AFFIRM; and Opinion Filed December 3, 2013.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00853-CR
DERWIN DWIGHT MOORE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F11-26009-N
MEMORANDUM OPINION Before Justices O'Neill, Lang-Miers, and Evans Opinion by Justice Lang-Miers A jury convicted appellant Derwin Dwight Moore of serious bodily injury to a child 14
years of age or younger and assessed punishment at 45 years in prison and a $5,000 fine. The
trial court’s judgment also assesses $244 in court costs against appellant. Appellant raises two
issues on appeal arguing that the trial court erred when it admitted evidence of an extraneous
offense and that the evidence is insufficient to support the trial court’s assessment of court costs
against appellant. We affirm.
FIRST ISSUE
In his first issue appellant argues that the trial court abused its discretion during the
punishment phase of his trial when it allowed the State to introduce evidence concerning a 2004 criminal trial in which appellant was acquitted of the capital murder of Draylen Moore, a child
under the age of six.
Background
Before the punishment phase of appellant’s trial, and outside the presence of the jury,
appellant’s counsel objected to the State’s intent to introduce evidence relating to appellant’s
2004 trial. The State explained that it wanted to elicit testimony that a total of three children had
been injured while in appellant’s care, including the child whose death was at issue in 2004. The
State argued that this evidence was admissible for two alternative reasons. First, the evidence
would show a violation of the penal code for endangering a child or injury to a child by
omission, which had not been litigated. Alternatively, even if it did not rise to the level of a
criminal offense, it would show a bad act of “failing to protect from injury children in his care.”
In response, appellant’s counsel argued that the issues of endangerment or failure to protect
“should have been litigated in the capital murder case.” The trial court overruled appellant’s
objection and explained,
The Court disagrees with [counsel for appellant]. What was litigated to my understanding in the capital murder case was whether or not he intentionally caused the injury that led to the child’s death.
I’m going to overrule your objection. I will allow the State to go into their bad act theory but I do not want any evidence before this jury of who caused the injury.
Obviously, you’re going to have to get into the fact that there was an injury and that it was an injury that caused death, but I do not want any evidence about who caused the injury or what caused the injury.
That’s been litigated. The omission, the bad act you’re talking about, the failure to protect has not been litigated. I will allow that in as a bad act for punishment.
During the punishment phase of appellant’s trial, the mother of the child whose injuries
were at issue in this case, Michelle Sanders, testified that she was also the mother of appellant’s
son Draylen Moore. Sanders testified that Draylen died in 2004 at the age of four months after
she dropped him off with appellant. Dr. Lynn Salzberger, the medical examiner who performed –2– Draylen’s autopsy also testified for the State. She described Draylen’s external and internal
injuries and testified that his death was ruled a homicide because he “died as the result of blunt
force injury.”
Analysis
On appeal appellant argues that despite the State’s argument that it was not relitigating
the issue of whether appellant intentionally caused Draylen’s death, “what the record actually
shows is that the State presented evidence clearly designed to prove to the jury that [a]ppellant
caused the child’s injuries and death.” As a result, appellant argues, the jury in this case was
presented with the same issue as in appellant’s capital murder case—appellant’s guilt in having
caused Draylen’s death—which is barred by the doctrine of collateral estoppel. In response, the
State argues that appellant has failed to carry his burden to prove that the evidence was barred by
collateral estoppel because appellant did not produce any part of the record from his capital
murder trial. We agree with the State.
The doctrine of collateral estoppel prevents the State from contesting in any subsequent
proceedings any discrete fact issue that a jury necessarily already determined in a criminal
defendant’s favor. Ex parte Watkins, 73 S.W.3d 264, 268 (Tex. Crim. App. 2002). Collateral
estoppel bars relitigation of a discrete fact only if that fact was necessarily decided in favor of
the defendant in the first trial. Id. “The mere possibility that a fact may have been determined in
a former trial is insufficient to bar relitigation of that same fact in a second trial.” Id. To decide
whether collateral estoppel applies, a reviewing court must determine exactly what facts were
necessarily decided in the first proceeding. Id. To do so we “must review the entire trial record,
as well as the pleadings, the charge, and the arguments of the attorneys.” Id.
