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.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Perkes

Memorandum Opinion by Justice Benavides

This case arises from a revocation of a community supervision sentence for 

attempted capital murder. By six issues, Appellant Erick Salinas contends the 

following: 
2

(1) the trial court abused its discretion in revoking Salinas’s community 

supervision despite the jury’s acquittal of charges alleged to have occurred while he was 

on probation; 

(2) the jury’s acquittal based on the affirmative defense of necessity precluded the 

court from using it as a basis to revoke his community supervision; 

(3) appellee, the State of Texas, did not prove by a preponderance of the 

evidence that Salinas violated any of the terms of his community supervision; 

(4) the trial court erred in denying Salinas’s motion for new trial following the 

probation revocation hearing; 

(5) Salinas’s double jeopardy rights were violated when the trial court based its 

decision to reverse his community supervision on an acquitted and jury-sanctioned 

verdict; and 

(6) collateral estoppel prevented appellant from being retried in his probation 

revocation hearing after he was acquitted on a necessity defense. 

I. BACKGROUND

A. The Underlying Offense

On March 2, 2009, Salinas was charged with attempted capital murder in a 

Hidalgo County District Court in cause number CR-3983-08-E.1 He was placed on 

deferred adjudication probation, and the trial court sentenced him to ten years of 

community supervision.2 The terms of his community supervision, among others, 

 

1

 Salinas had also been charged with the offense of evading arrest with a motor vehicle at this 

time, but the trial court dismissed this count.

2

 Salinas’s indictment in this case revealed that Salinas, with the specific intent to commit the 

offense of capital murder, drove his car at a high rate of speed towards Officer Jose Anaya, a City of Alton 

peace officer.
3

included that he could not commit an offense against the State of Texas, and had to 

complete 360 hours of community service and pay certain fees and expenses.

B. The Subsequent Offense

On March 24, 2010, while on community supervision for the underlying attempted 

capital murder offense, Salinas was involved in a fatal traffic accident on Tenth Street in 

McAllen, Texas. According to his written statement, Salinas reported that the incident’s 

events began when he received a call from someone named “Joe” at 5:00 p.m. that day. 

Joe asked Salinas to pick up a Ford F-250 pickup truck from the parking lot of a store 

called “Fallas Paredes” and asked him to drive it to a local Whataburger restaurant. 

Salinas agreed to do the favor. When Salinas arrived at the Fallas Paredes store, he 

identified the white F-250 he was supposed to drive. He noticed a white Chevy 

Silverado truck parked next to it, and when he saw that the people from the Silverado 

were looking into the driver’s side window of the white F-250, he deduced that they might 

be trying to steal it. 

After the Silverado drove away, Salinas retrieved the keys to the white F-250 

(they had been hidden in the gas cap) and began to drive away. Almost immediately, 

Salinas noted that the Silverado pickup truck started following him, along with a black 

Ford F-250. Salinas made lane changes, and the Silverado and black F-250 made 

those same changes with him. At one point, Salinas applied his brakes; the black 

F-250 also braked. Salinas then made a u-turn. The black F-250 and Silverado 

pickup truck mirrored the u-turn driving maneuver. The Silverado pickup also tried to 

cut him off at this point.
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When Salinas next checked his rearview mirror, he reported that he saw the 

person sitting in the passenger side of the black F-250 aiming a black handgun at him. 

The passenger fired the gun. Salinas then pressed on the gas pedal and struck the 

Silverado pickup, which was now in front of him. Salinas reported that he rapidly 

accelerated and began running red lights on Tenth Street, as he was afraid that he was 

going to be shot and killed. He honked his horn as he approached intersections so that 

traffic would move out of the way. At the intersection of Tenth Street and Business 

Expressway 83, he broadsided a minivan. He jumped out of the car after the collision 

and began running. He sought refuge at a nearby church, where police officers later 

picked him up. 

