Ex Parte Jo Leigh Ares

NUMBER 13-17-00638-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
EX PARTE JO LEIGH ARES
On appeal from the 404th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes
Memorandum Opinion by Justice Longoria
Appellant Jo Leigh Ares appeals the trial court’s denial of her pre-trial petition for
writ of habeas corpus. Ares asserts: (1) the trial court erred by failing to grant her petition
for writ of habeas corpus; (2) an in pari materia challenge to an indictment is cognizable
in a pre-trial petition for writ of habeas corpus; (3) a pre-trial writ of habeas corpus is
cognizable when it involves a violation of the separation of powers as well as the
defendant’s rights to due process and due course of law; (4) an as-applied challenge to
the indictment is cognizable where the violation is apparent from the face of the record;
and (5) the Manufactured Housing Act is in pari materia with the Texas Penal Code
statutes for theft of property and securing execution of a document by deception. See
TEX. OCC. CODE ANN. § 1201.451; TEX. PENAL CODE ANN. §§ 31.03, 32.46. We affirm.
I. BACKGROUND
In March 2012, Ares was charged by complaints with misdemeanor violations of
the Texas Occupations Code. The State dismissed the misdemeanor charges in 2013
and charged Ares by indictment for the felony offenses of: (1) theft of property in an
aggregate amount of more than $100,000 but less than $200,000; and (2) securing the
execution of a document by deception with a value of $20,000 or more but less than
$100,000. See TEX. PENAL CODE ANN. §§ 31.03, 31.09, 32.46. The indictment arose from
complaints that Ares, through her business “The Park Girl,” took payments from
customers for the purchase of mobile homes, but never gave the customers the products.
Ares filed a pre-trial motion for writ of habeas corpus and a hearing was held in
2014. The trial court denied the relief requested and Ares appealed. In her sole issue
before this Court, Ares argued that she was being illegally restrained by criminal charges
related to a civil debt and that the statute she was charged under was unconstitutional as
applied to her. See Ares v. State, No. 13-14-00164-CR, 2015 WL 6593814 at *1–2 (Tex.
App.—Corpus Christi–Edinburg 2015, no pet.) (mem. op., not designated for publication).
We affirmed the denial of her writ of habeas corpus. See id.
In September 2017, Ares filed her “Motion to Quash and Dismiss Indictment
Pursuant to the Doctrine of In pari materia, as a Matter of Due Course of Law and Due
Process of Law Violations of the United States and Texas Constitutions” which she later
supplemented twice. The second supplemental motion was titled “Second Supplemental
2
Motion to Quash and Dismiss Indictment Pursuant to the Texas Code Construction Act,
Doctrine of In pari materia, as a Matter of Due Course of Law and Due Process of Law
Violations of the United States and Texas Constitutions and Request for Writ of Habeas
Corpus Relief.” The trial court heard the motion over the course of three hearings and
denied the relief requested by Ares. This interlocutory appeal followed.
II. PRE-TRIAL WRIT OF HABEAS CORPUS
Ares complains that the trial court erred in denying her petition for writ of habeas
corpus, specifically arguing that the statutes under which she was indicted are in pari
materia with the Manufactured Housing Act and that such a claim is cognizable in a pre-
trial petition for writ of habeas corpus. She further argues that a petition for pre-trial writ
of habeas corpus is cognizable when it involves a violation of separation of powers and
the defendant’s rights to due process and due course of law. Lastly, she argues that an
as-applied challenge to the indictment is cognizable where the violation is apparent from
the face of the record.
A. Standard of Review
A pre-trial writ of habeas corpus “followed by an interlocutory appeal, is an
‘extraordinary remedy’ and ‘appellate courts have been careful to ensure that a pre-trial
writ is not misused to secure pre-trial appellate review of matters that in actual fact should
not be put before appellate courts at the pre-trial stage.’” Ex parte Ellis, 309 S.W.3d 71,
79 (Tex. Crim. App. 2010) (quoting Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim.
