OPINION ON DENIAL OF REHEARING Before Justices Schenck, Reichek, and Carlyle Opinion by Justice Schenck The following explains our decision to deny the State’s motion for rehearing. In that motion, the State urges the orders granting the motions for new trial either correctly stated the basis as insufficient evidence, which the State argues would require complete acquittal in all three cases, or the orders were printed on incorrect forms and were unintentionally granted on non-sufficiency bases, which the State argues would mean the second trial did not violate the Double Jeopardy Clause. The State does not cite any authority for the proposition that a jury’s actual determination of a material factual question that is legally dispositive of guilt or punishment is not subject to double jeopardy or is open to redetermination either by the trial court on a motion for new trial or by a second finder of fact. While the Supreme Court has recently clarified that the Double Jeopardy Clause requires examination of the basis for a jury’s determination of the facts where the evidence and theories presented by the State potentially overlap, e.g., Yeager v. United States, 557 U.S. 110, 119 (2009), it has long recognized that independent factual determinations, such as those at issue here,[1] are barred from re-examination. Ball v. United States, 163 U.S. 662, 671 (1896) (“However it may be in England, in this country a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense.”); see also Hudson v. Louisiana, 450 U.S. 40, 45 (1981) (reversing judgment of conviction after second trial because defendant was granted motion for new trial on evidentiary sufficiency grounds). Instead, the State focuses its argument on dismissing all three convictions. That is not so. As the State prevailed on the distinct question of whether Sledge was unlawfully in possession of controlled substances and a firearm, there is nothing in the jury’s findings that would compel the conclusion that the verdict was a functional acquittal. In other words, the jury’s findings are individual factual determinations, such that its findings on the enhancements are acquittals as to those ultimate facts but have no effect on its findings as to the charged offenses, which are separate ultimate facts. See Rollerson v. State, 227 S.W.3d 718, 730 (Tex. Crim. App. 2007). The portion of the verdict and judgment adverse to the defendant is properly understood as the subject of the motions for new trial,[2] thus allowing the defendant and the State to preserve their arguments for reexamination by the trial court, but at that point, only those arguments adverse to the defendant are preserved. See Ashe v. Swenson, 397 U.S. 436, 445–46 (1970) (“For whatever else [the double jeopardy] constitutional guarantee may embrace, it surely protects a man who has been acquitted from having to ‘run the gantlet’ a second time.”). As for the State’s argument that the trial court granted the motions on non- sufficiency bases, we are obliged by the presumption of regularity to reject the notion that trial counsel entered into a secret agreement contrary to the record and the premise of this appeal and failed to record it or disclose to this Court.[3] Accordingly, we deny the State’s motion for rehearing. /David J. Schenck/ DAVID J. SCHENCK JUSTICE 191398F.P05
