## I N THE COURT OF CRIMINAL APPEALS OF TEX AS
NO. PD-1096-19

EX PARTE CHRISTOPHER RION, Appellant

ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS

DALLAS COUNTY W A L K E R 

### , J., delivered the opinion of the Court, in w hich KE L L E R 

### , P.J., and H E R V E Y 

### , R I C H A R D S O N 

### , Y E A R Y 

### , N E W E L L 

### , KE E L 

### , and M C 

### C L U R E 

### , JJ., joined. S L A U G H T E R 

### , J., concurred in the result. O P I N I O N

W e withdraw our prior opinion and substitute this opinion. Christopher Rion, Appellant, crashed his v ehicle into a nother vehicle, leading to injuries to the o ther vehicle’s driver a nd the eventual death of i t s passeng er. F or that death, Appellant was charg ed w ith manslaug hter, but the jury found him “not g ui l t y ” of that offense a nd of the lesser included offense of criminally neg lig ent homicide. The State then proceeded to prosecute Appellant for the injuries to the driver on a charg e of ag g ravated assault for intentionally , k n o w i n gl y , or recklessly causing bodily injury with a deadly weapon. Appellant challeng ed the second prosecution2

as barred by c ollateral estoppel. The c ourt of a

ppeals held that collateral e stoppel applied and barred t h e s u b s equent prosecution for reckless ag g ravated assault because the jury in the manslaughter trial d ecided that Appellant was not reckless in causin g t h e collision, which would b e a n essential element in the ag g r avated assault trial. Ex parte Rion , No. 0 5-19-00280-CR, 2019 W L 4386371, at *9 ( Tex

. App.—Dallas Sept. 13, 2019) (mem. op., not designated for publication). 1 W e reverse. Althoug h both trials involv e t h e issue of whether Appellant was reckless, manslaug hter and ag g ravated as s a u l t causing bodily injury are “ result o f conduct” offenses. The

r esults—death and bodily injury —are different, and the culpable mental state of r ecklessn e s s attaches to those results. B y its verdict of “ not g u ilty ” in the first trial, the jury necessarily determined that Appellant was not reckless and therefore necessarily determined that Appellant was not aware of a risk of death as a r esult of his conduct. B ut the jury did not necessarily d etermine that Appellant lacked awareness of a risk of bodily injury a s a r e s u l t of his conduct. Collateral estoppel does not prohibit the subsequent prosecution for reckless ag g r avated assault causing bodily injury

. I — Background In August 2015, Appellant, driving a Dodg e Challeng er, crashed into a Toy ota Hig hlander. A s a r e s u l t of the collision, the driver of the Toy o ta, Claudia L oehr, and the passeng e r, Claud en a Parnell, both suffered injuries. Parnell died several day s later at the hospital. Appellant was charg ed in two separate indictments. The first charg ed him with manslaughter for the death of Parnell, and the second charg ed him with ag g r avated assault w ith a d eadly weapon

1 As for intentional a nd knowing ag g ravated assault, the court of appeals stated that it “cannot conclude [ the State ] i s c ollaterally estopped from trying appellant for intentionally or knowing ly

causing the accident.” R ion , 2019 W L4386371, at *9.3

for the injuries to L oehr. Appellant moved to consolidate both cases for a sing le trial, b ut the motion

was o pposed by the State and d enied by the trial court. In April 2018, a jury trial commenced in the manslaug hter case. I(A) — The Manslaughter Trial As recited by the court of a ppeals, the State presented the following undisputed facts during the manslaug hter trial: On Augu s t 1, 2015 at about 5:30 p.m., an accident occurred on the 5400 block of Arapaho in Dallas at the intersection with Prestonwood involving a Dodg e d riven by Appellant and a 2006 Hig h lander driven by [ L oehr]

. Appellant fa i l e d t o d r i v e in a sing le lane of traffic, crossed over into the eastbound lane, jumped the median, a nd collided into the front of the Highlander. At the time of impact, Appellant was driving a bout 71 miles- p e r - hour. The speed-limit on that section of Arapaho is 40 miles-per-hour. The impact caused the Hig hlander to travel backwards about 200 feet and stop[ ] on the sidewalk in the 5500 block of Arapaho. The H ig hlander was f acing westbound and the Dodg e w as facing so uthbound. T he impact caused non-life-threatening injuries to [ L oehr] and l i f e - t hreatening injuries to [ Parnell] who w as riding in the front passeng e r-seat. F our d ay s later, [Parnell] p assed away at the Medical Center of Plano. Rion , 2019 W L 4386371, a t * 6

