IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1234-20

MARIO ERNESTO MARTELL, Appellant 

v. 

THE STATE OF TEXAS 

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE EIGHTH COURT OF APPEALS 

EL PASO COUNTY 

SLAUGHTER, J., delivered the opinion of the Court in which KELLER, P.J., 

HERVEY, RICHARDSON, YEARY, KEEL, and MCCLURE, JJ., joined. NEWELL and 

WALKER, JJ., concurred.

O P I N I O N

After Appellant was placed on deferred adjudication community supervision for a 

third-degree felony drug offense, he stopped reporting to his probation officer and was 

considered an absconder. Nearly twenty years later, he was found and arrested. After a 

hearing, the trial court revoked Appellant’s community supervision, adjudicated him guilty
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of the drug offense, and placed him on community supervision for a period of ten years.

The court of appeals reversed, concluding that the trial court erred in rejecting Appellant’s 

statutory due diligence defense under Code of Criminal Procedure Article 42A.109.

1 That 

statute creates an affirmative defense to revocation based on an alleged failure to report if 

the State fails to attempt in-person contact with a probationer before seeking revocation.

2

On discretionary review before this Court, the State contends that the court of appeals erred 

by failing to consider one of its arguments in support of the trial court’s ruling—namely, 

that Appellant should be estopped from relying on the due diligence defense because he 

had received special permission to live in Mexico during his period of community 

supervision such that it would have been impossible for the State to make in-person contact 

with him at that location. Accordingly, the State asks us to remand the case to the lower 

court for consideration of that issue.

Contrary to the State’s assertion, it does not appear that the State expressly raised 

its estoppel argument in the lower court. But, by arguing that it would be unjust to apply 

the due diligence defense under these circumstances when it would have been impossible 

for law enforcement to attempt in-person contact with Appellant in Mexico, the State did 

1 Martell v. State, 615 S.W.3d 269, 275–77 (Tex. App.—El Paso 2020).

2 The statute provides that: 

it is an affirmative defense to revocation for an alleged violation based on a failure 

to report to a supervision officer as directed or to remain within a specified place 

that no supervision officer, peace officer, or other officer with the power of arrest 

under a warrant issued by a judge for that alleged violation contacted or attempted 

to contact the defendant in person at the defendant’s last known residence address 

or last known employment address, as reflected in the files of the department 

serving the county in which the order of deferred adjudication community 

supervision was entered.

TEX. CODE CRIM. PROC. ART. 42A.109.
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implicitly raise that argument both in the trial court and the court of appeals. In any event, 

because the State is permitted to raise an argument in support of the trial court’s ruling for 

the first time on discretionary review, and because the court of appeals is required to uphold 

the trial court’s judgment on any applicable theory of law raised by the evidence, we

conclude that the State is entitled to consideration of its estoppel argument at this juncture. 

Therefore, we vacate the court of appeals’ judgment and remand this case for the court of 

appeals to consider the estoppel issue.

I. Background

A. Underlying offense, community supervision, and revocation hearing

On October 6, 1999, Appellant pleaded guilty to Possession of Marijuana in an 

amount greater than five pounds, but less than fifty pounds. The trial court deferred an 

adjudication of guilt and placed Appellant on community supervision for a period of four 

years. Under the terms of his supervision, Appellant was permitted to live and work in 

Juarez, Mexico.3 But, among other things, Appellant was required to: (1) report monthly

in person to his probation officer in El Paso; (2) inform his probation officer of his current 

place of residence; and (3) refrain from moving to a new residence until receiving written 

permission from his probation officer.

