101 S.W.3d 434 (2002)

Ex parte Philip Daniel TAYLOR, Appellant.

No. 652-00.

Court of Criminal Appeals of Texas, En Banc.

November 6, 2002.

*435 Brian W. Wice, Houston, for appellant.

Jeffrey L. Van Horn, First Asst. St. Atty., Matthew Paul, State's Atty., Austin, for State.

*436 Before the court en banc.

OPINION

COCHRAN, J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK, JOHNSON and HOLCOMB, J.J., joined.

Appellant lost control of his car on a rural road and collided with an oncoming car. Appellant's two passengers died in the accident. A jury acquitted appellant of intoxication manslaughter in causing the death of one passenger. The State had alleged that appellant was intoxicated by alcohol. The State now seeks to prosecute appellant for intoxication manslaughter in causing the death of his second passenger. This time, however, the State alleges that appellant was intoxicated by either alcohol and marijuana or by marijuana alone. We must determine whether the appellant's acquittal in the first trial, of intoxication manslaughter, prevents the State from attempting to prove, in another criminal proceeding, an alternate theory of intoxication for causing the death of his second passenger.^[1] The Fourteenth Court of Appeals held that collateral estoppel barred the State from relitigating the ultimate issue—intoxication—regardless of whether the State alleged a different type of intoxicant. Taylor v. State, No. 14-99-00399-CR, 2000 WL 19151 (Tex.App.-Houston [14th Dist.] 2000) (not designated for publication). We agree. Because of the particular pleadings, evidence, charge, arguments of counsel, and jury verdict in this case, we find that collateral estoppel applies to the ultimate issue of intoxication. Therefore, we affirm the court of appeals' decision.

I.

A Brazos County grand jury returned three indictments against appellant relating to a two-car accident that occurred on May 26, 1996. Appellant's two passengers, Michelle James and Kyla Blaisdell, both died, and the other driver, Patricia Varner, sustained serious injuries. The separate indictments for the deaths of Ms. James and Ms. Blaisdell each charged two counts of intoxication manslaughter^[2] and one count of manslaughter in which the State alleged that appellant recklessly drove at an excessive speed into another vehicle. The third indictment charged appellant with intoxication assault and aggravated assault against Ms. Varner. At appellant's request, the trial judge severed the three indictments, and a jury trial proceeded on the manslaughter counts for causing the death of Michelle James.

The evidence showed that appellant was driving his Ford Thunderbird on a rural road in Brazos County late one afternoon. His fiancee, Kyla Blaisdell, sat in the front passenger seat and her best friend, Michelle *437 James, sat in the back seat. It was not disputed that appellant was speeding, but witnesses' estimates of his actual speed varied widely.^[3] As appellant came out of a curve, the Thunderbird's right front wheel left the paved surface and veered onto a grassy, gravely area. According to the defense expert, appellant overcorrected as he attempted to bring his front wheel back onto the pavement. Consequently, he lost control of the car, which veered into the left lane and collided with Ms. Varner's oncoming Suburban. According to the State's expert, appellant lost control of the car as he entered the curve at a high speed. Because of his speeding through the curve, the car headed into a ditch on the right hand side, and appellant pulled the steering wheel too much to the left, sending the car into the left lane. Regardless of where appellant lost control of the car, Kyla Blaisdell and Michelle James died in the collision. Ms. Varner and appellant were both seriously injured.

At the hospital, medical technicians drew a sample of appellant's blood to determine its blood alcohol concentration ("BAC"). Their analysis resulted in a .137 BAC reading. The DPS twice reanalyzed this blood sample, using more sensitive equipment. Its analysis returned BAC readings of .124 and .119. DPS took another blood sample from appellant more than three hours after the first sample. This second sample indicated a BAC of .06. Appellant's blood also tested positive for the presence of marijuana, but there was no evidence that he had smoked marijuana on that particular day. The prosecutor, agreeing that traces of marijuana may linger in the body for days after its actual use, did not oppose appellant's motion in limine barring any mention of marijuana during the trial. Kyla Blaisdell tested negative for both alcohol and drugs; Michelle James tested negative for drugs, but.04 for alcohol; and Ms. Varner tested negative for both drugs and alcohol. Appellant's toxicology expert testified that, according to his calculations, appellant's BAC at the time of the accident must have been between .07 and .09.

