Mario Ernesto Martell v. the State of Texas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
MARIO ERNESTO MARTELL, § No. 08-18-00180-CR
Appellant, § Appeal from the
v. § 1st Criminal District Court
THE STATE OF TEXAS, § of El Paso County, Texas
Appellee. § (TC#990D03958)
OPINION
This case arrives back to us on remand from the Texas Court of Criminal Appeals. In our
initial opinion, we reversed the trial court’s revocation of Appellant Mario Ernesto Martell’s
deferred-adjudication community supervision because it failed to properly apply the due-diligence
affirmative defense found in Texas Code of Criminal Procedure article 42A.109. Martell v. State,
615 S.W.3d 269, 276-77 (Tex. App.—El Paso 2020, pet. granted), rev’d, No. PD-1234-20, 2022
WL 1548020, at *5 (Tex. Crim. App. May 11, 2022). The Court of Criminal Appeals vacated our
opinion and remanded it with instructions to consider the State’s argument that Martell is estopped
from using the due diligence affirmative defense. Martell, 2022 WL 1548020, at *5. After
additional briefing from both parties on the estoppel issue, we find that estoppel as currently
defined by the Court of Criminal Appeals does not prevent Martell from asserting the defense. As
a result, we reverse and remand.
I. BACKGROUND
We provided a detailed factual background of this case in our initial decision. Martell, 615
S.W.3d at 271-73. Here, for the purpose of brevity, we will only provide those facts relevant to the
State’s estoppel issue.
In October 1999, Martell pled guilty to unlawful possession of marijuana in an amount
greater than five pounds but less than fifty pounds. Based on Martell’s plea, the trial court entered
a judgment “deferring further proceedings without entering an adjudication of guilt” and placed
Martell on community supervision for four years. The terms of Martell’s community supervision,
which are incorporated by reference into the trial court’s judgment, state that Martell “may live in
Juarez, [Mexico].” It is undisputed in the record that Martell lived in Mexico until around 2010, at
which point he moved to El Paso. The terms also require that Martell “[p]ermit [his] Supervising
Officer to visit [him] at [his] home address or elsewhere.” He was also required to report to his
supervision officer with the West Texas Community Supervision and Corrections Department (the
Department) every month in El Paso, Texas. Neither at the trial court nor on appeal has Martell
claimed that either the judgment or the terms of community supervision are invalid.
The critical facts underlying the trial court’s revocation of Martell’s deferred-adjudication
community supervision are undisputed. As an initial matter, Martell does not dispute that he
violated the terms of his community supervision when he stopped reporting to his supervision
officer only a few months after judgment was entered against him. Further, the evidence presented
to the trial court shows the Department tried to re-establish supervision of Martell by sending two
letters to his home address in Mexico and attempted to call him on his home phone number. The
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Department’s file on Martell does not, however, reflect that any attempts were made by the
Department or any other law-enforcement agency to contact Martell in person at his address in
Mexico. Indeed, the evidence before the trial court established that the Department does not have
jurisdiction to go into Mexico to conduct home visits.
After Martell did not respond to the Department, it considered him an absconder and
submitted violation notices to the District Attorney’s Office so it could seek revocation of his
community supervision. In March 2002, the State filed a motion to adjudicate guilt alleging Martell
failed to report from December 1999 through December 2001, among other violations not at issue
in this appeal, and the trial court issued a capias for his arrest. Martell, however, was not arrested
until August 2017.
Martell argued at the revocation hearing that the due-diligence affirmative defense found
in article 42A.109 prevented the State from revoking his deferred-adjudication community
supervision because there was no evidence the State attempted to contact him in-person in Mexico.
The State responded that it “had no jurisdiction in Mexico” and urged the trial court to not give
Martell a pass for violating the terms of his community supervision because he lived in a different
country. The trial court held it did not think it was in the interest of justice to allow Martell to
assert the due-diligence defense:
So I want to make sure that I put it on record that I did consider the arguments on
the due diligence. And that in chambers, I did tell both sides that the fact that Mr.
Martell had been given permission to reside in Mexico, that I didn’t feel that it was
in the interest of justice to allow him to use that also as a reason to bring up the due
diligence was not done like it would have been done if he had been residing here in
El Paso County.
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The trial court then revoked Martell’s community supervision, adjudicated him guilty, and
sentenced him to ten years of regular community supervision, and ordered that he remain in El
Paso for the duration of his sentence.
In the first appeal to this Court, the State argued the due-diligence defense did not apply
because the law does not require the doing of a futile act. See Martell, 615 S.W.3d at 275.
