Felipe G. Vargas, Jr. v. State

NO. 07-07-0033-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL E JANUARY 29, 2009 ______________________________ FELIPE G. VARGAS, JR., APPELLANT v. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2005-411108; HON. BRADLEY S. UNDERWOOD, PRESIDING _______________________________ Before CAMPBELL and PIRTLE, JJ., and BOYD, S.J.  MEMORANDUM OPINION            In this appeal, and in one issue, appellant Felipe G. Vargas, Jr., contends that his conviction of aggravated sexual assault after a plea of guilty, and the resulting sentence of fifteen years confinement in the Institutional Division of the Texas Department of Criminal Justice must be reversed and the prosecution dismissed. Disagreeing that reversal is required, we affirm the judgment of the trial court.           In his issue, appellant contends that the Lubbock County District Attorney was collaterally estopped from proceeding with the underlying prosecution. That contention requires us to recount the background history leading up to the plea of guilty. On July 6, 2004, appellant was convicted of aggravated assault and was placed on probation for a period of ten years. Subsequently, on January 10, 2006, his probation was revoked and he was ordered to serve the ten-year sentence and, in addition, to pay a fine of $2,000.           In paragraphs (1) through (1e) of the application to revoke probation, the incidents leading to the instant guilty plea were alleged with numerous other grounds, as bases for revocation. However, in the judgment revoking probation, although it specifically found the other allegations to be true, the court made no findings in connection with the allegations contained in paragraphs (1) through (1e). Discussion           In the seminal case of Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970), collateral estoppel was defined to mean “when 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.” In the criminal law context, collateral estoppel is a right protected by the Fifth Amendment to the Federal Constitution and is applicable to the individual states. State v. Smiley, 943 S.W.2d 156, 161 (Tex. App.–Amarillo 1997, no pet.) (Boyd, J., dissenting). The doctrine is not to be applied hypertechnically, but requires that the reviewing court examine the record to determine what issues have been foreclosed between the parties. Ex parte Tarver, 725 S.W.2d 195, 198 (Tex. Crim. App. 1986). In performing our task here, we must first inquire what facts were necessarily determined in the first proceeding, and, second, whether in the guilty plea under review here, the State has tried to re-litigate facts necessarily established in the revocation proceeding. Ex parte Culver, 932 S.W.2d 207, 212 (Tex. App.–El Paso 1996, pet. ref’d). Facts established in the first proceeding may not be used in the second proceeding either as ultimate or evidentiary facts. Id. This rule is applicable regardless whether the proceeding reviewed was a formal criminal trial or, as here, a motion to revoke probation. See Ex parte Tarver, 725 S.W.2d at 198-99.           Before collateral estoppel is applicable, there must be a fact finding that illustrates the basis for the court’s decision. Wafer v. State, 58 S.W.3d 138, 141 (Tex. App.–Amarillo 2001, no pet.). Thus, in this case, we must determine if a fact issue necessary to the instant prosecution has already been determined in a valid and final judgment between the same parties, that is, whether the State is now trying to relitigate that same fact issue. Ex parte Tarver, 725 S.W.2d at 199.           In a revocation proceeding, the State must prove by a preponderance of the evidence that the probationer violated a condition of community supervision as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). Proof of any one alleged violation is sufficient to support an order revoking community supervision. O’Neal v. State, 623 S.W.2d 660, 661 (Tex. Crim. App. 1981). In such a proceeding, the determinative question is whether the individual under supervision violated one or more terms of his supervision and is not whether an individual is guilty beyond a reasonable doubt of any offense alleged in the motion to revoke. Kelly v. State, 483 S.W.2d 467, 469-470 (Tex. Crim. App. 1972); Duke v. State, 2 S.W.3d 512, 516 (Tex. App.–San Antonio 1999, no pet.).           At the revocation hearing with which we are concerned, the State presented evidence of various technical violations of appellant’s community supervision and did present some limited evidence of a sexual assault committed upon K.K., a child under the age of fourteen and the child involved in the guilty plea conviction with which we are concerned here. Those allegations were contained in paragraphs (1) through (1e) of the State’s amended application to revoke community supervision. At the close of the revocation hearing, the trial court ruled upon the allegations in the State’s motion. With regard to the allegations concerning any assaults upon the child in question here, the defense attorney asked, “. . . just for verification, you did not make a finding of true, then, on any of the 1 allegations [those concerning K.K.], is that correct?” The trial judge specifically iterated, “I found that, beginning with 2 and going through 4(h), including everything between 2 and 4(h), that the allegations were true by a preponderance of the evidence and beyond a reasonable doubt.”           