Opinion issued August 29, 2024

In The

Court of Appeals 

For The

First District of Texas 

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NOS. 01-23-00728-CR & 01-23-00729-CR

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EX PARTE COREY DAVISON

______________________

THE STATE OF TEXAS, Appellant

V.

COREY DAVISON, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Case Nos. 1822734 & 1764779

MEMORANDUM OPINION

In these two causes arising from a single hearing, the State of Texas appeals 

the trial court’s order granting appellee Corey Davison’s application for writ of 

habeas corpus in cause number 1822734 and its order dismissing the indictment in 
2

cause number 1764779. In its sole point of error, the State contends that the trial 

court abused its discretion in granting the application and dismissing the indictment 

against Davison based on a legal theory explicitly rejected by the Texas Court of 

Criminal Appeals. We reverse. 

Background

A detailed recitation of the procedural history in this case is necessary to our 

discussion of the appeal.

On February 8, 2019, Davison was indicted for continuous sexual abuse of a 

child in cause number 1620992. The indictment alleged that Davison committed at 

least two acts of sexual abuse against N.W., a child younger than fourteen years of 

age, between July 16, 2016 and January 26, 2017. At the time of the indictment, 

Davison was on deferred adjudication community supervision for aggravated assault 

of a family member in cause number 1541644.1

The State moved to adjudicate Davison’s guilt in the aggravated assault case. 

On August 4, 2020, the State filed a “3rd Amended Motion to Adjudicate Guilt.”

The motion alleged several new law violations, most of which were sexual offenses 

against the complainant, N.S.W., alleged in cause number 1620992.

On March 3, 2020, while the motion to adjudicate in cause number 1541644 

was pending, the State moved to dismiss the charge of continuous sexual abuse 

1 Davison pleaded guilty to the charged offense in 2018.
3

against Davison in cause number 1620992. The motion to dismiss stated that the 

complainant’s mother was “not cooperative at this time” but that the case was subject 

to refiling, and it included a notation to use the new law violation in the motion to 

adjudicate hearing.

The trial court held a hearing on the State’s motion to adjudicate guilt in 

October 2020. At the conclusion of the hearing, the trial court found all allegations 

in the motion to adjudicate guilt “not true,” including the allegations of sexual abuse 

against the complainant, and it reinstated Davison’s deferred adjudication 

community supervision.

On March 31, 2022, the State re-indicted Davison for continuous sexual abuse 

of a child, N.S.W., in cause number 1764779. The dates of alleged abuse in the 

refiled indictment were the same as the previous indictment, July 16, 2016 through 

January 26, 2017, but the complainant was now referred to as N.S.W. instead of just 

N.W. 2

On June 6, 2023, Davison filed an application for writ of habeas corpus 

seeking to prevent the State from proceeding on the charge of continuous sexual 

abuse of child in cause number 1764779 under the theory of collateral estoppel. He 

argued that the offenses alleged in cause number 1764779 and cause number 

2 The record reflects that N.W. in cause number 1620992 and N.S.W. in cause number 

176477 are the same complainant.
4

1620992 were identical—alleging the same complainant (“N.W.” and “N.S.W.”) 

and the same time frame (July 16, 2016 through January 26, 2017). He asserted that 

the evidence regarding the offense for which he was indicted in cause number 

1620992 and now indicted in cause number 1764779 had already been presented for 

the court’s consideration in the State’s 3rd Amended Motion to Adjudicate heard in 

October 2020, and the trial court found the allegations “not true.” He argued that the 

State’s decision to not try him for the continuous sexual abuse offense but to instead 

proceed on it at the motion to adjudicate hearing was an attempt by the State to retry 

him for the same offense litigated in its motion to adjudicate. Davison contended 

that the trial court’s finding of “not true” necessitated a conclusion that the trial court 

found the State’s evidence insufficient under the lesser burden of preponderance of 

evidence applicable to a motion to adjudicate guilt. Thus, he argued, any further 

prosecution of him for continuous sexual abuse of N.S.W. was prohibited under the 

doctrine of collateral estoppel.3

The trial court held two hearings on Davison’s writ application. At the first 

hearing, the State argued that in State v. Waters, 560 S.W.3d 651 (Tex. Crim. App. 

