      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-00-00818-CR



                                     Stephen Kuhns, Appellant


                                                   v.


                                    The State of Texas, Appellee




             FROM THE COUNTY COURT AT LAW NO. 7 OF TRAVIS COUNTY
              NO. 561885, HONORABLE STEVE RUSSELL, JUDGE PRESIDING




                  Appellant Stephen Kuhns appeals his conviction for driving while license suspended.

Tex. Transp. Code Ann. § 601.371(a) (West 1999). The jury found appellant guilty. The trial court,

upon a joint recommendation, assessed punishment at 180 days’ confinement in the county jail and

a fine of $500.


                                            Points of Error

                  Appellant advances two points of error. First, appellant claims that the trial court

erred in overruling the motion for new trial based on the contention that he was denied the effective

assistance of counsel. Second, appellant urges that the “trial court erred in denying appellant’s plea

in bar and motion to quash based on collateral estoppel.” We will affirm the conviction.
                                             Information

                Appellant was originally charged with driving while license suspended (DWLS) in

Cause number 481415. This information was dismissed and the offense was charged again in Cause

number 561885. This information alleged in pertinent part that appellant:


        on or about the 28th day of July 1997, did then and there operate a motor vehicle
        upon a public highway in Travis County, Texas, after the Defendant was issued a valid
        license to operate a motor vehicle upon a public highway in the State of Texas and
        while the license was legally suspended under Tex. Rev. Civ. State Ann. art. 6701l,
        sec. 13 now codified as Tex. Transp. Code sec. 601.332 and the Defendant knew his
        license was suspended.1


                There was no motion to quash or set aside the information. Appellant has waived any

right to complain on appeal as to the pleadings. Tex. Code Crim. Proc. Ann. arts. 1.14(b), 27.03(1)

(West Supp. 2002 & 1989); 41 George E. Dix & Robert O. Dawson, Texas Practice: Criminal

Practice and Procedure § 19.61 (2d ed. 2001).


                                                 Facts

                Appellant does not challenge the legal or factual sufficiency of the evidence to sustain

the conviction. The facts will, however, place the points of error in proper perspective.


   1
       The basis for suspension of the driver’s license as alleged was for non-payment of a 1993
liability judgment arising out of an automobile accident, hence the allegation of the former statute
under which the suspension was ordered in 1993 and the current statute relating to same procedure.

       Section 25 of Senate Bill 971 provides:

       This Act [Texas Transportation Code] is enacted under Section 43, Article III, Texas
       Constitution. This Act is intended as a recodification only, and no substantial change in
       law is intended by this act.

Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 25, 1995, Tex. Gen. Laws 1025, 1871.

                                                   2
               Austin Police Officer Robert Richman testified that on July 28, 1997, he stopped

appellant in downtown Austin for a traffic violation, specifically an expired motor vehicle inspection

sticker. Richman checked on his mobile data terminal for appellant’s driving license’s history and

determined that appellant’s driver’s license was suspended, expired, and still suspended. Appellant

showed Richman an occupational license but it reflected that this license had expired in 1994.

Appellant was arrested.

               The State offered certain documentary evidence in the form of certified copies from

the Texas Department of Public Safety (DPS). The license’s history reflected that the driver’s license

number 06708052 had been issued to appellant on March 13, 1969, was suspended on November 22,

1993, and had expired on January 5, 1994. A photo-copy of appellant’s driver’s license was

introduced. It contained his photograph, the address of P.O. Box 242, Dripping Springs, Texas, and

the expiration date. The State introduced a copy of a letter from the DPS to appellant at the above

described address informing him that his driver’s license had been suspended on November 22, 1993,

the date of the letter. The letter stated that the basis of the suspension was a court judgment dated