Kelsey Blaisdell, Kyla's brother, testified that the trio spent most of the afternoon at his parent's home. He said that they came over to do laundry and to "hang out." They had some wine with them and were drinking from about 2:30 until 6:00 p.m. Kelsey testified that appellant did not seem drunk or otherwise intoxicated: appellant did not slur his speech or have poor balance. According to Kelsey, appellant didn't exhibit any of the characteristics of an intoxicated person. Kelsey stated: "I didn't feel that he was intoxicated at all." Although Kelsey admitted that, on the night of the accident, he had told a police officer he had "a strong suspicion [appellant] was driving while intoxicated," Kelsey explained that he had said that simply because appellant and the girls had been drinking.

*438 At the conclusion of all evidence, the trial judge charged the jury that, if it believed from the evidence, beyond a reasonable doubt, that appellant:

did operate a motor vehicle in a public place while intoxicated, either by not having the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body or by having an alcohol concentration of .10 or more, and by reason of that intoxication, if any, by accident or mistake, caused the death of Michelle James, you will find [appellant] guilty of intoxication manslaughter.

The jury was also instructed, as an alternate basis for a finding of guilt, that if it believed from the evidence, beyond a reasonable doubt, that appellant:

did recklessly cause the death of Michelle James by operating a motor vehicle at an excessive speed and by driving into a motor vehicle occupied by Patricia Varner, you will find [appellant] guilty of manslaughter.

In its closing argument, the State argued that appellant "caused the deaths of Kyla Blaisdell and Michelle James because he chose to drink and drive that day." The State then reviewed the evidence showing that appellant was speeding and driving recklessly; that he had lost the normal use of his mental and physical faculties because of alcohol; and that he was per se intoxicated, as demonstrated by his BAC levels both immediately after he arrived at the hospital and as extrapolated from the DPS test taken more than three hours later.

The defense argued, on the other hand, that appellant had been drinking, but that he was not intoxicated. The defense challenged the accuracy of the first blood test and the relevancy of the second. The defense argued that, although appellant was speeding, he had his car under control when he completed the curve. According to defense counsel, "something" happened as appellant started to accelerate on the straightaway—he looked away, an animal darted out, he was startled by something—and his right front wheel went slightly off the road. He overcorrected and the car veered left. In sum, according to the defense, this was a tragic and horrible accident, but not a crime.

The jury acquitted appellant of all counts of intoxication manslaughter and reckless manslaughter of Michelle James. The State subsequently dismissed appellant's indictment for causing Kyla Blaisdell's death. But later the State learned that appellant, sometime after the trial, allegedly told Kyla Blaisdell's mother that he and the girls had been smoking marijuana cigarettes on the afternoon of the accident.^[4] Based upon this newly discovered evidence, the State re-indicted appellant for intoxication manslaughter in causing the death of Kyla Blaisdell, alleging that he had lost the normal use of his mental and physical faculties by reason of the introduction of alcohol, marijuana, or a combination of alcohol and marijuana.^[5]

*439 Appellant filed an application for a pretrial writ of habeas corpus, contending that the doctrine of collateral estoppel barred any further State efforts to prosecute him for causing this accident based upon his alleged intoxication. The trial court largely denied appellant relief, concluding that only the issue of intoxication by reason of alcohol had been litigated in the first trial, but not the distinct factual question of whether marijuana, either alone or in combination with alcohol, had rendered him intoxicated. Appellant then filed a pretrial appeal under Tex.R.App. P. 31 to the Fourteenth Court of Appeals, which disagreed with the trial court and granted full habeas relief. It concluded that the ultimate issue of fact decided by the jury was that appellant was not intoxicated; therefore, the issue of intoxication could not be relitigated in any further criminal proceeding:

Multiple substances that cause a person to become intoxicated (e.g., alcohol ingestion and controlled substance ingestion) are not distinct elements of separate intoxication manslaughter offenses; rather such sources of intoxication are merely evidentiary and do not concern the manner in which the offense was committed.^[6]

After deciding that the State Prosecuting Attorney has primary authority for filing petitions for discretionary review,^[7] we granted the State Prosecuting Attorney's petition to review the correctness of the court of appeals' holding.

II.

