Talie Michael Campos v. State

In The

Court of Appeals

Ninth District of Texas at Beaumont ________________

NO. 09-08-00158-CR _____________________

TALIE MICHAEL CAMPOS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 04-07-05408 CR

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MEMORANDUM OPINION

Pursuant to a plea bargain agreement, appellant Talie Michael Campos pled guilty to sexual assault of a child. See Tex. Pen. Code Ann. § 22.011(a)(2)(A) (Vernon Supp. 2008). ⁽¹⁾ The trial court found the evidence sufficient to find Campos guilty, but deferred further proceedings, placed Campos on community supervision for seven years, and assessed a fine of $1,000. The State subsequently filed a motion and amended motions to revoke Campos's community supervision. The trial court found the alleged violations "true," adjudicated guilt and assessed punishment at confinement for ten years.

Paragraph number one of the State's second amended motion to revoke alleged that Campos "committed an offense against the laws of the State of Texas, to-wit: On or about October 3, 2007 in Harris County, [Campos] committed the offense of Engaging in Criminal Activity." Although the trial court initially found the allegation in paragraph number one "true," the trial court heard Campos's motion for new trial, reformed the judgment to change the finding to "not true," and granted Campos a new punishment hearing. Campos then waived a new punishment hearing and asked the trial court to consider the evidence already presented. The trial court found Campos violated other conditions of his community supervision, found Campos guilty of sexual assault of a child, and assessed punishment at confinement for ten years.

In issue one, Campos contends that the doctrines of double jeopardy and collateral estoppel barred the State's attempt to re-litigate the allegation in paragraph number one after the trial court found the allegation "not true." The State had informed the trial court that it intended to introduce evidence at the new punishment hearing regarding the allegation in paragraph number one, and intended to ask the trial court to assess Campos's punishment at greater than ten years of confinement. However, the State subsequently withdrew all objections, and did not present evidence in support of the allegation in paragraph number one.

The doctrines of collateral estoppel and double jeopardy are different doctrines, but neither is applicable here. See generally State v. Nash, 817 S.W.2d 837, 840 (Tex. App.--Amarillo 1991, pet. ref'd) (distinction between double jeopardy and collateral estoppel). The issue appellant complains of was not re-tried. The State's initial intentions did not materialize. Furthermore, an order that the defendant did not commit the violation charged in a motion to revoke generally will not bar a subsequent motion to revoke. See Ex parte Tarver, 725 S.W.2d 195, 200 (Tex. Crim. App. 1986); Bass v. State, 501 S.W.2d 643, 644 (Tex. Crim. App. 1973). While the Court in Tarver held principles of collateral estoppel applied in the particular circumstances at issue in that case, here no final judgment had yet determined the issue, and there is no indication the trial court based its final judgment, in which it adjudicated guilt and assessed punishment, on an allegation it found "not true." Appellant was successful in having the finding changed. Both parties informed the trial court they had no objection to the trial court's reformation of the judgment to find the allegation in paragraph number one "not true." The doctrines of collateral estoppel and double jeopardy are not relevant to the proceedings of this case. Issue one is overruled.

In his second issue, Campos maintains that when the trial court granted his motion for new hearing, he should have received a new adjudication hearing in addition to a new punishment hearing. Although appellant initially requested a new adjudication hearing, after considerable discussion of the issue between the parties and the trial judge, the trial court asked whether the parties had any objection to the court finding that paragraph one was not true based on the evidence before the court. Both the State and the defendant responded that they had no objection.

After the trial court decided to reform its judgment and to find the allegation in paragraph number one "not true," Campos advised the trial Court "that he's presented all the evidence the Court needs to consider at this time." In argument to the trial court, defendant's counsel explained that "Rather than put the State to its proof, which he had every right to do, and force witnesses to take the stand, and cause an inordinate amount of difficulty on the State's part, he has decided to [forgo] that option." Defendant's counsel argued "the allegation that was originally found true and now has been abandoned, that evidence is no longer available[.]"

Appellant received the relief he requested of the trial court by obtaining the finding of "not true" to paragraph number one. His counsel then argued there remained only "technical violations" resulting in the revocation, and argued that factor should be considered in assessing punishment. The trial court adjudicated appellant guilty and assessed punishment. It appears appellant decided for tactical reasons to opt for the procedure followed by the trial court, and any error in the procedure followed was waived. Tex. R. App. P. 33.1. Issue two is overruled.

We affirm the trial court's judgment.

AFFIRMED.

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DAVID GAULTNEY

Justice

Submitted on April 23, 2009

Opinion Delivered May 27, 2009

Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.

1. Because pertinent provisions of section 22.011 have not substantively changed since 2004, we cite to the current version. See Tex. Pen. Code Ann. § 22.011(a)(2)(A).