Kappmeyer v. State

• Decision Date: 30 October 2003
• Docket Number: No. 01-03-00324-CR.,01-03-00324-CR.
• Citation: 127 S.W.3d 178
• Parties: Darrell Keith KAPPMEYER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

127 S.W.3d 178

Darrell Keith KAPPMEYER, Appellant, v. The STATE of Texas, Appellee.

No. 01-03-00324-CR.

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

October 30, 2003.

Brian W. Wice, Joel M. Androphy, Berg & Androphy, Houston, TX, for Appellant.

Charles A. Rosenthal, Jr., District Attorney—Harris County, Eric Kugler, Assistant District Attorney of Harris County, Houston, TX, for Appellee.

Panel consists of Justices ADELE HEDGES, NUCHIA, and HIGLEY.

OPINION

ADELE HEDGES, Justice.

This is an accelerated appeal from the denial of habeas corpus relief. Appellant was charged with the felony offense of sexual assault of a child. He filed a pretrial application for writ of habeas corpus, asserting that the State was precluded by double jeopardy and collateral estoppel from prosecuting him for the offense charged, based upon the denial of a petition to revoke his probation filed in federal court. Following an evidentiary hearing, the trial court denied relief. We affirm.

Background

The United States charged appellant with theft or embezzlement from an employee benefit plan. On September 16, 1996, appellant plead guilty and was sentenced to five years probation. One of the conditions of appellant's probation prohibited him from committing "another federal, state, or local crime during the term of his supervision." On October 24, 2002, the State of Texas indicted appellant for sexual assault of a child. The indictment alleged that the sexual assault occurred on or about August 15, 1999.

On February 4, 2003, the Federal Probation Department filed a petition to revoke appellant's federal probation, alleging that appellant had violated the above condition of his probation. On March 5, 2003, at the revocation proceeding, the federal court dismissed the petition to revoke appellant's probation. The State of Texas did not appear at the proceeding. Appellant contends that, because the federal court dismissed the petition to revoke his probation, the State, due to its acquiescence and/or encouragement of the federal court proceedings, is barred by collateral estoppel from prosecuting him for sexual assault of a child.

Standard of Review

The burden is upon the individual alleging that collateral estoppel bars prosecution to establish the elements of collateral estoppel. State v. Aguilar, 947 S.W.2d 257, 260 (Tex.Crim.App.1997). Generally, a trial court's ruling in a habeas corpus proceeding should not be disturbed unless the court has clearly abused its discretion. Ex parte Martin, 6 S.W.3d 524, 526 (Tex.Crim.App.1999); Ex parte Shutter, 868 S.W.2d 383, 387 (Tex.App.-Houston [1st Dist.] 1993, writ. ref'd). We give the same deference to the trial court's rulings on applications of law to fact questions when the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Martin, 6 S.W.3d at 526. If the resolution of those ultimate questions turns on an application of legal standards, so that the trial court is not in an appreciably better position than are we to make the determination, we are to conduct a de novo review of the trial court's determination. Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997).

The parties disagree as to whether we are to conduct a deferential or de novo review of the trial court's ruling. Relying on Guzman, appellant contends that because the ultimate resolution of this matter does not turn upon an evaluation of credibility or demeanor, but on an application of legal standards, we must conduct a de novo review. Id. In contrast, the State urges that we conduct a deferential review.

In support of its contention, the State relies on Manzi v. State, 88 S.W.3d 240, 241, 243-44 (Tex.Crim.App.2002), in which the Court of Criminal Appeals stated that all determinations of historical fact made by a trial court are entitled to deference, not just those that require the trial court to evaluate credibility and demeanor. The State contends that the trial court's determination of whether or not a hearing sufficient to invoke collateral estoppel took place in federal court is a question of historical fact; therefore, during the writ hearing, the state court considered documentary evidence which, according to Manzi, requires that we conduct a deferential review of that court's determination. Manzi, 88 S.W.3d at 243-44.

We agree that the trial court's conclusion was based upon documentary evidence submitted by defense counsel at the writ hearing. If this Court were reviewing the trial court's determination as to whether some proceeding took place in federal court regarding the possible revocation of appellant's federal probation, we would be reviewing a determination of historical fact, and therefore conduct a deferential review of that determination. Id. at 241, 243. The parties, however, do not dispute the historical fact that some proceeding took place in federal court concerning revocation of appellant's federal probation; but instead, they dispute the legal effect of that proceeding. Because we conclude that the issue before this Court turns on the application of legal standards, we conduct a de novo review of the trial court's determination. Guzman, 955 S.W.2d at 87.

