In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-21-00071-CR

No. 02-21-00072-CR

___________________________

On Appeal from the 396th District Court

Tarrant County, Texas

Trial Court Nos. 1365681D, 1365684D

Before Sudderth, C.J.; Kerr and Bassel, JJ.

Memorandum Opinion by Justice Kerr

THE STATE OF TEXAS

V. 

ALBERTO LONGORIA, Appellee
2

MEMORANDUM OPINION

Appellee Alberto Longoria was on deferred-adjudication community 

supervision for two counts of aggravated assault on a public servant with a deadly 

weapon. After Longoria violated his community-supervision conditions, the State

petitioned to proceed to adjudication. The trial court adjudicated Longoria guilty and 

sentenced him to ten years in prison on each count.

Longoria successfully moved for a new probation-revocation hearing, and the 

trial court dismissed the State’s petitions and placed him back on probation. The State 

has appealed, arguing in three issues that the trial court abused its discretion by 

granting Longoria a new trial because (1) the trial court lacked authority to do so; 

(2) the trial court effectively imposed an illegal sentence by placing Longoria on 

probation after adjudicating him guilty of two felonies; and (3) assuming that the trial 

court properly granted Longoria a new trial on punishment, the court erred by

restoring the cases to their pre-adjudication statuses, which effectively granted 

Longoria a new trial on guilt as well. Because the trial court lacked the authority to 

grant Longoria a new trial, we reverse the trial court’s orders granting the new-trial 

motions and remand the cases to the trial court to reinstate the adjudication 

judgments and sentences.

I. Background

In May 2014, the State charged Longoria under separate cause numbers with 

two counts of aggravated assault on a public servant with a deadly weapon (a motor 
3

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 the indictments and pleaded guilty

pursuant to a plea bargain in each cause. The trial court accepted Longoria’s pleas, 

deferred adjudicating him guilty, and placed him on seven years’ community 

supervision in each cause. In August 2017, the State petitioned to proceed to 

adjudication in both causes because Longoria had committed a new offense in Dallas 

County—driving while intoxicated—and had consumed alcohol. In January 2018, the 

trial court amended Longoria’s probation terms and dismissed the State’s petitions.

In January 2020, the State again petitioned to proceed to adjudication in both 

causes based on a new driving-while-intoxicated offense in Dallas County and 

Longoria’s use, possession, or consumption of alcohol. Longoria judicially confessed 

to the facts alleged in the petitions and entered open pleas of true to the allegations in 

the State’s petitions.

During the March 30, 2021 revocation hearing, the trial court heard testimony 

from Longoria, his probation supervisor, Longoria’s wife, and one of Longoria’s 

aggravated-assault-on-a-public-servant victims. At the hearing’s conclusion, the trial 

court found the facts in the State’s petitions to be true and adjudicated Longoria 

1

The indictments alleged in part that Longoria “did use or exhibit a deadly 

weapon during the commission of the assault, to-wit: a motor vehicle, that in the

manner of its use or intended use was capable of causing death or serious bodily 

injury.”
4

guilty. The trial court also sentenced Longoria to ten-year concurrent sentences but 

told Longoria that it would consider shock probation2

:

Prior to the expiration of 180 days from today’s date, if [your

attorney] files the appropriate motion, I would consider an application 

for suspending further sentence and placing you back on probation. 

[Your attorney] will explain to you what that means.

But basically you’re under a ten-year sentence. You’ve got to earn 

the right for me to suspend [the] rest of the sentence, and [your attorney 

will] explain how that works.

The trial court would later realize, however, that because Longoria had judicially 

confessed to using or exhibiting a deadly weapon during the commission of the 

offense,

3 shock probation was unavailable. See Tex. Code Crim. Proc. Ann. arts. 

42A.053, .054(b), .202(b)(2). Unfortunately, neither the State nor Longoria’s attorney 

corrected the trial court’s mistaken assumption that shock probation was available.

Longoria timely filed “Defendant’s Motion for New Trial & Motion to Reopen 

Sentencing Hearing on Probation Violation” asking the trial court “to grant him a 

NEW TRIAL or Reopen Sentencing Hearing herein for the good and sufficient 

2

See generally Tex. Code Crim. Proc. Ann. art. 42A.202 (permitting a trial court 

to grant shock probation); Shortt v. State, 539 S.W.3d 321, 323–24 (Tex. Crim. App. 