The Gonzalez family was traveling in the minivan that Salinas hit. Lori Gonzalez, 

a wife and mother, was killed instantly in the collision. Lori’s husband, Jose de Jesus, 

and their fifteen-year-old daughter, Adriana, sustained serious injuries in the crash. In 

connection with this accident, Salinas was charged with manslaughter, aggravated 

assault, and aggravated assault with a deadly weapon. See TEX. PEN. CODE ANN. §§ 

19.04, 22.02(a)–(b) (West 2011). However, after a jury trial, Salinas was acquitted of all 

charged offenses on the affirmative defense of “necessity.” The “necessity” defense 

provides that conduct is justified if:

(1) the actor reasonably believes the conduct is immediately necessary 

to avoid imminent harm; 

(2) the desirability and urgency of avoiding the harm clearly outweigh, 

according to ordinary standards of reasonableness, the harm 

sought to be prevented by the law proscribing the conduct; and

(3) a legislative purpose to exclude the justification claimed for the 

conduct does not otherwise plainly appear.
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TEX. PEN. CODE ANN. § 9.22 (West 2011). 

C. The Motion to Revoke Salinas’s Community Supervision

The State subsequently filed a motion to revoke Salinas’s community supervision 

on trial court cause number CR-3983-08-E, the attempted capital murder offense from 

2009. The State alleged three violations of the community supervision terms in its 

motion: (1) that Salinas committed an offense against the State when he caused Lori

Gonzalez’s death and the injuries to her husband Jose and daughter Adriana in the 

March 24, 2010 vehicle accident, (2) that Salinas only completed half of the 300 hours of 

community service to which he was sentenced, and (3) that Salinas had not paid $29 of 

community supervision fees and $197 in court costs. 

At the hearing on the motion to revoke, the State argued as follows:

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.

Salinas offered different evidence into the record. Through the testimony of his 

probation officer, Hidalgo County Community Supervision Officer Suzy Zuniga, Salinas 

established that he had: (1) made “significant changes in his life”; (2) “gone to great 

lengths to get an education”; (3) enrolled in South Texas Vo-Tech to become a 

paralegal; (4) attended school every day; (5) successfully completed drug and alcohol 

treatment; (5) worked part-time doing yard work and construction work; and (6) fulfilled 

his community service hours by mowing the grounds at Anzalduas Park. Supervision 
6

Officer Zuniga also testified that if the accident on March 24, 2010 had never occurred, 

the State would not have filed the Motion for Adjudication of Guilt against Salinas. 

After considering the evidence at the revocation hearing, the trial court revoked 

Salinas’s community supervision, adjudicated him guilty, and sentenced him to forty 

years in the Texas Department of Criminal Justice–Institutional Division for the 

attempted capital murder offense in cause number CR-3983-08-E. Salinas’s counsel 

filed a motion for new trial but it was denied.

Salinas then filed this appeal.

II. STANDARD OF REVIEW AND APPLICABLE LAW

We review the trial court's order revoking community supervision for an abuse of 

discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). In a 

community supervision revocation hearing, the State must prove by a preponderance of 

the evidence that the defendant violated a condition of his community supervision. Id. 

The State satisfies this burden of proof when the greater weight of credible evidence 

before the trial court creates a reasonable belief that it is more probable than not that the 

defendant has violated a condition of community supervision. Id. Proof of a single 

violation is sufficient to support a revocation. Garcia v. State, 387 S.W.3d 20, 26 (Tex. 

Crim. App. 2012). Thus, to prevail on appeal, Salinas must successfully challenge all of 

the findings that support the revocation order. See id.

III. DOUBLE JEOPARDY 

For the sake of clarity, we address Salinas’s issues out of order. In his fifth 

issue, Salinas contends that his double jeopardy rights were violated when the trial court 
7

revoked his community supervision sentence with offenses for which he was already 

acquitted.