Specifically, it argued that because the Department and other Texas law-enforcement entities do
not have jurisdiction to conduct home visits in Mexico it should not be required to strictly comply
with the dictates of article 42A.109. Id. Disagreeing with the State, we held we do not have the
power “to carve out an exception to the statutory due-diligence affirmative defense based on case-
specific factual concerns . . . .” Id. at 276. As a result, we found the due-diligence defense applied
and the undisputed facts established “that no supervision officer, peace officer, or other officer
attempted in-person contact with Martell” at his home address. Id. Because Martell satisfied his
burden of proving the due-diligence defense, we reversed the trial court’s order revoking Martell’s
community supervision and adjudicating him guilty. Id. at 277.
The Court of Criminal Appeals granted the State’s petition for discretionary review,
vacated our judgment, and remanded the case to us with instructions to consider the State’s
estoppel argument. Martell, 2022 WL 1548020, at *5. In doing so, the Court of Criminal Appeals
noted that while the State did not clearly raise “the issue of estoppel in the court of appeals” it did
implicitly raise the issue in both the trial court and on appeal by arguing that Martell “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[.]” Id. at *4. It further explained that under
the “right ruling, wrong reason” doctrine, we are required to uphold the trial court’s ruling “if it is
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correct ‘on any legal theory applicable to the case, even one that was not mentioned by the trial
court or the appellee.’” Id.
On remand, we allowed both parties to provide additional briefing on the estoppel issue.
We now find that estoppel, as currently applied by the Court of Criminal Appeals, does not bar
Martell from asserting the due-diligence affirmative defense.
II. ISSUE ON APPEAL
The only issue currently before the Court is whether Martell is estopped from asserting the
due-diligence affirmative defense found in article 42A.109 of the Texas Code of Criminal
Procedure because he was permitted to live in Mexico during the terms of his community
supervision. Before addressing that issue, however, we briefly address Martell’s three reasons in
which he contends we should not consider the State’s estoppel arguments: first, that it was not
argued at the trial court level; second, because it was not so argued, the trial court did not rely on
it for its ruling; and finally, to consider it now would work a manifest injustice.
III. DISCUSSION
A. Standard of review
The standard of review is provided in detail in our initial decision. Martell, 615 S.W.3d at
273-74. In short, we review a trial court’s decision to revoke deferred-adjudication community
supervision for an abuse of discretion. Id. at 273, citing Pena v. State, 508 S.W.3d 599, 604 (Tex.
App.—El Paso 2016, pet. ref’d). An abuse of discretion may occur where the trial court revokes
community supervision for an inappropriate reason. Id. As instructed by the Court of Criminal
Appeals, however, we are required to uphold the trial court’s ruling if it is correct “‘on any legal
theory applicable to the case,’” even if the theory was not mentioned or considered by the trial
court or the State. Martell, 2022 WL 1548020, at *4.
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B. Preliminary consideration
As a preliminary matter, Martell urges us to not consider the State’s estoppel arguments
“because it was not an applicable legal theory to the trial court’s ruling” and applying estoppel at
this stage of the appellate process “would work a manifest injustice against [Martell].” These same
arguments were considered and rejected by the Court of Criminal Appeals. Id. We are bound by
the Court of Criminal Appeal’s holding. See Crenshaw v. State, 424 S.W.3d 753, 755 (Tex. App.—
Fort Worth 2014, no pet.). Therefore, we deny Martell’s argument that we should not consider the
State’s estoppel arguments.
C. Analysis
Article 42A.109 provides an affirmative defense to a revocation of community supervision
for a violation based on failure to report to a supervision officer if the State does not attempt to
contact the defendant in person at the defendant’s last known address:
For the purposes of a hearing under Article 42A.108 [to determine whether a
condition of community supervision was violated], it is an affirmative defense to
revocation for an alleged violation based on a failure to report to a supervision
officer as directed…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. ANN. art. 42A.109. It is undisputed in the record that (1) Martell violated
the terms of his community supervision when he stopped reporting to his supervision officer, and
(2) the Department’s files do not reflect that any State official attempted to contact Martell in
person at his last known home or work address. Consequently, as established in our initial opinion,
the due-diligence defense should have been applied by the trial court to prevent the revocation of
Martell’s deferred-adjudication community supervision. Martell, 615 S.W.3d at 276-77.
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In its supplemental brief to the Court, the State argues that Martell should be estopped from
asserting the due-diligence affirmative defense. It relies on three theories of estoppel in support of
its position: (1) invited error; (2) estoppel by contract; and (3) estoppel by judgment. We consider
each of these in turn.
1. Invited error
“The law of invited error provides that a party cannot take advantage of an error that it
invited or caused, even if such error is fundamental.” Woodall v. State, 336 S.W.3d 634, 644 (Tex.
