State v. Cory A. Stevens ( 2006 )

Affirmed and Majority and Dissenting Opinions filed January 12, 2006

Affirmed and Majority and Dissenting Opinions filed January 12, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00129-CR

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THE STATE OF TEXAS, Appellant

V.

CORY A. STEVENS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 28,108

D I S S E N T I N G   O P I N I O N

In this case, the trial judge, based upon an erroneous reading and application of the law of collateral estoppel, decided he could not consider anew evidence on a motion to suppress.  The entire record from the proceeding in Brazoria county, including the judge=s written order, completely revolve around collateral estoppel. Although we may affirm on any ground supported by the record, because the judge entered conclusions of law and because the record supports no other legal basis upon which to affirm, I believe we should reverse and remand for a hearing to determine whether or not the motion should be granted based upon an evaluation of the evidence presented, not collateral estoppel.  Accordingly, I respectfully dissent.

I.        The Record Supports Only One Theory

The judge in Brazoria county held two hearings on the motion to suppress.  At both, the sole issue was whether or not collateral estoppel precluded his review of the State=s evidence regarding whether or not the initial DWI stop in Tom Green County was permissible.  At the second hearingCafter ordering and reviewing the entire record from Tom Green CountyCthe judge ruled to suppress all evidence from the DWI stop. He did not, however, review the record to determine any historical facts, make credibility determinations, or in any way evaluate the evidence.  Rather, he stated on the record,

Being quite specific and quite narrow, all my ruling does is it shows that all the facts were considered by the Court and pretty clear on the record that all the facts were considered concerning whether or not there was reasonable suspicion to stop and - - or probable cause.  Those issues, all the facts underlying those, were thoroughly litigated and the Court made - - inferentially it=s clear that he did consider all those facts and that=s all in my opinion that it foreclosed - - it=s a rare situation that you would have all that; but in that situation, the State came up with no independent - - and it was case determinative. It was the ultimate issue of fact in the case.  It wasn=t - - didn=t go to some of the proof on an issue, but it was the ultimate issue on a key issue without which you can=t get there from here on a proof of a DWI.  

At no time did the judge state he personally evaluated the testimony to determine whether or not the State had, in his own mind, proved reasonable suspicion.  He simply believed the Tom Green County judge decided an ultimate fact issue adversely to the State. 

But, the Tom Green County judge entered no findings of fact or conclusions of law.  Indeed, reading the transcript, one would have to Ainferentially@ conclude on what basis the Tom Green County judge based his ruling.  It is unclear whether the Tom Green County judge ruled based upon a determination of credibility, or whether he believed the testimony and determined that, as a matter of law, there was no reasonable suspicion.  Yet the judge in this case applied collateral estoppel based upon an Aultimate issue of fact@ when it is unclear what that ultimate issue of fact is and whether or not the Tom Green County judge found that fact adversely to the State.

In addition to the hearing transcript, the judge=s order referenced only collateral estoppel as a basis for his ruling.  Although he stated he considered the record from Tom Green County, he emphasized that his only conclusion was the following:

[T]hat all facts regarding the unlawful DWI arrest and detention of defendant, Cory A. Stevens, have been decided by the County Court of Tom Green County, Texas, were fully adjudicated as to factual findings resulting in Defendant=s arrest, and were adjudicated in favor of Defendant, and thus, under the doctrine of collateral estoppel and in accordance with Guajardo v. State^[1] the Motion to Suppress all evidence from Tom Green County should be GRANTED.  

No other testimony, questioning, or argument contradicts these statements. Stated differently, the record wholly lacks any indication that the judge in this case made an independent determination of reasonable suspicion.  He never said that he found any testimony credible or not credible. He never said that he agreed with the Tom Green County judge=s resolution of the issue.  He simply stated, narrowly and specifically, that he considered himself bound by the implicit ruling from the Tom Green County judge.  As such, we must consider whether or not the judge in this case was correct in considering himself bound.

II.       The Judge Erred in His Application of Collateral Estoppel

As an initial matter, I do not believe we must squarely decide whether or not collateral estoppel may apply in this context when there is no final judgment and no issue of double jeopardy.  Other courts of appeals in this State have addressed that question and answered it in the negative.  See State v. Rodriguez, 11 S.W.3d 314 (Tex. App.CEastland 1999); State v. Henry, 25 S.W.3d 260 (Tex. App.CSan Antonio 2000).  At least four judges of the Texas Court of Criminal Appeals agree with that assessment. Guajardo v. State, 109 S.W.3d 456, 462B63, 468B69 (Tex. Crim. App. 2003) (Meyers, J. and Hervy, J. concurring) (Presiding Judge Keller and Judge Keasler also joined Judge Hervey=s concurrence).  However, we need not reach that question because there is not enough in the Tom Green County record to support a ruling of collateral estoppel even if it did apply. 

To find collateral estoppel applies, a trial court must find that the verdict^[2] necessarily was grounded upon an issue which a defendant seeks to foreclose from litigation.  Guajardo v. State, 109 S.W.3d at 462 n. 16. It is not enough that another court possibly determined an issue adversely to the State.  Id.  Yet, that is precisely how the judge in this case based his rulingCon an inference, a possibility.  In this case, the Tom Green County judge heard all of the evidence, took the matter under advisement, and issued a short order with no explanation for his reasoning. Additionally, during the hearing, he indicated that he might believe the officer, yet not find that the evidence legally amounted to reasonable suspicion.  The Tom Green County judge=s determination could just as easily have been based on a legal determination as a credibility determination.  Without a clear statement either in the Tom Green County record or the order, the basis for that ruling is ambiguous at best.   Collateral estoppel requires more than an ambiguity, it requires certainty.  This record simply cannot support the trial judge=s application of collateral estoppel.

Whether or not collateral estoppel should apply in the context of a motion to suppress, our result should be the same: reverse and remand for a new hearing where the judge makes an independent finding.  Of course, I would not mandate what evidence he could consider and use to reach his conclusion, but his review must be independent.  Without any findings of fact or conclusions of law from Tom Green County, the judge in this case was correct when he said he was inferring what happened in the other court.  But inferences are not enoughCthey are mere possibility.  Collateral estoppel requires more; it requires the result necessarily to be grounded upon that issue the defendant seeks to foreclose from litigation.  That standard simply cannot be met here.

Conclusion

Because the record cannot support the judge=s ruling on collateral estoppel, or on any other basis, I respectfully dissent.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Majority and Dissenting Opinions filed January 12, 2006.

Panel consists of Justices Fowler, Edelman, and Guzman. (Edelman, J. majority)

Publish C Tex. R. App. P. 47.2(b).

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^[1]  Guajardo v. State, 109 S.W.3d 456 (Tex. Crim. App. 2003). 

^[2]  This is the term used in the line of cases cited in the Court=s footnote.  The term is appropriate given that courts traditionally, as the Henry and Rodriguez courts explain, apply collateral estoppel to final rulings.