      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-05-00519-CR



                                  Federico Garza, Jr., Appellant

                                                  v.

                                   The State of Texas, Appellee



      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
        NO. CR-02-017, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found appellant Federico Garza, Jr., guilty of driving while intoxicated, third

offense (DWI). See Tex. Penal Code Ann. § 49.04(a) (West 2003), § 49.09(b)(2) (West Supp. 2006).

The jury assessed punishment, enhanced by previous felony convictions, at thirty-five years in

prison. In his only point of error, appellant contends the trial court erred by permitting the State to

offer evidence that he failed to appear at an earlier setting of this cause. We will overrule this

contention and affirm the conviction.

               Appellant was arrested for this offense on November 25, 2001, and indicted on

January 2, 2002. The indictment alleged the previous convictions required to make the DWI offense

a felony and to punish appellant as a habitual offender. On January 23, 2002, appellant did not

appear in district court for arraignment. On June 11, 2003, appellant was indicted for failing to

appear in a felony case. See id. § 38.10(a), (f) (West 2003). On August 22, 2004, appellant was
arrested in Tarrant County. Appellant’s district court trial for failing to appear ended with a directed

verdict of not guilty on May 3, 2005.

               Appellant’s trial in the instant cause began two weeks later, on May 16, 2005. Before

jury selection began, the prosecutor informed the court that the State intended to offer evidence of

appellant’s failure to appear and explained its reasoning:


       Judge Robison granted a directed verdict in the bail-jumping case and stated on the
       Record he believed the defendant did not have notice of having to appear on a felony
       case. While that may be true . . . it nevertheless is the case that for two and a half
       years the defendant was a fugitive from justice on this issue. That’s a separate issue
       on which Judge Robison did not rule on, those facts were not presented to the Court.


Over appellant’s objection, the State was permitted to offer evidence of appellant’s failure to appear

for arraignment in January 2002, of the unsuccessful efforts to locate him at that time, and of his

eventual arrest in August 2004. The jury was also informed that appellant had been tried and

acquitted for failing to appear. In his closing argument, the prosecutor told the jury:


               What I’m suggesting about that is, not necessarily that Mr. Garza committed
       any crime in doing that, because we all heard Officer Parham’s testimony that, when
       he arrested Mr. Garza he believed this was a misdemeanor. He only knew of one
       other prior DWI.

               ...

               I’m not so much concerned about that he failed to appear in January of 2002.
       What I’m concerned about is the fact that, in February of 2002, when we sent a
       deputy to his address to look for him and to explain to the resident there that he had
       a warrant and we were trying to find him he wasn’t there. And we were told that not
       only that he wasn’t there but he had left town. And the people living in his house
       didn’t even know where he was. Not only did we not know were he was then, we
       don’t even find out where he was, despite entering the warrant into the state
       computers, putting him out on Crime Stoppers, he doesn’t show back up again until
       he’s arrested on a new warrant two and [a] half years later.

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                If a person is a fugitive for two and [a] half years, is this evidence of
        somebody who thinks that he is innocent of the crime that he’s charged with? Or is
        this evidence of a person who knows what he’s doing?


Defense counsel also discussed the failure to appear in her argument to the jury:


                Now, Mr. Garza was arrested for a misdemeanor. We’re in felony court,
        okay? You have to know you’re supposed to be in court to come to court. . . . He
        didn’t even know. You don’t have proof that he knew. You have a dismissal order
        in there saying he didn’t know.


                Appellant argues that it was error to permit the State to offer evidence of an alleged

extraneous offense for which he had been acquitted. He relies on the holding in Stuart v. State, 561

S.W.2d 181 (Tex. Crim. App. 1978). In that case, a prosecution for rape, the State introduced

evidence that the defendant had committed two other rapes, apparently to prove lack of consent. Id.

The record showed that the defendant had been tried and acquitted for one of the earlier rapes. Id.

The court of criminal appeals held that the admission of the extraneous offense for which the

defendant had been acquitted was error:


        We feel that any application of an exception to the rule against admission of
        extraneous offenses must necessarily be to an occurrence which has not already been
        conclusively established by a verdict of acquittal to have not been an extraneous
        offense in the first place. The prosecution should not be allowed an exception when
        they have failed to come within the ambit of the general rule.


Id. at 182 (citation omitted). Although the court did not use the term “collateral estoppel,” it appears

that this was the basis for its holding, as the authorities it cited were Ashe v. Swenson and two circuit

court opinions applying it. See Ashe v. Swenson, 397 U.S. 436 (1970); Blackburn v. Cross, 510 F.2d

1014 (5th Cir. 1975); Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972). In addition, the court

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of criminal appeals later described the holding in Stuart as based on collateral estoppel. Dedrick v.

State, 623 S.W.2d 332, 336 (Tex. Crim. App. 1981).

               In Ashe, the Court held that the Fifth Amendment guarantee against double jeopardy

includes a collateral estoppel element. 397 U.S. at 445. This means 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.” Id. at 443.

               It was undisputed below that appellant was found not guilty of failing to appear based

solely on the district court’s determination that he did not know that he was accused of a felony.

This was, in other words, the only fact issue determined in that prosecution. The State did not seek

to relitigate this issue at the trial below. Instead, the State was allowed to offer evidence that

appellant left town after being arrested for DWI, failed to appear for arraignment, and was not

located for over two years. There is no showing that these facts were determined against the State

at the earlier trial. No collateral estoppel violation is shown.

               The point of error is overruled and the judgment of conviction is affirmed.




                                               __________________________________________

                                               Bob Pemberton, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Affirmed

Filed: February 1, 2007

Do Not Publish

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