Texas Stamp


PD-0065-22 & PD-0066-22 & PD-0067-22 04/06/2022

(1) “Must a defendant be acquitted if the trial court grants a motion for new trial alleging only that ‘the verdict is contrary to the law and evidence’ and the State does not appeal?” 

(2) “Was it so certain that a first jury’s ‘not true’ findings survive the granting of a new trial and collaterally estop the State from pursuing the findings on retrial that counsel was ineffective for not so arguing?”

A jury convicted Sledge of multiple offenses but rejected deadly-weapon findings and habitual-offender enhancements. Thereafter, Sledge filed motions for new trial on the ground that “the verdict is contrary to the law and evidence.” The trial court’s orders simply said that the motions were “hereby...granted.” The State (according to the docket sheet) was unopposed to the new-trial motions and did not appeal. On retrial, the judge submitted the deadly-weapon and enhancement issues again, and, this time, the jury found them true.

On appeal, Sledge argued for the first time that counsel was ineffective for not arguing that collateral estoppel barred retrial of these two issues. A panel of the court of appeals (over a dissent to the denial of en banc reconsideration on its own motion) agreed there was “no conceivable trial strategy” not to argue collateral estoppel and remanded for a new punishment hearing. On rehearing, the State (represented by the D.A.) charted a new course, one that the defense joined. It argued that the court should acquit Sledge outright because a “contrary to the law and evidence” grant of a new trial was equivalent to legally insufficient evidence and Double Jeopardy (not collateral estoppel) should have barred retrial on any issue. In the alternative, it asked for abatement to determine if the trial judge granted a new trial for a non-sufficiency reason. The court of appeals denied rehearing and maintained its order for a punishment retrial because the original jury’s factual determinations were not open to redetermination either on a motion for new trial or by the second jury.

The State Prosecuting Attorney points out that State v. Zalman, 400 S.W.3d 590 (Tex. Crim. App. 2013), can be read to suggest that, when a trial court grants a motion for new trial that rests solely on a contrary-to-law-and-evidence ground, only a legal sufficiency claim is presented and can justify the trial court’s ruling on appeal. The SPA argues, however, that applying that holding is inappropriate where the State did not oppose the granting of a new trial and doesn’t appeal. For Double Jeopardy to bar a retrial, there must have been a finding of legal insufficiency, and the SPA contends that the behavior of all the trial participants is inconsistent with such a finding having been made. Finally, the SPA contends counsel should not have been found ineffective given that collateral estoppel 1) may be inapplicable to criminal cases, 2) is definitively inapplicable to sentencing-stage findings like enhancements, and 3) depends on there being a final judgment, which, of course, was eliminated here with the granting of the new trial.

Contact Us

Mailing Address

P. O. Box 13046
Austin, Texas 78711-3046

Physical Address

209 W. 14th Street
Austin, Texas 78701


(512) 463-1660


(512) 463-5724