At issue in this appeal is the scope of the factual finding that the jury made when it acquitted appellant. The State assumes that the first jury concluded that appellant was not intoxicated because of alcohol.^[8] It contends that this finding does not preclude the State from prosecuting appellant for the death of a second accident victim, when the State alleged intoxication by alcohol and marijuana or by marijuana alone:

Where an individual is tried for an offense based upon a statute that contains an element that is susceptible of proof by multiple manners or means, does the jury's negative finding regarding the particular manner or means alleged to establish the general element extend to any manner or means that could establish the general element, or does it extend only to the particular manner or means that was charged to the jury?

The State poses the issue as this: if a jury acquits a defendant of committing an offense in one manner and means, does its factual finding preclude the State from relitigating the commission of the same statutory offense against a different victim by a different manner and means? But that is not really the issue. The doctrine of collateral estoppel does not depend upon slight differences in statutory language or an alternate "manner and means"; it depends upon the scope of a specific factual finding in a particular case. There is no "bright-letter" or "black-letter" law which can resolve that question in all cases.^[9]

*440 The first prosecution was for killing Michelle James; the second, for killing Kyla Blaisdell. For double jeopardy purposes, the unlawful killing of each victim is a separate offense.^[10] In its seminal case on collateral estoppel, Ashe v. Swenson,^[11] the Supreme Court noted that the defendant's reprosecution was not barred by double jeopardy under the usual Blockburger^[12] test because the second prosecution was for a different offense, namely the robbery of a different victim attending the same poker party.^[13] Thus, the Supreme Court had to turn to the related doctrine of collateral estoppel, which prevents a party who lost a fact issue in the trial of one cause of action from relitigating the same fact issue in another cause of action against the same party.^[14] The situation is the same in this case. If the State had prosecuted appellant for the same offense (causing the death of Michelle James) on a different theory, we would not have to resort to collateral estoppel. Reprosecution would be barred by autrefois acquit^[15] under Blockburger.

A. The doctrine of collateral estoppel.

In Ashe v. Swenson, the Supreme Court stated that collateral estoppel "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."^[16] To determine whether collateral estoppel bars a subsequent prosecution (or permits prosecution but bars relitigation of certain specific facts) courts employ a two-step analysis. Courts must determine:

(1) exactly what facts were "necessarily decided" in the first proceeding; and

(2) whether those "necessarily decided" facts constitute essential elements of the offense in the second trial.^[17]

*441 In each case, courts must review the entire trial record to determine—"with realism and rationality"—precisely what fact or combination of facts the jury necessarily decided and which will then bar their relitigation in a second criminal trial.^[18] In Ashe v. Swenson, the Supreme Court emphasized that:

the rule of collateral estoppel is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.... The inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." 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.^[19]

Although Texas courts have rarely discussed the scope of a fact barred by collateral estoppel, cases from other jurisdictions have held that collateral estoppel operates only if the "very fact or point now in issue" was determined in the prior proceeding.^[20] It must be "precisely" the same issue in both cases.^[21] Thus, issue preclusion "is limited to cases where the legal and factual situations are identical."^[22] Collateral estoppel may "apply to a phase, an issue of fact, or congeries of fact,"^[23] depending upon the particular circumstances.

On the other hand, issue preclusion cannot be defeated simply by advancing new or different evidence to support the same issue already litigated.^[24] Thus, a party who neglects to submit the evidence *442 that would support a legal theory that the party withheld in a first proceeding, cannot later point to its own omission as justification for pursuing a second proceeding.^[25]

In sum, there are no hard and fast rules concerning which factual issues are legally identical and thus barred from relitigation in a second criminal proceeding. As Professor Wright concludes: "If an ordinary person would expostulate, `But that's a different issue,' probably it is."^[26]

In each case, the entire record—including the evidence, pleadings, charge, jury arguments, and any other pertinent material—must be examined to determine precisely the scope of the jury's factual findings. In one case, for example, a jury's acquittal might rest upon the proposition that the defendant was "not intoxicated," while in another, that same verdict might rest upon the narrower proposition that the defendant was "not intoxicated" by a particular substance, but he might well have been intoxicated by a different substance. Generally, then, the scope of the facts that were actually litigated determines the scope of the factual finding covered by collateral estoppel.

