CURIPOMA, JESUS ALBERTO GUZMAN v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0159-22

Ex parte JESUS ALBERTO GUZMAN CURIPOMA, Appellee

ON PETITION FROM THE KINNEY COUNTY ATTORNEY
AND ON COURT’S OWN MOTION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
TRAVIS COUNTY

KELLER, P.J., filed a dissenting opinion in which HERVEY and KEEL, JJ.,
joined.

DISSENTING OPINION

The Court remands this case for reconsideration in light of our decision in In re Smith.1 I

would instead affirm the judgment of the court of appeals dismissing this appeal for lack of

jurisdiction. I respectfully dissent.

I. BACKGROUND

A. Trial

Appellee was arrested in Kinney County for misdemeanor trespass, and he was released on

1
665 S.W.3d 449 (Tex. Crim. App. 2022).
CURIPOMA — 2

bond pending a trial. He filed a habeas application in a district court in Travis County challenging

his restraint arising from the trespass charge. The Travis County District Attorney filed a response

that recommended granting relief. The Kinney County Attorney appeared through counsel and

argued that the Kinney County Attorney’s Office is the proper representative of the State in the

habeas action. The trial court disagreed but allowed the Kinney County Attorney to make a bill of

exception. Ultimately, the trial court granted Appellee relief and dismissed the trespass case. The

Kinney County Attorney filed a notice of appeal, and the Travis County District Attorney then filed

a motion to dismiss the appeal.

B. Appeal

The court of appeals first held that Appellee’s habeas action was properly filed in the Travis

County District Court.2 The court of appeals further held that the Travis County District Attorney

was “the proper representative of the State in the Travis County habeas proceedings.”3 The court

of appeals then held that the Kinney County Attorney could not take a different position on appeal

than the State did in the habeas proceedings before the trial court.4 Granting the Travis County

District Attorney’s motion, the court of appeals dismissed the appeal.5

C. Discretionary Review

2
State v. Curipoma, 652 S.W.3d 74, 77-78 (Tex. App.—Austin 2022).
3
Id. at 78-79.
4
Id. at 79-80.
5
Id. at 80.
CURIPOMA — 3

The Kinney County Attorney filed a petition for discretionary review in this Court.6 We

granted that petition, and we also granted two grounds on our own motion. The Kinney County

Attorney, the Travis County District Attorney, and Appellee have filed briefs, and the State

Prosecuting Attorney has submitted an amicus brief. The Kinney County Attorney argues that the

court of appeals erred in holding that the Travis County District Court had the authority to decide

the merits of the habeas action. And in essence, the Kinney County Attorney argues that, because

the case should not even have been in Travis County, the Travis County District Attorney lacks the

authority to represent the State. The Travis County District Attorney argues the opposite on both

points, contending that the court of appeals was correct both in saying that the Travis County District

Court had authority to resolve the case and that the Travis County District Attorney was the proper

representative. The State Prosecuting Attorney (SPA) contends that there is no proper representative

of the State in this case. The SPA agrees with the Kinney County Attorney that the case is not

properly in Travis County but also argues that the Kinney County Attorney has no authority to file

an appeal from a Travis County judgment. Appellee contends that the Kinney County Attorney

waived his claims but otherwise takes no position on the issues before us.

II. ANALYSIS

A. Standards of Construction

This opinion construes court rules as well as statutes. In construing statutes, we are

constrained by the standard articulated in Boykin v. State: we give effect to the plain meaning of the

statutory text unless the text is ambiguous or the plain meaning leads to absurd results that the

6
The ground in its petition states: “The Court of Appeals Erred by Basing its Opinion on the
Holdings of the Habeas Court Without Determining Whether Such Holdings Were correct.”
CURIPOMA — 4

legislature could not have possibly intended.7 The Boykin textual standard does not apply to the

interpretation of court rules, where factors beyond the text may be considered, but the text is a good

place to begin.8

B. Discretionary Review Jurisdiction

One of the issues we granted on our own motion was “whether the Kinney County Attorney

was authorized to file a petition for discretionary review.” Under Rule 68.1, we may grant review

on a petition by any “party” from a court of appeals’s decision.9 The State is a party in this case, so

the question becomes who has the authority to represent the State in filing a PDR.

