#13-15-00198-CR

Thirteenth Court of Appeals, Corpus Christi & Edinburg 

THE STATE OF TEXAS, 

Appellant 

v.

ANDREW BERNWANGER, 

Appellee 

ON STATE’S APPEAL FROM THE COUNTY COURT AT LAW NO. 1

OF NUECES COUNTY, CAUSE #12-CR-0438-1 

DEFENSE’S BRIEF

 R.C. Pate 

 Tex. Bar #24052165 

 321 S. Flores Street 

 San Antonio, TX 78204 

 210-275-7294 phone 

210-568-4726 fax 

rc.pate@gmail.com

ORAL ARGUMENT REQUESTED 

ACCEPTED

13-15-00198-CR

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

7/15/2015 10:23:04 AM

CECILE FOY GSANGER

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 7/15/2015 10:23:04 AM CECILE FOY GSANGER Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

Appellee: Andrew Bernwanger, represented by 

Trial and Appellate Counsel: 

Robert C. Pate, Jr. 

321 Flores 

San Antonio, TX 78204 

Initial Trial Counsel: 

Les Cassidy 

814 Leopard St. 

Corpus Christi, TX 78401

Appellant: The State of Texas, District Attorney for the 105th Judicial 

District, represented by 

Appellate counsel: 

A. Cliff Gordon, Asst. Dist. Atty. 

Nueces County Courthouse 

901 Leopard St., Rm. 206 

Corpus Christi, TX 78401 

Trial and appellate counsel: 

Mark Skurka, District Attorney 

Dulce Salazar Valle, Asst. Dist. Atty. 

Nueces County Courthouse 

901 Leopard St., Rm. 206 

Corpus Christi, TX 78401 
iii

TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL...................................................ii

INDEX OF AUTHORITIES.......................................................................iv

STATEMENT OF THE CASE.....................................................................v

ISSUE PRESENTED................................................................................vi

 The State chose to go forward on two municipal citations that were tried to a jury.

That jury returned a verdict against the state. The State argues they incur no 

negative consequences from losing a jury trial in municipal court even when all 

evidence for the subsequent offense would be based on those charges. Does this 

violate the double jeopardy or, in the alternative, does collateral estoppel bar the 

second prosecution?......................................................................... vi

STATEMENT OF FACTS.......................................................................... 1

SUMMARY OF THE ARGUMENT.............................................................. 1

ARGUMENT.......................................................................................... 3

I. The Differences Between Ashe and Blockburger................................. 3

II. Res Judicata.......................................................................... 5

III. The State’s Cases Are Not Controlling In That None Of Them Involve Jury 

Verdicts.............................................................................. 6

IV. The State’s Argument Concerning The Lack Of Evidence Is Likely Correct, 

But It Is Argued Insincerely........................................................ 8

V. Policy Considerations Discourage the Court from Taking the State’s 

Position................................................................................ 9

PRAYER............................................................................................. 10

CERTIFICATE OF COMPLIANCE..............................................................11

CERTIFICATE OF SERVICE.................................................................... 11
iv

INDEX OF AUTHORITIES

Cases

Ashe v. Swenson, 397 U.S. 436 (1970) ............................................................ 2, 3, 4, 5, 10

Blockburger v. United States, 284 U.S. 299 (1932)........................................................... 3

Dowling v. United States, 493 U.S. 342 (1990).............................................................. 6, 7

York v. State, 342 S.W.3d 528 (Tex. Crim. App. 2011)..................................................... 6
v

STATEMENT OF THE CASE

Nature of the Case On November 6, 2011, The Corpus Christi 

Police Department stopped Andrew 

Bernwager and gave him citations for

Running a Stop Sign and Passing on the 

Wrong Side of the Road. They also arrested 

him for Driving While Intoxicated. The 

DWI was investigated subsequent to the 

traffic offenses.

Course of Proceedings On February 24, 2015, The State of Texas, 

through their agent, the City Attorney for 

Corpus Christi, proceeded to trial on the 

two traffic citations in one setting. That 

trial was to a jury, who returned a verdict 

of Not Guilty. 

