## In the Court of Appeals Second Appellate District of Texas at Fort Wo rth

___________________________ No

. 02

- 21

- 00071

- CR No. 02

- 21

- 00072

- CR

___________________________

On Appeal from the 396th District Court Tarrant County, Texas Trial Court N os . 1365681D, 1365684D
Before Sudderth, C.J.; Kerr and Bassel, JJ.

M emorandum Op ini on by Justice Kerr 

### T HE 

### S TATE OF 

### T EXAS

V


### . A LBERTO 

### L ONGORIA 

### , Appellee2 MEMORA NDUM O PI NION Appellee Alberto Longoria was on deferred

- adjudication community supervision for two count s of aggravated assault on a public servan t wi t h a deadly
weapon. After Lon goria violated his c ommunity

- supervision conditi ons , the State petitioned to proce e d to adjudication

. The trial court adjudicated Lon goria guil ty and
sentenced him to ten years in prison on each count

. Longoria s uccessful ly mo v ed for a new probation

- revocation hearing , and the
trial court dismissed the St ate ’ s petit ion s and placed him b ack on probation. The State has appealed, arguing in three issues that the trial court abused its discretion by granting Longoria a new trial be c ause (1) the trial court lacked autho rity to do so ; (2) the trial court effe cti vely imposed an illegal sentenc e by placing Longoria on probation afte r adjudicating him guilty of two felonies ; and (3) assuming that the trial court properly granted Longo r ia a new trial on p unishment, the court erred by

re storing the case s to th eir p r e
- adjudication status es , which ef f

ectivel y granted Longo r ia a new trial on guilt as well. Because the trial court lacked the authority to
gran t Longoria a new trial, we revers e t h e trial court ’s orders granting the new

- trial
motions and remand the cases t o t he trial court t o reinstate the adjudication judgments and sentences.
I
. Background
In May 2014, the St ate charged Longoria under separate c a use numbers with

two counts of a gg r avated assault on a p ublic se rvant with a deadl y weapo n (a motor3 vehicle)

. 1 See Tex. Penal Code Ann. § 22.02 (a )( 2), (b)(2)(B )

. The following month , Longoria judicially confessed to the facts alleged in th e indictments and pleaded guilt y p u rsuant to a p lea barg ain i n each c ause . T he trial c our t accepted Longoria ’ s p leas , de ferred adjudic ating him g uilty, and placed hi m on seven years ’ community supervision in each cause

. In August 2017, t h e S tate p etitioned t o proce ed to

a dju dicat ion in both causes becau se Longoria h ad committed a new offense in Dall as C o unty

— driv ing while int oxicated

— and had consumed alc ohol

. In January 2018, t h e trial court amend ed Long oria ’ s pro bation t er m s and dismissed the State ’ s petit ion s . I n January 2020 , the State again petition ed to proc eed to adjudic ation in both

causes based on a new d riving

- while

- intoxicat ed offense in Dallas County and Longoria ’ s use, possession , or consum p ti o n of alc ohol

. Lon goria judicially confessed

to the fac ts alleged in the petitions and entered ope n p l eas of true to the allegations in
the State ’ s petitions

. D uring t he Marc h 30, 2021 re vocatio n hea r in g , the tr ial court heard testimony
fro m Longoria, his probation supervisor , L ong oria ’ s wife , and one of Longori a ’ s
aggr avate d

- a ssault

- on

- a
- public

- se r vant v ic tims. At the hearing ’ s con clusion, the trial
court found the fa cts in th e Sta t e ’ s petitions t o be true and adjudicated Longo ria

1 The i n dic t ments alleged in part that Longoria “ di d use or exhibit a deadly weapon during the comm ission of the ass ault, t o
- w it: a mo tor v ehicle , that in the ma n n er of i ts use or intended use was ca pable of c ausing death or serious bod ily inju ry. ”4 guilty

. The trial court also se nten ce d Longoria to te n

- yea r concurrent sentences but told Longoria that it would consider shoc k probation 2 : Prior to the e xp i ration of 180 days from t oday ’ s date, if [ your attorney] f i les the app rop r ia te motion, I would conside r an app lication for suspending further sentence and placing you back on probation. [Your attorney] will explain to you wha t that means.
But basical ly yo u ’ re un der a ten

