Ex Parte Michael Aldondus Balque

Affirmed and Opinion filed November 2, 2004 Affirmed and Opinion filed November 2, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-04-00376-CR ____________ EX PARTE MICHAEL ALDONDUS BALQUE On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause No. 980,661 O P I N I O N Applicant Balque was sentenced to 31 years in prison and assessed a $10,000 fine after a jury found him guilty of aggravated kidnapping and found the enhancement paragraph to be true. Balque appeals the trial court’s denial of his pretrial petition for a writ of habeas corpus relief. Because we find the U.S. and Texas Constitutions’ double jeopardy clauses do not bar his prosecution, we affirm. FACTUAL AND PROCEDURAL BACKGROUND Balque was convicted of aggravated kidnapping under section 20.04 of the Texas Penal Code.[1] On direct appeal, the Amarillo Court of Appeals found the evidence factually insufficient on the ‘abduction’ element of the charge.[2] Balque v. State, No. 07-01-0154-CR, 2002 WL 1290913, at *3 (Tex. App.—Amarillo June 11, 2002) (not designated for publication), rev’d by, Balque v. State, No. 1354-02, 2003 WL 21509178 (Tex. Crim. App. July 2, 2003) (not designated for publication). The court reversed Balque’s aggravated kidnapping conviction and remanded for a new punishment hearing on the lesser offense of assault. The State filed a petition for discretionary review, which was granted, and the Texas Court of Criminal Appeals held that the appropriate remedy was a new trial on the original felony indictment. Balque v. State, 2003 WL 21509178, at *1. On remand, the Amarillo Court of Appeals reversed and remanded the cause for a new trial on the aggravated kidnapping charge. Balque v. State, No. 07-01-0154-CR, 2003 WL 21825576 (Tex. App.—Amarillo Aug. 7, 2003) (not designated for publication). Balque then filed a pretrial petition for a writ of habeas corpus, which the trial court denied. In three points of error, Balque contends that his retrial is barred by the double jeopardy clauses of the U.S. and Texas constitutions, by collateral estoppel, and by application of the law of the case doctrine. We will address each in turn. ANALYSIS The constitutional guarantee against double jeopardy permits Balque’s retrial. Balque contends that his retrial violates the proscriptions against double jeopardy contained in the United States and Texas Constitutions. Because the Texas Constitution does not provide greater protection from double jeopardy than the federal constitution, we will not perform a separate analysis for the Texas Constitution’s double jeopardy guarantee. Phillips v. State, 787 S.W.2d 391, 393 n. 2 (Tex. Crim. App. 1990) (en banc) (“Conceptually, the state and federal constitutional provisions are identical.”) (citations omitted); Ex parte Starnes, 993 S.W.2d 685, 687 n. 5 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (“Without authority that the Texas Constitution provides greater double jeopardy protection under the facts of this case, we will apply the double jeopardy standards that are common to both the Texas and United States Constitutions.”). The Amarillo Court of Appeals found the evidence factually insufficient to support Balque’s conviction. Contrary to Balque’s assertion, not all insufficiency findings will bar a retrial on double jeopardy grounds. Although an appellate determination that the evidence is legally insufficient will bar a retrial, a determination that the evidence is factually insufficient will not. Tibbs v. Florida, 457 U.S. 31, 40–41, 42, 102 S.Ct. 2211 (1982); Clewis v. State, 922 S.W.2d 126, 136 (Tex. Crim. App. 1996) (en banc) (“As the United States Supreme Court held, the Double Jeopardy Clause does not prohibit a retrial if the reversal is based on factual insufficiency of the evidence. However, retrial is prohibited where the reviewing court determines that the evidence is insufficient under Jackson.”) (citing Tibbs, 457 U.S. at 39.) This is because a legal insufficiency finding means the trial court should have entered a judgment of acquittal and an acquittal bars subsequent prosecutions. Tibbs, 457 U.S. at 41. A finding of factual insufficiency, however, is not the equivalent of an acquittal and does not bar retrial. Id. at 42. Because Balque’s conviction was reversed on factual, and not legal, insufficiency grounds, we overrule Balque’s contention that his retrial violates the constitutional guarantee against double jeopardy. The collateral estoppel doctrine does not preclude Balque’s retrial. The guarantee against double jeopardy embodies the doctrine of collateral estoppel. Ashe v. Swenson, 397 U.S. 436, 445, 90 S. Ct. 1189 (1970). Collateral estoppel prevents the same parties in a future lawsuit from relitigating an issue that has already been determined by a valid and final judgment. Id. at 443. Balque asserts that principles of collateral estoppel bar the State from retrying him because the Amarillo Court of Appeals found that the evidence was factually insufficient to convict him. However, the doctrine applies only when a “valid and final judgment” has been entered. Id. No final judgment exists here because the appellate court set the trial judgment aside, did not enter a new judgment finally disposing of the case on the merits, and remanded the case for a new trial. Thus, this record contains no ‘final judgment’ for collateral estoppel purposes. Garcia v. State, 768 S.W.2d 726, 729 (Tex. Crim. App. 1987) (en banc) (“[T]he reversal of a judgment on appeal should eliminate its status as being final and valid for purposes of collateral estoppel.”). We overrule Balque’s second point of error. The law of the case doctrine is inapplicable and does not bar Balque’s retrial. Finally, Balque asks this court to grant habeas relief because the law of the case doctrine prevents his retrial. Under this doctrine, when “determinations as to questions of law have already been made on a prior appeal to a court of last resort, those determinations will be held to govern the case throughout all its subsequent stages, including a retrial and a subsequent appeal.” Granviel v. State, 723 S.W.2d 141, 147 (Tex. Crim. App. 1986) (en banc). As its name suggests, “[t]he doctrine of the law of the case only applies to questions of law and does not apply to questions of fact.” Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986) (citations omitted). Here, the appellate court determined that the evidence was factually insufficient to support the abduction element of aggravated kidnapping. Factual sufficiency is a question of fact. Clewis, 922 S.W.2d at 133 (“[T]he issue of factual sufficiency is a question of fact.”) (citing Ex parte Schuessler, 846 S.W.2d 850, 852 n.5 (Tex. Crim. App. 1993) (en banc)). Because the previous appellate ruling in Balque’s case involved a question of fact, we conclude the doctrine of the law of the case also does not apply and we overrule Balque’s third point of error. Finding no merit in Balque’s three points of error, we affirm the trial court’s order denying the pretrial petition for habeas corpus relief. /s/ Wanda McKee Fowler Justice Judgment rendered and Opinion filed November 2, 2004. Panel consists of Justices Yates, Fowler and Guzman. Do Not Publish — Tex. R. App. P. 47.2(b). [1] “A person commits an offense if he intentionally or knowingly abducts another person with the intent to . . . inflict bodily injury on him or violate or abuse him sexually. . . .” Tex. Penal Code § 20.04(a). [2] “‘Abduct’ means to restrain a person with intent to prevent his liberation by secreting or holding him in a place where he is not likely to be found. . . .” Id. § 20.01(2). In this case, the place of ‘abduction’ was Balque’s apartment (where the complainant had been living) and a number of people knew of complainant’s whereabouts. The appellate court determined that the evidence was factually insufficient to show that Balque held the complainant in a place where she was not likely to be found. R.R. at 28.