The State Prosecuting Attorney shall “represent the state in all proceedings before” the Court

of Criminal Appeals.10 The SPA “has primary authority to represent the State in this Court,”11 which

includes filing a PDR.12 The SPA could have filed a PDR in this case, but it did not.

Government Code § 42.005(b) provides that a “district or county attorney may assist the state

prosecuting attorney in representing the state before the court of criminal appeals.”13 Subsection (a)

of § 42.005 also allows the state prosecuting attorney to “assist a district or a county attorney in

representing the state before a court of appeals if requested to do so by the district or county

7
Delarosa v. State, 677 S.W.3d 668, 674 (Tex. Crim. App. 2023); Boykin v. State, 818
S.W.2d 782, 785 (Tex. Crim. App. 1991).
8
Smith v. State, 559 S.W.3d 527, 531 (Tex. Crim. App. 2018).
9
TEX. R. APP. P. 68.1.
10
TEX. GOV’T CODE § 42.001.
11
Saldano v. State, 70 S.W.3d 873, 877 (Tex. Crim. App. 2002) (emphasis added).
12
Ex parte Taylor, 36 S.W.3d 883, 887 (Tex. Crim. App. 2001).
13
TEX. GOV’T CODE § 42.005(b) (emphasis added).
CURIPOMA — 5

attorney.”14 Read together, both subsections of § 42.005 seem to be referring to the same “district

or county attorney”—the one who had authority to represent the State in the court of appeals. This

conclusion is reinforced by the fact that the local prosecuting attorney can participate in–“assist” in–

a case before this Court without the SPA first asking him to.15 One would expect unrequested

assistance to come from the prosecutorial office involved in the appeal. Rule 68.1’s reference to a

“party” filing a PDR supports this expectation because one would naturally look to the proceedings

below for the appropriate entity representing the State on appeal. We have tacitly recognized that

a local district or county attorney can assist the SPA by filing a PDR on its own, as long as the SPA

does not also file a PDR.16 So, the SPA has primary authority to file a PDR, but if it does not

exercise that authority, the prosecuting entity that had authority to file the appeal in the court of

appeals may file a PDR. Here, the SPA did not file a PDR, so whether the Kinney County Attorney

had authority to file a PDR depends on whether he had the authority to file a notice of appeal in the

court of appeals. Because I ultimately conclude that the Kinney County Attorney was not authorized

to file a notice of appeal, I necessarily conclude that he was not authorized to file a PDR.

14
Id. § 42.005(a). Although this subsection seems to require a request for the SPA to get
involved, § 42.001 also confers upon the SPA the right to intervene in a court of appeals on its own.
Id. § 42.001(a) (“The state prosecuting attorney may also represent the state in any stage of a
criminal case before a state court of appeals if he considers it necessary for the interest of the state.”).
15
See id. § 42.005(b).
16
Taylor, 36 S.W.3d at 887 (“The District Attorney does not, and cannot, point to any
considered decision by this Court since 1981 allowing both the state prosecuting attorney and the
local prosecutor to seek review in this Court. . . . The state prosecuting attorney has a statewide view
that a local prosecutor may not have, and this doubtless explains the legislature’s choice to give the
state prosecuting attorney the primary authority in this court . . . In this case the State Prosecuting
Attorney has exercised his authority to represent the State in this proceeding by filing a petition for
discretionary review, and it is the State’s petition in this case.”).
CURIPOMA — 6

But that conclusion would not defeat our discretionary review jurisdiction. This Court has

the power to grant review without a petition.17 And we can do so “at any time before the mandate

of the court of appeals issues.”18 The mandate has not issued, so our grant of review was timely.

