Ex parte Tarver

Decision Date03 December 1986
Docket NumberNo. 0960-85,0960-85
Citation725 S.W.2d 195
PartiesEx parte Monte Jay TARVER.
CourtTexas Court of Criminal Appeals

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

TOM G. DAVIS, Judge.

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. 1 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 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. 2 Similarly, basic double jeopardy protections would not be violated by subjecting applicant to prosecution for assault.

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. 3

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...

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