Ex Parte Louis Elias Pulido v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-25-00077-CR
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EX PARTE LOUIS ELIAS PULIDO

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On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 24-04-06752
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OPINION

Louis Elias Pulido, charged by indictment with murder, filed an application

for pretrial writ of habeas corpus, claiming double jeopardy and collateral estoppel

bar his prosecution for murder because he previously pleaded guilty to an offense

based on the same conduct and then successfully completed deferred adjudication

community supervision. In this appeal, we review the trial court’s denial of Pulido’s

writ and hold that neither double jeopardy nor collateral estoppel bar the current

prosecution. Accordingly, we affirm.

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Background

In January 2009, Pulido was indicted in Harris County, Texas for the offense

of injury to a child, a first-degree felony. See Tex. Penal Code Ann. § 22.04(a), (e).

The indictment alleged Pulido intentionally and knowingly caused serious bodily

injury to a child, D.P., by shaking the complainant with a deadly weapon, namely

hands, by striking the complainant’s head against a deadly weapon, namely an

unknown object, by striking the complainant in the head with a deadly weapon,

namely an unknown object, and by striking the complainant with a deadly weapon,

namely a hand. 1

In November 2010, Pulido pleaded guilty to the lesser-included offense of

reckless injury to a child, a second-degree felony, and was placed on deferred

adjudication community supervision for a term of five years. In January 2016, the

trial court filed an Order Affecting Community Supervision, noting that Pulido had

successfully completed the terms of deferred adjudication community supervision,

and discharged him from its supervision.

In April 2024, Pulido was indicted in Montgomery County for murder

following D.P.’s death in 2022. The indictment alleges Pulido

1
To protect the victim’s privacy, we refer to the victim by his initials. See Tex.
Const. art. I, § 30 (granting crime victims “the right to be treated with fairness and
with respect for the victim’s dignity and privacy throughout the criminal justice
process”).
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did then and there commit or attempt to commit a felony, namely:
Injury to a Child, and in the course of, and in furtherance of, or in
immediate flight from the commission or attempted commission of the
felony, the Defendant did commit or attempt to commit an act clearly
dangerous to human life, namely: striking D.P. with defendant’s hand,
causing the acceleration and deceleration of D.P.’s head, and striking
D.P. with or against an unknown object, thereby causing the death of
an individual, namely, D.P.

Pulido filed an application for a pretrial writ of habeas corpus, asserting his

prosecution for murder was jeopardy-barred due to his prior prosecution for, and

plea of guilty to, injury to a child. He also argued the State is collaterally estopped

from prosecuting him again for the same conduct. The trial court denied the writ and

entered findings of fact and conclusions of law. The court concluded as a matter of

law that “successive prosecution for Murder is not barred[,]” reasoning, “Since D.P.

did not die until 2022, the Murder charge could not have been brought in the 2009

prosecution.” The trial court further concluded, “Texas Penal Code § 22.04(h)

expressly allows a person to be prosecuted for both Injury to a Child and another

offense based on the same conduct.” The court found that the principles of collateral

estoppel were inapplicable because a specific issue had not been previously litigated

and decided in Pulido’s favor.

Standard of Review

“Pretrial habeas, followed by an interlocutory appeal, is an extraordinary

remedy[]” available when a prosecution potentially violates double jeopardy. Ex

parte Ingram, 533 S.W.3d 887, 891-92 (Tex. Crim. App. 2017). When a trial court’s
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denial of pretrial habeas depends on findings of fact or mixed questions of law and

fact which require an evaluation of witnesses’ credibility and demeanor, we defer to

the trial court’s findings if they are supported by evidence—which we view in the

light most favorable to the trial court’s ruling—and we do not disturb the trial court’s

ruling absent an abuse of discretion. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.

Crim. App. 2003), overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d

335 (Tex. Crim. App. 2007). When, instead, the trial court’s ruling depends on the

application of the law to facts which can be determined without judging credibility

or demeanor, we review the double-jeopardy question de novo. Sledge v. State, 666

S.W.3d 592, 599 (Tex. Crim. App. 2023).

