State v. Smiley

• Decision Date: 31 March 1997
• Docket Number: No. 07-96-0229-CR,07-96-0229-CR
• Citation: 943 S.W.2d 156
• Parties: The STATE of Texas, Appellant, v. Bonnie Valentine SMILEY, Appellee.
• Court: Texas Court of Appeals

Page 156

943 S.W.2d 156

The STATE of Texas, Appellant, v. Bonnie Valentine SMILEY, Appellee.

No. 07-96-0229-CR.

Court of Appeals of Texas,

Amarillo.

March 31, 1997.

Potter County Attorney, Sonya Letson, Richard Martindale, Amarillo, for Appellant.

Law Offices of Charles L. Rittenberry, Charles L. Rittenberry, Amarillo, for Appellee.

Before BOYD, C.J., and QUINN and REAVIS, JJ.

PER CURIAM.

The State of Texas appealed from an order granting Bonnie Valentine Smiley's motion to suppress evidence concerning probable cause for her arrest. By a split decision in which Justices Quinn and Reavis vote to reverse and Chief Justice Boyd votes to affirm, the court reverses the order granting the suppression motion and remands the cause for further proceedings. The reasonings of each justice are contained in the opinions attached hereto.

QUINN, Justice.

I adopt the factual recitation contained in the opinion of Chief Justice Boyd but vote to reverse for the reasons espoused in Ex parte Robinson, 641 S.W.2d 552 (Tex.Crim.App.1982) and Ex parte Pipkin, 935 S.W.2d 213 (Tex.App.--Amarillo 1996, pet. filed).

A. No Double Jeopardy

The collateral estoppel doctrine invoked by appellant is that discussed in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) and emanating from the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. Why it is unavailable to appellant is best illustrated by asking:

If collateral estoppel (in the criminal setting) is a subset of the larger Double Jeopardy Clause, how can collateral estoppel apply when the Double Jeopardy Clause does not?

And, the only answer I can reach, which is the answer indicated by the Texas Court of Criminal Appeals in Robinson and reached in Pipkin, is that it cannot. "Insofar as the doctrine of collateral estoppel on which [the appellant] relies is but a corollary of the Double Jeopardy Clause, the fact that [the appellant] has not been put in jeopardy has significance." Ex parte Robinson, 641 S.W.2d at 556. ¹ In other words, before anyone can successfully invoke any aspect of double jeopardy, such as collateral estoppel, he has to have been twice placed in jeopardy.

Simply put, the Double Jeopardy Clause is akin to a house protecting its inhabitants against multiple onslaught by the State for the same offense. It is elemental that the criteria which triggers double jeopardy is the risk of multiple prosecutions or punishments for the same offense. Ex parte Broxton, 888 S.W.2d 23, 25 (Tex.Crim.App.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2584, 132 L.Ed.2d 833 (1995). This is true regardless of whether the claim is asserted under the jeopardy clause of the Texas or United States Constitution. See id. at 28. Indeed, in Broxton, the Court of Criminal Appeals recognized as much by foregoing consideration of whether the Texas double jeopardy clause provided greater protection than its federal counterpart. As stated by the court, since appellant "was not 'punished ' for the unadjudicated extraneous offenses at the Dockens capital punishment hearing, the double jeopardy protection ... under either constitution, is not implicated." Id. (emphasis added); see Phillips v. State, 787 S.W.2d 391, 393 n. 2 (Tex.Crim.App.1990) (stating that "[c]onceptually, the state and federal constitutional provisions [regarding double jeopardy] are identical"). So, if the defendant has not been subjected to multiple prosecutions or punishments then double jeopardy has not been triggered.

