Opinion
NUMBER 13-15-00074-CR
03-03-2016
JOHN LOPEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 94th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Perkes and Longoria
Memorandum Opinion by Justice Garza
On August 17, 2011, appellant John Lopez was convicted of his third driving while intoxicated ("DWI") offense, a third-degree felony. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b) (West, Westlaw through 2015 R.S.). He was sentenced to ten years' imprisonment, with the sentence suspended and community supervision ordered for ten years. In 2015, the trial court revoked Lopez's community supervision and sentenced him to seven years' imprisonment. Lopez argues on appeal that the trial court erred by (1) taking judicial notice of a prior proceeding in which he was acquitted, (2) revoking his community supervision on grounds that he failed to pay costs and fees, and (3) failing to give him proper credit for time served. We affirm.
I. BACKGROUND
On August 11, 2011, Lopez pleaded guilty to and was convicted of the underlying DWI offense in trial court cause number 11-CR-1593-C, and he was placed on community supervision. The following day, August 12, 2011, Lopez pleaded guilty to a separate felony DWI charge in trial court cause number 11-CR-1390-C. In the latter cause, Lopez was sentenced to five years' imprisonment with the sentence ordered to run concurrently with his sentence in cause number 11-CR-1593-C. Lopez began serving his sentence in cause number 11-CR-1390-C that day. On January 11, 2013, Lopez was paroled and was immediately sent to a Substance Abuse Felony Punishment Facility ("SAFPF") for treatment in accordance with his community supervision conditions in trial court cause number 11-CR-1593-C. He was released from the SAFPF on July 9, 2013.
The State filed its motion to revoke Lopez's community supervision in trial court cause number 11-CR-1593-C on November 24, 2014. The motion alleged that Lopez had violated the conditions of his community supervision by: (1) committing aggravated assault with a deadly weapon on or about June 24, 2014; (2) committing a second count of aggravated assault with a deadly weapon on or about June 24, 2014; (3) committing family violence assault on or about June 24, 2014; and (3) failing to pay various costs and fees. The State later withdrew the family violence assault allegation as well as one of the aggravated assault allegations.
In particular, the motion alleged that Lopez had failed to pay $244 in court costs, a $50 crime stoppers fee, $550 in attorney's fees, $348 in monthly supervision fees, a $25 pre-sentence investigation fee, and $194 for urinalysis and blood testing fees.
At a hearing on the motion to revoke, the prosecutor asked the trial court to take judicial notice of all trial proceedings in trial court cause number 14-CR-2745. In that case, which was in the same court and before the same judge as the instant case, Lopez was tried for aggravated assault alleged to have occurred on or about June 24, 2014 and was acquitted. The trial court took judicial notice of the proceedings. The State did not offer any other evidence as to the aggravated assault allegation made in the motion to revoke. The State then called Lopez's probation officer, who testified that he has "only made $222 of payments" toward the costs and fees required of him by his community supervision conditions. No testimony was offered regarding Lopez's ability to pay.
At the conclusion of the hearing, the trial court stated with respect to the aggravated assault allegation that there was "a doubt as to whether [Lopez] used a deadly weapon"; however, the court stated that "I do think [Lopez] committed an assault [by a] preponderance of the evidence." The trial court stated that he "finds the lesser included offense of assault to be true." The trial court also found as true the allegations regarding Lopez's failure to pay costs and fees. Accordingly, the trial court revoked community supervision and sentenced Lopez to seven years' imprisonment. A final judgment was rendered on February 2, 2015, granting Lopez 429 days' credit for time served and stating that his sentence shall run concurrently. This appeal followed.
II. DISCUSSION
A. Revocation of Community Supervision
By his first issue, Lopez contends that the trial court erred in revoking his community supervision "solely on judicial notice of a trial in which [he] was acquitted of the charge." He cites Coffey v. State, 116 U.S. 436 (1886), for the proposition that the State is "collaterally estopped from using evidence previously used in a criminal case in which the defendant was acquitted."
We review a trial court's order revoking community supervision for an abuse of discretion. Dansby v. State, 398 S.W.3d 233, 244 (Tex. Crim. App. 2013). At a revocation proceeding, the State bears the burden of showing by a preponderance of the evidence that the defendant committed a violation of his community supervision conditions. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). In the probation-revocation context, "a preponderance of the evidence" means "that greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of his probation." Id. Proof by a preponderance of the evidence of any one of the alleged violations of the community supervision conditions is sufficient to support a revocation order. Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009). Accordingly, when multiple violations are found by the trial court, we will affirm the order revoking community supervision if the State proved any violation by a preponderance of the evidence. See id.
