Ex parte Daniel

• Decision Date: 22 November 1989
• Docket Number: No. 01-89-00194-CR,01-89-00194-CR
• Citation: 781 S.W.2d 412
• Parties: Ex parte Darryl Wayne DANIEL, Appellant. (1st Dist.)
• Court: Texas Court of Appeals

Page 412

781 S.W.2d 412

Ex parte Darryl Wayne DANIEL, Appellant.

No. 01-89-00194-CR.

Court of Appeals of Texas Houston (1st Dist.).

Nov. 22, 1989.

Henry L. Burkholder, III, Houston, for appellant.

John B. Holmes, Dist. Atty., Winston E. Cochran, Karen Morris, Asst. Dist. Attys., Houston, for appellee.

Before SAM BASS, DUGGAN and O'CONNOR, JJ.

OPINION

SAM BASS, Justice.

This is an appeal from a pretrial writ of habeas corpus alleging that a trial will subject appellant to double jeopardy.

We affirm.

On October 20, 1987, appellant was indicted for being a felon in possession of a firearm, in violation of Tex.Penal Code Ann. § 46.05 (Vernon Supp.1989). Appellant was on parole. On August 22, 1988, a hearing examiner from the Board of Pardons and Paroles (the "Board") conducted a hearing to determine whether appellant's parole should be revoked. Appellant was present and was represented by counsel. The State was not present. The issue addressed was whether appellant had violated Board rules by possessing a firearm, and by attempting to commit capital murder. The hearing examiner concluded that there was insufficient evidence to find appellant had violated Board rules and entered the following fact finding:

In regards [sic] to RULES # 5 AND # 7, I find the RELEASEE [appellant] did not possess a firearm and commit Attempted Capital Murder of a Police Officer on or about 9/30/87 at 5901 Selonsky, Houston, Texas, by shooting at Police Officer STEWART due to insufficient evidence (Division of Parole Supervision Witness, S.L. STEWART failed to appear as per instructions on executed subpoena, EXHIBIT D), and Parole Officer WINKLER had no other supporting evidence.

In response to the State's attempt to proceed to trial on the firearm charge, appellant filed a writ of habeas corpus alleging that prosecution of the firearm charge would violate his constitutional protection against double jeopardy. The trial court denied appellant the requested relief.

In his sole point of error, appellant asserts that because the issue of his guilt for the offense charged had already been resolved against the State at the hearing on the revocation of his parole, he is now being placed in double jeopardy.

The proscription against double jeopardy contained in the Fifth Amendment to the United States Constitution protects an accused against being placed in jeopardy twice for the same offense. If appellant's parole had been revoked, the punishment he received would have been for the offense for which he was originally charged. In the district court, appellant faces the risk of being punished for the subsequent firearm charge. There is a grave distinction between revocation of parole and revocation of probation. In a revocation of parole, the parolee will serve only the sentence for which he was imprisoned before being granted parole. In a revocation of probation, the probationer will be imprisoned for the offense for which he was originally charged, but for which he has not, as yet, been incarcerated.

The constitutional protection against double jeopardy, however, necessarily encompasses the doctrine of collateral estoppel. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Collateral estoppel as an element of double jeopardy was explained in Ashe.

"Collateral estoppel" ... means simply that when a issue [sic] 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. at 443, 90 S.Ct. at 1194. It should be noted that Ashe does not imply that a claim of collateral estoppel may be based on anything other than an acquittal in a criminal case. The court stated, "The question ... is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again." Ashe v. Swenson, 397 U.S. at 446, 90 S.Ct. at 1195.

Appellant relies on Ex parte Tarver, 725 S.W.2d 195 (Tex.Crim.App.1986), to support his argument. 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. Tarver, 725 S.W.2d at 200. Appellant contends that the theory of Tarver applies equally to findings made by a hearing examiner at a parole revocation hearing.

Tarver's probation revocation hearing was conducted in state district court by a judge. Both the defendant and the State were represented by counsel. The Tarver court took care to specifically limit its holding to those particular circumstances.

We emphasize the...