### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

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NO. 03-08-00704- CR

Ex parte Dustin Doan

F ROM CO UNTY COURT AT LAW NO . 5 O F TRAVIS CO UNTY

NO. C-1 -CR- 05- 7013 96 HO NORAB LE NANCY WRI GHT H OH ENGARTEN, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Whil e on community supervision in Br azos County for drug possession, Dustin

Doan was char g ed in Travis County wi t h m i s d em eanor theft. Soon afte r lear ning of Doan’ s

arr est, the Br azos County Attorney moved to adjudicate Doan’ s g uilt and revoke his community supervision on the g rounds (among others) that committing the theft and not repor ting his arr est
violated Doan’ s conditions of supervision. After holding a hear ing, the Br azos County trial court
deter mined that the State had fail ed t o m ee t its burden of proof and dismiss ed the “cr iminal
action.” Doan then applied for a writ of habea s corpus in Travis County , arg uing that the Br azos County trial court’s reje ction of the theft alleg ation barr ed his prosec ution for theft. Ultimately , the Travis County trial court denied Doan’ s habea s corpus application, and Doan appea led. We
will affirm.BACK GR OUND

I n Fe b ruary 2005, a Br azos County trial court place d Doan on two y ear s of community supervision and defe rre d adjudication of a marijuana -possession char g e. See Tex. Code
Crim. Proc. Ann. art. 42.12 (West Supp. 2012) (setting out ci rc u m s t an ces in which community

s u p e r v is io n ma y b e im p o s e d )

. T h e c o u

r t p la c e d s e v e r a l c o n d it io n s o n D o a n ’ s c o mm u n it y s u p e r v is io n , including that Doan n o t comm it other crimes during that period of time and that he inform his probation off

icer if he is ar rested w ithin 48 hours of his arre st.
A few months afte r being placed on community supervisio n , Do an was arr ested in
Travis County for misdemeanor theft. See Tex. Penal Code Ann. § 31.03 (West S u p p
. 2 0 12) (def ining offe nse of theft). After lear ning of the arr est, the Br azos County Attorney filed a motion

to revoke Doan’ s community supervision and to adjudicate his g uilt for Doan’ s previously defe rre d marijuana -possession char g e. The motion alleg ed, among other things, that Doan had violated the
conditions of his community supervision by committing the theft and by failing to notify his probation off

icer that he had be en ar

rested w ithin 48 hours of his arre st.
I n response to the mo ti on to revoke , the Br azos County trial court convene d a hear ing. During the hear ing, the Br azos County Attorney called Doan’ s probation office r and asked her to explain how Doan had violated the condition of his community supervision that prohibited him from committing other crimes. Doan’ s attorney objected on hear say g rounds, and the court sustained the objection. Subsequent to that ruling , the Brazos County Attorney made no further attempts to
introduce evidenc e conce rning the details of Doan’ s alleg ed theft. At the conclusion of the hear ing,
the court enter ed an order that stated: “On this November 30, 2007, came to be hear d the [S ]t ate’ s

2motion to proce ed. The State’s failing to meet [i ts] burden of proof, I T I S ORDERED, ADJUDGED

AND DE CREED that the said criminal ac tion be and the sa me is here by

dismiss ed.” Subsequent to the ruling from the Br azos County trial court, Doan applied for a writ
of habea s corpus in the Tr avis County trial court wher e his the ft prosec ution wa s pending , and the
Travis County trial court held a hear ing. During the hear ing and in his motion, Doan arg ued that
beca use the Br azos County court had considere d and reje cted the theft alleg ation when it issued its ruling , the Travis County Attorney was barr ed from pursuing the theft char g e in a separ ate criminal

prosec ution. I n response , the Travis County Attorney arg ued that the Br azos County court could not
have made an adver se evidentiar y finding on the theft alleg ation b e cause the Br azos County Attorney
adduce d no evidenc e on the issue.