Trial Court’s Disposition On March 9, 2015, the trial court signed 

Trial Court’s Order Granting the Claim of 

Collateral Estoppel based upon the jury’s 

verdict. 
vi

ISSUE PRESENTED

The State chose to go forward on two municipal citations that were tried to a jury. That 

jury returned a verdict against the State. The State argues they incur no negative 

consequences from losing a jury trial in municipal court even when all evidence for the 

subsequent offense would be based on those charges. Does this violate double jeopardy,

or, in the alternative, does collateral estoppel bar the second prosecution?
1

STATEMENT OF FACTS

On November 6, 2011, Andrew Bernwanger was stopped by CCPD Officer 

Saldana and subsequently charged with the offenses of Driving While Intoxicated, 

Running a Stop Sign, and Passing on the Wrong Side of the Road. CR 5, 8. Brief of 

Appellant at 1 (State’s Brief).

On February 24, 2015, The State of Texas proceeded to trial against Andrew 

Bernwanger on the two traffic citations. Both offenses were tried to the same jury. CR

70. At said trial, Officer Saldana testified to all the traffic violations that were the basis of 

the reasonable suspicion for this DWI stop. CR 70; RR 9. The jury found Andrew 

Bernwanger not guilty of both traffic charges. State’s Brief 10 n.5. 

On March 9, 2015, the Judge ordered that the two not guilty verdicts collaterally 

estopped the State from re-litigating the issues of Defendant’s stop. Thus, all evidence 

seized after that point in time was suppressed as fruit of the poisonous tree. CR70, The 

State appealed.

SUMMARY OF THE ARGUMENT

Andrew Bernwanger has already been found not guilty of Running a Stop Sign 

and Passing on the Wrong Side of the Road by a jury of his peers. CR 70, State’s Brief 1, 

10 n.5. However, the State wants to argue yet again that he actually committed these 

offenses, and this time it wants to do so at a lower burden of proof (State’s Brief 3).

Procedurally, Defendant was placed in Jeopardy for the possible punishments of 

those crimes and a potentially more serious offense in 2011. Moreover, he was also

arrested (CR 7), placed on bond (CR 8-11), compelled to hire two different lawyers (CR 
2

12, 48-52, 64-65)

1

, and subjected to pending charges for three and a half years (CR 5-6, 

70). Despite winning a jury trial on the issue (CR 70; State’s Brief 1) and having the

Judge agree his prosecution was barred by the State (CR 70), Defendant is enduring 

prolonged procedural limbo again with the State’s appeal (CR 71-76). 

This is exactly the repetitive prosecution prohibited by both the United States and 

Texas Constitutions. Ashe v Swansen, 397 US 436 (1970). The State chose to go 

forward with the traffic ticket trials and lost. Now they want to try the same case again at 

a lower burden of proof. 

The Defense does concede, however, that the entirety of the trial transcript should 

have been admitted at the lower court hearing on this issue. While the documents 

provided to the court about the traffic tickets, which were discussed in RR 6-7, are 

conspicuously absent from the Clerk’s record, the entirety of the transcript is likely 

necessary to come to a determination on this issue. In so realizing, Defense asked the 

State if they would agree to a remand for a hearing to introduce said transcript. The State 

denied such a request. As such, the Defense asks this court to remand the case back to 

the trial court for a hearing, wherein defendant can introduce the recording of the entire 

trial proceeding and the county court can make specific findings in regards to which 

issues are precluded from litigation.

 

1 It should be noted Defense Counsel’s notice of appearance of counsel is missing from 

the Clerk’s record along with other documents which will be discussed later in this brief.
3

I. The Differences Between Ashe And Blockburger

There are at least two types of actual double jeopardy. The first category, which is 

frankly the easiest to understand, is the Blockburger type. This type of double jeopardy 

is defined as both crimes having an element that is distinct from the elements of the other. 

Blockburger v. United States, 284 U.S. 299 (1932). This type of jeopardy is what 

prevents the State from getting two guilty verdicts. A guilty verdict on one crime in a

Blockburger scheme prevents the state from pursuing guilty verdicts on other cases 

lacking distinct elements. The defense completely cedes the argument that the cases 

involved before the court today do not meet the Blockburger criteria. Had the State 

prevailed at the trial on the traffic tickets, double jeopardy would in no way prevent it

from prevailing at the DWI trial.

