XXIV. Collateral Estoppel/Double Jeopardy

A. JUSTICE COURT FINDINGS

State v. Groves, 837 S.W.2d 103 (Tex.Crim.App.  1992).

Justice court finding that police did not have probable cause to stop vehicle will not have estoppel effect on State’s subsequent DWI prosecution.

B. PROBATION REVOCATION HEARINGS

Fuentes v. State, 880 S.W.2d 857 (Tex.App. – Amarillo 1994, pet. ref’d).

Ex Parte Weaver, 880 S.W.2d 855 (Tex.App.-Fort Worth 1994, no pet.).

Where new DWI is alleged in petition to revoke but waived prior to revocation hearing there is no collateral estoppel when court does not find sufficient evidence to revoke.

NOTE: HAD IT NOT BEEN WAIVED AND A NEGATIVE FINDING BEEN ENTERED AS TO DWI ALLEGATION IN THE PETITION THAT WOULD PRECLUDE FURTHER PROSECUTION OF THE DWI CHARGE UNDER EX PARTE TARVER, 725 S.W.2d 195 (TEX. CRIM. APP.  1986).

C. ALR HEARINGS–NO DOUBLE JEOPARDY

  1. ALR SUSPENSIONS BASED ON BREATH TESTS
    • Ex Parte Tharp, 935 S.W.2d 157 (Tex.Crim.App.  1996).
      • In this case there was an ALR license suspension based on the defendant’s having a breath test result of .10 or greater. Court held that there was no double jeopardy as the ALR disposition did not constitute “punishment.”
  2. ALR SUSPENSIONS BASED ON BREATH TEST REFUSALS
    • Ex Parte Anthony, 931 S.W.2d 664 (Tex.App.-Dallas, 1996 pet. ref’d).
    • Ex Parte Williamson, 924 S.W.2d 414 (Tex.App.-San Antonio 1996, pet. ref’d).
    • Ex Parte Vasquez, 918 S.W.2d 73 (Tex.App.-Fort Worth 1996, pet ref’d).
      • When the ALR suspension is based on a breath test refusal, the “same elements” Blockburqer test is not met so there is no double jeopardy. The Court found the element that differs was that in the ALR suspension hearing, it must be proven that the defendant had an opportunity to and refused to submit to a breath test.
    • Johnson v. State, 920 S.W.2d 692 (Tex.App.-Houston [1st Dist.] 1996, pet. ref’d).
      • Court found no double jeopardy. This case involved a refusal to give a breath sample and the Court found that the Blockburger “same elements test” was not met.
    • Ex Parte Pee, 926 S.W.2d 615 (Tex.App.-Houston [1st Dist.] 1996, pet. ref’d).
      • DWI is not a lesser included offense of having license suspended.

D. ALR HEARINGS: NO COLLATERAL ESTOPPEL

Reynolds v. State, 4 S.W.3d 13 (Tex.Crim.App. 1999).

Ex Parte Dunlap, 963 S.W.2d 954 (Tex.App.-Fort Worth 1998, no pet.).

State v. Anderson, 974 S.W.2d 193 (Tex.App.-San Antonio 1998, no pet.).

Ex Parte Richards, 968 S.W.2d 567 (Tex.App.-Corpus Christi 1998, pet. ref’d).

Adopts the holding and logic of Brabson as precedent. This case, unlike Brabson, did involve a hearing under the new “ALR” statute.

State v. Brabson, 966 S.W.2d 493(Tex.Crim.App.1998).

Based upon a finding that the district attorney and DPS are not the same parties for administrative collateral estoppel, the Court found that collateral estoppel did not preclude the district attorney from litigating the issue of probable cause after the administrative judge found that there was no probable cause for the stop.  (Note: this was not a hearing under the new ALR statute.)

Ex Parte Serna, 957 S.W.2d 598 (Tex.App.-Fort Worth1997, pet. ref’d).

(After granting the State’s motion for rehearing en bane, the court withdrew its May 8, 1997 opinion and judgment in which it held that collateral estoppel did prevent the State from attempting to prove a breath test that had previously been excluded during an ALR hearing and held as follows.) The State is not barred by “collateral estoppel” from re-litigating the issue of the admissibility of the breath test. “The legislature did not intend that a decision made in a civil, administrative, remedial license suspension hearing could be used to bar the State from prosecuting drunk drivers.”

Ex Parte Elizabeth Ayers, 921 S.W.2d 438 (Tex.App.-Houston [1st Dist.] 1996, no pet.).

Judge at ALR hearings made finding of fact that there was no reasonable suspicion to support the stop of the defendant. In holding that there was no collateral estoppel, the court reasoned that probable cause determinations at ALR hearings are made on the basis of the information available at the time of the arrest and do not consider facts coming to light after the arrest, including the fact that accused refused to give a specimen. Therefore there can be no issue preclusion. Court relied heavily on the Neaves opinion.