App. 2010)). The determination of “whether a claim is even cognizable on pre-trial habeas
is a threshold issue that should be addressed before the merits of the claim may be
resolved.” Id. “Pre-trial habeas should be reserved for situations in which the protection
3
of the applicant’s substantive rights or the conservation of judicial resources would be
better served by interlocutory review.” Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim.
App. 2001).
We review a trial court’s decision to grant or deny a writ of habeas corpus for abuse
of discretion. See Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006).
However, if the resolution turns on an application of legal standards, we review the
determination de novo. See Sandifer v. State, 233 S.W.3d 1, 2 (Tex. App.—Houston [1st
Dist.] 2007, no pet.) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997));
see also Ex parte Hartfield, 442 S.W.3d 805, 814 (Tex. App.—Corpus Christi–Edinburg
2014, pet. ref’d).
B. Claim Must Be Cognizable
Before turning to the merits of Ares’s claim, we must first determine whether her
claim is cognizable. See Ellis, 309 S.W.3d at 79. When determining whether an issue is
cognizable by pre-trial habeas, we consider a variety of factors, including whether the
rights underlying the claims would be effectively undermined if not vindicated before trial
and whether the alleged defect would bring into question the trial court’s power to
proceed. Ex parte Perry, 483 S.W.3d 884, 895–96 (Tex. Crim. App. 2016); Weise, 55
S.W.3d at 619. A defendant may use a pre-trial writ of habeas corpus only in very limited
circumstances. Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005). The
accused may challenge: (1) the State’s power to restrain her at all, i.e., the existence of
probable cause; (2) the manner of her restraint, i.e., the denial of bail or conditions
attached to bail; and (3) certain issues that would bar prosecution or conviction. Id.
Designating a particular complaint as one that is cognizable is not enough; if the complaint
4
is in fact one that is not cognizable, we should refuse to consider the merits of the claim.
See Ellis, 309 S.W.3d at 79–80; see also Ex parte Paxton, 493 S.W.3d 292, 297 (Tex.
App.—Dallas 2016, pet. ref’d).
When there is a valid statute or ordinance under which a prosecution may be
brought, pre-trial habeas is generally not available to test the sufficiency of the charging
instrument. Perry, 483 S.W.3d at 895; Weise, 55 S.W.3d at 620. A few exceptions to
this rule exist, but they have usually been found only when the complaint is such that it
would render the proceedings void from the outset. Ex parte Smith, 152 S.W.3d 170, 171
(Tex. App.—Dallas 2004), aff’d, 185 S.W.3d 887 (Tex. Crim. App. 2006). Pre-trial habeas
is available when the question presented, when resolved in the defendant’s favor, would
result in immediate release. Perry, 483 S.W.3d at 895.
1. As-Applied Challenge
Ares argues that Perry overhauled the cognizability analysis, allowing for as-
applied challenges “if the violation is apparent from the pleadings or the right requires
vindication pre-trial.” See 483 S.W.3d at 918. In Perry, former Texas governor Rick Perry
contended that as applied to certain circumstances, the abuse of official capacity statute
violated separation of powers principles. Id. at 888. The State contended that Perry’s
argument was not cognizable in a pre-trial habeas corpus application. Id. at 895. The
court of criminal appeals disagreed, holding that “pre-trial habeas is an available vehicle
for a government official to advance an as-applied separation of powers claim that alleges
the infringement of his own power as a government official.” Id. at 898; see Ex parte
Walsh, 530 S.W.3d 774, 781 (Tex. App.—Fort Worth 2017, no pet.) (emphasis added).