A completely different type of double jeopardy occurs when a person is found not 

guilty for some reason. See generally Ashe v. Swansen, 397 U.S. 436 (1970). When the 

State tries a case and loses, it should not get to re-try the case with a slightly different fact 

scenario (which would be allowable under Blockburger). In Ashe, the defendant was 

accused of being one of a group of persons who robbed a poker game. The State first 

charged Ashe with robbing Victim 1, and the jury returned a “not guilty” verdict. After 

using the first trial as a practice run, the State called different identifying witnesses and 

coached them better on what to say to on the stand in the robbery charge for Victim 2. 

The second jury found Ashe guilty. The United States Supreme Court said that such trial 

tactics are precisely what was barred by the double jeopardy clause of the U.S. 

Constitution. 
4

"Collateral estoppel" is an awkward phrase, but it stands for an extremely 

important principle in our adversary system of justice. It means simply that, when 

an issue of ultimate fact has once been determined by a valid and final judgment, 

that issue cannot again be litigated between the same parties in any future lawsuit. 

Although first developed in civil litigation, collateral estoppel has been an 

established rule of federal criminal law at least since this Court's decision more 

than 50 years ago in United States v. Oppenheimer, 242 U.S. 85. As Mr. Justice 

Holmes put the matter in that case, “It cannot be that the safeguards of the person, 

so often and so rightly mentioned with solemn reverence, are less than those that 

protect from a liability in debt.” 242 U.S. at 87. As a rule of federal law, therefore,

“it is much too late to suggest that this principle is not fully applicable to a former 

judgment in a criminal case, either because of lack of ‘mutuality’ or because the 

judgment may reflect only a belief that the Government had not met the higher 

burden of proof exacted in such cases for the Government's evidence as a whole, 

although not necessarily as to every link in the chain.” United States v. 

Kramer, 289 F.2d 909, 913.

The federal decisions have made clear that the rule of collateral estoppel in 

criminal cases is not to be applied with the hypertechnical and archaic approach of 

a 19th century pleading book, but with realism and rationality. Where a previous 

judgment of acquittal was based upon a general verdict, as is usually the case, this 

approach requires a court to “examine the record of a prior proceeding, taking into 

account the pleadings, evidence, charge, and other relevant matter, and conclude 

whether a rational jury could have grounded its verdict upon an issue other than 

that which the defendant seeks to foreclose from consideration.” The inquiry 

"must be set in a practical frame, and viewed with an eye to all the circumstances 

of the proceedings." Sealfon v. United States, 332 U.S. 575, 579. Any test more 

technically restrictive would, of course, simply amount to a rejection of the rule of 

collateral estoppel in criminal proceedings, at least in every case where the first 

judgment was based upon a general verdict of acquittal.

Straightforward application of the federal rule to the present case can lead to but 

one conclusion. For the record is utterly devoid of any indication that the first jury 

could rationally have found that an armed robbery had not occurred, or that Knight 

had not been a victim of that robbery. The single rationally conceivable issue in 

dispute before the jury was whether the petitioner had been one of the robbers. 

And the jury, by its verdict, found that he had not. The federal rule of law, 

therefore, would make a second prosecution for the robbery of Roberts wholly 

impermissible.

The ultimate question to be determined, then, in the light of Benton v. Maryland, 

supra, is whether this established rule of federal law is embodied in the Fifth 

Amendment guarantee against double jeopardy. We do not hesitate to hold that it 
5

is. For whatever else that constitutional guarantee may embrace, North Carolina v. 

Pearce, 395 U.S. 711, 717, it surely protects a man who has been acquitted from 

having to "run the gauntlet" a second time. Green v. United States, 355 U.S. 184, 

190.

Ashe v. Swenson, 397 U.S. 436, 443-46, 90 S.Ct. 1189, 1194-95 (1970).

This second running of “the gauntlet” is precisely what the State intends to do to 

Andrew Bernwanger. The state should be Collaterally Estopped because it is 

attempting to litigate this second lawsuit under a separate cause of action, Driving 

While Intoxicated, that is based on common issues which have already been litigated

and determined in the first suit, Running a Stop Sign and Passing on the Wrong Side 

of the Road.

