Opinion Issued June 10, 2004

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-00194-CR

MIKE J. MALKEMES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 914613

MEMORANDUM OPINION

          A Harris County grand jury issued a true bill of indictment accusing appellant, Mike J. Malkemes, of the second degree felony offense of manslaughter and the state jail felony of criminally negligent homicide. Although the State abandoned the negligent homicide allegation prior to trial, a jury found appellant guilty of criminally negligent homicide, and made an affirmative deadly weapon finding. The jury assessed appellant’s punishment at five years’ confinement and a $10,000 fine. With a recommendation from the jury that appellant be placed on community supervision, the trial judge suspended the sentence and placed appellant on five years’ community supervision. In two issues, appellant contends that (1) his prosecution in the instant case was barred by collateral estoppel, and (2) the trial court erred in refusing to allow him to present evidence in support of his special plea.

Facts

On January 21, 2002, Billy White, James Johnson, and two other friends were

driving after a night of drinking and dancing. After running a red light, appellant collided with a car occupied by White and Johnson. Both White and Johnson ultimately died from injuries sustained in the collision. Appellant admitted to officers that he had been drinking and blood tests revealed that he had a blood alcohol content of 0.15.

          On October 17, 2001, a Harris County grand jury issued a true bill of indictment accusing appellant of the second degree felony offense of intoxication manslaughter in regard to White. However, a jury subsequently found appellant guilty only of the lesser included offense of driving while intoxicated. On June 10, 2002, another Harris County grand jury issued a true bill of indictment accusing appellant of the offense of manslaughter and criminally negligent homicide in regard to Johnson, the instant case. Although the State abandoned the negligent homicide allegation prior to trial, a jury subsequently found appellant guilty of the lesser included offense of criminally negligent homicide.

Discussion

          The Court of Criminal Appeals recently held that a defendant may not obtain appellate review of his collateral estoppel claim if he fails to introduce a record of the first proceeding in the second proceeding and to include that record on appeal. Guajardo v. State, 109 S.W.3d 456, 457 (Tex. Crim. App. 2003). It noted that, “Without the complete record, no reviewing court can determine exactly what specific facts the first factfinder actually found.” Id. (Emphasis added). Furthermore, “without that complete record, no reviewing court can address whether collateral estoppel might apply in a particular context or whether a trial court erred in rejecting that claim in a specific case.” Id. In reaching its decision, the Court of Criminal Appeals relied on Ashe v. Swenson, 397 U.S. 436, 444, 90 S. Ct. 1189, 1194 (1970), and its progeny to conclude that “an appellate court must review the entire testimonial record in the first proceeding to determine precisely what specific facts were actually decided and whether the resolution of those facts necessarily forecloses further proceedings.” Guajardo, 109 S.W.3d at 461 (Emphasis added).

          Here, appellant has failed to present a sufficient appellate record to support his collateral estoppel claim. Appellant has brought forth the transcript of his trial in the Johnson case, but he has failed to bring forth the transcript of his trial in the White case. Although appellant apparently introduced copies of the transcript from the White case into evidence in his trial in the Johnson case, there is no copy of the White transcript in our appellate record. The appellate record contains only the indictment, the charge, the judgment, and the sentence from the White case. Accordingly, as noted by the Court of Criminal Appeals, “without that record, appellant cannot even reach first base” on his collateral estoppel claim. Id. at 462. We overrule appellant’s first issue.

          Additionally, because appellant has not brought forth the transcript from the former trial, we have an inadequate record before us to determine whether there was a fact question to be decided by the jury on his special plea. Accordingly, we overrule appellant’s second issue. 

Conclusion

          We affirm the judgment of the trial court.

                                                             Evelyn V. Keyes

                                                             Justice

Panel consists of Justices Nuchia, Jennings, and Keyes.

Do not publish. Tex. R. App. P. 47.4.