Ex Parte Corey Davison v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 29, 2024
• Docket: 01-23-00728-CR
• Status: Published

Opinion

Opinion issued August 29, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NOS. 01-23-00728-CR & 01-23-00729-CR ——————————— EX PARTE COREY DAVISON ______________________ THE STATE OF TEXAS, Appellant V. COREY DAVISON, Appellee

On Appeal from the 178th District Court Harris County, Texas Trial Court Case Nos. 1822734 & 1764779

MEMORANDUM OPINION

In these two causes arising from a single hearing, the State of Texas appeals

the trial court’s order granting appellee Corey Davison’s application for writ of

habeas corpus in cause number 1822734 and its order dismissing the indictment in cause number 1764779. In its sole point of error, the State contends that the trial

court abused its discretion in granting the application and dismissing the indictment

against Davison based on a legal theory explicitly rejected by the Texas Court of

Criminal Appeals. We reverse.

Background

A detailed recitation of the procedural history in this case is necessary to our

discussion of the appeal.

On February 8, 2019, Davison was indicted for continuous sexual abuse of a

child in cause number 1620992. The indictment alleged that Davison committed at

least two acts of sexual abuse against N.W., a child younger than fourteen years of

age, between July 16, 2016 and January 26, 2017. At the time of the indictment,

Davison was on deferred adjudication community supervision for aggravated assault

of a family member in cause number 1541644.1

The State moved to adjudicate Davison’s guilt in the aggravated assault case.

On August 4, 2020, the State filed a “3rd Amended Motion to Adjudicate Guilt.”

The motion alleged several new law violations, most of which were sexual offenses

against the complainant, N.S.W., alleged in cause number 1620992.

On March 3, 2020, while the motion to adjudicate in cause number 1541644

was pending, the State moved to dismiss the charge of continuous sexual abuse

1 Davison pleaded guilty to the charged offense in 2018. 2 against Davison in cause number 1620992. The motion to dismiss stated that the

complainant’s mother was “not cooperative at this time” but that the case was subject

to refiling, and it included a notation to use the new law violation in the motion to

adjudicate hearing.

The trial court held a hearing on the State’s motion to adjudicate guilt in

October 2020. At the conclusion of the hearing, the trial court found all allegations

in the motion to adjudicate guilt “not true,” including the allegations of sexual abuse

against the complainant, and it reinstated Davison’s deferred adjudication

community supervision.

On March 31, 2022, the State re-indicted Davison for continuous sexual abuse

of a child, N.S.W., in cause number 1764779. The dates of alleged abuse in the

refiled indictment were the same as the previous indictment, July 16, 2016 through

January 26, 2017, but the complainant was now referred to as N.S.W. instead of just

N.W. 2

On June 6, 2023, Davison filed an application for writ of habeas corpus

seeking to prevent the State from proceeding on the charge of continuous sexual

abuse of child in cause number 1764779 under the theory of collateral estoppel. He

argued that the offenses alleged in cause number 1764779 and cause number

2 The record reflects that N.W. in cause number 1620992 and N.S.W. in cause number 176477 are the same complainant. 3 1620992 were identical—alleging the same complainant (“N.W.” and “N.S.W.”)

and the same time frame (July 16, 2016 through January 26, 2017). He asserted that

the evidence regarding the offense for which he was indicted in cause number

1620992 and now indicted in cause number 1764779 had already been presented for

the court’s consideration in the State’s 3rd Amended Motion to Adjudicate heard in

October 2020, and the trial court found the allegations “not true.” He argued that the

State’s decision to not try him for the continuous sexual abuse offense but to instead

proceed on it at the motion to adjudicate hearing was an attempt by the State to retry

him for the same offense litigated in its motion to adjudicate. Davison contended

that the trial court’s finding of “not true” necessitated a conclusion that the trial court

found the State’s evidence insufficient under the lesser burden of preponderance of

evidence applicable to a motion to adjudicate guilt. Thus, he argued, any further

prosecution of him for continuous sexual abuse of N.S.W. was prohibited under the

doctrine of collateral estoppel.3

The trial court held two hearings on Davison’s writ application. At the first

hearing, the State argued that in State v. Waters, 560 S.W.3d 651 (Tex. Crim. App.