A. Applicable Law

The Fifth Amendment of the United States Constitution provides that no person 

shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S.

CONST. amend. V. Section 14 of the Texas Constitution provides the same protection, 

holding that “no person, for the same offense, shall be twice put in jeopardy of life or 

liberty; nor shall a person be again put upon trial for the same offense after a verdict of 

not guilty in a court of competent jurisdiction.” TEX. CONST. art. 1, § 14. In short, “in 

criminal cases in which an individual has once been hailed before a jury or a judge and 

found innocent...the double jeopardy clause prevents a second prosecution for the same 

conduct or subject matter.” Russell v. State, 551 S.W.2d 710, 714 (Tex. Crim. App. 

1977). 

The Texas Court of Criminal Appeals has held, however, that double jeopardy is 

not implicated when offenses are used to revoke community supervision. Id.; Ex Parte 

Tarver, 725 S.W.2d 195, 197 (Tex. Crim. App. 1986). “The double jeopardy 

proscription of the Fifth Amendment to the United States Constitution protects an 

accused against being twice placed in jeopardy of punishment for ‘the same offense.’” 

Ex Parte Tarver, 725 S.W.2d at 197. In revocation cases, the defendant faces the risk 

of being punished for his previous offense, not the offense which triggered the filing of 

the motion to revoke. See id. “He is not, therefore, being twice placed in jeopardy for 

the same offense.” Id. (emphasis original). “The double jeopardy provisions of the 

Texas and the United States constitutions are not offended when evidence used in a 
8

successful or unsuccessful attempt to revoke ‘regular’ probation or deferred adjudication 

probation is later used to prosecute the defendant in a different case.” Chambers v. 

State, 700 S.W.2d 597, 599 (Tex. Crim. App. 1985). 

This principle applies even if the defendant was acquitted of his crime: 

The principal difference in a criminal prosecution and a revocation hearing 

is the degree of proof required. Acquittal in a criminal proceeding merely 

determines that guilt was not proved beyond a reasonable doubt while in a 

revocation proceeding proof need not be beyond a reasonable doubt but 

only by a preponderance of the evidence. 

Russell, 551 S.W.2d at 714 (citing Kelly v. State, 483 S.W.2d 467, 469–70 (Tex. Crim. 

App. 1972); Scamardo v. State, 517 S.W.2d 293 (Tex. Crim. App. 1974)). Therefore, 

double jeopardy is not at issue even when offenses for which one has been acquitted are 

used in revocation proceedings. Russell, 551 S.W.2d at 714; Ex Parte Tarver, 725 

S.W.2d at 197.

B. Discussion

Here, Salinas received a forty-year sentence for his capital murder case in cause 

number CR-3983-08-E, not the manslaughter and aggravated assault case for which he 

was acquitted.3 See Ex Parte Tarver, 725 S.W.2d at 197. Salinas, therefore, was not 

twice placed in “jeopardy” for the same offense. Id. (holding that there was no risk of 

double jeopardy when the State used an assault crime to establish that defendant had 

violated the terms of his community supervision for a possession of cocaine offense). 

Moreover, as we pointed out earlier, it is irrelevant to the double jeopardy analysis that 

Salinas was acquitted of the manslaughter and aggravated assault crimes used to 

revoke his community supervision because of the differences in the standards of proof. 

 

3

The manslaughter case’s cause number was CR-2137-10-E.
9

See Russell, 551 S.W.2d at 714; Kelly, 483 S.W.2d at 469–70 (holding that it was 

“judicially unsound to suggest that the standard of proof necessary to revoke probation 

should be as stringent as the one necessary to support the initial conviction”).

 We conclude that Salinas’s double jeopardy rights were not violated when the 

State used the manslaughter and aggravated assault acquittal as one of the bases to 

revoke Salinas’s community supervision in the capital murder case. We overrule 

Salinas’s fifth issue.