3 It is unclear from the existing record how this special permission came to be included in 

Appellant’s community supervision terms. Because the appellate record currently includes only 

the transcript from Appellant’s revocation hearing, but not the original hearing at which he was 

placed on community supervision, we do not know what discussions, if any, took place with 

respect to this special term at the time that it was granted—either on or off the record. In any event, 

because we are not reaching the merits of the estoppel issue in this opinion, we need not 

definitively resolve this factual question. And, should it choose to do so, the court of appeals can 

request supplementation of the record on this point. 
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Shortly after being placed on community supervision, Appellant stopped reporting

to his probation officer. In March 2002, the State filed a motion to revoke community 

supervision and adjudicate guilt in which it alleged that Appellant failed to report to his 

probation officer from December 1999 through December 2001. The trial court then issued 

a capias for his arrest. Appellant was eventually located in El Paso and arrested in August 

2017. At Appellant’s bond hearing, his counsel stated that he moved to El Paso sometime 

in 2010. The State, however, indicated that the El Paso County Sheriff’s Office had no 

knowledge of Appellant’s location until his arrest. 

In January 2018, the trial court held a revocation hearing. At the hearing, Adrian 

Aguirre, a court-liaison officer with the El Paso County Adult Probation Department,

testified that Appellant was placed on community supervision in October 1999, stopped 

reporting by December, and never again reported. Officer Aguirre further testified that 

Appellant had provided only a single address in Mexico for his employment and place of 

residence. The Department twice mailed letters to Appellant’s provided address—once for 

failure to appear in December and again for failure to appear in January. The Department 

next attempted to make contact at the telephone number Appellant had provided, but they 

were unable to reach him. At that point, the Department considered Appellant an absconder

and submitted violation notices to the district attorney’s office. The State filed a motion to 

adjudicate, and the court immediately issued a capias order for Appellant’s arrest. Officer

Aguirre conceded that no state officer attempted to visit Appellant in person at his Juarez 

address, but that was because the Department cannot attempt home visits when a defendant 

lives outside the United States. 
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In response to this testimony, Appellant raised the statutory due diligence defense

under Code of Criminal Procedure Article 42A.109. Under this statute, it is an affirmative

defense to revocation for a failure-to-report violation if the State did not attempt to contact 

the defendant in person at the defendant’s last-known residence or employment address.

Although this statute was not codified until 2003 (after Appellant had already absconded), 

Appellant argued that the due diligence defense was recognized under the common law

before the statute’s enactment. Therefore, Appellant contended that pursuant to this 

defense, the State’s failure to attempt an in-person visit to his provided address in Juarez, 

Mexico, barred the revocation of his community supervision. The State countered that 

Appellant should not get the benefit of receiving special permission to live in another 

country while also using the State’s lack of jurisdiction to conduct an in-person visit as a 

defense against revocation. The court ultimately agreed with the State “in the interest of 

justice,” revoked Appellant’s community supervision, and adjudicated him guilty. The 

courtsentenced Appellant to ten years’ imprisonment but suspended imposition of sentence 

and placed him on community supervision for a term of ten years. Appellant timely 

appealed the court’s judgment adjudicating guilt.

B. Court of Appeals

On direct appeal, Appellant raised two issues: (1) whether the trial court failed to 

properly consider the due diligence defense, and (2) even if the trial court did consider the 

defense, whether the court nevertheless erred in revoking his community supervision 

because the State admitted that it failed to attempt in-person contact at Appellant’s last 
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known residence or place of employment, such that the due diligence defense plainly 

applied here. 

The State’s arguments in response can be summarized as follows: Appellant failed 

to show that the State did not exercise due diligence in attempting to contact him because, 

under the circumstances of this case, in-person contact was legally impossible (and thus, 

futile). Therefore, the probation department did only what it had the jurisdictional authority 

to do—i.e., mail letters to Appellant’s last-known address and call the phone number he 

provided. The State also raised a policy-based argument, asserting that because Appellant 

“was given a huge benefit when . . . the trial court granted him permission to live and work 

in Mexico as he requested,” faulting the State for failing to attempt in-person contact when 

Appellant “intentionally remained in Mexico beyond the jurisdictional reach of the 

probation department . . . would not serve the interest of justice.” 

