State v. Nash

• Decision Date: 21 October 1991
• Docket Number: No. 07-91-0171-CR,07-91-0171-CR
• Citation: 817 S.W.2d 837
• Parties: The STATE of Texas, Appellant, v. David Mark NASH, Appellee.
• Court: Texas Court of Appeals

Page 837

817 S.W.2d 837

The STATE of Texas, Appellant, v. David Mark NASH, Appellee.

No. 07-91-0171-CR.

Court of Appeals of Texas,

Amarillo.

Oct. 21, 1991.

Discretionary Review Refused

Jan. 29, 1992.

Travis Ware, Dist. Atty., Michael West, Asst., Lubbock, for appellant.

Roderique S. Hobson, Jr., Lubbock, for appellee.

Before REYNOLDS, C.J., and DODSON and BOYD, JJ.

BOYD, Justice.

This is a case requiring a detailed consideration of the distinction between the application of the doctrine of collateral estoppel and the constitutional prohibition against placing a defendant twice in jeopardy for the same offense, as well as the requirements for invoking the respective preclusions. In two points of error, the State appeals from an order dismissing, with prejudice, its complaint against appellee, David Mark Nash. The State contends that the trial court erred in its application of the doctrine of collateral estoppel in dismissing the complaint, and not submitting Nash's special plea of double jeopardy to the jury for a determination of the fact issues. For reasons hereinafter expressed, we reverse the judgment of the trial court and remand the cause to the trial court.

On December 8, 1988, in Hays County Court at Law Number Two, Nash entered a plea of guilty to the offense of driving while intoxicated (DWI). He received a sentence of two years in the Hays County Jail, which was probated for two years. Among the conditions of Nash's probation were that he, "[c]ommit no offense against the laws of this or any other State or of the United States," and "avoid injurious and vicious habits and abstain from the use of alcoholic beverages."

On May 16, 1990, Nash was arrested for the offense of DWI in Lubbock County. Based on this offense, the State filed a complaint and information against Nash in Lubbock County. Subsequently, the State filed an application in Hays County to revoke Nash's probation, alleging that he was arrested for DWI, that he failed to avoid injurious and vicious habits, and he failed to abstain from the use of alcoholic beverages, thereby violating the terms of his probation. At the probation revocation hearing, the Hays County Court denied the State's application, and entered an order, reciting that both sides were represented by counsel, evidence was presented and arguments were made, and the allegations in the State's application were not true. There is no other record before this Court regarding the findings of the Hays County Court.

At trial on the merits of the State's complaint against him in Lubbock County, Nash presented to the court a special plea of double jeopardy, in which he alleged that the Lubbock County action was prohibited because he had previously been placed in jeopardy for the offense at the probation revocation hearing. The only final order before this Court on appeal, appears to grant Nash's plea of double jeopardy, and dismiss the action with prejudice. ¹ After the court's determination that the State was barred from prosecuting its complaint, the jury was dismissed without comment or objection by the State.

At the outset, we overrule the State's second point of error. The State complains that the trial court erred in not submitting Nash's special plea to the jury for a determination of the fact issues pursuant to articles 27.07 and 28.12 of the Code of Criminal Procedure. However, upon the court's dismissal of the jury, the State stated no objection and made no comment. Failure to make a timely objection does not preserve a complaint for our review, and the State has therefore waived its right to complain. Tex.R.App.P. 52(a). The provisions relied upon by the State are not so mandatory as to overcome its failure to make a timely objection and preserve the error.

In its first point of error, the State contends that the trial court erred in ruling that the doctrine of collateral estoppel precludes the State from trying Nash in the instant case. The parties have incorrectly perceived the effect of the trial court's order, and assume on appeal that the dismissal was granted on the basis of collateral estoppel. While it is true that (1) although the bulk of the plea concerns double jeopardy considerations, portions of the language in Nash's plea could be argued on the basis of collateral estoppel; (2) collateral estoppel was orally argued by the parties; and (3) the trial court, considering itself bound by the decision in Ex parte Tarver, 725 S.W.2d 195 (Tex.Crim.App.1986), orally dismissed the complaint based upon the application of the doctrine of collateral estoppel, the final order of dismissal was awarded based upon the prohibition against double jeopardy, as set forth in the order and its supporting plea.