Orig inally , the Travis County tri al co urt g rante d Doan’ s habea s corpus application
and dismiss ed the theft char g e. After the trial court’s ruling , the Travis Count y At t orney filed a
motion for rec onsideration. The motion reiter at ed t h at t h e Br azos County court could not have

m ad e an adver se evidentiar y finding on the theft alleg ation beca use the Br azos County Attorney
adduce d no rele vant evidenc e. Acc ording ly , the Travis County Attorney arg ued that Doan’ s theft

prosec ution was not barr ed. The Travis County court held a hear ing on the Travis County Attorney ’s
motion for rec onsideration and subsequently g rante d the motion, set aside its previous order g ranting
Doan’ s habea s corpus application, and order ed the reinstateme nt of the information char g ing Doan
with theft.
After the Travis County court issued its final ruling , Doan appea led the trial court’s
deter mination. See Jaime v. State , 81 S.W .3d 920, 924 (Tex. App.—El P as o 2 0 0 2 , pet. ref ’d)

3(explaining that defe ndant may file pretria l writ of habea s corpus claiming that prosec ution

was prec luded by deter

mination made in probation-r evocation proce eding ). On app ea l , this
C o u rt i nitially aff

irmed the trial court’s ruling

. See Ex parte Doan , 322 S.W .3d 896, 901 (Te x
. App.—Austin 2010) (“

Doan I ”), rev’ d , 369 S.W .3d 205 (Tex. Cr i m
. App. 2012) (“ Doan II ”). I n
that appea l, Doan ag ain asserted t hat t he Tra vis County

Attorney was precluded from prosecuting
him for theft. Id. at 898. I n our opinion, we explained that if an issue has been deter mined by a final judgme nt, res judicata prec ludes the issue from being relitig ated in a future lawsuit betwee n the same parties. Id. Fur

ther, we conclude d that the Br azos County Attorney and the Travis County Attorney 1

I n the orig inal appea l, Doa n ar gu ed t h at his theft prosec ution was barr ed by collater al 1 estoppel. Doan I

, 322 S.W .3d at 898. Howeve r, when Doan appea led our deter mination to the court of criminal appea ls, the court stated that the issue was “whe ther the doctrine of res judicata applies to bar a prosec ution for a cr i m i n al offe nse in one county afte r a prosec utor in another county unsucce ssfully attempted to revoke the defendant’s co m m u n i t y supervision on the ground that he committed the same offe nse.” Doan II , 369 S.W .3d at 205-06. Fur thermore , in a footnote, the court explained that althoug h it had used the phrase “collate ral estop p el” in a prior case addre ssing a simil ar issue, the i ssue under considera tion in the prior case was whe ther re s judicata a pplied. Id. at 212-13 n.33.

I n light of the court of c riminal appea ls’ clar ification, we will frame Doan’s issue in terms of res judicata, but we note that courts seem to use these terms intercha ngea b l y an d that case s addre ssing the issue of whether a ruling in a revoc ation proce eding may bar a subsequent prosec ution for an alleg ed offe nse have fra med the issues in terms of c ollatera l e stoppel. See Ex parte Tarver , 725 S.W .2d 195 (Tex. Crim. App. 1986); Getman v. State , 255 S.W .3d 381 (Tex

. App.—Austin 2008, no pet.). As e x plained in a c oncurr ing opinion by the court of criminal appea ls, r es judicata ref ers to the eff

ect that a prior adjudication has on all subsequent litigation and “enc ompasses claim prec lusion and i s s u e p rec lusion.” Y ork v. State , 342 S.W .3d 528, 553 (Tex. Crim. App. 2011) (Womack, J ., concur

ring ). Fur ther, the opinion explained that “[c]laim prec lusion prohibits a s e c o n d suit based on the same claim betwee n the same parties” but that “[i] ssue prec lusion prohibits a party from relitig ating an issue

