

appellant's petition for a writ of habeas corpus based on double jeopardy. The court granted appellant"s 

writ and released him from custody. The court held that where a determination of innocence on one of two 

issues was the cause of an acquittal and a determination of guilt on both issues was necessary for a 

subsequent conviction. the state was estopped from bringing the action. The issues presented in the 

second trial substantially duplicated those presented in the first triaL 

OUTCOME: The court granted appellant's writ and released him from custody. The court held that the 

issues presented in the second trial substantially duplicated those presented in the first trial. The state was 

estopped from bringing an action where a prior determination of innocence existed as to charges. 

LexisNexis Headnotes 

Constitutional Law >Bill of Rights > Fundamental Rights > Procedural Due Process > Double 

Jeopardy 

Criminal Law & Procedure > Double Jeopardy> Collateral Estoppel 

Civil Procedure > Trials > Jury Trials > Verdicts > General Overview 

Civil Procedure > Trials > Jury Trials > Verdicts > General Verdicts 

805_11CS 

9 2015 Matthew Bender& Company. Inc .. a member of the LcxisNexis Group. All rights reserved. Use of this product is subject to the 

restrictions and terms and conditions of the Matthew Bender Master Agreement. 

11'! if:1 II'! 

-~----------- ------1 

Civil Procedure >Judgments > Preclusion & Effect of Judgments > General Overview 

Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > General Overview 

Civil Procedure >Judgments > Preclusion & Effect of Judgments > Estoppel > Collateral Estoppel 

The Fifth Amendment, U.S. Cons!. amend. V. guarantee against double jeopardy was enforceable against 

the states through the Fourteenth Amendment, U.S. Con st. amend. XIV. Collateral estoppel is part of the 

Fifth Amendment double jeopardy prohibition. 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. 

Criminal Law & Procedure > Double Jeopardy> Collateral Estoppel 

Criminal Law & Procedure >Appeals > Standards of Review> General Overview 

Civil Procedure> Trials> Jury Trials> Jury Instructions > General Overview 

Civil Procedure > Eminent Domain Proceedings >Jury Trials 

A court reviewing for duplication of issues must: 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. 

Criminal Law & Procedure > Double Jeopardy > Collateral Estoppel 

Where a determination of innocence on one of two issues was the cause of an acquittal and a 

determination of guilt on both issues is necessary for a subsequent conviction, the state is estopped from 

bringing the action. 

Criminal Law & Procedure > Criminal-Offenses > Crimes Against Persons >Assault & Battery> 

General Overview 

Criminal Law & Procedure > Criminal Offenses > Property Crimes > Burglary & Criminal Trespass 

> General Overview 

Criminal Law & Procedure > Criminal Offenses > Sex Crimes > Sexual Assault > General Overview 

Criminal Law & Procedure > Criminal Offenses > Sex Crimes > Sexual Assault > Rape > General 

Overview 

There are three components of a "burglary of a private residence at nighttime with intent to commit rape" 

charge which are not involved in an "assault with intent to commit rape" charge. They are: (1) the 

defendant entered the house without breaking; (2) that he entered by breaking with intent to commit theft 

but that the intent to commit rape was later formed; (3) that there was insufficient evidence that the site of 

the alleged crime was a private residence. 

Criminal Law & Procedure > Criminal Offenses > Property Crimes > Burglary & Criminal Trespass 

> General Overview 

Texas courts have long held that opening a shut door is an entry by force which constitutes breaking. 

Criminal Law & Procedure > Criminal Offenses > Property Crimes > Burglary & Criminal Trespass 

> General Overview 

Criminal Law & Procedure > Trials > Burdens of Proof> Prosecution 

Texas courts have not put the burden on the prosecutor to show the nature of the intention at the exact 

moment of breaking, but have upheld convictions where intention has been read. post hoc, from 

805 IICS 

C 2015 Matthev. Bender& Company. Inc .. a mcmbcro(thc LcxisNexis Group. All rights reserved. Use of this product is subjt;et to the 

restrictions and tcnns and conditions of the Matthew Bender Master Agreement. 

IPs ;-:·: 

-··--·· -----· ·----c-------------- ------------------------------------~-------··------------"'"-
r--

subsequent actions. 

Criminal Law & Procedure > Criminal Olfenses > Property Crimes > Burglary & Criminal Trespass 

>General Overview 

Tex. Penal Code Ann. § 1391, defines private residen~ce as any building or room occupied and actually 

used at the time of the offense by any person as a place of residence. 

Criminal Law & Procedure > Double Jeopardy> Collateral Estoppel 

Civil Procedure >Judgments > Preclusion & Effect of Judgments > Estoppel> General Overview 

Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > Collateral Estoppel 

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. 

Criminal Law & Procedure > Double Jeopardy> Collateral Estoppel 

Constitutional Law > Bill of Rights >Fundamental Rights > Procedural Due Process >Double 

Jeopardy 

Double jeopardy is not a semanticist's paradise, but is to be determined by applying conventional idioms to 

the jurors' deliberations. There must be some legal necessity basic to one acquittal, not involved in the 

next trial, to justify a superseding conviction. The court cannot permit initialllial deficiencies to be·cured by 

subsequent trials. 

Opinion 

Opinion by: GOLDBERG 

Opinion 

{506 F.2d 348} GOLDBERG, Circuit Judge: 

This case presents a good illustration of the perils of double jeopardy. On May 23, 1967 Billy Lee 

Johnson was found not guilty of the crime of "burglary of a private residence at nighlime with intent to 

commit rape." Five months later he was convicted of "assault with intent to commit rape," on charges 

stemming from the same incident for which he was acquitted in his first trial. He was sentenced to 99 

years in jail. 

His conviction was upheld on direct appeal; Johnson v. State, Tex.Cr.App.1968, 432 S.W.2d 98, and 

his subsequent petitions for a writ of habeas corpus were denied in State and federal district courts. 

· He appeals to this Court for his writ. Today we find that the issues presented in the second trial 

substantially duplicated those presented in the first Ilia!. We cannot conclude that a rational jury would 

have acquitted or convicted defendant on the basis of the differences between the proof necessary to 

substantiate each indictment. 

