Showery v. State

• Decision Date: 19 February 1986
• Docket Number: No. 08-85-00223-CR,08-85-00223-CR
• Citation: 704 S.W.2d 153
• Parties: Raymond SHOWERY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 153

704 S.W.2d 153

Raymond SHOWERY, Appellant, v. The STATE of Texas, Appellee.

No. 08-85-00223-CR.

Court of Appeals of Texas El Paso.

Feb. 19, 1986.

Discretionary Review Refused April 30, 1986.

Michael R. Gibson, El Paso, for appellant.

Steve W. Simmons, Dist. Atty., El Paso, for appellee.

Before STEPHEN F. PRESLAR, C.J., and WARD and OSBORN, JJ.

OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is an appeal from a denial of habeas corpus relief in the district court. Appellant had been convicted of murder in the 41st District Court of El Paso County. Showery v. State, 690 S.W.2d 689 (Tex.App., 8th Dist.1985, petition pending) (affirming the conviction). Appellant was released from custody upon an appellate bond. Thereafter, the State moved to revoke the appellate bond alleging subsequent commission of involuntary manslaughter. The trial court revoked the bond under Tex.Code Crim.Pro.Ann. arts. 44.04(c), 44.12 and 44.20 (Vernon 1979 and Supp 1986). In an unpublished opinion issued on September 26, 1984, this Court reversed the trial court decision based upon insufficient evidence to demonstrate by a preponderance of proof that Appellant had violated the conditions of his bond by committing the alleged subsequent offense of involuntary manslaughter. Showery v. State, (Cause No. 08-84-00194-CR, September 26, 1984). The judgment of this Court was affirmed by the Court of Criminal Appeals in an unpublished opinion issued April 17, 1985. (Cause No. 1077-84, State's motion for rehearing denied June 26, 1985).

Appellant next filed a habeas corpus challenge to the continued effort to prosecute the involuntary manslaughter indictment pending in the 65th District Court. Relief was denied by the lower court.

Appellant's assertion below, and before this Court is that further prosecution of the involuntary manslaughter charge is precluded by the doctrines of res judicata and collateral estoppel based upon the insufficiency of the State's evidentiary presentation in the murder/appellate bond revocation proceeding. Appellant relies primarily upon Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), with support by analogy derived from Disheroon v. State, 687 S.W.2d 332 (Tex.Crim.App.1985) and Ex parte Tarver, 695 S.W.2d 344, (Tex.App., 1st Dist 1985). The State counters with reference to Davenport v. State, 574 S.W.2d 73 (Tex.Crim.App.1978). Both sides acknowledge the distinction between double jeopardy and the corollary doctrines of res judicata and collateral estoppel. Thus, the rules to be considered are as follows:

"[R]es judicata is the doctrine that an existing final judgment or decree, rendered on the merits without fraud or collusion, by a court of competent jurisdiction, on a matter within its jurisdiction is conclusive of the rights of the parties or their privies in all other actions or suits in the same court, or in any other judicial tribunal of concurrent jurisdiction, on points and matters in issue in the first suit." [citations omitted]. Davenport, at 76.

Collateral estoppel:

[M]eans 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 [397 U.S.] at 443, 25 L.Ed.2d at 475, 90 S.Ct. at 1194.

We find that the lower court was correct in refusing to apply either doctrine to the results of the bond revocation. First, neither of these doctrines is applicable to or flowing from a purely administrative proceeding. Davenport, supra. Ex parte Tarver is not persuasive in its efforts to circumvent Davenport and can only be seen as an effort to persuade the Court of Criminal Appeals to change its position with regard to double jeopardy and revocation proceedings. In any event, even if probation revocation goes the way of enhancement allegations and juvenile adjudications (See e.g. Disheroon, supra; Ex parte Augusta, 639 S.W.2d 481 (Tex.Crim.App.1982)), bond revocation proceedings are sufficiently distinguishable to avoid application of double jeopardy, collateral estoppel and res judicata doctrines. The aforementioned proceedings involve a preliminary determination resulting in punitive incarceration. The Court of Criminal Appeals held in Davenport that revocation proceedings are administrative in nature (at least in a double jeopardy context) involving the court's supervisory authority over the probationer. Even if the First Court of Appeals succeeds in convincing the Court of Criminal Appeals to abandon Davenport, the Davenport distinction between administrative and punitive judicial actions is still applicable to bond proceedings. See: United States v. One Assortment of 89 Firearms, 465 U.S. 354, 360, 104 S.Ct. 1099, 1104, 79 L.Ed.2d 361, 368 (1984). The result of the bond revocation in the 41st District Court in this Appellant's murder case was not punitive incarceration, but the exercise of administrative control over his conduct and residence during the pending of his appeal. The Tarver court's reliance on United States v. Utah Construction and Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966) for the proposition that the current trend is to encompass initial administrative proceedings in the collateral estoppel ambit is misplaced. The Supreme Court expressly stated that such a result would obtain only when an administrative agency was acting in a judicial capacity. Id. at 422, 86 S.Ct. at 1560, 16 L.Ed.2d at 661. Appel...