Opinion
NO. 02-16-00274-CR
07-06-2017
THE STATE OF TEXAS STATE v. AMANDA LOUISE WATERS APPELLEE
FROM COUNTY COURT AT LAW NO. 2 OF WICHITA COUNTY
TRIAL COURT NO. 68,878-F MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. INTRODUCTION
The State filed an information charging Appellee Amanda Louise Waters with committing, on October 31, 2015, the offense of driving while intoxicated (DWI). Waters filed "Defendant's Pretrial Application for Writ of Habeas Corpus Seeking Relief By Collateral Estoppel and Double Jeopardy Based on Previous Probation Revocation Hearing." Waters's pretrial application for a writ of habeas corpus asserted that because the State had previously sought revocation of Waters's community supervision based on her alleged commission of a new offense—the October 31, 2015 DWI the State was now attempting to prosecute her for—and because the trial court made a finding that the community-supervision-violation allegation that Waters had committed a DWI on October 31, 2015 was "not true," the State's prosecution of her for this offense was collaterally estopped. The trial court granted Waters's pretrial application for writ of habeas corpus, ruled that collateral estoppel applied to bar the State from prosecuting Waters for the Wichita County DWI occurring on October 31, 2015, and dismissed the case.
The State perfected this appeal. In a single issue, the State asserts that its prosecution of Waters for the October 31, 2015 DWI is not barred by collateral estoppel because Ex parte Tarver, 725 S.W.2d 195 (Tex. Crim. App. 1986) (op. on PDR), is no longer good law. Because Tarver remains good law and is binding on this court, we will affirm.
The State asserts: "This Court is not bound to follow Ex parte Tarver because it is no longer good law." [Internal footnote with citation omitted.]
II. BACKGROUND
To the extent the State has attached items to its brief that are not included in the appellate record before us, we cannot consider them. See, e.g., Rasberry v. State, 535 S.W.2d 871, 873 (Tex. Crim. App. 1976) (explaining court could not consider documents attached to brief but not included in appellate record).
In the order granting Waters's application for writ of habeas corpus, the trial court set forth the following findings of fact and conclusions of law, which are not challenged on appeal:
1. On December 23, 2015, the Wichita County District Attorney's Office, hereinafter DAO, filed a motion to revoke community supervision in cause number 62,988-F, styled The State of Texas v. Amanda Louise Waters, which contained an allegation that Defendant had violated term 1 of her community supervision by committing a new offense.
2. Specifically, the DAO alleged that on or about October 31, 2015, in Wichita County, Texas, Waters operated a motor vehicle in a public place while intoxicated.
3. On February 18, 2016, the Court called cause number 62,998-F for a hearing on the DAO's motion to revoke Defendant's community supervision.
4. The DAO called only one witness, community supervision officer Garon Jetton, to testify at the hearing.
5. Officer Jetton had no personal knowledge of the DWI alleged to have been committed by Defendant in the DAO's motion to revoke community supervision.
6. Jetton was only able to testify that Waters had been arrested for DWI.
7. The Court has previously found that the DAO's allegation that Waters had committed a DWI in Wichita County, Texas, on October 31, 2015, the alleged violation of Term One, to be "not true"
based on the State's failure to prove its case by a preponderance of the evidence at the hearing on February 18, 2016.
III. TARVER REMAINS GOOD LAW; COLLATERAL ESTOPPEL BARS
THE STATE FROM PROSECUTING WATERS FOR THE OCTOBER 31, 2015 DWI
Tarver holds that when an issue of ultimate fact has been found adversely to the State in a valid and final judgment between the same parties, then the doctrine of collateral estoppel bars relitigation of that issue. Id. at 198, 200. In Tarver, a motion to revoke probation alleged commission of a new offense as a probation violation, asserting that Tarver did "unlawfully, intentionally[,] and knowingly cause bodily injury to Anthony D. Appolito, hereafter styled the Complainant, by striking the Complainant with his fist and kicking the Complainant with his feet." Id. at 198. At the probation revocation hearing, the district court found this alleged probation violation to be "not true." Id. The State subsequently filed an information in the county criminal court at law charging Tarver with assault using "the identical language" alleged in the motion to revoke. Id. After determining that the probation revocation decision of the district court was a final judgment, the court of criminal appeals held, "[T]he issue of whether [Tarver] committed the particular assault alleged in the information has been found adversely to the State, and the doctrine of collateral estoppel bars relitigating that issue in the county criminal court at law prosecution." Id. at 199, 200.