Crim. App. 2011). A party is, therefore, “estopped from seeking appellate relief based on error that
it induced” in the trial court. Id. “Related civil cases have held that in order for this doctrine to
apply, the party who allegedly invited the error must have deliberately and ‘unequivocally taken a
position in the trial court that is clearly adverse to its position on appeal.’” State v. Alaniz, No. 13-
15-00554-CR, 2016 WL 6804459, at *4 (Tex. App.—Corpus Christi-Edinburg Nov. 10, 2016, no
pet.) (mem. op., not designated for publication), quoting In re Dept’t of Family & Protective Servs.,
273 S.W.3d 637, 646 (Tex. 2009) (orig. proceeding), superseded by statute on other grounds as
recognized by Interest of G.X.H., 627 S.W.3d 288, 299 (Tex. 2021).
The doctrine commonly arises in the criminal context when a defendant appeals a portion
of a trial court’s jury charge that he expressly asked for. For example, in Prystash v. State, 3 S.W.3d
522, 529-30 (Tex. Crim. App. 1999), the trial court omitted on the defendant’s request a question
to the jury during the punishment phase regarding his level of culpability. The defendant then
argued on appeal the trial court erred in granting his request. Id. at 530. The Court of Criminal
Appeals held the doctrine of invited error prohibits a defendant from complaining on appeal of a
trial court’s order that he requested. Id. at 532. “To hold otherwise would be to permit him to take
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advantage of his own wrong.” Id. at 531, quoting Carbough v. State, 93 S.W. 738, 739 (Tex. Crim.
App. 1906).
The doctrine of invited error does not apply to the current case. The State argues that
Martell “asked for, and received from the trial court, the special consideration of being allowed to
live and work in Mexico.” “By inducing that action by the trial court,” according to the State,
“Martell should not be able to avail himself of the due-diligence defense . . . .” The State, however,
is confusing the issue. Neither party is advocating, either at the trial court level or on appeal, that
it was error for the trial court to permit Martell to live in Mexico during his term of community
supervision. The issue is whether the State performed the due-diligence required of it by article
42A.109. And Martell maintains the same position on appeal that he did before the trial court: that
the State failed to meet its obligations. As a result, Martell is not taking a position on appeal adverse
to the arguments he made before the trial court. Woodall, 336 S.W.3d at 644. Consequently, we
conclude the doctrine of invited error does not apply.
2. Estoppel by contract
The State argues that Martell is estopped by contract from asserting the due-diligence
defense. While the State correctly establishes that the terms of community supervision signed by
both the trial court and Martell is contractual in nature, it does not provide any argument about
how the contract prevents Martell from claiming the State did not meet its obligations under article
42A.109. DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App. 1987) (“It should be borne in
mind that it is well established that the relationship between the court and the probationer is
contractual in nature.”). Instead, it conclusively asserts that “a party who accepts the benefits under
a contract is estopped from questioning the contract’s existence, validity, or effect.” Martell
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counters that estoppel by contract does not apply because he “has never questioned the contract’s
existence, validity, or effect[.]”
We agree with Martell. In Rhodes v. State, 240 S.W.3d 882, 891 (Tex. Crim. App. 2007),
the Court of Criminal Appeals defined estoppel by contract as preventing a party who accepts
benefits under a contract from later “questioning the contract’s existence, validity, or effect.” In
Dansby v. State, 468 S.W.3d 225, 233 (Tex. App.—Dallas 2015, no pet.), in a case similar to ours,
our sister court held the doctrine of estoppel by contract does not apply unless the appellant is
“challenging the legality of the terms of his contract, that is, the conditions of his community
supervision.” Martell is not challenging the legality of the terms of his community supervision.
Instead, he is asserting that the State did not do the due diligence required of it by article 42A.109
to attempt to contact him in person. We, therefore, conclude the doctrine of estoppel by contract
does not apply.
3. Estoppel by judgment
The last theory of estoppel the State relies on is estoppel by judgment. The Court of
Criminal Appeals defined estoppel by judgment in Rhodes as estopping “‘[o]ne who accepts the
benefits of a judgment, decree, or judicial order” from “deny[ing] the validity or propriety thereof,
or of any part thereof, on any grounds; nor can he reject its burdensome consequences.’” Rhodes,
240 S.W.3d at 891. Estoppel by judgment “arises not when the person voluntarily agrees to the
judgment, but when the person voluntarily accepts its benefits after the judgment issues,” which
can occur with or without an agreement. Deen v. State, 509 S.W.3d 345, 350 (Tex. Crim. App.