The doctrine of collateral estoppel provides 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 relating to the same event or situation." Murphy v. State, 239 S.W.3d 791, 794 (Tex. Crim. App. 2007) (citing Ashe v. Swenson, 397 U.S. 436, 445 (1970)). However, a prior finding of not guilty in a criminal trial does not bar the State from proving the same offense as a basis for revoking probation. Russell v. State, 551 S.W.2d 710, 714-15 (Tex. Crim. App. 1977). That is because a defendant's previous acquittal at a full trial on the merits "sheds no light on whether a preponderance of the evidence" established the facts alleged at the trial. United States v. Watts, 519 U.S. 148, 157 (1997) (per curiam) (noting that "an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof"); see United States v. One Assortment of 89 Firearms, 465 U.S. 354, 362 (1984) (disavowing Coffey and holding instead that an acquittal at trial "did not negate the possibility that a preponderance of the evidence could show" the facts alleged at the trial); Polk v. State, 729 S.W.2d 749, 750 n.1 (Tex. Crim. App. 1987) ("[A]n acquittal in a criminal prosecution will not necessarily mandate a finding of 'not true' to a motion to revoke alleging commission of the identical offense, since the standard of proof in a revocation proceeding is proof by a preponderance, rather than beyond a reasonable doubt, as in a criminal trial."); Black v. State, 411 S.W.3d 25, 30 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (defendant's acquittal of possession of marijuana charge following revocation of community supervision based on same act, without more, did not establish that revocation was an abuse of discretion); see also Ex parte Lane, 806 S.W.2d 336, 339 (Tex. App.—Fort Worth 1991, no writ) ("[A]n acquittal of a charged offense would not bar a subsequent revocation of probation based on the same allegation.").
In light of the foregoing case law, we conclude that the trial court was not collaterally estopped from taking judicial notice of the proceedings in the assault trial. We overrule Lopez's first issue.
In Bradley v. State, the Texas Court of Criminal Appeals held that, when a trial court takes judicial notice of prior proceedings at a revocation hearing, the State must ensure that the facts judicially noticed are made part of the record in order to meet its burden of proof at the revocation proceeding. 564 S.W.2d 727, 730-32 (Tex. Crim. App. 1978). However, Lopez does not argue on appeal that the State failed to meet its burden of proof with regard to the assault allegation; he merely argues that the trial court erred in taking judicial notice of the assault trial on collateral estoppel grounds.
In light of our conclusion, we need not address Lopez's second issue, by which he argues that the trial court erred by revoking his probation on grounds that he failed to pay costs and fees, because there was no evidence adduced at the revocation hearing that he had the ability to pay. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(c) (West, Westlaw through 2015 R.S.) ("In a community supervision revocation hearing at which it is alleged only that the defendant violated the conditions of community supervision by failing to pay community supervision fees or court costs or by failing to pay the costs of legal services . . . , the state must prove by a preponderance of the evidence that the defendant was able to pay and did not pay as ordered by the judge."); Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009); see also TEX. R. APP. P. 47.1.
B. Credit for Time Served
By his third issue, Lopez contends that the trial court erred in granting him 429 days' credit for time served. He argues that he was instead entitled to 793 days of credit for time served, including time he served for a separate DWI charge in trial court cause number 11-CR-1390-C.
The code of criminal procedure provides as follows:
In all criminal cases the judge of the court in which the defendant is convicted shall give the defendant credit on the defendant's sentence for the time that the defendant has spent:
(1) in jail for the case, including confinement served as described by Article 46B.009 and excluding confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court;
(2) in a substance abuse treatment facility operated by the Texas Department of Criminal Justice under Section 493.009, Government Code, or another court-ordered residential program or facility as a condition of deferred adjudication community supervision granted in
the case if the defendant successfully completes the treatment program at that facility; orTEX. CODE CRIM. PROC. ANN. art. 42.03, § 2(a) (West, Westlaw through 2015 R.S.).
(3) confined in a mental health facility or residential care facility as described by Article 46B.009.