. . . that was previously deter mined in a suit betwee n the s am e p arties.” Id. I n addition, the opinion rela ted that issue prec lusion has been ref err ed to as collater al estoppel. Id. at n.4. Reg ardle ss of the way it is descr ibed, what is being addre ssed in this case is whether the Travis County prosec ution for the alleg ed theft is prec luded due t o a deter mination made in the
revoc ation hear ing.
4wer e “not ‘the same party ’ for [res judicata] purposes when one p ar t i ci p ates in a probationrevoc ation hear ing a

nd the other subse quently participa tes in a cr iminal prosecution.” Id. at 901. Shortly afte r we issued our opinion and judg ment, Doan a ppeale d, and the c ourt of
criminal appea ls reve rsed our decision. Doan II , 369 S.W .3d at 213. I n particula r, the court stated
that “as a matter of state law, a prosec uting authority who alleg es a criminal offe nse in a community supervision revoc ation hear ing repr esents the same s ta te in te r e s ts a s a p r o secuting authority who later alleg es the same criminal offe nse in a trial” and that this Court “er red in holding that two prosec uting
authorities could not be the same party for res judicata purposes.” Id. at 212-13. Acc ording ly , the
court of criminal appeals remanded the case to this Court to addres s Do an ’s issue in light of their ruling

. Id. at 213.

STANDARD OF REVIEW

The applicant has the burden of establishing his e ntitlement to relief throug h a writ
of habea s corpus, and the decision to g rant or deny relief “is a matter of discretion” for the trial court. Ex parte King , 134 S.W .3d 500, 5 0 2 (Tex. App.—Austin 2004, pet. ref’d); see Jaime , 81 S.W .3d

at 924 (explaining that appellate courts revie w habea s corpus ruling for abuse of discretion). A trial

cour t ab u s es i ts discretion if it acts without ref ere nce to any g uiding rules or principles. State v.
Herndon , 215 S.W .3d 901, 907 (T ex
. C ri m
. App. 2007). Howeve r, the “dec ision to apply [res judicata] is a question of law, applied to the fac ts, for which de novo revie w is appropr iate.” State v.
S te v e n s , 2 3 5 S. W. 3 d 7 3 6 , 7 4 0 ( T e x. Cr im

. A p p
. 2 0 0 7 )

. I

n li g h t o f th is , th e tr ia l c o u r t’ s d e te r mi n a ti o n
reg arding whether “issues of ultimate fac t wer e deter mined” at the Br azos County trial c o u r t p r e c lu d e
Doan’ s prosec ution for theft “is an application of law to fac ts question that does not involve a

5deter

mination of cre dibilit y and demea nor” and is, t h ere fore , subject to de novo revie w. See
Getman v . State , 255 S.W .3d 381, 384 (Tex. App.—Austin 2008, no pet.).

DISCUSSIO N
On appea l, Doan contends that the Travis County trial court err ed by setting aside its previous order that had g rante d his reque sted habea s relief

. I n particula

r, Doan ar gues that the
doctrine of

res judica ta prohibits the State from pursuing the misdemeanor theft cha rg e.
As mentioned above, under the doctrine o f re s j udicata, if an is sue of ultimate fac t
has been deter

mined by a final and valid judgme nt, the issue cannot be litigated ag ain in a future
l aw s uit betwee n the same parties. Id. To asce rtain whether an issue is prec luded, “cour ts m u s t
deter mine (1) ex actly what facts were necessa rily decide d in the first proce eding , and (2) whether
those nece ssarily decide d fac ts c onstitut e essential elements of the offe nse in the second trial.” Id.

For the issue to be barr ed, the “ver y fac t or point of issue must have been deter mined in the prior

proce eding .” Id. “The entire rec ord from the ear lier proce eding must be examined with rea lism and rationality to deter

mine prec isely what fac t or combination of fac ts were n ec es s arily decide d and
which will then bar their relitig ation.” Id. at 384-85. Moreove r, the defe ndant bear s the burden of demonstrating that the fac tual issue that he believes is barr ed from considera tion was decide d in the prior proc eeding

. Guajardo v. State , 109 S.W .3d 456, 460 (Tex. Crim. App. 2003).

