      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00104-CR




                                 Brandi Dawn Shaw, Appellant

                                                 v.

                                  The State of Texas, Appellee



     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
         NO. 2044249, HONORABLE CHARLES F. BAIRD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Brandi Dawn Shaw appeals an order revoking community supervision and

imposing sentence. She contends that the State was collaterally estopped from asserting the

probation violation on which the revocation order was based and that the evidence is insufficient to

support the court’s finding. We overrule these contentions and affirm the order.

               On May 13, 2005, appellant was placed on community supervision in Travis County

for five years after she was adjudged guilty of felony driving while intoxicated (DWI). See Tex.

Penal Code Ann. § 49.04 (West 2003), § 49.09 (West Supp. 2009). On May 1, 2008, a motion

to revoke was filed alleging, among other violations, that on March 29, 2008, appellant committed

a DWI offense in McLennan County.             Following a hearing on the motion, the court

ordered that appellant be continued on community supervision subject to amended conditions. On

February 6, 2009, another motion to revoke was filed. Once again, one of the alleged violations was
the March 29, 2008, McLennan County DWI. Following a hearing, the trial court found this (and

only this) allegation to be true, revoked appellant’s community supervision, and imposed sentence

of four years’ imprisonment.

               Appellant contends that the State, having litigated her alleged commission of the

McLennan County DWI at the hearing on the May 2008 motion to revoke, was collaterally estopped

from reurging it in the February 2009 motion. The State urges that appellant did not preserve this

contention for review because she failed to raise it below. Appellant argues that she may raise the

issue under the rule announced in Gonzalez v. State, 8 S.W.3d 640 (Tex. Crim. App. 2000). In

Gonzalez, the court held that a double jeopardy violation may be raised for the first time on appeal

if the violation is clearly apparent on the face of the record and the enforcement of the usual rules

of procedural default would serve no legitimate state interest. Id. at 643. The State asserts that

Gonzalez does not apply to collateral estoppel claims. We conclude that even if Gonzalez applies,

no collateral estoppel violation is apparent on the face of the record.

               The collateral estoppel rule “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, 443 (1970). In Ashe, the Court

held that the Double Jeopardy Clause incorporates collateral estoppel as a constitutional requirement.

Id. at 445. To determine whether collateral estoppel bars a subsequent prosecution or bars

relitigation of certain facts at a subsequent prosecution, courts must determine (1) exactly what facts

were necessarily decided in the first proceeding, and (2) whether those necessarily decided facts

constitute essential elements of the offense in the second trial. Ex parte Taylor, 101 S.W.3d 434,



                                                  2
440 (Tex. Crim. App. 2002). The very fact or point in issue must have been determined in the prior

proceeding. Id. at 441. The entire record from the earlier proceeding must be examined with realism

and rationality to determine precisely what fact or combination of facts were necessarily decided and

which will then bar their relitigation. Id. The question is not whether there is a possibility that an

ultimate fact was determined adversely to the prosecution; rather, the outcome of the earlier

proceeding must necessarily have been grounded on the issue which the defendant seeks to foreclose

from relitigation. Ladner v. State, 780 S.W.2d 247, 254 (Tex. Crim. App. 1989). It is the

defendant’s burden to demonstrate that the factual issue he seeks to foreclose was actually decided

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

                A probation revocation hearing can give rise to collateral estoppel. Ex parte Tarver,

725 S.W.2d 195 (Tex. Crim. App. 1986); State v. Getman, 255 S.W.3d 381, 385 (Tex. App.—Austin

2008, no pet.). For collateral estoppel to apply, (1) there must be a fact-finding by the trial court at

the probation revocation proceeding that illustrates the basis for the court’s decision, and (2) that

fact-finding must be adverse to the State on a fact elemental to the subsequent prosecution. Getman,

255 S.W.3d at 385 (citing Jaime v. State, 81 S.W.3d 920, 926 (Tex. App.—El Paso 2002, pet. ref’d);

Wafer v. State, 58 S.W.3d 138, 141 (Tex. App.—Amarillo 2001, no pet.)). A finding of fact adverse

to the State at a revocation hearing will collaterally estop the State from relitigating that fact at a

subsequent revocation hearing. Ex parte Byrd, 752 S.W.2d 559, 562-63 (Tex. Crim. App. 1988).

                The May 2008 motion to revoke was heard by the trial court on October 6, 2008. The

only record we have from that hearing is the court’s order, dated the same day. That order recites

that “after hearing the evidence submitted, [the court] is of the opinion, and so finds, that the



                                                   3
defendant’s Community Supervision should be not be revoked [sic] at this particular time.” The

order does not contain any findings of fact, much less a finding adverse to the State on a fact

elemental to the McLennan County DWI allegation. All that is shown by the October 6 order is that

the court exercised its discretion to continue appellant’s community supervision. See Tex. Code

Crim. Proc. Ann. art. 42.12, § 21(e) (West Supp. 2009). The mere overruling of a motion to revoke

is not an adverse fact-finding that raises a collateral estoppel bar. Tarver, 725 S.W.2d at 200. A

court may chose to continue a defendant on community supervision even if it finds that the

allegations in a motion to revoke are true. Id.

