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Ex Parte Tarver

Court of Criminal Appeals of Texas, En Banc
Dec 3, 1986
725 S.W.2d 195 (Tex. Crim. App. 1986)

Summary

holding State was barred by collateral estoppel from litigating fact issues in criminal prosecution found adversely to it in previous probation revocation proceeding

Summary of this case from Reynolds v. State

Opinion

No. 0960-85.

December 3, 1986.

Appeal from he County Criminal Court at Law No. 2, Harris County, Don L. Hendrix, J.

Michael Ramsey, George H. Tyson, Jr., Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Eleanor M. McCarthy, Asst. Dist. Atty., Robert Huttash, State's Atty., Houston, and Alfred Walker, First Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW


This is an appeal from a denial of a pretrial writ of habeas corpus alleging that trial on the merits will subject applicant to double jeopardy. As this Court has recently reaffirmed in Ex parte Rathmell, 717 S.W.2d 33 (Tex.Cr.App. 1986), appeal from the denial of a pretrial writ based on such a claim is proper. Ex parte Robinson, 641 S.W.2d 552 (Tex.Cr.App. 1982).

Applicant was found guilty of the offense of possession of cocaine on March 30, 1983, and was granted probation for a period of ten years in accordance with Art. 42.12, Sec. 3, V.A.C.C.P. Among the conditions of applicant's probation was that applicant "[c]ommit no offense against the laws of this or any other state or of the United States . . ."

On January 19, 1984, applicant was charged by information with assault. As a result, on January 25, 1984, the State filed a motion to revoke applicant's probation, based on the allegation that applicant had violated the terms of his probation by committing the same assault. On March 2, 1984, a probation revocation hearing was held in district court. After hearing the evidence offered by the State, the trial judge granted a defense motion to find the allegation not true, adding, "I find the evidence in this case to be totally incredible." The motion to revoke probation was denied.

Applicant then filed an application for writ of habeas corpus in the county criminal court at law where the assault charge was pending. He asked that the charge be dismissed because the ruling of the district court at the probation revocation hearing represented a finding that applicant was not guilty of the charged assault, and the State was therefore barred from prosecuting him for the same offense. On November 16, 1984, a hearing was held in the county court and the trial court denied the relief sought.

On appeal, the First Court of Appeals reversed the decision of the trial court, granted relief, and ordered the information and the prosecution dismissed. Ex parte Tarver, 695 S.W.2d 344 (Tex.App. — Houston [1st Dist.] 1985). We granted the State's petition in order to review the decision of the Court of Appeals.

The State argued that there was no double jeopardy in prosecuting applicant for assault because applicant had never been placed in jeopardy at the revocation hearing, because such hearings are "`administrative in nature,' according to Davenport v. State, 574 S.W.2d 73 (Tex.Cr.App. 1978)." Tarver, supra at 347. The Court of Appeals rejected this argument, quoting Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975), for the proposition that, "Jeopardy denotes risk," and concluding, "Appellant faced far greater risk in the probation revocation hearing than he now does in the county court assault prosecution. The maximum punishment he could have received in the probation revocation hearing was 10 years, compared to one year and a $2,000 fine in the county court case." Id.

The decision in Davenport was criticized by the Court of Appeals, and has been criticized by other writers, see Note, Davenport v. State, 10 Tex. Tech L.Rev. 1205 (1979); Note, Texas Development, Double Jeopardy, 7 Am.J.Crim.L. 277, 281 (1979).

The fact that applicant was twice placed in risk of punishment, however, does not mean that he had been subjected to double jeopardy. The double jeopardy proscription of the Fifth Amendment to the United States Constitution protects an accused against being twice placed in jeopardy of punishment for "the same offence." In the instant case, if the district court had revoked applicant's probation, the punishment he received would have been for the offense of which he was originally convicted, possession of cocaine. In the county criminal court at law, applicant faces the risk of being punished for the subsequent offense, assault. He is not, therefore, being twice placed in jeopardy for the same offense. The difference in the ranges of punishment only illustrates this point. This rationale was one basis for this Court's recent decision in Chambers v. State, 700 S.W.2d 597 (Tex.Cr.App. 1985):

"[W]e hold that the double jeopardy provisions of the Texas and the United States constitutions are not offended when evidence used in a successful or unsuccessful attempt to revoke 'regular' probation or deferred adjudication probation is later used to prosecute the defendant in a different case."

