The State of Texas v. Jonathan Jose Rodriguez-Gomez ( 2024 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-23-00157-CR
The STATE of Texas,
Appellant
v.
Jonathan Jose RODRIGUEZ-GOMEZ,
Appellee
From the County Court at Law No. 1, Webb County, Texas
Trial Court No. 2022CRB000729L1
Honorable Leticia Martinez, Judge Presiding
Opinion by: Rebeca C. Martinez, Chief Justice
Sitting: Rebeca C. Martinez, Chief Justice
Luz Elena D. Chapa, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: February 14, 2024
DISMISSED FOR WANT OF JURISDICTION
The State appeals the trial court’s order dismissing the information charging the appellee,
Jonathan Jose Rodriguez-Gomez, with the misdemeanor offense of criminal trespass. For the
reasons set out below, we dismiss this appeal for want of jurisdiction.
BACKGROUND
On March 6, 2021, Governor Greg Abbott directed the Texas Department of Public Safety
(“DPS”) to initiate Operation Lone Star (“OLS”) and “devote additional law enforcement
resources toward deterring illegal border crossing and protecting [] border communities.” He
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further directed “DPS to use available resources to enforce all applicable federal and state laws to
prevent criminal activity along the border, including criminal trespassing, smuggling, and human
trafficking, and to assist Texas counties in their efforts to address those criminal activities.”
As part of OLS, Rodriguez-Gomez, a noncitizen, was arrested in Webb County and
charged by information with the misdemeanor offense of criminal trespass. The case was filed in
Webb County Court at Law Number 1 and assigned cause number 2022CRB000729L1.
Rodriguez-Gomez then filed a pretrial application for writ of habeas corpus in district court, which
was assigned cause number 2022CVJ001437D2. 1
On January 10, 2023, the district court issued an order stating as follows:
This Court conducted a hearing on JONATHAN RODRIGUEZ GOMEZ’s
Application for Writ of Habeas Corpus. Having considered the application and the
evidence presented, this Court holds that Mr. Rodriguez Gomez is entitled to relief
on his claim of sex discrimination. He is “discharge[d]” and the information
charging him with trespass in his criminal case is dismissed with prejudice. Tex.
Code Crim. Proc. art. 11.44. The underlying criminal cause number is
2022CRB000729L1 in Webb County.
On February 10, 2023, the county court held a hearing in cause number
2022CRB000729L1. At the hearing, Rodriguez-Gomez’s counsel and the court clerk informed the
trial judge that the district court had dismissed the county court case with prejudice on January 10,
2023. The county court asked the State if it had appealed the district court’s order; the State
responded that it did not know, but that regardless of whether the State had filed a notice of appeal,
the county court still had to “take action on [the district court’s] advisory, I guess, dismissal,”
because the district court had no jurisdiction to dismiss the case.
1
The record does not contain a copy of Rodriguez-Gomez’s habeas application. The record does, however, contain a
copy of the district court’s order granting habeas relief. In addition, the State asserts, in its appellate brief, that
Rodriguez-Gomez filed a petition for writ of habeas corpus in the 49th District Court.
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Rodriguez-Gomez filed a motion to dismiss later that same day, asking the county court to
dismiss the case because the district court had granted his “equal protection writ based on a gender
discrimination claim and ordered this case discharged and dismissed with prejudice.” As support
for his motion, Rodriguez-Gomez attached a copy of the district court’s order to his motion.
On February 16, 2023, the county court issued the following order: “On this 16th day of
February, having found sufficient cause, I GRANT Defendant’s Motion to Dismiss. This case [is]
dismissed with prejudice.”
On February 24, 2023, the State filed a notice of appeal with the county court clerk, in
cause number 2022CRB000729L1. In the notice, the State indicated that it “wishe[d] to appeal the
trial court’s order of February 10, 2023, granting the Defendant’s writ/petition/motion for pretrial
habeas corpus relief, as said order is an order dismissing a complaint and is appealable under
Article 44.01(a)(1) of the Texas Code of Criminal Procedure.”
JURISDICTION
We must first determine whether we have jurisdiction over this appeal. See Bell v. State,
515 S.W.3d 900, 901 (Tex. Crim. App. 2017) (citing Henson v. State, 407 S.W.3d 764, 768 (Tex.
Crim. App. 2013), cert. denied, 571 U.S. 1141 (2014)); Escarcega v. State, 767 S.W.2d 806, 807
(Tex. Crim. App. 1989) (Teague, J., dissenting) (“It is axiomatic in our law that, before a court of
appeals decides an appeal, it must first determine whether it has jurisdiction over that case.”).
Further, because it is not clear, from either the notice of appeal or the State’s brief, whether the
State is attempting to appeal from the district court’s order in the habeas proceeding or the county
court’s order in the underlying criminal case, 2 we will consider whether we have jurisdiction over
an appeal from either case.
2
The State’s notice of appeal indicates that the “State wishes to appeal the trial court’s order of February 10, 2023,
granting the Defendant’s writ/petition/motion for pretrial habeas corpus relief, as said order is an order dismissing a
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APPEAL FROM DISTRICT COURT’S GRANT OF HABEAS RELIEF
“To invoke an appellate court’s jurisdiction over an appeal, . . . the appellant must give
timely and proper notice of appeal.” Woods v. State, 68 S.W.3d 667, 669 (Tex. Crim. App. 2002).