- year sentence. You ’ ve got to earn the righ t for me to sus pen d [the] rest of the sentence, and [y our attorney will] explain how that works.
The trial court would later realize , however, that because Longoria ha d judicially
confe ss e d t o us in g or exhibiting a d eadly w eapon during the commission of the
offense , 3 s h o ck probation was unavailable. See Tex. Co de Crim . Proc. Ann. art s . 42 A .05 3 , .054(b) , .202(b)(2)

. Unfortunately, n either the State nor Longoria ’ s attor ney

corr ected the trial co ur t ’ s mistaken assump tion that shock probation was available. Longor ia timely file d “ Defendant ’ s Motion for New Trial & Motion to R eopen S entencing Hear ing on P robation Violation ” asking the trial court “ t o grant him a
NE W TRIAL o r Reopen S ente nc ing Hearin g h er e in for the good and sufficient

2 S ee generally Tex. Co de Crim . Proc. Ann. art. 42A.202 ( permitting a trial court t o grant sh ock probation ) ; Shortt v . S tate , 539 S.W. 3d 321, 323

– 2 4 (Tex . Crim. App. 2018 ) (explaining the differenc es between straight commun ity supervision a nd

“ shock” c o m m unit y supervisio n ).

3 Each of the trial cour t ’ s adjudication judgment s included a ffirmative de adly

w ea pon findings

. See Tex . Co de Crim . Proc. Ann. art. 42A.054 (c)

.5 reason that the verdict is contrary to the la w a nd the evidenc e. ” 4 See Tex. R. App. P. 21.1, 2 1. 3(h) , 21.4(a)

. In support, Longoria ar g ued tha t (1) he had pleaded tru e and
had t aken the stand “ to plea d f or m er cy ” from the tr ial court , and his testimony
revealed that he is the sole pr o vider for his family , which includes a special

- needs

c hild ; ( 2 ) he ha s a well

- d ocumented subs tance

- abuse problem w ith alcohol , an d his probation officer testified t hat the r e ar e less res trictive pro gr ams “ available to

sentence [Longoria] to in order to add ress [his] al c oholism ” ; and ( 3 ) he had alr eady pleaded guilty to the Dallas Cou nty D WI offense and ha d been sente n ced to
communit y supervision for that off ense . At the n ew
- trial hearing, Longoria restated the arguments in his m oti on s . The
State countered that Longoria ’ s new

- trial g round

— that the verdict is contrary to the
law and the evidence

— was a n evidentiary

- su fficiency challenge and ar gu e d t hat based

on Longoria ’ s plea s of tr ue to the petition s and the fact that the tr ial court ’ s s entence s

were on the lower end of t he punishme nt ran ge, 5 th e trial court shou ld deny the new

trial motion s because they were “ not based on an ything substa ntia te d i n the l aw . ” T h e trial court ag reed b ut gran ted Longoria ’ s new

- trial motion s :

4 Although Longoria move d the trial court for a new tri al or t o reopen s e n t enci ng, h e prayed only that the court “ set a side the sentence in this ca use and order a new sentencing hearing

. ”

5 Aggravated assault on a publi c servant is a first

- degree fel ony , Tex. Penal Code Ann. § 22.02 (b)(2)(B) , whic h is punisha b l e “ b y i mprisonment in th e Te xas Department of Crim inal Justice for life or for an y term of not more than 99 years or le ss than 5 years , ” i d. § 1 2 .32(a)

.6 It ’ s not substantiated in the l aw, but it ’ s substantiated in equity because the Cour t ma de it cl ear at the time of the sentencing that I would consider shoc k probat io n. And in looking at it afterwards I deter mined that the original sentence judgment had a deadly weapon finding, which wo uld preclud e me from doing that

. [ 6 ]
And so based up on equi ta ble gr ounds, as well as the fact that the Court messed up, I ’ m goi ng t o grant t he M otion for New Tr ial.
So he ’ s go ing to be back on probation. What I intend to do is I intend to extend his pro bat ion, ame nd his conditions, and put him