June 2, 1993, rendered against appellant for damages arising out of a motor vehicle accident in the

amount of $2,584.66 which was unsatisfied. There was no evidence that appellant’s driver’s license

had been renewed since its expiration. 2


  2
    Suspension orders which are entered prior to the expiration date of a defendant’s driver’s license
effectively suspends a defendant’s license or privilege to drive a motor vehicle beyond the expiration
date of the license and accordingly, a conviction for DWLS on the basis of an act committed after the
expiration of the license is not error. Preble v. State, 402 S.W.2d 902, 905 (Tex. Crim. App. 1966);
Cathy v. State, 402 S.W.2d 743, 745 (Tex. Crim. App. 1966). In such a situation, what remains
suspended is the privilege of driving, not merely the driver’s license issued. Preble, 402 S.W.2d at
905; Smith v. State, 895 S.W.2d 449, 452 (Tex. App.—Dallas 1995, pet. ref’d). When the
suspension occurs after the expiration of the license, a different rule applies. Bryant v. State, 294
S.W.2d 819, 819 (Tex. Crim. App. 1956).

                                                  3
               Appellant testified that he received mail at P.O. Box 242, Dripping Springs, “[i]nto

’93, at some point, I believe.” He also related that in 1993 he was living in Austin: “I believe on

Duval Street.” There was no evidence offered that he gave the DPS a notice of change of address.

               Appellant stated that in 1993 he was involved in a car accident and was sued for

damages. He filed an answer to the lawsuit but was not present when a default judgment was taken

against him. Appellant acknowledged that seven years later the judgment had not been paid. He

related that he never received the mailed letter or order of suspension dated November 22, 1993, at

any time since that date. Further, he had never received a hand-delivered copy of the letter or notice

from an employee of the DPS. Appellant testified that he did not see the letter of suspension dated

November 22, 1993, until sometime in August 1999.

                Defense exhibits 2 and 3 were introduced into evidence. These exhibits included the

complaints, informations, and the motions and orders of dismissal in Cause numbers 456,269 and

456,101 in County Court at Law No. 3 of Travis County. In both causes, appellant was charged with

DWLS on or about January 16, 1996 and on or about April 12, 1996, respectively. One of the two

reasons given in each case for dismissal was, “Defective service of notice of suspension.”

               Appellant testified that he had been arrested for DWLS seven times since May 28,

1993; that there had been four cases of DWLS filed against him, all of which had been dismissed prior

to his arrest in the instant case (July 28, 1997); and that he had been told and believed that there had

been an illegal suspension of his driver’s license. Appellant did not consider his arrests as notice of

the 1993 suspension but rather a computer error at the DPS.

                On cross-examination, when asked for the expiration date of his driver’s license,

appellant noted that he had an occupational license. The State then introduced its State’s exhibit

                                                   4
number 11, an occupational license without a photograph. It was shown to have been issued to

Stephen Kuhns on May 28, 1993, with an expiration date of April 1, 1994, over three years before

the instant offense. This occupational license bore the same number as appellant’s driver’s license

and reflected appellant’s address as 4002 Duval Street in Austin.

               Appellant testified that it was his understanding that the amended court order granting

the occupational license would remain valid until a new regular license was issued without a time limit

being imposed. Appellant acknowledged, however, that he knew an occupational license could not

legally be issued for a longer period than one year. Appellant admitted that he had never tried to

renew his expired driver’s license or obtain a new one. The defense then introduced its exhibit

number 5 showing a Travis County district court order of August 9, 1993, granting an amended

occupational license. The order allowed appellant to operate a motor vehicle until April 1, 1994, “or

until a regular commercial operator’s license is issued to Stephen Kuhns.”

               In rebuttal, the State called attorney Drew Phipps, who had represented appellant in

Cause numbers 456,269 and 456,101 in County Court at Law No. 3 of Travis County which had been

dismissed on June 10, 1996. Phipps acknowledged that he had written “[d]efective service of notice

of suspension” on each motion to dismiss as one of the two reasons for dismissal and that each

motion was later signed by the prosecutor and the trial judge. Phipps admitted that at the time he had

a copy of the order of suspension dated November 22, 1993, and that he had discussed the cases with

appellant at length. He did not recall showing the order of suspension to appellant. Phipps believed

the notice of suspension was defective because it had been mailed to appellant’s former address and

that appellant never received it.