More specifically, when the State desires to appeal from a trial court order that dismisses an
information in a criminal case, the State must file a notice of appeal not “later than the 20th day
after the date on which the order . . . to be appealed is entered by the court.” TEX. CODE CRIM.
PROC. ANN. art. 44.01(d); see TEX. R. APP. P. 26.2(b) (requiring State to file notice of appeal
“within 20 days after the day the trial court enters the order, ruling, or sentence to be appealed”);
State v. Wachtendorf, 475 S.W.3d 895, 899 (Tex. Crim. App. 2015). We have no power to consider
and must dismiss any appeal in which our jurisdiction is not properly invoked. See Woods, 68
S.W.3d at 669; White v. State, 61 S.W.3d 424, 428 (Tex. Crim. App. 2001); Olivo v. State, 918
S.W.2d 519, 523 (Tex. Crim. App. 1996) (quoting Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex.
Crim. App. 1964)).
Here, the district court issued an order on January 10, 2023, in cause number
2022CVJ001437D2, stating “the information charging [Rodriguez-Gomez] with trespass in his
criminal case is dismissed with prejudice. . . . The underlying criminal cause number is
2022CRB0007L1 in Webb County.” The State’s notice of appeal, which, again, was filed in cause
complaint and is appealable under Article 44.01(a)(1) of the Texas Code of Criminal Procedure.” But neither the
district court nor the county court issued an order on February 10, 2023; the district court issued its order in the habeas
proceeding on January 10, 2023, and the county court issued its order on February 16, 2023. Further, the State filed
its notice of appeal with the county court clerk under the county court cause number but indicates that it desires to
appeal from the grant of habeas corpus relief—relief which was granted by the district court, not the county court.
Similarly, in its brief, the State argues that Rodriguez-Gomez’s claims in the habeas proceeding were not
cognizable in a pretrial habeas proceeding, that the district court lacked jurisdiction to grant habeas relief, and that the
district court abused its discretion by granting habeas relief. But the State also argues that neither the district court nor
the county court had authority to dismiss the criminal case and that the State was not required, under Ex parte Seidel,
39 S.W.3d 221 (Tex. Crim. App. 2001), to appeal from the district court’s order to preserve error in the county court
proceedings.
Thus, it is not clear from either the notice of appeal or the State’s brief whether the State is attempting to
appeal from the district court’s order or from the county court’s order.
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number 2022CRB0007L1, was not filed, however, until February 24, 2023—forty-five days after
the district court issued its order. As a result, the State’s notice of appeal was not timely filed with
regard to the district court’s order granting habeas relief, even if we could allow for the notice of
appeal filed in cause number 2022CRB007L1 to apply in cause number 2022CVJ00143D2.
Accordingly, to the extent the State attempts to appeal from the district court’s order in the
habeas proceeding, we conclude that the State failed to invoke our jurisdiction and we have no
power to act other than to dismiss the appeal. 3 See Woods, 68 S.W.3d at 669; White, 61 S.W.3d at
428; Olivo, 918 S.W.2d at 523.
APPEAL FROM COUNTY COURT’S ORDER OF DISMISSAL
“A court has jurisdiction to determine whether it has jurisdiction.” Olivo, 918 S.W.2d at
523; see Davis v. State, 502 S.W.3d 803, 805 (Tex. Crim. App. 2016) (Yeary, J., concurring) (“A
court of appeals always has jurisdiction to determine its own jurisdiction.”). Jurisdiction is a
systemic requirement that must be addressed by the court, even if not raised by the parties. See
Bell, 515 S.W.3d at 901; State v. Guevara, 172 S.W.3d 646, 647 n.1 (Tex. App.—San Antonio
2005, no pet.); State v. Morse, 903 S.W.2d 100, 102 (Tex. App.—El Paso 1995, no pet.); Solis v.
State, 890 S.W.2d 518, 520 (Tex. App.—Dallas 1994, no pet.). Further, an appellate court may
address the propriety of a lower court’s exercise of jurisdiction. See Ex parte Enriquez, 227 S.W.3d
779, 781 (Tex. App.—El Paso 2005, pet. ref’d); Guevara, 172 S.W.3d at 647–48 & n.1 (vacating
county court’s judgment in appeal from municipal court because county court did not acquire
jurisdiction); Morse, 903 S.W.2d at 102; see also Ex parte Schmidt, 109 S.W.3d 480, 482 (Tex.
3
In his brief, Rodriguez-Gomez argues that if the State is attempting to appeal from the district court’s order, we do
“not have jurisdiction [over this appeal] because the State filed its notice of appeal in the wrong case.” We do not
reach this argument because the appeal was untimely even if the notice of appeal could apply to cause number
2022CVJ00143D2.
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Crim. App. 2003) (holding that appellate court at least had jurisdiction over the issue of the trial
court’s jurisdiction).
Here, the county court issued an order on February 16, 2023, granting Rodriguez-Gomez’s
motion to dismiss and stating, “This case [is] dismissed with prejudice.” The State had the right to
appeal from this order, pursuant to article 44.01(a)(1) of the Texas Code of Criminal Procedure,
because the order dismissed the information, and its notice of appeal, filed on February 24, 2023,
was timely because it was filed within twenty days of the order. See TEX. CODE CRIM. PROC. ANN.
art. 44.01(a)(1); TEX. R. APP. P. 26.2(b); State v. Garcia, 638 S.W.3d 679, 681–82, 684 (Tex.