Id. at 599. Similarly, basic double jeopardy protections would not be violated by subjecting applicant to prosecution for assault.

In Chambers, the defendant had been granted deferred adjudication probation for the offense of unauthorized use of a motor vehicle. Subsequently, the State brought a "Motion to Impose Guilt," alleging that the defendant had committed the offense of aggravated robbery. The trial court granted the motion and assessed punishment, for the original offense, at ten years confinement. The defendant was then tried and convicted of the aggravated robbery. Collateral estoppel did not bar the subsequent prosecution because in the probation revocation the trial court had found the allegation true. Nor, as applicant concedes, would collateral estoppel prevent the State from using the same evidence in his case to attempt to have his probation revoked after a finding of not guilty on the assault charge. McDonald v. State, 608 S.W.2d 192 (Tex.Cr.App. 1980) (Opinion on State's Motion for Rehearing). In such a case the not guilty verdict would mean that the State had failed to prove the allegation beyond a reasonable doubt, but it could still attempt to prove the same allegation by a preponderance of the evidence, by moving to revoke probation. Our holding in the instant case applies only to the particular sequence of events now before us.

The Court of Appeals held, however, that the corollary doctrine of collateral estoppel bars the State from now prosecuting applicant for assault after having failed to prove "identical allegations" in the probation revocation hearing. We agree.

Collateral estoppel was not an issue in Chambers. We note that one need not be twice placed in jeopardy of criminal punishment in order for collateral estoppel to apply. See One Lot Emerald Cut Stones and One Ring v. United States, 409 U.S. 232, 233-34, 93 S.Ct. 489, 491, 34 L.Ed.2d 438 (1972) (collateral estoppel would bar a civil forfeiture proceeding if the elements of such forfeiture had been resolved against the government in an earlier criminal proceeding).

The motion to revoke probation, filed in the district court, alleged that applicant had violated the terms of his probation in that he 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."

The information filed in the county criminal court at law charged applicant with assault in the identical language. A full hearing was held in the district court on the motion to revoke probation. The State called three witnesses, including the alleged complainant of the assault. After the State rested, defense counsel immediately moved that the court "find the allegation not true. I have witnesses and am prepared to go forward, but I believe it is my obligation to urge this motion just as though we were in trial . . ." Defense counsel asserted that the State had offered no "clear and convincing proof" that a crime had been committed, and again moved the court to enter a finding of not true. After hearing argument from the State the trial court granted that defense motion, adding, "I find the evidence in this case to be totally incredible."

Subsequently, in the county court at the habeas hearing, applicant and counsel for the State entered into a stipulation as to what witnesses would appear and what their testimony would be in the prosecution for assault. This stipulation stated, inter alia, that the complainant would again testify and that "his testimony in the assault case . . . would be the same as that testimony given . . . in the hearing on the Motion to Revoke Probation . . ."

The Supreme Court of the United States has stated that the doctrine of collateral estoppel "means simply 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, 90 S.Ct. 1189, 25 L.Ed.2d 469, 475 (1970). The doctrine is not to be applied hypertechnically, but requires a reviewing court to examine the record to determine just what issue has been foreclosed between the parties. Id. "To state the distinction in more prosaic terms, the traditional bar of double jeopardy prohibits the prosecution of the crime itself, whereas collateral estoppel, in a more modest fashion, simply forbids the government from relitigating certain facts in order to establish the fact of the crime." Dedrick v. State, 623 S.W.2d 332, 336 (Tex.Cr.App. 1981) (Rehearing denied en banc), quoting United States v. Mock, 604 F.2d 341 (CA5 1979).

