Affirmed and Memorandum Opinion filed February 8, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-01064-CR
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EX PARTE MICHAEL STEPHEN VELASQUEZ
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Cause No. 06CR0813
M E M O R A N D U M O P I N I O N
Appellant is charged with the offense of burglary of a habitation. Appellant filed a pre-trial application for writ of habeas corpus, claiming collateral estoppel. The trial court denied the application on November 13, 2006.
On April 19, 2006, appellant was indicted for the offense of burglary of a habitation. The complainant in this case was Alice McCoy. In a previous case, appellant had been declared a child who had engaged in delinquent conduct and had been placed on probation. On April 18, 2006, the State moved to modify probation in this previous case, alleging that Aon or about the 7th day of March 2006, in Galveston County, Texas MICAHEL [sic] STEPHEN VELASQUEZ did then and there intentionally or knowingly enter a habitation, without the effective consent of Alice McCoy . . . and attempted to commit or committed a sexual assault against Alice McCoy . . . .@ After a hearing on the motion to modify probation, appellant=s probation was revoked and he was committed to the Texas Youth Commission. In the order revoking probation, the court specifically found that appellant had knowingly entered a habitation without the effective consent of the owner and attempted to commit sexual assault.
In his pretrial application for writ of habeas corpus in this case, appellant claimed that, because the trial court in the previous case made a finding that appellant had committed the offense of burglary of a habitation, collateral estoppel precludes relitigation of the issues in this case and the trial court erred in denying the application for writ of habeas corpus. We disagree.
Under the doctrine of collateral estoppel, A>when an issue of ultimate fact has once been determine by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit=.@ Ex parte Watkins, 73 S.W.3d 264, 268 (Tex. Crim. App. 2002)(quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)). Once a factfinder determines a discrete fact in favor of a criminal defendant, the State cannot contest the finding in a subsequent proceeding. Watkins, 73 S.W.3d at 268. Thus, A[b]efore collateral estoppel will apply to bar relitigation of a discrete fact, that fact must necessarily have been decided in favor of the defendant in the first trial.@ Id. (emphasis in original).
In the instant case, the finding made by the trial judge in the previous probation revocation proceeding was not a fact decided in appellant=s favor. Instead, the finding was against appellant. The trial judge in the previous proceeding found appellant had committed burglary of a habitation and this fact, together with other probation violations, supported the revocation of probation. Because the finding in the previous proceeding was not decided in appellant=s favor, the trial court in this case correctly determined that collateral estoppel does not apply to bar the instant indictment.
Accordingly, we affirm the trial court=s order denying appellant=s application for writ of habeas corpus.
PER CURIAM
Judgment rendered and Memorandum Opinion filed February 8, 2007.
Panel consists of Justices Yates, Anderson, and Hudson.
Do Not Publish C Tex. R. App. P. 47.2(b).