B. Collateral estoppel applied to this trial.

Given the pleadings, the jury charge, the disputed issues, and the evidence presented by both the State and the defense at the trial, the jury in this particular case necessarily concluded that, at the time of the accident:

1) Appellant had not lost the normal use of his mental or physical faculties by reason of the introduction of alcohol;

2) Appellant did not have an alcohol concentration of .10 or more; and

3) Appellant did not recklessly drive at an excessive speed into another vehicle.

Thus, these three facts have been established, and they cannot be relitigated in any future criminal proceeding against appellant. But do these discrete factual findings leave open the possibility that appellant was intoxicated, but by some substance other than alcohol?

*443 Not here. The only witness who testified to appellant's possible loss of normal use of mental or physical faculties was Kelsey Blaisdell, the brother of one of the victims. He stated that appellant and the two girls had some wine that afternoon. They arrived with a "box" of wine and the three of them drank from it for about three hours. Nonetheless, appellant didn't seem drunk or intoxicated. He did not slur his speech or have poor balance. He did not "noticeably" exhibit any of the characteristics of an intoxicated person. Kelsey testified that, "I didn't feel he was intoxicated at all.... I knew he had been drinking" but appellant seemed perfectly normal to him. Because the trial court granted appellant's unopposed motion in limine, there was no mention at trial of any other possible source of intoxication and no other evidence that appellant had lost the normal use of his mental or physical faculties.^[27]

The source of appellant's intoxication was not a disputed issue in the first trial. It was only the more general issue of intoxication was he or wasn't he that was disputed, and upon this issue, the appellant prevailed. Had appellant's defense been one of conceding the fact of intoxication, but contesting the manner in which he became intoxicated, the situation would, of course, be different.

Thus, considering the question in a practical, common-sense manner, it is evident that there is no reasonable possibility that the jury in the first trial could have decided, based upon this evidence, that appellant was intoxicated but not because of alcohol. The court of appeals, in its review, concluded that "[i]mplicit in the jury's verdict is a factual finding that Appellant did not cause the automobile accident because of intoxication."^[28] We have not found any evidence in the trial record to contradict this conclusion, nor has the State shown any such evidence.^[29]

*444 The State argues that it now possesses more and different evidence-namely that appellant admitted to Mrs. Blaisdell, after his acquittal, that both he and the girls had smoked marijuana that day. But here, as in Harris v. Washington,^[30] when an ultimate issue has been decided, the constitutional guarantee of collateral estoppel applies "irrespective of whether the jury considered all relevant evidence, and irrespective of the good faith of the State in bringing successive prosecutions."^[31]

The underlying idea of both double jeopardy and collateral estoppel

is that the State with all its resources and power should not be allowed to 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.^[32]

While we do not doubt the good faith of the State, we also do not doubt that the jury in the first trial necessarily found that appellant was not intoxicated. The State seeks to distinguish the present situation, arguing that it is analogous to that in Ex parte Byrd.^[33] It is not. In Byrd, the State filed a motion to revoke probation ("MRP"), alleging, in part, that the probationer had failed to participate in a community-based program either until he was successfully discharged or until he received further order from the trial court.^[34] At the MRP hearing, the State offered testimony that the probationer left the program as evidence that the probationer had violated a condition of his probation, but the trial court held that the evidence was insufficient because the State failed to prove that he left "without permission."^[35] The State immediately filed another MRP, *445 setting out the same probation violation, but with much greater elaboration. It alleged that Mr. Byrd: 1) left the center without permission; 2) never returned to the center; 3) did not contact the court or probation department; and 4) was unsuccessfully discharged from the center.^[36] Because the latter three allegations were never placed in issue during the first hearing, collateral estoppel did not bar their litigation during the second hearing.^[37] Similarly, collateral estoppel would not bar the State from prosecuting appellant for some offense relating to this fatal accident which did not depend upon a factual finding of intoxication (whatever the source) or any other fact necessarily found by the first jury.

The State also argues that, because it was required to allege which type of intoxicant appellant consumed,^[38] collateral estoppel applies only to that specific intoxicant. Accordingly, the State contends, resolving whether collateral estoppel applies depends entirely upon the precise indictment allegations, regardless of the actual evidence or the facts "necessarily" found by the jury. But application of collateral estoppel depends not merely upon the pleadings, but also upon the evidence, charge, jury argument, and any other relevant material.^[39] The State fails to point to any evidence, argument, or other material in this record which would support its theory that this jury could have concluded appellant was intoxicated, but not by alcohol.