. A fter the accident, Appellant was briefly unconscious and had to be pulled out of his vehicle by Doug las J ohnson, w ho witnessed the accident. W hen Appellant came to, he told J ohnson that he (Appellant) needed to leave. J ohnson told Appellant he could not leave. J ohnson then left Appellant in the care of another man o n the scene. J ohnson, a p hy sician’s assistant, said he checked on Parnell a nd noted her head was bloodied f rom h itting the windshield, which shattered during the impact. J ohnson said Parnell was initially alert, but o ver time she became less responsive. W i l l iam Cantwell, a

nother witness to the accident, testified that w hen he approached4

Appellant a fter the accident, Appellant said he n eeded to leave a nd tried to jump an apartment f ence but was pulled d own. Cantwell stay ed with Appellant until an off-duty Dallas police officer, Greg ory W atkins, approached and detained Appellant. W atkins, who had been driving in the area when he

came across the accident, called for backup and stay ed with Appellant until on-duty officers arrived. W itnesses observed that Appellant’s ey es were dilated after the accident. No sig ns of alcohol

were detected, a

nd Appellant’s blood was n o t tested. 2 Authorities released Appellant without charg e or arrest. Dr. J ill Urban, the f

orensic patholog ist who performed the autopsy of Parnell, testified that Parnell died as a r e s u l t o f “blunt-force injuries and/or complications” resulting from the car accident. 3 The defense did not dispute that the collision was the c ause o f d eath throug h its crossex amination of Urban, but the defense did have Urban r eiterate h er conclusion that the manner of death was an accident. In c ross-ex amining th e S tate’s w itnesses, the defense did not c ontest their recollections of events or attempt to undermine their credibility

. To support the d efense theory that Appellant had a mental b reak as he was leaving W almart, where h e had g one g rocery shopping , defense counsel established throug h cross-ex amination of the State’s witnesses that no one could dispute Appellant had come from W almart aft e r h a v i ng boug ht g roceries there. The defense also elicited testimony from witnesses acknowledg ing that they did not know why Appellant was speeding that day and that collisions occur for reasons other than a driver being r eckless—such as for medical or mental health

2 The court of appeals noted in its o pinion that Appellant passed f ield sobriety t e s t s ; however, the jury

was not privy to this fact.

3 Clerk’s R. at 307.5

reasons. Once the State reste d , t h e defense argued that the State had failed to prove the element of recklessness and moved for a directed verdict. The motion was denied. During the d efense’s case in chief, the jury heard testimony f r o m A p p e l lant; D r. L isa Clay

ton,

a psy chiatrist; a

nd Rog er Rion, Appellant’s father. Appellant, who was forty

- three years old when the collision occurred, testified that he beg an seeing mental health doctors as a nine-y ear-old. Diag nosed with major a nx i e t y , major depression, obsessive compulsive d isorder (OCD), and attention deficit hy

peractivity disorder (ADHD), Appellant had been pre s c r i b e d a variety of medications throug hout h is life. At the time of the collision, he was prescribed A d derall, Ambien, L ex a pro, and Valium. No doctor had told him he co u l d n o t drive while medicated. Prior to the collision, Appellant had never h ad a vehicle accident or been in trouble for speeding or drinking and driving

. On the day of the collision, Appellant took an Adderall ar ound 6:30 a.m. and a Valium around 10:30 a.m. He left his apartment at about 3:00 p.m. to buy g roceries at W almart. As he was leaving W almart, Appellant ex perienced “mental-health-issue stress” because he

was concern e d h i s f

a t her, who supported Appellant, would be ang ry about h ow much money he spent. B efore driving

out of the parkinglot, Appellant sat in his car for about ten minutes to catch his breath. He was in a bit o f panic and knew h e needed to g et home. As h e drove out of the lot, he did n ot take the same ex it that he ty pically did. Appellant d id not know why he took a different ex it, and he did not remember driving off. Appellant said he had not been drinking alcohol the day of the accident, and he had not taken or used any drug s not prescribed to him. Appellant said he passed out during the accident and woke up to J ohnson pulling h im out of the vehicle. Appellant was in shock a nd “super p aranoid” after the a ccident. Ap pellant said he tried6

to jump the a

partment fence because he felt threatened by the crowd and thoug ht the fenc e would be a g ood barrier between him and the c r o w d

