Ex parte Bolivar

• Decision Date: 01 November 2012
• Docket Number: No. 13–11–00397–CR.,13–11–00397–CR.
• Citation: 386 S.W.3d 338
• Parties: Ex parte Randall BOLIVAR.
• Court: Texas Court of Appeals

386 S.W.3d 338

Ex parte Randall BOLIVAR.

No. 13–11–00397–CR.

Court of Appeals of Texas, Corpus Christi–Edinburg.

Nov. 1, 2012.

Luis P. Garcia, Lisa Gail Greenberg, Corpus Christi, for Appellant.

Lawrence John Rabb, Appellate Atty., Alejandro R. Perez, Armando R. Villalobos, Dist. Atty., Brownsville, for Appellee.

Before Justices RODRIGUEZ, BENAVIDES, and PERKES.

OPINION

Opinion by Justice PERKES.

Appellant, Randall Bolivar, challenges the denial of his pretrial application for writ of habeas corpus. SeeTex.Code Crim. Proc. Ann. art. 11.08 (West 2005). By a single issue, appellant argues that the trial court (hereinafter “the Cameron County district court”) should have granted his habeas-corpus application because collateral estoppel bars the State from prosecuting him for the murder of Aaron Castillo after the 105th District Court of Kleberg County, Texas (hereinafter “the Kleberg County district court”) found the same murder allegation “not true” in a community-supervision revocation proceeding. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In February 2007, the Kleberg County district court placed appellant on deferred-adjudication community supervision for a period of five years, after appellant pleaded guilty to the offense of possession of marihuana, a second-degree felony. SeeTex. Health & Safety Code Ann. § 481.121 (West 2003). In May 2009, while appellant was still on community supervision, the State indicted appellant in Cameron County for the murder of Aaron Castillo (the present case). Specifically, the indictment alleged that appellant “on or about the 2nd day of February, 2009 ... did then and there intentionally or knowingly cause the death of an individual, namely, AARON CASTILLO, by shooting AARON CASTILLO with a firearm” in Cameron County, Texas.

In March 2011, the Kleberg County District Attorney filed an amended motion to revoke community supervision and to adjudicate guilt, alleging seventeen separate violations of the terms and conditions of appellant's community supervision. Count 1 alleged that appellant “committed the offense of Murder on or about February 2, 2009 in Cameron County, Texas in violation of condition A of his community supervision.” The murder allegation did not name the victim. Count 2 alleged that appellant “committed the offense of Aggravated Assault with a Deadly Weapon on or about February 2, 2009 against Aaron Castillo in Cameron County, Texas in violation of condition A of his community supervision.” ¹

A. The Kleberg County District Court's Revocation Hearing

In April 2011, the Kleberg County district court held a lengthy hearing on the State's revocation motion. During the hearing, the State presented testimony from multiple witnesses, but only one of them testified about the murder allegation contained in Count 1 of the revocation motion. Detective Chris Ortiz of the Brownsville Police Department testified that he investigated the murder of Aaron Castillo and that based on his investigation, appellant was arrested as the murder suspect.

Detective Ortiz testified that after his arrest, appellant initiated contact with the police in order to provide a statement. After waiving his rights, appellant gave a statement which was videotaped. Portions of appellant's video statement were played during the revocation hearing, but not transcribed into the reporter's record.²The Kleberg County district court announced on the record that it watched appellant's video statement in its entirety during a recess.

Detective Ortiz further testified regarding appellant's statement. Detective Ortiz testified that appellant told him that he was chasing a car that Aaron Castillo was driving because Aaron's passenger, Augustine Castillo, owed appellant money for drugs that appellant had “fronted” Augustine. Appellant told Detective Ortiz that he was collecting the money for a man named “Checo,” and that appellant was chasing Aaron and Augustine through a neighborhood to keep an eye on them until Checo arrived. Appellant told Detective Ortiz that he did not have a weapon, but that he saw Aaron get shot. Appellant said that neither he nor another man, named Rolando, shot Aaron. Appellant said Checo had a gun when he arrived at the scene, but appellant declined to confirm for police whether Checo shot Aaron. Appellant said he was scared to say whether Checo shot Aaron because Checo was a dangerous guy. The only information that appellant provided about Checo was that he was “[a] Mexican guy from Matamoros.” Detective Ortiz was not able to locate Checo.

