           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                        NO. PD-1547-10



                            Ex parte DUSTIN DOAN, Appellant



         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE THIRD COURT OF APPEALS
                          TRAVIS COUNTY

       J OHNSON, J., filed a concurring opinion in which C OCHRAN and A LCALÁ, JJ.,
joined.

                            CONCURRING OPINION

       This Court granted review on a single ground: “The Court of Appeals erred in holding that

the Brazos County Attorney and the Travis County Attorney were not the ‘same parties’ for collateral

estoppel purposes.” That ground was the only issue briefed by the parties. That ground does not

require or even ask this Court to resolve the issue of whether collateral estoppel applies. Today the

Court resolves the only issue before it, finds that both prosecutor’s offices are “the State,” and

remands the cause to the court of appeals so that it may consider the remaining issue: given that the

Brazos County Attorney and the Travis County Attorney are the “same party” for collateral-estoppel

purposes, does collateral estoppel apply in the circumstances presented by this cause?
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         Ex parte Tarver, 725 S.W.2d 195 (Tex. Crim. App. 1986), examined whether a finding by

a district judge–that the evidence of a subsequent offense that was presented as grounds for revoking

a felony probation was “totally incredible”–barred prosecution of the subsequent offense in the

county court-at-law of the same county. That is not what we are deciding here, and so we need not,

at this time, consider the continuing validity of Tarver.1

         In 1987, the Legislature amended the Code of Criminal Procedure, Article 28.061. At the

time of that session, Art. 28.061 provided that

         [i]f a motion to set an indictment, information, or complaint for failure to provide a
         speedy trial as required by Article 32A.02 is sustained, the court shall discharge the
         defendant. A discharge under this article is a bar to any further prosecution for the
         offense discharged or for any other offense arising out of the same transaction.

         Article 32A.02 provided that

         [a] court shall grant a motion to set aside an indictment, information, or complaint
         if the state is not ready for trial within:
                  (1) . . . [felony];
                  (2) 90 days of the commencement of a criminal action if the defendant is
         accused of a misdemeanor punishable by a sentence of imprisonment for more than
         180 days; or
                  (3) 60 days of the commencement of a criminal action if the defendant is
         accused of a misdemeanor punishable by a sentence of imprisonment for 180 days
         or less or punishable by fine only.

         The practical effect of these two articles was an absolute bar to prosecution of a felony if a

lower court failed to try the accused on a lesser accusation from the same criminal transaction within

the statutory time period. Thus, if a person were accused of failure to signal a turn while fleeing



        1
          W hile the Tarver Court did, in footnote 3, “note that one need not be twice placed in jeopardy of criminal
punishment in order for collateral estoppel to apply,” the footnote continues: “See One Lot Emerald Cut Stones and
One Ring v. United States, 409 U.S. 232, 233-34 . . . (1972) (collateral estoppel would bar a civil forfeiture
proceeding if the elements of such forfeiture had been resolved against the government in an earlier criminal
proceeding.)”
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from a robbery that resulted in a death and the municipal prosecutor did not announce ready within

60 days, the felony prosecutor was barred from ever prosecuting the concurrent felony murder

because it was part of the same criminal transaction as the failure to signal.

       In 1987, the legislature resolved that issue by adding the words “other than an offense of a

higher grade that the attorney representing the state and prosecuting the offense that was discharged

does not have the primary duty to prosecute” to Article 28.061. The amendment clearly treated

municipal, county courts, and felony prosecutors as separate classes of parties. However, by using

the words “other than an offense of a higher grade that the attorney representing the state and

prosecuting the offense that was discharged does not have the primary duty to prosecute,” it did not

treat prosecutors within a class of prosecutors as a party separate from other prosecutors in the same

class. Thus, as the Court decides today, the Brazos County Attorney is the “same party” as the

Travis County Attorney.

       I join the opinion of the Court.



Filed: June 20, 2012
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