Finally, the State contends that the court of appeals' holding, that "intoxication" was an ultimate fact necessarily decided by this jury, has importance far beyond this one case because "[a] large number of criminal statutes provide for alternative manners or means of establishing certain elements." The State asserts that if the court of appeals' holding in this case is allowed to stand, then collateral estoppel would always bar relitigation of an alternate manner and means. This fear is unfounded. The scope of a factual finding necessarily decided in a particular trial depends upon the evidence and disputed issues in that specific case, and not upon the mere fact that an offense may be committed by different statutory manners and means.^[40] Although it is possible to read the court of appeals' opinion in this case as imposing a broad collateral estoppel bar to relitigating an alternative statutory manner or means in any case, we do not read its opinion in that light. The court of appeals simply held that, in this particular case, the jury found that appellant was not intoxicated and thus, that ultimate issue cannot be relitigated.^[41] We agree with that conclusion.

*446 Therefore, we affirm the court of appeals.

HERVEY, J., filed a dissenting opinion in which KEASLER, J., joined.

KELLER, P.J., dissented.

HERVEY, J., dissenting.

I respectfully dissent. I disagree with the Court's decision that in the first criminal prosecution in which the jury returned a general not guilty verdict the jury necessarily found that appellant was not intoxicated by alcohol.^[1]

This is a federal constitutional case that involves an application of the doctrine of collateral estoppel "as embodied in the Fifth Amendment guarantee against double jeopardy" because the Court essentially decides that the jury's finding in the prior criminal prosecution that appellant was not intoxicated by alcohol amounts to an "acquittal" or a finding that appellant is not guilty of the offense for which the government now seeks to prosecute him. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970); Reynolds v. State, 4 S.W.3d 13, 19, 21 (Tex.Cr.App.1999) (double jeopardy protects a defendant against subsequent prosecution for an offense for which the defendant has been acquitted). This case, therefore, does not require the Court to examine the question of whether common-law collateral estoppel principles should apply to Texas criminal cases outside of the Ashe federal constitutional double jeopardy context. See Reynolds, 4 S.W.3d at 21 n. 18 (questioning whether this Court has ever formally adopted common-law collateral estoppel principles to criminal cases outside of this double jeopardy context) and at 22 (Meyers, J., dissenting) (acknowledging the ambiguity in this Court's collateral estoppel cases by not fully explaining whether they are referring to "constitutional double jeopardy protections or simply to common-law protections"); Ashe, 90 S.Ct. at 1203-05 (Burger, C.J., dissenting) (claiming that collateral estoppel principles should not apply to criminal cases and that the collateral estoppel concept "is a strange mutant as it is transformed to control" in criminal cases).

Ashe's federal constitutional collateral estoppel double jeopardy doctrine states that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe, 90 S.Ct. at 1194; see also Reynolds, 4 S.W.3d at 19-22 (discussing the constitutional limits of this doctrine on the power of state legislatures to legislate in this area). It is the defendant's burden to prove "that the [ultimate] issue whose relitigation he seeks to foreclose was actually [or necessarily] decided in the first proceeding." Schiro v. Farley, 510 U.S. 222, 114 S.Ct. 783, 791, 127 L.Ed.2d 47 (1994) (internal quotes omitted). Ashe requires courts to "examine the record of [the] prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude (sic) whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." Ashe, 90 S.Ct. at 1194.^[2] Any "test more technically *447 restrictive" would, according to Ashe, "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." Id.^[3]

After examining relevant portions of the record from the first criminal prosecution, I cannot conclude that the jury in that case necessarily found that appellant was not intoxicated by alcohol. The offenses submitted to the jury in that prosecution were intoxication manslaughter and manslaughter. The jury was instructed to find appellant guilty of intoxication manslaughter if it found that appellant's intoxication, if any, caused the victim's death. The only theories of intoxication presented to the jury were "either by not having the normal use of [appellant's] mental or physical faculties by reason of the introduction of alcohol into his body" or "by having an alcohol concentration of .10 or more." The charge instructed the jury to convict appellant of intoxication manslaughter if it believed beyond a reasonable doubt that appellant:

did operate a motor vehicle in a public place while intoxicated, either by not having the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body or by having an alcohol concentration of .10 or more, and by reason of that intoxication, if any, by accident or mistake, caused the death of [the victim].