Absent a declaration of the decision of the law upon the matters at issue, the oral pronouncement by the court does not constitute a final judgment, but merely indicates the judgment to be rendered. Chandler v. Reder, 635 S.W.2d 895, 897 (Tex.App.--Amarillo 1982, no writ). The statements of the trial court prior to entry of the order were merely the court's findings preliminary to the making of the decree. It is the court's order that counts, and the stated reasons neither control or qualify the order, therefore, the recitations preceding the decretal portion of a written instrument, albeit proper inclusions, form no part of the decree. Stevens v. Cain, 735 S.W.2d 694, 695 (Tex.App.--Amarillo 1987, no writ). As a result, there is no final judgment regarding the issue of collateral estoppel, and the issue is not validly before us. However, in the interest of judicial economy, and because the issue will likely arise again, as well as the fact that both parties have assumed on appeal the application of the doctrine of collateral estoppel as the basis for the court's dismissal, we will address both the principles of double jeopardy and collateral estoppel as they apply to the present situation.

Because the doctrine of collateral estoppel is embodied within the constitutional protection against being twice placed in jeopardy for the same offense, Ladner v. State, 780 S.W.2d 247, 250 (Tex.Crim.App.1989), the distinction between double jeopardy and collateral estoppel is a difficult one. Double jeopardy prohibits the re-prosecution of the crime, whereas collateral estoppel forbids the re-litigation of certain issues necessary to establish the fact of the crime. Ex parte Lane, 806 S.W.2d 336, 338 (Tex.App.--Fort Worth 1991, no pet.).

The Court of Criminal Appeals has long interpreted double jeopardy as a person being twice put in "legal jeopardy when he is put upon trial before a court of competent jurisdiction, upon an indictment or information ... sufficient in form and substance to sustain a conviction, and a jury has been ... impaneled and sworn to try the case." Johnson v. State, 73 Tex.Crim. 133, 164 S.W. 833, 834 (1914). Unlike the criminal proceedings outlined by the Court in Johnson, guilt or innocence is not at issue in a probation revocation hearing. The question at such a hearing is whether the act committed, in effect, broke the contract made with the court pursuant to the granting of probation. The result is not a conviction, but a finding upon which the trial court might exercise its discretion by revoking, or continuing, probation. Davenport v. State, 574 S.W.2d 73, 75 (Tex.Crim.App.1978). We are constrained to hold that double jeopardy protections do not apply to a proceeding wherein the result is deemed to be neither a conviction nor acquittal. See Rodriquez v. State, 552 S.W.2d 451, 456 (Tex.Crim.App.1977); Russell v. State, 551 S.W.2d 710, 714 (Tex.Crim.App.1977); Ex parte Maldonado, 681 S.W.2d 86, 88 (Tex.App.--Amarillo 1984, pet. ref'd).

Furthermore, although Nash was twice placed in risk of punishment, neither the offenses nor punishments are the same. Had the application for revocation of probation been successful, the punishment would have been for the December 8 DWI offense. If there had been a successful prosecution in Lubbock County, Nash's punishment would have been for the May 16 DWI offense. Consequently, Nash has not been subjected to double jeopardy. Ex parte Tarver, 725 S.W.2d 195, 197 (Tex.Crim.App.1986).

It is clear that jeopardy did not attach at the probation revocation hearing and Nash's plea of double jeopardy should properly have been denied. Therefore, to the extent that the trial court granted the plea, we must reverse that order.

We now turn to the more difficult determination of the applicability of the doctrine of collateral estoppel. Collateral estoppel means that when an issue of ultimate fact has once been determined by a valid and final judgment, the decided issue cannot be re-litigated between the same parties in any future lawsuit. Ex parte Lane, 806 S.W.2d at 337. The application of collateral estoppel requires the reviewing court to examine the entire record of the prior proceedings between the parties to determine what issues were foreclosed. The doctrine is a narrow one, and the test is, whether the verdict was necessarily grounded upon an issue...