Unfortunately, our knowledge of the facts and the legal issues presented to the jury in the first case is 

limited. This Court was advised, after it had received no transcript from the first proceeding, "that no 

further transcripts are available in the above-styled cause". Letter to the Court, Sept. 25, 1974. from 

District Court for Northern District of Texas. Our knowledge of the testimony at the first trial is limited 

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to stipulations between defense attorney and prosecutor about the testimony of the prosecuting 

witness and the police officer who conducted the initial investigation. 

Those stipulations are: 

"That if the witness, Mrs. Corah Bell Crandell, were present in Court, she would testify that on May 

22, 1967 in the Criminal Court Room Number Five of Dallas County, Texas that she appeared as 

a witness in Cause Number 67-1034-JL, styled State of Texas Vs. Billy Lee Johnson, which said 

case was a case charging Billy Lee Johnson with burglary of a private residence at nighttime with 

intent to commit rape, and after being sworn as a witness in that case, she testified on direct 

examination that she was eighty-two (82) years of age, that she lived then at the time she testified 

at 1403 South Fitzhugh, and had lived there for forty (40) years; that on February 4, 1967, she 

was living there and she had lived and resided in a residence there in a house which had four (4) 

walls, a ceiling, floor, doors and windows; that about 9:45 that evening she was at home at that 

location at 1403 South Fitzhugh, and she was watching television when she heard someone at the 

back side of the house; that she went to the door and saw a man there who said that he wanted to 

see about buying a car that she had for sale. She testified that she told him that she did not have 

any car for sale. She identified the man as being a colored man, a member of the Negro race. 

She testified that colored people lived around her. She testified that she went back in to where the 

T.V. was, and the next thing she knew the grabbed her by the shoulders. She ran for the phone 

and tlied to call the police or dial the operator, and he grabbed her by the shoulders, dragged her 

all over the house, turned off the T.V., tore off her dress, threw her down on the front of the couch 

and was trying to assault her; that she was thrown to the· floor, her clothes were tom; that he said 

that, "I am going to assault you and kill you and take all your money". He also said that he was 

going to rape her. About that time she testified there was a {506 F .2d 349} bright light thrown on 

the house and that she screamed, "0 God, he is going to kill me", and she resisted him as best 

she could; that he was trying to have intercourse with her without her consent; that she was a 

female person, a woman; that his assault on her and his attempts to have carnal knowledge and 

intercourse with her was without her consent and against her will; that she could not identify the 

man who was in the house, who was committing the assault upon her. On cross examination she 

testified that she had the clothing that she had worn at the time of the assault; that the police 

came out and investigated the case".The stipulated testimony of the police officer was: 

"If Officer W. T. Mikel were present in court and sworn as a witness, he would testify that he is a 

member of the Dallas Police Department assigned to the Radio Patrol Division with particular 

specialty of the Canine Corps, and he worl<ed in that capacity on February 4 and 5, 1967 when, 

with a police dog named Rex, at about 9:45 p.m., he was near 1403 South Fitzhugh and he.ard a 

woman scream. He could not determine where the screams were coming from, but he did stop 

his police car and got out and determined that the screams were coming from the house at 1403 

South Fitzhugh. He could hear a woman screaming, "Help, you are killing me," or words to that 

effect. He testified that he went to the front door of the house and that he was let in by a woman 

whom he identified as Mrs. Corah Bell Crandell; that her clothes were torn; that she said 

something to the effect, "He is going out the back door", and he ran around to the back door and 

saw a man whom he identified in court as the Defendant coming out the back door or on the back 

porch of Mrs. Crandell's house; that he hollered for him to stop; that thereafter he shot him two or 

ttiree times and the Defendant was badly wounded and he remained there at the scene until he 

was removed by the ambulance". 

We also have a transcript of the instruction which the judge gave the jury in this first case. We will 

refer to it below as it elucidates particular points. 

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In Benton v. Maryland, 1969, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707, the Supreme Court held 

that the Fifth Amendment guarantee against double jeopardy was enforcible against the states 

through the Fourteenth Amendment. The following term, the Court held that collateral estoppel is part 

of the Fifth Amendment double jeopardy prohibition. Ashe v. Swenson, 1970, 397 U.S. 436, 90S. Ct. 

1189, 25 L. Ed. 2d 469. "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." 397 

U.S. at 443, 90S. Ct." at 1194, 25 L. Ed. 2d at 475. The Court in Ashe went on to say that wihere the 

jury in the first trial had returned a general verdict, a court reviewing for duplication of issues must: 

Examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, 

and other relevant matter, and conclude wihether a rational jury could have grounded its verdict 

upon an issue other than that which the defendant seeks to foreclose from consideration. 

397 U.S. at 444, 90S. Ct. at 1194, 23 L. Ed. 2d at 475-476, quoting Mayers & Yarborough; Bis Vexari: 

New Trials and Successive Prosecutions, 1960, 74 Harv.L.Rev. 1, 38-39. 

Ashe was acquitted in his first trial of robbery of one of the players in a poker game. He wa~_then tried 

and convicted for robbing another player in the game. Since the only controverted issue in each trial 

was the identity of the robber, the Court held that the second trial, by requiring relitigation, had put the 

defendant in double jeopardy. ' 

As noted by the United States Magistrate in the present case. there are two {506 F .2d 350) issues 

upon which the jury in the first trial could have based its acquittal, wihich were controverted in the 

second trial. One was the identity of Mrs. Crandall's assailant and the other was the intention of that 

assailant to commit rape. The State argues that Ashe applies only wihere one issue is in question in 

both trials. 

We disagree with the State. Application of the rule depends upon wihether some issue necessary for 

the prosecution's case in the second trial has necessarily been found for the defendant in the first trial. 

See Sealfon v. United States, 1948,332 U.S. 575,68 S. Ct. 237,92 L. Ed. 180. Thus the fact that 

either identity or intent could have been the basis for the first jury's decision does not foreclose the 

application of Ashe v. Swenson, because both factors would have to be proven in order to convict at 

the second trial. Where a determination of innocence on one of two issues was the cause of an 

acquittal and a determination of guilt on both issues is necessary for a subsequent conviction, the 

State is estopped from bringing the action. 

II. 

The State contends, however, that a "rational jury" could have based its decision in the first trial on the 

State's failure to establish essential elements not in controversy in the second trial. If this is in fact the 

case, then the double jeopardy criterion would, of course, not apply. 

