CURIPOMA, JESUS ALBERTO GUZMAN v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0159-22

EX PARTE JESUS ALBERTO GUZMAN CURIPOMA, Appellee

ON PETITION FROM THE KINNEY COUNTY ATTORNEY
AND ON THE COURT’S OWN MOTION
FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
TRAVIS COUNTY

SLAUGHTER, J., filed a concurring opinion in which RICHARDSON, NEWELL,
and WALKER, JJ., joined.

CONCURRING OPINION

This case arises from a pretrial grant of habeas corpus relief to an individual arrested

and charged with criminal trespass as part of the “Operation Lone Star” task force. After

Appellee was arrested and charged in Kinney County, he filed an application for pretrial

habeas relief in a Travis County district court. Both the Kinney County Attorney and the

Travis County District Attorney sought to appear on behalf of the State in the Travis
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County habeas proceedings, but the trial judge ruled that the Kinney County Attorney had

no authority to appear. The Travis County judge then granted Appellee pretrial habeas

relief and dismissed the criminal trespass charge. After the Kinney County Attorney

attempted to file a direct appeal of that ruling, the Third Court of Appeals dismissed the

appeal for want of jurisdiction, based on its conclusion that the Kinney County Attorney

lacked authority to represent the State on appeal.

Having granted discretionary review of this case, this Court today vacates the

decision of the court of appeals and remands for reconsideration in light of our intervening

decision in In re Smith, 665 S.W.3d 449 (Tex. Crim. App. 2022). I agree with that decision

because, as Smith now makes clear, a fundamental premise underlying the court of appeals’

analysis was flawed. The court of appeals had determined, as an initial matter, that

Appellee’s habeas application was properly filed in Travis County. Smith unequivocally

rejected that position and instead held that the only proper place for filing the instant habeas

application was in the county where the underlying criminal charges were pending, Kinney

County. Because the remainder of the court of appeals’ analysis flowed from this erroneous

conclusion, this Court properly sends the case back for full reconsideration of the issues in

light of Smith. Further, applying Smith here, the correct outcome becomes obvious: The

direct appeal here was subject to dismissal because the entire case was void from its

inception as a result of the Travis County district court’s lack of any authority to rule on

the merits of Appellee’s pretrial habeas application where the underlying misdemeanor

charges were pending in another county. Thus, because the habeas proceedings in Travis

County were wholly invalid, unauthorized, and void from their inception, the appeal should
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be dismissed for want of jurisdiction, and the trial court’s invalid order purporting to grant

Appellee pretrial habeas relief should be set aside.

I. Background

In 2021, Appellee, a non-U.S. citizen with no lawful immigration status, was

arrested in Kinney County for misdemeanor criminal trespass. He was released on bond

pending a trial. He subsequently filed an application for pretrial habeas corpus relief in the

126th District Court of Travis County challenging his constructive confinement in Kinney

County resulting from the pending charges. The Travis County District Attorney’s Office

filed a response to the application in which it recommended that the trial court grant relief.

The trial court held a Zoom hearing at which counsel for Appellee and the Travis

County District Attorney’s Office appeared. An attorney representing the Kinney County

Attorney’s Office also attempted to appear and argued that that office was the “proper

representative” of the State and should “proceed as counsel for the State” in the habeas

proceeding, given that the underlying criminal charge was pending in Kinney County. The

district court, however, disagreed and instead determined that the Travis County District

Attorney was the proper representative of the State in the habeas proceeding. The court

sustained objections to Kinney County’s counsel participating in the hearing but allowed

counsel to make a bill of exception. After the hearing, the trial court granted Appellee

pretrial habeas relief and dismissed the trespass case.

Direct Appeal to the Third Court of Appeals

The Kinney County Attorney filed a notice of appeal to the Third Court of Appeals.

The following day, the Travis County District Attorney filed a “Motion to Dismiss
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Unauthorized Appeal,” arguing that the Kinney County Attorney’s Office had no

“jurisdiction, authority, or standing” to bring an appeal on behalf of the State in this habeas

matter. The Kinney County Attorney filed a response urging that, as the representative for

the State in the underlying criminal charges, his office must be permitted to participate in

the habeas proceedings. To hold otherwise, he argued, would allow “applicants to raise

pre-trial habeas challenges to the constitutionality of criminal charges in any Texas district

court and to have those criminal proceedings dismissed without response—or appeal—

from the party prosecuting them[.]” This, he contended, would improperly leave the

prosecuting entity without any avenue “to defend its underlying criminal proceedings

against dismissal by district court judges statewide[.]”