                                                  5
                The trial court submitted the cause to the jury in accordance with the information set

out above. In addition, the court instructed the jury as follows:


                                                  IV.

                 In order to warrant a conviction of the defendant, you must find beyond a
         reasonable doubt, first that he had been issued a driver’s license; second, that while
         such license was still valid and unexpired, it was suspended; third, that while such
         license was suspended, defendant operated a motor vehicle upon a highway in Travis
         County, Texas; and fourth, the defendant knew his license was suspended.

                                                  V.

                You are instructed that any person whose license was suspended shall be
         presumed to have received actual notice of said suspension upon the expiration of
         nine days after written notice from the Department of Public Safety is deposited in an
         envelope with the postage prepaid, addressed to such person at the last address
         supplied to the department by the licensee. Such presumption is rebuttable.


                The court’s charge also instructed the jury that even if the presumption was

established beyond a reasonable doubt, the jury was not bound by the presumption. The trial court

further submitted the defense of mistake of law. Tex. Pen. Code Ann. § 8.03 (West 1994).


                                        Motion for New Trial

                Appellant casts his initial contention as trial court’s error—that the court abused its

discretion in overruling the amended motion for new trial based on the ground that appellant was

denied the effective assistance of counsel. Appellant utilized the motion for new trial procedure to

develop facts not otherwise shown by the record3 to establish the circumstances surrounding his trial

counsel’s failure to introduce at trial a copy of an envelope obtained from the DPS. This envelope,


   3
       Tex. R. App. P. 21.2; Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993).

                                                   6
a part of appellant’s driver’s license record, bore the postmark of November 22, 1993. It was

addressed to appellant at his post office box number in Dripping Springs, and contained the postal

notation “[F]orwarding address expired—return to sender.” Although there are no facts so showing,

appellant contends that this was obviously the envelope the DPS used to send to appellant the order

suspending his driver’s license dated November 22, 1993. Appellant contends that the envelope, if

introduced, would have supported appellant’s testimony that he never received the order of

suspension by mail and that it would have rebutted the statutory notice presumption concerning the

mailing of the suspension order upon which the trial court charged the jury. Appellant urges that the

failure to introduce the envelope was ineffective assistance of counsel, and that counsel’s omission

having been established, the trial court abused its discretion in overruling the motion for new trial.

We shall first examine the standard of review for an ineffective assistance of counsel claim and then

the hearing on the motion for new trial.


                                       Standard of Review

               A defendant is constitutionally entitled to reasonably effective assistance of counsel.

Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). However, a defendant is not entitled

to errorless counsel or counsel whose competency is judged by hindsight. Id. The fact that another

attorney might have pursued a different course of action at trial will not support a finding of

ineffectiveness. Banks v. State, 819 S.W.2d 676, 681 (Tex. App.—San Antonio 1991, pet. ref’d).

The United States Supreme Court has promulgated a two-pronged test to determine whether

representation was so inadequate that it violated a defendant’s right to counsel under the Sixth

Amendment to the United States Constitution. Strickland v. Washington, 466 U. S. 668, 687 (1984).


                                                  7
The Strickland analysis has been adopted in Texas and applies to constitutional claims under article

one, section 10 of the Texas Constitution. See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim.

App. 1986). First, under the Strickland test, trial counsel’s performance must fall “below an objective

standard of reasonableness.” Strickland, 466 U.S. at 687-88. This deficiency must be of the extent

that counsel failed to function as counsel. Yates v. State, 917 S.W.2d 915, 920 (Tex. App.—Corpus

Christi 1996, pet. ref’d). Second, the deficient performance must have prejudiced the defense by “a

reasonable probability that, but for counsel’s errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 689. “Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim.” Id. at 700.

               The burden of proving ineffective assistance of counsel is on the defendant by a

preponderance of the evidence. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994);

Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). The assessment of whether a

defendant received effective assistance of counsel must be made according to the facts of each case.