Relying on the dissenting opinion in Ex parte Doan, 369 S.W.3d 205, 215 (Tex. Crim. App. 2012) (Keller, P.J., dissenting), the State contends that the Texas Court of Criminal Appeals has implicitly overruled Tarver. The majority opinion in Doan, responding to the dissenting opinion, expressly stated in a footnote that it was not overruling Tarver: "The dissent states that we are 'overrul[ing], sub silentio, the holding in Ex parte Tarver . . . . We are not overruling Tarver." Id. at 212 n.33. The State has not cited, and we have not located, any case from the Texas Court of Criminal Appeals or the United States Supreme Court overruling Tarver. Tarver therefore remains good law, and we are bound to apply it to the present facts. See Tex. Const. art. V, § 5(a) (providing that Texas Court of Criminal Appeals is final authority for interpreting criminal law in Texas).
The State asserts that two Fifth Circuit cases have held that the "United States Constitution's federal collateral estoppel [does] not preclude a trial on the new offense" following a finding at a revocation hearing that the new offense was not true. We have reviewed the cases cited by the State, and they do not criticize or explicitly overrule Tarver. And the holdings of the Fifth Circuit, in any event, are not binding on the Texas Court of Criminal Appeals or this court. See Stewart v. State, 686 S.W.2d 118, 121 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 866 (1985); see, e.g., Lopez v. State, 860 S.W.2d 938, 943 (Tex. App.—San Antonio 1993, no pet.).
Here, the charged allegation that the State now seeks to prove—that Waters committed DWI on or about October 31, 2015, in Wichita County—has already been resolved adversely to the State in a final judgment from a probation revocation hearing. That hearing was before a county court at law judge acting as the finder of fact, and the trial court found the allegation to be "not true." Because the State is now attempting to relitigate with the same parties the same fact issue that was already resolved adversely to the State—whether Waters committed DWI on or about October 31, 2015, in Wichita County—the doctrine of collateral estoppel applies to bar such a relitigation. See, e.g., Tarver, 725 S.W.2d at 198, 200.
We overrule the State's sole issue.
The dissent draws a distinction between a trial court's "not true" finding on a ground alleged as a violation of a defendant's probation that is made after the State presents evidence and a trial court's "not true" finding made after the State fails to present any evidence or presents insufficient evidence, claiming the holding in Tarver applies to the former but not to the latter. This distinction does not exist. By making a "not true" finding—a finding that the State failed to meet its burden to prove the alleged probation revocation ground by a preponderance of the evidence—whether the State presents evidence or presents insufficient evidence has no impact on the preclusive, collateral-estoppel effect of the "not true" finding under Tarver. See, e.g., Jaime v. State, 81 S.W.3d 920, 927 (Tex. App.—El Paso 2002, pet. ref'd) (holding that Tarver precluded subsequent prosecution for offense trial court found "not true" at probation revocation when State failed to introduce any evidence of offense).
IV. CONCLUSION
Having overruled the State's sole issue, we affirm the trial court's "Order Granting Defendant's Application For Writ Of Habeas Corpus" in its entirety.
/s/ Sue Walker
SUE WALKER
JUSTICE PANEL: WALKER, GABRIEL, and SUDDERTH, JJ. SUDDERTH, J., filed a dissenting opinion. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: July 6, 2017