Here, Pulido does not question the trial court’s findings of fact, arguing

instead that the trial court misapplied the law when it concluded that Pulido’s

prosecution was not barred by double jeopardy. Therefore, we review the question

de novo. Id.

Analysis

“The constitutional proscription against double jeopardy provides three types

of protection: 1) protection against a second prosecution for the same offense after

an acquittal; 2) protection against a second prosecution for the same offense

following a conviction; and 3) protection against multiple punishments for the same

offense.” Speights v. State, 464 S.W.3d 719, 722 (Tex. Crim. App. 2015) (citing

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Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014)). No party contends this

case is in the first category of protections, because Pulido was not acquitted in the

first prosecution. Pulido primarily argues his case involves multiple punishments for

the same offense, but we construe his brief as fairly including a claim of successive

prosecution. See Tex. R. App. P. 38.1(f). The trial court concluded Pulido’s

prosecution is not barred either by the successive-prosecution protection or by the

multiple-punishments protection. The State argues the trial court was correct in

determining neither protection applies. As explained below, we conclude the current

prosecution is not barred as a successive prosecution for the same offense, and

Pulido’s claim that he is being subjected to multiple punishments for the same

offense is not cognizable on pretrial habeas.

Questions of classification aside, the threshold question is whether the offense

for which Pulido is currently being prosecuted and ultimately may be punished, is

the “same offense” as the offense for which he was already prosecuted and punished.

See U.S. v. Dixon, 509 U.S. 688, 704 (1993) (rejecting the dissent’s argument that

“same offense” has a different meaning in each context); see also Ex parte Castillo,

469 S.W.3d 165, 168 n.6 (Tex. Crim. App. 2015). The test for determining whether

offenses are legally the same for double-jeopardy purposes compares the elements

of the two offenses in question and determines whether each “requires proof of a

fact which the other does not.” Blockburger v. U.S., 284 U.S. 299, 304 (1932).

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In Texas, we employ “the ‘cognate-pleadings’ approach, in which the court looks to

the facts and elements as alleged in the charging instrument, and not just to the

statutory elements of the offense, to determine whether there exists a lesser-included

offense of the greater charged offense.” Hall v. State, 225 S.W.3d 524, 526 (Tex.

Crim. App. 2007).

Pulido was previously charged with, and pleaded guilty to, the offense of

injury to a child, the particulars of which required proof that Pulido:

1. intentionally, knowingly, recklessly, or with criminal negligence

2. caused bodily injury, serious bodily injury, or serious mental
deficiency, impairment, or injury

3. to a child, namely D.P.

See Tex. Penal Code Ann. § 22.04(a).

Pulido is currently charged with the offense of murder, the particulars of

which are set forth in the indictment, according to which the State will be required

to prove:

1. Pulido committed or attempted to commit a felony, namely:
injury to a child, namely D. P., which requires proof that Pulido:

a. intentionally, knowingly, recklessly, or with criminal
negligence

b. caused bodily injury, serious bodily injury, or serious
mental deficiency, impairment, or injury

c. to a child, namely D.P.; and

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2. in the course of and in furtherance of the commission or attempt,
or in immediate flight from the commission or attempt, Pulido
committed or attempted to commit an act clearly dangerous to human
life

3. that caused the death of D.P.

See id. § 19.02(b)(3).

While the offense of murder in this case requires proof of facts that the offense

of injury to a child does not, the same cannot be said of the inverse; Pulido’s prior

prosecution and guilty plea for injury to a child did not require proof of any fact

beyond what the State will be required to prove in the current prosecution for murder.

Therefore, under the facts alleged in this case, injury to a child is a lesser-included

offense to that of murder. See Littrell v. State, 271 S.W.3d 273, 276-77 (Tex. Crim.

App. 2008) (under the facts alleged, aggravated robbery was a lesser-included

offense of felony murder).

Generally, a greater offense and any lesser-included offense are treated as the

same offense for double-jeopardy purposes. See Ochoa v. State, 982 S.W.2d 904,

907-08 (Tex. Crim. App. 1998); see also Ex parte Amador, 326 S.W.3d 202, 205

(Tex. Crim. App. 2010). “[T]he Fifth Amendment forbids successive prosecution

and cumulative punishment for a greater and lesser included offense.” Brown v.