Ex parte Scott, 581 S.W.2d 181, 182 (Tex. Crim. App. 1979). A reviewing court looks to the totality

of the representation and the particular circumstances of each case. Ex parte Felton, 815 S.W.2d

733, 735 (Tex. Crim. App. 1991). The defendant must overcome a strong presumption that counsel’s

performance fell within the wide range of reasonable professional assistance. Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999).            To defeat this presumption, any allegation of

ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate

the ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Moreover,

the defendant must overcome the presumption that the challenged conduct cannot be considered

sound trial strategy. Jackson, 877 S.W.2d at 771; see also Tong v. State, 25 S.W.3d 707, 712 (Tex.

                                                  8
Crim. App. 2000); Chambers v. State, 903 S.W.2d 21, 33 (Tex. Crim. App. 1995). Any error in trial

strategy will be deemed inadequate representation only if counsel’s actions are without a plausible

basis. See Anderson v. State, 871 S.W.2d 900, 904 (Tex. App.—Houston [1st Dist.] 1994, no pet.).


                                            The Hearing

               At the new trial hearing, appellant’s trial counsel, who had been replaced, testified that

he had been practicing law for over thirty years and had specialized in criminal law for the last ten

years. He had been appointed to represent appellant in two DWLS cases in Hays County as well as

the instant case. Counsel related that he had done independent research in the law, had obtained

various documents from the prosecutors in Hays and Travis Counties, had sought to resolve the

liability judgment underlying the suspension of appellant’s driver’s license, and had made a

recommendation to appellant in this regard.

               Counsel obtained a subpoena duces tecum for appellant’s driving record from the

DPS. As a result thereof, an agreement with DPS counsel was reached. The custodian of the records

would not have to appear if appellant’s counsel was furnished with the record requested. The

certified driving record or packet was received three days before trial.

               At trial, counsel had the entire packet marked for identification as defense exhibit

number 4. He redacted therefrom the suspension order of November 22, 1993, and the next item in

the packet—the envelope in question addressed to appellant at the Dripping Springs address. The

detached exhibits were marked as defense exhibits 4a and 4b. When offered, the prosecutor objected

because of the lack of independent certification apart from the packet. Appellant’s trial counsel

testified that he did not pursue the matter to prevent the possibility that extraneous matters in the


                                                   9
packet would be revealed to the jury. Appellant had relied upon the validity of his occupational

license to show that his privilege to drive still existed. If introduced, the packet would reveal that the

occupational license had been obtained after a driving while intoxicated conviction. 4 The packet

further reflected another DWI conviction, suspensions, habitual traffic offender charges, and other

violations of the law which counsel concluded would be highly prejudicial to appellant if introduced

into evidence. Counsel acknowledged that it was a matter of trial strategy that he did not continue

to seek the introduction of the envelope.5 Counsel testified that it was his strategy to avoid the

introduction of extraneous offenses; that he introduced evidence of the dismissal of cases only to

support his theories of collateral estoppel and mistake of law; and because of appellant’s testimony

about his addresses in a prior Hays County case, counsel was concerned about perjury charges arising

out of the instant case.

                It is clear from trial counsel’s explanations that there was a plausible basis for his trial

strategy in not seeking to pursue the introduction of the envelope in question. A claim of ineffective

assistance for failure to request a valid jury instruction on the law was rejected where trial counsel

apparently made the strategic choice that it was better to avoid a suggestion to the jury that the

defendant had been previously convicted of a felony. Murray v. State, 24 S.W.3d 881, 891 (Tex.




   4
      When the State introduced the occupational license into evidence as State’s exhibit number
11, the trial court was informed the license was obtained after a DWI conviction. The trial court
suggested: “Let’s try to tippy toe around it.” Counsel followed the suggestion and the conviction
was not made known to the jury.
   5
     Counsel recognized that he could have asked for a recess and obtained the appearance of the
custodian of the records. He was still fearful that extraneous matters would find their way into
evidence.