The jury was instructed to find appellant guilty of manslaughter if it believed beyond a reasonable doubt that appellant:

did recklessly cause the death of [the victim] by operating a motor vehicle at an excessive speed and by driving into a motor vehicle occupied by [another person].

The State's theory was that appellant's alcohol intoxication caused him to drive recklessly at an excessive rate of speed which caused the accident resulting in the victim's death. Appellant's theory was that he was not intoxicated by any of the two manner and means submitted to the jury but that, if he was, his intoxication was not a contributing factor to the accident. For example, appellant claimed during his opening statement that his accident reconstructionist would contradict the prosecution theory that appellant was driving at an excessive rate of speed, and that the prosecution had to revise its initial figures "almost 20 miles per hour downward" in light of what appellant's accident reconstructionist had to say.

*448 [The prosecutor] told you that you will hear from police accident reports and I anticipate that you're going to hear that there was not one police accident reconstruction report, but there were two. I anticipate that you will hear that the police-the first police accident report, what brought this case to be tried and first to be indicted, to be tried, came out well over a year ago. And in that initial accident reconstruction report, it reflected that the vehicle was going 88 miles per hour at the time it lost control, and that it was going 80 miles per hour at the time of impact. And then [appellant] got indicted for this crime. You remember when we talked about sometimes the government makes a mistake? I think you will hear that we then hired an accident reconstruction team, a private accident reconstruction team to review this accident. And suddenly, I think you will hear that the government decided to review it's own findings. And I think you will hear that just last week, after that report had been in for well over a year and a half, just last week, the police-the DPS reconstruction team said we made some very severe errors because the speed wasn't 88 when it lost control, it was 69. And the speed wasn't 80 miles per hour at impact, it was 60. That's not what brought these charges, but that's what I anticipate the DPS officers will tell you, that they have revised their figures almost 20 miles per hour downward, and will talk about the errors that caused that revision. And the frightening thing is, if [appellant's] family hadn't had the money to make sure that somebody else was going to check that work, what you would be hearing today, I fear, was that he was going 88 miles per hour. But now the government acknowledges that this is not a correct report and they have revised those figures. I think you will hear from our expert and I want you to compare the expert that we're going to be putting forward to the expert the government puts forward who will tell you that those figures by the government experts are still too high, that in fact [appellant] was going approximately 57 to 58 at impact, and 60 miles per hour at the point where the government says he lost control of the vehicle. How far, far different than that 88 miles per hour that we lived with for a year and a half.

Appellant's accident reconstructionist supported these assertions at trial. Appellant's accident reconstructionist also contradicted other aspects of the prosecution's theory of how the accident occurred such as when appellant began to lose control of his vehicle (before the curve at a lower speed limit or after the curve at a higher speed limit).

It was undisputed that appellant had been drinking wine before the fatal accident. Responding to the prosecution's evidence that appellant's BAC at the time of the accident was above .10, the best appellant's toxicology expert could do was to admit that appellant's BAC at the time of the accident was between .07 and .09.

Q. But you—you're saying that—you have come here today to testify that in your best estimate it could be anywhere between .07 and .09?

A. Point-0-7 (.07) to .09, no less than.07, no higher than .09.

Significantly, appellant's toxicology expert also admitted that a BAC of .07 to .09 would cause most people to lose "some of the normal use of their abilities."^[4] For example,

*449 Q. Let's talk about—I'm not talking about your chronic drinker. Let's talk about the person who may occasionally drink something, but not a chronic drinker. At what point do you believe that a person loses the normal ability to make complex reaction, or reaction to a complex emergency situation?

A. Again, that is—I want to answer it the best way possible. Most people have a different absorption for the alcohol. And also, they have a different reaction. I have observed hundreds of people under the influence of various substances and you can make some generalizations, but most everybody has a different reaction. One thing that comes to mind is a California Highway Patrol test where they actually took a whole bunch of individuals and they gave them one drink, two drinks, three drinks, and they made them drive around the cones in the parking lot.

