Ex Parte Maria Cervantes Martinez

• Court: Court of Appeals of Texas
• Decided: February 2, 2022
• Docket: 10-19-00479-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-19-00479-CR

EX PARTE MARIA CERVANTES MARTINEZ

From the County Court at Law No 1 Johnson County, Texas Trial Court No. CC-C20190911

CONCURRING OPINION

The issue in this proceeding is not about Double Jeopardy for having been

previously found in an administrative proceeding to have deprived the horse of

necessary food, water, or care. Rather, appellant is arguing that she prevailed in the

administrative proceeding on the determination that she mistreated the horse by

providing deficient shelter. She further argues that because the criminal charging

instrument must tract the language of the statute, and because the State is collaterally

estopped from alleging cruelty due to deficient shelter because the State failed to prove

deficient shelter at the administrative trial, the State cannot ever amend the indictment to

charge her with cruelty based just on inadequate food, water, or care. This argument fails

for many reasons, the most fundamental of which is that the four grounds in the statute are different manner and means of being cruel to the horse. The State need not charge all

four, need not prove all four, and need not get an affirmative finding on all four for her

to be convicted of a violation of the criminal statute in this proceeding of being cruel to

the horse. The State may allege in the charging instrument only the manner and means

that it intends to prove at trial, and is limited to those grounds alleged in the charging

instrument to obtain a conviction.

Thus, appellant’s claim is about being tried a second time for an offense for which

she was already tried but not convicted, aka acquitted, in the civil proceeding of providing

inadequate shelter. As framed, if she prevails, she would be entitled to immediate

release, because under her theory, the charging instrument cannot be limited to the

manner and means of cruelty due to deficiency of food, water, or care, but must also

include the fourth statutory means of cruelty, deficient shelter. Therefore, I agree that the

appeal of the pretrial application for a writ of habeas corpus is cognizable.

But because the State does not have to allege a violation of every manner and

means of violating the statute in the charging instrument, it would not matter if it could

be held, which I do not and would not so hold, that appellant prevailed at the

administrative hearing because the State failed to prove appellant was cruel to the horse

due to inadequate shelter. The manner and means of violating the statute due to deficient

shelter was simply not found by the trial court in the administrative hearing, but it is

unclear from the record before us whether that theory was even presented to the trial

Ex parte Martinez Page 2 court at the administrative hearing.1

Accordingly, I respectfully concur with the Court’s judgment that the trial court

did not err in denial of the application for a writ of habeas corpus, but for a different

reason than the one articulated by the Court.

TOM GRAY Chief Justice

Concurring opinion delivered and filed February 2, 2022

1 The administrative judgment appears to be on a preprinted form with a check box for each manner and means of being cruel to an animal. The box next to “deficient shelter” was not checked; the other three were checked.

Ex parte Martinez Page 3