Ex parte Serna

• Decision Date: 19 November 1997
• Docket Number: No. 2-96-247-CR,2-96-247-CR
• Citation: 957 S.W.2d 598
• Parties: Ex Parte Paul Rene SERNA.
• Court: Texas Court of Appeals

Page 598

957 S.W.2d 598

Ex Parte Paul Rene SERNA.

No. 2-96-247-CR.

Court of Appeals of Texas Fort Worth.

Nov. 19, 1997.

J.R. Molina, Fort Worth, for Appellant.

Tim Curry, Tarrant County Dist. Atty., Betty Marshall, Charles M. Mallin, Debra Ann Windsor, Jeff Cureton, Asst. Crim. Dist. Attys., Fort Worth, for State.

Before the court en banc.

OPINION ON REHEARING

DAY, Justice.

The State's motion for rehearing en banc is granted. We withdraw our May 8, 1997 opinions and judgment and substitute the following in their place.

INTRODUCTION

Appellant Paul Rene Serna appeals from the trial court's denial of habeas corpus relief in his driving while intoxicated (DWI) case. Appellant was arrested for DWI, but at the administrative hearing he requested, the administrative law judge rescinded the Department of Public Safety's (DPS's) suspension of Appellant's driver's license. See TEX. TRANSP. CODE ANN . §§ 524.012, 524.035 (Vernon 1997). The judge specifically found that the DPS had failed to prove its allegation that Appellant's breath-alcohol concentration was at least 0.10.

Appellant filed his application for writ of habeas corpus, and the trial court granted the writ. After a hearing, however, the trial court denied relief.

In his writ, Appellant contended that the administrative law judge's ruling precluded prosecution on the DWI allegation, based on double jeopardy grounds. He also argued that the State was collaterally estopped from again attempting to prove his breath-alcohol concentration.

Because we find that double jeopardy and collateral estoppel do not apply to this case, we affirm the trial court's denial of habeas relief.

DOUBLE JEOPARDY

In his first two points, Appellant alleges that a trial on his DWI charge after the State failed to prove that his breath-alcohol concentration was 0.10 or more would violate his federal and state double jeopardy protections. We have previously held that a prosecution for DWI after a driver's license suspension does not violate the double jeopardy provisions of the federal and state constitutions. See Ex parte Tharp, 912 S.W.2d 887, 894 (Tex.App.--Fort Worth 1995), aff'd, 935 S.W.2d 157 (Tex.Crim.App.1996). Accordingly,

we overrule Appellant's first and second points.

COLLATERAL ESTOPPEL

In his third point, Appellant presents us with a question of first impression for this court. He argues that collateral estoppel should bar the State's prosecution for DWI. We disagree because Appellant has not established his entitlement to habeas relief, because the legislature did not intend a license suspension hearing to have a preclusive effect on a subsequent criminal prosecution for DWI, and because the cases on which Appellant relies are distinguishable from his situation.

1. Standard of Review

At a habeas corpus proceeding, the writ applicant bears the burden of presenting evidence to support his allegation of collateral estoppel. See Dedrick v. State, 623 S.W.2d 332, 339 (Tex.Crim.App. [Panel Op.]1981); Ex parte Ayers, 921 S.W.2d 438, 440 (Tex.App.--Houston [1st Dist.] 1996, no pet.); see also Ex parte Kimes, 872 S.W.2d 700, 703 (Tex.Crim.App.1993) (burden is on writ applicant to prove facts that will entitle him to habeas relief). The trial court's ruling in a habeas corpus proceeding should not be overturned absent a clear abuse of discretion. See Ayers, 921 S.W.2d at 440; see also Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App. 1997) (appellate court should afford almost total deference to trial court's rulings on mixed questions of law and fact if resolution required evaluation of credibility and demeanor). The record in this case shows that Appellant did not carry his burden of establishing his entitlement to habeas relief; thus, the trial court did not abuse its discretion by refusing to grant the requested relief.

