TDCAA TDCAA Community Appellate Should Appellant be able to win an assertion inconsistent with a position previously taken by Appellant?
The facts of an appeal I am working on are as follows:
1)1992 Appellant was placed on probation for aggravated sexual assault of a child, in violation of 42.12 sec.3(g), pursuant to a plea agreement,
(2)1996 probation revoked, Appellant sentenced to 10 years,
(3)Speth v. State, 6 S.W.3d 530 (Tex.Crim.App. 1999) (holding probation is not part of a sentence, and decision to grant probation is non-reviewable),
(4)2000, Appellant filed application for mandamus based on Heath v. State, 817 S.W.2d 335 (Tex.Crim.App. 1991)(holding that portion of sentence granting unauthorized probation was void, and voidness of the sentence could be raised at any time),
(5)7th Court of Appeals grant conditional mandamus, based on Heath, and order trial court to set aside the judgment,
(6) New trial (jury), Appellant gets 50 years,
(7) Ex Parte Williams, 65 S.W.2d 656 (Tex.Crim.App.2001) disavows Heath,
(8)Appellant files this appeal, asking 7th Court of Appeals to vacate its conditional mandate, vacate the trial court's order setting aside the original judgment, and order him to serve the original 10 year sentence (with which he'd be almost finished).
Appellant's argument is strong in light of Speth. Other than distinguishing Speth, which delt with terms of probation, not the actual grant of probation, can you think of any other strategy?
I've considered arguing that quasi-estoppel should be applied to criminal cases, meaning, Appellant should be precluded from asserting a right inconsistent with a position previously taken by him. Time permitting, can you find any other agument in our favor? Has TDCAA ever heard of a similar case?
It seems to me that you don't have to concern yourself with Speth and Heath. The defendant litigated an issue in the courts and got a ruling, namely, that his prior conviction was no good. That ruling became final, and the State (just like the defendant) can rely on it to prosecute the defendant again.
It really doesn't matter that the courts may have ruled incorrectly. The ruling became final and must be respected. Such is the doctrine of the law of the case.
Frankly, if I was the defendant, I would be too embarrassed to ask for relief again.
Williamson County, Texas
I appreciate your insight. I will definitely further explore the law of the case doctrine.
Just wanted to let you know that our office (Hale County) attended your MCLE in Lubbock on Confessions. Our PD investigators also attended. We all agreed that it was one of the best presentations we've seen. Hopefully, our PD and SO will put the telephone call tactics to use!
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