In its opinion resolving this issue, the court of appeals ultimately agreed with the

Travis County District Attorney’s position that his office was the proper representative of

the State and that the Kinney County Attorney was not authorized to pursue an appeal from

the trial court’s ruling granting Appellee pretrial habeas relief, such that dismissal of the

unauthorized appeal was warranted. State v. Guzman-Curipoma, 652 S.W.3d 74, 76, 80

(Tex. App—Austin 2022, pet. granted). To reach this conclusion, the court of appeals

addressed two issues: “[1] the propriety of the habeas application filing in a Travis County

district court[,] and [2] the statutory duties of district and county attorneys.” Id. at 77.

With respect to the first issue, the court determined that Appellee’s habeas

application “was properly filed in a Travis County district court”—in essence because

district courts have “plenary power over issuance of writs of habeas corpus in misdemeanor

actions.” Id. at 77-78 (citation and quotation omitted). The court concluded, “[W]hen, as
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here, an indictment has not issued, the writ of habeas corpus can be made returnable to any

Texas county. . . . Thus, the Travis County District Court had jurisdiction of Guzman

Curipoma’s habeas application as to the misdemeanor criminal-trespass charge pending

against him in Kinney County.” Id. at 78 (emphasis added).

Having concluded that the trial court had jurisdiction to consider the habeas

application, the court of appeals then went on to reach the second issue—the statutory

duties of district and county attorneys—for the purpose of deciding which entity was

authorized to represent the State in this matter. As to this issue, the court ultimately

determined that the “[Travis County] District Attorney was the proper representative of the

State in the Travis County habeas proceedings[.]” Id. at 78; see also id. at 79 (comparing

the statutory duties of district and county attorneys and observing that the county attorney

“aids the district attorney when requested,” or, represents the State “in the absence of the

district attorney”; because neither circumstance was present here, the district attorney was

the proper representative of the State). Moreover, the court concluded that the County

Attorney “may not take a different position on appeal than the State did below as to this

same habeas petition.” Id. at 79 (construing the applicable law “to prohibit prosecutors

from taking conflicting positions as ‘the State’ on the same habeas application”). Thus,

because the Kinney County Attorney’s Office was not authorized to bring an appeal on

behalf of the State under these circumstances, the court of appeals granted the Travis

County District Attorney’s motion and dismissed the appeal. Id. at 80.

On Discretionary Review
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The Kinney County Attorney filed a petition for discretionary review in this Court,

which this Court granted. On discretionary review, he argued, among other things, that

“[o]nce a formal charging instrument is on file, the return of a properly issued pre-trial writ

of habeas corpus must be made to the county in which the underlying charges are pending,

and the responsibility for defending the legality of the confinement and representation of

the official who is alleged to be illegally confining the applicant lies with the prosecutor’s

office charged with prosecuting the underlying criminal case.” Accordingly, the Kinney

County Attorney disputed the Travis County district judge’s authority to rule on the merits

of Appellee’s habeas application. See PDR of Kinney County Attorney, at 9 (“Because

Appellee is confined pursuant to a misdemeanor pending in Kinney County, the writ in this

case was properly returnable to Kinney County, not Travis County. Consequently, Judge

Soifer lacked authority to act on and determine the merits of the habeas corpus

applications.”).

In addition to granting the Kinney County Attorney’s PDR, we also granted review

on our own motion to address: (1) whether the Kinney County Attorney was authorized to

file a State’s appeal from the habeas proceedings in Travis County, and (2) whether the

Kinney County Attorney was authorized to file a petition for discretionary review. Given

the nature of the issues before us, we ordered the Travis County District Attorney’s Office

to file a brief. Counsel for Appellee also filed a brief.

