Cochran, J., delivered the opinion of the Court, joined by Meyers, Price, Womack and Holcomb, JJ. Meyers, J., filed a concurring opinion. Johnson, J., filed a concurring opinion. Hervey, J., filed a concurring opinion, joined by Keasler, J. and in Parts 3 & 4 by Keller, P.J.

In this case we must decide whether a defendant may obtain appellate review of his collateral estoppel claim, when the trial court rejected that claim, if he fails to introduce a record of the first proceeding in the second proceeding and to include that record on appeal. ⁽¹⁾ He cannot. Without the complete record, no reviewing court can determine exactly what specific facts the first factfinder actually found. 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. Therefore, we reverse the court of appeals, which held that appellant had "shown the predicate elements for the employment of collateral estoppel in the district court prosecution." ⁽²⁾

In 1994, appellant was charged with a felony offense of carrying an unlawful weapon. He pleaded guilty in a Nueces County district court and was placed on five years' community supervision. In February 1998, Corpus Christi police officers arrested appellant for possession of cocaine and marijuana. The county attorney filed a misdemeanor marijuana charge in county court; the district attorney filed a felony cocaine charge in district court, along with a motion to revoke probation in the carrying-an-unlawful-weapon case.

According to the officers' offense report, ⁽³⁾ Corpus Christi Police Officers Leal and May were on routine nighttime patrol when they saw appellant's car. Officer Leal noticed that the license-plate light on the car was not working, so he made a U-turn and turned on his emergency equipment to initiate a traffic stop of appellant's car. Officer May saw appellant throw two small items out of the passenger side window before appellant stopped his car. While Officer Leal approached appellant, Officer May returned to the spot where he had seen appellant discard the items. Several people were standing around the spot, looking at a clear plastic bag containing a white powdery substance. One person said that she had seen this bag thrown out of a car, sail over the bed of a parked truck, and land on the sidewalk. Officer May retrieved the bag and then found a freshly burnt marijuana cigarette in the bed of the parked truck. After Officer May returned and told Officer Leal about the items that he had recovered, the officers arrested appellant. Officer Leal searched appellant at the jail and found an envelope containing $2,360 in cash. The items appellant had thrown out of his car window tested positive for marijuana and cocaine.

Appellant filed motions to suppress the evidence in both the county court and the district court, alleging that the police illegally arrested him and searched his car. After hearing testimony, the county court judge granted the motion to suppress. Apparently, the county attorney then dismissed the marijuana charges. The appellant returned to the district court and orally claimed that collateral estoppel barred any further litigation of the search and seizure issue in the district court. After being granted a continuance to have the record of the suppression hearing in the county court transcribed, appellant apparently provided the district court judge and felony prosecutor ⁽⁴⁾ with that transcript. Appellant never offered that transcript into evidence and did not make it a part of the appellate record. During the district court hearing, the prosecutor stated:

Your Honor, I'm asking this Court not to suppress the evidence, and I understand, I think I understand the Court's reluctance to maybe make a different determination than a fellow judge, and after reading the transcript I will go on record [sic] your fellow judge, based on what she had before her, probably made a wise and informed decision, but I believe my fellow prosecutor in the County Court didn't pick up on a legal argument and I want to inform the Court that even if you assume that your fellow judge's factual determination was true, I'm not agreeing that it's true, but even if you assume that it's true, that this evidence should not have been suppressed ...

The prosecutor then argued that appellant had "abandoned" the drugs before he was detained by the police and thus appellant had no standing to complain about their recovery by police from the sidewalk and truck bed. The district court judge noted that appellant's written suppression motion was directed toward the search of appellant's car, but no drugs were recovered from his car. ⁽⁵⁾

The district court judge asked appellant's attorney: "What is the law in the State of Texas where a person abandons contraband? Is that a search or is it not a search?" Counsel responded: "I believe it's a search. Reasonable suspicion to even come in contact with my client, Your Honor, started the search. The case has been litigated. ... That's the case we're relying upon, Judge. It has been litigated once. To litigate it again would be collateral estoppel." The trial judge commented: "But that sounds to me as if the [county court] judge made the wrong [legal] decision," and he then denied appellant's motion to suppress and his oral plea of collateral estoppel. ⁽⁶⁾

Appellant appealed the collateral estoppel issue to the court of appeals. The State contended that, as a threshold matter, the appellate record was not sufficient for the court of appeals even to address the district court's ruling. It noted that appellant failed to introduce any documents from the county court case, including the court reporter's record of the hearing, any written motion to suppress, any order granting the motion to suppress, any docket sheet or any dismissal order, as evidence or exhibits in the district court. Nor were any of these materials included in the appellate record.