Ohio, 432 U.S. 161, 169 (1977). However, “[a]n exception may exist where the State

is unable to proceed on the more serious charge at the outset because the additional

facts necessary to sustain that charge have not occurred or have not been discovered
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despite the exercise of due diligence.” Id. n.7 (citing Diaz v. U. S., 223 U.S. 442,

448-49 (1912)). In Diaz, the defendant was convicted of assault and battery after

beating and kicking the victim. Diaz, 223 U.S. at 444. After Diaz’s conviction, the

victim died, and Diaz was tried and convicted of homicide. Id. The Court held the

homicide prosecution was not barred by the defendant’s earlier conviction for assault

based on the same conduct:

The death of the injured person was the principal element of the
homicide, but was not part of the assault and battery. At the time of the
trial for the latter the death had not ensued, and not until it did ensue
was the homicide committed. Then, and not before, was it possible to
put the accused in jeopardy for that offense.

Id. at 448-49. The Diaz exception has been followed in Texas courts. See Graves v.

State, 539 S.W.2d 890, 891-92 (Tex. Crim. App. 1976); Hill v. State, 149 S.W.2d

93, 95-96 (Tex. Crim. App. 1941); Ex parte Hill, 464 S.W.3d 444, 448-49 (Tex.

App.—Dallas 2015, pet. ref’d). Even before Diaz, the Court of Appeals of Texas

held,

There never can be the crime of murder or manslaughter until the party
assaulted dies; these crimes have no existence in fact or law till such
death. It cannot, therefore, be said that one is tried for the same crime
when he is tried for assault during the life, and tried for murder or
manslaughter after the death, of the injured party. The death of the
assaulted party creates a new crime.

Johnson v. State, 19 Tex. Ct. App. 453, 461 (1885); see also Curtis v. State, 22 Tex.

Ct. App. 227, 237, 3 S.W. 86, 88 (1886) (when the victim dies after the defendant

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has been convicted of assault, “[t]he assault and the murder are not the same offense

within the meaning of the words ‘same offense,’ as used in our constitution.”).

Pulido pleaded guilty to injury to a child before one of the elements of his

alleged murder offense – namely, the death of D.P. – had taken place. So long as

D.P. was alive, Pulido was not in jeopardy of being convicted of murder, and he

cannot now be in jeopardy a second time without having been in jeopardy a first

time. See Diaz, 223 U.S. at 448-49; Graves, 539 S.W.2d at 892; Ex parte Hill, 464

S.W.3d at 448-49. Because Pulido is not being prosecuted for the “same offense”

for which he was previously prosecuted, we conclude double jeopardy does not bar

the current prosecution for murder.

Pulido also argues that he “has been subjected to multiple punishments for the

same offense.” He cites a subsection of the injury-to-a-child statute, which states

A person who is subject to prosecution under both this section and
another section of this code may be prosecuted under either or both
sections. […] If a criminal episode is prosecuted under both this section
and another section of this code and sentences are assessed for
convictions under both sections, the sentences shall run concurrently.

Tex. Penal Code Ann. § 22.04(h). Pulido argues that “in this case, to avoid a double

jeopardy violation, Appellant had to have been punished in a single trial for causing

serious bodily injury to D.P.” (emphasis in original). But Pulido has yet to be

convicted of, or punished for, the offense of murder, and we question whether a

multiple-punishments claim is cognizable on pretrial habeas. See Gonzalez v. State,

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8 S.W.3d 640, 643 n.9 (Tex. Crim. App. 2000); Ex parte Collins, No. 05-18-01051-

CR, 2019 Tex. App. LEXIS 5488, at *5 (Tex. App.—Dallas June 28, 2019, no pet.)

