Ex Parte Ismael Juarez-Rico v. .

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-23-00326-CR

EX PARTE Ismael JUAREZ-RICO

From the County Court, Jim Hogg County, Texas
Trial Court No. 1033C
Honorable Greg Perkes, Judge Presiding

PER CURIAM

Sitting: Irene Rios, Justice
Adrian A. Spears II, Justice
H. Todd McCray, Justice

Delivered and Filed: November 19, 2025

DISMISSED AS MOOT

This appeal arises from the trial court’s denial of Appellant Ismael Juarez-Rico’s

application for writ of habeas corpus. We dismiss the appeal as moot.

BACKGROUND

Appellant was charged with criminal trespass. See TEX. PEN. CODE ANN. § 30.05. While

the case was pending in the trial court, Appellant filed an application for writ of habeas corpus,

requesting that the trial court “grant him relief by discharging him and dismissing the charge with
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prejudice.” 1 Appellant asserted two claims in his habeas application, but only his claim for

selective prosecution is relevant to this appeal. In February 2023, the trial court denied Appellant

habeas relief in a written order, and Appellant timely appealed in March 2023. In April 2023,

however, Appellant entered into a plea agreement with the State in his underlying criminal case.

In accordance with the plea agreement, Appellant pleaded no contest to the Class B misdemeanor

offense of criminal trespass and waived his right to appeal. See id. § 30.05(d)(1). The trial court

accepted Appellant’s plea, found him guilty, and sentenced him to 10 days’ confinement in the

Jim Hogg county jail with 10 days’ credit for time served.

In light of the resolution of the underlying criminal case, we issued an order noting that

this habeas appeal appears to be moot and requiring Appellant to show how this appeal is not

moot. 2 Appellant responded, conceding that the cases we cited “stand for the general proposition

that an adjudication of guilt renders a pretrial habeas application moot.” However, Appellant

asserted that his claim for selective prosecution entitled him to an exception to this general rule for

“claims made in pretrial habeas that ‘purport[ ] to undermine the validity of the conviction’ and

that cannot be raised on direct appeal.” (quoting Kniatt v. State, 206 S.W.3d 657, 665 (Tex. Crim.

App. 2006) (Keller, P.J., concurring)).

DISCUSSION

Appellant relies almost exclusively on Kniatt, so we discuss it in some detail before

distinguishing it.

1
The criminal charge was pending under cause number 5877, and the habeas proceeding was assigned cause number
1033C. See Ex parte Sheffield, 685 S.W.3d 86, 100 (Tex. Crim. App. 2023) (“[A] habeas proceeding is a separate
proceeding from a criminal prosecution.”).
2
In our order we cited Ex parte Taylor, No. 05-23-00410-CR, 2023 WL 6532496, at *1 (Tex. App.—Dallas Oct. 6,
2023, no pet.) (mem. op., not designated for publication); Ex parte Joyner, No. 14-11-00775-CR, 2011 WL 5554517,
at *1 (Tex. App.—Houston [14th Dist.] Nov. 15, 2011, no pet.) (mem. op., not designated for publication); Hubbard
v. State, 841 S.W.2d 33, 33 (Tex. App.—Houston [14th Dist.] 1992, no pet.); Bennet v. State, 818 S.W.2d 199, 200
(Tex. App.—Houston [14th Dist.] 1991, no pet.); and Saucedo v. State, 795 S.W.2d 8, 9 (Tex. App.—Houston [14th
Dist.] 1990, no pet.).

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In Kniatt, the defendant, Nathan Kniatt, entered a plea of guilty pursuant to a plea bargain.

Id. at 659–60. The trial court, in accordance with the plea, deferred an adjudication of Kniatt’s

guilt, placed him on community supervision for three years, and fined him $3,000. Id. at 660. Less

than two years later, the State filed a motion to proceed with an adjudication of guilt, and Kniatt

filed a pre-conviction application for writ of habeas corpus, pursuant to Article 11.08 of the Texas

Code of Criminal Procedure. Id. 3 When both the State’s motion to adjudicate guilt and Kniatt’s

habeas application were pending, the trial court first adjudicated guilt and assessed a punishment

of 200 days’ confinement and a $3,000 fine. Id. Two weeks later, the trial court denied Kniatt’s

habeas application on the merits. Id. at 662. On appeal, the State argued that the trial court lacked

jurisdiction to hear Kniatt’s pre-conviction application because the trial court had already

adjudicated guilt. id. at 663. The Court of Criminal Appeals held that “the trial court in this case

did not lose jurisdiction to hear appellant’s pre-conviction application once that court adjudicated

him guilty” because “the jurisdiction of a court to consider an application for writ of habeas corpus

is determined at the time the application is filed.” Id. at 663–64.

Presiding Judge Keller joined the majority and wrote separately to distinguish cases that

the State had relied upon on the basis that those cases addressed “not jurisdiction, but the doctrine

of mootness.” Id. at 665 (Keller, P.J., concurring). 4 According to Presiding Judge Keller:

[Kniatt] differs from these mootness cases. . . . Essentially, these types of claims
[in the distinguished cases] apply only at certain stages of the prosecution, and they
disappear once the prosecution progresses past the stage in question. By contrast,
the habeas claim in the present case purports to undermine the validity of the
conviction, and so does not disappear after conviction like complaints regarding
probable cause or bail.