2018), the Court of Criminal Appeals held that a trial court’s finding of “not true” at

3 The elements necessary to support collateral estoppel are (1) a “full hearing” at which the parties had an opportunity to thoroughly and fairly litigate the relevant fact issue, (2) the fact issue must be the same in both proceedings, and (3) the fact finder must have acted in a judicial capacity. State v. Aguilar, 947 S.W.2d 257, 259– 60 (Tex. Crim. App. 1997). 4 a probation revocation hearing did not collaterally estop the State from using those

same allegations in a subsequent criminal prosecution. The trial judge stated that she

recalled finding the allegations “not true” at the motion to adjudicate hearing.

However, as there was no record of its ruling at the October 2020 hearing, the trial

court decided to hold a subsequent hearing so that the court reporter and court liaison

officer present at the motion to adjudicate hearing could testify about their memories

of the ruling.

At the second writ hearing, the court reporter who had been present at the

October 2020 adjudication hearing testified that she had no personal memory of the

outcome of the hearing. She further testified that she had a note stating “not true and

probation reinstated,” but she did not recall the source of the information. The court

liaison officer who had been present at the October 2020 hearing testified that he did

not remember the hearing, but that his notes showed that the trial court had found

the allegations “not true.” Following the witnesses’ testimony, the State argued that

Waters had eliminated the doctrine of collateral estoppel for cases in this posture.

The prosecutor stated that even if collateral estoppel applied, the defense had not

produced a record showing what was found at the October 2020 hearing. Defense

counsel responded that Waters was distinguishable from the present case because

the revocation proceeding in Waters had been perfunctory while the revocation

5 proceeding in this case—at which the State had attempted to call witnesses and offer

evidence to try and prove up the allegations—was extensive.

After reading Waters during a recess, the trial court stated that it was granting

the relief requested by Davison in his application for writ of habeas corpus. On

September 29, 2022, the trial court signed orders granting the writ in cause number

1822734 and dismissing the indictment in cause number 1764779. The State filed

this appeal.4

Standard of Review

We review a trial court’s grant of habeas relief for an abuse of discretion. Ex

parte Becciu, 615 S.W.3d 482, 491 (Tex. App.—Houston [1st Dist.] 2020, pet.

denied) (citing Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex

parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006)). We afford almost

total deference to a trial court’s fact findings when supported by the record,

especially when the findings are based upon credibility and demeanor. State v.

Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013); Ex parte Becciu, 615

S.W.3d at 491. We afford the same amount of deference to the trial court’s

application of the law to the facts when the resolution of the ultimate question turns

on an evaluation of credibility and demeanor. Ex parte Vasquez, 499 S.W.3d 602,

4 The State may appeal an order dismissing an indictment. See TEX. CODE CRIM. PROC. art. 44.01(a)(1). 6 606 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d). We review de novo mixed

questions of law and fact that do not depend upon credibility and demeanor. Ex parte

Weinstein, 421 S.W.3d 656, 664 (Tex. Crim. App. 2014).

Discussion

In its sole point of error, the State contends that the trial court abused its

discretion by dismissing the charge against Davison in cause number 1764779 based

on a legal theory explicitly rejected by the Texas Court of Criminal Appeals. It

argues that in Ex parte Tarver, 725 S.W.2d 195 (Tex. Crim. App. 1986), the Texas

Court of Criminal Appeals held that a trial court’s finding of “not true” at a probation

revocation proceeding collaterally estopped the State from proceeding with a

criminal charge on those same allegations.5 It notes, however, that in State v. Waters,

560 S.W.3d 651 (Tex. 2018), the Court explicitly overruled In re Tarver and held

that “a subsequent criminal prosecution is not barred following a trial judge’s finding

of ‘not true’ at a revocation hearing.” Id. at 663.

