In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00246-CR
______________________________
HOLLIE MAC CATHEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th Judicial District Court
Franklin County, Texas
Trial Court No. 7,445
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross
MEMORANDUM OPINION
Hollie Mac Cathey appeals from his conviction by a jury for indecency with a child by exposure. The conviction was enhanced to a second degree felony, and the court assessed punishment at fifteen years' imprisonment and a $2,000.00 fine. Sufficiency of the evidence is not at issue in this case. The victim, a fifteen-year-old girl, testified Mac Cathey took her to the lake in his automobile, exposed himself to her, and attempted to convince her to masturbate him. She declined, and he did not touch her, but took her home.
On appeal, Mac Cathey contends (1) that the trial court abused its discretion by denying his motion for continuance made to attempt to locate a subpoenaed witness who did not appear, and (2) that the court erred by allowing a witness to testify at trial despite the State's failure to reveal that it intended to call her as a witness.
Continuance
A trial court's ruling on a motion for continuance is reviewed for abuse of its discretion. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995); see Tex. Code Crim. Proc. Ann. arts. 29.03, 29.06(6) (Vernon 1989). A motion for continuance not in writing and not sworn to preserves nothing for review. Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999); Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995); see Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08 (Vernon 1989). The motion here was made orally, and no sworn written motion was filed. Thus, the issue has not been preserved for appellate review. See Dewberry, 4 S.W.3d at 755; Matamoros, 901 S.W.2d at 478; see also Mathews v. State, 40 S.W.3d 179, 186 (Tex. App.—Texarkana 2001, pet. ref'd).
Testimony by Audrey Whiteley
Mac Cathey next contends the trial court abused its discretion by allowing Audrey Whiteley to testify at the trial. It is uncontroverted that Whiteley was not on the State's witness list. Mac Cathey rests his argument on the trial court's standing pretrial and trial management order. That order directs the State to file a completed "Discovery Compliance Form" on or before twenty-one days following the date of the first pretrial setting. In relevant part, it requires the State to disclose the "names and addresses of persons whom the State may call as a witnesses [sic] in their case in chief."
The record shows that the defense was not aware of Whiteley until 6:30 p.m. the evening after jury selection, during a meeting with the victim. The prosecutor located her, but spoke with her for only about ten minutes on the morning the trial on the merits commenced.
Whiteley was sleeping in the victim's room when she returned after the incident, and she testified about everything the victim told her at that time regarding the night's events. Her testimony concerning what the victim told her was the same as the victim's testimony concerning those events.
If the trial court allows a witness who is not on the state's list to testify, we review that decision for abuse of discretion. Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993); Hardin v. State, 20 S.W.3d 84, 88 (Tex. App.—Texarkana 2000, pet. ref'd); Lafayette v. State, 835 S.W.2d 131, 132–33 (Tex. App.—Texarkana 1992, no pet.). Our review encompasses various factors. The factors most often discussed are whether the state's actions constituted bad faith and whether the defendant could have reasonably anticipated the witness would testify. Nobles v. State, 843 S.W.2d 503, 514–15 (Tex. Crim. App. 1992); Lafayette, 835 S.W.2d at 132–33. Any error in allowing the witness to testify over a claim of surprise is made harmless by the defendant's failure to object or to move for a continuance. Barnes v. State, 876 S.W.2d 316, 328 (Tex. Crim. App. 1994).
In this case, counsel objected and requested an opportunity to interview Whiteley before she testified. The court did not recess or provide a continuance, but stated Whiteley would first be questioned outside the presence of the jury, which is the procedure that was then followed.
To the extent counsel's request for an opportunity to interview Whiteley was a request for a continuance, that request was oral and not sworn to; thus, our preceding discussion concerning the requisites of a motion for continuance controls. Counsel also did not explicitly ask the court to recess the trial. He asked to interview the witness on several different occasions, but seeking to question a witness is not necessarily the same as recessing the trial. Under these conditions, the trial court's decision to provide the opportunity for both counsel to question Whiteley in camera appears to address the request actually made by counsel.