5
We find the facts here to be inapposite to the holding in Perry. See Paxton, 493
S.W.3d at 303 (declining to hold that pre-trial habeas relief was available under Perry
because the defendant’s charges did “not arise out of his duties as an elected official but
rather from his conduct as a private citizen”); Walsh, 530 S.W.3d at 781 (declining to
extend the holding in Perry to appellant’s as-applied challenge because, inter alia,
appellant was not a government official). Perry reaffirms that “as applied” challenges are
not cognizable on pre-trial habeas except for certain carefully limited exceptions. See
Perry, 483 S.W.3d at 895–98. The court concluded that cases involving criminal charges
arising from an elected official’s performance of his duties and implicating the separation
of powers qualify as such an exception. See id. at 898. As a private citizen, Ares’s
charges do not arise out of any duty as an elected official. See Paxton, 493 S.W.3d at
303. Accordingly, we conclude that Perry does not support Ares’s position that she may
raise an as-applied challenge on pre-trial habeas. Perry, 483 S.W.3d at 898.
2. Immediate Release and Vindication of Rights Pre-Trial
Ares also argues that her in pari materia challenge is cognizable because if we
find in her favor, the trial court would no longer have jurisdiction to proceed. Ares
contends that, if we determined that the statutes under which she was indicted are in pari
materia with the Manufactured Housing Act, she would be released, making her pre-trial
writ cognizable. See Ex parte Flores, 483 S.W.3d 632, 638 (Tex. App.—Houston [14th
Dist.] 2015, pet. ref’d) (“A claim is cognizable in a pre-trial writ of habeas corpus if,
resolved in the defendant’s favor, it would deprive the trial court of the power to proceed
and result in the appellant’s immediate release.”). She asserts that the two-year statute
of limitations has already run on any potential misdemeanor charges against her under
6
the Manufactured Housing Act. See TEX. CRIM. PROC. CODE ANN. art. 12.02(a) (“An
indictment or information for any Class A or Class B misdemeanor may be presented
within two years from the date of the commission of the offense, and not afterward.”).
Accordingly, Ares argues that if we resolved these arguments in her favor, the trial court
would be deprived of the power to proceed and she would be released. Ex parte Flores,
483 S.W.3d at 638.
Ares asserts further that her rights “would be effectively undermined if not
vindicated pre-trial.” Certain types of claims may be raised by pre-trial habeas because
the rights underlying those claims would be effectively undermined if not vindicated before
trial. Perry, 483 S.W.3d at 895 (citing Weise, 55 S.W.3d at 619 (“[A]n applicant may use
pre-trial writs to assert his or her constitutional protections with respect to double
jeopardy.”)); Ex parte Robinson, 641 S.W.2d 552, 555 (Tex. Crim. App. 1982) (concluding
that Fifth Amendment right not to be exposed to double jeopardy must be reviewable
before that exposure occurs). In determining whether a claim falls under this exception,
courts first consider whether the right at stake provides a basis for cognizability, and
secondarily whether judicial economy favors pre-trial review. Perry, 483 S.W.3d at 898.
Ares contends that her in pari materia challenge was properly raised pre-trial
because the violation is apparent from the face of the record and no further factual
development is necessary. See State v. Wiesman, 269 S.W.3d 769, 773 (Tex. App.—
Austin 2008, no pet.). The doctrine of in pari materia is a principle of statutory
interpretation, a means of giving full effect to legislative intent. Mills v. State, 722 S.W.2d
411, 413 (Tex. Crim. App. 1986). Under this doctrine, statutes that deal with the same
general subject, have the same general purpose, or relate to the same person, thing, or
7
class are considered to be in pari materia even if they contain no reference to each other
or were passed at different times or at different sessions of the legislature. Cheney v.
State, 755 S.W.2d 123, 126 (Tex. Crim. App. 1988). The doctrine applies, for example,
when one statute deals with a subject in comprehensive terms and another deals with a
portion of the same subject in a more definite way. Id. Statutes found to be in pari materia
are construed together and, if possible, conflicts between the statutes are
harmonized. Id. at 127; see TEX. GOV’T CODE ANN. § 311.026(a) (“If a general provision
conflicts with a special or local provision, the provisions shall be construed, if possible, so
that effect is given to both.”). In the case of an irreconcilable conflict, the specific statute
controls over the more general statute. Cheney, 755 S.W.2d at 126; see TEX. GOV’T CODE
ANN. § 311.026(b) (“If the conflict between the general provision and the special or local
provision is irreconcilable, the special or local provision prevails as an exception to the
general provision, unless the general provision is the later enactment and the manifest
intent is that the general provision prevail.”).