Applying this test to the instant case, it is clear that a fact issue, i.e. whether applicant assaulted the complainant, has been found adversely to the State. The trial court is the sole trier of fact at a probation revocation hearing. McDonald, supra at 199; Barnett v. State, 615 S.W.2d 220, 222 (Tex.Cr.App. 1981). As such, the district court found that the allegation the State sought to prove in the revocation hearing, that applicant had assaulted the complainant, is not true. The State is now attempting to relitigate that same issue. The doctrine of collateral estoppel bars such a relitigation.

The State argues that the finding of not true by the district court is not a finding of fact such as will bar subsequent relitigation of the same fact, because it was made in the course of a hearing on a motion to revoke probation, which has been held to be administrative rather than judicial in nature. Davenport, supra. The Court of Appeals held, however, and we agree, that the rationale of the Supreme Court in Breed v. Jones, supra, is adverse to the State's position. In Breed the State filed a petition to adjudge the 17-year-old defendant a delinquent, alleging that he had committed robbery while armed with a deadly weapon. After a hearing, the juvenile court sustained the petition. The State then sought to have the defendant certified and tried as an adult. The Supreme Court held that such a prosecution would violate the Double Jeopardy clause of the Fifth Amendment, made applicable to the states through the Fourteenth. The Supreme Court refused to accept the State's argument that jeopardy had not attached at the juvenile adjudication proceeding because such a hearing is civil in nature. The Court held that courts must look beyond such "label[s]-of-convenience" and determine the true nature of the proceeding.

We believe the same reasoning applies in the instant case. Davenport, supra, citing three opinions by courts of appeals, held that "res judicata does not apply to administrative decision-making." 574 S.W.2d at 76. The Supreme Court of the United States, however, has held otherwise:

"Occasionally courts have used language to the effect that res judicata principles do not apply to administrative proceedings, but such language is certainly too broad. When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose."
United States v. Utah Construction and Mining Company, 384 U.S. 394, 421-22, 86 S.Ct. 1545, 1559-60, 16 L.Ed.2d 642 (1966). To simply label a probation revocation hearing "administrative in nature," therefore, does not end the inquiry. A probation revocation is administrative in that it deals with the trial court's supervision of probation. However,

"Probation in this state is supervised by the court and not by an administrative agency. Art. 42.12, V.A.C.C.P. The proceeding to revoke probation, although not the same as a criminal trial, requires substantially all the same procedure."
Whisenant v. State, 557 S.W.2d 102, 104 (Tex.Cr.App. 1977). To the extent that a probation revocation hearing involves a trial court acting as finder of fact, after a full hearing on an issue at which both the State and an accused are represented by counsel, the court is certainly "acting in a judicial capacity." To that extent, therefore, we must determine whether the Ashe v. Swenson test was met. The questions to be asked are: Has a fact issue already been determined, adversely to the State, in a valid and final judgment between the same parties? Is the State now trying to relitigate that same fact issue? Dedrick, supra. In the instant case, we find that the fact the State now seeks to prove has already been resolved adversely to the State. The parties were the same as they would be in the county court prosecution. The allegation the State sought to prove was identical. The hearing was before a district court judge acting as finder of fact. The major difference between the two proceedings was the standard of proof, but it was the lower, "preponderance of the evidence," standard the State failed to meet in the revocation hearing. Having failed to meet that burden, the State is now attempting to relitigate the same resolved fact issue, under a higher burden of proof.

The State also relies on Settles v. State, 403 S.W.2d 417 (Tex.Cr.App. 1966), in which this Court held that the State's "unsuccessful use" of an allegation in a motion to revoke probation that the defendant had committed an offense would not bar subsequent prosecution for that offense. As the Court of Appeals pointed out, Settles was decided before Ashe v. Swenson and cites no authority for its holding. Tarver, supra, at 348-49. Furthermore, Settles relied solely on traditional double jeopardy theory and made no mention of collateral estoppel. It is impossible to tell from the opinion whether the trial court in the probation revocation hearing made any fact-finding such as would trigger the use of collateral estoppel at a subsequent prosecution. To the extent it conflicts with this opinion, Settles is overruled.