Q. Okay.

A. The person that performed the best at .10 was a young person.

Q. Uh-huh (affirmative).

A. And the—I remember—I think—

Q. But did that person perform as well as they did when they were sober?

A. No, most definitely.

Q. Okay. Well—

A. No. Most definitely there was a deterioration in their ability.

Q. So they had lost some of the normal use of their abilities?

A. Most definitely.

Q. Let me ask you, you came up here from Houston?

A. Yes, ma'am.

Q. Did you drive or fly?

A. I drove.

Q. Okay. You know you can fly up? I mean, there is an airplane that comes here.

A. Oh, okay. I use them for out of state. I try to avoid them.

Q. Okay. Let's say—

A. I have tested some of the pilots.

Q. —let's say that you were going to make a quick trip to College Station from Houston, and you made it—it had to quick, so you were going to take the airplane, which I think is Continental? I think it's Continental. It's about a 30 minute flight. And just before you get on this plane, you are told by the stewardess, ladies and gentlemen, our pilot has had a few drinks while he has been waiting for you and we've tested his blood alcohol, it's .07, so he's not intoxicated, would you get on that airplane?

A. No, ma'am.

(Emphasis Supplied).

Appellant's toxicology expert also testified that he should not be driving even at a BAC of .05 and that he would not let his child drive with someone "who was a .05."

Q. So you think, your personal feelings from your studies and work is that at .05 most people are sufficiently impaired that they shouldn't be doing dangerous-type things?

A. I know one thing, I shouldn't be driving at .05 myself.

Q. Would you let your child drive with someone who was a .05?

A. No, God, no.

Appellant's toxicology expert also admitted that alcohol would have been a contributing factor to a hypothetical accident that was consistent with the prosecution's theory of the case.

*450 Q. Is there any way to know if you factor in egregiously reckless driving, speeding, going off the road, and being out of control with the car, if you factor that in with the blood levels that you've seen, do you think that shows some loss of normal use of the mental or physical faculties?

A. I would definitely have to say that there is some contributing factor associated with what you described.

(Emphasis Supplied).

During closing jury arguments, the defense argued that the accident reconstruction testimony (not the toxicology testimony) was "so hypercritical in this case." The defense also argued that, in addition to not proving appellant was intoxicated, the prosecution failed to prove that appellant's intoxication, if any, caused the fatal accident. The last thing the defense told the jury was that it should still acquit appellant even if the jury found that he was intoxicated.

I know how much pain there is in this courtroom. The evidence is not there to convict [appellant] of these offenses. Civil liability, sure. But criminal liability, when we start—because generally the criminal law is defined—being reserved for those people who had intentionally done horrible things, or bad things. They haven't proved their allegations. They haven't proved that he consciously disregarded an unjustified— substantial risk that [the victim] would die. They haven't proved that he had an alcohol content of above .10 at the time he was driving, and they haven't proved that [appellant] had an accident because that (sic) he was intoxicated. They haven't proved he lacked the normal use, in fact, their own witness said he seemed perfectly normal. But before you can convict [appellant], you have to find that the accident wouldn't have occurred but for that intoxication. In other words, you're given a Charge that says, cause means it had to-it had to be what caused it. And you remember what [a witness] said, he's seen other accidents similar in nature, didn't have a thing in the world to do with alcohol or intoxication. And we posed questions, what could have caused this accident? And [the witness] said, "Well, it could have been a number of things." The Varner vehicle, you remember, there was some question about where the sun was. But she was only going 20-something miles per hour, much slower than her normal speed. Could be that the Varner vehicle was towards the middle of the road. It could be inattentiveness. It could be an animal ran out. We don't know what caused this accident. And that's why the accident reconstruction testimony is so hypercritical in this case. Because if it is as the DPS said, then that is one thing. His speed, he lost control up here because he's going too fast and then he comes back over here, overcorrects. But if you don't accept the DPS version, if you accept [the defense expert reconstructionist witness], that he makes the curve fine and that he is going along and then something happens, and we will never know what it was. We will never know what caused that accident. But [this witness] told you, "Not necessarily alcohol, not necessarily speed. There is no way to know." And the government has to prove, beyond a reasonable doubt, what caused that accident. They have to prove that it was caused by reckless speed or by intoxication. And if they can't prove that beyond a reasonable doubt, then you must return a verdict of not guilty. And how can any one of you say beyond a reasonable doubt what *451 caused that accident, unless you believe the Department of Public Safety, that he ran off up here. Some of it flies in the face of the law of physics. Otherwise, there is no way to know. And I know how very difficult it is for all of you to sit there and think, "But we hurt for these people. We hurt for these people, there is pain, and we don't like drinking, and we don't like driving, and we've had bad experiences with it." But the fact of the matter is, the government hasn't proved their case.