As support for his asser

tion that res judicata applies in this case , Doan primarily relies

on a decision by the court of criminal appea ls. See Ex parte Tarve r , 725 S.W .2d 195 (Tex. Crim. App. 1986); see also Doan II , 369 S.W .3d at 212-13 n.33 (explaining that althoug h Tarver addre ssed
issue in terms of collater al estoppel, issue was whether “ res judicata , whateve r its basis, applied”)

.
6I n Tarver , the court of criminal appea ls explained that res judicata can ar ise from deter minations
made in a probation-r evocation hear ing. 725 S.W .2d at 197. I n that case , the State moved to revoke

a defe ndant’s probation on the g round that he had committed an assault. Id. at 196. Once the State rested, the defe nse counsel asser ted that the State had not offe re d p ro of that a crime had been committed, and t h e trial court enter ed a finding of “not true” and explained that it “found the
evidenc e in this case to be totally incre dible.” Id. at 198. After the trial court enter ed its finding , the
defe ndant filed a writ of habea s corpus in the trial court in which his assault char g e was pending and

arg ued that the State was barr ed from prosec uting him for the offe nse due to the “not true” finding
made in the revoc ation hear ing. Id. at 196. Subsequent to holding a hear ing, the trial court denied the habeas relief requested. Id. On appeal, t he cour t of criminal appe als reve rsed the trial court’s
deter mination and explained that res judicata prohibits an iss u e o f u lt imate fac t from being relitig ated
betwee n t h e same parties in any future lawsuit if the issue has been deter mined by “‘a valid and final judg ment.’” Id. at 198 (quoting Ashe v. Swenson , 397 U.S. 436, 443 (1970)) . I n light of this explanation, t h e court further conclude d that “it is clea r that a fac t issue, i.e. whether applicant
assaulted the complainant, has been found adver sely to the State” and that the State was “attempting

to relitig ate the same issue.” Id. Acc ording ly , the court decide d that the prosec ution for the assault
char g e wa s barr ed. Id. at 200.

We believe that Doan’ s relianc e on Tarver is misplaced. As an initial matter, we note
that during the revoc ation hear ing in Tarver , the State called three witnesses, including the alleg ed victim, to testify

about the assa

ult. Id. at 198. Moreove r, prior to the hearing on Tarve r’s request
for habea s relief

, th e S t at e stipulated that the alleg ed victim would be testify ing and that his

7testimony would be identical to that g iven in the probation-r evocation hear ing. Id. I n this case , no

stipula t i o n re gar ding the evidenc e was enter ed during the habea s proce eding , and as discussed

ear lier, no evidenc e or testimony was introduced reg arding the alleg ed theft. Although the motion

to r evoke stated that Doan “did then and ther e intentionally appropr iate, by acquir ing or otherwise exercising control over, proper ty , to-wit: ge nera l store merc handise, spec ific items and quantities
unknown

. . . without the eff ective consent of the owner and with intent to deprive the owner of the

proper ty ,” no fur

ther de tails about the alleg ed off ense w ere provided.

I n any event, when t he court of criminal appea ls made its deter mination in Tarver , it cautioned “the narr owness of [i ts] holding” and stated that “[a] mere overr uling of a State’s motion

to revoke probation is not a fac t-finding t h at wi l l ac t to bar subsequent prosec ution for the same alleg ed offe nse.” Id. at 200. On the contra ry , the court explained that “[i] t is only in the particula r
circ umstances of this case , wher e the trial court d o es m ak e a specific finding of fac t that the alleg ation is ‘not true,’ that a fac t has been established so as to bar relitig ation of that same fac t.”
Id. ; see also W

afer v. State , 58 S.W .3d 138, 141 (Tex. App.—Amarillo 2001, no pet.) (e x plaining
that res judicata only applies if there has b ee n d et ermination during revoc ation proce eding that
demonstrates g rounds for decision and if deter mination is adver se to State on element nece ssary to subsequent prosec ution). The need for a specific finding and the limit ation imposed by the court of
criminal appea ls ma ke sense g iven that trial cour ts “may opt not to revoke for

a my riad of rea sons
unrela ted t o whether or not the State sufficie ntly proved its g rounds for revoc ation.” See W afer , 5 8 S. W. 3 d a

t 1 4 1

. A c c o r d in g ly , f

u tu r e p r o s e c u ti o n s w il l b e p r e c lu d e d o n ly if a tr ia l c o u r t “ s p e c if ic a ll y

8finds that an alleg ation was not proved,” and a subsequent prosec ution is not barr ed simply beca use
the State fa iled to prove a n alleg ation at a r evocation hearing

. See G etman , 255 S.W .3d at 388.