. He r emembered telling a n officer on the scene that

someone els e m u s t have been driving and that h e did not remember any thing

. Afterward, a friend

came to pick Appellant u p, and his c a r w a s t o w ed t o a collision repair center. He learned about Parnell’s death f

rom his insurance c ompany about a month after the accident. Appellant e x perienced suicidal thoug hts af

t e r finding out that he had caused the accident that led to Parnell’s death and L oehr’s injuries, and he wished it had b een him who died instead of Parnell. Ap p el l a nt, who was diag nosed with post-traumatic stress disorder and bipolar disorder after the accident, said he had not driven since the accident a n d had moved into a shared home with seven roommates who suffer from mental health issues. D r. L i s a Clay

ton, a forensic psy chiatrist h ired by the defense to evaluate Appellant and provide testimony , told the jury that she had diag nosed Appellant with g eneraliz ed anx iety disorder with panic attacks, bipolar disorder, and depression. She also noted Appellant h ad a long diag nostic history of ADHD. A ccording to Clay ton, someone suffering f

rom the same ty

pes of mental illnesses

as Appellant would need to have their medication constantly adjusted to maintain the e ffectiveness of the treatment. Clay

ton likened mental illnesses to p hy sical diseases requiring treatment and to be kept under control with medication, such as hig h blood pressure, cancer, and diabetes. Clay ton ex plained that duringa severe panic attack, a person could ex perience a psy chotic episode wherein the person feels like they are not part of reality and may suffer from paranoia and delusions. A person e x periencing a psy chotic e p i s ode would n ot have complete control of their mental and phy sical faculties and may not have memory of events that took p lace during the episode. Clay ton, trained in detecting sig ns of maling ering , testified that Appellant was not faking his mental7

illnesses. On cross-ex amination, Clay ton ex plained that, in the six months before Appellant’s trial, she had testified as a witness in other trials, twice for the defense a nd three times for the State. She acknowledg ed that her three meeting s with Appellant were after he had been indicted and that being under indictment could cause someone t o b e stressed and depressed. Clay ton said that in her

ex p erience, the most c ommon indication that someone is maling e ring is a lack of a history of mental illness. Appellant’s father, Rog er Rion, told the jury that Appellant beg an seeing a doctor at ag e nine, and, over the y ears, he had seen many doctors for his mental illnesses. Rion said there was no w ay Appellant was faking

his mental health issues. Rion described Appellant as a timid, careful driver with “ ex cellent driving habits.” After the accident, Rion and his wife went to Appellant’s apartment, but Appellant could not communicate what had happened during the accident. Appellant’s chest was bruised as a r e s ult of the accident, but he refused to see a doctor. Rion w as financially supporting Appellant at the time of the accident. At the close of evidence, the trial court read to the jury the charg e of the court, which included manslaug hter as w ell as the lesser-included offense of criminally neg lig ent homicide. The State centered its closing a r g uments around the element of recklessness. In so d oing , the State emphasiz ed that voluntary intox ication is not a defense. Duringits closing arguments, the defense a cknowledg ed the trag edy o f Parnell’s death but argued to the jury that her death was t h e result of an accident and not Appellant’s recklessness. Defense counsel hig hlig hted e v idence of Appellant’s lack of previous traffic tickets or vehicle accidents and reiterated its theory that the accident occurred when Appellant had a “break” during a “panic attack.” The d e f

ense contended that the State did not present any evidence that Appellant8

was aware of and consciously disreg arded a r isk that someone would die as a result of his conduct. The d efense argued th a t t h e S t ate w as seeking veng eance, not justice, and criticiz ed the State’s treatment of Appellant. In r ebuttal, the State urg ed the jury to reject Appellant’s “story about h is mental health” and find that Appellant’s reckless actions were what k illed Parnell. 4 The jury instead acquitted Appellant of both manslaug hter and criminally neg lig ent homicide. I(B) — Subsequent P roceedings F ollowing Appellant’s acquittal, the State soug h t to try Appellant on the ag g ravated assault with a deadly weapon offense. Appellant filed a pretrial application for writ of h a beas c orpus arguing that collateral estoppel p rohibited the State from prosecuting him for a g g ravated a ssault because the first jury necessarily decided that Appellant did not act recklessly

. The State responded that even if the first jury decided that Appellant did not recklessly cause Parnell’s death, that was not the same issue as whether Appellant recklessly caused bodily injury to L oehr. T h e t r i al court denied Appellant’s pretrial application. On appeal, the court o f appeals reversed. The court of appeals concluded that “the ultimate issue the jury decided was that appellant did not recklessly cause the death of [ Parn e l l ] b y consciously disreg arding a substantial and unjustified risk that h is conduct in driving seventy -one miles per hour in a forty -mile-per-hour z one and losing control of his v ehicle causing it to cross the median and striking [ L o ehr] ’ s v ehicle would result in [ Parnell] ’s d e ath.” Rion , 2019 W L 4386371, at *8. W e g ranted the State’s petition for discretionary review on the following

g round:

