Opinion
04-22-00772-CR
01-31-2024
EX PARTE Jorge Becerra ORTIZ
DO NOT PUBLISH
From the County Court, Kinney County, Texas Trial Court No. 12255CR Honorable Dennis Powell, Judge Presiding
Sitting: Patricia O. Alvarez, Justice Irene Rios, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
IRENE RIOS, JUSTICE
DISMISSED FOR WANT OF JURISDICTION; PETITION FOR WRIT OF MANDAMUS DENIED
Appellant, Jorge Becerra Ortiz, appeals from the denial of his pretrial application for writ of habeas corpus. Ortiz further requests, in the event we determine we lack jurisdiction over his appeal, that we consider his appeal as a petition for writ of mandamus. Because we lack jurisdiction over his habeas appeal, we dismiss Ortiz's appeal for want of jurisdiction, consider his appeal as a mandamus petition, and conclude he is not entitled to relief.
Background
Ortiz, a noncitizen, was arrested and charged with criminal trespass as part of Operation Lone Star-a state initiative devoted to deterring unauthorized border crossings. See Tex. Penal Code Ann. § 30.05(a). Ortiz was subsequently released from custody on bond.
Ortiz alleges that after he was released on bond, the United States government removed him from this country.
Through counsel, Ortiz filed a pretrial application for writ of habeas corpus, seeking dismissal of the charges against him for purported violations of his right to due process and his right to counsel under the Fifth and Sixth Amendments to the Constitution. See U.S. Const. amends. V, VI. He argued the State coordinated his removal with the federal government, leaving him unable to return to the United States for his trial and thereby violating these rights.
Ortiz also asserted claims under article I, sections 10 and 19 and article V, section 1 of the Texas Constitution; however, he did not separately argue his state and federal constitutional claims or argue that the Texas Constitution provides different or broader protections than the United States Constitution. Therefore, consistent with binding precedent, we address Ortiz's claims solely on federal constitutional grounds. See Bohannan v. State, 546 S.W.3d 166, 179 n.7 (Tex. Crim. App. 2017); Jackson v. State, 992 S.W.2d 469, 475 n.8 (Tex. Crim. App. 1999).
The trial court denied Ortiz's habeas application without issuing a writ, finding it was "manifest from the Application for Pretrial Writ of Habeas Corpus itself that [Ortiz was] not entitled to the relief requested[.]"
On appeal, Ortiz raises the following issue:
Whether it is manifest on the face of [Ortiz]'s application for habeas corpus that he is entitled to no relief as a matter of law without the issuance of his writ to develop his claim when he alleges his right to compel trial has been violated due to his removal from and his inability to enter the country?
Ortiz requests that his case be remanded to allow him to develop his claim in a hearing on the merits of his habeas application. In the alternative, Ortiz requests that, in the event this court does not order his case remanded, we construe his appeal as a petition for a writ of mandamus.
Jurisdiction
We must first determine whether we have jurisdiction over this appeal. See Ex parte Villanueva, 252 S.W.3d 391, 393-94 (Tex. Crim. App. 2008); Ex parte Pool, 71 S.W.3d 462, 465 (Tex. App.-Tyler 2002, no pet.).
A. Applicable Law
A pretrial habeas corpus proceeding is a separate criminal action, distinct from the underlying criminal prosecution. Greenwell v. Court of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645, 649 (Tex. Crim. App. 2005). Whether a trial court's disposition in a habeas proceeding may be appealed depends on whether the trial court considered and resolved the merits of the habeas application. See id. at 650; Purchase v. State, 176 S.W.3d 406, 407 (Tex. App.- Houston [1st Dist.] 2004, no pet.). If the trial court considers and rules on the merits of a habeas claim, the losing party may appeal, regardless of whether the court formally issued a writ. See Villanueva, 252 S.W.3d at 394, 395; Ex parte Hargett, 819 S.W.2d 866, 869 (Tex. Crim. App. 1991), superseded in part by statute as discussed in Villanueva, 252 S.W.3d at 397; Ex parte Sifuentes, 639 S.W.3d 842, 846 (Tex. App.-San Antonio 2022, pet. ref'd) (citing Nichlos v. State, 255 S.W.2d 522, 526 (Tex. Crim. App. 1952) (op. on reh'g)). But if the trial court refuses to issue a writ or dismisses or denies a habeas application without ruling on the merits of the applicant's claim or claims, the applicant has no right to appeal. See Villanueva, 252 S.W.3d at 394; Hargett, 819 S.W.2d at 868; Ex parte Garcia,__ S.W.3d, ___No. 04-22-00473-CR, 2023 WL 8102426, at *2-3 (Tex. App.-San Antonio Nov. 22, 2023, no pet.) (en banc). "Thus, where the record does not show that the trial court ruled on the merits of the application for writ of habeas corpus, we lack jurisdiction over the appeal." Ex parte Blunston, No. 04-12-00657-CR, 2013 WL 3874471, at *1 (Tex. App.-San Antonio July 24, 2013, no pet.) (mem. op., not designated for publication); see Ex parte Miller, 931 S.W.2d 724, 725 (Tex. App.-Austin 1996, no pet.) (holding that the appellate court lacked jurisdiction over an appeal from a trial court's denial of a habeas application "[b]ecause the district court denied the application for writ of habeas corpus without expressly ruling on the merits of claims for relief").
We may review the entire record to determine whether the trial court ruled on the merits of a habeas application. See Ex parte Bowers, 36 S.W.3d 926, 927 (Tex. App.-Dallas 2001, pet. ref'd).
