Reynolds v. State

• Decision Date: 15 September 1999
• Citation: 4 S.W.3d 13
• Parties: (Tex.Crim.App. 1999) CALVIN JOSEPH REYNOLDS, Appellant, v. THE STATE OF TEXAS. NO. 897-980.
• Court: Texas Court of Criminal Appeals

Page 13

4 S.W.3d 13 (Tex.Crim.App. 1999)

CALVIN JOSEPH REYNOLDS, Appellant, v. THE STATE OF TEXAS.

NO. 897-980.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS.

September 15, 1999.

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW, FROM THE FIRST COURT OF APPEALS, HARRIS COUNTY.

Before the court en banc.

OPINION

MCCORMICK, P.J., delivered the opinion of the Court in which Mansfield, Keller, Holland, Womack and Keasler, JJ. joined.

We have exercised our discretionary authority to review the Court of Appeals' 2-1 decision rejecting appellant's claim that the Harris County District Attorney was collaterally estopped from litigating at a motion to suppress hearing in a DWI criminal prosecution the issue of reasonable suspicion to stop appellant's car because the Texas Department of Public Safety had received an adverse ruling on that issue in a prior administrative proceeding to revoke appellant's driver's license for refusal to take a breath test. Reynolds v. State, 967 S.W.2d 493 (Tex.App.--Houston [1st Dist.] 1998). We affirm.

The Court of Appeals issued three opinions. Justice Hedges' lead opinion without elaboration relied on this Court's recent decision in State v. Brabson.¹ Reynolds, 967 S.W.2d at 494 (Hedges, J.). Apparently believing cases like this implicate federal constitutional double jeopardy principles under Ashe v. Swenson,² Justice Wilson's concurring opinion joined "the majority opinion's reliance" on Brabson and also advanced another reason to reject appellant's collateral estoppel claim. Reynolds, 967 S.W.2d at 495-96 (Wilson, J., concurring).

Justice Cohen's dissenting opinion claimed our decision in Brabson on the "parties" or "privity" issue was "questionable" under federal constitutional double jeopardy principles. Reynolds, 967 S.W.2d at 497 (Cohen, J., dissenting). Justice Cohen's dissenting opinion also claimed our decision in State v. Aguilar³ rather than our decision in Brabson controlled the disposition of this case because, among other things, the current applicable statute "is the same as the statute" in Aguilar while Brabson was decided under a prior statutory scheme unlike the present one. Reynolds, 967 S.W.2d at 496-97 (Cohen, J., dissenting).⁴ Justice Cohen's dissenting opinion also claimed Brabson and the current applicable statute expressing a clear intent that collateral estoppel principles do not apply in cases like this⁵ violate federal constitutional double jeopardy principles under Ashe and also conflict with this Court's decision in Aguilar. Id.

We granted discretionary review primarily to revisit this Court's majority opinion on original submission in Brabson on the "parties" or "privity" issue and to address the claim that Brabson and Aguilar irreconcilably conflict. We reaffirm the majority opinion on original submission in Brabson and we also adopt Judge Womack's concurring opinion on original submission in Brabson⁶ on the "parties" or "privity" issue.

I.

We initially address the precedential value of Brabson. Judge Baird's dissenting opinion to the denial of rehearing in Brabson suggested the entire 5-3 majority opinion on original submission in Brabson was converted into a plurality opinion when one of the judges who voted with the majority opinion on original submission voted to grant rehearing to reconsider only the "parties" issue. Brabson, 976 S.W.2d at 202 (Baird, J., dissenting to denial of reh'g), and at 206-07 (Price, J., dissenting to denial of reh'g).⁷

This does not make the Court's majority opinion on original submission in Brabson a plurality opinion. Because a majority of this Court was unwilling to grant rehearing to reconsider this Court's 5-3 majority opinion on original submission in Brabson, that majority opinion constitutes the decision of the Court and carries precedential weight which the bench and bar are obliged to follow unless the Legislature overturns it or at least five judges on this Court overrule it in whole or in part. See e.g., Whitaker v. State, 977 S.W.2d 595, 602 (Tex.Cr.App. 1998) (Price, J., concurring) (each judge on the Court has a responsibility to "observe precedent" until "a majority of this court indicates a willingness to reconsider" it).

II.