                                                    10
App.—Waco 2000, pet. ref’d); see also Delrio v. State, 840 S.W.2d 443, 446-47 (Tex. Crim. App.

1992) (holding counsel was not ineffective simply because his trial strategy did not produce the

desired result). While a single egregious error may be sufficient, reviewing courts are hesitant to

declare counsel ineffective based on a single alleged miscalculation. Thompson, 9 S.W.3d at 814.

                 Actually, the introduction of the envelope in question would have availed appellant

little. The State, in its quest to show appellant knew his driver’s license was suspended as alleged,

offered the letter of suspension dated November 22, 1993, addressed to appellant at P.O. Box 242,

Dripping Springs along with a certificate of mailing. This invoked the presumption of notice received

under the law applicable in 1993. Act of June 18, 1965, 59th Leg, R.S., ch. 703, 1965 Tex. Gen.

Laws 1636 (Tex. Rev. Civ. Stat. art. 6701l, § 31) since repealed by Act of May 23, 1995, 74th Leg.,

R.S., ch. 165, 1995 Tex. Gen Laws 1728, amended by Act of May 26, 1999, 76th, Leg., R.S., ch.

884, § 3, 1999 Tex. Gen. Laws 3580 (Tex. Transp. Code Ann. § 601.372(b)) (West Supp. 2002).6

                 Article 6701l, section 31 in effect in 1993 provided in pertinent part:


         Any person whose license or registration shall have been suspended as herein
         provided, or whose policy of insurance or bond, when required under this Act, shall
         have been cancelled or terminated or who shall neglect to furnish other proof upon
         request of the Department, shall return his license and registration to the Department
         within ten (10) days after receiving notice from the Department in writing, either by
         personal delivery thereof to the person to be so notified or by deposit in the United


  6
        Subsection (c) of section 601.371 of the Texas Transportation Code also provides in pertinent
part:

        For the purposes of this subsection, notice is presumed to be received if the notice was
        mailed in accordance with this Chapter to the last known address of the person as shown
        by department records.

Tex. Transp. Code Ann. § 601.371(c) (West 1999).

                                                  11
       States mail of such notice in an envelope with postage prepaid, addressed to such
       person at the last address supplied to the Department by the licensee, which notice
       shall be presumed to be complete upon the expiration of nine (9) days after such is
       deposited in the United States mail.


(Emphasis added).

               Appellant testified that he was still validly driving at the time of his arrest in the instant

case (July 28, 1997) by virtue of an occupational license and a court order. The State then

contradicted the presumption of notice it had earlier established.             It introduced appellant’s

occupational license issued May 29, 1993 and which expired April 1, 1994. What the State may have

overlooked is the fact that this license bore the same number as the driver’s license number and gave

appellant’s address as 4002 Duval, Austin, an address different than the one on the driver’s license.

Thus, the DPS was on notice that in securing the occupational license appellant had given a different

address to the DPS prior to November 22, 1993.

               If trial counsel had been successful in getting the envelope in question into evidence

it would have been relatively immaterial in light of the circumstances developed. For strategic

reasons, counsel chose to forego its introduction.           Appellant has not overcome the strong

presumption that counsel’s actions might have been sound trial strategy. See Holland v. State, 761

S.W.2d 307, 320 (Tex. Crim. App. 1988). Appellant did not meet the two-pronged test of

Strickland. In answer to appellant’s specific contention, the trial court did not abuse its discretion

in overruling the motion for new trial. The first point of error is overruled.




                                                    12
                                          Collateral Estoppel

                In his second contention, appellant contends that the trial court erred in denying his

plea in bar and motion to quash the information based on collateral estoppel. Appellant states that

two previous cases or informations charging him with DWLS in Cause numbers 456,269 and 456,101

in County Court at Law No. 3 of Travis County were dismissed on June 10, 1996; that these

dismissals were based in part on defective notice of suspension; and that the instant case should never

have been tried in view of the doctrine of collateral estoppel.


        “Collateral estoppel” is an awkward phrase, but it stands for an extremely important
        principle in our adversary system of justice. It means simply that when an issue of
        ultimate fact has once been determined by a valid and final judgment, that issue cannot
        again be litigated between the same parties in any future lawsuit.