The duty of the court of appeals to issue mandate is suspended when a “timely . . . petition

for discretionary review has been filed.”19 The Kinney County Attorney timely filed a PDR. It

makes no difference whether he was authorized to do so. This Court can dismiss a PDR if it

determines that it was filed by someone unauthorized to do so. Until or unless that happens, the

pendency of a PDR prevents the court of appeals clerk from issuing mandate.20 And granting review

of issues on our own also suspends the mandate requirement.21

We have already granted review of two issues on our own. And though I conclude that the

Kinney County Attorney did not have the authority to file a PDR, we can accept an unauthorized

PDR as an amicus brief.22

C. Appellate Jurisdiction

Unlike this Court, a court of appeals cannot grant review of a case on its own motion. To

17
TEX. R. APP. P. 66.1.
18
Id. 67.1.
19
Id. 18.1(a)(1)(A).
20
In at least one context, we allow a party to suggest that we act on our own motion—to
reconsider a denial of relief in a habeas action. Ex parte Robertson, 603 S.W.3d 427, 428 (Tex.
Crim. App. 2020). A PDR filed by someone who does not in fact have the authority to file one could
be construed as a suggestion that we grant review on our own motion. In fact, the Kinney County
Attorney filed an explicit suggestion that we grant review on our own motion before it filed a PDR.
21
TEX. R. APP. P 18.1(a)(1)(C).
22
Taylor, 36 S.W.3d at 887.
CURIPOMA — 7

invoke a court of appeals’s jurisdiction, a party must file a timely notice of appeal.23 And when the

notice of appeal is filed by the State, the person purporting to represent the State must be authorized

to file it.24 In State v. Muller, we held that an assistant district attorney could not file a notice of

appeal on behalf of the State without express authorization from the elected district attorney to file

the specific notice of appeal.25 We further held that a defect in a notice of appeal caused by a failure

to obtain express authorization could not be cured after the time for filing the notice of appeal had

elapsed.26 The failure of the proper representative of the State to timely file the notice of appeal

deprived the court of appeals of jurisdiction to hear the merits of the appeal.27

Muller construed language in the statute that generally authorizes State appeals, more

specifically Article 44.01(d) and (i).28 Muller’s construction of Article 44.01 controls in the present

case because the State’s ability to appeal in a habeas case is entirely dependent on the right to appeal

conferred by Article 44.01.29

Article 44.01(d) provides:

23
Smith v. State, 559 S.W.3d 527, 531 (Tex. Crim. App. 2018); Guthrie-Nail v. State, 543
S.W.3d 225, 226 (Tex. Crim. App. 2018). See also State v. Hanson, 555 S.W.3d 578, 581 (Tex.
Crim. App. 2018) (“because the State filed a timely notice of appeal regarding that order, the court
of appeals has jurisdiction to hear the appeal”).
24
State v. Muller, 829 S.W.2d 805, 810-13 (Tex. Crim. App. 1992).
25
Id. at 812.
26
Id.
27
Id. at 812-13.
28
Id. at 810, 811 n.7 (discussing TEX. CODE CRIM. PROC. 44.01(d) and (i)).
29
State v. Garcia, 638 S.W.3d 679 (Tex. Crim. App. 2022) (State can appeal habeas relief
when the relief literally satisfies the conditions for appeal authorized by Art. 44.01).
CURIPOMA — 8

The prosecuting attorney may not make an appeal under Subsection (a) or (b) of this
article later than the 20th day after the date on which the order, ruling, or sentence to
be appealed is entered by the court.30

The Court construed the language in (d) to limit not only the time in which an appeal can be taken,

but who may take a State’s appeal: the “prosecuting attorney.”31 Article 44.01(i) defines

“prosecuting attorney” as follows:

the county attorney, district attorney, or criminal district attorney who has the
primary responsibility of prosecuting cases in the court hearing the case and does
not include an assistant prosecuting attorney.32

Muller addressed the part of the definition that makes only the elected prosecutor, not any assistants,

the “prosecuting attorney” for the purpose of filing a notice of appeal.33 The present case involves

another part of the definition in subsection (i)—the part that defines the “prosecuting attorney” as

the one “who has the primary responsibility of prosecuting cases in the court hearing the case.”