As noted, Lopez was sentenced on August 11, 2011 in the instant case, trial court cause number 11-CR-1593-C, to a ten-year prison term with the sentence suspended and community supervision imposed. The following day, Lopez was sentenced in a separate DWI case, trial court cause number 11-CR-1390-C, to five years' imprisonment. The final judgment in cause number 11-CR-1390-C stated that the sentence was to run concurrently, and Lopez began serving his five-year sentence in that case on August 12, 2011. He was eventually paroled and sent to an SAFPF pursuant to the terms of his community supervision in cause number 11-CR-1593-C.
Lopez contends that, because the trial court "opted for both concurrent sentencing and placing the defendant on community supervision in one of the cases, and further imposed concurrent sentencing upon revocation," he is therefore entitled to credit for time served in trial court cause number 11-CR-1390-C. He cites article 42.08 of the code of criminal procedure, which provides that "[i]f a defendant has been convicted in two or more cases and the court suspends the imposition of the sentence in one of the cases, the court may not order a sentence of confinement to commence on the completion of a suspended sentence for an offense." Id. art. 42.08(c) (West, Westlaw through 2015 R.S.). Lopez also cites Hudson v. State, in which the Dallas Court of Appeals rejected the appellant's argument that his sentences—ten years' community supervision in two cases and ten years' imprisonment in a third, all running concurrently—were contrary to law "because he cannot satisfy the conditions of community supervision while imprisoned." See Hudson v. State, No. 05-14-00224-CR, 2015 WL 1313984, at *6 (Tex. App.—Dallas Mar. 20, 2015, no pet.) (mem. op., not designated for publication). Lopez argues that "[b]y not awarding [him] back time credit for time spent on a concurrent sentence, the trial court has essentially converted a concurrent sentence into a consecutive sentence."
We disagree. The DWI offenses for which Lopez was sentenced were alleged to have occurred on different dates and were wholly separate. Therefore, the time Lopez served in jail pursuant to his sentence in cause number 11-CR-1390-C was not time spent "in jail for the case" as provided by the statute.See TEX. CODE CRIM. PROC. ANN. art. 42.03, § 2(a)(1); Ex parte Crossley, 586 S.W.2d 545, 546 (Tex. Crim. App. 1979) (noting that "jail credit must be awarded in each cause that was an independent and sufficient cause of detention"); Collins v. State, 318 S.W.3d 471, 473 (Tex. App.—Amarillo 2010, pet. ref'd) (noting that the credit required by article 42.03 "relates not just to any time the defendant spent incarcerated before conviction" but rather to "the time one is incarcerated for the case in which he is ultimately tried and convicted"); see also Benefield v. State, No. 02-14-00099-CR, 2015 WL 4606273, at *8 (Tex. App.—Fort Worth July 30, 2015, no pet.) (mem. op. on reh'g, not designated for publication) (rejecting appellant's argument for additional credit where conduct alleged in case for which he was confined was "separate and distinct" from conduct alleged in case on appeal); Martinez v. State, No. 13-04-00085-CR, 2005 WL 1805500, at *3 (Tex. App.—Corpus Christi July 28, 2005, no pet.) (mem. op., not designated for publication) ("A trial court must award credit for time served for the same offense and not time incarcerated pretrial for independent offenses."). We overrule Lopez's third issue.
The Texas Court of Criminal Appeals has held that "when an inmate is given stacked sentences he is entitled to multiple credit for periods he was simultaneously confined on more than one of those causes, prior to the stacking order." Ex parte Wickware, 853 S.W.2d 571, 573 (Tex. Crim. App. 1993) (citing Ex parte Bynum, 772 S.W.2d 113 (Tex. Crim. App. 1989)). However, Lopez does not argue that he was "simultaneously confined" for cause numbers 11-CR-1390-C and 11-CR-1593-C during the time period at issue. Accordingly, he is not entitled to credit on that basis.
III. CONCLUSION
The trial court's judgment is affirmed.
As an alternative to reversing the trial court's judgment, Lopez has filed a motion to abate the appeal for supplementation of the record to include the transcript of the proceedings in his assault trial, trial court cause number 14-CR-2475-C, "and for a supplemental brief on the issue of whether the trial court abused its discretion by revoking [his] community supervision." See TEX. R. APP. P. 34.6(d). We deny the motion. As the State correctly notes, Lopez "fails to argue that the testimony in question was insufficient to prove by a preponderance that he committed the offense in question" and "thus has failed to provide a good reason to delay the present appeal with the cumbersome procedure of preparing and filing a supplemental record and another round of appellate briefs by the parties." --------
DORI CONTRERAS GARZA
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 3rd day of March, 2016.