I n this case the trial court conducting the revoc ation hear ing did not ente r a f inding
of “not true” reg arding the theft alleg ation. The absenc e of that ty pe of finding alone would seem to

preve nt the application of res judicata under the limit ed holding of Tarver

. Moreove r, as mentioned

ear lier, in addition to listi ng the alleg ed theft in its motion to revoke , the State asser ted sever al other

rea sons for adjudicating Doan’ s g uilt and revoking his community supervision, including failing

to timely repor

t his arr est, using a controlled substance, and tampering with a sampl e s u b m i tted for drug testing. During the revocation hearing , the t estimo n y focuse d on these other g rounds for

revoc ation, and when the trial court made its deter mination, it stated that the “State has failed to meet
its burden of proof” without specify ing which g round or g rounds for revoc ation it was ref err ing to.
Under these circ umstances, the trial court’s ruling is analog ous to a “mer e overr uling” of a motion

to revoke , which Tarver explained is insufficient to bar a subsequent prosec ution. See 725 S.W .2d

at 200. Our deter

m i n at ion that no prec lusive eff ects stemmed from the trial court’s ruling is also supported by the fac t that the trial court chose to dismiss the “cr iminal action” rathe r than deny the

m otion to revoke or enter a finding of “not true” for any of the alleg ed violations. Cf. In re C

. L

. , 874 S.W .2d 880, 885 (Tex. App.—Austin 1994, no writ) (conc lud i n g t hat Tarver did not apply
beca use trial court just dism i s sed counts and made no aff irmative finding on offe nse alleg ed). I n

rea ching this conclusion, we must also consider the fac t that it was Doan’ s burden to prove that the
issue was de cided dur ing the hear ing in B razos County

. See G uajardo , 109 S.W .3d at 460.

9Although the fac ts in this case differ signific antly , our det ermination is consistent

with the analy sis and holding of a rec ent case by this Court. See Getman , 255 S.W .3d at 387-89.

I n Getman , a motion to revoke was filed that alleg ed, among other g rounds, that the defe ndant had
committed an assault and failed to repor t his arr est. Id. at 385. After a revoc ation hear ing, the trial

court found only that the defe ndant had failed to repor t his arr est and, there fore , violated a condition
of his probat i o n
. Id. at 386-87. I n light of that ruling , the defe ndant arg ued that the State was prohibited from prosec uting him for the assault that led to his arr est. Id. I n deter mining t h at the

prosec ution was not barr ed, this Court rea soned that the court conducting the revoc ation proce eding
made no finding reg arding the assault and instead ref used to make any finding reg arding the assault.
Id. at 387. As support for this conclusion, we pointed to statements by the trial court that indicated
th a t th e tr ia l c o u

r t w a s f o c u s e d o n th e d e f

e n d a n t’ s a r r e s t a n d f a il u r e to r e p o r t a n d w a s “ n o t in

te r e s te d ”
in the alleg ations reg arding the assault. Id. Acc ording ly , we deter mined that a “re asonable and

rea listi c review of the record from t h e p ro b ati on revoc ation hear ing refle cts at m ost that the court
declined to de cide whe ther Ge tman committed the alleg ed assa ult.” Id. at 388. 2

As support for his a ssertion that the prosec ution for theft may not proce ed, Doan ref ers to 2 W afer v. State , 58 S.W .3d 138 (Tex. App.—Amar illo 2001, no pet.). I n that case , a motion to revoke
wa s fi led alleging that the defendant had committed a crime by delivering a controlled substance, and the trial court decide d not to revoke the defe ndant’s probation and made various statements indicating that it was “not convince d by a preponde ranc e of the evidenc e that t h e al l egations contained i n the motion” to revoke wer e true but that it was not making any finding reg arding whether the alleg ations wer e true or not true. Id. at 140. The defe ndant arg ued that the trial court’s deter mination prec luded the prosec ution in another court for the crime of delivery of a controlled substance. Id. On appea l, the court deter mined that althoug h the trial court asser ted that it was not making any finding s of fac ts, “its expressions wer e sufficie nt to illust rate the adjudication of a fac t adver sely to the State” and w ere rela ted to the def endant’ s g uilt or innocence

. Id. at 141.