IV. COLLATERAL ESTOPPEL

In his sixth issue, Salinas argues that collateral estoppel prevented him from 

being retried in his probation revocation hearing after he was acquitted on a necessity 

defense. 

A. Applicable Law

Collateral estoppel “forbids the government from relitigating certain facts in order 

to establish the fact of the crime.” Ex Parte Tarver, 725 S.W.2d at 198. It is rooted in 

the Fifth Amendment of the United States Constitution, and made applicable to the 

states through the Fourteenth Amendment. See Ashe v. Swenson, 90 S. Ct. 1189, 

1195 (1969). In essence, this principle “protects a man who has been acquitted from 

having to ‘run the ga[u]ntlet’ a second time.” Id. (citing Green v. United States, 355 U.S. 

184, 190 (1957)). 

In Ex Parte Tarver, the defendant, Tarver, received a sentence of ten years of 

probation for the offense of possession of cocaine. Id. at 196. One of the conditions of 

Tarver’s probation was that he could “commit no offense against the laws of this or any 

other state or of the United States.” Id. Over a year later, Tarver was charged with 
10

assault. Id. The State filed a motion to revoke Tarver’s probation, and at a hearing on 

the motion, the trial judge stated that he found “the evidence in this case to be totally 

incredible,” pronounced the allegation that Tarver committed assault to be “untrue,” and 

denied the motion to revoke. Id. 

Tarver then filed an application for writ of habeas corpus in the trial court where 

the assault charge was pending. Id. He “asked that the charge be dismissed because 

the ruling of the district court at the probation revocation hearing represented a finding 

that applicant was not guilty of the charged assault.” The trial court denied the 

requested relief, but the court of appeals reversed and the Texas Court of Criminal 

Appeals affirmed. Id. at 196–97. The court of criminal appeals held:

To the extent that a probation revocation hearing involves a trial court 

acting as finder of fact, after a full hearing on an issue at which both the 

State and an accused are represented by counsel, the court is certainly 

“acting in a judicial capacity.” To that extent, therefore, we must 

determine whether the Ashe v. Swenson test was met. The questions to 

be asked are: Has a fact issue already been determined, adversely to the 

State, in a valid and final judgment between the same parties? Is the 

State now trying to relitigate that same fact issue?

Ex Parte Tarver, 725 S.W.2d at 197 (citing Ashe v. Swenson, 90 S. Ct. 1189, 1194 

(1969) (holding that collateral estoppel “means simply that when an issue of ultimate fact 

has once been determined by a valid and final judgment, that issue cannot again be 

litigated between the same parties in any future lawsuit”). In the Tarver case, the court 

of criminal appeals concluded that the state was collaterally estopped from prosecuting 

Tarver’s assault case in county court after it was found to be “not true” at a revocation 

proceeding. Id. at 200.
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B. Discussion

To begin our analysis, we start with the questions presented by the United States 

Supreme Court case Ashe v. Swenson, which addressed collateral estoppel. See 

Ashe, 90 S. Ct. at 1194–95. First, was a fact issue already determined, adversely to the 

State, in a valid and final judgment between the same parties? The answer to this 

question is yes. The jury in cause number CR-2137-10-E acquitted Salinas of the 

manslaughter, aggravated assault with a deadly weapon, and aggravated assault 

charges surrounding the death of Lori Gonzalez and the injuries to Jose de Jesus and 

Adriana Gonzalez. See TEX. PEN. CODE ANN. §§ 19.04, 22.02(a)–(b). Although it is 

undisputed that Salinas caused the accident which led to these tragedies, the jury found 

his conduct to be justified. See id. § 9.22. Second, was the State now trying to 

relitigate the same fact issue? The answer, again, is in the affirmative. The State, 

during its arguments in the revocation proceeding, argued that “it would in a sense just 

be a slap in the face” of the Gonzalez family to deny the motion to revoke Salinas’s 

community supervision. In sum, the trial court was attempting to relitigate the issue of 

whether Salinas had caused Lori Gonzalez’s death and Jose and Adriana’s injuries, 

when this fact issue had already been resolved by a valid and final judgment. See Ex 

Parte Tarver, 725 S.W.2d at 198; Ashe, 90 S. Ct. at 1194.