2018), the Court of Criminal Appeals held that a trial court’s finding of “not true” at 

3 The elements necessary to support collateral estoppel are (1) a “full hearing” at 

which the parties had an opportunity to thoroughly and fairly litigate the relevant 

fact issue, (2) the fact issue must be the same in both proceedings, and (3) the fact 

finder must have acted in a judicial capacity. State v. Aguilar, 947 S.W.2d 257, 259–

60 (Tex. Crim. App. 1997).
5

a probation revocation hearing did not collaterally estop the State from using those 

same allegations in a subsequent criminal prosecution. The trial judge stated that she 

recalled finding the allegations “not true” at the motion to adjudicate hearing.

However, as there was no record of its ruling at the October 2020 hearing, the trial 

court decided to hold a subsequent hearing so that the court reporter and court liaison 

officer present at the motion to adjudicate hearing could testify about their memories

of the ruling.

At the second writ hearing, the court reporter who had been present at the 

October 2020 adjudication hearing testified that she had no personal memory of the 

outcome of the hearing. She further testified that she had a note stating “not true and 

probation reinstated,” but she did not recall the source of the information. The court 

liaison officer who had been present at the October 2020 hearing testified that he did 

not remember the hearing, but that his notes showed that the trial court had found 

the allegations “not true.” Following the witnesses’ testimony, the State argued that 

Waters had eliminated the doctrine of collateral estoppel for cases in this posture.

The prosecutor stated that even if collateral estoppel applied, the defense had not 

produced a record showing what was found at the October 2020 hearing. Defense 

counsel responded that Waters was distinguishable from the present case because 

the revocation proceeding in Waters had been perfunctory while the revocation 
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proceeding in this case—at which the State had attempted to call witnesses and offer 

evidence to try and prove up the allegations—was extensive. 

After reading Waters during a recess, the trial court stated that it was granting 

the relief requested by Davison in his application for writ of habeas corpus. On

September 29, 2022, the trial court signed orders granting the writ in cause number 

1822734 and dismissing the indictment in cause number 1764779. The State filed 

this appeal.4

Standard of Review

We review a trial court’s grant of habeas relief for an abuse of discretion. Ex 

parte Becciu, 615 S.W.3d 482, 491 (Tex. App.—Houston [1st Dist.] 2020, pet. 

denied) (citing Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex

parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006)). We afford almost 

total deference to a trial court’s fact findings when supported by the record, 

especially when the findings are based upon credibility and demeanor. State v.

Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013); Ex parte Becciu, 615 

S.W.3d at 491. We afford the same amount of deference to the trial court’s

application of the law to the facts when the resolution of the ultimate question turns 

on an evaluation of credibility and demeanor. Ex parte Vasquez, 499 S.W.3d 602, 

4 The State may appeal an order dismissing an indictment. See TEX. CODE CRIM. 

PROC. art. 44.01(a)(1).
7

606 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d). We review de novo mixed 

questions of law and fact that do not depend upon credibility and demeanor. Ex parte

Weinstein, 421 S.W.3d 656, 664 (Tex. Crim. App. 2014).

Discussion

In its sole point of error, the State contends that the trial court abused its 

discretion by dismissing the charge against Davison in cause number 1764779 based 

on a legal theory explicitly rejected by the Texas Court of Criminal Appeals. It 

argues that in Ex parte Tarver, 725 S.W.2d 195 (Tex. Crim. App. 1986), the Texas 

Court of Criminal Appeals held that a trial court’s finding of “not true” at a probation 

revocation proceeding collaterally estopped the State from proceeding with a 

criminal charge on those same allegations.5It notes, however, that in State v. Waters, 

560 S.W.3d 651 (Tex. 2018), the Court explicitly overruled In re Tarver and held 

that “a subsequent criminal prosecution is not barred following a trial judge’s finding 

of ‘not true’ at a revocation hearing.” Id. at 663.