Crim. App. 2022) (citing State v. Moreno, 807 S.W.2d 327, 330 (Tex. Crim. App. 1991); quoting
Alvarez v. Eighth Court of Appeals of Tex., 977 S.W.2d 590, 593 (Tex. Crim. App. 1998)). As a
result, the State properly invoked, at minimum, our jurisdiction to determine our jurisdiction and
to determine the county court’s jurisdiction. We will therefore determine whether the county court
had jurisdiction to dismiss the information against Rodriguez-Gomez and whether we have
jurisdiction to review the county court’s order.
A. Whether the County Court Had Jurisdiction to Dismiss the Information
The State charged Rodriguez-Gomez by information with the misdemeanor offense of
criminal trespass on August 1, 2022. The State filed the information with the Webb County Clerk,
who assigned the case to the County Court at Law Number 1 under cause number
2022CRB000729L1. The presentment of the information to the court invested the court with
jurisdiction over the case. See TEX. CONST. art. V, § 12(b); Ramirez v. State, 105 S.W.3d 628, 629–
30 (Tex. Crim. App. 2003); State v. Lee, 437 S.W.3d 910, 912 (Tex. App.—El Paso 2014, pet.
ref’d).
Nevertheless, on January 10, 2023, the district court determined that Rodriguez-Gomez
was entitled to habeas relief. The district court did not, however, merely discharge Rodriguez-
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Gomez. Instead, the district court dismissed the information pending against Rodriguez-Gomez in
cause number 2022CRB000729L1 with prejudice.
By dismissing the information pending in the county court with prejudice, the district
court—if its order is valid—resolved the controversy between Rodriguez-Gomez and the State in
the county court cause in Rodriguez-Gomez’s favor, 4 thereby resolving the controversy that
formed the basis of the county court proceedings; terminated the proceedings in the county court;
and extinguished the county court’s jurisdiction over the criminal case against Rodriguez-Gomez.
See State v. Young, 810 S.W.2d 221, 223 (Tex. Crim. App. 1991) (“[T]he trial court’s order
granting the applications for writ of habeas corpus ‘effectively terminated’ the proceedings . . . .”;
“For all purposes, the criminal action against appellees had been terminated and the State could
appeal from the orders granting this relief to appellees.”); State v. Moreno, 807 S.W.2d 327, 333
& n.7 (Tex. Crim. App. 1991) (holding that order that effectively dismissed the charges against
the defendant effectively terminated the criminal proceedings); Garrett v. State, 749 S.W.2d 784,
803 (Tex. Crim. App. 1986) (stating that a court does not have power to decide a case in the
absence of an actual controversy); Haley v. Lewis, 604 S.W.2d 194, 197 (Tex. Crim. App. 1980)
(“The indictment was validly dismissed . . ., and the court lost jurisdiction of the case.”); Garcia
v. Dial, 596 S.W.2d 524, 528 (Tex. Crim. App. 1980) (holding that when a trial court dismisses an
information “there is, concomitant to such dismissal, no case pending against the accused and,
accordingly, no jurisdiction remaining in the dismissing court”); Garber v. State, 667 S.W.2d 611,
4
Although the district court did not resolve the criminal cause on the merits of the criminal charge itself, the court
nevertheless resolved the case in Rodriguez-Gomez’s favor. See In re Aiken Cnty., 725 F.3d 255, 264 n.7 (D.C. Cir.
2013) (“If the Executive selectively prosecutes someone based on impermissible considerations, the equal protection
remedy is to dismiss the prosecution . . . .”) (Kavanaugh, J.); State v. Gomez, No. 04-22-00872-CR, — S.W.3d —,
2023 WL 7552682, at *6 (Tex. App.—San Antonio Nov. 15, 2023, pet. filed) (affirming trial court order granting
habeas relief and dismissing criminal case with prejudice); Ex parte Aparacio, 672 S.W.3d 696, 708 (Tex. App.—San
Antonio 2023, pet. granted) (quoting United States v. Armstrong, 517 U.S. 456, 463 (1996)) (“A selective-prosecution
claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has
brought the charge for reasons forbidden by the Constitution.”).
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613 (Tex. App.—El Paso 1984, no pet.) (holding that second district court had jurisdiction to
dismiss indictment pending in first district court but had no authority to reinstate the indictment
after dismissal); see also Alvarez, 977 S.W.2d at 593 (recognizing that a court other than the trial
court may take an action that effectively terminates the criminal proceedings against a defendant).
Thus, if the district court had jurisdiction and authority to dismiss the charges against
Rodriguez-Gomez, the county court lacked jurisdiction when it issued its order of dismissal on
February 16, 2023.
B. Whether the District Court Had Jurisdiction to Dismiss the County Court Case
“A void judgment is a nullity from the beginning, and it is attended by none of the
consequences of a valid judgment. It is entitled to no respect whatsoever because it does not affect,
impair, or create legal rights.” Ex parte Seidel, 39 S.W.3d 221, 225 (Tex. Crim. App. 2001)
(quoting Ex parte Spaulding, 687 S.W.2d 741, 745 (Tex. Crim. App. 1985) (Teague, J.,
concurring)). Therefore, if the district court’s order was void, the State may attack the order “either
by direct appeal or collateral attack,” and “the State was not required to appeal from the district
court’s dismissal” in order to continue the prosecution against Rodriguez-Gomez in the county
court. Id. (citing Ex parte Shields, 550 S.W.2d 670, 675 (Tex. Crim. App. 1976)).
