Ex Parte: Chad Todd

Todd TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-96-00206-CR Ex Parte: Chad Todd, Appellant FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT NO. 95-4764, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING Appellant filed application for writ of habeas corpus alleging that the double jeopardy provision of the Texas Constitution barred his prosecution for indecency with a child by contact. See Tex. Const. art. I, § 14; See Tex. Penal Code § 21.11 (West 1994). The trial court denied the relief requested. We will affirm the trial court's order. On October 17, 1995, appellant was charged with indecency with a child by contact. At the time of the indictment, appellant was on parole for the offenses of burglary of a habitation and bail jumping. The parole board sought to revoke appellant's parole based on the indecency with a child charge. At the parole revocation hearing, the hearing examiner determined that there was insufficient evidence to revoke appellant's parole on the basis of the indecency charge because the alleged victim failed to appear at the hearing. (1) The hearing examiner entered the following fact finding: Regarding Rule #2 (INDECENCY WITH A CHILD), I find there is insufficient evidence to prove that RELEASEE on or about July 1995, at or about Austin, Travis County, Texas engaged in sexual contact with J.C, a child younger than seventeen years of age and not his spouse; based on lack of testimony or witnesses, subpoenaed witness, M.R.[the mother], failed to bring her daughters J.C. and C.C., as indicated in her subpoena. RELEASEE declined to testify. In his sole point of error, appellant contends that further prosecution of the indecency charge will violate the double jeopardy protection granted by the state constitution. See Tex. Const. art. I, § 14. Appellant contends that the Texas double jeopardy protections expand beyond those afforded by the federal Double Jeopardy Clause. The Court of Criminal Appeals has held that the state and federal double jeopardy provisions are "conceptually identical." Stephens v. State, 806 S.W.2d 812, 814-15 (Tex. Crim. App. 1990). This Court, accordingly, has declined to expand Texas double jeopardy protections beyond those afforded by the federal double jeopardy guarantee. See Lozano v. State, 860 S.W.2d 152, 154 n.3 (Tex. App.--Austin 1993, pet. ref'd). We will therefore consider appellant's claim based on a reading of the state provision in accordance with the federal provision. The double jeopardy provisions in both the Texas and United States Constitutions provide that no person shall be twice put in jeopardy of life and limb. U.S. Const. amends. V & XIV; Tex. Const. art. I, § 14. This prohibits a second punishment for the same offense or a second trial for the same offense. Chambers v. State, 700 S.W.2d 597, 598 (Tex. Crim. App. 1985). The fact that appellant was put at risk of parole revocation, and now faces prosecution for that same act, does not mean that he has been subject to multiple prosecutions for the same offense. See Ex parte Tarver, 725 S.W.2d 195, 197 (Tex. Crim. App. 1986). In Tarver, the court found that a probation revocation hearing, resulting in a denial of the motion to revoke, did not bar prosecution for the offense alleged in the motion to revoke. If probation had been revoked, the defendant's punishment would have been for the originally-charged offense. Tarver, 725 S.W.2d at 196-97. The facts in the present case are remarkably similar. If the parole board had revoked appellant's parole on the basis of the indecency allegation, the punishment he received would have flowed from the offense for which he was originally charged and subsequently paroled, burglary of habitation and bail jumping. In the district court, appellant faces the risk of being punished for the subsequent offense of indecency with a child by contact. He is not, therefore, being twice placed in jeopardy for the same offense. Basic double jeopardy protections would not be violated by subjecting appellant to prosecution for this allegation. Because the constitutional protection against double jeopardy encompasses the doctrine of collateral estoppel, we must consider appellant's claims as they relate to this doctrine. See Ashe v. Swinson, 397 U.S. 436, 442-43 (1970). The Supreme Court has stated that the doctrine of collateral estoppel "means simply that when an issue of ultimate fact has been determined by a valid and final judgment that issue cannot again be litigated between the same parties in any future lawsuit." Id. at 443. The present case is analogous to Ex parte Daniel, 781 S.W.2d 412, 414 (Tex. App.--Houston [1st Dist.] 1989, pet. ref'd), as it relates to the doctrine of collateral estoppel. In that case, the court concluded that the State was not collaterally estopped from prosecuting the defendant on a charge that had been used to determine whether the defendant's parole should be revoked. Id. The hearing examiner at the revocation hearing determined that there was insufficient evidence to support revocation because a witness failed to appear at the hearing. For this and other reasons, the court held that the hearing examiner's finding of insufficient evidence was not a finding of an "ultimate issue of fact" determined in a "valid and final judgment." Accordingly, it did not collaterally estop future criminal prosecution. Id. at 415. In the present case, the hearing officer found the evidence insufficient solely because a subpoenaed witness failed to appear and testify. The finding was not based on the credibility of the witnesses or weight of their testimony. In fact, the language in the finding of fact at the parole hearing in the present case is nearly identical to that in Daniel. Id. at 413. The determination by the hearing examiner of insufficient evidence, on the record, was not a finding of an ultimate fact issue. Therefore, it does not collaterally estop the State from prosecuting the appellant on this charge. We hold that the Texas double jeopardy provision, interpreted coextensively with the federal provision, does not bar the State from prosecuting the appellant on the indecency with a child by contact charge. Accordingly, we affirm the trial court's order denying the relief requested by appellant. Bea Ann Smith, Justice Before Justices Powers, Jones and B. A. Smith Affirmed Filed: June 12, 1996 Do Not Publish 1. Appellant's parole was revoked on the basis of a separate misdemeanor charge of assault. eral provision. The double jeopardy provisions in both the Texas and United States Constitutions provide that no person shall be twice put in jeopardy of life and limb. U.S. Const. amends. V & XIV; Tex. Const. art. I, § 14. This prohibits a second punishment for the same offense or a second trial for the same offense. Chambers v. State, 700 S.W.2d 597, 598 (Tex. Crim. App. 1985). The fact that appellant was put at risk of parole revocation, and now faces prosecution for that same act, does not mean that he has been subject to multiple prosecutions for the same offense. See Ex parte Tarver, 725 S.W.2d 195, 197 (Tex. Crim. App. 1986). In Tarver, the court found that a probation revocation hearing, resulting in a d