The court of appeals, however, stated that: "there is nothing in the record to indicate that the hearing was anything other than a 'full hearing' on the suppression issue." ⁽⁷⁾ It concluded that "the district court erred in denying Gujardo's special pleas of collateral estoppel." ⁽⁸⁾

The State filed a petition for discretionary review with this Court setting out ten different questions for review. We granted six of those questions, but, because we decide the case based on the State's first question for review, we dismiss the rest as unnecessary to the disposition of this case.

It is well-settled law that, in reviewing any collateral estoppel claim, both the trial and appellate courts must "examine the record of [the prior proceeding], taking into account the pleadings, evidence, charge, and other relevant matters," ⁽⁹⁾ to determine whether a rational factfinder could have grounded its decision on a fact other than the specific fact that the party now claims has been resolved in his favor. Collateral estoppel deals only with specific factual determinations, not legal claims or legal conclusions. ⁽¹⁰⁾

The burden is "on the defendant to demonstrate, by examination of the record of the first proceeding, that the [factual] issue he seeks to foreclose was actually decided in the first proceeding." ⁽¹¹⁾ Here, as in Dowling v. United States, ⁽¹²⁾ appellant has failed to present a record which could support his claim. The Supreme Court stated, in that case, that "[t]he only clue to the issues in the earlier case was a discussion between the prosecutor, Dowling's attorney, and the District Judge that took place during the hearing[,]" in which the defendant claimed that collateral estoppel barred the admission of evidence concerning a prior robbery for which he had been acquitted. ⁽¹³⁾ Without a record of the first trial, the Court explained, "[t]here are any number of possible explanations for the jury's acquittal . . . . As the record stands, there is nothing at all that persuasively indicates that the question of identity was at issue and was determined in Dowling's favor at that prior trial[.]" ⁽¹⁴⁾

In this case, the court of appeals stated that:

the relevant fact issue was the validity of the stop and search which resulted in the seizure of narcotics. It is undisputed that the marijuana at issue in the county court at law and the cocaine at issue in the district court were seized at the same time as a fruit of the same search. It stands to reason that the fact issues surrounding the lawfulness of the search in one case will be the same in the other. Accordingly, we conclude that the fact issue in each case was the same. ⁽¹⁵⁾

Although it might "stand to reason" that fact issues decided in one suppression hearing would be the same as those presented in a second one, any such conclusion is simply a "possibility" and not a certainty. ⁽¹⁶⁾ That type of speculation about the factual findings in a prior proceeding is precisely what the Supreme Court did not permit in Dowling. Under Ashe v. Swenson and its progeny, 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. Without that record, appellant cannot even reach first base.

Thus, neither we nor the court of appeals could fulfill Ashe v. Swenson's mandate that a reviewing court, in applying the doctrine of collateral estoppel, must examine the proceedings in the previous hearing. Because the trial court denied appellant's claim of collateral estoppel, and neither the court of appeals nor this Court has a transcript of the first suppression hearing, we hold that appellant failed to provide a sufficient appellate record to review the trial court's ruling. ⁽¹⁷⁾ Any further discussion concerning this case would be an advisory opinion. We therefore reverse the court of appeals and affirm the trial court's judgment in this case.

Cochran, J.

Delivered: July 2, 2003

Publish

1. We granted six questions for review, which are set out in the State's Brief on the merits:

1) Where no documents from the county court case and no reporter's record from the county court's suppression hearing were introduced at the hearing in this case and are therefore not part of the appellate record, has Appellant carried his burden of presenting a record that affirmatively shows his entitlement to relief on his special plea, or has his failure to develop a proper record before the trial court resulted in an inadequate record in the Court of Appeals to pass on the issues he presents for review?