Furthermore, the decision of the district court was a final judgment in that: (1) If the court had revoked applicant's probation, that decision would have been appealable as is any other final judgment. Art. 42.12, Sec. 8(b), V.A.C.C.P. (2) If the court had instead continued applicant on probation, that decision would not have been subject to alteration. "The record in this case [citations omitted throughout] clearly shows that the trial court continued appellant on modified probation and did not revoke the probation after a violation of the conditions of probation was shown at the earlier hearing. The court having exercised its authority at that earlier hearing by modifying the terms of probation instead of revoking probation, it was clearly

without authority to change that disposition at a subsequent hearing at which no further violation of probation was shown." Furrh v. State, 582 S.W.2d 824, 827 (Tex.Cr.App. 1979) (Opinion on Appellant's Motion for Rehearing); Rogers v. State, 640 S.W.2d 248, 263 (Tex.Cr.App. 1982) (Opinion on State's Second Motion for Rehearing).

The State is not trying twice to prove applicant guilty, because "guilt" as such was not the issue in the probation revocation hearing. The State is attempting, however, to prove the fact that would lead to a finding of guilt, i.e., that applicant committed the alleged assault, after once failing to prove that fact in a full hearing. To allow such a second attempt would be to allow one of the risks the Double Jeopardy clauses protects against: "The Double Jeopardy Clause also precludes the prosecutor from 'enhanc[ing] the risk that an innocent defendant may be convicted,' by taking the question of guilt to a series of persons or groups empowered to make binding determinations." Swisher v. Brady, 438 U.S. 204, 216, 98 S.Ct. 2699, 2707, 57 L.Ed.2d 705 (1978) (citation omitted).

We hold, therefore, that the issue of whether applicant 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. The relief sought is granted.

We emphasize the narrowness of this holding. A mere overruling of a State's motion to revoke probation is not a fact-finding that will act to bar subsequent prosecution for the same alleged offense. A trial court in a motion to revoke probation hearing has wide discretion to modify, revoke, or continue the probation. Art. 42.12, Sec. 8(a); Flournoy v. State, 589 S.W.2d 705, 707 (Tex.Cr.App. 1979). A court may continue or modify the probation even though finding that the allegations in the motion to revoke probation are true. See, e.g., Furrh v. State, supra (defendant pleaded true to one allegation in the motion to revoke; trial court nevertheless continued the probation). A trial court's decision either to revoke or continue a probationer's probation may involve no fact-finding. See King v. State, 649 S.W.2d 42, 46 (Tex.Cr.App. 1983) (an order revoking probation is sufficient even though it does not recite findings of fact). It is only in the particular circumstances of this case, where the trial court does make a specific finding of fact that the allegation is "not true," that a fact has been established so as to bar relitigation of that same fact. Furthermore, an acquittal of the offense will not bar a subsequent revocation of probation based on the same allegation. See n. 2, supra.

The judgment of the Court of Appeals is affirmed.

ONION, P.J. and W.C. DAVIS, McCORMICK and WHITE, JJ., dissent.


Summaries of

Ex Parte Tarver

Court of Criminal Appeals of Texas, En Banc
Dec 3, 1986
725 S.W.2d 195 (Tex. Crim. App. 1986)

holding State was barred by collateral estoppel from litigating fact issues in criminal prosecution found adversely to it in previous probation revocation proceeding

Summary of this case from Reynolds v. State

holding that a finding in a revocation proceeding that defendant did not commit assault precluded a subsequent prosecution for crime of assault

Summary of this case from State v. Lopez

holding that trial court's decision at revocation hearing was a final judgment because it would have been appealable in the same manner as any other judgment in a criminal case

Summary of this case from Ex Parte Serna

In Tarver, this Court's analysis appeared to suggest that double jeopardy principles were implicated by these circumstances, given our reliance on the Supreme Court's decision in Ashe v. Swenson, which is a decision based on the intersection of double jeopardy and collateral estoppel principles.