-- extend h is probat ion for three more years, which I have the ability to do. I’ m going to releas e [him ], once TDC gives us the authorit y to d o so, back to the probation department. [Em phas es added.]
T he tri al c ourt then granted Longoria ’ s new -t rial m otions, dismissed the State ’s petitions to adjudi cate, extended Longoria ’ s proba ti on, and amended Longoria ’ s pr obat ion conditions. 7
Th e Stat e has appealed and raises three issue s : (1) the trial court lacked
autho rity to grant Long oria a ne w trial on equitable grounds , (2) the trial court effectively imposed a n ille gal sentence by placing Longoria on probat ion after

a djudicating him gui lt y of t wo first

- degree felonies each carryin g m inimum five

- year

6 S ee Tex. Co de Crim . Proc. Ann. arts
. 42 A .05 3, .054(b) , (c) , .202(b)(2)

.
7 In granting the new

- trial motion s, t h e trial co urt set aside its adju dication s of guilt and res to red the case s to th eir pre- ad judication position s. See Tex. R. App. P. 21. 1(a), 21.9 (b); Jordan v. State , 36 S.W .3d 871, 876 (Tex. Crim. App. 2001) (“ Even after revocati on of [a defendant ’ s] defe r red adj udi cati on probation

. . . such a defendant can file a motion for new trial, and if a new trial is granted, the conviction it self would be undone

. ”) ; State v . Gome z , No. 13

- 14

- 00585

- CR, 2016 WL 744598 , at *2– 3 (Tex. App.

— Co rpus Christi

– Edinburg Feb. 25, 201 6, no p et. ) (mem. op. on reh’g , not designated for publication) (concluding that trial court ’ s withdrawing ad judication of defenda nt ’ s guil t and reinstati ng defendant ’ s defer red adjudication effe ctively returned the case t o the post ure i t had b een i n before t he revoca tion hearing and adjudication of guilt ).7 se ntences, and (3) assuming that equit able grounds justi fied the trial court ’ s granting Longoria a new tria l on p un ishm ent, the trial court erred by re storing the case s to th eir pr e- adjudicat io n stat us es and dismissing the State ’ s pe tit ion s , which effectivel y granted Longo r ia a new trial on gu ilt as well.
II. Standard of Review and Applicable Law
We review a tri al court ’ s ruling on a new

- trial motion for an abuse of
discretion. S ee State v. H er

ndon , 215 S.W.3d 901, 906 (Tex. C rim . App. 2007). We vi ew the evidence in the light most fa vora ble to the trial court ’ s ruling and uphold that ruling if it was within the z one of reasonable disagreement. Webb v. State , 232 S.W.3d 109, 112 (Tex. Crim. App

. 2007). “ We do not substitute our jud gment for that of the trial court; r ather, we decide wh ethe r the trial court ’ s decision was arbitrary or
unreasonable. ” M cQuarrie v. Sta te , 380 S.W.3d 145, 150 (Tex. Crim. App. 2012) (quoting Holden v. State , 201 S.W.3 d 761, 763 (Tex. Crim. App. 2006)). We presume the tri al court correctly granted a new trial, and the State has the burden to establish the contrary. State v. S anders , 44 0 S. W.3d 94, 99 (Tex. App.

— Houston [14 th Dist.] 2013, pet. ref ’ d) (mem. op.)

. We will up hold t he trial court ’ s judgment if any
appro pri ate ground exist s to support it. I d.
Texas Rule of Appella te Procedure 21.3 provides the legal bases for which a trial court must grant a defendant a new trial 8 or a new trial on punishment

. 9 See Tex.

8 A “ new trial ” is “ the rehearing of a criminal action a fter the trial court h as, on the defend ant ’ s motion, set aside a f in ding or verdict of guilt. ” Tex. R . App. P. 21. 1 (a).8 R. Ap p. P. 21 .3

. But these grounds are not exclusi ve : a trial court has the discretion to grant a new t rial “ in the inter est of justice. ” He rn don , 215 S .W.3d at 906

– 07

. Th at discretion, how ever, is no t un bounded or un fettered. Id. at 907. “‘[J] ustice ’ means in

ac cordan ce with the law .” Id. In other words, “[ t] here must be some legal b asis underpinning the g rant o f a new tria l, even if it is granted in the interest of justice .”
State v. Thomas , 428 S.W.3d 99 , 105 (Tex. Crim. App. 2014 ). A trial court abuses its
d iscretio n if it grants a new trial for a nonl ega l or a legally invalid reason. Id. at 104 (citing He rn don , 215 S .W .3d at 9 07 ). A t rial court “ cannot grant a new trial on mere sympathy, an ina rticulate hunch, or simply because he personally believes that th e defend a nt is innocent or ‘ received a raw deal. ’ ” Hern don , 215 S .W.3d at 9 07

. III. Analysis Longo ria mov ed for a new trial 10 under Texas Rule of Appellate Pr ocedure 21.3(h), which requir es a trial co u rt to grant a defendant a new trial “ when the verdict

Granting a new t rial res tores the cas e t o it s p o sitio n be fore the trial. Tex. R. App. P. 21.9(b).