                It is appellant’s burden to demonstrate that a finding adverse to the State regarding

an essential element of the McLennan County DWI was actually made at the October 2008

revocation hearing. See Getman, 255 S.W.3d at 385. Although a finding of fact adverse to the State

may be implicit as well as explicit, it must nevertheless be clear under the circumstances. Id. at 388.

The mere possibility that an adverse finding was made is not sufficient to raise a collateral estoppel

bar. See Ladner, 780 S.W.2d at 254. Because no violation of the collateral estoppel component of

the Double Jeopardy Clause is apparent on the face of the record, issue one is overruled.

                Appellant also seeks to raise her collateral estoppel claim under the Texas

Constitution. See Tex. Const. art. I, § 14. Appellant concedes that the double jeopardy guarantees

found in the Texas and United States constitutions have generally been held to be identical. See

Ex parte Mitchell, 977 S.W.2d 575, 580 (Tex. Crim. App. 1997). She notes, however, that in Bauder

v. State, the court of criminal appeals held that article I, section 14 barred the State from retrying a

defendant following a mistrial resulting from a prosecutor’s reckless misconduct. 921 S.W.2d 696,



                                                   4
699 (Tex. Crim. App. 1996). The federal constitution, on the other hand, bars a retrial only when

a prosecutor deliberately provokes a mistrial. See Oregon v. Kennedy, 456 U.S. 667, 679 (1982).

By analogy to Bauder, appellant argues that the Texas Constitution should be held to prohibit the

State from reurging a ground for revoking community supervision that a prosecutor failed to prove

at an earlier revocation hearing.

               Bauder and its progeny have been overruled. Ex parte Lewis, 219 S.W.3d 335, 371

(Tex. Crim. App. 2007). In any event, appellant’s argument fails as a factual matter because the

record does not demonstrate that the State’s proof at the October 2008 hearing was inadequate. As

we have already discussed, the trial court’s October 6, 2008 order continuing appellant’s community

supervision does not contain any finding of fact adverse to the State. Issue two is overruled.

               Finally, appellant contends that the evidence does not support the trial court’s finding

that she violated the conditions of supervision by committing the alleged McLennan County DWI.

We review the decision to revoke community supervision for an abuse of discretion. Rickels v. State,

202 S.W.3d 759, 763 (Tex. Crim. App. 2006) (citing Cardona v. State, 665 S.W.2d 492, 493 (Tex.

Crim. App. 1984)). The burden of proof at a revocation hearing is by a preponderance of

the evidence; the greater weight of the credible evidence must create a reasonable belief that

the defendant violated a condition of supervision. Id. at 763-64 (citing Scamardo v. State,

517 S.W.2d 293, 298 (Tex. Crim. App. 1974)).

               The principal witness at the revocation hearing was Department of Public Safety

Trooper Bradley Couch. Couch testified that at 2:50 a.m. on March 29, 2008, he stopped a car for

speeding on Interstate 35 in McLennan County. The driver of the car was Jean Hillen. Appellant



                                                  5
was “sprawled out” in the passenger’s seat of Hillen’s car with her eyes closed. Couch testified that

he noticed the odor of alcoholic beverage coming from inside the car, so he asked Hillen to step

outside. Couch administered the horizontal gaze nystagmus test to Hillen and detected no clues

indicating intoxication. Couch said that he was about to issue Hillen a speeding ticket when

appellant, who Hillen had said was intoxicated, “climbed from the passenger seat over into the

driver’s seat, and the car took off on us.” Couch told Hillen to get into his patrol car, and he gave

chase. Couch quickly caught up with appellant and succeeded in stopping the car with the assistance

of a second trooper. Couch testified that appellant “looked pretty disoriented” and was unable to

open the window or unlock the door of the car.

                Couch arrested appellant for evading arrest or detention. See Tex. Penal Code Ann.

§ 38.04 (West Supp. 2009). As he drove appellant to the county jail in his patrol car, Couch noticed

a “strong odor of alcohol on her person.” For most of the drive, “her head slumped over . . . to the

door post and her eyes closed.” At the jail, appellant was unsteady on her feet and had difficulty

maintaining her balance. Her eyes were glazed, and she seemed unaware of what was happening.

The officer did not attempt to conduct any field sobriety tests, and appellant refused to submit to a

breath test. Couch testified that in his opinion, appellant was intoxicated.

                The only other witness at the hearing was the second trooper, David Armstrong.

Armstrong testified that his contact with appellant was brief, “but what I did observe was that

Ms. Shaw was unable to stand up straight under her own power. She appeared just to be—from my

experience, just to be out of it, for lack of better terms.”




                                                   6
               Appellant argues that the odor of alcohol, confusion, and balance problems do not

necessarily equate with intoxication. This may be true, but viewing the testimony in the light most

favorable to the trial court’s order, we find no abuse of discretion in the court’s decision to revoke.

The trial court could reasonably have found that the greater weight of the credible evidence

created a reasonable belief that appellant violated the conditions of her community supervision

by driving while intoxicated in McLennan County on March 29, 2008. See Whisenant v. State,

557 S.W.2d 102, 105 (Tex. Crim. App. 1977) (holding that testimony of arresting officer at

revocation hearing was sufficient to support intoxication finding). Issue three is overruled.

               The order revoking community supervision is affirmed.




                                               __________________________________________

                                               J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Waldrop and Henson

Affirmed

Filed: December 3, 2009

Do Not Publish




                                                  7