2018) (explaining the differences between straight community supervision and 

“shock” community supervision).

3

Each of the trial court’s adjudication judgments included affirmative deadlyweapon findings. See Tex. Code Crim. Proc. Ann. art. 42A.054(c).
5

reason that the verdict is contrary to the law and the evidence.”4 See Tex. R. App. P. 

21.1, 21.3(h), 21.4(a). In support, Longoria argued that (1) he had pleaded true and 

had taken the stand “to plead for mercy” from the trial court, and his testimony 

revealed that he is the sole provider for his family, which includes a special-needs 

child; (2) he has a well-documented substance-abuse problem with alcohol, and his 

probation officer testified that there are less restrictive programs “available to

sentence [Longoria] to in order to address [his] alcoholism”; and (3) he had already 

pleaded guilty to the Dallas County DWI offense and had been sentenced to 

community supervision for that offense.

At the new-trial hearing, Longoria restated the arguments in his motions. The 

State countered that Longoria’s new-trial ground—that the verdict is contrary to the 

law and the evidence—was an evidentiary-sufficiency challenge and argued that based 

on Longoria’s pleas of true to the petitions and the fact that the trial court’s sentences

were on the lower end of the punishment range,5 the trial court should deny the newtrial motions because they were “not based on anything substantiated in the law.” The 

trial court agreed but granted Longoria’s new-trial motions:

4

Although Longoria moved the trial court for a new trial or to reopen 

sentencing, he prayed only that the court “set aside the sentence in this cause and 

order a new sentencing hearing.”

5

Aggravated assault on a public servant is a first-degree felony, Tex. Penal Code 

Ann. § 22.02(b)(2)(B), which is punishable “by imprisonment in the Texas 

Department of Criminal Justice for life or for any term of not more than 99 years or 

less than 5 years,” id. § 12.32(a).
6 

It’s not substantiated in the law, but it’s substantiated in equity because 

the Court made it clear at the time of the sentencing that I would consider shock 

probation. And in looking at it afterwards I determined that the original sentence 

judgment had a deadly weapon finding, which would preclude me from doing that.

[6] 

And so based upon equitable grounds, as well as the fact that the 

Court messed up, I’m going to grant the Motion for New Trial.

So he’s going to be back on probation. What I intend to do is I 

intend to extend his probation, amend his conditions, and put him --

extend his probation for three more years, which I have the ability to do.

I’m going to release [him], once TDC gives us the authority to do so, 

back to the probation department. [Emphases added.]

The trial court then granted Longoria’s new-trial motions, dismissed the State’s 

petitions to adjudicate, extended Longoria’s probation, and amended Longoria’s 

probation conditions.7

The State has appealed and raises three issues: (1) the trial court lacked 

authority to grant Longoria a new trial on equitable grounds, (2) the trial court 

effectively imposed an illegal sentence by placing Longoria on probation after 

adjudicating him guilty of two first-degree felonies each carrying minimum five-year 

6

See Tex. Code Crim. Proc. Ann. arts. 42A.053, .054(b), (c), .202(b)(2). 

7

In granting the new-trial motions, the trial court set aside its adjudications of 

guilt and restored the cases to their pre-adjudication positions. 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 revocation of [a defendant’s] deferred adjudication probation . . . such a 

defendant can file a motion for new trial, and if a new trial is granted, the conviction

itself would be undone.”); State v. Gomez, No. 13-14-00585-CR, 2016 WL 744598, at 

*2–3 (Tex. App.—Corpus Christi–Edinburg Feb. 25, 2016, no pet.) (mem. op. on 

reh’g, not designated for publication) (concluding that trial court’s withdrawing 

adjudication of defendant’s guilt and reinstating defendant’s deferred adjudication 

effectively returned the case to the posture it had been in before the revocation

hearing and adjudication of guilt). 
7 

sentences, and (3) assuming that equitable grounds justified the trial court’s granting 

Longoria a new trial on punishment, the trial court erred by restoring the cases to 

their pre-adjudication statuses and dismissing the State’s petitions, which effectively 

granted Longoria a new trial on guilt as well.