4 Clerk’s R. at 532.9

Collateral estoppel a

p p lies onl y when two issues are identical. In Appellant’s manslaug hter trial, the jury w as charg ed to consider whether Appellant “recklessly caused the d eath” of the c omplainant. In a pending ag g r avated assault trial, the jury will be cha r ge d t o c o nsider whether he “recklessly caused bodily injury ” to a different complainant. T h e court of appeals held that collateral estoppel applies. W as the court right? II — Collateral Estoppel Embodied in the F ifth Amendment’s g uarantee ag ainst dou ble jeopardy , the d octrine of collateral estoppel is an “ex tremely important principle in o ur a dversary sy stem” and “means simply that when an issue of ultimate fact has once been determined by a valid a nd final judg ment, that issue cannot ag ain be litig ated between the same parties.” A she v. Swenson , 397 U.S. 436, 443 (1970). Confronted with the issue of whether collateral estoppel a pplies to bar a subsequent trial, courts must determine: (1) w hat facts were necessarily decided in the first proce e d ing ; and (2) w hether those necessarily-decided facts c onstitute essential e lements of the offense in the second trial. Ex parte Taylor , 101 S.W .3d 4 34, 440–41 ( Tex

. Crim. App. 2002) (citing Neal v. Cain , 141 F .3d 207, 210 (5th Cir. 1998)). Evaluating w hat facts were necessarily decided by the factfinder in the first trial requires an

ex amination of the entire trial record, as well as the pleading s, the charg e, and the arguments of the attorney s. E

x parte W atkins , 73 S.W .3d 2 6 4, 268–69 (Tex

. Crim. App. 2002) (citing Ashe , 397 U.S. at 444). B efore collateral estoppel can apply , a court “must be able to say that ‘it would have been irrational for the jury ’ to a c q u i t i n t he first trial without f inding in the defendant’s f avor on a fact essential to a conviction in the second.” Ex parte Adams , 586 S.W .3d 1, 5 (Tex

. Crim. App. 2019) (quoting Currier v . Virginia , 138 S.Ct. 2144, 2150 (2018)). Collateral estoppel “is limited to cases where the leg al and factual situations are identical.” Taylor , 101 S.W .3d at 4 41 (internal quotations10

and citations omitted). W e recently a ddressed this doctrine in Adams , in which the defendant was indicted in two separate causes with ag g ravated assault for stabbing two brothers, J u stin and J oe, during the same incident. A dams , 586 S.W .3d at 2. J ustin was directly assaulting another person, L uke Hisey , who

was knocked to the g round and rendered unconscious. Id. at 2–3. J oe, meanwhile, stood nearby and,

a cc ording to Adams, p r evented Adams from assisting H isey

. Id. at 3. Adams stabbed both of t h e brothers. Id. at 2 –3. During the first trial for ag g r avated assault a g ainst J ustin, Adams successfully

a r g ued that he acted in defense of a third person and was acquitted. Id. at 4, 8. W hen the St a t e proceeded to try Adams in the second case for ag g ravated assault a g ainst J oe, Adams filed a pretrial application of writ of habeas co r p u s a r g u i n g that collateral estoppel barred the State from prosecuting him for the second ag g ravated assault charg e, w hich the trial court denied. Id. at 3

. The court of appeals reversed and remanded with instructions that the trial court g rant habeas relief. I

d. at 3–4. On discretionary review, this Court ag reed wi t h the court of appeals that the first jury necessarily decided that A dams was justified in his use of f orce w hen he stabbed J ustin in defense of Hisey

. Id. at 8

. However, we reversed because whether Adams was justified in u sing f o rce ag ainst J ustin was not t h e s a me issue as whether Adams was justified in u sing force a g ainst J oe. Id. at 4, 8. In other words, whether Adams was justified in using force ag ainst J o e was not necessarily decided by

the jury in his first trial. Id. at 8. III — Analysis In askingthis Court to reverse the court of appeals in the case before us, the State presents two main arguments for why collateral estoppe l d o es n o t apply here: (1) the jury could have acquitted based on causation and not recklessness; and (2) e ven ifjury did decide that Appellant was11

not reckless because he was not a ware of a risk of death, they did not de ci d e i f h e w a s reckless because he was not aware of a r isk of bodily injury , so the issues are n ot precisely the same. W e will address each arg

ument in turn. III(A) — Causation Was Not a Rational P ath to Acquittal The State a

rgues that the jury could have acquitted Appellant on the basis o f causation because Parnell’s death was attenuated from the collision. 5 In its brief and at oral argument, the State points to evide n c e t h a t p a r amedics and responding police o n the scene o f the collision did not consider Parnell to be “ low sick,” which is a term used by first responders when there is a “decent chance” of death. 6 Additionally , officers released Appellant at the scene, rather than arresting him. L oehr, who was in the same car and injured in the same collision, lived. The hospital reset Parnell’s femur just fine, and Parnell did not die rig ht away . I n s t e a d , she died f our day s later from complications that arose while she was recovering