Under Article 2.01, “Each district attorney shall represent the State in all criminal cases in

the district courts of his district and in appeals therefrom.”34 Not only does this statute explicitly

30
TEX. CODE CRIM. PROC. art. 44.01(d).
31
Muller, 829 S.W.2d at 810.
32
TEX. CODE CRIM. PROC. art. 44.01(i) (emphasis added).
33
See Muller, 829 S.W.2d at 810.
34
TEX. CODE CRIM. PROC. art. 2.01. The Travis County District Attorney also cites a portion
of Art. 2.01 that confers broader authority on the district attorney to represent the State in habeas
proceedings arising in the district regardless of whether those proceedings are in district court:
“When any criminal proceeding is had . . . before a judge upon habeas corpus, and he is notified of
the same, and is at the time within his district, he shall represent the State therein.” Id. See Alvarez
v. Eighth Court of Appeals, 977 S.W.2d 590, 593 (Tex. Crim. App. 1998) (habeas action that
invalidated a municipal prosecution of a municipal ordinance). Because the current habeas action
was in district court, reliance on the habeas part of Art. 2.01 is unnecessary.
CURIPOMA — 9

confer the right to appeal on the district attorney for criminal cases in the district court of his district,

but it also makes the district attorney the “prosecuting attorney” for those cases under the definition

found in Article 44.01. The appeal in the present case is from a habeas action in Travis County

District Court, so the Travis County District Attorney was the “prosecuting attorney” with the sole

authority to represent the State on appeal. County Attorneys have some appellate authority under

Article 2.02,35 but that provision does not help the Kinney County Attorney here. Under Article

2.02, the County Attorney “shall represent the State in cases he has prosecuted which are

appealed.”36 But while the County Attorney may properly be said to be prosecuting the underlying

trespass case, this habeas action, though related to the trespass case, is a separate action from that

case.37 I conclude that the Kinney County Attorney had no authority to represent the State in an

appeal from Appellee’s habeas action, and so the Kinney County Attorney’s notice of appeal was

ineffective.

Before an appellate court can exert any power at all over the trial court, its appellate

jurisdiction has to have been properly invoked by a valid and timely notice of appeal.38 Because the

court of appeals’s jurisdiction was not properly invoked, that court was correct to dismiss the appeal.

And because jurisdiction is a threshold issue, I would affirm the court of appeals’s ultimately correct

resolution of the matter rather than remand for it to correct a mistake in legal reasoning that does not

35
TEX. CODE CRIM. PROC. art. 2.02.
36
Id.
37
See Cont’l Heritage Ins. Co. v. State, 683 S.W.3d 407, 416 (Tex. Crim. App. 2024) (“A
habeas corpus action is related to a criminal proceeding being attacked but is nevertheless considered
to be a separate action.”).
38
Woods v. State, 68 S.W.3d 667, 669 (Tex. Crim. App. 2002).
CURIPOMA — 10

affect whether its jurisdiction was properly invoked.

D. Response to the Concurrences

In a concurring opinion, Judge Yeary focuses on the meaning of the words “the case” in the

definition of “prosecuting attorney.” The concurrence contends that the words “the case,” in Article

44.01(i), must mean the criminal prosecution because Article 11.01 talks about the entity holding

the habeas applicant under custody or restraint and because the Kinney County Attorney is the entity

that is charged with prosecuting the habeas applicant. The concurrence suggests that local authorities

in Kinney County, not “the State of Texas per se,” are the proper parties. The concurrence also

contends that its view is consistent with a few of the subsections in Article 44.01(a) that address

situations that can occur only in criminal prosecutions, such as a ruling on a motion to suppress.39

But Article 11.02, titled “To Whom Directed,” says, “The writ runs in the name of ‘The State

of Texas.’”40 Although Articles 11.01 and 11.02 require that the writ be directed and addressed to

the entity holding the habeas applicant in custody to enable that entity to produce the applicant,41 that

entity is never the prosecuting attorney, and under the plain language of Article 44.01, such an entity,

