                            NUMBER 13-11-00693-CR

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


ERICK SALINAS,                                                            Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 275th District Court
                         of Hidalgo County, Texas.


 CONCURRING AND DISSENTING MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Benavides and Perkes
 Concurring and Dissenting Memorandum Opinion by Chief Justice Valdez

      I join the majority’s opinion today insofar as it holds that the trial court was

“collaterally estopped from relitigating whether Salinas had committed manslaughter or

aggravated assault in the hearing to revoke community supervision” due to Erick

Salinas’s acquittal in trial court cause number CR-2137-10-E. However, I do not join the
remainder of the majority’s opinion, which holds that the trial court did not abuse its

discretion in revoking Salinas’s community supervision, because my reading of the

record supports a different conclusion. Accordingly, I concur, in part, and respectfully

dissent, in part.

                                   I.      THE RECORD

       The record shows that in March 2009, Salinas was placed on deferred

adjudication with ten years community supervision for the offense of attempted capital

murder. On March 24, 2010, while on community supervision, Salinas was involved in a

fatal traffic accident on Tenth Street in McAllen, Texas. As a result of the collision, Lori

Gonzalez tragically lost her life, while her husband, Jose de Jesus, and daughter,

Adriana, sustained serious injuries. Following the crash, the State charged Salinas with

manslaughter, see TEX. PENAL CODE ANN. § 19.04, aggravated assault, see id. §

22.02(a), and aggravated assault with a deadly weapon, see id. § 22.02(b).

       On April 7, 2010, Hidalgo County Adult Probation Officer Suzy Ann Zuniga filed a

memorandum of adjudication which alleged that Salinas:           (1) was arrested for the

manslaughter and aggravated assault offenses; (2) was in arrears $29.00 on

supervisory fees and $197.00 in arrears for court costs; and (3) failed to complete his

requisite 300 hours of community supervision.

       In late May 2011, Salinas was tried in trial court cause number CR-2137-10-E for

the alleged charges of manslaughter, aggravated assault, and aggravated assault with

a deadly weapon in the trial court. During the jury’s deliberations of these charges, the

trial court heard the State’s motion to adjudicate guilt related to trial court number CR-




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3989-08-E for Salinas’s 2009 attempted capital murder offense. 1 At the hearing, the

trial court took judicial notice of “everything that [it had] heard and seen” during the CR-

2137-10-E trial.

       The State then called Zuniga as its next witness. Zuniga testified that she was

Salinas’s supervising officer related to his community supervision.                     On cross-

examination, Zuniga testified that Cause Number CR-2137-10-E was brought to her

attention when she received a phone call about Salinas’s arrest. Zuniga indicated that

the “standard procedure” after receiving that phone call is to file a motion to adjudicate

guilt without any knowledge of actual guilt or innocence of the accused. Zuniga testified

that during the year after Salinas was placed on deferred adjudication until the March

24, 2010 incident, Salinas had made “significant changes” in his life, including attending

full-time classes at a vocational school and mowing the grass at Anzalduas Park.

       According to Zuniga, Salinas also successfully completed drug and alcohol

treatment classes and did not violate any other terms or conditions of his community

supervisions except for the three listed in the State’s motion to adjudicate guilt. Zuniga

admitted that Salinas had been in arrears for court costs since June 2009 and had been

short on his community service hours for three months prior to the State’s filing of its

motion for adjudication of guilt. Zuniga testified that despite Salinas’s non-compliance

with these two conditions, no motion for adjudication of guilty had been filed. Zuniga

explained the reasoning for not filing such a motion, at that time, as follows:

       ZUNIGA:                        Due to the fact that he was making an attempt
                                      to comply with the other court ordered
                                      conditions of supervision, that is not usually the

       1
           The record shows that the trial court relocated the hearing to an auxiliary courtroom over
concerns that the jury could hear the ongoing proceeding and that the parties could hear the jurors’
deliberations.

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                                  procedure we take to submit Motions to
                                  Adjudicate based on three months of not
                                  complying with pending hours of community
                                  service.

Then, Salinas elicited the following admission from Zuniga below:

       [DEFENSE COUNSEL]:         Pretend the arrest didn’t happen, or the
                                  accident that occurred didn’t happen on March
                                  the 24th 2010. Would you have filed a Motion
                                  for Adjudication of Guilt against Erick Salinas in
                                  this case?

       ZUNIGA:                    No.

       At that point in the proceedings, both sides rested, and the trial court stated the

following:

       THE COURT:                 Okay. Let me have that, take the evidence into
                                  consideration, and I’ll wait for the jury to make
                                  a decision, if they’re going to make a decision
                                  on [. . .] CR-2137-10-E, the jury is still
                                  deliberating so we’ll wait to hear from the jury.

       When asked by the State whether the trial court wished for the parties to make

closing arguments on CR-3989-08-E, the trial court responded by stating that it wanted

to know the jury’s verdict on CR-2137-10-E prior to hearing closing arguments on CR-

3989-08-E. The jury eventually returned a verdict of not guilty on all three counts.

