It was held in Frazier, 600 S.W.2d at 272 that insufficiency in the evidence of an alleged violation of probation would not preclude the State from "reprosecuting the cause". But in 1988, without any supporting logic, the Court held the doctrine of collateral estoppel (otherwise thought to derive from principles of double jeopardy in the criminal law context) applies to preclude another attempt to prove a violation found to be unproved after an initial hearing of a motion to revoke. Byrd, 752 S.W.2d at 562. Now this principle is carried to its ultimate extreme in Flores, No. 11-01-305-CR (03/20/03). Flores was placed on supervision for theft of a firearm. He subsequently committed a murder. The State alleged he had violated the condition that he not commit any criminal offense while on supervision. Unfortunately, it also alleged Flores had been convicted of the murder (at about the time the MTR was filed). At the hearing, the State then goofed by asking the court to find the violation based on judicial notice of the conviction (in the same court 21 days earlier). Based on Prince, 503 S.W.2d 777, I suppose you could say the court of appeals rightly says the State's proof failed because the conviction, of course, was not final at that point. But, although the murder conviction is being affirmed (in a companion case before the court), it holds that the theft probation must be reinstated. Does this make any sense? If anybody is collaterally estopped it ought to be Flores, since that doctrine in the civil law requires no finality of the judgment. See Scurlock Oil Co., 724 S.W.2d 1. Should not the State at least be given the chance to show once again that Flores violated the conditions of his release? Maybe this is a good case to get the CCA to rethink Byrd.

Assuming the murder conviction is affirmed and he received pen time by the judge/jury, doesn't the State still have several options coming up that can be used to revoke the probation?

First, there's always the voluntary probation revocation. D: "Hey, Judge If D has a 50 year sentence hanging over him, he might volunteer to be revoked if the State will ask the sentences to run concurrently.

Second, if he's in prison, he probably cannot visit his probation officer, do community service at an approved county site, or submit to urinanalysis. Won't these failures be considered violations of his conditions of community supervision?

The only down side: transportation costs from TDCJ-ID to bench warrant D for the revo hearing.

It is unlikely the State will now seek to revoke Flores's probation for some new violation supposedly committed after his sentence for murder kicks in. So, even though it must be clear he violated the conditions of probation, he ends up without a final conviction for theft. Most judges and prosecutors would not consider the "new" violations you point out to be voluntary. My point is that while Tarver may make sense, Byrd does not, and certainly extending Byrd as in Flores just gives the Defendant a windfall. At the very least, the State should not be barred from again showing he committed the offense of murder as a basis for revocation. Judicial notice may have been a poor way of proving the violation, but it was a trial error- one which should not prevent another hearing. The judgment in Flores should remand for a new hearing.