In the present case we find that no rational jury could have acquitted on the basis of the different 

"issues" presented in the first trial, absent a defendant's reliance on those factors. 1 The State cannot 

produce a record here showing· such reliance. 2 The State's suggested bases for acquittal in the first 

trial are nothing more than the sheerest speculation. 

There are three components of a "burglary of a private residence at nighttime with intent to commit 

rape" charge which are not involved in an "assault with intent to commit rape" charge and upon which 

the State believes the jury in the first trial could have based its verdict of acquittal. They are: "[(1}] the 

Petitioner entered the house without breaking; (2} that he entered by breaking with intent to commit 

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theft but that the intent to commit rape was later formed; (3} that there was insufficient evidence that 

the site of the alleged crime was a private residence." Appellee's Brief at 6. 

We address ourselves to each issue, in order. 1} Petitioner entered without breaking. 

That this is an improbable jury rationale is evident from the trial court's jury instruction in the first trial: 

By the term "entry'' into a house is meant every kind of entry but one made by free consent of the 

occupant. or of one authorized to give such consent. By the term breaking is meant that the entry 

must be made with actual force. The slightest force, however, is sufficient to constitute breaking, 

such as lifting a latch of a door that is shut or pulling or pushing open a door. 3 

{506 F .2d 351} There is no available testimony offering a scintilla of evidence that defendant might 

have come into the Crandall home without breaking, and the judge's charge to the jury gave an 

expansive definition of breaking. No rational jury could have acquitted, on the grounds that defendant 

did not break into the home, on the basis of what we have before us. 

The State's second alternative, that the jury may have doubted that the requisite intent existed at the 

moment of entry, is equally implausible. With not a speck of factual foundation the State speculates 

that the jury may have believed that Johnson entered the Crandall house with another purpose, such 

as burglary, but that, upon casting his eyes on this eighty-two year old woman he was suddenly 

overcome with a passion which caused him to change his intention. 

The judge's instruction to the jury would not alert it to a special concern over the moment wihen 

defendant formed his intention. The judge's instructions on this score were: 

You are instructed that the offense of burglary of a private residence in the nighttime with intent to 

commit rape, is constituted by entering a house. that is, a private residence, by force, threats or fraud, 

at night, or in any manner by entering a private residence at any time, by either day or night, and 

remaining concealed therein until night, with the intent of committing the offense of rape. The charge 

in this case is the entry into a private residence, at night, by force, with the intent to commit rape. The 

punishment is by confinement in the Texas Department of Corrections for any term of years not less 

than five .... before you would be warranted in finding a verdict of guilty, you must find from the 

evidence, beyond a reasonable doubt, that the entry was made in the nighttime, and with the intent to 

commit the crime of rape. 

While the judge gave individual definitions of many of the terms in the charge he did not specifically 

draw attention to the proposition that the intention must be in the mind of the burglar at the time of 

entry. 4 

We do not believe that any rational jury, sua sponte, could have been moved to acquit defendant on 

the grounds that his intention turned from robbery to rape in midflight from the threshold to Mrs. 

Crandall. 

Finally, the State argues that the jury could rationally have doubted that the alleged incident transpired 

in a "private residence." This is the most transparent of the State's speculations. In his instruction, the 

judge told the jury: 

"Private residence," as used in the statute, means any building or room occupied and aCtually used at 

the time of the offense by any person or persons as a place of residence. 5 

Mrs. Crandall testified in her first trial "that she lived then at the time she testified at 1403 South 

Fitzhugh, and has lived there for forty (40} years; that on February 4, 1967, she was living there and 

she had lived and resided in a residence there in a house which had four (4} walls, a ceiling, floor, 

doors and windows ... ;" {506 F.2d 352) and since Officer Mikel is stipulated to have testified that he 

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"determined that screams (emphasis added), there is simply nothing to suggest that Mrs. Crandall 

was not in a residence and.that the jury could have entertained real and rational doubts on this issue. 

Ill. 

This Court usually finds that its supply of ingenious semantic puzzles and fantastic hypotheticals 

emanate from the supplications of defendants. In keeping with deeply rooted American notions of 

justice and Constitutional edicts, we examine these applications to see if in fact the defendant was 

denied due process in his trial or whether the facts presented lever the probability that he engaged in 

criminal activity below the "reasonable doubt" marker. But fantastic hypotheticals introduced by the 

State to avoid the defense of double jeopardy are subject to a different standard. We must see if a 

"rational jury" could have based its decision on such factors, guided by the principle enunciated in 

Ashe, 397 U.S. at 444, 90S. Ct. at 1194, 25 L. Ed. 2d at 475, 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." By its injunction to apply collateral estoppel with 

"realism and rationality" we believe that the Supreme Court means that we should not allow a second 

trial, merely because technical requisites of the first charge are not involved in the second, where 

there is no evidence suggesting that those factors were even presented to the first jury for its active 

consideration. In the present case the alternative grounds hypothecated by the.State are not of the 

sort which could move a rational jury, on its own, to acquit. 

We are convinced that both juries stood their decisions on identity of assailant and intent to rape and 

did not engage in mental gymnastics so as to land on differing components. Double jeopardy is not a 

semanticist's paradise, but is to be determined by applying conventional idioms to the jurors' 

deliberations. There must be some legal necessity basic to one acquittal, not involved in the next trial, 

to justify a superseding conviction. We cannot permit initial trial deficiencies to be cured by 

subsequent trials. There are only four quarters to a football game. The exorcised double jeopardy is 

the constitutional eliminator of the might have beens. Puristic parallelism is not an absolute in the law 

of double jeopardy. Multitudinous criminal charges may spring from the same incident. The State's 

argument in the present case would nullify the doctrine of double jeopardy because any slight 

deviation in the indictment would give the State another Monday morning quarter. 

It is therefore ordered that the petition· of Billy Lee Johnson for a writ of habeas corpus is granted and 

that he be released from custody. 

Footnotes 

We keep in mind the warning given in the same article that the Supreme Court quoted from in Ashe: 

It is probable that in the large majority of criminal prosecutions the defendant will litigate only one 

issue. For example, he will present an alibi, plead a lack of requisite criminal intent. or deny that 

the act was perpetrated at all. If a latter court is permitted to state that the jury may have 

disbelieved substantial and uncontradicted evidence of the prosecution on a point the defendant 

did noi contest, the possible multiplicity of prosecutions is staggering. 

Mayers & Yarbrough, 74 Harv.L.Rev. at 37-38. 

