CHRISTOPHER LAMONT MINNOW v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice Lang–Miers

Christopher Lamont Minnow appeals from the adjudication of his guilt for the offenses of aggravated assault with a deadly weapon and violation of a protective order.   In a single point of error, appellant contends the trial court erred in accepting his plea of true to allegations in the motions to adjudicate because the doctrine of collateral estoppel prohibited relitigation of the allegations.   We modify the trial court's judgments and affirm as modified.   The background of the case and the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts.   We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.

Background

Appellant waived a jury and pleaded guilty to aggravated assault with a deadly weapon and violation of a protective order.   See Tex. Penal Code Ann. §§ 22.02(a)(2), 25.07(a)(1) (West 2011).   Pursuant to plea agreements, the trial court deferred adjudicating guilt, placed appellant on five years' community supervision, and assessed a $1,500 fine in each case.   On December 2, 2010, the State moved to adjudicate guilt, alleging appellant violated seven conditions of community supervision, including committing the new offense of driving without a license (DWOL).   On December 30, 2010, appellant pleaded true to all of the allegations.   The trial court continued appellant on community supervision, and issued an order extending the period of community supervision for three years.

On June 10, 2011, the State again moved to adjudicate guilt, alleging appellant violated his community supervision by committing the new offense of aggravated robbery with a deadly weapon and the same violations of conditions (a), (b), (c), (g), (l), and (m) that had been alleged in the December 2, 2010 motion to adjudicate.   In a hearing on August 25, 2011, the trial court specifically noted that six of the seven allegations in the motion to adjudicate were litigated in a previous hearing, and asked if appellant understood.   Appellant testified he was pleading not true to committing the new aggravated robbery offense, he understood the “remaining allegations” were used in a previous adjudication hearing, and he was pleading true to those “remaining allegations.”   The trial court heard testimony from the complainant on the aggravated robbery offense, as well as testimony from police detectives, appellant's girlfriend, and appellant regarding the robbery.   The trial court found appellant violated the “terms and conditions” of his “previous grant of deferred adjudication.”   The trial court adjudicated appellant guilty and assessed punishment at eighteen years' imprisonment for the aggravated assault and five years' imprisonment for the violation of a protective order.

Collateral Estoppel

Appellant contends the doctrine of collateral estoppel prohibited relitigating the allegations contained in the December 2, 2010 motion to adjudicate in the June 10, 2011 motion to adjudicate.   Specifically, appellant asserts that because the allegations in the December motion to adjudicate had been found true in a previous hearing, the trial court should not have accepted appellant's plea of true to those allegations and should not have revoked appellant's community supervision based on findings which included such allegations.   The State responds the trial court did not err in accepting appellant's plea of true to the allegations in the State's second motion to adjudicate.

Collateral estoppel bars any retrial of specific facts that have been fully and fairly litigated.   See Ashe v. Swenson, 397 U.S. 436, 443 (1970);  see also Ex parte Watkins, 73 S.W.3d 264, 268 (Tex.Crim.App.2002).   Before 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.   Ex parte Watkins, 73 S.W.3d at 268.

In addition to the new DWOL offense, the December 2, 2010 motion to adjudicate guilt alleged appellant violated his community supervision by violating conditions (b), (c), (g), (l), and (m) which involved other conditions of his supervision.   At the December 30, 2010 hearing, appellant pleaded true, and the trial court found true all of the alleged violations.   Rather than adjudicating guilt, however, the trial court continued appellant on supervision and extended the term of community supervision for three years.   Thus, although the trial court extended the terms of probation rather than revoking it and imposing the sentence, the record does not show the factual allegations were resolved adverse to the State.   Consequently, the doctrine of collateral estoppel does not apply in this case.   See id.;   Ex parte Tarver, 725 S.W.2d 195, 200 (Tex.Crim.App.1986) (trial court must make specific finding of fact adverse to State for collateral estoppel to apply).

We conclude the trial court did not err in accepting appellant's plea of true to allegations (b), (c), (g), (l), and (m) in the June 10, 2011 motion to adjudicate.¹  We overrule appellant's point of error.

Modify Judgments

The records show the trial court did not orally pronounce a fine when it adjudicated appellant guilty and imposed the sentences.   The trial court's judgments, however, shows a $1,500 fine in each case.   When a conflict exists between the oral pronouncement and the written judgment, the oral pronouncement controls.   See Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App.1998).   We modify the trial court's judgment in each case to delete the $1,500 fine.   See Tex.R.App. P. 43.2(b);  Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.Crim.App.1993);  Asberry v. State, 813 S.W.2d 526, 529–30 (Tex.App.-Dallas 1991, pet. ref'd).

As modified, we affirm the trial court's judgments.

ELIZABETH LANG–MIERS

JUSTICE

Do Not Publish

Tex.R.App. P. 47

111179F.U05

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

CHRISTOPHER LAMONT MINNOW, Appellant

No. 05–11–01179–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 282nd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F06–65119–S).

Opinion delivered by Justice Lang–Miers, Justices O'Neill and Richter participating.

Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:

The section entitled “Fine” is modified to show “N/A.”

As modified, we AFFIRM the trial court's judgment.

Judgment entered July 3, 2012.

/Elizabeth Lang–Miers/

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

CHRISTOPHER LAMONT MINNOW, Appellant

No. 05–11–01180–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 282nd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F06–87448–S).

Opinion delivered by Justice Lang–Miers, Justices O'Neill and Richter participating.

Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:

The section entitled “Fine” is modified to show “N/A.”

As modified, we AFFIRM the trial court's judgment.

Judgment entered July 3, 2012.

/Elizabeth Lang–Miers/

ELIZABETH LANG–MIERS

JUSTICE

FOOTNOTES

FN1. Appellant does not challenge the finding of true to the allegation he committed the new aggravated robbery offense, which was a violation of condition (a) of his community supervision..  FN1. Appellant does not challenge the finding of true to the allegation he committed the new aggravated robbery offense, which was a violation of condition (a) of his community supervision.

ELIZABETH LANG–MIERS JUSTICE