Collateral Estoppel

In appellant's sole point of error, he contends that the trial court erred in holding that the doctrine of collateral estoppel does not bar the State from prosecuting him for sexual assault of a child.

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 (1970). Appellant must prove the elements of collateral estoppel. Guajardo v. State, 109 S.W.3d 456, 460 (Tex.Crim.App. 2003). First, he must establish there was a "full hearing" at which both parties were given the opportunity to thoroughly and fairly litigate the relevant factual issue. State v. Aguilar, 947 S.W.2d 257, 259-60 (Tex.Crim.App.1997). He must then demonstrate that the fact issue was the same in both proceedings. Id. Finally, he must establish that the finder of fact acted in a judicial capacity. Id. Because we conclude that appellant failed to establish that there was a full hearing at which both parties were given the opportunity to thoroughly and fairly litigate the relevant factual issue, we address only that element of appellant's claim.

Did Both Parties Litigate the Issue

As a general rule, the doctrine of dual sovereignty defeats the elements of collateral estoppel which requires that the State be a litigant in both proceedings. The doctrine of dual sovereignty allows the United States to "prosecute a defendant after an unsuccessful state prosecution based on the same conduct even if the elements of the state and federal offenses are identical." United States v. Angleton, 314 F.3d 767, 771 (5th Cir.2002), cert. denied, 538 U.S. 946, 123 S.Ct. 1649, 155 L.Ed.2d 488 (2003). Likewise, the doctrine permits the states to prosecute a defendant following a federal prosecution. Reynolds v. State, 548 S.W.2d 733, 735-36 (Tex.Crim.App.1977); Ex Parte Bui, 983 S.W.2d 73, 76 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). It is undisputed that in the probation proceeding, the prosecutor was the federal government, whereas the State of Texas is the party seeking to prosecute appellant for sexual assault of a child.

Relying on Bartkus v. Illinois, 359 U.S. 121, 123, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), appellant argues that because of the interaction that occurred between the federal and state governments, "the contention that the doctrine of dual sovereignty trumps the application of collateral estoppel must fail." We have located no reported Texas cases supporting the proposition that the doctrine of dual sovereignty "trumps" the application of collateral estoppel. The Fifth Circuit has written that the focus, when analyzing the relationship between collateral estoppel and dual sovereignty, is on whether or not the state and federal government are the same parties. See Angleton, 314 F.3d at 776 ("Collateral estoppel is inapplicable here, because the United States and Texas, as separate sovereigns, are not the `same party.'"); See also United States v. Hayes, 589 F.2d 811, 819 (5th Cir.1979), cert. denied, 444 U.S. 847, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979). As a general rule, recognizing that the United States and the State of Texas are separate sovereigns, and therefore separate parties, appellant's collateral estoppel claim will fail because appellant is unable to establish a common identity of the federal and state governments. Aguilar, 947 S.W.2d at 259-60.

The "Bartkus Exception"

Although the State did not raise the dual sovereignty doctrine in the writ hearing, appellant, citing Ex Parte Taylor, 36 S.W.3d 883, 886 (Tex.Crim.App.2001), conceded that this Court may affirm the trial court's judgment if it is correct under any legal theory. Appellant argues that even though the federal and state governments are separate sovereigns, they should be treated as the same party for purposes of collateral estoppel under the "Bartkus exception." In Bartkus v. Illinois, 359 U.S. at 123-24, 79 S.Ct. 676 (1959), the United States Supreme Court, discussed as dictum a possible exception to the dual sovereignty doctrine: if, in a criminal proceeding, one sovereign becomes so involved in another sovereign's prosecution, such that a subsequent prosecution by the non-prosecuting sovereign amounts to a "sham and a cover" for the first prosecution, the doctrine of dual sovereignty may not be used as a basis for the latter prosecution. Based on the facts of Bartkus, the Supreme Court ultimately rejected such exception and upheld the prosecution. Id.

This Court considered applying the "Bartkus exception" in Ex Parte Bui, 983 S.W.2d 73, 76 (Tex.App.-Houston [1st Dist.] 1998, pet ref'd). We determined that ...