It is appellant’s burden to demonstrate that any fact issues he sought to foreclose in this
case were actually decided in his capital murder trial. See Guajardo v. State, 109 S.W.3d 456,
–3– 460 (Tex. Crim. App. 2003). Appellant cannot meet that burden because he failed to provide an
appellate record that contains the record from his capital murder trial. See, e.g., id. at 462
(“Because the trial court denied appellant’s claim of collateral estoppel, and neither the court of
appeals nor this Court has a transcript of the first suppression hearing, we hold that appellant
failed to provide a sufficient appellate record to review the trial court’s ruling.”). As a result, we
resolve appellant’s first issue against him.
SECOND ISSUE
In his second issue appellant argues that the trial court’s judgment should be reformed to
delete the assessment of $244 in court costs against him because the clerk’s record does not
contain a bill of costs. He argues that without a written bill of costs, the evidence is insufficient
to support the assessment of court costs.
In light of appellant’s complaint that the clerk’s record did not contain a bill of costs, we
ordered the Dallas County District Clerk to file a supplemental record containing the certified
bill of costs associated with this case, and the clerk did so. See TEX. R. APP. P. 34.5(c)(1) (rules
of appellate procedure allow supplementation of clerk’s record if relevant item has been
omitted); see also Franklin v. State, 402 S.W.3d 894, 895 (Tex. App.—Dallas 2013, no pet.);
Ballinger v. State, 405 S.W.3d 346, 348 (Tex. App.—Texarkana 2013, no pet.) (“[W]hen a trial
court’s assessment of costs is challenged on appeal and no bill of costs is in the record, it is
appropriate to supplement the record pursuant to Rule 34.5(c) because a bill of costs is required
by [Texas Code of Criminal Procedure] Article 103.006.”). Because the record now contains a
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AFFIRM; and Opinion Filed December 3, 2013.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00853-CR
DERWIN DWIGHT MOORE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F11-26009-N
MEMORANDUM OPINION Before Justices O'Neill, Lang-Miers, and Evans Opinion by Justice Lang-Miers A jury convicted appellant Derwin Dwight Moore of serious bodily injury to a child 14
years of age or younger and assessed punishment at 45 years in prison and a $5,000 fine. The
trial court’s judgment also assesses $244 in court costs against appellant. Appellant raises two
issues on appeal arguing that the trial court erred when it admitted evidence of an extraneous
offense and that the evidence is insufficient to support the trial court’s assessment of court costs
against appellant. We affirm.
FIRST ISSUE
In his first issue appellant argues that the trial court abused its discretion during the
punishment phase of his trial when it allowed the State to introduce evidence concerning a 2004 criminal trial in which appellant was acquitted of the capital murder of Draylen Moore, a child
under the age of six.
Background
Before the punishment phase of appellant’s trial, and outside the presence of the jury,
appellant’s counsel objected to the State’s intent to introduce evidence relating to appellant’s
2004 trial. The State explained that it wanted to elicit testimony that a total of three children had
been injured while in appellant’s care, including the child whose death was at issue in 2004. The
State argued that this evidence was admissible for two alternative reasons. First, the evidence
would show a violation of the penal code for endangering a child or injury to a child by
omission, which had not been litigated. Alternatively, even if it did not rise to the level of a
criminal offense, it would show a bad act of “failing to protect from injury children in his care.”
In response, appellant’s counsel argued that the issues of endangerment or failure to protect
“should have been litigated in the capital murder case.” The trial court overruled appellant’s
objection and explained,
The Court disagrees with [counsel for appellant]. What was litigated to my understanding in the capital murder case was whether or not he intentionally caused the injury that led to the child’s death.
I’m going to overrule your objection. I will allow the State to go into their bad act theory but I do not want any evidence before this jury of who caused the injury.
Obviously, you’re going to have to get into the fact that there was an injury and that it was an injury that caused death, but I do not want any evidence about who caused the injury or what caused the injury.
That’s been litigated. The omission, the bad act you’re talking about, the failure to protect has not been litigated. I will allow that in as a bad act for punishment.
During the punishment phase of appellant’s trial, the mother of the child whose injuries
were at issue in this case, Michelle Sanders, testified that she was also the mother of appellant’s
son Draylen Moore. Sanders testified that Draylen died in 2004 at the age of four months after
she dropped him off with appellant. Dr. Lynn Salzberger, the medical examiner who performed –2– Draylen’s autopsy also testified for the State. She described Draylen’s external and internal
injuries and testified that his death was ruled a homicide because he “died as the result of blunt
force injury.”