2) Does the principle of collateral estoppel bar a district attorney from litigating a suppression issue in district court when the district attorney was not the party who litigated the issue in county court?

3) Is a pretrial ruling on reasonable suspicion to stop, or probable cause to arrest, a ruling regarding an ultimate fact, or merely, as other courts have held, a ruling on the admissibility of evidence which cannot serve as the basis of a collateral estoppel bar to relitigation of that issue in another court on another case?

4) Does jeopardy attach in a pretrial hearing on a motion to suppress and is a pretrial ruling on reasonable suspicion to stop, or probable cause to arrest, on a case that is subsequently dismissed, a final judgment, or merely, as other courts have held, a ruling on the admissibility of evidence which cannot serve as the basis of a collateral estoppel bar to relitigation of that issue in another court on another case?

5) Is there a due process basis, independent of the double jeopardy clause, for application of collateral estoppel, and if so, does it apply where the first proceeding did not end in a final judgment?

6) Is the Court of Appeals' decision- which is in direct conflict with published opinions from two other courts of appeals in cases with issues and facts nearly identical to those in this case but which were not mentioned in the decision in this case- correct?

2. Guajardo v. State, 24 S.W.3d 423, 426 (Tex. App. - Corpus Christi 2000).

3. This offense report is the only source of pertinent facts which appears in the appellate record. At appellant's plea hearing, the State formally offered that report into evidence as State's Exhibit 2, and appellant stipulated that the report reflected "what the evidence would be if we went to trial on the case."

4. At this time, the county attorney represented the State in the county court and the district attorney represented the State in the district court.

5. Appellant's written motion to suppress requested the trial court "to suppress all evidence seized as a result of the arrest of defendant and the search of defendant's vehicle, as well as all statements, either written or oral, made after such arrest. ... The search of his vehicle was illegal, since conducted without valid warrant, or probable cause, or reasonable suspicion, in violation of the Fourth and Fourteenth Amendments to the United States Constitution, Article I, § 9 of the Texas Constitution and Article 38.23 of the Texas Code of Criminal Procedure."

6. On appeal, the State argued, inter alia, that the trial court properly denied appellant's oral plea of collateral estoppel because he did not file a written, verified special plea, as required by Tex. Code Crim. Proc. arts. 27.05-27.06, until two months after his oral motion had been denied. The written motion was apparently not brought to the trial court's attention and was never ruled upon. The court of appeals did not address this argument, and we need not do so either.

7. Guajardo, 24 S.W.3d at 426.

8. Id.

9. Ashe v. Swenson, 397 U.S. 436, 444 (1970) (court must examine the entire record of prior proceedings to determine what issue or issues are foreclosed from relitigation); Ex parte Taylor, 101 S.W.3d 434, 441 (Tex. Crim. App. 2002) (quoting Ashe v. Swenson and stating that "[i]n each case, courts must review the entire trial record to determine- 'with realism and rationality'- precisely what fact or combination of facts the jury necessarily decided and which will then bar their relitigation in a second criminal trial"); Ex parte Watkins, 73 S.W.3d 264, 268-69 (Tex. Crim. App. 2002).

10. Fact issues would include, for example, a finding that the defendant did or did not have a license plate light, the police officers did or did not see the defendant's license plate, the defendant did or did not throw a baggie out of his car window. Legal issues or conclusions, such as the constitutional validity of a particular arrest or search, whether "a stop was illegal," or the application of the "abandonment" doctrine, are not themselves subject to collateral estoppel. Reviewing courts give great deference to factual findings, but they review legal conclusions and applications de novo. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). As this Court explained in Guzman:

If the issue involves the credibility of a witness, thereby making the evaluation of that witness' demeanor important, compelling reasons exist for allowing the trial court to apply the law to the facts. On the other hand if the issue is whether an officer had probable cause to seize a suspect, under the totality of the circumstances, the trial judge is not in an appreciably better position than the reviewing court to make that determination. In a recent decision, the United States Supreme Court held that, although great weight should be given to the inferences drawn by the trial judges and law enforcement officers, determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. The Court stated, "the legal rules for probable cause and reasonable suspicion acquire content only through application. Independent review is therefore necessary if appellate courts are to maintain control of, and to clarify the legal principles"

Id. at 87 (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996), other citations omitted). This same "fact vs. legal application" distinction applies in criminal collateral estoppel cases under Ashe v. Swenson, which speaks of "ultimate facts" rather than "ultimate legal conclusions."