(e.g., a local sheriff) has not been given authority to file a notice of appeal. Because the writ runs

in the name of the “State of Texas,” it is the State that is charged with litigating the writ and pursuing

any appeal. And under Article 44.01, only the “prosecuting attorney,” as defined by Article 44.01,

can file a notice of appeal as the State’s representative. Under the plain language of Article 44.01(i),

that is the district attorney, county attorney, or criminal district attorney with the primary

39
See TEX. CODE CRIM. PROC. art. 44.01(a)(5), (b), (c).
40
TEX. CODE CRIM. PROC. art. 11.02.
41
Id. arts. 11.01, 11.02.
CURIPOMA — 11

responsibility of prosecuting cases in the court hearing the case being appealed—here, the Travis

County District Attorney.

The concurrence’s proposed construction varies from a plain reading of Article 44.01(i) and

creates an inconsistency in how the word “court” is used in Article 44.01. Under Subsection (i), the

“prosecuting attorney” is defined as having the primary responsibility of prosecuting cases “in the

court hearing the case.”42 The plain import of the “hearing” language is to refer to the court hearing

and deciding the case being appealed—which in this case is the Travis County District Court, in

which the Travis County District attorney has the primary responsibility of prosecuting cases.

Moreover, Subsection (a), which is also at issue here, provides for an appeal, under certain

enumerated circumstances, of “an order of a court in a criminal case.”43 It is evident from reading

these provisions of Article 44.01, that the “court” in both of these subsections is the same court.

That is, the “court” that issues the order that is being appealed is also the “court” hearing the case.

But the concurrence’s construction would require that we read the word “court” in these two

subsections to refer to different courts (in this case, the Travis County district court and the Kinney

County court) in the same appeal. The concurrence would hold that the court that issues the order

is not the court that hears the case—a construction at odds with the plain reading of the statute.

Further, one subsection of Article 44.01(a) addresses a situation that does not occur in a

criminal prosecution (Chapter 64 motions),44 and other subsections address situations that do not

42
TEX. CODE CRIM. PROC. art. 44.01(i) (emphasis added).
43
Id. art. 44.01(a) (emphasis added).
44
See id. art. 44.01(a)(6); Skinner v. State, 305 S.W.3d 593, 594 (Tex. Crim. App. 2010)
(Because a Chapter 64 proceeding is filed after a conviction becomes final, a “criminal action”
arising from the criminal prosecution “no longer exists.”).
CURIPOMA — 12

have to occur in criminal prosecutions.45 A construction of the words “the case” to refer broadly to

any type of criminal case—including criminal prosecutions, habeas proceedings, and Chapter 64

proceedings—is entirely consistent.46

Judge Yeary’s concurrence also says that we should not allow the disturbing arrangement of

the facts in this case to distort our answers to the issues before us. I agree with that sentiment, which

is why I think we must give effect to the language of Article 44.01. The concurrence complains that

prosecutors should not be hamstrung from being able to protect their criminal prosecutions from

interference in foreign forums. But the concurrence acknowledges that that concern underlies our

recent holding in Smith,47 and Smith points to a solution: a writ of mandamus or prohibition to

compel a foreign trial court to dismiss a habeas action that should not be before it. In Smith, the

action was a writ of prohibition because the merits of the habeas action had not been decided, but

mandamus is a vehicle that can be used to undo an action performed if the trial court acts beyond the

clear scope of its lawful authority.48 The concurrence contends that Smith might still allow the filing

of a habeas application in a foreign court in an unusual situation. The extraordinarily slight

possibility that such an unusual circumstance might occur in the future is no reason to contravene

the plain language of Article 44.01, and in any event, the Legislature appears to have eliminated that