Next, since Ashe v. Swenson, collateral estoppel can be likened to part of the roof of the double jeopardy house. Id. (incorporating collateral estoppel into the Double Jeopardy Clause); Ex parte Robinson, 641 S.W.2d at 553 (holding that collateral estoppel is a corollary of the Double Jeopardy Clause); Ex parte Pipkin, supra (holding that collateral estoppel is a corollary of the Double Jeopardy Clause); Malone v. State, 864 S.W.2d 156, 159 (Tex.App.--Fort Worth 1993, no pet.) (holding that collateral estoppel is a "subset of the ... double jeopardy issue"); State v. Nash, 817 S.W.2d 837 (Tex.App.--Amarillo 1991, pet. ref'd) (holding that the doctrine of collateral estoppel is "embodied within the constitutional protection against being twice placed in jeopardy for the same offense"). ² Yet, to enjoy the protection afforded by the roof, one must still enter the house, and that requires the use of specific keys. And, as previously alluded to, one of the essential keys is obtained by having undergone the State's previous attempt at punishment for the same offense. See Tharp v. State, 935 S.W.2d 157, 160 (Tex.Crim.App.1996) (holding that the individual must be subjected to the risk of punishment before double jeopardy is implicated); Ex parte Broxton, 888 S.W.2d at 25 (holding that double jeopardy is implicated when one undergoes multiple prosecutions or punishments for the same offense); Ex parte Pipkin, 935 S.W.2d at 215 (holding the same). If a person has not previously been subjected to punishment or prosecution he has not been placed in jeopardy. And, if he has not been before placed in jeopardy, he lacks a key essential to opening the door to double jeopardy and partaking of its subpart known as collateral estoppel. Id.; accord Ex parte Robinson, 641 S.W.2d at 556 (rejecting Robinson's proffer of collateral estoppel since, among other things, he was not previously placed in jeopardy via an examining trial); Ex parte Lane, 806 S.W.2d 336, 339-40 (Tex.App.--Fort Worth 1991, no pet.) (rejecting the claim of collateral estoppel because, among other things, the prior bail hearing did not involve punishment); 2 W. LaFave & J. Israel, Criminal Procedure § 17.4, p. 384 (1984) (stating that collateral estoppel does not interfere with the State's prosecution of someone for murder, for instance, after it unsuccessfully attempted to revoke probation based upon the same offense "for the reason that no jeopardy attached at the revocation proceeding"); Green v. State, 463 So.2d 1139, 1140 (Fla.1985) (holding that because "petitioner was not subjected to conviction or punishment for his new criminal conduct [via a probation revocation hearing] ... the double jeopardy clause through the doctrine of collateral estoppel is not applicable"); United States v. Miller, 797 F.2d 336, 340-41 (6th Cir.1986) (holding that since jeopardy did not attach at the revocation hearing, collateral estoppel could not be invoked as a result of that hearing); Showery v. Samaniego, 814 F.2d 200 (5th Cir.1987) (holding that jeopardy must attach before action in a prior proceeding may collaterally estop a subsequent prosecution). ³

Here, Bonnie Smiley was not placed in jeopardy via the prior administrative license revocation proceeding. As held in Tharp v. State, the remedies contemplated in such a proceeding were, and are, not punishment. Tharp v. State, 935 S.W.2d at 160-61; accord Ex parte Pipkin, 935 S.W.2d at 216; Dowling v. State, 926 S.W.2d 752, 756 (Tex.App.--Amarillo 1996, pet. ref'd). Thus, she lacked a key needed to enter into the realm of double jeopardy and enjoy the protection of its subpart known as collateral estoppel.

Additionally, that she merely invoked the doctrine to suppress the use of certain evidence as opposed to precluding a subsequent prosecution in toto matters not for several reasons. First, suppressing necessary evidence can have, for all practical purposes, the actual effect of precluding a subsequent prosecution. Second, and more importantly, collateral estoppel is nothing more than a subset of the whole concept known as double jeopardy. Malone v. State, 864 S.W.2d at 159. And, logically, if something elemental to the concept of double jeopardy is absent (i.e., prior punishment or prosecution), it is likewise absent vis-a-vis its subsets.

Ashe did not say collateral estoppel was some independent protection found in the United States Constitution; it did not say that collateral estoppel stood alone. ⁴ Nor has any case which I know of so held, in the criminal setting. Instead, the United States Supreme Court recognized the defense as a corollary or part of the Double Jeopardy Clause. See Showery v. Samaniego, 814 F.2d at 202-203 (rejecting the notion that collateral estoppel, as recognized in Ashe, had an existence independent of the double jeopardy clause and the latter's requirement for prior jeopardy). As alluded to above, the former does not stand alone but atop the house. And, if there is no house because the individual has never been placed in jeopardy, then there can be no roof.

This is not to say that some form of collateral estoppel, as recognized in common law, may not apply. Indeed, collateral estoppel originally was little more than, and before Ashe existed for the most part as, a judicially created, common law precept. Yet, its application via the common law is not before us given that Smiley expressly couched her claim upon the Double Jeopardy Clause.

In sum, collateral estoppel, as per Ashe, is a subset of double jeopardy and can have no application unless the claimant was previously placed in jeopardy. Because Smiley was not so jeopardized, I cannot extend her the protections of collateral estoppel.

B. Administrative Decision Lacks Preclusive Effect

I also reject Smiley's claim for the alternative reasoning in Ex parte Pipkin, 935 S.W.2d at 216-17. The actions of an administrative law judge in a license revocation proceeding were never expected or intended to have preclusive effect in a subsequent criminal action. Id. at 216-17; Showery v. State, 704 S.W.2d 153, 156 (Tex.App.--El Paso 1986, pet. ref'd) (stating that the nature of the forum, the consequences to the defendant, and the expectations of the litigants as they enter the first arena must be considered before extending preclusive effect to the first proceeding).

Consequently, I would reverse the decision of the trial court.

REAVIS, Justice.

Since the advent of Ex parte Tharp, ...