The Eighth Court of Appeals sustained Appellant’s second point of error and held 

that the evidence was insufficient to support the trial court’s rejection of the due diligence 

defense. Therefore, it reversed the trial court’s judgment and remanded the case with 

instructions to dismiss the motion to adjudicate. Martell v. State, 615 S.W.3d 269, 277

(Tex. App.—El Paso 2020). In so doing, the court considered and rejected both the State’s

primary impossibility/futility argument and its secondary policy argument. See id. at 274–

76. As to the first, the court noted that the “notion that the law does not require a futile act 

. . . has been applied almost solely in . . . the totality-of-the-circumstances reasonableness 

inquiry for prosecutorial good-faith in seeking an unavailable witness.” Id. at 276. And 

where it has appeared in other contexts, the court concluded “that the concept can[not] 
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apply to a situation where the Legislature has chosen to specifically circumscribe the limits 

of a Court’s analysis on the issue of an affirmative defense like the one at issue here.” Id.

Regarding the State’s policy argument, the court discussed our opinion in Garcia v. 

State, 387 S.W.3d 20 (Tex. Crim. App. 2012):

In Garcia, the Court of Criminal Appeals observed that, in codifying the duediligence affirmative defense, the Legislature made the defense more 

favorable to the State than the common-law version in multiple ways. See

Garcia, 387 S.W.3d at 23. So observing, the Court wrote, “[i]t is plain that 

the Legislature intended to eliminate” certain common-law aspects of the 

defense in enacting different, specific provisions for the newly-codified 

defense, and the Court noted that “the Legislature apparently rejected the 

policy arguments” for those aspects not incorporated into the newly-codified 

defense. See id. at 24–25. The Court expressly concluded, “[w]e may not 

override the Legislature’s intent in favor of countervailing policy 

considerations.” Id. at 25.

Martell, 615 S.W.3d at 274. The court later relied on these portions of Garcia and noted

that “the Court of Criminal Appeals . . . expressly cautioned against overriding the 

Legislature’s intended application of the due-diligence affirmative defense[.]” Id. at 276

(citing Garcia, 387 S.W.3d at 23–25). Thus, the court of appeals concluded that it could 

not “carve out an exception to the statutory due-diligence affirmative defense based on 

case-specific factual concerns” and was instead required to follow the statute’s “plain 

dictates.” Id.

The State timely filed its petition for discretionary review challenging the court of 

appeals’ decision, which this Court granted.4

4 The State presents the following ground for review: 

After holding that the evidence was legally and factually insufficient to support the 

trial court’s rejection of the defendant’s due-diligence affirmative defense, the 

Court of Appeals erred in failing to further address the issue of estoppel, even 

though the State raised the estoppel issue in the trial court, the trial court relied on 
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C. The parties’ arguments

On discretionary review, the State now argues that the court of appeals erred by 

addressing only one of the State’s two alternative arguments raised in response to 

Appellant’s second point of error before that court. According to the State, it advanced two 

distinct theories: (1) the court should create a judicial exception to the due diligence statute

that applies under these circumstances; and (2) Appellant should be estopped from relying 

on the statutory due diligence defense by virtue of the benefit he received in being 

permitted to live in Mexico.

5 The State acknowledges that the court of appeals considered 

and rejected the first theory, but it argues that the court failed to consider the second. 

Because it claims that the court of appeals failed to address every issue necessary to the 

final disposition of the appeal, the State asks this Court to remand the case for resolution 

of the estoppel argument. See TEX. R. APP. P. 47.1.

In response, Appellant contends that the State presented only one argument before 

the court of appeals. And even if the State did raise an estoppel argument, Appellant 

contends that it is not an applicable legal theory because it was not raised before the trial 

court. Because it was not raised, Appellant had no opportunity to develop the record to 

defend against it. Accordingly, Appellant claims that considering the theory at this stage 

would work a manifest injustice. Finally, Appellant argues that estoppel does not apply to 

this case.

the estoppel issue in proceeding to adjudicate the defendant’s guilt, and the State 

again raised the estoppel issue in the Court of Appeals.