45
See id. art. 44.01(a)(1)-(4); Alvarez, 977 S.W.2d at 593 (“[T]he types of orders described
in Art. 44.01(a) do not limit the State’s appeal to orders entered by a court exercising original
jurisdiction,” even though those types of orders are “typically” entered by such courts.).
46
It also matches the language “criminal case” found in Art. 44.01(a).
47
In re Smith, 665 S.W.3d 449 (Tex. Crim. App. 2022).
48
In re State ex rel. Wice, 668 S.W.3d 662, 671 (Tex. Crim. App. 2023).
CURIPOMA — 13

possibility in a recent amendment to Article 11.06.49

Judge Slaughter’s concurring opinion says an appellate court could dismiss the appeal but

declare the Travis County District Court’s order void. But, as I explained earlier, for an appellate

court to be able to exert any power at all over the trial court, its appellate jurisdiction has to have

been properly invoked by a valid and timely notice of appeal. Otherwise, all it can do is dismiss the

appeal; it can do nothing else. None of the cases relied on by the concurrence show otherwise. In

fact, State v. Rodriguez-Gomez, one of the cases relied upon by the concurrence, makes that very

point.50 The court there addressed two appeals, holding that the State’s notice of appeal was timely

in one but not the other.51 For the appeal where the notice of appeal was untimely, the court of

appeals held it had no choice but to dismiss the appeal and do nothing else,52 but for the appeal with

49
After amendment in 2023, Article 11.06 now reads in pertinent part:

(a) If the applicant has not been formally charged by indictment or information,
the writ must be made returnable to the county in which:

(1) the applicant is confined to the custody of the sheriff or other authority;

(2) the applicant is alleged, by any means including the issuance of a warrant for
the applicant's arrest or the applicant's arrest pursuant to Chapter 14, to have
committed a criminal offense that provides the basis for the restraint from which
the application seeks relief; or

(3) if neither Subdivision (1) nor (2) applies, the action imposing a restraint on
the applicant's liberty occurred.

TEX. CODE CRIM. PROC. art. 11.06(a).
50
___ S.W.3d ___, 2024 WL 590425, (Tex. App.—San Antonio February 14, 2024).
51
Id. at *2-3.
52
Id. at *2-3 (“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
CURIPOMA — 14

the timely notice, the court of appeals held it had jurisdiction to further consider whether the trial-

level court had jurisdiction.53

Judge Slaughter’s concurrence says that the statutes conferring prosecutorial authority to

appeal do not directly apply to a situation in which criminal charges are properly filed in one county

and the defendant seeks to collaterally attack those charges in another county without a good legal

basis for doing so and where the local prosecutor has no interest in the case. But statutory language

requires the prosecutor who files the notice of appeal to be the one with primary responsibility of

prosecuting cases in the court that issues the order being appealed, and we are bound by that

language. And we have addressed a situation in which a habeas action has been filed in a court

different from the court in which the criminal prosecution was pending, and we have held that the

prosecutor authorized by statute to act in the habeas court (though different from the one in charge

of the criminal prosecution) was the proper person to represent the State on appeal.54 Judge

Slaughter’s concurrence also contends that an appellate court can simply hold that the Kinney

County Attorney’s notice of appeal invoked appellate jurisdiction for a limited purpose. But if the

notice of appeal is not filed by the proper party, then appellate jurisdiction is not invoked for any

and we have no power to act other than to dismiss the appeal.”).
53
Id. at *3 (“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.”).
54
Alvarez, 977 S.W.2d at 591, 593 (prosecution in municipal court; district attorney, not city
attorney, had authority to represent the State in appeal from a habeas action filed in a county court
at law) .
CURIPOMA — 15

purpose. We cannot create appellate jurisdiction that the legislature has not conferred.55

I respectfully dissent.

Filed: June 26, 2024
Publish

55
Judge Slaughter’s concurrence also suggests that the court of appeals could treat an appeal
as a mandamus application upon the appealing party’s request. That sort of claim is outside our
discretionary review jurisdiction, Dickens v. Court of Appeals, 727 S.W.2d 542, 549 (Tex. Crim.
App. 1987) (“there is no remedy via petition for discretionary review from an adverse ruling in an
original mandamus proceeding”), and no one has filed a mandamus application with us in this case,
so I express no opinion on the matter.