. She had hy pertensive cardiovascular disease and chronic kidney disease, and she suffered renal failure and a cardiac arrest. And those incidents did not kill Parnell, because she was r e suscitated. She died only a fter l i f e s u p p ort measures were discontinued. Therefore, the State argues, it cannot be said that either causation or recklessness was necessarily

decided by

the jury , and collateral estoppel does not apply

. I t is true that the State h ad to prove both causation and recklessness for the jury to convict Appellant, and it is true that if the jury could have acquitted based on either of those g rounds then

5 Prior to its petition for d iscretionary review, the State d id not make the argument that the j u ry c o u l d have acquitted Appellant based on c ausation not being proved. In fact, the Stat e previously argued in its response to Appellant’s p re-trial a pplication a

nd ag a in in its brief to the court of appeals that causation was n ot in disp u t e . C l e rk’s R. at 693; B rief for the State at 20–21, R ion , 2019 W L 4386371.

6 Clerk’s R. at 268.12

collateral estoppel would not apply

. However, we do not ag ree that causation was a r ational path to acquittal. The State contends that during the manslaug hter trial, “ Appellant contested causation when his attorney sug g ested that the ‘accident’ manner of death referred to a superseding c ause occurring in the hospital a month after the collision.” 7 In making this a rgument, the State cites the defense’s

cross-ex amination of Urban in which the defense c onfirmed Urban’s c onclusion that the manner of death was an “accident” and asked her the date of her report. Althoug h U rban testified that Parnell had underly ing health condition s , s u ch as kidney disease and an e nlarg ed heart, p rior to the accident, when considered in contex t of the defense theory and the record as a whole, it is apparent that in cross-ex amining Urban the defense was not attempting to dispute that the accident caused Parnell’s death. Rather, Urban’s conclusion that the

manner of death was an “accident” supported the defense’s theory that the collision was just that—an accident caused by

Appellant’s mental break. As to the “cause of death,” the State elicited the following testimony : [ STATE] : Okay

. I want to take y ou to the last pag e, which say s “F inding s.” Can y ou please speak to that.

. . . [ URB AN] : F inding number three is the conclusion, just describing that she had been in a motor vehicle collision and, while in the hospital, w hen she was recovering , she developed progressive renal failure and suffered cardiac arrest. [ STATE] : And what’s your ultimate conclusion? [ URB AN] : So, I ruled that she di e d a s a result of blunt-force injuries and/or complications.

7 B rief for the State at 25.13

[ STATE] : I s that a result of the car accident? [ URB AN] : Yes. 8 Urban ’ s u n e q u i v o c a l a n d u n c o ntested testimony reg arding cause of death does not support the State’s contention that the jury could have found that Parnell’s death was “attenuated f rom and an unlikely result of the collision.” 9 The State does not point to any other evidence that supports its assertion that a rational jury could h ave acquitted Appellant b ased on the State’s failure to prove causation. In cross-ex amining other State witnesses, the d efense did not attempt to dispute that Appellant caused the accident or that Parnell died as a result. Nor did any defense w itne s s p rovide any testimony putting into q u estion the issue of causation. At no point during App e l l a n t ’ s t e s timony did he attempt to dispute that he caused the accident o r t h at Parnell died as a result. Instead, Appellant ex pressed remorse to Parnell’s family , told the jurors he wished i t h a d b een him who had died instead, and said he w ished he had a time machine so he c ould g o back and chang e thing s. Throug h th e s e s t at e m ents, Appellant took responsibility

for causing

the accident that resulted in Parnell’s death. During c losing arguments, the State focused on proving that Appellant a ct e d recklessly in causing the accident and urg ed the jury to reject the defense theory that the accident occurred when Appellant had a mental break. F or ex ample, the State arg ued: Either this man g unned it down the road a nd took the life of someone e lse a nd

8 Clerk’s R. at 306–07.

9 B rief for the State at 24. Citing Urban’s report, the State also asserts in its brief that Parnell suffered a heart attack. I

d

. H owever, Urban’s report only mentions “acute cardiac arrest,” which means Parnell’s h eart stopped but n ot necessarily that she suffered a heart attack. Clerk’s R. at 638.14

someone else’s family , b ecause he wanted to speed; or he took t o o m a n y medications, mix ed them up and then decided to drive. That’ s s t i l l a conscious disre ga r d