We next address Justice Cohen's claim that Aguilar is the current decisional law in cases like this and the claim that Brabson and Aguilar irreconcilably conflict. See Reynolds, 967 S.W.2d at 496-97 (Cohen, J., dissenting); see also Brabson, 976 S.W.2d at 202 (Baird, J., dissenting to denial of reh'g). Justice Cohen's dissenting opinion claimed Aguilar decided the collateral estoppel bar applies in cases like this. Reynolds, 967 S.W.2d at 496 (Cohen, J., dissenting). Noting that our opinion on original submission in Brabson did not distinguish or expressly overrule Aguilar, Justice Cohen's dissenting opinion doubted "that a Court of Criminal Appeals intent on rapidly abandoning Aguilar would not do so expressly." Id. The suggestion is that there is some irreconcilable conflict between Brabson and Aguilar and that Brabson should have addressed Aguilar. See Id.; see also Brabson, 976 S.W.2d at 202 (Baird, J., dissenting to denial of reh'g).

There is no conflict between these cases so it was unnecessary in Brabson to distinguish, overrule or even mention Aguilar. In Aguilar it was unnecessary to decide whether the collateral estoppel bar applies in cases like this since the defendant "failed to demonstrate the requisite elements to support his claim of collateral estoppel" anyway. Aguilar, 947 S.W.2d at 260.

That part of the Court's opinion in Aguilar suggesting the collateral estoppel bar applies in cases like this was dicta and was unnecessary to the decision in that case. Aguilar, 947 S.W.2d at 261 ("Court of Appeals was correct in finding that the doctrine of collateral estoppel might, in principal (sic), bar the State from relitigating fact issues found in a previous administrative license revocation proceeding"). (Emphasis Supplied). This, like similar dicta in other cases,⁸ does not constitute a decision that the collateral estoppel bar applies in cases like this, and the bench and bar would err to rely on Aguilar for the proposition that it does. Brabson is the current decisional law on the issue.

III.

We now revisit the holding in the majority opinion on original submission in Brabson on the "parties" or "privity" issue. Brabson, 976 S.W.2d at 184. We find it necessary to restate this holding.

Judge Baird's dissenting opinion to the denial of rehearing in Brabson claimed we held on original submission in Brabson that "the State is not the State." Brabson, 976 S.W.2d at 202 (Baird, J., dissenting to denial of reh'g). This presents a classic example of setting up a straw man and then knocking it down.

Consistent with authority from other jurisdictions,⁹ the Court's holding on original submission in Brabson on the "parties" issue is the "Texas Department of Public Safety and the Dallas County District Attorney are not the same parties" for collateral estoppel purposes. Brabson, 976 S.W.2d at 184. Nowhere does the Court's majority opinion on original submission in Brabson hold "the State is not the State."

The claim is the Texas Department of Public Safety and the Dallas County District Attorney are the same parties for collateral estoppel purposes because they "are different parts of the executive branch of the State of Texas"¹⁰ or because they "are entities `emanating from the same sovereignty.'"¹¹ Judge Womack's concurring opinion on original submission in Brabson adequately addresses these claims. Brabson, 976 S.W.2d at 186-88 (Womack, J., concurring).

Justice Cohen's dissenting opinion in Reynolds contains the most constructive criticism of this Court's holding on original submission in Brabson on the "parties" issue. Reynolds, 967 S.W.2d at 497 (Cohen, J., dissenting). Justice Cohen's dissent claims the Texas Department of Public Safety and a District Attorney are not parties at all, but instead are two governmental entities in the same branch of government representing the same party or client which are the people of the State of Texas. Id.

This is analogous to the same private client or party being represented by a private lawyer seeking to relitigate in a subsequent proceeding the same issue that was resolved adversely to the private client in a prior proceeding when the client was represented by another lawyer. Of course when a fact issue is resolved against a private citizen represented by lawyer A in proceeding 1, that same private citizen usually cannot relitigate the same fact issue in proceeding 2 on the basis that the private citizen is now represented by lawyer B.

While there is some merit to the position that the Texas Department of Public Safety and a District Attorney represent the same client which is the citizens of this State, these governmental entities nevertheless should not be considered the same parties for collateral estoppel purposes in cases like this. The citizens of this State have no power, as does a private litigant, to control the course of the litigation by the lawyers representing these governmental entities. These lawyers exercise governmental powers in the public interest. They do not represent any private citizen or private interest as does a private lawyer.

It is well-settled that sometimes the rules that apply to private lawyers representing private citizens do not apply to public lawyers exercising governmental powers in the public interest. For example, it has been held that "when a unit of government is exercising its governmental powers, it is not subject to estoppel." See State v. Durham, 860 S.W.2d 63, 67-68 (Tex.Cr.App. 1993) (State in its sovereign capacity, unlike ordinary litigants, not subject to defense of estoppel); Hardman v. State, 614 S.W.2d 123, 128 (Tex.Cr.App. 1981).

In addition, it is important to note that collateral estoppel principles originally were a product of civil litigation developed...