II. Standard of Review and Applicable Law

We review a trial court’s ruling on a new-trial motion for an abuse of 

discretion. See State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App. 2007). We view 

the evidence in the light most favorable to the trial court’s ruling and uphold that

ruling if it was within the zone of reasonable disagreement. Webb v. State, 232 S.W.3d 

109, 112 (Tex. Crim. App. 2007). “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.” McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012) 

(quoting Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006)). We presume 

the trial court correctly granted a new trial, and the State has the burden to establish 

the contrary. State v. Sanders, 440 S.W.3d 94, 99 (Tex. App.—Houston [14th Dist.]

2013, pet. ref’d) (mem. op.). We will uphold the trial court’s judgment if any 

appropriate ground exists to support it. Id.

Texas Rule of Appellate Procedure 21.3 provides the legal bases for which a 

trial court must grant a defendant a new trial8 or a new trial on punishment.

9 See Tex.

8

A “new trial” is “the rehearing of a criminal action after the trial court has, on 

the defendant’s motion, set aside a finding or verdict of guilt.” Tex. R. App. P. 21.1(a). 
8 

R. App. P. 21.3. But these grounds are not exclusive: a trial court has the discretion to

grant a new trial “in the interest of justice.” Herndon, 215 S.W.3d at 906–07. That 

discretion, however, is not unbounded or unfettered. Id. at 907. “‘[J]ustice’ means in 

accordance with the law.” Id. In other words, “[t]here must be some legal basis 

underpinning the grant of a new trial, 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 

discretion if it grants a new trial for a nonlegal or a legally invalid reason. Id. at 104

(citing Herndon, 215 S.W.3d at 907). A trial court “cannot grant a new trial on mere

sympathy, an inarticulate hunch, or simply because he personally believes that the 

defendant is innocent or ‘received a raw deal.’” Herndon, 215 S.W.3d at 907. 

III. Analysis

Longoria moved for a new trial10 under Texas Rule of Appellate Procedure 

21.3(h), which requires a trial court to grant a defendant a new trial “when the verdict 

Granting a new trial restores the case to its position before the trial. Tex. R. App. P. 

21.9(b).

9

A “new trial on punishment” is “a new hearing of the punishment stage of a 

criminal action after the trial court has, on the defendant’s motion, set aside an 

assessment of punishment without setting aside a finding or verdict of guilt.” Tex. R. 

App. P. 21.1(b). “Granting a new trial on punishment restores the case to its position 

after the defendant was found guilty.” Tex. R. App. P. 21.9(c). 

10The State argues that because Longoria’s prayers in his new-trial motions 

were limited to asking for new sentencing, Longoria only moved for a new trial on 

punishment. But in the bodies of his motions, Longoria asked for a new trial or to 

reopen sentencing. We thus conclude that Longoria moved for both a new trial and a 

new trial on punishment.
9 

is contrary to the law and the evidence.” Tex. R. App. P. 21.3(h). The State’s first issue 

challenges the trial court’s authority to grant Longoria a new trial. Within this issue, 

the State contends that the trial court could not grant Longoria’s new-trial motions, in 

part because the trial court’s stated reason for granting the motions—equity based on 

the trial court’s mistaken belief at the adjudication hearing that Longoria was eligible 

for shock probation—was not raised in Longoria’s new-trial motions but was raised 

sua sponte by the trial court. Longoria responds that trial court granted him a new 

trial to rectify the court’s mistake and that it was authorized to do so under Texas 

Rule of Appellate Procedure 21.3(b), which requires the trial court to grant a 

defendant a new trial “when the court has misdirected the jury about the law or has 

committed some other material error likely to injure the defendant’s rights.” Tex. R. 

App. P. 21.3(b). Alternatively, Longoria contends that the trial court could grant him a 

new trial “in the interest of justice.” See, e.g., Herndon, 215 S.W.3d at 906–07. 

 But Rule 21.3(b), “in the interest of justice,” and the unavailability of shock 

probation were not the grounds upon which Longoria moved for a new trial; his 

motions were limited to Rule 21.3(h). A defendant must allege sufficient grounds in 

his new-trial motion to apprise the trial court and the State why he believes himself 

entitled to a new trial. State v. Gonzalez, 855 S.W.2d 692, 694–95 (Tex. Crim. App. 