       On June 30, 2011, the trial court heard closing arguments related to the motion

to adjudicate guilt in CR-3989-08-E. In his closing, Salinas’s counsel noted that the pre-

sentencing investigation report cited an interview from Lori Gonzalez’s widower, Jose

Gonzalez, who stated that Salinas “should still be punished,” or “be forced to pay the

expenses that he still has.” Salinas’s counsel noted that Salinas had been incarcerated

for fourteen months and that Salinas was “ready,” with the help of his mother, to make

payments of restitution totaling $135,000 to the Gonzalez family.

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         In its closing, the State made the following argument:

         [THE STATE]:               This Defendant was placed on deferred
                                    adjudication on March the 2nd 2009. And in
                                    that interim, Judge, he engaged in activity that
                                    led to Lori Gonzalez’s death, and serious
                                    injuries to her husband and daughter. And it is
                                    the State’s position, Judge, that he’s been
                                    given an opportunity already. And to give him
                                    another opportunity at this point in time, Judge,
                                    would in a sense just be a slap in the face of
                                    the victim, Your Honor.

                                    And also, I think it would to a certain extent, put
                                    the public at risk again.

         Without explaining its decision, the trial court found Salinas guilty of attempted

capital murder and assessed his punishment at forty years’ imprisonment in the

Institutional Division of the Texas Department of Criminal Justice.

                                     II.     DISCUSSION

         As the majority correctly articulates, our standard of review in these types of

cases is limited to abuse of the trial court’s discretion. See Rickels v. State, 202 S.W.3d

759, 763 (Tex. Crim. App. 2006).           Under this standard, we do not substitute our

judgment for that of the trial court; rather, we decide whether the trial court's decision

was arbitrary or unreasonable. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App.

2006).

         First, I must note the odd procedural history of this case.         The trial court

proceeded to hear the State’s motion to adjudicate guilt while the jury was deliberating

on CR-2137-10-E rather than waiting until the verdict was received. Further, the trial

court suspended the hearing to wait for the verdict in CR-2137-10-E. This procedural

history lends support to my conclusion that the trial court’s decision to revoke Salinas’s



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community supervision rested solely on the manslaughter and aggravated assault

offenses. At this point in the proceeding, assuming that the trial court had enough

evidence to revoke Salinas’s community supervision on the other two grounds, the trial

court chose not to exercise its authority to do so and instead chose to wait for the

verdict in CR-2137-10-E.     I would hold that this procedural posture, by itself, was

arbitrary and amounted to an abuse of discretion.

       Next, while I have authored numerous opinions which hold that “one sufficient

ground for revocation will support the court’s order to revoke probation,” see Garcia v.

State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012), such a mechanical rule cannot apply

to this unique record.

       My review of the record shows the following substantive facts:

       •      Zuniga’s undisputed testimony indicates that but for the March 24, 2010
              arrest, her department would not have filed a motion to adjudicate guilt;

       •      Months had passed in which Salinas was in arrears for court costs and
              non-compliant with his community service requirement, and the State had
              not filed a motion to adjudicate guilt;

       •      Zuniga provided uncontroverted testimony that it was not the usual
              procedure in the Hidalgo County Adult Probation Department’s to file
              motions to adjudicate guilt for community service violations;

       •      Salinas substantially complied with the conditions of community
              supervision, and according to Zuniga, Salinas was making progress;

       •      Salinas was incarcerated for fourteen months leading up to his trial on CR-
              2137-10-E, which further prevented him from going to school, completing
              community service hours, working, and/or paying his arrears;

       •      The State did not establish that Salinas had the means, but refused to pay
              his arrears;

       •      The jury acquitted Salinas of all charges in CR-2137-10-E;



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      •      The State’s sole argument during its closing argument at the CR-3989-08-
             E hearing, after Salinas’s acquittal, centered on the death of Lori Gonzalez
             and the subsequent charges, which shows that the State sought to
             impermissibly relitigate the issues in CR-2137-10-E; and

      •      The Gonzalez family’s wishes for Salinas’s punishment and payment of
             restitution were included in the pre-sentence investigation.

      Although the trial court does not explicitly state its reasoning for its ruling, based

upon the procedural and substantive facts in this case, I conclude that the trial court’s

order on CR-3989-08-E was premised solely upon Salinas’s actions on March 24, 2010

and the subsequent charges that stemmed from that event, and not upon his failure to

pay court costs or non-compliance with the community-service condition.

      I join the majority to hold that the trial court was collaterally estopped from

relitigating CR-2137-10-E in light of Salinas’s acquittal.    See Ex Parte Tarver, 725

S.W.2d 195, 197 (Tex. Crim. App. 1986). Therefore, I conclude that the trial court

abused its discretion in revoking his community supervision and adjudicating Salinas

guilty in CR-3989-08-E solely on this ground.

      At the very minimum, I would reverse the trial court’s order adjudicating guilt and

subsequent sentence on CR-3989-08-E and remand the entire proceeding for a new

hearing.

                                                        __________________
                                                        ROGELIO VALDEZ
                                                        Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b)

Delivered and filed the
24th day of October, 2013.




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