Our examination of the record demonstrates that appellant has not shown the elements requisite to a collateral estoppel of these proceedings. Specifically, there is nothing in the record to show the revocation judge considered the facts relating to the sexual assault at all. Indeed, the judge specifically refrained from making a finding as to those allegations. Thus, no fact issue as to the sexual assault was determined, either in the State’s favor or against it, and the decision to revoke appellant’s community supervision clearly was not predicated upon the sexual assault allegations.           Accordingly, appellant’s sole issue on appeal is overruled, and the trial court’s judgment is affirmed.                                                                             John T. Boyd                                                                           Senior Justice Do not publish. nt 6"/> NO. 07-10-0411-CR                                                    IN THE COURT OF APPEALS                                        FOR THE SEVENTH DISTRICT OF TEXAS                                                                  AT AMARILLO                                                                       PANEL B                                                                   MAY 26, 2011                                            ______________________________                                                          NANCY LYNN TYREE,                                                                                                             Appellant                                                                              v.                                                         THE STATE OF TEXAS,                                                                                                             Appellee _______________________________                       FROM THE 371st DISTRICT COURT OF TARRANT COUNTY;                            NO. 1189902D; HON. MOLLEE WESTFALL, PRESIDING                                           _______________________________                                                                                                                                 On Abatement and Remand                                           _______________________________  Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.            Nancy Lynn Tyree, appellant, appeals her conviction for the offense of possession of marijuana of 2,000 pounds or less but more than fifty pounds. Appellant timely perfected this appeal by filing a notice of appeal on September 10, 2010. The clerk’s record was filed on December 27, 2010, and the reporter’s record on January 24, 2011. Therefore, appellant’s brief was due to be filed by February 23, 2011. No brief or extension motion was filed by that date. On March 4, 2011, the court sent a letter to counsel for appellant notifying her that the brief was overdue and that it or a response was due on March 14, 2011. On March 11, 2011, counsel for appellant filed a motion to extend time to file appellant’s brief, which was granted to April 11, 2011. On April 14, 2011, counsel for appellant filed a second extension motion, which was granted to May 11, 2011. Rather than comply with that deadline, counsel not only allowed it to lapse but also filed a third belated motion requesting another extension which we received on May 24, 2011. We are now told that an additional sixty to ninety days are needed because she is too busy to perform her duties as a legal advocate for her client within the timetable we specified. Consequently, we abate the appeal and remand the cause to the 371st District Court of Tarrant County (trial court) for further proceedings. Upon remand, the trial court shall undertake those proceedings necessary to determine 1) whether appellant desires to prosecute the appeal, 2) whether appellant is indigent and entitled to appointed counsel, and 3) whether appellant’s current attorney was appointed to represent appellant on appeal. Should the answers to those questions be in the affirmative, then the trial court shall remove appellant’s current legal counsel and appoint another to zealously represent appellant. When new counsel is appointed, the name, address, telephone number, and state bar number of said counsel shall be included in the order appointing new counsel. If any of the answers to the foregoing issues are “no,” the trial court shall so specify in a separate order to be forwarded to this court. Finally, we respectfully direct the trial court to perform the directives in this order by June 24, 2011. Should further time be needed to do so, then it must be requested before June 24, 2011. We understand that circumstances sometimes prevent individuals from performing their obligations within specified deadlines. For this reason, many courts, including this one, readily extend those deadlines. Experience has shown that some take advantage of that, though. And, others have come to simply relegate their appellate duties to a lower priority on their ladder of tasks. Yet, courts of all levels are entitled to respect, and little is as disrespectful as suggesting to one court (like counsel does at bar) that its business is not as important as another’s. If counsel has too many jobs to perform his or her obligations in a timely manner, then he or she would best serve his or her clients (and the court) by relinquishing some of those jobs to others. We no longer want to be told that “I am too busy with other stuff to do what you want.”                                                                                      Per Curiam Publish.