2 

There is no suggestion that the lack of a record owes in any way to the fault of petitioner Johnson or 

his counsel, so we need not consider whether showing of such fault would raise any hostile 

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presumption. 

3 

Nor was there room for interpretation of the meaning of "breaking" by defense counsel. The Texas 

courts have long held that opening a shut door is an entry by force which constitutes breaking. See, 

e.g., Mixon v. State, Tex.Cr.App.1966, 401 S.W.2d 806. 

It is worthy of note that appellant contends in his brief, and the State does not deny, that among the 

items of evidence submitted in the first trial, and resubmitted in the second, was a picture of a screen 

door cut open. 

4 

Texas courts have not put the burden on the prosecutor to show the nature of the intention at the 

exact moment of breaking, but have upheld convictions where intention has been read, post hoc, from 

the subsequent actions. See e.g., Friga v. State, Tex.Cr.App. 1973, 488 S.W.2d 430; Eagan v. State, 

Tex.Cr.App., 1970,451 S.W.2d 514; Dickson v. State, Tex.Cr.App.1901, 64 S.W. 1043. So, there can 

be no presumption of prosecutorial failure on this issue .. 

5 

The statute to which the judge referred is Vernon's Ann.Tex.Penal Code Art. 1391, which defines 

private residence as "any building or room occupied and actually used at the time of the offense by 

any person as a place of residence." 

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Thomas J. McDONALD, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee 

. UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 

493 F .2d 204; 197 4 U.S. App. LEXIS 8963 

No. 73-1656 

April26, 1974 

Judges: Aldrich, Senior Circuit Judge, • and Bell and Gee. Circuil Judges. 

CASE SUMMARY 

PROCEDURAL POSTURE: Petitioner appealed an order of the United Slates District Court, which denied 

his petition for habeas corpus after he was convicted in a state court of breaking and entering with intent 

to commit rape, having earlier been found not guilty of assault with intent to commit rape and rape.A 

denial of petition for writ of habeas corpus was reversed for double jeopardy reasons where petitioner was 

convicted of breaking and entering with intent to commit rape, having earlier been acquitted of assault with 

intent to commit rape and rape. 

OVERVIEW:' Petitioner was charged in a state court with breaking and entering with intent to commit rape 

and, separately, with assault with intent io commit rape and rape. The first charge was postponed, while 

the others tried together. At this trial the state court.charged the jury that it could convict petitioner for 

either of the two specified offenses or for attempted rape, as a lesser-included offense. The jury found him 

not guilty. Thereafter, defendant was convicted by another jury on the charge of breaking and entering 

with intent to commit rape on the same evidence as the first. The conviction was affirmed, and petitioner 

sought relief, which the lower court denied. Petitioner contended that he could not be tried for breaking 

and entry with intent because of his acquittal not only for rape, but also of an attempt to commit rape. The 

court reversed the lower court's decision because it was an impermissible attempt to convict petitioner for 

one crime by proof of another that had been determined that he did not commit. The court ruled that the 

state not only violated basic principles of collateral estoppel, but of double jeopardy. The court remanded 

with instructions to grant writ. 

OUTCOME: The court reversed the lower court's decision that denied petitione(s application for a writ of 

habeas corpus, holding that it was impermissible to convict petitioner for one crime by proof of another 

that had been determined that he did not commit. The court ruled that the state not only violated basic 

principles of collateral estoppel, but of double jeopardy. The court remanded with instructions to grant writ. 

LexisNexis Headnotes 

Criminal Law & Procedure > Double Jeopardy> Collateral Estoppel 

Civil Procedure >Judgments > Preclusion & Effect of Judgments,> Estoppel > General Overview 

Civil Procedure >Judgments > Preclusion & Effect of Judgments > Estoppel > Collateral Estoppel 

Having failed to prove certain illegal acts once, the state cannot be permitted to prove them again simply 

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by changing the name of the crime. 

Opinion 

Opinion by: ALDRICH, SR. 

Opinion 

{493 F.2d 205} ALDRICH, Senior Circuit Judge: 

This is an appeal from the denial of a petition for habeas corpus. Thomas McDonald, hereinafter 

defendant, was charged in the Florida state court with breaking and entering with intent to commit 

rape, and, by separate indictment, with assault with intent to commit rape, and rape. The first charge 

was postponed, and the remaining two tried together. At this trial the court charged the jury that it 

could convict defendant for either of the two specified offenses, or for attempted rape, as a lesser 

included offense. The jury found him not guilty. 

The evidence at the trial, which came from the alleged victim, a Mrs. Certain, the police, and a 

codefendant, Taylor, was to the effect that Taylor and defendant in the nighttime broke a rear door of, 

and entered, Certain's apartment, where each defendant had intercourse with her. Certain testified 

that it was against her will: Taylor testified that she consented. Defendant did not take the stand. The 

state agrees with defendant that the jury must have found consent. 

Thereafter defendant was tried to another jury on the charge of breaking and entering with intent to 

commit rape. Except that the evidence as to the breaking was more detailed, it is conceded {493 F.2d 

206} that, as the district court found, the evidence at this trial was "basically the same" as at the first 

trial, including Certain's testimony that she did not consent. Defendant was convicted, and on appeal 

the judgment was affirmed. McDonald v. State, 249 So. 2d 451 (4 D.C.A. Fla. 1971), cert. dismissed, 

253 So. 2d 708 (Sup. Ct. Fla.). The court took the position, with which the district court subsequently 

agreed, that defendant could well have entered with intent to commit rape even though, because 

Certain proved to be willing, he had no occasion to carry out his purpose. The state's brief puts it, 

"Although the raper had the requisite intent upon breaking and entering to commit rape, he was 

thwarted before attempting the act of rape." Although we have seen the proposition more felicit·)usly 

expressed, 1 the state's logic is impeccable. There are, however, a number of difficulties. 

The most obvious difficulty is that the state did not try its case on that theory. Faced with the burden 

of showing defendant's intent at the time of entry, which, unexplained, might equally have been simply 

to attempt to persuade, the state, both by evidence and oral argument, sought to prove an initial intent 

to rape by the alleged circumstance that a rape occurred. But whether one call it double jeopardy, or 

collateral estoppel by judgment, this was a naked and impermissible attempt to convict defendant for 

one crime by proof qf another which, as between defendant and the state, it had been conclusively 

determined defendant did not commit. The evidence of non-consent was constitutionally inadmissible, 

Ashe v. Swenson, 1970, 397 U.S. 436, 446, 90S. Ct. 1189, 25 L. Ed. 2d 469; Turner v. Arkansas, 

1972, 407 U.S. 366, 92 S. Ct. 2096, 32 L. Ed. 2d 798 (per curiam), and clearly prejudicial. The verdict 

was fatally tainted. Burgett v. Texas, 1967, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319; Bumper v. 

