We have a case in the panhandle, Money Laundering, accusing the defendant of transporting the proceeds of marijuana trafficking. While out on bond, defendant gets caught at his home in West Texas with 500 pounds of MJ. We planned to use this incident as 404(B) evidence of his guilt of the money laundering (we've done it before and been upheld by the 4th COA).

In the new POM case, the MJ has been suppressed by the trial court. Too much time elapsed between neighbors' call of possible domestic disturbance and officers' search of D's home.

So, two questions. One, are we collaterally estopped from bringing the 500 pound incident into our trial in the Money Laundering case? Two, if not, does 38.23 apply to the 404(B) evidence, thus asking our judge to consider this all over again? At first blush, the answers seem easy, but the research found case law lacking on the points.

Question 2: A criminal defendant can complain about the legality of how evidence of an extraneous offense was obtained. Thornton v. State, 145 S.W.3d 228 (Tex. Crim. App. 2004); Hernandez v. State, 13 S.W.3d 492 (Tex.App.-Amarillo 2000), rev'd on other grounds 60 S.W.3d 106 (Tex.Crim.App. 2001).


Question 1: Whether collateral estoppel applies to a pre-trial finding is something of an open question. Guajardo v. State, 109 S.W.3d 456, 462-63 (Tex. Crim. App. 2003) (Meyers, J., concurring)(noting need for a "final disposition" before collateral estoppel can apply and discussing to courts of appeals that had imposed a fianlity requirement). Assuming you never got a final judgment in the POM, I would say that the suppression ruling would not provide a basis for collateral estoppel since you could go back to the POM judge and ask him to reconsider.

That was almost exactly what we thought. I found a case that said on the collateral estoppel issue, if jeopardy hasn't attached, there is no binding final determination.