In its brief, the State argues that the district court lacked jurisdiction or authority to dismiss
charges pending in the county court. If the State is correct, then the district court’s order may be
void and the county court may have retained jurisdiction over the charges against Rodriguez-
Gomez on February 16, 2023. We must therefore determine whether the district court’s January
10, 2023 order was void.
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1. The District Court Had Jurisdiction Over a Habeas Proceeding Involving a
Misdemeanor Case
As of January 10, 2023—the date on which the district court granted habeas relief to
Rodriguez-Gomez—a local district court had jurisdiction to consider an application for writ of
habeas corpus in a misdemeanor case. 5 See State ex rel. Rodriguez v. Onion, 741 S.W.2d 433, 434–
35 (Tex. Crim. App. 1987) (holding that district courts and county courts had concurrent
jurisdiction over habeas proceedings in misdemeanor cases); Ex parte Johnson, 561 S.W.2d 841,
842 (Tex. Crim. App. 1978) (holding that both county and district courts have original jurisdiction
in habeas proceedings in misdemeanor cases); Ex parte Williams, 786 S.W.2d 781, 782 (Tex.
App.—Houston [1st Dist.] 1990, pet. ref’d) (“Merely because the county court at law has
jurisdiction of a case does not mean that only the county court can grant an applicant habeas
relief. . . . This means that a district judge may hear a writ of habeas corpus and grant relief even
though an indictment for the offense is pending in the county court.” (citations omitted)). Thus,
the district court had jurisdiction to consider a habeas application in a misdemeanor case.
Our conclusion is consistent with In re Smith, 665 S.W.3d 449 (Tex. Crim. App. 2022). In
Smith, the Court of Criminal Appeals recognized that it had previously “held that a person confined
on a misdemeanor” could file an application for writ of habeas corpus “with a district court.” Smith,
665 S.W.3d at 457 (citing Onion, 741 S.W.2d at 434). The court then suggested, in a footnote, that
it might be necessary for the district court to abstain from exercising its jurisdiction in favor of
allowing the appropriate county court to decide the merits of an application for writ of habeas
corpus in a misdemeanor case. Id. at 457 n.33. The court did not, however, hold that the abstention
5
The legislature revised Chapter 11 of the Code of Criminal Procedure effective September 1, 2023. See Acts 1965,
59th Leg., vol. 2, p. 317, ch. 722, amended by Act of June 18, 2023, 88th Leg., R.S., ch. 933, 2023 Tex. Sess. Law
Serv. Ch. 933. Because the trial court exercised jurisdiction prior to the amendments, we do not consider what effect,
if any, the amendments have on a district court’s jurisdiction to grant habeas relief in a misdemeanor case.
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concerns it identified applied to the situation wherein a local district court was presiding over a
habeas application in a misdemeanor case. Id. We are therefore bound to apply existing precedent,
which holds that a district court may consider a habeas application filed in a misdemeanor case.
See, e.g., Onion, 741 S.W.2d at 434; see also Williams, 786 S.W.2d at 782; Von Kolb v. Koehler,
609 S.W.2d 654, 656 (Tex. App.—El Paso 1980, orig. proceeding) (holding that district court had
a ministerial duty to consider and rule on application for writ of habeas corpus seeking relief from
an information pending in a county court at law).
Moreover, even if the abstention concerns identified in Smith applied in this case, such
concerns would affect whether the district court should refrain from exercising its jurisdiction, not
whether the district court had jurisdiction in the first place. See Smith, 665 S.W.3d at 455–57. And
any failure by the district court to abstain from deciding the merits of Rodriguez-Gomez’s habeas
application would neither deprive the district court of jurisdiction nor render its action of
dismissing the information against Rodriguez-Gomez “illegal” nor render its judgment granting
habeas relief void. See Seidel, 39 S.W.3d at 224–25 (explaining that “illegal acts” are not
authorized by law, that “irregular acts” are acts that do not adhere to a prescribed rule or mode of
proceeding, “that errors involving statutory procedure are merely voidable,” not void, and that trial
court actions that are illegal are void but actions that are irregular are merely voidable); Onion,
741 S.W.2d at 434–35 (“There is no grant of jurisdiction to the county courts which precludes a
District Court from exercising its plenary power over issuance of writs of habeas corpus in
misdemeanor actions.”); Flores v. State, 487 S.W.2d 122, 125 (Tex. Crim. App. 1972) (holding
that statute granting jurisdictional priority to one court over other courts with concurrent
jurisdiction did not render proceedings in second court void and that challenge to jurisdiction of
second court could be waived if not raised); Ex parte Lohse, 250 S.W.2d 215, 216–17 (Tex. Crim.
App. 1952) (same); see also Ex parte Villanueva, 252 S.W.3d 391, 394 (Tex. Crim. App. 2008)
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(holding that habeas applicant may seek relief from a different trial judge if one trial judge refuses
to issue the writ, such that grant of relief by a different judge would not be “illegal”); Ex parte
Johnson, 561 S.W.2d 841, 842 (Tex. Crim. App. 1978) (same). 6
2. The District Court Had Jurisdiction and Authority to Dismiss the Case with
Prejudice
Generally speaking, a trial court has neither inherent power nor any authority to dismiss a
criminal case unless the prosecutor requests a dismissal. See State v. Johnson, 821 S.W.2d 609,
613 (Tex. Crim. App. 1991); State v. Frye, 846 S.W.2d 443, 447 (Tex. App.—Houston [14th Dist.]