. He was a

ware of his actions. He knew it was wrong . T hat’s what recklessness is. 1 0 The transcript of the State’s closing arguments spans twenty pag es, and the State touch e d o n the issue of causation only once. 1 1 The lack of argument reg a rding causation indicates the State was not concerned t h a t t h e j ury would acquit Appellant on a finding that the State failed to prove that element. Much like the State’s closing , the defense centered its arguments around t h e i s s ue of recklessness. The d e f

ense d id not make a case for acquittal based on causation or e ven mention that element. To the contrary , the defense acknowledg ed that Appellant caused the accident that led to Parnell’s death when he had a mental break while leaving W almart. The defense spent a sig nificant amount o f time discussing Appellant’s mental illness and refuting the State’s a r gu m e n t that Appellant may have been voluntarily intox icated on his medications when he caused the accident. Defense counsel contended that it w ould have b e e n reckless f or Appellant to not have taken his medications g iven his mental health history

. B a sed on our review of the record, we conclude that the jury ’s not g uilty verdict could not

1 0 Clerk’s R. at 495.

1 1 In mentioning causation, the State arg ued: Also, in voir dire, we discussed causation. B ut for the Defendant’s actions, this woman would still be alive. That’s what that means. I f he d idn’t drive, if h e didn’t crash into her vehicle g oing 70 miles per hour, pushing her car 60 y ards back, this woman would be alive today

. Clerk’s R. at 496–97. The voir dire transcript was not included in the pretrial habeas record.15

have been rationally based o n a f inding that Appellant did not cause the accident or that Parnell’s death was not caused by the accident. Adams , 586 S.W .3d at 8; A she , 3 97 U.S. at 445. The evidence of Appellant’s mental illness h istory , his defensive strategy that the accident occurred when he had

a mental break, a

nd the forensic patholog ist’s testimony re g a r d i ng cause of death leads to the conclusion that the jury acquitted Appellant based on a finding that Appellant w as not reckless when he caused Parnell’s death. III(B) — Recklessness as to the Result of Death is Not P recisely the Sam e Issue as Recklessness as to the Result of Bodily Injury Alternatively , the State argues, as it did before the c ourt of appeals, that even if the first jury necessarily found in favor o f Appella nt on the issue of r ecklessness in the manslaug hter trial, that is not precisely the same issue that a second jury would be confronted w ith in the ag g r avated assault trial. See Taylor , 101 S.W

. 3d at 441 (ex plaining that for collateral es t o p p e l to apply , the issues in both cases must be “precisely ” the same). The c ourt of appeals r e

jected this argumen t , f

i n d ing it to be “the sort of hy pertechnical analy sis disapproved of in Ashe ” and a “very restrictive analy sis [ that] w ould amount to a rejection of a ny use of collateral estoppel in criminal proceeding s whe r e t h e f i r s t judg ment rested upon a g eneral v e rdict of acquittal.” Rion , 2019 W L 4386371, at * 8. The court o f appeals concluded that the jury necessarily determined that Appellant lacked the mens rea to be reckless w ith reg ard to the conduct causing

the accident that resulted in Parnell’s death and Loehr’s injuries. Id. Bu t t h e re lies the rub. T he court of appeals thoug ht the jury in the manslaughter t r i a l necessarily determined Appellant was not reckless with reg ard to his conduct causing the accident. B ut a person cannot be reckless as to the conduct itself (“nature of c o n d u ct ”). Instead, a person is16

reckless w ith respect to the circumstances surrounding his conduct o r the result o f his conduct when he is aware of but consciously disreg ards a substantial and unjustifiable risk that the circumstances

ex ist or the result will o ccur. T E X
. P E N A L C O D E Ann. § 6.03(c); contra id. § 6.03(a) ( “A person acts intentionally . . . with respect to the nature of his conduct . . . when it is his conscious objective or desire to eng a g e in the conduct

. . . . ”), and § 6.03(b) (“A p erson acts knowing ly

. . . with respect to the nature of his c onduct

. . . when he is aware of the nature of his conduct

. . . .”). A jury verdict of acquittal, where that verdict was based upon a failure to prove recklessness, is a determination that the State failed to prove beyond a reasonable doubt that the defendant was aware o f but consciously disreg arded a risk that the c ircumstances ex isted or the result would occur. The a cquittal cannot be a determination that the defendant was not reckless with regard to the nature of his conduct. F urthermore, Appellant’s offenses are not nature of conduct offenses. Instead, manslaughter is a result o f conduct o f

fe n s e . S e e Ramos v. State , 407 S.W

. 3d 265, 270 (Tex

. Crim. App. 2013). Assault and ag g ravated assault causing bodily injury a re result of conduct offenses. Price v. State , 457 S.W .3d 437, 442 (Tex

