Ex parte Weaver

• Decision Date: 19 July 1994
• Docket Number: No. 2-93-500-CR,2-93-500-CR
• Parties: Ex parte Joseph Robert WEAVER.
• Court: Texas Court of Appeals

Page 855

880 S.W.2d 855

Ex parte Joseph Robert WEAVER.

No. 2-93-500-CR.

Court of Appeals of Texas,

Fort Worth.

July 19, 1994.

Rehearing Denied Aug. 24, 1994.

Fred Marsh, Denton, for appellant.

Bruce Isaacks, Criminal Dist. Atty.; Kathleen A. Walsh, Asst. Dist. Atty., Denton, for appellee.

Before FARRIS, LATTIMORE and DAY, JJ.

OPINION

LATTIMORE, Justice.

Applicant Joseph Robert Weaver appeals from the trial court's denial of his application for writ of habeas corpus. In one point of error Weaver contends that the trial court erred in failing to grant his writ of habeas corpus because the prosecution is barred by the doctrine of collateral estoppel and double jeopardy.

We affirm.

On June 10, 1987, Weaver was found guilty of involuntary manslaughter and given ten years' probation. One of the conditions of the probation was that Weaver commit no offense during the probation period. On January 22, 1991, Weaver was charged by information with the December 10, 1990 offense of driving while intoxicated. That case was assigned to Denton County Court at Law Three. On May 14, 1991, the State filed an amended motion to revoke Weaver's probation based on the December 10, 1990 violation, as well as March 16, 1991 driving while intoxicated and driving while license suspended violations, failure to report to parole officer, failure to pay probation fees and court costs, and failure to attend substance abuse counseling sessions. On July 19, 1991, a probation revocation hearing was held in the 16th District Court of Denton County, and Weaver pled "not true" to all the allegations in the First Amended Motion to Revoke. Before any evidence was heard, the State stated that it was waiving and abandoning the December 10, 1990 DWI allegation. After hearing the evidence and argument of counsel, the 16th District Court stated its findings:

THE COURT: I find that the defendant here today is the same person who was placed on probation in cause number 20-312-A. I find that he violated that term or condition of his probation, wherein he was required to commit no offenses against the laws of this State or any other state or of the United States. In that on March 16, 1991, in Denton County, he did then and there drive and operate a motor vehicle in a public place while intoxicated, that violation occurring after June 13 1987 and during the term of his probation. I find that allegation to be true.

I do not find there to be any evidence to substantiate the December 10th, 1990 allegation, or the allegation of driving while license was suspended.

The Court continued by making findings regarding the "technical" violations. The State then made the following objection:

[PROSECUTOR]: Your Honor, I am sorry to interrupt at this time. We would object to the finding of no evidence on December 10th, 1990, prior to presenting any evidence, we abandoned and withdrew that allegation from this Court's consideration. And--

THE COURT: Well, the record will reflect that was, in fact, withdrawn. The Court is finding that there has been no evidence presented on that, in any event.

[PROSECUTOR]: Your Honor, maybe for my own clarification and not interrupt again, you are finding there is no evidence, you are not finding the allegation is not true?

THE COURT: Well, subject to being shown that it was withdrawn. I don't have a recollection. It may have occurred prior to today's hearing. I don't recollect that if it was done prior to today--to today's hearing, that was fine.

[PROSECUTOR]: I did that to the DWI, not DWLS.

THE COURT: For the record showing me some way or the other--

[PROSECUTOR]: May I ask if not, for the Court's convenience, that we'll get to the--

THE COURT: I will let you do that.

The 16th District Court kept Weaver on probation, but imposed a 160 day jail term as an additional condition of probation. The court's written "Order Continuing Defendant on Probation" contained the following finding regarding the December 10, 1990 charge:

As to the allegations contained in paragraph (1), the Court finds that prior to the presentment of evidence, the State withdrew from the Court's consideration and abandoned the allegation that the defendant violated a term of his probation in that on December 10, 1990, in Denton County, Texas, he did then and there drive and operate a motor vehicle in a public place in Denton County, Texas, while intoxicated.

Weaver then filed a writ of habeas corpus with County Court at Law Three, arguing that the finding of the 16th District Court collaterally estopped the State from proceeding with the prosecution of the December 10, 1990 DWI offense. Weaver also argues that the double jeopardy provisions of the Texas and United States Constitutions bars prosecution of the December 10, 1990 DWI offense.

The double jeopardy provision of the Fifth Amendment to the United States Constitution protects an accused against twice being placed in jeopardy of punishment...