9 A “new trial on punishment ” is “ a new hearing of the punish men t stage of a criminal action after the tr ial court has, on the defendant ’ s motion, set as ide an assessment of p unis h ment without set tin g as ide a fin ding or verdict of guilt

. ” Tex. R. App. P. 21.1 (b). “Granting a new trial on punishm ent restores the case to its po s ition after the defendant was fou nd guilty. ” Tex. R. App. P. 21.9( c).

10 The State argues that because Lo ngor ia’s prayer s in his new

- trial m ot ion s were limited to asking for new sentencing, Longoria only moved for a new trial on punishment

. But in the bodies of hi s motions , Longo ria asked for a new t rial or to reopen sentencing

. We thus conclude that Lo ngo r ia mov e d for both a new trial and a new trial on punishment.9 i s contra r y to the law and the evidence. ” Tex. R. App . P. 21.3(h). The Stat e’ s first iss ue chall enges the trial court ’ s authority to grant Longoria a new tr ial

. Within this issue , the State contends that the trial court could not grant Longoria’ s new

- trial motion s, in part becau se the trial court ’ s stated reaso n for granting th e mo tion s— equity based on
the trial court ’ s mistaken belief at the ad judication he arin g that Longor ia was el igible for shock probation

— was not raised in Longoria ’ s new

- trial motion s bu t was rai sed
sua sp ont e by the trial court
. Longoria respon ds th at trial court granted him a new trial to rectify the court ’s mist ake and that it w as a uthorized to d o so under Texas
Rule of A p pellate Procedure 21.3(b ), which requires the trial court to gra nt a def e nd ant a new trial “ when the court has misdirected the j ury about the law or has
committed some other material error likel y to injur e t he d efendant ’ s ri ghts .” Tex. R. Ap p. P. 2 1.3(b). Al ternatively, Longoria contends that the trial court c ould gra n t hi m a

n ew trial “ in the interest of ju stice .” See , e.g. , Her ndon , 215 S.W.3d at 906

– 07

. But Rule 21.3(b) , “ in the interest of ju stice ,” and the unavailability of shock probation were not the grounds upon which Longoria moved for a new trial ; hi s

m otion s wer e li m ited to Rule 21.3(h). A defendan t must allege sufficient grounds in
his new

- trial motion to apprise the trial cou rt a nd t he State why he believe s himself
entitled to a new trial. State v. Gonzale z , 855 S.W.2d 692, 694

– 95 (Tex. Crim. App.
199 3) ; see State v. Zalman , 400 S.W .3d 5 90, 5 94 (Tex. Crim. App. 2013) ( stating that “[a]n essential element of [a new

- tri al motion ] is tha t the matter of error relied upon for a new trial must be specifically set forth therein ” and that “ [t] he wisdom of t hat10 rule lies in t he fact that reas o nable notice should be given not only to the trial court but the State, as well, as to the misco ndu ct r elied upon and to prevent a purely fishing expedition on the part of the accuse d”)

. “ Moreover, it is well settled t hat a motio n for

ne w t rial in a criminal case may be granted only on the defenda nt ’ s t imely moti on

— the trial court has no authority to grant a new trial on its own motion. ” State v. Provos t , 205 S.W.3d 561 , 566 (Tex. App .—H ouston [14th Di st.] 2006, no pet .) (citing Ex parte Ybarr a , 629 S.W.2d 943 , 945 (Tex. Crim. App. 1982 ) ; Zaragosa v. Sta te , 588 S. W.2 d 322 , 326

– 27 (Tex. Crim. App. [Panel Op.] 1979 )) ; see State v. Aguilera , 165 S.W.3d 695 , 698
n.9 (Tex. Crim. App. 2005 ).
B ecause Long oria did not raise Rule 21.3( b) , “in the inter est of justice ,” or the unavailability of shock probation in h is new

- trial moti on s , t h e trial court could not grant a new trial on any of those grounds