The State Prosecuting Attorney filed an amicus brief. The SPA took the position

that this case should be considered in tandem with In re Smith, No. WR-93,354-02, which

had not yet been decided at the time that we granted review, because the issues in the cases
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were “intertwined.” As I discuss further below, in Smith, this Court was set to consider

whether the Travis County district court had jurisdiction or authority to grant pretrial

habeas relief to a group of individuals similarly situated to Appellee—that is,

undocumented immigrants charged with misdemeanor offenses in Kinney County who had

sought pretrial habeas relief in Travis County. The only real difference in those cases was

that the Travis County district court had not yet granted habeas relief to those applicants.

The SPA’s position in its amicus brief in this case is that the Travis County court lacked

jurisdiction over the habeas proceedings where the underlying criminal charges were

pending in Kinney County. Therefore, the SPA contends, because the habeas court’s

judgment granting relief was void, there was “no proper State representative.” The SPA

urges that this case “hinges on” the Travis County district court’s lack of jurisdiction to

rule on the habeas matter, not the “dueling State positions [that] the court of appeals opined

are impermissible.” Amicus Brief of SPA, at 3.

II. Analysis

As noted above, at the time that this case was submitted for an opinion in November

2022, this Court had not yet reached a decision in In re Smith, 665 S.W.3d 449 (decided

Dec. 7, 2022). But I agree with the position taken by the SPA in this case that the issue

here is “intertwined” with the issue in Smith, such that Smith controls the outcome here.

Based on Smith, the Travis County district court clearly lacked authority and/or jurisdiction

to make any ruling (let alone grant relief) on Appellee’s pretrial habeas application

challenging the charges arising out of Kinney County. Therefore, the trial court’s resulting

order purporting to grant Appellee relief was invalid and void on its face. Given that the
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court of appeals did not have the benefit of our Smith decision when it analyzed these

issues, I agree with the Court that the proper course is to remand for reconsideration in

light of Smith. Applying Smith on remand, the court of appeals should hold that the trial

court lacked jurisdiction, and that the resulting order purporting to grant Appellee relief

was invalid and must be set aside.

A. In re Smith

In In re Smith, this Court considered a request for prohibition relief from the Kinney

County Attorney, with the underlying issue being identical to the one in this case, but it

was presented in a distinguishable procedural posture. 665 S.W.3d at 452. Thousands of

defendants similarly situated to Appellee had been arrested for misdemeanor trespass in

Kinney County, pursuant to the “Operation Lone Star” task force. Hundreds of those

defendants then filed applications for pretrial habeas relief in the district courts of Travis

County. We observed that one of those arrestees—Appellee—had already obtained relief

from the district court. Id. The remaining arrestees’ applications were left in a pending state

while the resulting litigation ensued.

In arguing that he was entitled to prohibition relief to prevent the Travis County

district courts from ruling on the merits of the pending applications, the Kinney County

Attorney reiterated his position that the courts of Kinney County have sole authority to

consider the merits of any habeas applications stemming from charges arising in Kinney

County. As in this case, the SPA filed an amicus brief asserting that the Travis County

courts lacked jurisdiction over the habeas cases for which the underlying criminal charges

were pending in Kinney County.
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In resolving this issue, we first determined that the Kinney County Attorney lacked

any adequate remedy at law through the avenue of direct appeal. Id. at 454. We observed

that the “later remedy of appeal is generally inadequate when the issue before us implicates

the ability of a trial court to consider the case at all.” Id. We also observed that, given the

number of cases implicated, it would be excessively burdensome for Kinney County to

have to litigate each case separately in the court of appeals. Id. Thus, we proceeded to

consider whether Relator had a clear right to relief.

In concluding that the clear-right-to-relief requirement had been met, we discussed

the various relevant provisions in Code of Criminal Procedure Chapter 11, as well as

applicable caselaw addressing abstention and local authority over pending criminal

matters. Id. at 455-61. We concluded that the sole available vehicle for the arrestees to

challenge their constructive confinement was an original writ, found in Article 11.05. Id.

at 455. We stated, “Assuming, without deciding, that a trial court would even have

jurisdiction to resolve the merits of an Article 11.05 action for an offense arising outside

the court’s geographic borders, the circumstances permitting that jurisdiction to be

exercised would be rare.” Id. at 456. We cited, as possible examples of such circumstances,

a serious backlog of cases or a natural disaster, which would permit the action to be brought

in an “adjacent county.” Id. at 456-57. “[A]bsent these kinds of unusual circumstances or

specific statutory authority, a trial court should never consider the merits of a habeas

application for an offense arising outside its geographic boundaries, even assuming it had

jurisdiction to do so.” Id. at 457 (emphasis added). We therefore held that the district court
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in Travis County was “required to refrain from resolving the merits of habeas applications

for misdemeanor cases arising in Kinney County.” Id. at 461.