2017); see also Gutierrez v. State, 380 S.W.3d 167, 178-79 (Tex. Crim. App. 2012) (“As for
estoppel by judgment, in addition to the above public-policy considerations, we note that appellate
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courts in Texas have consistently held that, before that doctrine may apply, an appellant’s
acceptance of the benefits of the judgment must be voluntary.”).
The State argues that estoppel by judgment applies because Martell voluntarily accepted
the benefit of the trial court’s judgment that allowed him to live in Mexico during the term of his
community supervision. Martell responds that the record is silent regarding “whether [he]
requested special permission to reside in Mexico . . . .” Martell, however, misunderstands the
nature of estoppel by judgment. In Gutierrez, the Court of Criminal Appeals indicated that because
terms of community supervision are dictated by the trial court instead of a product of negotiation,
a defendant ordinarily cannot be said to have voluntarily accepted the benefits. Gutierrez, 380
S.W.3d at 179. The court clarified its position in Deen, however, by stating that estoppel by
judgment turns on the voluntary acceptance of the benefits of a judgment, which can occur without
a negotiated agreement. Deen, 509 S.W.3d at 350. The Deen court stated that the only circumstance
the court had found to constitute involuntary acceptance of a benefit was in Gutierrez, where the
trial court imposed an illegal term of supervision on a mother with special needs children who
“had no realistic choice but to accept the illegal condition.” Id., citing Gutierrez, 380 S.W.3d at
170-79.
Martell’s circumstances are different than those found in Gutierrez. The record establishes
that Martell’s terms of community supervision—which were incorporated by reference into the
trial court’s judgment accepting his plea—state that Martell “may live” in Mexico. There is nothing
in the record indicating that this term was or is illegal. Further, it is undisputed on the record that
Martell, who is an American citizen and could have stayed in the United States, lived in Mexico
until 2010. Consequently, we find that Martell voluntarily accepted the benefits of the trial court’s
judgment.
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Martell’s voluntary acceptance of the benefits of the judgment does not, however, end our
inquiry. Estoppel by judgment prevents a party benefiting from a judgment from later denying its
validity or “reject[ing] its burdensome consequences.” Rhodes, 240 S.W.3d at 891. For example,
in Rhodes, the defendant argued that his prior conviction for escape could not later be used for
enhancement purposes because the judgment was void when the trial court illegally ran his
sentence concurrently with his other sentences instead of cumulatively as required by statute. Id.
at 884. The Rhodes court applied the doctrine of estoppel by judgment in holding that a “defendant
who has enjoyed the benefits of an agreed judgment prescribing a too-lenient punishment should
not be permitted to collaterally attack that judgment on a later date on the basis of the illegal
leniency.” Id. at 892. Similarly, in Deen, the defendant collaterally attacked the validity of a prior
conviction for aggravated robbery on the basis that the trial court sentenced him to prison for four
years instead of the statutory minimum five years. Deen, 509 S.W.3d at 346-48. The Deen court
held the defendant was estopped from attacking the validity of his prior judgment after he
“accepted the benefit of his illegally lenient sentence . . . .” Id. at 351.
Here, while Martell is asserting article 42A.109’s due-diligence defense to preclude his
revocation, he is not denying the validity of the trial court’s judgment. Further, while the Rhodes
court indicated that estoppel by judgment can prevent a defendant from rejecting a judgment’s
“burdensome consequences,” the State has not provided, and we have not independently found,
any Texas case law in which estoppel by judgment has been successfully applied outside a
collateral attack on the validity of a judgment as seen in Rhodes and Deen. Specifically, the State
has not identified, and we have not independently found, any Texas case law in which a criminal
defendant was estopped by a judgment from asserting a statutorily-prescribed right as we are urged
to do here. As a result, we find that estoppel by judgment does not apply.
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We understand that estoppel is a flexible doctrine that may be adjusted to fit a variety of
circumstances. Rhodes, 240 S.W.3d at 891. Today, however, we limit the application of the
doctrine of estoppel to those situations in which the Court of Criminal Appeals has expressly said
it applies. And we find that no currently recognized theory of estoppel as applied in the criminal
context prevents Martell from asserting the due-diligence affirmative defense found in article
42A.109 of the Texas Code of Criminal Procedure. As a result, we overrule the State’s only issue.
IV. CONCLUSION
For the foregoing reasons, we reverse the trial court’s judgment adjudicating Martell’s
guilty and remand the cause to the trial court with instructions to dismiss the motion to adjudicate.
GINA M. PALAFOX, Justice
November 15, 2022
Before Rodriguez, C.J., Palafox, and Alley, JJ.
(Publish)
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