Holmberg v. State, 931 S.W.2d 3(Tex.App. – Houston [1st Dist.] 1996, pet. ref’d).

Same holding as in the Avers case cited above. The defense argument was that the court’s reliance on Neaves as a precedent was misplaced as the new license revocation process, unlike the old one, provides for a full and fair hearing. In rejecting that argument, the court points out that the holding in Neaves was not dependent on the procedure, but rather on the fact that the “ultimate issue(s) of ultimate fact are, nevertheless different” between the two proceedings.

Ex Parte McFall, 939 S.W.2d 799 (Tex.App.-Fort Worth 1997, no pet.).

Even though at an ALR hearing the judge found that DPS did not prove by a preponderance of the evidence that there was a reasonable suspicion to stop the defendant and denied the petition to suspend her license, this did not bar the State on double jeopardy or collateral estoppel grounds from subsequently prosecuting the defendant for DWI.

Church v. State, 942 S.W.2d 139 (Tex.App.-Houston [1st Dist.] 1997, pet. ref’d).

ALR judge’s finding that DPS did not prove defendant was operating a motor vehicle and denial of motion to suspend license did not bar prosecution of DWI based on collateral estoppel.

Todd v. State, 956 S.W.2d 777 (Tex.App.-Waco 1997, pet. ref’d).

Administrative law judge’s determination of “no probable cause” in license suspension proceeding did not collaterally estop trial court from relitigating probable cause issue in criminal proceeding. Primary basis for ruling was that license suspension was not “punishment.”

E. NO DOUBLE JEOPARDY BAR TO PROSECUTING DEFENDANT FOR BOTH

  1. DWI & OWLS
    • State v. Rios, 861 S.W.2d 42 (Tex.App.-Houston [14th Dist.] 1993, pet. ref’d).
      • A defendant can be prosecuted for both OWLS and DWI when they arise from the same criminal episode without violating the rule against double jeopardy.
  2. DWI & FSRA
    • State v. Marshall, 814 S.W.2d 789 (Tex.App.-Dallas 1991) pet. ref’d).
      • A defendant can be prosecuted for both FSRA and DWI when they arise from the same criminal episode without violating the rule against double jeopardy.
  3. FELONY DWI & INTOXICATION ASSAULT
    • Rowe v. State, No. 05-02-01516-CR, 2004 WL 1050693 (Tex.App.-Dallas 2004, pet. ref’d) (not designated for publication).
      • Under the Blockburger test, defendant’s claim of double jeopardy fails. Intoxication assault differs from felony DWI in that it requires a showing that defendant caused serious bodily injury to another. Felony DWI differs from intoxication assault in that it requires proof of two prior DWI convictions.
  4. DWI & CHILD ENDANGERMENT
    • Bagby v. State, No. 2-06-052-CR, 2007 WL 704931 (Tex.App.-Fort Worth 2007, no pet.) (not designated for publication).
      • In determining there was no double jeopardy violation in prosecuting this defendant with both DWI and Endangering a Child, the Court found that the child endangerment charge permitted conviction under multiple theories that were not present in the driving while intoxicated charge. After applying the Blockburger test, the Court held that each charging instrument requires proof of an additional element that the other does not. Therefore, there has been no double jeopardy violation.
    • Ex Parte Walters, No. 2-05-290-CR, 2006 WL 1281076 (Tex.App.-Fort Worth 2006) (not designated for publication) (pet.ref’d.).
      • Because the offense of driving while intoxicated requires proof of an additional element: “in a public place” that the offense of endangering a child does not, it is not a lesser included offense of endangering a child, and the two offenses are not the same for double jeopardy purposes.
    • State v. Guzman, 182 S.W.3d 389 (Tex.App.-Austin 2005, no pet.).
      • Prosecution for child endangerment that was based on allegation that defendant drove while intoxicated with child under age 15 as passenger was not barred by prohibition against double jeopardy after defendant pled guilty to DWI. DWI did not require proof that defendant intentionally, knowingly, recklessly, or with criminal negligence placed child in imminent danger of death, injury or physical or mental impairment.
  5. FELONY DWI & INTOXICATION MANSLAUGHTER
    • Ex parte Benson, 459 S.W.3d 67 (Tex.Crim.App. 2015)Garcia v. State, No. 14-14-00387-CR, 2015 WL 2250895 (Tex.App.—Houston (14 Dist.) 2015
      • Defendant could be convicted of both Intoxication Manslaughter and Felony DWI without being in violation of DWI law as Felony DWI is not a lesser included offense of Intoxication Manslaughter.
  6. FELONY MURDER & AGGRAVATED ASSAULT
    • Stanley v. State, No. 05-14-00354-CR, 2015 WL 4572445 (Tex.App.-Dallas 2015)
      • Defendant was charged with and convicted of Felony Murder and Aggravated Assault which both arose out of the same facts where Defendant struck and killed deputy with his vehicle. As both involve the same victim, and elements of each could be considered same under imputed theory of liability and varied only by degree violates double jeopardy for him to be convicted of both so Aggravated Assault conviction is vacated.