At one point I was really angry. I was angry about the DPS, that—the various reports, 88 miles an hour, 87 miles an hour. Eighty miles an hour, is clearly the wrong, clearly. And thinking about the horrible consequence it would have had on my client. And then I thought, despite that, it wasn't intentional by those DPS officers, I believe that. And it probably wasn't even reckless. It's just sometimes things happen, accidents happen. This is a tragedy. A verdict of not guilty does not mean that it isn't tragic. A verdict of not guilty means the government has not proved these allegations, these allegations, these allegations beyond a reasonable doubt. Even if you find he was intoxicated, if you don't find that intoxication beyond a reasonable doubt caused this accident, you must return a verdict of not guilty.

(Emphasis Supplied).

The prosecution responded by, among other things, reminding the jury that the testimony of appellant's own toxicology expert supported a finding that alcohol had caused appellant to lose the normal use of his mental and physical faculties when the accident occurred.

Now, quite frankly, I did not understand what [appellant's expert]—I did not understand the basis of what he was talking about. I did understand his conclusion, though, which is that he believes, as a scientist, he believes that at the second [appellant] drove his car into that Suburban, his blood alcohol level wasn't any higher than .09. Now,—and you can believe him or not, or you can believe [other witnesses], I mean, that's totally up to you folks. But let's—let's assume that everything out of [appellant's expert] testimony is absolutely dead certain true, gospel truth. Then what? We know that people do not start losing their mental and physical faculties at the point that they reach.10. It isn't like filling up a glass and it doesn't count until it's overflowing. Point 1-0(.10) is the political decision our legislature has made to say we don't care what your behavior is, we don't care if there's any bad driving, we don't care if there's any indication that you've lost control, if your blood's a .10, that's it, you're drunk. But way before that, way before that, you start—everyone, everyone, you, me, Mr. James, Mr. Spillane, Judge Delaney, everybody in this room including [appellant], and that was the testimony [of appellant's expert], everybody has lost some mental capacity.

(Emphasis Supplied).

These portions of the record demonstrate that the jury could have acquitted appellant without necessarily finding that he was not intoxicated by alcohol. See Ashe, 90 S.Ct. at 1194 (issue is "whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration"). It is significant that appellant's own toxicology expert did not seriously contest the loss of normal use of mental and physical faculties theory of intoxication. See Dowling v. U.S., 493 U.S. *452 342, 110 S.Ct. 668, 673-74, 107 L.Ed.2d 708 (1990) (collateral estoppel principles did not preclude relitigating issue of the defendant's identity partly because that issue was "not seriously contested" in the first trial). In addition to possibly basing its acquittal of appellant on a finding that he was not intoxicated, the jury could also have possibly found that appellant was intoxicated (under the loss of normal use theory) but acquitted him because it did not believe that this intoxication was a contributing factor to the accident which the record reflects was one of the theories appellant urged at the first trial.^[5]

The Court's opinion concedes that it is "a possibility" that the jury did not necessarily find that appellant was not intoxicated by alcohol. This should be fatal to appellant's collateral estoppel claim. See Schiro, 114 S.Ct. at 791 (defendant must prove that "issue whose relitigation he seeks to foreclose was actually decided in the first proceeding"); Ashe, 90 S.Ct. at 1194 (issue is "whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration"). But, the Court still concludes that this prosecution is jeopardy-barred because, even if the jury found that appellant was intoxicated, it nevertheless could have found that the "intoxication itself was not a contributing factor to the accident" in which case "collateral estoppel would apply to causation, rather than intoxication."

But, in analyzing the collateral estoppel issue this way, the Court concludes that this prosecution is jeopardy-barred even though it is unable to decide what the jury necessarily found in the first trial. But see Schiro,