1992), aff’d, 897 S.W.2d 324 (Tex. Crim. App. 1995). A trial court does, however, have authority
to dismiss a criminal indictment or information, including with prejudice, if such dismissal is “the
appropriate means to neutralize the taint of [a] constitutional violation.” State v. Terrazas, 962
S.W.2d 38, 41, 42 (Tex. Crim. App. 1998) (identifying situations in which dismissal of a charging
instrument may be proper and stating that “there can be other constitutional grounds for dismissing
a charging instrument”); State v. Mungia, 119 S.W.3d 814, 817 (Tex. Crim. App. 2003); State v.
Frye, 897 S.W.2d 324, 330 (Tex. Crim. App. 1995) (holding that “dismissal of an indictment . . .
may be necessary to adequately protect a defendant’s Sixth Amendment right to counsel”);
Sanchez v. State, 845 S.W.2d 273, 274, 276 (Tex. Crim. App. 1992) (remanding cause, on appeal
from denial of pretrial application for writ of habeas corpus, “to the trial court with instructions to
dismiss the information in the” underlying criminal case); Ex parte Boetscher, 812 S.W.2d 600,
604 (Tex. Crim. App. 1991) (dismissing indictment in case on review of pretrial habeas proceeding
based on violation of right to equal protection).
6
Because the abstention concerns would not render the district court’s order subject to collateral attack as a void order
and because we have already determined that the State failed to invoke our jurisdiction to review the district court’s
order in the habeas proceeding, we do not consider whether the concerns could apply in this case. See Ex parte Shields,
550 S.W.2d 670, 675 (Tex. Crim. App. 1976) (holding that a collateral attack is permissible only when an “error
renders the proceedings absolutely void”).
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In its first two issues on appeal, the State argues that the district court was not authorized
under Article 11.44 of the Code of Criminal Procedure to dismiss the information and that the
district court lacked jurisdiction to dismiss the underlying charges because Rodriguez-Gomez’s
habeas claims are not cognizable in a pretrial habeas proceeding. As argued by Rodriguez-Gomez
in his brief, however, the State has not provided us with a record of the proceedings in the district
court. 7 See TEX. R. APP. P. 33.1; London v. State, 490 S.W.3d 503, 508 (Tex. Crim. App. 2016);
Word v. State, 206 S.W.3d 646, 651–52 (Tex. Crim. App. 2006). By failing to provide us with, at
minimum, a copy of the habeas application and a copy of any hearing on the application, the State
has failed to provide us with a sufficient record to determine whether the district court had authority
to dismiss the information or whether Rodriguez-Gomez’s claims were cognizable, because the
record neither shows what or how many claims Rodriguez-Gomez asserted in his habeas
application nor what evidence was provided to the trial court. Moreover, “we are required to
presume the regularity of trial court proceedings,” and “[t]he presumption of regularity … requires
a reviewing court, absent evidence of impropriety, to indulge every presumption in favor of the
regularity of the proceedings and documents in the lower court.” Egger v. State, 62 S.W.3d 221,
224 (Tex. App.—San Antonio 2001, no pet.). As a result, we cannot infer, as argued in the State’s
first issue, that the district court lacked authority to dismiss the information because, even if the
district court lacked authority to dismiss the information under Article 11.44 of the Code of
Criminal Procedure, the district court could have had authority to dismiss the information to
7
It is clear from the appellate record that no party attempted to make any portion of the record of the proceedings in
the district court, other than the copy of the district court’s order granting habeas relief that Rodriguez-Gomez attached
as an exhibit to the motion to dismiss he filed in the county court, part of the record of the proceedings in the county
court. In fact, at the February 10, 2023 hearing, the county court judge specifically stated that the district court order
was not in the record of the county court case and that the county court needed Rodriguez-Gomez to provide a copy
of the district court’s order so that it would be part of the county court’s record. Further, the State has made no effort,
despite the arguments in Rodriguez-Gomez’s appellate brief related to the State’s failure to provide a record of the
district court proceedings, to supplement the appellate record.
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remedy a constitutional violation. See Calloway v. State, 743 S.W.2d 645, 651–52 (Tex. Crim.
App. 1988) (“[I]t is well established that the mere fact that a correct ruling is given for the wrong
reason will not result in a reversal. If the decision is correct on any theory of law applicable to the
case it will not be disturbed.”); Salazar v. State, 5 S.W.3d 814, 816 (Tex. App.—San Antonio
1999, no pet.) (holding that appellate court is bound by appellate record and cannot infer error if
record fails to show that trial court committed error); see also Mungia, 119 S.W.3d at 817;
Terrazas, 962 S.W.2d at 41, 42; In re Tex. Bd. of Pardons & Paroles, 495 S.W.3d 554, 560 (Tex.
App.—Houston [14th Dist.] 2016, orig. proceeding) (“Although article 11.44 provides for certain
remedies, it does not state that these are the only remedies that a court may grant in a habeas
proceeding. In fact, on several occasions, the Court of Criminal Appeals has granted habeas relief
against the Board other than that specified in article 11.44.”). Similarly, we cannot infer, as argued
in the State’s second issue, that the district court lacked jurisdiction to dismiss the underlying
charges because the record, which does not reflect whether Rodriguez-Gomez raised one or
multiple potential grounds for relief in his habeas application or the exact nature of the ground or
grounds raised, does not show that Rodriguez-Gomez failed to raise at least one cognizable ground
for relief. See Calloway, 743 S.W.2d at 651–52; Egger, 62 S.W.3d at 224; Salazar, 5 S.W.3d at
816; see also Terrazas, 962 S.W.2d at 41, 42.
