In Re Rogelio Lopez Perez v. the State of Texas

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-23-00294-CR
IN RE Rogelio Lopez PEREZ
Original Proceeding 1
PER CURIAM
Sitting: Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: August 16, 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 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. 31313, styled State of Texas v. Rogelio Lopez Perez, 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.
04-23-00294-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. App. 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 a form containing blanks with 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 selected the following option:
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 that the trial court
issue a writ or hold an evidentiary hearing on his application. 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
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order that relator did not receive the issuance of a writ or the evidentiary hearing he sought. Instead,
the order shows the trial court affirmatively declined to issue a writ, hold an evidentiary hearing,
or submit written evidence when it did not select the blanks 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.
Nothing in the order or record suggests that the trial court ruled on the merits of relator’s
equal protection claim. If the trial court had ruled on the merits of relator’s habeas application,
then the proper remedy would be 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 a live controversy remains. 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 decision in Aparicio,
we believe the trial court should have an opportunity to reconsider its ruling—its decision not to
issue the habeas writ or to hold an evidentiary hearing—on relator’s habeas application. See id.;
see also 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 ability to seek 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
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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