Further, even had a claim of error been preserved for review, under this record, bad faith has not been shown. It is uncontroverted the State discovered the existence of this witness the night before trial, and the prosecutor stated he had a chance to talk with her for about ten minutes on the day of trial. Therefore, the evidence shows that Whiteley was a "surprise" to both sides. See Fincher v. State, 980 S.W.2d 886, 888 (Tex. App.—Fort Worth 1998, pet. ref'd). Providing a short recess so that defense counsel could talk with the witness was the procedure used by the trial court under similar facts in Stoker v. State, 788 S.W.2d 1, 15 (Tex. Crim. App. 1989), and the court found that proceeding after allowing such an interview was an act within the discretion of the trial court. The effect of the procedure used here is the same. We conclude that the procedure used by the trial court is sufficiently similar to that used in Stoker for us to conclude that, likewise, in this situation, the court did not abuse its discretion.
We affirm the judgment.
Donald R. Ross
Justice
Date Submitted: August 11, 2004
Date Decided: October 28, 2004
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-05-00207-CR
______________________________
JERMAINE DONTE MURPHY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 276th Judicial District Court
Titus County, Texas
Trial Court No. CR14509
Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Ross
O P I N I O N
Jermaine Donte Murphy appeals his conviction for possession of a controlled substance, namely cocaine, in an amount greater than four hundred grams. The State charged Murphy with two offenses arising out of a traffic stop. In addition to possession of a controlled substance, Murphy was charged with possession of drug paraphernalia in justice court. Before trial on the possession of a controlled substance charge, Murphy filed a motion to suppress and a motion to dismiss the indictment based on the doctrine of collateral estoppel. Murphy alleged he had been acquitted of possession of drug paraphernalia and the justice court found the State failed to prove reasonable suspicion for the detention. After the trial court denied the motions, Murphy pled guilty to possession of a controlled substance. A jury assessed punishment at ten years' imprisonment. Murphy's sole issue on appeal is whether the trial court erred in denying the motion to suppress evidence and the motion to dismiss the indictment based on collateral estoppel. We affirm the judgment of the trial court.
Background
Charles Cannon, a state trooper with the Texas Department of Public Safety, stopped Murphy on Interstate 30 in Titus County for exceeding the speed limit. Cannon testified that he "clocked" Murphy traveling at seventy-three miles per hour along a section of the interstate with a sixty-five-mile-per-hour speed limit. During the traffic stop, Cannon detected a strong odor of marihuana emanating from the vehicle. Murphy consented to a search of his vehicle, which discovered a cigar suspected of containing marihuana, a small bag of marihuana, and approximately a kilogram of cocaine. Cannon ticketed Murphy for possession of drug paraphernalia and arrested Murphy for possession of a controlled substance, the cocaine.
On June 14, 2005, the trial court held a pretrial hearing concerning Murphy's motion to suppress and motion to dismiss the possession of a controlled substance charge. At the hearing, Murphy introduced a judgment of acquittal on the drug paraphernalia charge by the justice court, Place 1 of Titus County. In the judgment, the justice court found there was no evidence Murphy was speeding. Both sides agree that Cannon failed to appear for trial in justice court, but the State contends the case was dismissed and did not proceed to trial. In support of this argument before the trial court, the State introduced the testimony of Judge Leo Schakel, the Justice of the Peace who signed the judgment of acquittal. Judge Schakel testified that, although he did not remember this case, he believed the case was dismissed because his clerk noted "dismissed in court" on the back of the ticket. The district court denied the motion to suppress and motion to dismiss the indictment.
According to Murphy, the evidence should be suppressed because the issue of whether Cannon legally detained Murphy was litigated in justice court. Because the justice court found there was no evidence of speeding, Murphy contends the fact issue of whether he was exceeding the speed limit cannot be relitigated.