. Crim. App. 2015) (“The g r avamen of assault with bodily injury is injury ,
a r esult of conduct.”); Landrian v. State , 268 S.W .3d 532, 5 36 (Tex

. C rim. App. 2008) (“‘bodily inju ry ’ a s s a u lt is a r esult-oriented a ssaultive offense”); id. at 540 (“ag g r avated assault with the underlying crime of assault by causingbodily injury . . . is a result-oriented offense”). 1 2 Returning to Appellant’s case before us, in the first trial, the jury was instructed to convict

1 2 I n c ontrast, assault a

nd ag g ravated assault by threat a re nature o f conduct offe n s e s . Landrian , 268 S.W .3d at 536 (“Subsection (2) is conduct-oriented, focusing upon the act of making a threat, reg ardless of any result that threat mig ht cause.”); id. at 540 (“ag g ravated assault with the underlying crime of assault by threat

. . . is a conduct-oriented offense.”). Unsurprising ly , the assault by th reat statute d oes not include recklessness as a culpable mental state. T EX
. P E N A L C O D E Ann. § 22.01(a)(2) (“A person commits an offense if the person . . . (2) i n t en t i o nally or knowing ly threatens another . . . .”).17

Appellant if it found beyond a reasonable doubt that Appel lant “recklessly cause[ d] the death” of Parnell. The jury was g iven the following definition o f the mental state, which tracked the statutory lang uag e: A person acts “recklessly

” or is “reckless” with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disreg ards a subst a n t i al and unjustifiable risk that the circumstances ex ist or the result will occur. 1 3 Thus, throug h its “ not g u il t y ” v e r d i c t , the jury in the manslaug hter trial indicated that it had reasonable doubt that Appellant was reckless. 1 4 As defined, correctly , b y the charg e, the jury ’s determination on recklessness meant that it had reasonable doubt that Appellant was a ware of a risk that d eath would occur as result o f his conduct. In the ag g ravated assault case, while the jury would be similarly asked to decide whether Appellant was reckless, that is a d i f f e r e n t question for the purposes of ag g ravated assault causing bodily injury

. The jury in the second trial would be asked to find, beyond a reasonable doubt, that Appellant was aware of a substantial and unjustifiable risk that bodily injury would occur as result of his conduct. The r ecklessness issues a re not precisely the same. B ut this is not to say that collateral e stoppel can nev er ap p l y where one trial is f or manslaug hter a

nd the other trial is f

o r r eckless a g g ravated assault causing bodily injury

. B ecause death itself is a form of bodily injury , a jury determination on r ecklessness with respect to awareness of a risk of death could say so m e t h i n g about w hether the d efendant was aware o f a risk of bodily injury , and a jury determination on recklessness with respect to awareness of a risk of bodily injury

1 3 Supplemental Clerk’s R. at 3–4; T E X
. P E N A L C O D E Ann. § 6.03(c).

1 4 As discussed above, the verdict could not have been rationally based on the elements of c au s ation or the d eath of an individual. According ly , the verdict must have been based upon th e element of recklessness.18

could say something about whether the defendant was aware of a risk of death. W h at if Appellant’s trials were reversed, and the reckless ag g r avated a ssault causing bodily injury c ase was tried first? I f the jury decided that Appellant wa s n o t re c k l e s s , that is, he was not

aware o f b ut consciously disreg a rded a risk that his conduct would cause bodily injury to another, that would also be a d etermination that he was n ot aware of but consciously disreg arded a risk that his conduct would cause the death of another. I f a person is not aware that h e could injure someone by h is conduct, he inherently must be not aware t h at h i s c onduct could also cause death to someone—death being

the ultimate form of bodily injury

. B ut where the manslaughter case comes first, and the determination in the first trial is that the person is not aware that h e could kill someone by his conduct, this determination has no effect on whether he may

or may not be aware that his conduct could, at the very least, hurt someone. The relationship b etween awareness of a r isk of death a nd awareness of a risk of bodily injury could be summed up as:

If the def endant is . . . Then he . . . aware of a risk of death is aware of a risk of bodily injury not aware of a risk of death is or is not aware of a risk of bodily injury aware of a risk of bodily

injury is or is not aware of a risk of death not aware of a risk of bodily injury is not aware of a risk of death