We conclude that that the trial court was collaterally estopped from relitigating 

whether Salinas had committed manslaughter or aggravated assault in the hearing to 

revoke community supervision. A jury acquitted him of these offenses on the basis of 

an affirmative necessity defense, and a viable judgment existed which reflected this 

decision. Ashe, 90 S. Ct. at 1194–95. We sustain Salinas’s sixth issue. 
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V. REVOCATION OF COMMUNITY SUPERVISION

The resolution of the double jeopardy and collateral estoppel concerns leads us to 

Salinas’s first, second, and third issues. Salinas’s alleged “offense against the State” 

was not the only term the State alleged Salinas violated with regard to his community 

supervision. The State also asserted that Salinas failed to complete his community 

supervision hours and pay certain court costs and program fees. 

We recognize (and Salinas draws our attention to the fact) that Salinas’s 

probation officer, Suzy Zuniga, testified that the State would never have filed a motion to 

revoke had the accident which killed Lori Gonzalez never occurred. We also 

acknowledge that it appears Salinas was making certain positive changes to his life 

pursuant to the terms of his community supervision. However, Salinas did not dispute 

the State’s claims that he was still obligated to perform nearly 100 community service 

hours as part of his community supervision terms, or that he owed $ 226 in fees and 

expenses to the State. As noted earlier, proof of a single violation is sufficient to 

support a revocation. Garcia, 387 S.W.3d at 26. Based on our standard of review, we 

have no choice but to defer to the trial court’s discretion on these issues, even if we 

would have decided them differently. Rickels, 202 S.W.3d at 763. 

Therefore, we overrule Salinas’s first issue, wherein he argued that the trial court 

abused its discretion in revoking Salinas’s community supervision in spite of the jury’s 

acquittal, and second issue, that the jury’s acquittal based on the affirmative defense of 

necessity precluded the court from using it as a basis to revoke his community 

supervision. There were two other entire bases that the trial court could have used to 

revoke Salinas’s supervision which Salinas did not successfully challenge. Garcia, 387 
13

S.W.3d at 26. We also overrule his third issue, wherein he claimed that the State did 

not prove that he violated the terms of his community supervision by a preponderance of 

the evidence. Supervision Officer Zuniga’s testimony established that Salinas owed 

community service hours and court and program fees and expenses. These assertions 

were not contested by Salinas.

III. MOTION FOR NEW TRIAL

In his fourth issue, Salinas avows that the trial court erred in denying his motion 

for new trial following the probation revocation hearing.

An appellate court reviews a trial court's granting or denial of a motion for new trial

under an abuse of discretion standard. Holden v. State, 201 S.W.3d 761, 763 (Tex. 

Crim. App. 2006); State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). As 

an appellate court, “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, 201 

S.W.3d at 763. 

Salinas offered two bases for a new trial: (1) that it was made in the interest of 

justice and (2) that insufficient evidence supported the judgment and sentence. Upon 

review of the record, and in light of our analysis that Salinas failed to challenge the 

evidence regarding his deficient community service hours and delinquent fees and costs, 

see supra discussion in section V, we find that the trial court did not abuse its discretion 

in denying this request. See Holden, 201 S.W.3d at 763; Garcia, 387 S.W.3d at 26 

(noting that proof of a single violation is enough to revoke community supervision). 

We overrule Salinas’s fourth issue.
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VI. CONCLUSION

We affirm the trial court’s judgment.

__________________________

GINA M. BENAVIDES,

Justice

Concurring and Dissenting Memorandum

Opinion by Chief Justice Rogelio Valdez.

Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed the

24th day of October, 2013.