2. Legislative Intent

In Tharp, we reaffirmed well-settled Texas case law that a license suspension proceeding is civil, administrative, and remedial in nature. Tharp, 912 S.W.2d at 891. The legislature's intent in enacting the statute was not to convict or punish the criminal but rather to protect the public by removing dangerous drivers from the streets. See id. Thus, we do not believe the legislature intended the decision made at a license suspension hearing to bar the State from prosecuting a person for DWI. Cf. Ex parte Pipkin, 935 S.W.2d 213, 216-17 (Tex.App.--Amarillo 1996, pet. filed) ("[W]e are compelled to conclude that no one [in the legislature] ever expected the decision of the administrative judge in [a license suspension proceeding] to have binding affect upon the determination of appellant's guilt in a criminal prosecution."); see also State v. Aguilar, 947 S.W.2d 257, 261 n. 5 (Tex.Crim.App.1997) (indicating that collateral estoppel does not arise from license suspension proceedings for DWI offenses committed on or after September 1, 1995). ¹

3. Appellant's Reliance on Ashe and Tarver is Misplaced

To support his collateral estoppel theory, Appellant relies on the United States Supreme Court's decision in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) and the Texas Court of Criminal Appeals' decision in Ex parte Tarver, 725 S.W.2d 195 (Tex.Crim.App.1986).

In Ashe, the Supreme Court stated, " '[c]ollateral 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, 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475. But Ashe does not imply that a claim of collateral estoppel may be based on anything other than an acquittal in a prior criminal prosecution. 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." Id. at 446, 90 S.Ct. at 1195, 25 L.Ed.2d at 477; accord Dedrick, 623 S.W.2d at 336; Ex parte Lane, 806 S.W.2d 336, 338 (Tex.App.--Fort Worth 1991, no pet.); Ex parte Daniel, 781 S.W.2d 412, 414 (Tex.App.--Houston [1st Dist.] 1989, pet. ref'd).

Appellant's license suspension hearing was a civil, administrative hearing, not a criminal prosecution. See Pipkin, 935 S.W.2d at 216-17; Tharp, 912 S.W.2d at 891; Walton v. State, 831 S.W.2d 488, 490 (Tex.App.--Houston [14th Dist.] 1992, no pet.). Thus, he cannot rely on Ashe to support his collateral estoppel claim in this case.

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. Tarver, 725 S.W.2d at 199. "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." Id. (quoting United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 1560, 16 L.Ed.2d 642, 661 (1966) (emphasis in Tarver )).

Tarver involved a probation revocation hearing, which is administrative in that it deals with the trial court's supervision of probation. In that case, the State moved to revoke Tarver's probation based on an alleged assault, but the trial court denied the motion, finding the State's evidence of the assault "totally incredible." Tarver, 725 S.W.2d at 198. Thereafter, the State attempted to prosecute Tarver for the same assault. Tarver filed an application for writ of habeas corpus, alleging that the State was collaterally estopped from relitigating the assault issue. The Tarver court agreed. Several factors were important to the Tarver court's decision:

the proceeding to revoke probation required substantially all the same procedures as a criminal trial;

a district court judge presided over the revocation hearing and acted as finder of fact;

both the State and the accused were represented by counsel;

after a full hearing, at which the State put on three witnesses, the trial court found the State's evidence "totally incredible";

the State stipulated that it would use the same evidence at the trial for assault as it had at the probation revocation hearing; and

the trial court's judgment was appealable in the same manner as any other judgment in a criminal trial.

Id. at 198-99.

Notably, the Tarver court specifically limited its holding to the particular circumstances of that case. The court stated: "We emphasize the narrowness of this holding.... 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 the same fact." Id. at 200.

We question whether the Tarver court would have held that collateral estoppel applied but for (1) the trial court's finding at the probation revocation hearing that the State's evidence was "totally incredible" and (2) the State's stipulation at the habeas corpus hearing that it would put on identical "totally incredible" evidence at the criminal trial for assault. Id. at 198. These facts presented a compelling reason to find that collateral estoppel applied. We are not presented with any such compelling facts in this case. Indeed, we do not even know the basis for the administrative law judge's finding.

4. Tarver Applies to This Case

In our original opinion, the majority cited Ashe, Tarver, and Judge McCormick's dissent in Dedrick for the general proposition that collateral estoppel applies in criminal cases but that an appellate court should conduct a painstaking review of the initial action only where the initial action resulted in a general verdict of acquittal. See original opinion, at 610-12. ² Then the original opinion stated that we must apply a more deferential "civil" standard of review in this case--a...