1993); see State v. Zalman, 400 S.W.3d 590, 594 (Tex. Crim. App. 2013) (stating that 

“[a]n essential element of [a new-trial motion] is that the matter of error relied upon 

for a new trial must be specifically set forth therein” and that “[t]he wisdom of that
10

rule lies in the fact that reasonable notice should be given not only to the trial court 

but the State, as well, as to the misconduct relied upon and to prevent a purely fishing 

expedition on the part of the accused”). “Moreover, it is well settled that a motion for 

new trial in a criminal case may be granted only on the defendant’s timely motion—

the trial court has no authority to grant a new trial on its own motion.” State v. Provost, 

205 S.W.3d 561, 566 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (citing Ex parte

Ybarra, 629 S.W.2d 943, 945 (Tex. Crim. App. 1982); Zaragosa v. State, 588 S.W.2d 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). 

 Because Longoria did not raise Rule 21.3(b), “in the interest of justice,” or the 

unavailability of shock probation in his new-trial motions, the trial court could not 

grant a new trial on any of those grounds. See Provost, 205 S.W.3d at 566; see also State v.

Hart, 342 S.W.3d 659, 676 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). 

Nevertheless, as noted, we will uphold the trial court’s judgment if any appropriate 

ground exists to support it. See Sanders, 440 S.W.3d at 99. We will thus address the 

ground raised in Longoria’s new-trial motions—that the trial court’s verdict was

contrary to the law and the evidence—which the State argues Longoria failed to 

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

Such an allegation is an evidentiary-sufficiency challenge. Zalman, 400 S.W.3d at

594; Sanders, 440 S.W.3d at 104. In a revocation proceeding, the State must prove by a 

preponderance of the evidence that the defendant violated at least one of the terms 
11

and conditions of community supervision. Bryant v. State, 391 S.W.3d 86, 93 (Tex. 

Crim. App. 2012); Rickels v. State, 202 S.W.3d 759, 763–64 (Tex. Crim. App. 2006). 

The trial court is the sole judge of the witnesses’ credibility and the weight to be given 

their testimony, and we review the evidence in the light most favorable to the trial 

court’s ruling. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); Cardona v. 

State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). If the State fails to meet its burden 

of proof, the trial court abuses its discretion by revoking the community supervision. 

Cardona, 665 S.W.2d at 493–94.

As noted, Longoria argued in his new-trial motions that the trial court’s verdict 

was contrary to the law and the evidence because (1) he had pleaded true, had sought

mercy, and is the sole provider for his family, which includes a special-needs child; 

(2) he has a well-documented alcohol problem that could be addressed with less 

restrictive programs; and (3) he had already pleaded guilty in Dallas County and had 

been sentenced to community supervision for that DWI offense. But these claims, 

compelling as they are as an equitable matter, do not affect the sufficiency of the 

evidence supporting the revocation. Longoria judicially confessed to the facts alleged 

in the State’s revocation petitions and entered open pleas of true 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).

Moreover, the trial court’s sentence was within the punishment range for the offense, 

see Tex. Penal Code Ann. §§ 12.32(a), 22.02(b)(2)(B), and a trial court cannot grant a
12

new trial “on mere sympathy, an inarticulate hunch, or simply because he personally

believes that the defendant is innocent or ‘received a raw deal.’”11 Herndon, 215 S.W.3d

at 907. Because the evidence is sufficient, we hold that the trial court abused its

discretion by granting Longoria a new trial—whether on guilt or on punishment—on

the ground that the trial court’s verdict was contrary to the law and the evidence. See 

Sanders, 440 S.W.3d at 104. We thus sustain the State’s first issue, which is dispositive.

See Tex. R. App. P. 47.1.

IV. Conclusion

Having sustained the State’s first issue, which is dispositive of this appeal, we 

reverse the orders granting Longoria’s new-trial motions and extending Longoria’s 

community supervision and amending its terms and remand the cases to the trial 

court to reinstate the adjudication judgments and sentences.

 /s/ Elizabeth Kerr

Elizabeth Kerr

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: May 12, 2022

11We recognize that the trial court was seeking to rectify its erroneous 

understanding of shock probation’s availability, and we are not unsympathetic. But as 

an intermediate appellate court, we are bound to follow legal precedent. If an 

exception is to be carved out here, that is within the sole province of the Texas Court 

of Criminal Appeals.