North Carolina, 1968, 391 U.S. 543, 550, 88 S. Ct. 1788, 20 L. Ed. 2d 797. Indeed, with this evidence 

excluded, it may be asked on what basis could a jury, simply because defendant made a felonious 

entry of one character, find· beyond a reasonable doubt that at the time he intended another? 2 

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Defendant goes further, and asserts not merely trial error, but that he can not even be tried for 

breaking and entering with intent because he has been acquitted, not only of rape, but of an attempt to 

commit rape under circumstances where such an attempt would have had to have been found if he 

had committed !he alleged breaking and entry with the requisite intent. The state initially sought to 

answer this by saying flatly that "neither breaking and entering nor intent while doing so were before 

the first jury," but it later realized that this allegation was more easily made than proved. The evidence 

of breaking and entering was introduced before the first jury, and the court specifically instructed the 

jury as to an attempt, and as to the necessity for both an intent to commit the crime and an overt act. 

See Groneau v. State, 201 So. 2d 599, 603 (4 D.CA Fla. 1967), cert. denied, 207 So. 2d 452 (Sup. 

Ct. Fla.). The state is reduced to arguing that breaking and entering was merely "preparation." and 

not an overt act sufficient to constitute an attempt. Passing the fact that in any event defendant was 

placed in jeopardy for an attempt, we cannot think of any more classic overt act 3 than something 

which, like breaking and entering with intent, is a {493 F.2d 207} felony itself. 4 Charging the jury on 

this evidence as to attempted rape necessarily placed before it the question whether defendant broke 

and entered with intent to rape. · 

On this record the state not only violated basic principles of coilaterat estoppel, but of double 

jeopardy. Having failed to prove certain illegal acts once, it cannot be permitted to prove them again 

simply by changing the name of the crime. Hartow v. United States, 5 Cir .. 1962. 301 F.2d 361, 375, 

cert. denied, 371 U.S. 814, 83 S. Ct. 25, 9 L. Ed. 2d 56, reh. denied, 371 U.S. 906, 83 S. Ct. 204, 9 L. 

Ed. 2d 167; United States v. Sabella, 2 Cir., 1959. 272 F.2d 206, 210-212. 

Reversed and remanded with instructions to grant the writ. 

Footnotes 

"He in a few minutes ravished this fair creature, or at least would have.ravished her, if she had not, by 

a timely compliance, prevented him." H. Fielding, Jonathan Wild, Book Ill, ch. 7. 

2 

We may add that if the jury were to learn of defendant's conduct once within the apartment, he would 

be entitled to an instruction that it had been conclusively found to have been consented to. 

3 

"Any act toward the commission of such an offense." Fla. Stat. Ann.§ 776.04 (1965). 

4 

"Commencement of the consummation .... Such progress that it would be consummated unless 

interrupted by circumstances independent of the will of the attempter." Groneau v. State, 201 So. 2d 

·at 603. Cf. ln. 1, ante. 

;•" 

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.i 
Darrell Gene BLACKBURN, Petitioner-Appellant, v. Armond CROSS, Chairman and 

Commissioners, Probation & Parole Commission, State of Florida, Respondents-Appellees 

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 

510 F.2d 1014; 1975 U.S. App. LEXIS 15361 . 

Editorial Information: Subsequent History 

No. 74-2333 

April2, 1975 

Rehearing and Rehearing En Bane Denied August 6, 1975. 

Editorial Information: Prior History 

Appeal from the United States District Court for the Southern District of Florida. 

Judges: Morgan and Clark. Circuit Judges, and Gordon, District Judge. 

CASE SUMMARY 

PROCEDURAL POSTURE: Defendant appealed from a judgment entered by the United States District 

Court for the Southern District of Florida, which denied his petition for a writ of habeas corpus. Defendant 

had been convicted for breaking and entering a dwelling and unlawfully assaulting a person therein and for 

attempted crime against nature.A trial court committed reversible error at a defendant's trial for assault 

when it admitted the testimony of a witness who claimed that she was also assaulted by the defendant 

where the defendant had previously been acquitted of assaulting her. 

OVERVIEW: Defendant was convicted for breaking and entering a dwelling and unlawfully assaulting a 

person therein and for attempted crime against nature. At trial, the victim and two other women who had 

also allegedly been assaulted by defendant testified as to his identity. Defendant filed a petition for a writ 

of habeas corpus, which was denied by the district court. On appeal, the court reversed the district court 

judgment and remanded with instructions to issue the writ, subject to the state's right to retry defendant. 

The court found that the testimony of one the prior victims was improperly admitted because defendant 

had previously been acquitted of assaulting her. For authority, the court relied on a case that was decided 

after defendant's trial which held that evidence of such prior acquittals was prejudicial and violative of the 

double jeopardy clause. The court found that the new rule warranted retroactive application because it 

went to the basic integrity and accuracy of the guilt-innocence determination. The admission of the 

witness' testimony was therefore constitutional error, and the court could.notsay that it was harmless 

beyond a reasonable doubt. 

OUTCOME: The court reversed the judgment of the district court which denied defendant's petition for a 

writ of habeas corpus because defendant's constitutional rights were violated when the trial court admitted 

evidence of an earlier assault for which defendant had previously been acquitted. The court remanded the 

case with instructions to issue the writ of habeas corpus, subject to the state's right to retry defendant. 

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LexisNexis Headnotes 

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Double 

Jeopardy 

Criminal Law & Procedure > Double Jeopardy> Attachment Jeopardy 

Criminal Law & Procedure > Double Jeopardy> Collateral Estoppel 

Civil Procedure > Judgments > Preclusion & Effect of Judgments > General Overview 

Civil Procedure >Judgments > Preclusion & Effect of Judgments > Estoppel > General Overview 

Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > Collateral Estoppel 

Criminal Law & Procedure > Double Jeopardy> Double Jeopardy Protection >Acquittals 

The double jeopardy clause, which includes the doctrine of collateral estoppel, prohibits the state from 

relitigating, for any purpose, an issue which was determined in a prior prosecution of the same party. 