Moreover, the limited record in this appeal does include a copy of the district court’s order,
stating that Rodriguez-Gomez was “entitled to relief on his claim of sex discrimination,” and a
copy of Rodriguez-Gomez’s motion to dismiss the county court proceedings, stating that the
district court granted his “equal protection writ based on a gender discrimination claim.” The State
also argues, in its brief, that Rodriguez-Gomez presented a claim in his habeas application arguing
that his prosecution was unconstitutional as a violation of his right to equal protection. And we
have previously determined that a “selective-prosecution claim on the basis of equal protection is”
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cognizable in a pretrial habeas writ and that a trial court has authority to dismiss a criminal charge
based on a violation of the defendant’s rights to equal protection. Ex parte Aparacio, 672 S.W.3d
696, 713 (Tex. App.—San Antonio 2023, pet. granted); see State v. Gomez, No. 04-22-00872-CR,
— S.W.3d —, 2023 WL 7552682, at *6 (Tex. App.—San Antonio Nov. 15, 2023, pet. filed); State
v. Del Campo-Chavez, 674 S.W.3d 714, passim (Tex. App.—San Antonio 2023, pet. filed); see
also Boetscher, 812 S.W.2d at 604. Therefore, the limited record before this court suggests that at
least one claim asserted by Rodriguez-Gomez in his habeas application was cognizable and that
the trial court did have authority to dismiss the information against Rodriguez-Gomez.
Accordingly, based on the record before this court and the presumption of regularity of
trial court proceedings, we conclude that Rodriguez-Gomez presented a cognizable claim to the
district court and that the district court had authority to dismiss the information against Rodriguez-
Gomez.
3. There Is No Jurisdictional Requirement that a Writ Issue
In its third issue, the State argues that the district court lacked jurisdiction to grant
Rodriguez-Gomez’s habeas application because, first, no writ was ever issued and, second, no writ
was served on an officer having custody of Rodriguez-Gomez.
a. Explicit, Formal Issuance of a Writ Is Not a Jurisdictional Requirement
“The writ itself is merely the process by which all persons involved are noticed that the
court is considering the issue, parties are physically attached, if necessary and the response (or the
return) is made.” LeBlanc v. State, 826 S.W.2d 640, 643 (Tex. App.—Houston [14th Dist.] 1992,
pet. ref’d). As such, “there is no jurisdictional requirement for the trial court to explicitly issue a
writ before ruling on the merits of a petitioner’s request for habeas corpus relief.” Del Campo-
Chavez, 674 S.W.3d at 717; see Ex parte Villanueva, 252 S.W.3d 391, 395 (Tex. Crim. App. 2008);
Ex parte Hargett, 819 S.W.2d 866, 869 (Tex. Crim. App. 1991), superseded by statute on other
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grounds as stated in Villanueva, 252 S.W.3d at 395. In fact, “[w]hen a court decides the merits of
the application, the court is considered to have issued the writ . . . .” Ex parte Jagneaux, 315
S.W.3d 155, 156 (Tex. App.—Beaumont 2010, no pet.); see Villanueva, 252 S.W.3d at 395;
Hargett, 819 S.W.2d at 869; see also Greenwell v. Court of Appeals for Thirteenth Jud. Dist., 159
S.W.3d 645, 650 (Tex. Crim. App. 2005) (“The appealability of a habeas proceeding turns not
upon the nature of the claim advanced but upon the use of the procedure itself and the trial court’s
decision to consider the claim (i.e. ‘issue the writ’).”).
In this case, the district court granted the relief requested by Rodriguez-Gomez in his
habeas application, thereby ruling on the merits of the application. The district court therefore “is
considered to have issued the writ.” Jagneaux, 315 S.W.3d at 156; see Villanueva, 252 S.W.3d at
395; Greenwell, 159 S.W.3d at 650.
b. We Must Presume the State Was a Party to the District Court
Proceedings
Although explicit issuance of a writ is not a jurisdictional prerequisite for a trial court to
grant habeas relief, the district court must obtain personal jurisdiction over the State prior to
granting relief to a habeas applicant. See, e.g., Reata Constr. Corp. v. City of Dallas, 197 S.W.3d
371, 379 (Tex. 2006) (Brister, J., concurring) (“A court cannot enter judgment against a party who
has not been haled into court through proper service.”); In re Sloan, 214 S.W.3d 217, 221 (Tex.
App.—Eastland 2007, no pet.) (“Jurisdiction consists of two elements: (1) subject-matter
jurisdiction and (2) personal jurisdiction.”). But “[p]ersonal jurisdiction can be voluntarily waived
by appearance.” Reata Constr. Corp., 197 S.W.3d at 379; see Burger King Corp. v. Rudzewicz,
471 U.S. 462, 472 n.14 (“[T]he personal jurisdiction requirement is a waivable right.”); In re
Fisher, 433 S.W.3d 523, 532 (Tex. 2014) (“Objections to personal jurisdiction may be waived, so
a litigant may consent to the personal jurisdiction of a court through a variety of legal
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arrangements.”); Escobar v. State, 587 S.W.2d 714, 716 (Tex. Crim. App. 1979) (“A general
appearance before the court by the principal, or by an attorney representing the principal, waives
the requirement of service and establishes personal jurisdiction.”). 8 Further, “where the Legislature
has given no indication to the contrary the State must abide by the same rules to which private
litigants are beholden.” State v. Naylor, 466 S.W.3d 783, 792 (Tex. 2015). Finally, “we are
required to presume the regularity of trial court proceedings.” Egger, 62 S.W.3d at 224.