II. Res Judicata

If the jury had rendered a guilty verdict in Andrew Bernwanger’s trial, it is likely 

that res judicata would bar the defense from raising the validity of the stop in a motion to 

suppress. The Defense would in effect be (1) bringing a claim in a second action that is 

based on the same facts at issue in the first action; (2) seeking an additional or alternative 

remedy to the action sought earlier; and (3) bringing a claim that could have been joined 

in the first action. Res judicata would be employed in this situation to bring the matter to 

a close instead of allowing the Defense to bring subsequent litigation after an unfavorable 

first ruling on the basic elements of the claim. It is important to note here that the Defense 

risked something for the reward it received of the not guilty verdict.
6

III. The State’s Cases Are Not Controlling In That None Of Them Involve 

Jury Verdicts

The State primarily relies upon York v State 342 S.W.3d 438 (Tex. Crim. App. 

2011) and Dowling v United States 493 U.S. 342 (1990). Each case is quite 

distinguishable. If you will note in the second paragraph of the Ashe quote above it talks 

about what to do when a jury returns a verdict, however neither of the cases relied upon 

by the State are about jury verdicts.

In York, a county court judge granted a motion to suppress erroneously in a 

misdemeanor trial. The Judge had somehow misinterpreted the code of criminal 

procedure to believe that an officer outside the city limits of the city he was 

commissioned did not have the authority to investigate a possible burglary. The State 

then proceeded on a felony charge, where the District judge made a correct ruling on the 

motion to suppress. This case is quite distinguishable from the current one. First, there is 

no jury finding. Second, it is not the Fifth Amendment protections of double jeopardy 

that govern this judicial estoppel claim, but, rather, whether the district court was bound 

to follow the county court’s incorrect ruling. The issue at hand was purely a question of 

law, not an interpretation of what factually happened on the day in question. For all these 

reasons, York is not controlling over the present case.

The next case the State relies upon is Dowling. This case concerns whether 

testimony offered under rule 404(b) is allowed when the defendant was acquitted of the 

crime about which the person was testifying. While the court held that such testimony 

being admitted was error, that error was harmless and not double jeopardy. A rule of 
7

character evidence does not set precedent for cases in which a defendant was found not 

guilty by a jury of the very crime for which he is detained before subsequent 

investigation reveals yet another crime. 

Furthermore the dicta of Dowling the state relies upon repeatedly uses the word 

civil. 

In United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), for 

example, we unanimously agreed that a gun owner's acquittal on a charge of 

dealing firearms without a license did not preclude a subsequent in rem forfeiture 

proceeding against those firearms, even though forfeiture was only appropriate if t

he jury in the forfeiture proceeding concluded that the defendant had committed 

the underlying offense. Because the forfeiture action was a civil proceeding, we 

rejected the defendant's contention that the Government was estopped from 

relitigating the issue of the defendant's alleged wrongdoing:

"[The acquittal did] not prove that the defendant is innocent; it merely proves the 

existence of a reasonable doubt as to his guilt. . . . The jury verdict in the criminal 

action did not negate the possibility that a preponderance of the evidence could 

show that [the defendant] was engaged in an unlicensed firearms business. . . . It is 

clear that the difference in the relative burdens of proof in the criminal and civil 

actions precludes the application of the doctrine of collateral estoppel."Id., at 361-

362.

Dowling v. United States, 493 U.S. 342, 349, 110 S.Ct. 668, 672-73 (1990).

The State is trying to take law used to allow civil litigation after a not guilty 

verdict to allow another criminal trial. Their logic does not follow from the law. 

Certainly, civil cases can be brought after an acquittal, but a civil trial never involves 

jeopardy in a constitutional context.

As the Court can see, none of the cases the State relies upon stand for the principal 

that they cite. There is no authority which allows the state to re-litigate the jury’s finding 

of not guilty at a motion to suppress setting.
8

IV. State’s Argument About The Lack of Evidence Is Likely Correct, But It Is 

Argued Insincerely

Under the doctrine of collateral estoppel, the trial court should review the record 

of the first trial to decide what issues have been found against the State. The Defense 

produced at the hearing copies of the acquittal, a copy of the jury instructions, and a copy 

of each of the charging documents filed against Defendant. RR 6-7. Defense fully 

admits that he did not ask those to be marked and admitted, because the court told him 

they did not have time for an evidentiary hearing. RR6. However Defense counsel did 

file them with the court and thought they were part of the Clerk’s record. It is clear they 

did not make it before this court. Also that day Defense did not have a copy of the 

transcript of the original proceeding. RR 7. 