B. Because the Travis County district court clearly lacked authority
and/or jurisdiction to grant Appellee pretrial habeas relief, the
direct appeal was subject to dismissal, and the invalid order
should be set aside.

At the outset, it is clear that our analysis in Smith undermines a significant portion

of the court of appeals’ analysis in this case. Before considering the question of which

entity could properly represent the State in this matter, the court of appeals first found it

necessary to address whether the Travis County district court had jurisdiction or authority

to consider the application at all. See Curipoma, 652 S.W.3d at 77-78. It is now obvious,

in light of Smith, that the court of appeals’ answer to that question was incorrect. It also

appears highly likely that the court of appeals would not have reached, or at the very least

might have resolved differently, the secondary question of which entity had authority to

represent the State in this matter, had it had the benefit of our Smith decision at that time.

On this basis alone, I agree with the Court’s decision today to vacate the court of appeals’

decision and remand for reconsideration in light of Smith.

Further, applying Smith to these circumstances, the correct ultimate outcome on

remand is clear. Smith held that the Travis County district court clearly and indisputably

lacked any authority (and possibly jurisdiction) to rule on the merits of the pretrial habeas

applications arising from misdemeanor charges pending in Kinney County. Smith, 665

S.W.3d at 456-57. Applying that same rule to Appellee’s case here, the entire habeas

proceeding in the Travis County district court was invalid and unauthorized. The district
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court’s order purporting to grant Appellee pretrial habeas relief was similarly invalid.

Given this, on remand, the court of appeals should dismiss the appeal for want of

jurisdiction and set aside the invalid order—not because the Kinney County Attorney

lacked authority to pursue such an appeal, but because the underlying proceedings in the

trial court were plainly invalid and unauthorized. See id.; see also State v. Rodriguez-

Gomez, No. 04-23-00157-CR, 2024 WL 590425, at *9 (Tex. App—San Antonio Feb. 14,

2024) (“When a party appeals a void order, [the appellate court] should declare the order

void and dismiss the appeal for want of jurisdiction”) (citation and quotation omitted);

Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012) (“[A]ppellate

courts do not have jurisdiction to address the merits of appeals from void orders or

judgments; rather, they have jurisdiction only to determine that the order or judgment

underlying the appeal is void and make appropriate orders based on that determination.”);

DeShazo v. Hall, 963 S.W.2d 958, 960 (Tex. App.—Houston [14th Dist.] 1998) (stating

that the proper course when appellate court receives appeal of void judgment is to set aside

trial court’s invalid judgment and dismiss the appeal).

C. The Authority Question—Did the court of appeals lack
jurisdiction because no valid notice of appeal was ever filed?

In addition to its erroneous holding that the Travis County district court had

jurisdiction over this habeas matter, the court of appeals further held that the Kinney

County Attorney lacked any authority to file a notice of appeal from the Travis County

district court’s order granting habeas relief, such that no valid notice of appeal was ever

filed. Curipoma, 652 S.W.3d at 78-80. As I have already suggested, it is unclear to me
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whether, or to what extent, the court of appeals should even consider this issue now that

Smith has clarified that the entire habeas proceeding in Travis County was unauthorized

and invalid. But, to the extent that the court of appeals would find it necessary to address

this secondary issue in spite of Smith, I note that none of the statutes the court of appeals

cited previously in its analysis of this issue directly applies to the situation before us here—

that is, a situation in which criminal charges have been properly filed in one county, the

defendant seeks to collaterally attack those charges in another county without any legal

basis for doing so, and the State’s representative in the second county has no interest in

defending or prosecuting the criminal charges that are pending in the first county. For

example, the court of appeals cited Code of Criminal Procedure Article 2.01 for the

proposition that “[e]ach district attorney shall represent the State in all criminal cases in

the district courts of his district and in appeals therefrom, except in cases where he has

been, before his election, employed adversely.” Id. at 78 (citing TEX. CODE CRIM. PROC.

