In Re Saul Antoni Lozano Aguilar v. the State of Texas ( 2023 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-23-00295-CR
IN RE Saul Antoni LOZANO AGUILAR
Original Proceeding 1
PER CURIAM
Sitting: Rebeca C. Martinez, Chief Justice
Irene Rios, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: August 23, 2023
PETITION FOR WRIT OF MANDAMUS DISMISSED IN PART AND DENIED WITHOUT
PREJUDICE IN PART
Relator is a noncitizen who was arrested under Operation Lone Star, processed, and
released on bond. After his bonded release, relator was removed from the country. Following his
removal, relator filed an application for writ of habeas corpus. He sought the issuance of a habeas
writ, an evidentiary hearing, and dismissal of his underlying charges because, he alleges, the
charges violate equal protection principles. The trial court denied relator’s habeas application,
without issuing a writ or holding a hearing. Relator filed this mandamus proceeding arguing the
trial court erred by denying his application for writ of habeas corpus without issuing the habeas
writ or holding a hearing. 2
1
This proceeding arises out of Cause No. 31314, styled State of Texas v. Saul Antoni Lozano Aguilar, pending in the
County Court, Maverick County, Texas, the Honorable Susan D. Reed presiding.
2
Relator also filed a motion to stay the underlying proceeding pending our final resolution of his mandamus petition,
which we granted in part by staying all pretrial settings requiring relator’s in-person appearance.
04-23-00295-CR
For mandamus relief to be available in a criminal case, a relator “must show that he has no
adequate remedy at law to redress his alleged harm” and “that what he seeks to compel is a
ministerial act, not involving a discretionary or judicial decision.” See State ex rel. Young v. Sixth
Jud. Dist. Ct. of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig.
proceeding); see also In re City of Lubbock, 666 S.W.3d 546, 554 (Tex. Crim. App. 2023) (orig.
proceeding) (“Mandamus relief is available for a novel issue or one of first impression with
uncontested facts when the law points to but one clear result.”).
MOOTNESS
We first address whether this proceeding is moot. The State argues that because the trial
court issued a ruling on relator’s habeas application, his mandamus petition is moot. See In re
Bonilla, 424 S.W.3d 528, 534 (Tex. Crim. App. 2014) (orig. proceeding) (holding mandamus
petition was moot where relator received relief sought).
The trial court’s order is comprised of several options to choose from depending on the
trial court’s ruling and whether the ruling is one on the merits. Here, the trial court chose the
following:
The Court having considered [the Application] is of the opinion same should be:
X the Application is denied without issuing the writ.
The trial court did not select the following options:
the Application is granted, an order issuing the writ and hearing to be
held .
the Application is granted with an order issuing the writ, and the merits
will be heard by submission of evidence under the following schedule. . . .
We hold this mandamus proceeding is not moot as to relator’s request for the issuance of
a writ. The trial court’s order specifically states the trial court based its ruling on relator’s
application. It is apparent from the trial court’s order that relator did not receive the issuance of a
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writ or the evidentiary hearing he sought. Instead, the order shows the trial court affirmatively
rejected the issuance of a writ, holding an evidentiary hearing, or the submission of written
evidence by refusing selections corresponding with these actions. Additionally, the mandamus
record does not show that the trial court issued a writ or held an evidentiary hearing, and the State
does not assert otherwise.
The trial court’s order and record also do not suggest that the trial court ruled on the merits
of relator’s equal protection claim. If the trial court ruled on the merits of relator’s habeas
application, then the proper remedy is to appeal the order denying relator’s habeas application—
not to seek mandamus review. See Ex parte Villanueva, 252 S.W.3d 391, 395 (Tex. Crim. App.
2008) (“[A]n appeal may be prosecuted when a judge issues a ruling on the merits.”); Ex parte
Sifuentes, 639 S.W.3d 842, 846 (Tex. App.—San Antonio 2022, pet. ref’d) (citation omitted) (“If
the record shows that the trial court heard evidence and addressed the merits, the result is
appealable.”). Here, there is no indication the trial court ruled on the merits of relator’s equal
protection claim. Instead, the trial court’s order indicates that relator’s habeas application was
denied without the development or consideration of an evidentiary record. Because the trial court
did not issue a writ or rule on the merits of relator’s habeas application, relator did not receive the
relief he sought from the trial court, and there remains a live controversy. Cf. Winkler v. State, 252
S.W.2d 944 (Tex. Crim. App. 1952) (holding case moot where there ceased to be live controversy).
HABEAS CLAIM
Next, relator contends mandamus is proper to direct the trial court to issue a writ and to
rule on the merits of his equal protection claim. See TEX. CODE CRIM. PROC. ANN. art. 11.15 (upon
receiving an application for writ of habeas corpus, a trial court shall issue the writ “unless it be
manifest from the petition itself, or some documents annexed to it, that the party is entitled to no
relief whatever.”). If relator’s underlying habeas claim is cognizable, he may be entitled to relief.
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See id.; Click v. State, 39 S.W.2d 39, 41 (Tex. Crim. App. 1931) (“Where one entitled to a writ of
habeas corpus makes proper application for it to the proper court having jurisdiction, said
application conforming to all the statutory requirements and probable cause being shown, the writ
of habeas corpus cannot be denied to the relator, for it then becomes a constitutional right.”).
On June 21, 2023, we issued an opinion holding that a selective-prosecution equal
protection claim is cognizable in a pre-trial application for writ of habeas corpus. See Ex parte
Aparicio, No. 04-22-00632-CR, 2023 WL 4095939, at *11 (Tex. App.—San Antonio June 21,
2023, pet. filed) (en banc). Relator asserts a similar claim here. In light of our recent decision, we
believe the trial court should have an opportunity to reconsider its decision—not to issue the habeas
writ or hold an evidentiary hearing—on relator’s habeas application. See id.; see also Ex parte
Lizcano, No. WR-68,348-03, 2018 WL 2717035, at *1 (Tex. Crim. App. June 6, 2018) (per
curiam) (not designated for publication) (remanding case to trial court, in light of new authority,
“to allow it the opportunity to develop evidence, make new or additional findings of fact and
conclusions of law, and make a new recommendation” to the Court of Criminal Appeals); accord
In re Van Waters & Rogers Inc., 988 S.W.2d 740, 741 (Tex. 1998) (orig. proceeding) (per curiam)
(denying mandamus relief in order to allow trial court to reconsider decision in light of new
precedent); In re Cent. Or. Truck Co., Inc., 644 S.W.3d 668, 671 (Tex. 2022) (orig. proceeding)
(per curiam). Therefore, we deny the petition for writ of mandamus without prejudice to relator’s
seeking relief, if necessary, after the trial court has had an opportunity to reconsider its ruling.
Finally, relator filed a motion to urge the trial court to conduct a hearing on his application
for writ of habeas corpus prior to his in-person setting on April 4, 2023, or in the alternative, to
continue his in-person setting. Because we stayed the in-person requirement, Relator’s complaint
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about his required in-person attendance at the April 4, 2023 pretrial hearing is moot. Bonilla, 424
S.W.3d at 534.
PER CURIAM
DO NOT PUBLISH
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