Murphy, Jermaine Donte ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-1297-06

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JERMAINE DONTE MURPHY, Appellant

v.

THE STATE OF TEXAS

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ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE SIXTH COURT OF APPEALS TITUS COUNTY

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   Meyers, J., filed a concurring opinion, in which Keller, P.J., and Price and Hervey, JJ., joined.

CONCURRING OPINION

I agree with the majority that collateral estoppel does not apply in this case. I write separately to further explain collateral estoppel in an attempt to clarify this confusing area of the law. Collateral estoppel prevents the State from relitigating a fact necessary to prove the elements of an offense. In such a situation, that fact has been established so as to bar relitigation of that same fact. And, it applies only to identical issues and only to the resolution of issues of ultimate fact. It does not apply to conclusions of law. Therefore, the question in a collateral estoppel determination is whether a particular fact has been found adversely to the State and whether the State is now trying to relitigate that exact same fact.

In the case before us, all the court determined at the trial for the possession of paraphernalia offense was that the State did not prove probable cause or consent, and the court made this determination based on the fact that the State did not offer any evidence because the officer did not show up at that trial. Thus, the judge did not make a credibility determination or determinations of historical facts, he merely determined that the State did not present any evidence that would show probable cause. The issue of ultimate fact in the first trial was whether Appellant possessed drug paraphernalia and the ultimate issue in this trial was whether Appellant possessed a controlled substance. The issue of whether the officer had probable cause is not an essential element of either offense, rather, it is merely evidentiary and relates only to the admissibility of other evidence. A finding of no probable cause to stop or no consent to search does not preclude a determination that Appellant possessed a controlled substance.

Unlike the question of whether Appellant was actually in possession of a controlled substance, the question of whether probable cause existed to stop Appellant and whether Appellant consented to the search depends upon the legal significance of the officer's observations at the time of the arrest. A jury can find at the trial for possession of a controlled substance that Appellant was guilty without contradicting the determination from the drug-paraphernalia trial that the State did not show that the officer had probable cause to stop Appellant or that Appellant consented to the search.

In Neaves v. State, we held that a finding in a suspension hearing of no probable cause for arrest does not preclude later prosecution for the offense because the offense may be proven by evidence independent of the arrest. 767 S.W.2d 784 (Tex. Crim. App. 1989). The same reasoning applies here. Because the question of whether Appellant was in possession of a controlled substance is susceptible to proof by evidence not even relevant to establishing that probable cause existed to stop Appellant, the resolution of the latter issue in Appellant's favor cannot prevent the State from attempting to prove the former in a subsequent trial on the merits. Thus, while evidentiary facts relevant to proving probable cause may also be used later to establish that he was in possession of a controlled substance (such as that the officer detected the odor of marijuana emanating from the car), the issues of ultimate fact are different.

Because there is no contradiction between a determination that the State did not show probable cause to stop or consent to search and a determination that Appellant was in possession of a controlled substance; and because the State is not attempting to prove a fact that would lead to a finding of guilt (i.e., that Appellant committed the alleged offense of possession of a controlled substance) after once failing to prove that fact in a full hearing, I agree that collateral estoppel does not apply in this case. With these comments, I join the opinion of the majority.

Meyers, J.

Filed: November 7, 2007

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