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