Neaves v. State

Decision Date22 February 1989
Docket NumberNo. 357-87,357-87
Citation767 S.W.2d 784
PartiesJoe David NEAVES, III, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Mark Stevens, Leo Dougherty, Robert A. Valdez, San Antonio, for appellant.

Fred G. Rodriguez, Dist. Atty., and Jay Brandon, Asst. Dist. Atty., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted of the offense of driving while intoxicated. The jury assessed his punishment at 45 days in the county jail, and a fine of $500.00. The Fourth Court of Appeals affirmed the conviction. Neaves v. State, 725 S.W.2d 785 (Tex.App.--San Antonio 1987).

Upon his arrest appellant refused to submit a specimen of breath or blood for a determination of alcohol concentration. Consequently, prior to trial a hearing was held before a municipal court, pursuant to V.T.C.A., Article 6701l-5, § 2(f), to determine whether appellant's driver's license should be suspended. At the conclusion of the hearing the municipal court made a negative finding upon the question whether probable cause existed that appellant had been driving while intoxicated. Thus, appellant's license was not suspended. Subsequently appellant raised a plea of collateral estoppel in the instant cause, asserting that the negative finding by the municipal court in the license suspension proceeding estopped the State from attempting to establish in the instant trial that appellant had been driving while intoxicated. Both the trial court and the court of appeals rejected this contention.

In the course of its analysis the court of appeals reasoned:

"The issues to be determined at the hearing under article 6701l -5, § 2(f) are: (1) that probable cause existed that the person was driving while intoxicated, (2) that the person was arrested and given an opportunity to give a specimen, and (3) that the person refused to give a specimen. * * * These are not the same issues of ultimate fact as are present in a prosecution for driving or operating a motor vehicle in a public place while intoxicated."

725 S.W.2d at 788.

In his petition for discretionary review appellant asserts the disposition by the court of appeals is contrary to this Court's opinion in Ex parte Tarver, 725 S.W.2d 195 (Tex.Cr.App.1986). In Tarver, supra, we held that a specific finding of fact in a probation revocation proceeding that an accused did not commit an alleged violation of the law operated to estop the State from prosecuting the accused for the identical violation in a subsequent trial. 1 For its part, the State maintains Tarver is inapplicable by its terms, in that it would apply collateral estoppel only where the State has had a "full and fair opportunity" to litigate the issue in the earlier proceeding. Because no counsel for the State was present at appellant's license suspension hearing, the State maintains it should not be collaterally estopped from relitigating the issue of whether appellant was driving while intoxicated.

In their respective arguments both parties seem to assume what the court of appeals expressly rejected--that whether probable cause to believe appellant had been driving while intoxicated existed at the time police requested a breath or blood specimen from him is "an issue of ultimate fact" in his prosecution for driving while intoxicated. We agree with the court of appeals that it is not. Thus, analysis of the specific questions raised by the parties is pretermitted.

In holding collateral estoppel to be a component of the Fifth Amendment guarantee against double jeopardy, the United States Supreme Court defined it to mean "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, 1194, 25 L.Ed.2d 469, 475 (1970). Speaking not of double jeopardy collateral estoppel, per se, but of the New York common law doctrine of collateral estoppel, another court has observed:

"[I]t must be borne in mind that although a judgment in a former criminal prosecution may be res judicata with respect to specific facts or issues determined therein, it will not bar a subsequent prosecution unless the facts or issues so determined are necessarily decisive in the second prosecution and a conviction could not possibly be had therein without contradicting the former determination of such facts or issues."

People v. Cornier, 42 Misc.2d 963, 249 N.Y.S.2d 521, 527 (1964). In Cornier the accused was first prosecuted for driving without a license, and was acquitted on the basis of a record demonstrating that the trial court, as factfinder, had found the evidence insufficient on the issue of whether Cornier had actually been driving. The court reluctantly held, as a matter of common law collateral estoppel, that the State could not relitigate this identical issue in a subsequent prosecution for driving while intoxicated. At first blush it would appear that Cornier is persuasive authority in support of appellant's position in this cause. Under closer scrutiny, however, the analogue proves imperfect.

Identical to both prosecutions in Cornier was the issue of ultimate fact whether the accused had actually been driving the automobile at the time in question. A finding that Cornier had in fact been driving the car in the prosecution for driving while intoxicated would necessarily contradict the factfinder's conclusion in the driving without a license prosecution that he had not. In the instant cause, by contrast, there is no necessary contradiction between the jury's finding in the instant cause that appellant was driving while intoxicated, and the municipal court's earlier determination that probable cause did not exist that he had been driving while intoxicated.

Article 6701l-5, § 2(f), supra, requires a finding, inter alia, "that probable cause existed that [a suspect] was driving or in actual physical control of a motor vehicle ... while intoxicated[.]" We can think of no other explanation for this requirement but that the legislature believed it would be untenable to penalize a...

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37 cases
  • State v. Brabson
    • United States
    • Texas Court of Criminal Appeals
    • February 25, 1998
    ...a motor vehicle while intoxicated is a different question from whether probable cause existed for his arrest. Cf. Neaves v. State, 767 S.W.2d 784, 786-87 (Tex.Cr.App.1989) (whether probable cause to believe the defendant had been driving while intoxicated existed at the time the police requ......
  • State v. Houth
    • United States
    • Texas Court of Criminal Appeals
    • November 25, 1992
    ...despite the State's argument that probable cause is not an element of the offense of driving while intoxicated. See Neaves v. State, 767 S.W.2d 784 (Tex.Cr.App.1989). The First Court of Appeals reversed and remanded the cause for trial. Initially the court of appeals held that failure to ma......
  • State v. Brabson
    • United States
    • Texas Court of Criminal Appeals
    • February 25, 1998
    ...a motor vehicle while intoxicated is a different question from whether probable cause existed for his arrest. Cf. Neaves v. State, 767 S.W.2d 784, 786-87 (Tex.Cr.App.1989) (whether probable cause to believe the defendant had been driving while intoxicated existed at the time the police requ......
  • York v. State
    • United States
    • Texas Court of Criminal Appeals
    • June 29, 2011
    ...and to the Fifth Circuit case of Neal v. Cain.43 We also provided a “ see also ” citation to United States v. Larkin.44 Relying upon Neaves v. State,45 the concurring opinion in Murphy explained that probable cause to stop the defendant was not the same issue as guilt of possessing the cont......
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