Ashe v. Swenson, 397 U.S. 436, 445 (1970); see also Headrick v. State, 988 S.W.2d 226, 228 (Tex.

Crim. App. 1999). Ashe holds that the rule of collateral estoppel is “embodied in the Fifth

Amendment’s guarantee against double jeopardy.” 397 U.S at 445. It may bar a later prosecution

for a separate offense where the government has lost an earlier prosecution involving the same facts.

United States v. Dixon, 509 U.S. 688, 705 (1993).

                Ashe mandates only two inquires in a criminal collateral estoppel claim. First, what

facts were necessarily determined in the first lawsuit? Second, has the government in the subsequent

trial tried to relitigate facts necessarily established against it in the first trial? Dedrick v. State, 623

S.W.2d 332, 336 (Tex. Crim. App. 1981). Further, elements that must be established by a party

seeking to assert a collateral estoppel bar to prosecution are: there must have been a full and fair

hearing in the first lawsuit at which the parties had an opportunity to thoroughly litigate the relevant


                                                    13
fact issue; the fact issue must be the same in both proceedings; and the fact finder acted in a judicial

capacity. State v. Aguilar, 947 S.W.2d 257, 259-60 (Tex. Crim. App. 1997).

               The dismissals which appellant claimed invoked collateral estoppel were attempts to

comply with the statutory dismissal procedure. Article 32.02 provides:


        The attorney representing the State may, by permission of the Court, dismiss a
        criminal action at any time upon filing a written statement with the papers in the case
        setting out his reasons for such dismissal, which shall be incorporated in the judgment
        of dismissal. No case shall be dismissed without the consent of the presiding judge.


Tex. Code Crim. Proc. Ann. art. 32.02 (West 1989).

                Evidence which appellant claims supports the plea in bar is trial evidence, not pretrial

hearing evidence. Appellant’s trial exhibits numbers 2 and 3 were the informations, motions to

dismiss, and accompanying orders in said cause numbers 456,269 and 456,101 in the County Court

at Law No. 3 of Travis County each styled State of Texas v. Stephen Kuhns. The informations

charged appellant with the offenses of DWLS occurring on January 6, 1996 and April 12, 1996. In

the State’s motion to dismiss in cause number 456,269, one of the reasons listed was that appellant

had been convicted of “speeding.” In cause number 456,101, one of the dismissal reasons was that

appellant had been convicted of the offense of “no insurance.” In each dismissal motion, a second

reason was given, “[D]efective service of notice of suspension.”

               As noted earlier, attorney Phipps, who represented appellant in the two causes,

entered the second reason in his own handwriting on the State’s motion before it was signed by either

the prosecutor on the trial court. He had reached a plea bargain in each case with the State in which




                                                  14
appellant pleaded guilty to certain traffic offenses and the State agreed to dismiss the two DWLS cases.

                There is nothing in the record to show that any evidence was offered in these two

cases or that any ultimate issue of fact was determined as required by Ashe, 397 U.S. at 445. No

punishment was assessed in these earlier cases and no jeopardy attached.

                We conclude that the dismissal did not litigate any ultimate issue of fact, and that the

trial court did not err in overruling the plea in bar or motion in quash. 7 The second point of error is

overruled.

                The judgment is affirmed.




                                                John F. Onion, Jr., Justice

Before Justices Kidd, Puryear and Onion*

Affirmed

Filed: March 28, 2002

Do Not Publish
*
    Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by
    assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).


    7
       Appellant’s second contention arose in a rather unusual manner. The trial judge, a visiting
judge, noting the waiting jury panel, the length of the pendency of the case, and the earlier possible
oral rulings by another judge not of record, summarily overruled the plea in bar. Counsel was told
to raise collateral estoppel on the motion for new trial in the event of a conviction. Based on trial
testimony, post-trial defense counsel did just that. After the motion for new trial was overruled
following a hearing, the trial court, at the request of defense counsel, found the written pretrial plea
in bar in the record and overruled it as of that date.

                                                  15