5 The State’s secondary policy argument is the basis for its claim that it raised the issue of estoppel 

before the court of appeals. See State’s Br. at 11.
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II. Analysis

The courts of appeals are obligated to hand down written opinions addressing “every 

issue raised and necessary to final disposition of the appeal.” TEX. R. APP. P. 47.1. This 

rule requires courts to “show their work” such that the opinion tells the parties why a 

particular argument is or is not successful. Sims v. State, 99 S.W.3d 600, 603–04 (Tex. 

Crim. App. 2003). When an intermediate court’s opinion fails to address a party’s 

argument, the proper remedy is for this Court to vacate the decision and remand the cause 

to the lower court for consideration of the neglected argument. Kombudo v. State, 171 

S.W.3d 888, 889 (Tex. Crim. App. 2005) (per curiam).

The State cites these principles in support of its position that it is entitled to a remand 

for the court of appeals to consider its estoppel argument. Based on our review of the 

State’s brief on direct appeal, however, it does not appear to us that the State clearly raised 

the issue of estoppel in the court of appeals, such that we cannot fault the court of appeals 

entirely for failing to address one of the State’s arguments. Nevertheless, by contending

that Appellant should not be permitted to reap the benefit of receiving special permission 

to live in another country while also using that benefit as a shield against revocation, the 

State at least implicitly raised the issue of estoppel in both the trial court and on appeal. 

Further, under our established appellate principles, the State was not required to preserve 

its estoppel argument by raising it below. We have explained that, as the “winner” in the 

trial court, an appellee may raise claims in support of the trial court’s ruling for the first 

time in a petition for discretionary review before this Court. See Volosen v. State, 227 

S.W.3d 77, 80 (Tex. Crim. App. 2007); see also McClintock v. State, 444 S.W.3d 15, 20 
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(Tex. Crim. App. 2014) (explaining that a prevailing party at trial “need not raise a 

particular argument in favor of the trial court’s ruling in a reply brief on appeal as a 

predicate to later raising it in a discretionary review context”). This is because an appellee 

is not required to file a responsive brief in the court of appeals at all; and regardless of 

whether the appellee files a brief, the intermediate court must “conduct a thorough review 

of an appellant’s claims, including any subsidiary issues that might result in upholding the 

trial court’s judgment.” Volosen, 227 S.W.3d at 80. To be sure, a trial court’s ruling must

generally be upheld if it is correct “on any legal theory applicable to the case, even one that 

was not mentioned by the trial court or the appellee.” Spielbauer v. State, 622 S.W.3d 314, 

319 (Tex. Crim. App. 2021). This principle is known as the “right ruling, wrong reason” 

doctrine. State v. Herndon, 215 S.W.3d 901, 905 n.4 (Tex. Crim. App. 2007). 

Under these principles, even if the State did not clearly raise estoppel before the 

court of appeals, the State has not forfeited that argument. See Pena v. State, 201 S.W.3d 

764, 765 (Tex. Crim. App. 2006) (“The State was not required to preserve anything because 

it was successful in the trial court.”). And, as noted above, the court of appeals was required 

to uphold the trial court’s ruling on any applicable legal theory. Because the court below

has not yet considered the applicability of the State’s estoppel argument to Appellant’s

case, the proper disposition here is to remand this case to the court of appeals for it to reach 

a decision on that issue in the first instance. See McClintock, 444 S.W.3d at 20. In doing 

so, the parties will have the opportunity to fully brief the issue to the court of appeals. See 

Hudson v. State, 394 S.W.3d 522, 525 n.16 (Tex. Crim. App. 2013).

III. Conclusion
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As the prevailing party in the trial court, the State is entitled to raise its estoppel 

theory in support of the trial court’s ruling for the first time on discretionary review. 

Because the court of appeals has not yet considered the State’s estoppel theory, we vacate 

the judgment of the court of appeals and remand for further proceedings consistent with 

this opinion.

DELIVERED: May 11, 2022

PUBLISH