State v. Rodriguez

• Decision Date: 16 December 1999
• Docket Number: No. 11-98-00206-CR,11-98-00206-CR
• Parties: (Tex.App.-Eastland 1999) State of Texas, Appellant v. Tommy Reyes Rodriguez a/k/a Tommy Reyes Rodriquez, Appellee
• Court: Texas Court of Appeals

Page 314

11 S.W.3d 314 (Tex.App.-Eastland 1999)

State of Texas, Appellant v. Tommy Reyes Rodriguez a/k/a Tommy Reyes Rodriquez, Appellee

No. 11-98-00206-CR

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

December 16, 1999

Appeal from 42nd District Court of Taylor County.

Panel consists of: W. G. Arnot, III, Chief Justice; Jim R. Wright, Justice; Terry McCall, Justice.

OPINION.

TERRY MCCALL, JUSTICE.

The trial court granted appellee's pretrial motion to suppress on the ground of collateral estoppel. The State appealed. We reverse and remand.

Background Facts

Appellee was charged with misdemeanor possession of marijuana in the county court at law. He was also charged in the district court with the felony offense of possession of cocaine with intent to deliver. Both charges stemmed from a single search warrant, and both charges were filed by the Taylor County District Attorney. At a suppression hearing in the misdemeanor trial, the county court at law found that the affidavit supporting the search warrant was insufficient to establish probable cause. The State did not appeal the ruling, and the county court at law dismissed the case upon the State's motion. After the misdemeanor case was dismissed, the State then sought to prosecute the felony case in the district court. Appellee filed a collateral estoppel plea based on the county court at law's suppression order. Citing State v. Brabson, 976 S.W.2d 182 (Tex.Cr.App. 1998), the district court found that collateral estoppel applied and dismissed the indictment.

Appellee argues that collateral estoppel, or issue preclusion, should apply because the double jeopardy clause protects against the State re-litigating the probable cause issue. Appellee relies upon Ashe v. Swenson, 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970); Ex parte Tarver, 725 S.W.2d 195 (Tex.Cr.App. 1986); and Dedrick v. State, 623 S.W.2d 332 (Tex.Cr.App.1981).

The State contends that only two kinds of collateral estoppel have been applied to criminal cases: "criminal" collateral estoppel as recognized in Ashe v. Swenson, supra, and "administrative" collateral estoppel as recognized in State v. Brabson, supra, and State v. Aguilar, 947 S.W.2d 257 (Tex.Cr.App. 1997). The State argues that criminal collateral estoppel does not apply because jeopardy had not attached in appellee's misdemeanor marijuana case. The State further argues that administrative collateral estoppel does not apply because administrative collateral estoppel requires an administrative agency acting in a "judicial" capacity as in Brabson and Aguilar or a judge engaged in a "judicial" decision in an administrative proceeding as in Tarver.

We disagree with the State's characterization of "administrative" collateral estoppel. The concept of "administrative" collateral estoppel requires that there be a judicial determination in the first proceeding; consequently, we believe it is immaterial whether the first proceeding is criminal or civil. The question before us in this case is, therefore, whether collateral estoppel should be applied to a motion to suppress in a criminal case because of a judicial decision in an earlier suppression hearing involved in a separate trial.

We hold that collateral estoppel does not apply in this case because jeopardy did not attach in the misdemeanor case and that the misdemeanor suppression order did not determine an ultimate issue in the district court felony case. Collateral estoppel based upon civil law does not apply because the misdemeanor suppression order was not a final judgment.

Collateral Estoppel Based on Double Jeopardy

In Ex parte Ueno, 971 S.W.2d 560 (Tex.App. - Dallas 1998, pet'n ref'd), the court addressed the question now before us. There, the police obtained two search warrants. Pursuant to one of the warrants, the police seized a controlled substance. The trial court granted the defendant's motion to suppress, and the State voluntarily dismissed the case. Later, the State realized that the second warrant could provide an independent basis for the search. The defendant was reindicted. He again filed a motion to suppress and argued that collateral estoppel prevented the State from re-litigating the issue of probable cause. The Dallas Court held that collateral estoppel was an aspect of double jeopardy and that collateral estoppel does not apply unless the defendant has been previously placed in jeopardy.

