Description: In the order granting Waters’s application for writ of habeas corpus, the
trial court set forth the following findings of fact and conclusions of law, which are
not challenged on appeal:
1. On December 23, 2015, the Wichita County District Attorney’s Office, hereinafter DAO, filed a motion to revoke community supervision in cause number 62,988-F, styled The State of Texas v. Amanda Louise Waters, which contained an allegation that Defendant had violated term 1 of her community supervision by committing a new offense.
2. Specifically, the DAO alleged that on or about October 31, 2015, in Wichita County, Texas, Waters operated a motor vehicle in a public place while intoxicated.
3. On February 18, 2016, the Court called cause number 62,998-F for a hearing on the DAO’s motion to revoke Defendant’s community supervision.
4. The DAO called only one witness, community supervision officer Garon Jetton, to testify at the hearing.
5. Officer Jetton had no personal knowledge of the DWI alleged to have been committed by Defendant in the DAO’s motion to revoke community supervision.
6. Jetton was only able to testify that Waters had been arrested for DWI.
7. The Court has previously found that the DAO’s allegation that Waters had committed a DWI in Wichita County, Texas, on October 31, 2015, the alleged violation of Term One, to be “not true”
3To the extent the State has attached items to its brief that are not included in the appellate record before us, we cannot consider them. See, e.g., Rasberry v. State, 535 S.W.2d 871, 873 (Tex. Crim. App. 1976) (explaining court could not consider documents attached to brief but not included in appellate record).
based on the State’s failure to prove its case by a preponderance of the evidence at the hearing on February 18, 2016.
III. TARVER REMAINS GOOD LAW; COLLATERAL ESTOPPEL BARS THE STATE FROM PROSECUTING WATERS FOR THE OCTOBER 31, 2015 DWI
Tarver holds that when an issue of ultimate fact has been found adversely
to the State in a valid and final judgment between the same parties, then the
doctrine of collateral estoppel bars relitigation of that issue. Id. at 198, 200. In
Tarver, a motion to revoke probation alleged commission of a new offense as a
probation violation, asserting that Tarver did “unlawfully, intentionally[,] and
knowingly cause bodily injury to Anthony D. Appolito, hereafter styled the
Complainant, by striking the Complainant with his fist and kicking the
Complainant with his feet.” Id. at 198. At the probation revocation hearing, the
district court found this alleged probation violation to be “not true.” Id. The State
subsequently filed an information in the county criminal court at law charging
Tarver with assault using “the identical language” alleged in the motion to revoke.
Id. After determining that the probation revocation decision of the district court
was a final judgment, the court of criminal appeals held, “[T]he issue of whether
[Tarver] committed the particular assault alleged in the information has been
found adversely to the State, and the doctrine of collateral estoppel bars
relitigating that issue in the county criminal court at law prosecution.” Id. at 199,
Relying on the dissenting opinion in Ex parte Doan, 369 S.W.3d 205, 215
(Tex. Crim. App. 2012) (Keller, P.J., dissenting), the State contends that the
Texas Court of Criminal Appeals has implicitly overruled Tarver. The majority
opinion in Doan, responding to the dissenting opinion, expressly stated in a
footnote that it was not overruling Tarver: “The dissent states that we are
‘overrul[ing], sub silentio, the holding in Ex parte Tarver . . . . We are not
overruling Tarver.” Id. at 212 n.33. The State has not cited, and we have not
located, any case from the Texas Court of Criminal Appeals or the United States
Supreme Court overruling Tarver.4 Tarver therefore remains good law, and we
are bound to apply it to the present facts. See Tex. Const. art. V, § 5(a)
(providing that Texas Court of Criminal Appeals is final authority for interpreting
criminal law in Texas).
Here, the charged allegation that the State now seeks to prove—that
Waters committed DWI on or about October 31, 2015, in Wichita County—has
already been resolved adversely to the State in a final judgment from a probation
revocation hearing. That hearing was before a county court at law judge acting
as the finder of fact, and the trial court found the allegation to be “not true.”
Because the State is now attempting to relitigate with the same parties the same 4The State asserts that two Fifth Circuit cases have held that the “United States Constitution’s federal collateral estoppel [does] not preclude a trial on the new offense” following a finding at a revocation hearing that the new offense was not true. We have reviewed the cases cited by the State, and they do not criticize or explicitly overrule Tarver. And the holdings of the Fifth Circuit, in any event, are not binding on the Texas Court of Criminal Appeals or this court. See Stewart v. State, 686 S.W.2d 118, 121 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 866 (1985); see, e.g., Lopez v. State, 860 S.W.2d 938, 943 (Tex. App.— San Antonio 1993, no pet.).
fact issue that was already resolved adversely to the State––whether Waters
committed DWI on or about October 31, 2015, in Wichita County––the doctrine of
collateral estoppel applies to bar such a relitigation. See, e.g., Tarver, 725
S.W.2d at 198, 200.
We overrule the State’s sole issue.5