Collateral estoppel, or issue preclusion, in the criminal context has its origins in the Double Jeopardy Clause. See Ashe v. Swenson, 397 U.S. 436, 445–46 n.10 (1970). However, double jeopardy and collateral estoppel are not identical doctrines. Ex parte Watkins, 73 S.W.3d 264, 267 (Tex. Crim. App. 2002). Under the doctrine of collateral estoppel, once an issue of ultimate fact has been determined by a valid final judgment, that fact cannot be relitigated between the same parties in any future proceeding relating to the same incident. Ashe, 397 U.S. at 445–46; see Dowling v. United States, 493 U.S. 342, 348 (1990); Shaffer v.State, 477 S.W.2d 873, 875 (Tex. Crim. App. 1971). The doctrine of collateral estoppel is based on the policy to avoid requiring a defendant "from having to 'run the gantlet' [sic] a second time." Ashe, 397 U.S. at 446. Collateral estoppel should provide broader protection than double jeopardy. See Ex parte Taylor, 101 S.W.3d 434, 440 (Tex. Crim. App. 2002). The State argues the issue of speeding was not litigated, the drug paraphernalia case was dismissed, the drug paraphernalia case is not final, and the ruling on the motion to suppress is not an essential element of the offense.
We conclude the State did not rebut the presumption the justice court's judgment was valid, the issue of reasonable suspicion was litigated, and the prior proceeding was final. However, collateral estoppel does not apply to this case because the justice court's ruling on speeding was not a ruling on an essential element of the offense. Therefore, the trial court did not abuse its discretion in denying the motion to suppress and motion to dismiss.
The State Failed to Overcome Presumption Justice Court's Judgment Was Valid
The first issue in this case is whether Murphy's drug paraphernalia charge resulted in an acquittal or a dismissal. The justice of the peace signed a findings of fact judgment of acquittal, which the defense introduced into evidence. The signed judgment provided as follows:
On the 17th day of November, 2004 this case came to be heard. The State and Defendant announced ready for trial.
I.
The Defendant waived his right to a jury and proceeded to have a trial before the court.
II.
The Defendant was cited for possession of drug paraphernalia on or about January 31, 2004 by DPS Trooper Charles Cannon as demonstrated by the attached copy of the citation G044135 in Titus County, Texas. (Exhibit A)
III.
The State failed to produce evidence of speeding on January 31, 2004 that gave rise to the stop and search of the defendant and the vehicle he was driving. The State failed to produce evidence that the defendant consented to the search of the vehicle he was driving on January 31, 2004. Furthermore, the State failed to produce evidence that affirmatively linked the defendant with the alleged drug paraphernalia.
IV.
Because there was no evidence produced that there was probable cause to stop the defendant, that the defendant consented to a search of his vehicle or that affirmatively linked the defendant to the alleged drug paraphernalia, the defendant is hereby acquitted.
Although Judge Schakel testified he did not remember this case or whether the officer appeared for trial, he also testified he believed the case was dismissed. Judge Schakel testified his clerk wrote "dismissed in court" on the back of the ticket and that "about the only time" he dismisses a case is if the officer fails to show up. When asked if it was possible the case went to trial, Judge Schakel testified the case "wouldn't have gone that far" if the officer failed to appear. Judge Schakel did admit, though, that the State did not file a motion to dismiss and that the signature on the judgment was his signature.
Provided a judgment is valid on its face, there exists a presumption that the judgment was correct. 48 Tex. Jur. 3d Judgments § 303 (1998); see Thompson v. State, 108 S.W.3d 287, 292 (Tex. Crim. App. 2003). Further, written orders generally control over oral statements. See Eubanks v. State, 599 S.W.2d 815, 817 (Tex. Crim. App. [Panel Op.] 1980); Ablon v. State, 537 S.W.2d 267, 269 (Tex. Crim. App. 1976); Jackson v. State, 720 S.W.2d 153, 158 (Tex. App.—Houston [14th Dist.] 1986, pet. ref'd); Henderson v. State, 681 S.W.2d 173 (Tex. App.—Houston [14th Dist.] 1984, pet. ref'd); Harper v. State, 675 S.W.2d 529 (Tex. App.—Houston [14th Dist.] 1983, pet. ref'd). The State's evidence failed to rebut the presumption of validity.