(mem. op., not designated for publication); Ex parte Devine, No. 03-17-00033-CR,

2018 Tex. App. LEXIS 7779, at *6 (Tex. App.—Austin Sep. 25, 2018, no pet.)

(mem. op., not designated for publication). Although the issue was not raised by

either party, appellate courts must be careful, on interlocutory review, not to

entertain a pretrial application for writ of habeas corpus when there is an adequate

remedy by direct, post-conviction appeal. See Ex parte Weise, 55 S.W.3d 617, 619

(Tex. Crim. App. 2001).

“Weise can be read to support the general principle that a claim is cognizable

in a pretrial writ of habeas corpus if, resolved in the defendant’s favor, it would

deprive the trial court of the power to proceed and result in the appellant’s immediate

release.” Ex parte Smith, 185 S.W.3d 887, 892 (Tex. Crim. App. 2006). This Court

has observed that “the purpose of a pretrial habeas corpus application is not to

facilitate some defensive position at the trial, but to stop the trial and secure

immediate release from confinement.” Kelson v. State, 167 S.W.3d 587, 593 (Tex.

App.—Beaumont 2005, no pet.). A defendant who prevails on a multiple-

punishments claim is not entitled to avoid prosecution; instead, “[t]he remedy for

impermissible multiple convictions and punishments is to retain the most serious

offense and vacate the other, the more serious offense ordinarily being defined as

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the offense for which the greatest sentence was assessed.” Littrell, 271 S.W.3d at

279 n.34. “[I]n the multiple punishments context, [a defendant’s double-jeopardy]

interest is ‘limited to ensuring that the total punishment did not exceed that

authorized by the legislature.’” Jones v. Thomas, 491 U.S. 376, 381 (1989) (citing

U. S. v. Halper, 490 U.S. 435, 450 (1989)). Therefore, we conclude Pulido’s

multiple-punishments claim is not cognizable on pretrial habeas, and we do not reach

its merits.

Lastly, Pulido asserts collateral estoppel bars his murder prosecution. The

doctrine of collateral estoppel in a criminal case arises from the Fifth Amendment’s

bar against double jeopardy. Ex parte Watkins, 73 S.W.3d 264, 267 (Tex. Crim. App.

2002). Collateral estoppel means that “when an issue of ultimate fact has once been

determined by a valid and final judgment, that issue cannot again be litigated

between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443

(1970). In the criminal law context, the collateral estoppel doctrine operates to

prevent the State from contesting in any subsequent proceedings between the parties

any discrete fact the jury in the previous proceeding necessarily determined in the

criminal defendant’s favor. Ex parte Watkins, 73 S.W.3d at 268. The defendant bears

the burden to demonstrate that the issue the defendant seeks to foreclose was actually

decided in the first proceeding. Guajardo v. State, 109 S.W.3d 456, 460 (Tex. Crim.

App. 2003); Amador v. State, 221 S.W.3d 666, 675 (Tex. Crim App. 2007).

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To determine whether collateral estoppel applies to a subsequent prosecution, courts

use a two-step analysis: (1) determining exactly what facts were necessarily decided

in the first proceeding; and (2) whether those necessarily decided facts constitute

essential elements of the offense in the second trial. Ex parte Taylor, 101 S.W.3d

434, 440 (Tex. Crim. App. 2002).

Pulido has not shown that any issues in his injury-to-a-child prosecution were

decided in his favor. Pulido pleaded guilty to the offense of recklessly causing

serious bodily injury to a child, the trial court accepted his plea, and the trial court

placed Pulido on deferred adjudication community supervision. As explained above,

the Diaz exception controls and permits the prosecution of the murder offense under

the circumstances in this case. See Diaz, 223 U.S. at 448-49; see also York v. State,

342 S.W.3d 528, 551 (Tex. Crim. App. 2011) (“If jeopardy does not attach to a

particular issue in the first prosecution, then that issue cannot become the basis for

collateral estoppel in a subsequent prosecution.”).

Conclusion

We overrule Pulido’s sole issue on appeal, and we affirm the trial court’s order

denying his habeas application.

AFFIRMED.

KENT CHAMBERS
Justice

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Submitted on September 18, 2025
Opinion Delivered November 19, 2025
Publish

Before Johnson, Wright and Chambers, JJ.

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