Hence, there is no difference between relitigating an ultimate fact or an evidentiary fact; relitigation of 

either is prohibited. 

Criminal Law & Procedure > Habeas Corpus > Retroactivity of Decisions > General Overview 

The constitution neither prohibits nor requires retroactive application of new decisions. 

Criminal Law & Procedure > Habeas Corpus > Retroactivity of Decisions > General Overview 

The standards for retroactive application are codified in a three-pronged test: (a) The purpose to be 

served by the new standards, (b) the extent of reliance by law enforcement authorities on the old 

standards, and (c) the effect on the administration of justice of the new standards. Foremost among these 

factors is the purpose to be served by the new constitutional rule. Substantial consideration should be 

given the last two factors only when the purpose of the rule in question does not clearly favor either 

retroactivity or prospectivity. 

Criminal Law & Procedure > Habeas Corpus > Retroactivity of Decisions > General Overview 

Where the major purpose of a new constitutional doctrine is to overcome an aspect of the criminal trial 

that substantially impairs its truthfinding function and so raises serious questions about the accuracy of 

guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good faith 

reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact 

on the administration of justice has sufficed to require prospective application in these circumstances. 

Criminal Law & Procedure > Habeas Corpus > Retroactivity of Decisions > General Overview 

Retroactivity has been denied where a new rule serves a broad social policy, where the rule does not go to 

the fairness of the trial, or where the flaw in the fact-finding process is either of secondary importance or of 

infrequent occurrence. But where a new rule is fashioned to correct a serious flaw in the fact-finding 

process and therefore goes to the basic integrity and accuracy of the guilt-innocence determination, 

retroactive effect is required. 

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Double 

Jeopardy 

Criminal Law & Procedure > Double Jeopardy > Collateral Estoppel 

Civil Procedure > Judgments > Preclusion & Effect of Judgments > General Overview 

Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > General Overview 

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.... l 
f!i 

Civil Procedure >Judgments > Preclusion & Effect of Judgments > Estoppel> Collateral Estoppel 

The double jeopardy clause, which includes the doctrine of collateral estoppel, prohibits a state from 

relitigating any issue which was determined in a prior prosecution of the same party. The purpose of this 

rule is bound up in the whole complex of values that the guarantee against double jeopardy represents. 

Constitutional Law >Bill of Rights >Fundamental Rights >Procedural Due Process > Double 

Jeopardy 

Criminal Law & Procedure > Double Jeopardy> General Overview 

The policy underlying the prohibition against double jeopardy is that the state with all its resources and 

power should not be allowed to make repeated attempts to convicfan individual for an alleged offense, 

thereby subjecting him to embarrassment, expense, and ordeal, and compelling him to live in a continuing 

state of anxiety and insecurity, as well as enhancing the possibility that even though innocent·he may be 

found guilty. 

Constitutional Law >Bill of Rights > Fundamental Rights >Procedural Due Process > Double 

Jeopardy 

Criminal Law & Procedure > Double Jeopardy> Attachment Jeopardy 

It is fundamentally unfair and totally incongruous with our basic concepts of justice to permit the sovereign 

to offer proof that a defendant committed a specific crime which a jury of that sovereign has concluded he 

did not commit. Otherwise a person could never remove himself from the blight and suspicious aura which 

surround an accusation that he is guilty of a specific crime. 

Criminal Law & Procedure > Habeas Corpus >Retroactivity of Decisions > General Overview 

People are not to be punished by procedures which present a serious risk that the issue of guilt or 

innocence may not have been reliably determined, or which produce a clear danger of convicting the 

innocent. Practices, procedures, or statutes which present the probability of risk of such consequences 

must be eradicated and the surest way is to prescribe retroactivity. 

Opinion 

Opinion by: MORGAN 

Opinion· 

(510 F.2d 1016j MORGAN, Circuit Judge. 

At issue in this case is the retroactivity vel non of the principle announced in Wingate v. Wainwright, 

464 F.2d 209 (5th Cir. 1972). We believe that the weight of precedent supports the retroactive 

application of the Wingate principle, and we therefore reverse the district court. 

On January 19, 1967, the petitioner was charged in an amended information with (1) breaking and 

entering a dwelling and unlawfully assaulting a person therein, a_nd (2) attempted crime against 

nature. The petitioner entered a plea of not guilty and the trial by jury commenced. 

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At trial, Rosemarie Fletcher identified the petitioner as the person who broke into her apartment and 

attempted to sexually assault her. She had seen only the profile and back of her assailant, but she 

furnished police with a description of the assailant and she identified the petitioner in a line-up. In 

addition to Fletcher, the state presented the testimony of two additional women, Catherine Austin and 

Patricia McCune, both of whom lived in the same apartment complex as Fletcher. Austin and McCune 

identified the petitioner as the assailant who had likewise broken into their apartments and had 

sexually assaulted them. 

The petitioner had previously been acquitted after a trial by jury of the assault on McCune. At trial for 

the assault on Fletcher, McCune's testimony was admitted over petitioner's objection as evidence of a 

similar offense tending to establish the identity of the petitioner as Fletcher's assailant. 

Petitioner testified in his own behalf and presented an alibi defense. In addition to the three positive 

identifications of the petitioner, the state presented evidence that four fingerprints of one hand and the 

thumb print of the other hand lifted from the jalousie window slats of the kitchen door of Fletcher's 

apartment (where the break in occurred) were those of the petitioner. 

The guilty verdict was followed by an unsuccessful direct appeal in which the petitioner claimed that 

McCune's testimony was improperly admitted into evidence. Blackburn v. State, 208 So. 2d 625 

(Fia.App.1968). Defendant's petition for a writ of habeas corpus- alleging that the holding in Wingate 

should be retroactively applied to his trial, and, hence that McCune's testimony was inadmissible -

was subsequently denied by the district court. 1 

II. 

The collateral estoppel notion, upon which petitioner relies, has been applied in the area of criminal 

law only recently. 