Davison responds that the present case is distinguishable from Waters

because, in Waters, the State put forth no substantive evidence of a new law violation

5 While a hearing on whether a defendant violated the terms of community supervision may be called an “adjudication hearing,” it is governed by the same rules as a hearing to revoke community supervision and is, in practical terms, a hearing on whether to revoke the defendant’s deferred adjudication community supervision. Leonard v. State, 385 S.W.3d 570, 572 n.1 (Tex. Crim. App. 2012).

7 in the probation revocation hearing whereas, here, the State put forth substantive

evidence in the motion to adjudicate hearing. Davison argues that the holding in

Waters should be narrowly applied to similar factual situations and not extended to

the present case.

A. Applicable Law

The Double Jeopardy Clause of the Fifth Amendment, applicable to the states

through the Fourteenth Amendment, protects an accused against a second

prosecution for the same offense for which he has been previously acquitted or

previously convicted. Littrell v. State, 271 S.W.3d 273, 275 (Tex. Crim. App. 2008).

In Ashe v. Swenson, 397 U.S. 436 (1970), the United States Supreme Court held that

collateral estoppel is one of the protections embodied within the Fifth Amendment

guarantee against double jeopardy.6 See id. at 443; see also State v. Aguilar, 947

S.W.2d 257, 259 (Tex. Crim. App. 1997). Collateral estoppel “means simply that

when an issue of ultimate fact has once been determined by a valid and final

6 In Ashe v. Swenson, several armed men robbed a victim who was playing in a poker game with five other men. See 397 U.S. 436, 438 (1970). The defendant was charged in separate counts with robbery of each of the six poker players. See id. The jury acquitted the defendant for insufficient evidence in the prosecution for robbery of one of the other victims. See id. at 441-42. Noting that “[t]he single rationally conceivable issue in dispute before the jury was whether the [defendant] had been one of the robbers” and “the jury by its verdict found that he had not,” the Court concluded that the rule of collateral estoppel precluded a subsequent prosecution of the defendant for robbery of a different player. Id. at 445. 8 judgment, that issue cannot again be litigated between the same parties in any future

lawsuit.” Ashe, 397 U.S. at 443.

The Court of Criminal Appeals later considered the doctrine in the context of

a probation revocation hearing. See Ex parte Tarver, 725 S.W.2d 195 (Tex. Crim.

App. 1986). In Tarver, the defendant was found guilty of the offense of possession

of cocaine and was granted probation for a period of ten years. See id. at 196. When

the defendant was later charged with assault, the State filed a motion to revoke his

probation based on the allegation that the defendant had violated the terms of his

probation by committing assault. See id. Following a probation revocation hearing,

the trial court granted a defense motion to find the allegation “not true,” and the

motion to revoke probation was denied. See id.

The defendant filed an application for writ of habeas corpus in the county

criminal court at law where the assault charge was pending, asking that the charge

be dismissed because the ruling of the district court at the probation revocation

hearing represented a finding that applicant was not guilty of the charged assault,

and the State was therefore barred from prosecuting him for the same offense. See

id. Following a hearing, the trial court denied the relief sought. See id. This Court

reversed, granted relief, and ordered the information and prosecution dismissed. See

id. at 197. The Court of Criminal Appeals affirmed this Court’s judgment, holding

that the doctrine of collateral estoppel bars the State from prosecuting an offense

9 following a trial judge’s finding of ‘not true’ as to the commission of that same

offense at an earlier probation revocation hearing. See id. at 200.

In 2018, the Court of Criminal Appeals revisited its precedent in Tarver to

determine whether the decision remained good law. See State v. Waters, 560 S.W.3d

651 (Tex. Crim. App. 2018). In Waters, the defendant was on community

supervision for an offense when she was arrested for driving while intoxicated

(DWI). See id. at 654. The State filed a motion to revoke the defendant’s community

supervision alleging, among other grounds, that she had violated the terms of her

supervision by committing another criminal offense. See id. Following a hearing, the

trial court found the allegation that the defendant had violated the terms of her

probation by committing the offense of DWI “not true,” rejected the State’s motion

to revoke, and issued an order continuing the defendant on community supervision.

See id.