11. Shiro v. Farley, 510 U.S. 222, 232 (1994) (quoting Dowling v. United State, 493 U.S. 342, 350 (1990); Clark v. Bear Stearns, 966 F.2d 1318, 1321 (9^th Cir. 1992) ("[t]he party asserting preclusion bears the burden of showing with clarity and certainty what was determined by the prior judgment"); United States v. Lasky, 600 F.2d 765, 769 (9^th Cir. 1979) (when record before district court is inadequate for it to determine whether it should apply collateral estoppel doctrine, appellate court will not consider issue on appeal; "[i]t is not enough that the party introduce the decision of the prior court; rather the party must introduce a sufficient record of the prior proceeding to enable the trial court to pinpoint the exact issues previously litigated"); see also Anderson v. State, 635 S.W.2d 722, 726 (Tex. Crim. App. 1982) ("when the record fails to contain the evidence offered in support of the plea of [double] jeopardy, this Court is in no position to review a contention asserting that a trial court erred in overruling the plea").

12. 493 U.S. 342 (1990).

13. Id. at 351.

14. Id. at 352; see also United States ex rel. Fulton v. Franzen, 659 F.2d 741, 744 (7^th Cir. 1981) (although counsel had requested record of prior proceeding, it was never made part of record in second proceeding, thus "without a record of the [prior hearing], the district court would be unable to determine what issues were actually decided at the [prior hearing] on what evidence"); Kauffman v. Moss, 420 F.2d 1270, 1274-75 (3d Cir. 1970) (because district court had not examined record from prior trial, it was error to rely upon judgment from that case for purposes of collateral estoppel).

15. Guajardo v. State, 24 S.W.3d at 426.

16. See Ladner v. State, 780 S.W.2d 247, 254 (Tex. Crim. App. 1989) (citing Ashe v. Swenson and stating that "when a fact is not necessarily determined in the former trial, the possibility that it may have been does not prevent re-examination of that issue"); State v. Nash 817 S.W.2d 837, 840 (Tex. App. - Amarillo 1991, pet. ref'd) ("the test [for collateral estoppel] is, whether the verdict was necessarily grounded upon an issue which the defendant seeks to foreclose from litigation, not whether there is a possibility that some ultimate fact has been determined adversely to the State") (emphasis in original); Ex parte Lane, 806 S.W.2d 336, 338 (Tex. App. - Fort Worth 1991, no pet.) ("[t]he question is not whether there is a possibility that some ultimate fact has already been determined adversely to the State, but whether after examining the entire record, the verdict in the first trial was necessarily grounded upon an issue the defendant seeks to foreclose from litigation"); see, e.g., De La Rosa v. Lynaugh, 817 F.2d 259, 263 (5^th Cir. 1987) ("[w]hen a 'fact is not necessarily determined in a former trial, the possibility that it may have been does not prevent reexamination of the issue'") (quoting Adams v. United States, 287 F.2d 701, 705 (5^th Cir. 1961) (unless record of prior proceeding affirmatively demonstrates that an issue involved in the second trial was definitely determined in the former trial, the possibility that it may have been does not prevent relitigation of that issue)).

17. The concurring opinion states that it is unclear whether we are holding that appellant failed to produce a sufficient record in the district court or in the appellate courts. We do not know if appellant produced a sufficient record of the testimony taken in the county court suppression hearing for the district court judge precisely because he did not provide a sufficient appellate record. He failed to include, in the appellate record, whatever it was that he presented in the district court. It is, however, the appealing party's burden to ensure that the record on appeal is sufficient to resolve the issue he presents. See Rowell v. State, 66 S.W.3d 279, 282 (Tex. Crim. App. 2001) (under Tex R. App. P. 34.6, "[i]t is no longer necessary, or sufficient, for a party to argue that the appeal should be decided by hypotheses about missing portions of the record"; each party must "determine what is necessary for a record to be so complete as to enable the appellate court to decide the point of error (including its preservation and its effect)").