Davison responds that the present case is distinguishable from Waters 

because, in Waters, the State put forth no substantive evidence of a new law violation 

5 While a hearing on whether a defendant violated the terms of community 

supervision may be called an “adjudication hearing,” it is governed by the same 

rules as a hearing to revoke community supervision and is, in practical terms, a 

hearing on whether to revoke the defendant’s deferred adjudication community 

supervision. Leonard v. State, 385 S.W.3d 570, 572 n.1 (Tex. Crim. App. 2012).
8

in the probation revocation hearing whereas, here, the State put forth substantive 

evidence in the motion to adjudicate hearing. Davison argues that the holding in 

Waters should be narrowly applied to similar factual situations and not extended to 

the present case.

A. Applicable Law 

The Double Jeopardy Clause of the Fifth Amendment, applicable to the states 

through the Fourteenth Amendment, protects an accused against a second 

prosecution for the same offense for which he has been previously acquitted or 

previously convicted. Littrell v. State, 271 S.W.3d 273, 275 (Tex. Crim. App. 2008).

In Ashe v. Swenson, 397 U.S. 436 (1970), the United States Supreme Court held that 

collateral estoppel is one of the protections embodied within the Fifth Amendment 

guarantee against double jeopardy.6 See id. at 443; see also State v. Aguilar, 947 

S.W.2d 257, 259 (Tex. Crim. App. 1997). Collateral estoppel “means simply that 

when an issue of ultimate fact has once been determined by a valid and final 

6

In Ashe v. Swenson, several armed men robbed a victim who was playing in a poker 

game with five other men. See 397 U.S. 436, 438 (1970). The defendant was charged 

in separate counts with robbery of each of the six poker players. See id. The jury 

acquitted the defendant for insufficient evidence in the prosecution for robbery of 

one of the other victims. See id. at 441-42. Noting that “[t]he single rationally 

conceivable issue in dispute before the jury was whether the [defendant] had been 

one of the robbers” and “the jury by its verdict found that he had not,” the Court 

concluded that the rule of collateral estoppel precluded a subsequent prosecution of 

the defendant for robbery of a different player. Id. at 445.
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judgment, that issue cannot again be litigated between the same parties in any future 

lawsuit.” Ashe, 397 U.S. at 443.

The Court of Criminal Appeals later considered the doctrine in the context of 

a probation revocation hearing. See Ex parte Tarver, 725 S.W.2d 195 (Tex. Crim. 

App. 1986). In Tarver, the defendant was found guilty of the offense of possession 

of cocaine and was granted probation for a period of ten years. See id. at 196. When 

the defendant was later charged with assault, the State filed a motion to revoke his 

probation based on the allegation that the defendant had violated the terms of his 

probation by committing assault. See id. Following a probation revocation hearing, 

the trial court granted a defense motion to find the allegation “not true,” and the 

motion to revoke probation was denied. See id.

The defendant filed an application for writ of habeas corpus in the county 

criminal court at law where the assault charge was pending, asking that the charge 

be dismissed because the ruling of the district court at the probation revocation 

hearing represented a finding that applicant was not guilty of the charged assault, 

and the State was therefore barred from prosecuting him for the same offense. See 

id. Following a hearing, the trial court denied the relief sought. See id. This Court 

reversed, granted relief, and ordered the information and prosecution dismissed. See 

id. at 197. The Court of Criminal Appeals affirmed this Court’s judgment, holding 

that the doctrine of collateral estoppel bars the State from prosecuting an offense 
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following a trial judge’s finding of ‘not true’ as to the commission of that same 

offense at an earlier probation revocation hearing. See id. at 200.

In 2018, the Court of Criminal Appeals revisited its precedent in Tarver to 

determine whether the decision remained good law. See State v. Waters, 560 S.W.3d 

651 (Tex. Crim. App. 2018). In Waters, the defendant was on community 

supervision for an offense when she was arrested for driving while intoxicated

(DWI). See id. at 654. The State filed a motion to revoke the defendant’s community 

supervision alleging, among other grounds, that she had violated the terms of her 

supervision by committing another criminal offense. See id. Following a hearing, the 

trial court found the allegation that the defendant had violated the terms of her 

probation by committing the offense of DWI “not true,” rejected the State’s motion 

to revoke, and issued an order continuing the defendant on community supervision. 

See id. 