In Ashe v. Swenson, 397 U.S. 436,90 S. Ct. 1189,25 L. Ed. 2d 469 (1970) a federal (510 F.2d 1017) 

habeas corpus petitioner attacked his state conviction for the robbery of one of six men engaged in a· 

poker game. The petitioner had previously been acquitted of the robbery of another one of the same 

poker players. The single issue In dispute at both trials was whether the petition~r had been one of the 

robbers. The Supreme Court held that the federal notion of collateral estoppel precluded relitigation of 

the petitioner's participation in the robbery and that this rule is embodied in the double jeopardy clause 

of the Fifth Amendment. 

In Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972) this Circuit significantly expanded the Ashe 

holding. In Wingate a federal habeas corpus petitioner attacked his conviction for the rob~ery of a 

small store. At his trial, the state introduced evidence tending to show that Wingate had committed 

four additional robberies; he had been tried for and acquitted of two of these robberies. In his closing 

remarks there was heavy reliance by the prosecutor on the evidence of additional robberies. 

This court held that Ashe does not merely bar a subsequent state prosecution, the maintenance of 

which depends upon a successful relitigation of a fact issue which had previously been settled 

adversely to the state by an earlier acquittal. Rather, the double jeopardy clause, which includes the 

doctrine of collateral estoppel under Ashe, prohibits the state from relitigating, for any purpose, an 

issue which was determined in a prior prosecution of the same party. Hence, there is no difference 

between relitigating an ultimate fact or an evidentiary fact; relitigation of either is prohibited. 

Ill. 

Blackburn's trial occurred before our decision in Wingate. Since the facts before us are virtually 

identical to those of Wingate, we must determine whether Wingate is to be applied retroactively. 2 

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{510 F.2d 1018} In Linkletterv. Walker. 381 U.S. 618,85 S. Ct.1731, 14 L. Ed. 2d 601 (1965), the 

Supreme Court held that the Constitution neither prohibits nor requires retroactive application of new 

decisions. In considering the retroactivity of subsequent rulings, the Court resolved to look at the prior 

history of the rule in question, its purpose and effect, and whether retrospective effect furthers or 

retards its operation. /d. at 626, 85 S. Ct. 1731. 

Shortly thereafter, the standards for retroactive application were codified in a three-pronged test: 

(a) The purpose to be served by the new standards, (b) the extent of reliance by law enforcement 

authorities on the old standards, and (c) the effect on the administration of justice of the new 

standards. Stovall v. Denno, 388 U.S. 293,297,87 S. Ct. 1967, 1970, 18 L. Ed. 2d n99 (1967). 

"Foremost among these factors is the purpose to be served by the new constitutional rule." Desist v. 

United States, 394 U.S. 244, 249, 89 S. Ct. 1030, 1033, 22 L. Ed. 2d 248 (1969). Substantial 

consideration should be given the last two factors "only when the purpose of the rule in question 

[does] not clearly favor either retroactivity or prospectivity." /d. at 251, 89 S. Ct. at 1035; see Michigan 

v. Payne, 412 U.S. 47, 55, 93 S. Ct. 1966, 36 L. Ed. 2d 736 (1973); United States v. Scott, 425 F.2d 

55, 58 (9th Cir. 1970) (en bane). Moreover, 

where the major purpose of a new constitutional doctrine is to overcome an aspect of the criminal 

trial that substantially impairs its truthfinding function and so raises serious questions about the 

accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. 

Neither good faith reliance by state or federal authorities on prior constitutional law or accepted 

practice, nor severe impact on the administration of justice has sufficed to require prospective 

application in these circumstances. Williams v. United States, 401 U.S. 646, 653, 91 S. Ct. 1148, 

1152, 28 L. Ed. 2d 388 (1971) (plurality opinion). 

Hence, retroactivity has been denied where a new rule serves a broad social policy, Williams v. 

Estelle, 500 F.2d 206, 208 (5th Cir. 1974), where the rule does not go to the fairness of the trial, or 

where the flaw in the fact-finding process is either of secondary importance or of infrequent 

occurrence, United States v. Scott, 425 F.2d 55 (9th Cir. 1970) (en bane) and cases cited therein. But 

where a new rule is fashioned to correct a serious flaw in the fact-finding process and therefore goes 

to the basic integrity and accuracy of the guilt-innocence determination, retroactive effect is required. 

United States v. Scott, supra. at 58 and cases cited therein; see Williams v. Estelle, supra, 500 F.2d at 

208. 

We must therefore determine the purpose behind the Wingate rule and whether this purpose relates 

to the integrity of the fact-finding system. The Wingate case. of course, held that the double jeopardy 

clause. which includes the doctrine of collateral estoppel, prohibits a state from relitigating any issue 

which was determined in a prior prosecution of the same party. The purpose of this rule is bound up in 

the whole complex of values that the guarantee against double jeopardy represents. Cf. Tehan v. 

Shott, 382 U.S. 406,414, 86 S. Ct. 459, 15 L. Ed. 2d 453 (1966). 

The policy underlying the prohibition against double jeopardy 

is that the State with all its resources and power should not be allowed to {510 F.2d 1019} make 

repeated attempts to convict an individual for an alleged offense, thereby subjecting him to 

embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety 

and insecurity, as well as enhancing the possibility that even though innocent he may be found 

guilty. United States v. Jom, 400 U.S. 470, 479, 91 S. Ct. 547, 554, 27 L. Ed. 2d 543 (1971). 

In order to protect "a man who has been acquitted from having to 'run the gantlet' a second time," 

Ashe incorporated the rule of collateral estoppel into the guarantee of double jeopardy. Ashe v. 

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Swenson, 397 U.S. 436, 446, 90S. Ct. 1189, 1195, 25 L. Ed. 2d 469 (1970). Wingate expanded this 

notion to include evidentiary as well as ultimate facts because 

IV. 

it is fundamentally unfair and totally incongruous with our basic concepts of justice to permit the 

sovereign to offer proof that a defendant committed a specific crime which a jury of that sovereign 

has concluded he did not commit. Otherwise a person could never remove himself from the blight 

and suspicious aura which surround an accusation that he is guilty of a specific crime. Wingate v. 

Wainwright, 464 F.2d 209,215 (5th Cir. 1972). The Wingate court indicated that this evidence of 

prior acquittals was "prejudicial" and, hence, admission of such evidence could certainly influence 

the integrity of the fact-finding system. 3 We therefore find that the Wingate rule warrants 

retroactive application. 