The Issue Of Reasonable Suspicion Had Been Litigated
The State argues, because no evidence was presented in the justice court, nothing was litigated. We disagree. The fact that a party wholly fails to meet its burden of proof does not prevent an issue from being litigated. The issue is whether the State had an opportunity to present evidence on the issue and whether the issue was determined by the fact-finder.
The State cites State v. Approximately $2,000,000.00 in United States Currency, 822 S.W.2d 721, 725 (Tex. App.—Houston [1st Dist.] 1991, no writ), in support of its argument that the issue was not litigated at the trial level. In that case, the First District Court of Appeals held that, because the prior suit was dismissed for want of jurisdiction, it was clear the actual owner of the property was not determined. Id. This case presents an entirely different scenario. The judgment clearly indicates the issue of speeding was decided.
Simply because the State has evidence proving the result of the justice court was erroneous, does not prevent the issue from being litigated. Collateral estoppel cannot be defeated by "new or different evidence to support the same issue already litigated." Taylor, 101 S.W.3d at 441. The State had the opportunity to present evidence at the justice court level and the issue was decided by the fact-finder. Thus, the issue of speeding was litigated. See Jaime v. State, 81 S.W.3d 920, 926–27 (Tex. App.—El Paso 2002, pet. ref'd) (collateral estoppel applied when no evidence presented in prior community supervision revocation hearing).
Justice Court's Judgment Was Final
The State also argues that the judgment does not bar relitigation because a dismissal is not a valid final judgment. As discussed above, the State failed to rebut the presumption that the written judgment was valid. The State does not argue the acquittal was on appeal or otherwise not final. While there is authority that a dismissal is not final for the purposes of collateral estoppel, this case is an acquittal rather than a dismissal. Therefore, the judgment is final.
The Justice Court's Ruling on Speeding Was Not a Ruling on an Essential Element
The Texas Court of Criminal Appeals has held that, to determine whether collateral estoppel bars a subsequent prosecution (or permits prosecution but bars relitigation of certain specific facts), courts should apply a two-step analysis to determine: 1) exactly what facts were "necessarily" decided; and 2) whether those "necessarily decided" facts constitute essential elements of the offense in the second trial. Taylor, 101 S.W.3d at 440; Husain v. State, 161 S.W.3d 642, 650 (Tex. App.—San Antonio 2005, pet. ref'd); Campbell v. State, 118 S.W.3d 788, 794–95 (Tex. App.—Houston [14th Dist.] 2003, pet. denied); cf. Long v. State, 130 S.W.3d 419, 426 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (failed to object and not unconstitutional on its face). The essential elements of possession of a controlled substance are: 1) the defendant exercised actual care, control, and management over the contraband; and 2) the defendant knew the substance in his possession was contraband. Wallace v. State, 955 S.W.2d 148, 150 (Tex. App.—Beaumont 1997, no pet.); see Tex. Health & Safety Code Ann. § 481.115(f) (Vernon 2003). "Possession" is defined as actual care, custody, control, or management. Tex. Pen. Code Ann. § 1.07(a)(39) (Vernon Supp. 2005). Because the determination of whether the arresting officer had reasonable suspicion to detain Murphy does not concern an essential element of the offense, collateral estoppel does not apply. See Husain, 161 S.W.3d at 650; Campbell, 118 S.W.3d at 795.
Conclusion
Murphy introduced into evidence a signed judgment of acquittal, which appears to be valid on its face. The judgment is presumed to be valid and the State failed to rebut the presumption of validity. Because the State had the opportunity to present evidence concerning whether Murphy was speeding and the justice court determined the issue, the issue of speeding was determined in the prior proceeding. In addition, the prior proceeding was final. However, collateral estoppel does not apply to this case because the justice court's ruling on speeding was not a ruling on an essential element of the offense. Therefore, the trial court did not abuse its discretion in denying Murphy's motion to suppress and motion to dismiss.
For the reasons stated, we affirm the judgment.
Donald R. Ross
Justice
Date Submitted: June 14, 2006
Date Decided: July 13, 2006
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