10Although the appellate co u rt in W afer deter mined that the prosec ution for delivery of a controlled substance was barr ed even though the trial court did not expli citly enter a finding of “not true” during the revoc ation proce eding , we do not believe that the analy sis in W afer nece ssarily applies to the circ umstances in this case
. As an initial matter, it appea rs from the case that the motion to revoke only alleg ed one g round for revoc ation: delivery of a controlled substance. I f only
one g round was l i s t ed in the motion, the trial court’s statements about not being convince d by a p re p o n d er ance of the evidenc e would have a more direc t connec tion with the alleg ation than th e t ri al court’s statements in the prese nt case beca use the prese nt case involved sever al g rounds fo r revoc ation. Moreove r, the trial court in W afer specific ally mentioned the delivery -of- a-c ontrolledsubstance char g e in its discussion explaining that it was not convince d by a preponde ranc e of the evidenc e. Reg ardle ss, even assuming that the State in W afer alleg ed more than one g round and that the analy sis in W

afer would compel a deter mination that collater al estoppel applies in this case , we are not bound by

the dec ision in W

afer

. I n his brief, Doan a lso relies on Jaime v . State , 81 S.W .3d 920 (Tex. App.—El Paso 2002, pet. ref ’d). I n that case , J aime filed a writ of habea s corpus contending that the State was prec luded fr o m p rosec uting him for ag g rava ted assault due to a deter mination made during a probat i o n revoc ation proce eding

. Id. at 923. I n its motion to r evoke probation, the State asser ted that J aime had committed ag g rava ted assault and listed sever al other g rounds for revoc ation. Id. Nea r the end of the hear ing, J aime arg ued that the State “hasn’ t proved any thing,” and the trial court responde d, “Exactly true. Oka

y ? Motion to revoke denied.” Id. n.1. After the motion to revoke wa s denied, J aime filed a writ of habea s corpus and arg ued that the State could not prosec u te the ag g rava ted assault ca se bec ause it pr esente d no evidenc e during the revoc ation proce eding

. Id. at 923. When interpre ting the deter

mination made during the revoc ation hear ing, the trial court presiding over the habea s proce eding , which may have been the same court that convene d the revoc ation hear ing, stated that the assa u l t alleg ation was litigated at the revoc ation hear ing and that the State prese nted no evidenc e of one of the elements of the assault. Id. at 924. I n light of those specific deter minations, the appellate court deter

mined that a finding adverse to th e S t at e wa s m ade during the revocation hear ing and that a finding of “no evidenc e” is essentially the same as a finding of “not true.” Id. at 927. Acc o rd i n gl y , t h e appellate court deter mined that the assault char g e was barr ed from prosec ution. Id.

I n the prese nt case , there was no spec ific finding that the theft c harg e wa s fully litigated in the revoc ation proce eding or that the State provided n o evidenc e of the elements of the offe nse. Acc ording ly , we do not believe that the analy sis in Jaime compels a conclusion that the theft char g e is b a r r e d f r o m p r o s e c u ti o n
. A s w it

h W a fe r , e v e n if th e a

n a ly s is in J

a im e c o u ld b e r e a d a s a

p p ly in g to th e c ir c u ms ta n c e s p r e s e n t in th is a

p p e a l, w e a

r e n o t b o u n d b y th e a

n a ly s is in th a

t o p in io n o r it s r e s u lt

. 11For these rea sons, we do not believe that Do an m et his burden of demonstrating

that a fac tual issue was decide d in a prior proceeding that bars the Travis County Attorney from

prosec uting him for theft. See Guajardo , 109 S.W .3d at 460. Acc ording ly , we overr ule Doan’ s sole issue on appea l.

CONCLUSION

Having overr

uled Doan’ s sole issue on appea l, we aff irm the trial court’s judgme nt.

__________________________________________ David Pury ear , J ustice

Be fore Chief J ustice Jones, J ustices Pury ear and He nson
Affir med on Remand
Filed: De cembe r 21, 2012
Do Not Publish

12