Later, the State filed an information charging the defendant with the same

instance of DWI that had been alleged in the motion to revoke. See id. Relying on

Tarver, the defendant filed a pretrial application for a writ of habeas corpus arguing

that because the State had previously sought to revoke her community supervision

based on the same instance of DWI that was alleged in the information, and the trial

judge at the revocation hearing had found that allegation “not true,” the State was

precluded from prosecuting her for that offense. See id. at 655. The trial court agreed,

10 granted the defendant’s request for pretrial habeas relief, and dismissed the

information against her. See id.

The court of appeals upheld the lower court’s judgment and concluded that

any subsequent prosecution for the DWI offense constituted an attempt by the State

to relitigate the same fact issue that had already been resolved against it, and the

prosecution was thus barred by collateral estoppel under Tarver. See id. On the

State’s petition for discretionary review, the Court of Criminal Appeals overruled

Tarver and held that a trial court’s finding of “not true” did not estop the State from

prosecuting the defendant in a different case for the same allegations. See id. at 663.

Davison contends that the facts of the present case are distinguishable from

those in Waters. He points out that, in Waters, the only evidence offered by the State

that the defendant committed the offense of DWI while on probation was the

testimony of the community supervision officer. At the hearing, the officer testified

that he was aware that the defendant had been arrested for DWI but that he otherwise

had no personal knowledge of the facts surrounding the alleged offense. See id. at

654. Davison argues that the facts in the present case stand in stark contrast to the

facts in Waters. In particular, he points to the fact that during the revocation hearing

in this case the State called multiple witnesses and unsuccessfully offered medical

records into evidence in an effort to prove the allegations by the lower standard of a

preponderance of the evidence applicable in revocation hearings. Davison argues

11 that the critical difference between the present case and Waters is the level of effort

by the State to prove the allegations. We are not persuaded.

While the Court in Waters noted that the State’s sole evidence in support of

its allegation that the defendant had committed DWI was the community supervision

officer’s testimony, its holding and explicit overruling of Tarver did not turn on this

fact. Rather, the Court examined the two rationales on which its decision in Tarver

could have been based—federal collateral estoppel principles as embodied in the

double jeopardy clause of the Fifth Amendment or, alternatively, state common law

estoppel principles. See id. at 657. With respect to the first basis, the Court concluded

that federal double jeopardy principles are not implicated under these circumstances

because a person facing an allegation of a new offense at a probation revocation

hearing has not been placed in jeopardy of punishment for that offense given that

guilt or innocence is not the central issue at a revocation hearing. See id. at 658–59.

With respect to the second basis, the Court determined that significant legal and

policy considerations counsel against application of state common law estoppel

principles. See id. As the Court noted in a later decision, “[t]he upshot of Waters is

that a criminal defendant has neither a constitutional nor even a common-law right

to invoke collateral estoppel in a criminal proceeding following a finding of ‘not

true’ at an earlier probation-revocation hearing.” Simpson v. State, 591 S.W.3d 571,

574 (Tex. Crim. App. 2020). Nothing in Waters suggests that the Court’s holding

12 turned on the amount of evidence the State offered to prove up the allegation against

the defendant, or that it otherwise narrowed its holding to cases in which the State

makes little effort to prove the allegations.

Consistent with Waters, the trial court’s finding of “not true” at the hearing

on the State’s motion to adjudicate guilt did not collaterally estop the State from later

proceeding with a criminal charge against Davison on those same allegations. See

Winters, 560 S.W.3d at 663. We hold that the trial court abused its discretion in

granting Davison’s application for writ of habeas corpus in cause number 1822734

and dismissing the indictment in cause number 1764779. Accordingly, we sustain

the State’s sole issue.7

Conclusion

We reverse the trial court’s orders granting Davison’s application for writ of

habeas corpus in cause number 1822734 and dismissing the indictment in cause

number 1764779 and remand these causes to the trial court for further proceedings

consistent with this opinion.

Amparo Monique Guerra Justice

Panel consists of Justices Landau, Countiss, and Guerra.

7 In light of our holding, we do not reach the State’s additional argument that even if collateral estoppel applied in this case, Davison failed to make an adequate showing. See TEX. R. APP. P. 47.1. 13 Do not publish. Tex. R. App. P. 47.2(b).