Analysis
On appeal appellant argues that despite the State’s argument that it was not relitigating
the issue of whether appellant intentionally caused Draylen’s death, “what the record actually
shows is that the State presented evidence clearly designed to prove to the jury that [a]ppellant
caused the child’s injuries and death.” As a result, appellant argues, the jury in this case was
presented with the same issue as in appellant’s capital murder case—appellant’s guilt in having
caused Draylen’s death—which is barred by the doctrine of collateral estoppel. In response, the
State argues that appellant has failed to carry his burden to prove that the evidence was barred by
collateral estoppel because appellant did not produce any part of the record from his capital
murder trial. We agree with the State.
The doctrine of collateral estoppel prevents the State from contesting in any subsequent
proceedings any discrete fact issue that a jury necessarily already determined in a criminal
defendant’s favor. Ex parte Watkins, 73 S.W.3d 264, 268 (Tex. Crim. App. 2002). Collateral
estoppel bars relitigation of a discrete fact only if that fact was necessarily decided in favor of
the defendant in the first trial. Id. “The mere possibility that a fact may have been determined in
a former trial is insufficient to bar relitigation of that same fact in a second trial.” Id. To decide
whether collateral estoppel applies, a reviewing court must determine exactly what facts were
necessarily decided in the first proceeding. Id. To do so we “must review the entire trial record,
as well as the pleadings, the charge, and the arguments of the attorneys.” Id.
It is appellant’s burden to demonstrate that any fact issues he sought to foreclose in this
case were actually decided in his capital murder trial. See Guajardo v. State, 109 S.W.3d 456,
–3– 460 (Tex. Crim. App. 2003). Appellant cannot meet that burden because he failed to provide an
appellate record that contains the record from his capital murder trial. See, e.g., id. at 462
(“Because the trial court denied appellant’s claim of collateral estoppel, and neither the court of
appeals nor this Court has a transcript of the first suppression hearing, we hold that appellant
failed to provide a sufficient appellate record to review the trial court’s ruling.”). As a result, we
resolve appellant’s first issue against him.
SECOND ISSUE
In his second issue appellant argues that the trial court’s judgment should be reformed to
delete the assessment of $244 in court costs against him because the clerk’s record does not
contain a bill of costs. He argues that without a written bill of costs, the evidence is insufficient
to support the assessment of court costs.
In light of appellant’s complaint that the clerk’s record did not contain a bill of costs, we
ordered the Dallas County District Clerk to file a supplemental record containing the certified
bill of costs associated with this case, and the clerk did so. See TEX. R. APP. P. 34.5(c)(1) (rules
of appellate procedure allow supplementation of clerk’s record if relevant item has been
omitted); see also Franklin v. State, 402 S.W.3d 894, 895 (Tex. App.—Dallas 2013, no pet.);
Ballinger v. State, 405 S.W.3d 346, 348 (Tex. App.—Texarkana 2013, no pet.) (“[W]hen a trial
court’s assessment of costs is challenged on appeal and no bill of costs is in the record, it is
appropriate to supplement the record pursuant to Rule 34.5(c) because a bill of costs is required
by [Texas Code of Criminal Procedure] Article 103.006.”). Because the record now contains a
bill of costs supporting the assessment of costs in the trial court’s judgment, appellant’s
complaint that the evidence is insufficient is moot. See Franklin, 402 S.W.3d at 895.
Appellant filed two objections to the supplemental clerk’s record. He complains that the
clerk did not file a “proper bill of costs” because (1) it is an unsworn, unsigned computer
–4– printout, and (2) the record does not indicate that the bill of costs was filed or brought to the trial
court’s attention before costs were entered in the judgment. We have previously addressed and
rejected both of these arguments in Coronel v. State, No. 05-12-00493-CR, 2013 WL 3874446,
at *4–5 (Tex. App.—Dallas July 29, 2013, pet. filed).
We resolve appellant’s second issue against him.
CONCLUSION
We resolve appellant’s two issues against him and affirm the trial court’s judgment.
/Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE
Do Not Publish TEX. R. APP. P. 47
120853F.U05
–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DERWIN DWIGHT MOORE, Appellant On Appeal from the 195th Judicial District Court, Dallas County, Texas No. 05-12-00853-CR V. Trial Court Cause No. F11-26009-N. Opinion delivered by Justice Lang-Miers. THE STATE OF TEXAS, Appellee Justices O'Neill and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 3rd day of December, 2013.
–6–