State of Texas v. Stevens, Cory A. ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-0226-06

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THE STATE OF TEXAS

v.

CORY A. STEVENS, Appellee

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ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS BRAZORIA COUNTY

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   Cochran, J., filed a concurring opinion in which Keasler and Hervey, JJ., joined.

O P I N I O N

I agree with the majority opinion as far as it goes. But it might appear to be based upon the premise that the doctrine of collateral estoppel applies to a finding of probable cause on a pretrial motion to suppress evidence. That is a premise that I do not necessarily accept. And it is a threshold issue that this Court specifically declined to answer in Guajardo v. State, ⁽¹⁾ although the State had raised the question in its petition for discretionary review. ⁽²⁾ Four members of this Court stated or suggested, in Guajardo, that collateral estoppel does not apply to pretrial rulings made in a motion to suppress evidence. ⁽³⁾ Justice Fowler, in her dissenting opinion in this case, noted these concurring opinions as well as two court of appeals's decisions which had held that collateral estoppel does not apply in this context. ⁽⁴⁾ Even the majority opinion in the court of appeals stated that the "collateral estoppel ruling by the trial court is questionable," and noted that "[i]n addition to other considerations, such as that the suppression ruling in the DWI case was not a final judgment on the merits and that jeopardy had not attached in that case, that ruling did not reflect a finding of any particular fact." ⁽⁵⁾

Although the court of appeals is certainly free to decide the present case on narrower grounds than the question of whether collateral estoppel applies to a finding of probable cause on a pretrial ruling on a motion to suppress, I do not read the Court's opinion as holding (or even suggesting) that collateral estoppel does, in fact, apply to such pretrial rulings.

With this caveat, I join the Court's opinion.

Filed: October 3, 2007

Publish

1. 109 S.W.3d 456 (Tex. Crim. App. 2003).

2.

Id. at 457, n.1. In Guajardo, we granted the State's six grounds for review, but, because the case could be resolved based solely on the first ground-a defendant may not obtain appellate review of his collateral estoppel claim, when the trial court rejected that claim, if he fails to introduce a record of the first proceeding in the second proceeding and to include that record on appeal-we dismissed the State's other grounds as unnecessary to the disposition of the case. Id. at 459. Grounds three through five in Guajardo directly posed the question of whether collateral estoppel applies to a pretrial suppression ruling:

3) Is a pretrial ruling on reasonable suspicion to stop, or probable cause to arrest, a ruling regarding an ultimate fact, or merely, as other courts have held, a ruling on the admissibility of evidence which cannot serve as the basis of a collateral estoppel bar to relitigation of that issue in another court on another case?

4) Does jeopardy attach in a pretrial hearing on a motion to suppress and is a pretrial ruling on reasonable suspicion to stop, or probable cause to arrest, on a case that is subsequently dismissed, a final judgment, or merely, as other courts have held, a ruling on the admissibility of evidence which cannot serve as the basis of a collateral estoppel bar to relitigation of that issue in another court on another case?

5) Is there a due process basis, independent of the double jeopardy clause, for application of collateral estoppel, and if so, does it apply where the first proceeding did not end in a final judgment?

Id. at 457, n.1.

3.

Id. at 463 (Meyers, J., concurring) ("Because dismissal before jeopardy attaches does not qualify as a 'final disposition' of any factual question, collateral estoppel is not applicable."); Id. at 467 (Hervey, J., joined by Keasler, J., concurring) ("An evidentiary ruling on a motion to suppress is not a ruling on an issue of ultimate fact or law in the cocaine case. This evidentiary ruling also is not a final judgment.") (citation omitted); and id at 469 (Hervey, J., joined by Keller, P.J., and Keasler, J., concurring) ("I would hold that collateral estoppel principles do not apply to criminal cases beyond Ashe's double jeopardy context.").

4.

State v. Stevens, 187 S.W.3d 565, 569 (Tex. App.-Houston [14^th Dist.] 2006) (Fowler, J., dissenting) (citing State v. Rodriguez, 11 S.W.3d 314 (Tex. App.-Eastland 1999, no pet.); State v. Henry, 25 S.W.3d 260 (Tex. App.-San Antonio 2000, no pet.)).

5.

Id. at 567 & n.4.