B. Application
In this case, it is undisputed that the trial court denied Ortiz's habeas application without issuing a writ and found, in denying the application, that it was "manifest" from the application that Ortiz was not entitled to the relief he requested. See Tex. Code Crim. Proc. Ann. art. 11.15 (authorizing a trial court to refuse to issue a habeas writ only if it is "manifest from the application itself, or some documents annexed to it, that the applicant is not entitled to any relief"). Further, no reporter's record has been filed, and nothing in the record shows that the trial court held any hearings related to Ortiz's habeas application or the merits thereof or otherwise considered any evidence related to the application.
Consequently, nothing in our review of the entire record reflects that the trial court considered or expressed an opinion on the merits of Ortiz's habeas claims. See Garcia, 2023 WL 8102426, at *3; Mullinax v. State, No. 01-19-00881-CR, 2021 WL 2425240, at *4 (Tex. App.- Houston [1st Dist.] June 15, 2021, pet. ref'd) (mem. op., not designated for publication); Ex parte Rodriguez, No. 13-09-00645-CR, 2010 WL 3310210, at *1-2 (Tex. App.-Corpus Christi-Edinburg Aug. 23, 2010, no pet.) (mem. op., not designated for publication). We therefore conclude that the trial court did not rule on the merits of Ortiz's habeas application, and we lack jurisdiction to review his appeal. See Villanueva, 252 S.W.3d at 394; Garcia, 2023 WL 8102426, at *3; Purchase, 176 S.W.3d at 407; Bowers, 36 S.W.3d at 927; Miller, 931 S.W.2d at 725.
We distinguish this case from Ex parte Ramos-Morales,__ S.W.3d__, No. 08-23-00285-CR, 2023 WL 8813572, at *5 (Tex. App.-El Paso Dec. 20, 2023, no pet. h.), in which the Eighth Court of Appeals found that a trial court's order expressly denying a habeas applicant's requested relief constituted an order on the merits of his habeas application. 2023 WL 8813572, at *5. Here, by contrast, the trial court did not deny the requested relief but instead made the finding-that Ortiz was manifestly not entitled to relief-that authorized the court to refuse to issue a writ and denied the application itself, without issuing the writ or setting forth any rulings on the merits of the application. See Tex. Code Crim. Proc. Ann. art. 11.15 (requiring a habeas court to issue a writ "unless it be manifest . . . that the applicant is not entitled to any relief"); Ex parte Garcia, __S.W.3d__, No. 04-22-00473-CR, 2023 WL 8102426, at *2-3 (Tex. App.-San Antonio Nov. 22, 2023, no pet.) (en banc) (holding that the record showed that the trial court's order denying the application after finding that it was manifest the applicant was not entitled to the relief requested was not a ruling on the merits); Ex parte Chande, No. 10-12-00115-CR, 2012 WL 2349422, at *1-2 (Tex. App.-Waco June 20, 2012, pet. ref'd) (mem. op., not designated for publication) (holding that there were many reasons not based on the merits that the habeas applicant was not entitled to the relief sought); Ex parte Rodriguez, No. 13-09-00645-CR, 2010 WL 3310210, at *1-2 (Tex. App.-Corpus Christi-Edinburg Aug. 23, 2010, no pet.) (mem. op., not designated for publication) (holding that the trial court, which had found that the habeas applicant "was manifestly not entitled to any relief," had not resolved the merits of the habeas application).
Request to Treat Habeas Appeal as a Mandamus Petition
We may, in certain circumstances, treat an appeal as a petition for writ of mandamus, if specifically requested to do so by the appellant. See CMH Homes v. Perez, 340 S.W.3d 444, 452- 53 (Tex. 2011); Hodge v. Kraft, 490 S.W.3d 510, 516 n.2 (Tex. App.-San Antonio 2015, no pet.). As stated above, Ortiz specifically requests that we construe his appeal as a mandamus petition if we determine the trial court's order is not appealable. We will therefore consider Ortiz's appeal as a petition for writ of mandamus.
In Ex parte Garcia, we treated Garcia's appeal as a petition for writ of mandamus and considered whether Garcia was entitled to mandamus relief. 2023 WL 8102426, at *3-5. In that case, Garcia argued, inter alia, that his right to compel trial had been violated by his removal from the country; we further construed this issue "as a complaint that his right to a speedy trial ha[d] been violated." Id. at *4-5. Garcia, however, had failed to raise an issue regarding his right to compel trial in the trial court and had not requested relief from the trial court by presenting a motion to dismiss based on his right to a speedy trial. Id. We therefore determined that he was not entitled to mandamus relief, and we denied Garcia's mandamus petition. Id.
Ortiz's arguments in this case are identical to those we addressed in Ex parte Garcia. Further, Ortiz, like Garcia, failed to raise an issue regarding his right to compel trial in the trial court and has not requested relief from the trial court by presenting a motion to dismiss based on his right to a speedy trial. Therefore, for the reasons described in Ex parte Garcia, we deny Ortiz's request for mandamus relief.
Conclusion
Because the trial court's denial of Ortiz's habeas application was not based on the merits, we lack jurisdiction to review his habeas appeal. We therefore dismiss his appeal for want of jurisdiction and, at Ortiz's request, treat his appeal as a petition for writ of mandamus. Finally, for the reasons described in Ex parte Garcia, we deny Ortiz's petition for writ of mandamus. See Tex. R. App. P. 52.8(a).