The State of Texas v. Oscar Sevilla Berrios ( 2024 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-23-00159-CR
The STATE of Texas,
Appellant
v.
Oscar Sevilla BERRIOS,
Appellee
From the County Court At Law No. 1, Webb County, Texas
Trial Court No. 2022CRB000756L1
Honorable Leticia Martinez, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Irene Rios, Justice
Lori Massey Brissette, Justice
Delivered and Filed: October 23, 2024
REVERSED AND RENDERED
The State appeals the trial court’s order granting Appellee, Oscar Sevilla Berrios, habeas
relief. We reverse the trial court’s order, render judgment dismissing Berrios’s habeas application,
and reinstate the information charging Berrios with the misdemeanor offense of criminal trespass.
BACKGROUND
As part of Operation Lone Star, Berrios, a noncitizen, was arrested on August 5, 2022, for
trespassing on private property in Webb County. Berrios filed an application for writ of habeas
04-23-00159-CR
corpus on August 16, 2022; he later filed an amended habeas application on October 17, 2022. In
both habeas applications, Berrios sought dismissal of his criminal charge on Fourth Amendment
grounds, arguing that the State lacked probable cause to arrest him for criminal trespass. 1 At an
evidentiary hearing, Berrios presented evidence that the location of his arrest was not fenced in.
The trial court granted Berrios’s requested relief. The State appeals.
COGNIZABILITY
In the first of the five issues the State raises on appeal, the State contends that the ground
for relief asserted in Berrios’s habeas application was not cognizable. The State therefore contends
that the trial court lacked jurisdiction to grant Berrios’s request for habeas relief.
“The writ of habeas corpus is an extraordinary writ. Neither a trial court nor an appellate
court should entertain an application for writ of habeas corpus when there is an adequate remedy
by appeal.” Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001). Whether a claim is
cognizable on pretrial habeas is a threshold issue that we must address first. See Ex parte
Dominguez Ortiz, 668 S.W.3d 126, 132 (Tex. App.—San Antonio 2023, no pet.) (en banc).
Pretrial habeas corpus is available “only in very limited circumstances.” Ex parte Sheffield,
685 S.W.3d 86, 93 (Tex. Crim. App. 2023) (quoting Ex parte Smith, 178 S.W.3d 797, 801 (Tex.
1
In his amended habeas application, Berrios asserted two additional grounds for relief. However, (1) Berrios did not
present any evidence or argument in support of these two grounds for relief at the habeas hearing on January 13, 2023;
(2) after the hearing, Berrios filed a memorandum in support of his habeas application that did not discuss or even
mention these two grounds for relief; and (3) Berrios does not raise these two grounds for relief in his appellate brief.
Furthermore, the record indicates that neither the parties nor the trial court understood either of these two grounds for
relief to be the basis of the trial court’s ruling on the merits of Berrios’s habeas application. Therefore, we will not
consider these two additional grounds for relief on appeal. TEX. R. APP. P. 33.1; Ex Parte Russell, 720 S.W.2d 477,
487 (Tex. Crim. App. 1986) (“It is well established that in habeas corpus proceedings the burden of proof is upon the
applicant and includes the burden of proving his factual allegations”); see also, e.g., Ex parte Yarbrough, 2016 WL
1588213 (Tex. App.—San Antonio April 20, 2016) (because “Yarbrough failed to present this challenge at the habeas
hearing to provide the trial court the opportunity to rule on this specific point. . . the trial court did not make a ruling,
and nothing is presented for review on appeal”); Greenville v. State, 798 S.W.2d 361, 362–63 (Tex. App.—Beaumont
1990, no pet.) (appellate court was without jurisdiction to consider grounds of appeal not raised in habeas corpus
hearing); see also, e.g., Ramos v. State, No. 04-04-00784-CR, 2006 WL 1232896, at *3 (Tex. App.—San Antonio
May 10, 2006), rev'd on other grounds, 245 S.W.3d 410 (Tex. Crim. App. 2008) (argument in written motion was
waived when defendant failed to make argument at hearing or trial).
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04-23-00159-CR
Crim. App. 2005)); Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016). As-applied
challenges are generally not cognizable. Sheffield, 685 S.W.3d at 93. However, certain types of as-
applied challenges may be raised by pretrial habeas where the rights underlying those claims would
be effectively undermined if not vindicated before trial. Id. at 94; Perry, 483 S.W.3d at 895–96.
Here, Berrios filed a habeas application seeking dismissal of his prosecution on the ground
that officers lacked probable cause to arrest him for criminal trespass. Specifically, Berrios argued
that the probable cause affidavit was deficient because it failed to sufficiently allege an element of
the offense: that Berrios had notice that his entry onto the property on which he allegedly
trespassed was forbidden. TEX. PENAL CODE § 30.05(a)(1).
We previously considered, in State v. Colin-Tapio, 679 S.W.3d 263, 265 (Tex. App.—San
Antonio 2023, no pet.), a State’s appeal arising out of the same incident and involving the same
habeas claim, the same appellate issue, and the same trial court hearing 2 and determined that the
habeas claim was not cognizable. Thus, for the reasons enunciated in Colin-Tapio, we conclude
that Berrios’s claim is not cognizable in a pretrial habeas proceeding. Id. at 265; see also Woods
v. State, 153 S.W.3d 413, 415 (Tex. Crim. App. 2005) (“[T]he statutes authorizing pre-trial
proceedings do not contemplate a ‘mini-trial’ on the sufficiency of the evidence to support an
element of the offense.”); Ex parte Brooks, 97 S.W.3d 639, 640 (Tex. App.—Waco 2002, no pet.)
(holding that habeas applicant who asserted that he was arrested without probable cause had an
adequate remedy at law); Ex parte Whitaker, No. 12-22-00043-CR, 2022 WL 1572050, at * 2
(Tex. App.—Tyler May 18, 2022, no pet.) (mem. op., not designated for publication) (same); Ex
2
The hearing in the trial court involved five habeas applications, including applications filed by Sanchez-Espinoza
and the appellee in Colin-Tapio. At the hearing, counsel for Sanchez-Espinoza also represented the appellee in Colin-
Tapio, along with the three other applicants. Counsel for Sanchez-Espinoza stated at the hearing that all five applicants,
including Sanchez-Espinoza and the appellee in Colin-Tapio, were arrested together at the same location on the same
date of August 5, 2022.
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04-23-00159-CR
parte Springer, No. 06-13-00201-CR, 2013 WL 6198326, at *1 (Tex. App.—Texarkana Nov. 26,
2013, no pet.) (mem. op., not designated for publication) (same); Ex parte Blakely, No. 05-18-
00909-CR, 2019 WL 911739, at *4 (Tex. App.—Dallas Feb. 25, 2019, no pet.) (mem. op., not
designated for publication) (holding that claim applicant was arrested without probable cause is
“not cognizable on a pretrial habeas writ”).
Because Berrios’s claim is not cognizable by pretrial writ of habeas corpus, we sustain the
State’s first issue. We need not reach the remainder of the State’s issues.
CONCLUSION
We reverse the trial court’s order granting Berrios habeas relief, render judgment
dismissing Berrios’s habeas application, and reinstate the information charging Berrios with the
misdemeanor offense of criminal trespass. Any pending motions are dismissed as moot.
Irene Rios, Justice
DO NOT PUBLISH
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