art. 2.01). The court of appeals interpreted this provision as giving the Travis County

District Attorney superior authority to represent the State in this matter, given that the

related provisions in Article 2.02 indicate that a county attorney may represent the State in

the district courts only when there is no district attorney, or when the district attorney

requests his assistance. 1 But, when the Legislature drafted these provisions detailing the

1
See TEX. CODE CRIM. PROC. art. 2.02 (“The county attorney shall attend the terms of court in his
county below the grade of district court, and shall represent the State in all criminal cases under
examination or prosecution in said county; and in the absence of the district attorney he shall
represent the State alone and, when requested, shall aid the district attorney in the prosecution of
any case in behalf of the State in the district court. He shall represent the State in cases he has
prosecuted which are appealed.”).
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respective duties of the district and county attorneys, it understandably assumed that the

criminal cases at issue would be valid, properly pending cases, not void proceedings that

should have instead been initiated in another district. Thus, even though the statutes

authorize a district attorney to represent the State in the cases pending in the courts of his

district, it is not entirely clear to me that these statutes apply to a situation involving wholly

invalid or void proceedings that were filed in the wrong district. In any event, courts should

not reflexively apply statutory requirements if doing so would thwart the Legislature’s

purpose of allowing the interested State entity—here, the representative of Kinney

County—to defend the State’s interests through exercising the right of appeal.

Given the foregoing, to the extent it is necessary to resolving this case, the court of

appeals should simply hold on remand that the timely notice of appeal filed by the Kinney

County Attorney validly invoked the appellate court’s jurisdiction, even if it was only for

the limited purpose of allowing the appellate court to determine that the underlying habeas

proceeding was unauthorized and that the court of appeals had no jurisdiction to proceed

beyond dismissing the appeal and setting aside the unauthorized order. See, e.g., Skinner

v. State, 484 S.W.3d 434, 437 (Tex. Crim. App. 2016) (“A court always has jurisdiction to

determine whether it has jurisdiction over a matter, and jurisdiction is a systemic

requirement that appellate courts must review regardless of whether the issue is raised by

the parties.”). The Kinney County Attorney was, for all practical purposes, the only real

representative of the “State” that had any vested interest in defending the criminal charges
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against Appellee’s collateral attack. The applicable law should be interpreted to allow a

limited invocation of the appellate court’s jurisdiction under these narrow circumstances. 2

III. Conclusion

In light of our decision in In re Smith, it is readily apparent that the pretrial habeas

proceeding in Travis County district court, and the resulting ruling purporting to grant

Appellee relief as to the pending criminal charges in Kinney County, were plainly

unauthorized and invalid. Because the habeas proceedings were invalid, on remand, the

court of appeals should order the appeal dismissed and set aside the trial court’s

unauthorized order. For the foregoing reasons, I respectfully concur in the Court’s

judgment.

Filed: June 26, 2024

Publish

2
As an alternative, I note that an appellate court has authority to treat a direct appeal as a request
for mandamus relief if a party so requests. See, e.g., Ex parte Garcia, 683 S.W.3d 467, 473 (Tex.
App.—San Antonio 2023) (noting that, “[i]n certain circumstances, we may treat an appeal as a
petition for a writ of mandamus. However, to do so, the party seeking appellate review must
specifically request that its appeal be treated as a mandamus petition.”) (citing and quoting Hodge
v. Kraft, 490 S.W.3d 510, 516 n.2 (Tex. App.—San Antonio 2015, no pet.); CMH Homes v. Perez,
340 S.W.3d 444, 452-53 (Tex. 2011)); see also In re R.G., 388 S.W.3d 820, 822 (Tex. App.—
Houston [1st Dist.] 2012, no pet.) (converting an appeal into a petition for a writ of mandamus
upon request of the applicant after the reviewing court determined it lacked appellate jurisdiction
to review the appeal). Thus, on remand, the Kinney County Attorney could request that the court
of appeals treat his appeal as a request for mandamus relief against the Travis County district court
judge.