The Double Jeopardy Clause of the United States Constitution provides: "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U. S. CONST. amend. V. The primary guarantee offered by this constitutional provision is protection against being subjected to successive prosecutions for the same criminal offense. Brown v. Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977). This aspect of the double jeopardy protection gives finality to the criminal process and "guarantees that an accused who has once stood the ordeal of criminal prosecution . . . shall not be required to 'run the gauntlet' of trial again for the same alleged misconduct." See Green v. United States, 355 U.S. 184, 187-88, 2 L. Ed. 2d 199, 78 S. Ct. 221 (1957).

In Ashe v. Swenson, supra, the Supreme Court recognized that the Double Jeopardy Clause also incorporates the doctrine of collateral estoppel. A group of masked men robbed six men playing poker in a home. The State unsuccessfully prosecuted Ashe for robbing one of the men. Subsequent to that acquittal, Ashe was convicted for the robbery of one of the other players. The Supreme Court found that, because the only issue in dispute in the first trial was whether Ashe had been one of the robbers, the rule of collateral estoppel precluded that issue from being re-litigated in the second prosecution. The Court defined the collateral estoppel doctrine as providing that:

[W]hen 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, supra at 443. In the factual context of Ashe, the Court's reference to "a valid and final judgment" clearly referred to jeopardy having attached in the first prosecution.

For collateral estoppel to apply on a constitutional basis, the United States Supreme Court has added a second requirement to that of jeopardy having attached in the first proceeding. In the case of Dowling v. United States, 493 U.S. 342, 107 L. Ed. 2d 708, 110 S. Ct. 668 (1990), the Supreme Court declined to apply collateral estoppel where the earlier acquittal did not determine an "ultimate issue" in the second case. Dowling was convicted of robbing a bank while wearing a ski mask and carrying a small pistol. At trial, the government introduced the testimony of Vena Henry who stated that a similarly masked and armed Dowling had been one of two intruders who had entered her home two weeks after the bank robbery. Even though Dowling had been acquitted in the Henry case, the Supreme Court found the testimony to be constitutionally admissible despite Dowling's double jeopardy and due process claims.

In contrast to Dowling, appellee in this case cites the earlier Texas case of Dedrick v. State, supra, where a different result was reached on similar facts. Dedrick had first been acquitted on a charge of robbery of Don Funk. Later, Dedrick was convicted of a different robbery, and Funk testified at that trial. Reversing the conviction, the Dedrick court noted that the only issue in the earlier case was the conflict between Funk's identification of Dedrick as the robber and the defensive evidence of alibi which the jury resolved in Dedrick's favor. To allow Funk's testimony at the second trial was thought to re-litigate that ultimate issue determined in the first case. Implicit in the decision was the rationale that Funk's testimony concerned the ultimate issue of identity in the second case. ¹.

The United States Supreme Court in Dowling, on the other hand, pointed out that Dowling did not demonstrate that his acquittal in the first trial represented a jury determination that he was not one of the men who entered Henry's home. Thus, the identification of Dowling as one who entered Henry's home could be litigated in the later trial, and the testimony of Henry used as evidence on the ultimate issue of Dowling's identity in the later bank robbery trial. In the case now before us, probable cause is not an ultimate issue in appellee's district court felony case.

Citing Ashe, the Texas Court of Criminal Appeals has required that the determination in the first proceeding be one that determines an ultimate issue of fact in the later proceeding. In Neaves v. State, 767 S.W.2d 784 (Tex.Cr.App. 1989), the first proceeding was an administrative proceeding to revoke Neaves' driver's license. The second case was a criminal prosecution for driving while intoxicated. The court held that the issue in the administrative hearing of whether probable cause to believe appellant had been driving while intoxicated existed at the time police requested a breath specimen from him was not "an issue of ultimate fact" in his prosecution for driving while intoxicated. Neaves v. State, supra at 786; State v. Brabson, supra at 185. Relying on Neaves, the court in Holmberg v. State, 931 S.W.2d 3 (Tex.App. - Houston [1st Dist.] 1996, pet'n ref'd), held that probable cause to arrest in a DWI proceeding was not an ultimate fact but that it was merely the subject of a suppression hearing proceeding involving a special objection to the admissibility of evidence. The Houston First Court concluded that double jeopardy, including its collateral estoppel implications, did not apply to rulings on the admissibility of evidence. Neither Neaves nor Holmberg addressed the more fundamental question of jeopardy attachment; both courts appear to have simply assumed that the doctrine of collateral estoppel was...