Here, the State contends that “no writ of habeas corpus was ever issued or served upon an
officer having custody of” Rodriguez-Gomez. This argument is specious, however, as the State is
not represented in a habeas proceeding by the “officer having custody of” the applicant, the State
is represented by a district or county attorney. See TEX. CODE CRIM. PROC. arts. 2.01, 2.02, 11.39.
And the State neither argues in its brief nor provides a record to show that (1) the appropriate
8
Habeas proceedings in Texas are categorized as criminal proceedings and the rules of civil procedure ordinarily do
not apply. See In re Tex. Dep’t of Crim. Justice, 668 S.W.3d 375, 381 (Tex. Crim. App. 2023) (Slaughter, J.,
dissenting); Ex parte Rieck, 144 S.W.3d 510, 516 (Tex. Crim. App. 2004). And in criminal proceedings, “[u]nlike in
civil cases, where personal jurisdiction over a party may be had merely by that party’s appearance before the court,
criminal jurisdiction over a person requires the filing of a valid indictment or information.” Jenkins v. State, 592
S.W.3d 894, 898 (Tex. Crim. App. 2018).
But a habeas proceeding is initiated by either the issuance of a writ by a district or county court judge or the
filing of a habeas application by or on behalf of an applicant; a habeas proceeding does not involve the presentment
of a charging document to the court. See TEX. CODE CRIM. PROC. arts. 11.12, 11.13, 11.14, 11.16 (authorizing district
and county court judges to issue writ without application therefor on behalf of persons illegally restrained within the
judge’s district or county); see also In re Tex. Dep’t of Crim. Justice, 668 S.W.3d 375, 381 (Tex. Crim. App. 2023)
(Slaughter, J., dissenting) (“[T]he nature of the proceedings and the interests at stake in a . . . habeas proceeding are
distinct from those inherent in a criminal prosecution.”); Greenwell v. Court of Appeals for Thirteenth Jud. Dist., 159
S.W.3d 645, 650 (Tex. Crim. App. 2005) (“[A] habeas corpus action is separate from the underlying criminal
prosecution.”). It would therefore make no sense to require the filing of a valid indictment or information for a habeas
court to obtain personal jurisdiction over either the habeas applicant or the State. Cf. In re Smith, 665 S.W.3d 449, 458
(Tex. Crim. App. 2022) (“If no one expects an indictment to be returned in a particular type of case, then it makes no
sense to say that the proceedings are ‘before’ indictment.”). As a result, we look to the rules of civil procedure for
guidance concerning whether and how a habeas court obtains personal jurisdiction over the State in a habeas
proceeding. See Ex parte Thuesen, 546 S.W.3d 145, 151 (Tex. Crim. App. 2017) (looking to “the Texas Rules of Civil
Procedure for guidance concerning the recusal of trial judges in criminal cases and habeas corpus proceedings”
because the “Code of Criminal Procedure contains no procedures governing the recusal of trial judges”); Ex parte
Sinegar, 324 S.W.3d 578, 581 (Tex. Crim. App. 2010) (“Consequently, we hold that [Texas] Rule [of Civil Procedure]
18a applies in habeas proceedings that occur before the trial court.”); Arnold v. State, 853 S.W.2d 543, 544 (Tex.
Crim. App. 1993) (holding that Texas Rule of Civil Procedure 18a “applies to criminal cases absent ‘any explicit or
implicit legislative intent indicating otherwise’” (quoting McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App.
1983))).
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prosecutor did not enter an appearance during the habeas proceedings in the district court, (2) it
was not otherwise made a party to the habeas proceedings, or (3) it was not provided notice that
the district court was considering the writ. We must therefore presume, in the context of this
collateral attack on the habeas proceedings and in the absence of a record of those proceedings,
that the district court obtained personal jurisdiction over the State. See Ex parte Rodriguez, 466
S.W.3d 846, 852 (Tex. Crim. App. 2015) (“But the rule for collateral attacks is the opposite of the
rule for direct attacks. For a judgment to be overturned on collateral attack, the record must
affirmatively establish the absence of jurisdiction.”); Tex. Ass’n of Business v. Tex. Air Control
Bd., 852 S.W.2d 440, 479 (Tex. 1993) (Gammage, J., concurring and dissenting) (“[P]ersonal
jurisdiction is presumed in a collateral attack on the judgment.” (emphasis in original)); In re
Blankenship, 392 S.W.3d 249, 255 (Tex. App.–San Antonio 2012, no pet.) (“[I]n reviewing a
collateral attack, our review is limited to whether the record affirmatively and conclusively negates
the existence of jurisdiction.”); Egger, 62 S.W.3d at 224; Salazar, 5 S.W.3d at 816.
c. The District Court Did Not Lack Jurisdiction Based on Any Alleged
Failure to Explicitly Issue a Writ
Because (1) formal issuance of a writ is not a jurisdictional requirement, (2) the State fails
to argue or provide a record to show that it did not enter a general appearance in the trial court
proceedings, that the trial court did not otherwise obtain personal jurisdiction over the State, or
that it did not receive notice that the district court was considering Rodriguez-Gomez’s habeas
application, and (3) the district court had, in effect, issued the writ when it granted relief on the
merits of Rodriguez-Gomez’s application, we conclude that the district court did not lack
jurisdiction based on any alleged failure of the district court to formally issue a writ.