Count one of the indictment alleged that Ares “unlawfully appropriate[d], by
acquiring or otherwise exercising control over, property, to-wit: US Currency. . .” from six
victims, “pursuant to one scheme or continuing course of conduct, and the aggregate
value of the property obtained was $100,000 or more, but less than $200,000.” See TEX.
PENAL CODE. ANN. § 31.03(e)(6). Count two of the indictment alleged that Ares:
with the intent to harm or defraud Joanna Llanas, by deception, to-wit:
altered mobile home purchase agreement, intentionally or knowingly
cause[d] Johanna Llanas to sign or execute a document affecting the
pecuniary interest . . . the value of said pecuniary interest being $20,000 or
more but less than $100,000, and said document is of the tenor following:
Purchase Agreement dated September 24, 2011.
8
See TEX. PENAL CODE ANN. § 32.46(b)(5). Ares argues that the alleged injuries to the
victims in this case arise out of her ownership and operation of her mobile home business.
She argues the State has alleged that she agreed to sell mobile homes and accepted
payment with no intent to deliver the homes. She contends that the statutes under which
she was indicted are in pari materia with the Manufactured Housing Act, and therefore
her indictment under these statutes violates her constitutional rights to due process and
due course of law. See U.S. CONST. amend. XIV; TEX. CONST. art. I, § 19; TEX. OCC. CODE
ANN. § 1201.451(a) (“[A] person may not sell or exchange a used manufactured home
without the appropriate transfer of good and marketable title to the home.”); id. § 1201.606
(stating that a person commits a Class A misdemeanor if the person knowingly and
willfully violates the Manufactured Housing Act); TEX. PENAL CODE ANN. § 31.03.
When an in pari materia assertion is made prior to trial and, accordingly, before an
evidentiary record has been developed, a court may only conclude that two statutes are
in pari materia if the charging instrument “on its face” raises the in pari materia issue. See
Weisman, 269 S.W.3d at773–74. Likewise, the Texas Court of Criminal Appeals has held
that when the charging instrument was unobjectionable on its face, it was only after the
State’s evidence disclosed the statutory provisions purportedly at issue that the basis for
an in pari materia challenge became manifest. See Azeez v. State, 248 S.W.3d 182, 194
(Tex. Crim. App. 2008).
Count one of Ares’s indictment for theft of property does not allege any facts
indicating that manufactured housing was involved or that she could have been charged
under the Manufactured Housing Act. See Azeez, 248 S.W.3d at 194 (holding that
appellant could not raise an in pari materia claim to quash a complaint accusing him of
9
failing to appear where the complaint did not allege any facts that the defendant had failed
to appear specifically pursuant to a traffic violation); see also Smith, 185 S.W.3d at 893
(holding that in pari materia claim was not cognizable on pre-trial writ of habeas where
assault indictment was valid on its face and did not allege facts indicating that hazing was
involved). Accordingly, because count one of the indictment does not present an in pari
materia issue on its face, we find that Ares’s in pari materia claim as to count one is not
cognizable by pre-trial writ of habeas corpus. See Smith, 185 S.W.3d at 893. Count two
of Ares’s indictment alleges facts involving the purchase of a mobile home and documents
executed pursuant to the purchase of a mobile home. However, because count one is
valid, even if Ares were to be successful on her in pari materia claim as to count two, it
would not result in her immediate release; therefore, the issue as to count two is also not
cognizable in a pre-trial writ of habeas corpus. See Flores, 483 S.W.3d at 638
The trial court did not abuse its discretion in denying Ares’s petition for pre-trial writ
of habeas corpus.
III. CONCLUSION
We affirm the judgment of the trial court.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
19th day of September, 2019.
10