Detective Ortiz also testified that after Aaron Castillo was shot, appellant was “on the run” for four days before he was finally arrested. Detective Ortiz was present when appellant was arrested. Detective Ortiz testified that appellant was hiding in a truck travelling south on U.S. Highway 77. Another man was driving the truck and there was a female passenger. After police stopped the truck, appellant tried from the back seat to keep the female passenger from exiting the truck. After she successfully escaped, appellant escaped on the driver's side of the truck, jumped over the highway median, and ran across the northbound lanes of travel, causing a “big collision” just ten to fifteen feet from Detective Ortiz. After crossing the northbound lanes of traffic, appellant then re-entered the highway traffic and ran southbound in the middle northbound lane of traffic. He was eventually apprehended and arrested.

B. The Kleberg County District Court's Decision

After the State and appellant rested, but before the Kleberg County district court announced whether it would find the alleged community-supervision violations “true” or “not true,” appellant's revocation counsel asked that the State be required to elect between Counts 1 and 2 in the revocation motion because the aggravated assault with a deadly weapon alleged in Count 2 was a lesser-included offense of the murder alleged in Count 1. Counsel argued double jeopardy and explained that his concern was that he did not want the Kleberg County district court to find both Counts 1 and 2 to be true. The State argued an election was not required.

The Kleberg County district court stated that it reviewed this issue with respect to whether the state had proved a lesser-included offense and, based on the opinion of Greer v. State, 783 S.W.2d 222 (Tex.App.-Dallas 1989, no pet.), it did not believe that it could find both Count 1 and Count 2 to be “true” because the victim for each count was the same decedent, Aaron Castillo. The court explained that it believed this addressed appellant's counsel's concern in that it could either find the murder allegation to be true, or find the lesser allegation to be true, but that it could not find both allegations to be true.

In his closing argument at the “true or not true” phase of the revocation hearing, appellant's revocation counsel argued that the State had not proven the murder alleged in Count 1, and added that appellant “wants his day in court in Cameron County. He wants to go to trial in Cameron County. And I think that this action by the ... DA's office is a way to circumvent that and get it before this Court.”

The Kleberg County district court thereafter announced that it “is going to find at this time” Count 1 “to be not true” and “Count 2 to be true.” The Kleberg County district court followed by announcing in similar fashion with regard to the other counts at issue at the revocation hearing. A docket entry dated the same day provides that the district court found Count 1 to be “not true” and Count 2 to be “true.”

Neither side presented punishment evidence. After hearing argument on the punishment issue, the Kleberg County district court assessed punishment at fifteen years of confinement in the Texas Department of Criminal Justice, Institutional Division. In announcing the sentence, the district court added, “the Court is also going to allow this sentence to run concurrent with any sentence that may be imposed related to any offenses that are alleged within this motion to revoke, whether or not they were found true or not true by this Court.”

The Kleberg County district court's judgment states that appellant violated the terms of his community supervision as alleged in Counts 2, 4, 5, 6, 8, 10, and 12–15 of the State's Second Amended Motion to Adjudicate Guilt. The judgment, however, does not make reference to any of the other Counts, including Count 1, the murder allegation.³

C. The Habeas–Corpus Application in the Cameron County District Court

In May 2011, appellant filed an application for writ of habeas corpus in the Cameron County district court arguing that the State was collaterally estopped from prosecuting him in Cameron County for Aaron Castillo's murder because the Kleberg County district court had found at the revocation hearing that it was “not true” that appellant committed the murder. After issuing the writ of habeas corpus, the Cameron County district court held a non-evidentiary hearing on appellant's habeas-corpus application. The Cameron County district court denied the requested relief. This interlocutory appeal ensued.

II. JURISDICTION

The doctrine of collateral estoppel is embodied within the Double Jeopardy Clause of the Fifth Amendment to the federal constitution, which is applicable to the states through the Fourteenth Amendment. Murphy v. State, 239 S.W.3d 791, 794 (Tex.Crim.App.2007) (citing Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); U.S. Const. amends. V, XIV). A ruling on a pretrial application for writ of habeas corpus may be challenged by interlocutory appeal when, as here, the trial court first issues the writ and then rules upon a question of whether a trial on the merits will violate double-jeopardy principles. See Ex parte Tarver, 725 S.W.2d 195, 196 (Tex.Crim.App.1986) (en banc); Ex parte Brown, 925 S.W.2d 111, 112 (Tex.App.-Amarillo 1996) (citing Ex parte Moorehouse, ...