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04-23-00157-CR
4. We May Not Review the District Court’s Decision to Grant Relief
In its final issue on appeal, the State argues that the evidence was insufficient to support
Rodriguez-Gomez’s habeas claim and that the district court therefore abused its discretion by
granting relief. But, even if we had a record upon which to review this argument, 9 the State’s
argument, if correct, would not establish that the order was void and is therefore improper in a
collateral attack. See Galloway v. State, 578 S.W.2d 142, 143 (Tex. Crim. App. 1979); cf. Seidel,
39 S.W.3d at 224–25 (holding that State could attack a void order either by direct appeal or
collateral attack). As discussed above, the State failed to timely appeal from the district court’s
order. Accordingly, we may not consider the State’s final argument.
5. The District Court Had Jurisdiction to Dismiss the Information
Based on the appellate record in this case, the district court had jurisdiction to dismiss the
information against Rodriguez-Gomez. See Salazar, 5 S.W.3d at 816.
C. The County Court’s Order Dismissing the Information Was Void
On January 10, 2023, the district court granted habeas relief to Rodriguez-Gomez in cause
number 2022CVJ001437D2. Specifically, the district court dismissed the information pending in
county court cause number 2022CRB000729L1 with prejudice. This order terminated the
proceedings in the county court and extinguished the county court’s jurisdiction over the criminal
case against Rodriguez-Gomez. See Young, 810 S.W.2d at 223; Moreno, 807 S.W.2d at 333 & n.7;
Garrett, 749 S.W.2d at 803 (internal citations omitted); Haley, 604 S.W.2d at 197; Garcia, 596
S.W.2d at 528; Garber, 667 S.W.2d at 613; see also Alvarez, 977 S.W.2d at 593. Accordingly, the
county court lacked jurisdiction over the criminal proceedings against Rodriguez-Gomez on
9
The State failed to provide us with a record that includes Rodriguez-Gomez’s habeas application, any evidence
attached to that application, a copy of the hearing, if any, in the district court, or any other evidence that was submitted
to the district court related to Rodriguez-Gomez’s habeas application. See London v. State, 490 S.W.3d 503, 508 (Tex.
Crim. App. 2016).
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February 16, 2023, and the county court’s order dismissing the information, issued on that date, is
a nullity and is void. See Green v. State, 906 S.W.2d 937, 939–40 (Tex. Crim. App. 1995); Garcia,
596 S.W.2d at 528; see also State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995).
PROPER REMEDY
The district court dismissed the information against Rodriguez-Gomez on January 10,
2023, thereby terminating the county court’s jurisdiction over the information. Nevertheless, the
county court issued an order on February 16, 2023, purporting to dismiss the already-dismissed
case. Under these circumstances—wherein a court continues to act after losing jurisdiction—“the
proper remedy is to return the parties to the positions they occupied prior to the trial court’s
actions.” Deifik v. State, 58 S.W.3d 794, 798 (Tex. App.—Fort Worth 2001, pet. ref’d); see
Hopkins v. State, No. 05-03-01683-CR, 2004 WL 2192198, at *1 (Tex. App.—Dallas Sept. 30,
2004, no pet.) (not designated for publication); see also Ex parte Loyoza, 666 S.W.3d 618, 626
(Tex. Crim. App. 2023) (finding trial court lacked jurisdiction when it revoked the applicant’s
community supervision and vacating the revocation order, thereby returning parties to the positions
they held before issuance of the order). Accordingly, we DECLARE the county court’s order
dismissing the information against Rodriguez-Gomez void, leaving the district court’s order
dismissing the information against Rodriguez-Gomez in cause number 2022CRB000729L1 intact.
See TEX. R. APP. P. 43.6; Owens, 907 S.W.2d at 486 (“While it is wholly unnecessary to appeal
from a void judgment, it is nevertheless settled that an appeal may be taken and the appellate court
in such a proceeding may declare the judgment void.”); see also Lozoya, 666 S.W.3d at 627
(vacating district court order revoking the applicant’s community supervision because the district
court lacked jurisdiction to do so); cf. Estate of Knies, No. 05-18-00919-CV, 2018 WL 5603569,
at *1 (Tex. App.—Dallas Oct. 30, 2018, no pet.) (mem. op.) (“When a party appeals a void order,
we should declare the order void and dismiss the appeal for want of jurisdiction.”).
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Having determined that the district court dismissed the information pending against
Rodriguez-Gomez in cause number 2022CRB000729L1 on January 10, 2023, and that the county
court’s order of February 16, 2023, is void, we must conclude that there was no actual controversy
between the parties in the county court as of February 16, 2023, and we therefore have no
jurisdiction over the State’s attempted appeal. See Garrett, 749 S.W.2d at 803 (“Judicial power
does not include the power to issue advisory opinions. An advisory opinion results when a court
attempts to decide an issue that does not arise from an actual controversy capable of final
adjudication.” (internal citations omitted)); Gomez, 891 S.W.2d at 245 (“[J]urisdiction also
depends on justiciability. And . . . for a controversy to be justiciable, there must be a real
controversy between the parties that will be actually resolved by the judicial relief sought.”). We
therefore DISMISS this appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f).
Rebeca C. Martinez, Chief Justice
PUBLISH
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