Later, the State filed an information charging the defendant with the same 

instance of DWI that had been alleged in the motion to revoke. See id. Relying on 

Tarver, the defendant filed a pretrial application for a writ of habeas corpus arguing

that because the State had previously sought to revoke her community supervision 

based on the same instance of DWI that was alleged in the information, and the trial 

judge at the revocation hearing had found that allegation “not true,” the State was 

precluded from prosecuting her for that offense. See id. at 655. The trial court agreed, 
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granted the defendant’s request for pretrial habeas relief, and dismissed the 

information against her. See id. 

The court of appeals upheld the lower court’s judgment and concluded that 

any subsequent prosecution for the DWI offense constituted an attempt by the State 

to relitigate the same fact issue that had already been resolved against it, and the 

prosecution was thus barred by collateral estoppel under Tarver. See id. On the 

State’s petition for discretionary review, the Court of Criminal Appeals overruled 

Tarver and held that a trial court’s finding of “not true” did not estop the State from 

prosecuting the defendant in a different case for the same allegations. See id. at 663.

Davison contends that the facts of the present case are distinguishable from 

those in Waters. He points out that, in Waters, the only evidence offered by the State 

that the defendant committed the offense of DWI while on probation was the 

testimony of the community supervision officer. At the hearing, the officer testified 

that he was aware that the defendant had been arrested for DWI but that he otherwise 

had no personal knowledge of the facts surrounding the alleged offense. See id. at 

654. Davison argues that the facts in the present case stand in stark contrast to the 

facts in Waters. In particular, he points to the fact that during the revocation hearing

in this case the State called multiple witnesses and unsuccessfully offered medical 

records into evidence in an effort to prove the allegations by the lower standard of a 

preponderance of the evidence applicable in revocation hearings. Davison argues 
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that the critical difference between the present case and Waters is the level of effort 

by the State to prove the allegations. We are not persuaded.

While the Court in Waters noted that the State’s sole evidence in support of 

its allegation that the defendant had committed DWI was the community supervision 

officer’s testimony, its holding and explicit overruling of Tarver did not turn on this 

fact. Rather, the Court examined the two rationales on which its decision in Tarver 

could have been based—federal collateral estoppel principles as embodied in the 

double jeopardy clause of the Fifth Amendment or, alternatively, state common law 

estoppel principles. See id. at 657. With respect to the first basis, the Court concluded 

that federal double jeopardy principles are not implicated under these circumstances 

because a person facing an allegation of a new offense at a probation revocation 

hearing has not been placed in jeopardy of punishment for that offense given that 

guilt or innocence is not the central issue at a revocation hearing. See id. at 658–59. 

With respect to the second basis, the Court determined that significant legal and 

policy considerations counsel against application of state common law estoppel 

principles. See id. As the Court noted in a later decision, “[t]he upshot of Waters is 

that a criminal defendant has neither a constitutional nor even a common-law right 

to invoke collateral estoppel in a criminal proceeding following a finding of ‘not 

true’ at an earlier probation-revocation hearing.” Simpson v. State, 591 S.W.3d 571, 

574 (Tex. Crim. App. 2020). Nothing in Waters suggests that the Court’s holding 
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turned on the amount of evidence the State offered to prove up the allegation against 

the defendant, or that it otherwise narrowed its holding to cases in which the State

makes little effort to prove the allegations.

Consistent with Waters, the trial court’s finding of “not true” at the hearing 

on the State’s motion to adjudicate guilt did not collaterally estop the State from later 

proceeding with a criminal charge against Davison on those same allegations. See 

Winters, 560 S.W.3d at 663. We hold that the trial court abused its discretion in 

granting Davison’s application for writ of habeas corpus in cause number 1822734

and dismissing the indictment in cause number 1764779. Accordingly, we sustain 

the State’s sole issue.7

Conclusion

We reverse the trial court’s orders granting Davison’s application for writ of 

habeas corpus in cause number 1822734 and dismissing the indictment in cause 

number 1764779 and remand these causes to the trial court for further proceedings 

consistent with this opinion.

Amparo Monique Guerra

Justice

Panel consists of Justices Landau, Countiss, and Guerra.

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In light of our holding, we do not reach the State’s additional argument that even if 

collateral estoppel applied in this case, Davison failed to make an adequate showing. 

See TEX. R. APP. P. 47.1.
14

Do not publish. Tex. R. App. P. 47.2(b).