F. OCCUPATIONAL DRIVER’S LICENSE/ALR SUSPENSIONS

State Ex Rel. Curry v. Gilfeather, 937 S.W.2d 46 (Tex.App.-Fort Worth 1996, no pet.).

County criminal court, which had no civil jurisdiction, had no authority to grant an occupational driver’s license to a defendant when the defendant had not been convicted of the DWI case from which the suspension arose and case was still pending in that court.

G. NO CONFLICT BETWEEN “DUI” AND “DWI” STATUTE

Findlay v. State, 9 S.W.3d 397 (Tex.App.-Houston [14th Dist.] 1999, no pet.)

There is no conflict between the DWI and DUI statutes and it was proper for the State to opt to prosecute under the DWI statute rather than the DUI statute even though defendant was under 21 years of age.

H. NO CONVICTION FOR BOTH INTOXICATION ASSAULT AND AGGRAVATED ASSAULT S

Burke v. State, 6 S.W.2d 312 (Tex.App.-Fort Worth 1999) vacated and remanded by 28 S.W.3d 545 (Tex.Crim.App. 2000) opinion withdrawn and substitute opinion submitted 80 S.W.3d 82 (Tex.App.-Fort Worth   2002).

Defendant was convicted upon a plea of guilty to both Aggravated Assault SB/ and Intoxication Assault. The Court of Appeals found that double jeopardy barred convictions in both cases and vacated the Aggravated Assault conviction finding that Intoxication Assault and Aggravated Assault were in “pari materia” so both convictions could not stand and further finding that Intoxication Assault being the more specific provision, would control. (The doctrine of “pari materia” states that when a general provision conflicts with a specific provision, the provisions should be construed, if possible, so that effect is given to both and if they cannot be reconciled, the specific controls. [6 S.W. 3d 312, Tex.App.-Fort Worth 1999)]).

The Court of Criminal Appeals found that provisions were not “pari materia” and that neither was controlling over the other. The Court did not disturb the holding that double jeopardy barred convictions under both charges. The State had discretion as to which offense to prosecute. Case was remanded back to Court of Appeals. [28 S. W. 3d 545 (Tex.Crim.App.2000)].

Upon remand, the Court of Appeals maintained that the Intoxication Assault conviction should stand and the Aggravated Assault conviction should be reversed by finding that the plea in the Aggravated Assault case was involuntary, remanding it for a new trial. [80 S.W.3d 82 (Tex.App.-Fort Worth 2002)]. The Court found that the issues of double jeopardy would not properly be before it unless or until the State chose to re-try the Defendant on the Aggravated Assault SBI charge.

I. EFFECT OF LOSING ONE BT THEORY AT FIRST TRIAL ON SUBSEQUENTTRIAL

Ex Parte Crenshaw, 25 S.W.3d 761 (Tex.App.-Houston [1st Dist.] 2000, pet. ref’d).

Where Court held BT results were inadmissible in the course of jury trial and then granted a mistrial. State could retry defendant for DWI and could rely on the loss of faculties theory but could not rely on the 0.10 alcohol concentration theory.

J. COLLATERAL ESTOPPEL BARS INTOXICATION MANSLAUGHTER TRIAL ON DIFFERENT INTOXICANT

Ex Parte Taylor, 101 S.W.3d 434 (Tex.Crim.App.2002).

After being acquitted of Intoxication Manslaughter where the theory of intoxication alleged was alcohol, the State tried to proceed on another case, different victim, and now adding marijuana as a possible source of intoxication. Collateral Estoppel barred State from re-litigating ultimate issue of intoxication, regardless of whether State alleged different type of intoxicant.

K. NO DOUBLE JEOPARDY WHERE FAULTY UNDERLYING DWI PRIOR ALLEGATION DENIES COURT JURISDICTION

Gallemore v. State, 312 S.W.3d 156 (Tex.App.-Fort Worth 2010).

After an open plea of guilty to felony DWI and at a later punishment hearing, the defense pointed out that one of the underlying DWI’s that was alleged to make the charge a felony was a subsequent not a previous conviction. The defense asked to be sentenced for the misdemeanor DWI. The Court instead granted a mistrial after stating it had no jurisdiction in the case. The State then re­-indicted and replaced the defective prior with a good one. The defense filed a writ stating that double jeopardy had attached in the former proceeding. The Court of Appeals held that double jeopardy principles do not forbid multiple trials of a single criminal charge if the first trial resulted in a mistrial that:

  1. was justified under the manifest necessity doctrine; or
  2. was requested or consented to by the defense, absent prosecutorial misconduct which forced the mistrial.

This case fell under “manifest necessity” because the trial court did not have jurisdiction.