Defense must now concede that under a claim of collateral estoppel, there needs to 

be the full hearing before the trial court can grant such a claim. Defense is now in 

possession of the transcript and is ready to present it to the trial court. For that reason, we 

ask this court to grant the Defense request for remand and a hearing on the subject. At 

such a hearing the trial court could listen to the recording, and make a determination on 

what issues have been precluded from further prosecution. 

In an attempt to not waste this Court’s time, Defense asked the State if they would 

agree to the remand. They refused such an agreement. As such they make their argument 

insincerely. They want this court to allow a second prosecution for the events of 

November 6, 2011, (any and all evidence of which would have come after the alleged 
9

events he has been found not guilty of) without following the procedure they outline in 

their brief. 

They claim that the appropriate procedure for a collateral estoppel claim is for the 

trial court to first examine the entire record of the first trial to decide what issues are 

precluded from re-litigation. When the defense agrees that such a hearing would be 

beneficial to this court, the State says they will not agree to a remand. In essence, they 

want to argue the controlling law in such a way as to not consider the underlying facts. 

Such an argument is flawed.

V. Policy Considerations Discourage The Court From Taking The State’s 

 Position

What the State is attempting to do here is play a lawyer game about how the 

Defendant is punished for the behavior of Running a Stop Sign and Passing on the Wrong 

Side of the Road. Res judicata surely bars the defendant from arguing his motion to 

suppress had he lost the trial in Municipal Court. A judgment from the municipal court 

would certainly be enough evidence to defeat a motion to suppress. Why is it that what is 

good for the goose is not good for the gander? A more detailed look at how the parties 

have control over such an issue will reveal this is an affront to normal notions of fair play 

and justice.

The State is the only party in control of whether jeopardy attaches in any 

proceeding. This is so because they always have the power of dismissal. They can avoid 

a trial taking place at all. The Defendant’s only remedy when the state announces for 

trial is to go and win the trial. Even then jeopardy has attached. Jeopardy attaches in a 
10

plea and also if the defendant loses the trial. Thus the State is in sole control of whether 

jeopardy attaches. They get to choose their which the prefer: take the issue of stopping at 

a stop sign to the county judge at a motion to suppress, or take it to a jury at the 

municipal court. They made a choice and don’t like the outcome. They can not be 

allowed to, in every case, chose to have two trials over the very same issue. Such is an 

affront to justice, and precisely the rationale prohibited in Ashe.

The State made a lawyer decision to proceed to a jury in a trial on the tickets. 

Such a choice should carry risk to balance the possible reward. The reward would be a 

guilty verdict barring re-litigation over the motion to suppress. The State should not get a 

second bite at the apple because of a clever lawyer decision. Such would encourage 

double prosecutions for every traffic offense that is the reasonable suspicion for any stop. 

If the State won at the trial the defense could not argue it to a judge because of res 

judicata. 

However when the state loses the trial, they simply argue the same facts again and 

attempt to claim the lower burden. The purpose of the double jeopardy clause is to 

prevent precisely such lawyer games. 

PRAYER

For the foregoing reasons we ask the court to issue a remand to the trial court 

ordering them to have a hearing on why the jury returned a verdict of not guilty. In the 

alternative, we ask the court to uphold the trial court’s order and respectfully request oral 

argument before this court. 

CERTIFICATE OF COMPLIANCE
11

According to the word count of the computer program used to prepare this document, it 

contains 3,226 words

CERTIFICATE OF SERVICE

On July 15, 2015, a true copy of the foregoing was served via eServe on the following: 

A. Cliff Gordon

Asst. Dist. Atty., 105th Dist.

Nueces County Courthouse

901 Leopard St., Rm. 206

Corpus Christi, TX 78401

/s/ R.C. Pate__________________

R.C. Pate