To illustrate how these scenarios play out, take for ex ample a pe r s o n walking down a

s i d ew a l k who is not aware that someone c ould be injured, let alone killed, by his act o f walking. Suppose o u r hy

pothetical walker bumps into two people, both people fall and suffer injuries as a result, and one of the injured p eople dies after impacting his head o n t h e c o ncrete sidewalk.19

Assuming that causation is not in dispute, if our hy pothetical walker is tried first for r eckless assault for causing bodily injury to the person who did not die, and our hy pothetical walker is acquitted by the jury , the determination that our hy pothetical walker w as not r eckless, and thus not aware of a risk of b odily injury , w ould collaterally estop a second trial for manslaug hter for causing the death of the person w h o d i d d i e . This is so because the jury ’s determination that he was not aware of a risk of bodily injury inherently encompasses a determination that he is not aware of a risk of death. B ut if

our hy pothetical walker is tried first on the manslaug hter charg e, the determination that he was not

a wa r e o f a r isk of death would n ot collaterally estop the second trial for reckless a ssault caus i n g bodily injury

. F urther along the scale, suppose a person is skateboarding down a hill, and the skateboarder is aware that if he c rashes into a pedestrian, he would hurt the pedestrian and cause them injuries. B ut the skateboarder does not appreciate that his simply crashing into anothe r p e r son could kill somebody

. Suppose our hy pothetical skateboarder collides with two people, both people a re injured, and one person later dies as a result. L et us assume, for the sake of argument, that c ollateral estoppel could apply towards a fact found ag ainst a defendant. I f our hy pothetical skateboarder is first tried for reckless assault causing bodily injury and the jury acquits purely on the basis of causation (such as if the skateboarder never contests reckle ssness, testifies and admits to b eing aware of a risk of injury , and furthermore stipulates to that fact), the fact that he was reckless, and thus aware of a risk of bodily injury , say s nothing a bout whether our hy

pothetical s k a

t e b o a r d er was aware of a risk o f death. Collateral estoppel would n o t apply in this circumstance because r ecklessness with r espect to his awareness o f a risk of death was not necessarily decided by

the first jury

.20

I f our hy p othetical skateboarder is tried f o r manslaug hter first and the jury acquits on the basis of recklessness ( assuming causation is not in dispute), the jury ’s determination that he was not reckless, a

nd thus not a

w a re of a r isk of death, say s nothing about whether he was aware of a risk of bodily injury . Collateral estoppel would not apply in this circumstance either. This bring s us back to Appellant’s case before us. The jury in Appellant’s first trial was asked whether h e was g u ilty of manslaug hter, which itself r equired to the jury to d e termine whether he was

aware of a risk that h is conduct would cause death. The jury f ound him “not g uilty ” of manslaug hter. B e cause the jury c ould not have acquitted on the b asis of causation, the acquittal w as a determination that Appellant was not reckless with respect to a risk of death . The jury did not necessarily

decide whether Appellant was aware or not aware of a risk o f bodily injury

. Stat e d d i f f e r ently , the jury ’s finding that Appellant did not recklessly cause Parnell’s death is not an e ssential fact o f the State’s reckless ag g ravated assault case. Therefore, collateral estoppel does not apply

. IV — Conclusion In c onclusion, Appellant’s first trial for m a n s l a u gh ter and the second trial for reckless ag g r avated assault causing bodily injury involve the same crash a n d s u b s t a n tially the same facts. However, the jury

in the first trial determined a fact that is not a n essential element for the second trial. In the first trial, the jury acquitted Appellant of manslaughter, and in doing s o t h e jury must have determined that Appellant w as not reckless—he was not aware of but consciously disreg arded a substantial and unjustifiable risk that his conduct would cause the death of another. In the second trial, while the jury w ill be similarly asked whether Appellant was reckless, the second jury would be required to find that he was aware of b ut c onsciously disreg arded a substantial and unjustifiable risk that his conduct would cause bodily injury to another.21

The first jury ’s determination tha t A p p e l l a n t was n ot aware of a risk of death is not a determination that Appellant w as n ot aware of a r i s k o f b o d ily injury

. The difference is critical in conducting a collateral estoppel analy sis, and the court o f appeals erred when it fai l e d to consider this crucial distinction. The State is not barred from trying Appellant for reckless ag g r avated assault causing bodily injury with a deadly weapon committed ag ainst L oehr. We reverse the decision of the court of a

ppeals and affirm the o r d e r of the trial court denying relief on Appellant’s pretrial application for writ of habeas corpus.

Delivered: April 6, 2022 Publish