The state argues that any error made in Blackburn's trial was harmless, but petitioner responds that it 

would be inappropriate to apply the "harmless error analysis" to a double jeopardy claim. We need not 

decide whether a collateral estoppel claim is susceptible to harmless error analysis, for we find that 

the error committed in this case could not be adjudged harmless even if the appropriate constitutional 

standards were applied. 

Recent Supreme Court decisions regarding "harmless constitutional error'' inquire as to "whether there 

is a reasonable possibility that the evidence complained of might have contributed to the conviction." 

Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705 (1967). Only if the court 

can declare with confidence "beyond a reasonable doubt" that such a possibility is excluded by the 

record can it declare a constitutional error harmless. /d. at 24, 87 S. Ct. 824; see Schneble v. Florida, 

405 U.S. 427,430,92 S. Ct .. 1056,31 L. Ed. 2d 340 (1972); Milton v. Wainwright, 407 U.S. 371,92 S. 

Ct. 2174,33 L. Ed. 2d 1 (1972); Harrington v. California, 395 U.S. 250,89 S. Ct. 1726,23 L. Ed. 2d 

284 (1969); Null v. Wainwright, 508 F.2d 340 (5th Cir. 1973); Vaccaro v. United States, 461 F.2d 626, 

637-38 (5th Cir. 1972). 

The evidence against Blackburn was quite convincing." However, in his closing argument the 

prosecuting attorney disparaged the testimony of Fletcher (the alleged victim in the case sub judice) 

and relied upon the combined effect of all three identifications to establish reliability. 4 Under these 

circumstances {510 F.2d 1020} it is impossible for us to conclude that the erroneous admission of 

McCune's testimony was harmless beyond a reasonable doubt. • 

Reversed and remanded with directions to issue the writ, subject to the state's right to re-try the 

defendant. 

Footnotes 

Petitioner was paroled on May 1, 1973, from the sentence presently under attack. 

2 

Petitioner contends that the Wingate court's application of the modified Ashe principle to a conviction 

that became final prior to the date of the Ashe decision is indicative of this court's view of the 

retroactivity question. That is, petitioner contends that this court applied the collateral estoppel rule 

retroactively in reversing the denial of habeas corpus relief to Wingate. 

While there is some dicta suggesting that a review of a denial of habeas corpus relief effectively 

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enunciaies a retroactive rule, see Johnson v. New Jersey, 384 U.S. 719, 729, 86 S. Ct. 1772, 16 L. 

Ed. 2d 882 (1966); Williams v. Estelle, 500 F.2d 206 (5th Cir. 1974), we need not d~cide that question 

because we find that a retroactive application of the Wingate rule is required by the Linkletter v. 

Walker, 381 U.S. 618,85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965) analysis. 

Petitioner also contends that Robinson v. Neil, 409 U.S. 505, 93 S. Ct. 876, 35 L. Ed. 2d 29 (1973) 

mandates a retroactive application of Wingate. In Robinson the Supreme Court held that Waller v. 

Florida, 397 U.S. 387, 90S. Ct. 1184, 25 L. Ed. 2d 435 (1970) which barred a state and municipal 

prosecution for the same act or offense, fully retroactive. The court indicated that "the prohibition 

against being placed in double jeopardy is ... not readily susceptible of analysis under the Unkletter 

line of cases." Robinson v. Neil, supra, 409 U.S. at 508, 93 S. Ct. at 878. 

We believe that the Supreme Court's retroactive application of double jeopardy principles, see 

Robinson v. Neil, supra, lends support to the conclusion that the Wingate decision should be 

retroactively applied. Cf. Vaccaro v. United States, 461 F.2d 626, 632-33 (5th Cir. 1972). However, we 

do not believe that Robinson is entirely dispositive of the question before us, for the rationale of 

Robinson was based upon the fact that double jeopardy principles normally preclude a new trial 

entirely, while procedural guarantees merely relate to the method of conducting trials: 

The guarantee against double jeopardy is significantly different from procedural guarantees held 

in the Unk/etler line of cases to have prospective effect only. While this guarantee, like the others, 

is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking 

place at all, rather than to prescribe procedural rules that govern the conduct of a trial. A number 

of the constitutional rules applied prospectively only under the Unkletter cases were found not to 

effect the basic fairness of the earlier trial, but to have been directed instead to collateral purposes 

such as the deterrence of unlawful police conduct, Mapp v. Ohio, supra. In Waller, however, the 

Court's ruling was squarely directed to the prevention of the second trial's laking place at all, even 

though it might have been conducted with a scrupulous regard for all of the constitutional 

procedural rights of the defendant. Robinson v. Neil, supra, 409 U.S. at 509, 93 S. Ct. at878. 

While the Wingate rule is rooted in the principle of double jeopardy, its operation merely precludes the 

introduction of certain disfavored evidence. In light of the Robinson rationale it would be unreasonable 

for us to conclude that the Supreme Court in Robinson was addressing itself to the exclusion of 

evidence of prior crimes and, hence, intended Robinson to apply to procedural guarantees based 

upon the principle of double jeopardy. We therefore prefer to rest our decision upon the Unkletlet line 

of cases. 

3 

See Vaccaro v. United States, 461 F.2d 626, 633 (5th Cir. 1972): "We distill from this whole body of 

cases the Court's value judgment that people ... are not to be punished by procedures which present 

'a serious risk that the issue of guilt or innocence may not have been reliably determined,' or which 

produce a 'clear danger of convicting the innocent.' Practices, procedures or statutes which present 

the probability of risk of such consequences must be eradicated and the surest way is to prescribe 

retroactivity'' (footnotes omitted). 

4 

In his closing argument, the prosecuting attorney said: 

Where is your reasonable doubt about Catherine Austin identifying this man? Rosemarie Fletcher 

seeing his profile, the thinning hair in the back of the head, possibly her alone I would hate to 

convict this man on that kind of identification (sic]. I would be loathed too [sic], even in the case of 

the kind of testimony when you are trying a man by (sic]lhe heinous crime, but we are trying him 

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because he committed a crime against the laws of the State of Florida. So that Rosemarie 

Fletcher, with the profile, with the thinning hair, this is very weak, but Catherine Austin. now we've 

got the law of probability working. Take that again. It gets better, much better. Pat McCune. ·Now 

we've got an identification that is almost nailed down. We've got three sensible girls standing up 

there and never flinching, never turning an eye. Are you going to kick that away like it was trash 

and rubbish, that kind of identification? 

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