. S ee Provost , 205 S.W.3d at 566 ; see also St ate v. Har t , 342 S .W.3d 65 9, 676 (Tex. App. —Hou ston [14 th Dist.] 2011, pet. ref ’d). Nevertheless, as noted, we will uphold the trial co urt’ s judgment if any appropriate ground exists to support it. See Sanders , 440 S.W.3d at 99 . We will thus address the
groun d raised in Lon goria ’s ne w- trial motion s— tha t the tr ial court ’ s verdict was contrary to the law and the evidence

— which the State arg ues Longoria failed to
establish

. See Tex

. R . App. P. 21.3(h) ; Provost , 205 S.W.3d at 566

. Such a n allegation is a n evid ent iary

- sufficienc y challenge. Zalman , 400 S.W. 3d at 594 ; Sanders , 440 S.W.3d at 104

. In a revocation proceeding, the S tat e must prove by a preponderance of t he evidence that the defendant violated at least one of the term s11 and conditions of community supe rvi sion. Bryant v. State , 391 S.W.3d 86, 93 (Te x. C rim. App. 2012); Rickels v. State , 202 S.W.3d 759, 763

– 64 (Tex. Crim . A pp. 2006).
Th e t r ial court is the so le judge of the witnesses ’ credibility and the weight to be give n their testimony, and we review t he evidence in the light most favorable to the tria l

co urt ’ s ruling. Hacker v. State , 389 S.W.3d 860, 865 (Tex. Crim. A pp. 2013); Cardo n a v . State , 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). If the State fails to meet its burden of pro of, the trial court abu ses its discret ion by revoking the community sup ervi sion.
Cardona , 665 S.W.2d at 493

– 94

. As noted, Longoria argued in h is new

- trial m o ti on s that the trial court ’ s verdict

was contra r y to the law and the evidence becaus e (1) he had pleaded true , had sou ght
mercy , a nd is t he sole pr ovider for his fami ly , whic h includes a special

- needs child ; ( 2 ) he ha s a well

- documented al co hol pro blem t h a t could be address ed with less restrictive programs; and ( 3 ) he had alr eady pleaded gui lty in Dallas County and ha d
be en sente n ced to com munit y supervision for that D WI off en se . But these claims , compelling as they a re as an equ i t a bl e matter, do n ot affect the sufficiency o f the evidence supporting the re vocation

. Lon goria judicially confessed to the f acts alleged
in the State ’ s revocation petitions and entered op e n pl eas of t rue to the petitions ’ allegations

. A plea of true, standing alone, suffices to support the revocation of community supervision. Tapia v. State , 462 S. W.3d 29, 31 n.2 (Tex. Crim. App. 2015)

. Mor e over, the t rial court ’ s s enten ce was w ithin the punish ment ran ge for the off ense ,

s ee Te x . Pe nal Code Ann. § § 1 2 .32(a) , 22.02 (b)(2)(B) , and a trial court cannot grant a12 new trial “ on mere sympathy, an inarticu lat e hunch, or simply because he personally
believes that the defendant is innocent or ‘ received a ra w deal. ’” 11 He rn don , 21 5 S .W.3d

at

907. B ec ause the evidence is sufficient , w e hold that t he trial court ab use d its
discretion by granting Longoria a ne w trial —wh ether on gui lt or on punishment

— on the grou nd that the trial court ’ s verdict was contra r y to th e law an d the evidence

. See
S ander s , 44 0 S.W.3d at 104. We thus sustain the State ’ s first issue, which is dispositiv e. See Tex. R. App. P. 47.1.
I V. Conclus ion Having sustained the State ’ s firs t issue , which is di spositive of t his appeal, we

reverse the or ders gra nting Longoria’ s new

- trial mot io ns and e xtending Long oria ’s community supervisio n and amending its terms and remand the cases to the trial

court t o rei nstate the adjudication judgments and sen tences. /s/ Elizabeth Kerr
Elizabeth Kerr Jus ti ce Do Not Publish Tex. R. App. P. 47.2(b)
Deli vered : May 12, 2022

11 We re cognize that the trial court was seeking to rec tif y its erroneous understanding of sh ock probation ’ s availabili ty, and we are not unsympathetic

. But as an interm ediate a ppellate cour t, we a re bou n d to follow legal precedent

. If an exception is to be carved out here, that is within the sol e province of the Texas Court of Criminal Appeals.