Summary of this case from State v. Waters

discussing ways in which trial courts ruling at a revocation proceeding is a final judgment

Summary of this case from Ex parte Doan

In Ex parte Tarver, 725 S.W.2d 195, 198 (Tex.Crim.App. 1986), the probationer was charged with assault and the State brought a revocation hearing.

Summary of this case from State v. Brunet

In Tarver, the parties were the same, the ultimate fact issue in the probation revocation proceeding and the subsequent criminal prosecution was the same, the ultimate fact issue was decided adversely to the "State" in the probation revocation proceeding, and that fact issue was "properly before" the trial court in the probation revocation proceeding.

Summary of this case from State v. Brabson

In Tarver, supra, we held that a specific finding of fact in a probation revocation proceeding that an accused did not commit an alleged violation of the law operated to estop the State from prosecuting the accused for the identical violation in a subsequent trial. For its part, the State maintains Tarver is inapplicable by its terms, in that it would apply collateral estoppel only where the State has had a "full and fair opportunity" to litigate the issue in the earlier proceeding.

Summary of this case from Neaves v. State

In Tarver we held that where the trial court at a probation revocation hearing makes a specific finding of fact adverse to the State, the State is thereafter precluded by the doctrine of collateral estoppel from obtaining a criminal conviction for any offense requiring proof of the same factual issue earlier resolved against it. Ex parte Tarver, supra at 200.

Summary of this case from Ex Parte Byrd

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."

Summary of this case from State v. Waters

In Ex parte Tarver, 725 S.W.2d 195 (Tex. Crim. App. 1986), the Texas Court of Criminal Appeals affirmed this Court's opinion holding that the State could not re-litigate in a subsequent prosecution when a trial court found the probation revocation not true. The court of criminal appeals stated, "the issue of whether applicant 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."

Summary of this case from Ex parte Claudio

In Tarver, the court of criminal appeals explained that res judicata can arise from determinations made in a probation-revocation hearing.

Summary of this case from Ex parte Doan

noting that a trial court has considerable discretion to modify, revoke, or continue community supervision

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In Tarver, the Court held that a district attorney was collaterally estopped from prosecuting the appellant for the offense of assault.

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In Tarver, the court held that a district attorney was collaterally estopped from re-litigating in a criminal prosecution a fact issue that previously had been resolved adversely to the same district attorney in a probation revocation proceeding.

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In Tarver, however, the Court of Criminal Appeals held the mere fact that a proceeding is "administrative in nature" does not end the inquiry into whether collateral estoppel applies.

Summary of this case from Ex Parte Serna

In Tarver, and in holding that issue preclusion applied, the court emphasized the judge's fact finding that the evidence produced at the revocation hearing was not credible.

Summary of this case from State v. Smiley

In Tarver, the court noted this holding in Davenport, but also noted the Supreme Court decision in United States v. Utah Construction and Mining Company, 384 U.S. at 421-22, 86 S.Ct. at 1559-60, to the contrary, and expressly overruled that portion of Davenport.

Summary of this case from State v. Smiley

In Tarver, the court held that the state could not prosecute an assault case where the facts supporting the charge had been affirmatively found "not true" in a probation revocation hearing.

Summary of this case from C.L., Jr., Matter of

In Tarver, the court held the State was collaterally estopped from relitigating facts that had been determined in Tarver's favor at a previous probation revocation hearing.

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Case details for

Ex Parte Tarver

Case Details

Full title:Ex parte Monte Jay TARVER

Court:Court of Criminal Appeals of Texas, En Banc

Date published: Dec 3, 1986

Citations

725 S.W.2d 195 (Tex. Crim. App. 1986)

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