3
Article 11.08 concerns pre-conviction writs of habeas corpus in felony cases. See TEX. CODE CRIM. PRO. ANN. art.
11.08. \ In contrast, Article 11.07 concerns post-conviction writs of habeas corpus in non-capital felony cases. See id.
art. 11.07 § 1. This distinction is relevant in Kniatt, but not for Appellant.
4
Distinguishing Ex parte Branch, 553 S.W.2d 380 (Tex. Crim. App. 1977); Martinez v. State, 826 S.W.2d 620 (Tex.
Crim. App. 1992); Saucedo v. State (795 S.W.2d 8 (Tex. App.—Houston [14th Dist.] 1990, no pet.); and Hubbard v.
State, 841 S.W.2d 33 (Tex. App.—Houston [14th Dist.] 1992, no pet.))

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Id. (footnotes omitted). After distinguishing additional claims that could be raised in direct appeals,

Presiding Judge Keller remarked that for Kniatt:

The only other avenue for raising appellant’s claim would be a post-conviction
application for a writ of habeas corpus. If the choice is simply between habeas
proceedings now and habeas proceedings later, the availability of those later
proceedings cannot really be said to render the timely-filed pre-conviction habeas
proceedings moot.

Id. at 65–66.

From this precedent, Appellant argues:

The logic of Kniatt and [Presiding] Judge Keller’s concurrence applies squarely to
[Appellant]’s case. [Appellant] filed [a] pretrial habeas application before he
pleaded guilty, meaning the trial court had jurisdiction over it. Additionally, his
claim of selective-prosecution claim [sic] is one that, if successful, would
undermine the validity of his conviction. See Ex parte Aparicio, 672 S.W.3d 696,
711 (Tex. App.—San Antonio, 2023, pet. granted) (en banc) (“Thus, if Aparicio’s
selective-prosecution claim on the basis of equal protection has merit, any
conviction resulting from a trial would be void, and he would be entitled to
release.”).[5] Finally, [Appellant] cannot raise [a] selective-prosecution claim on
appeal, as the judgment in his criminal case notes that he waived the right to appeal.
...

Regardless of whether Appellant is right about any of these matters, Kniatt offers little

guidance on — and Appellant has not addressed — the dispositive question of mootness in this

appeal: whether Appellant remains restrained in any way after his criminal conviction. In contrast,

Kniatt was subject to incarceration for 200 days and a $3,000 fine after his conviction, and neither

the majority nor concurring opinions in Kniatt discussed whether Kniatt remained restrained after

his conviction. See Kniatt, S.W.3d at 660. Here, the matter of Appellant’s restraint after conviction

is not apparent. 6

5
The Court of Criminal Appeals reversed our decision in Aparicio after Appellant filed his response, but it did so on
other grounds. See Ex parte Aparicio, 707 S.W.3d 189, 202, 210 (Tex. Crim. App. 2024).
6
To be clear, Appellant’s selective-prosecution claim also raises the mootness concern that Presiding Judge Keller
discussed in Kniatt, i.e., whether the habeas claim applies only at a pre-conviction stage of the prosecution, such that
it disappears after conviction. See Kniatt, 206 S.W.3d 665. However, we do not resolve that question as it applies to
Appellant’s selective-prosecution claim because he has failed to show any restraint following his conviction, and for
that independent reason his appeal is moot.

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Texas Code of Criminal Procedure Article 11.01 provides, “The writ of habeas corpus is

the remedy to be used when any person is restrained in his liberty.” TEX. CODE CRIM. PRO. ANN.

art. 11.01. 7 Whether an applicant is being restrained is a threshold question. Ex parte Kleinman,

No. PD-0966-24, 2025 WL 2169102, at *2 (Tex. Crim. App. July 30, 2025); Ex parte Schmidt,

109 S.W.3d 480, 481 (Tex. Crim. App. 2003). “Restraint,” means “the kind of control which one

person exercises over another, not to confine him within certain limits, but to subject him to the

general authority and power of the person claiming such right.” TEX. CODE CRIM. PRO. ANN. art.

11.22. “[A]ny character or kind of restraint that precludes the absolute and perfect freedom of

action on the part of relator authorizes such relator to make application . . . for release from said

restraint.” Kleinman, 2025 WL 2169102, at *3 (quoting Ex parte Snodgrass, 43 Tex. Crim. 359,

362, 65 S.W. 1061, 1062 (1901)). Beyond physical restraint, “the collateral consequences of a

conviction may operate as a restraint of liberty. . . .” Id. at *7; see also Ex parte Valdez, 489 S.W.3d

462, 463–64 (Tex. Crim. App. 2016); Schmidt, 109 S.W.3d at 483. Our sister courts have

determined that collateral consequences from a misdemeanor conviction that could amount to

“restraint” include exclusion from police or military service, see Ex parte Davis, 748 S.W.2d 555,

557 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d), the use of a conviction to enhance

punishment in another case, see Ex parte Reyna, 435 S.W.3d 276, 278 (Tex. App.—Waco 2014,

no pet.), and the “detention and potential deportation” of a writ applicant “based solely on” the

applicant’s misdemeanor convictions, see Phuong Anh Thi Le v. State, 300 S.W.3d 324, 326 (Tex.

App.—Houston [14th Dist.] 2009, no pet.).

7
In 2023, the Legislature amended several articles in Chapter 11 of the Code of Criminal Procedure but specified that
the amendments would apply only to applications for writ of habeas corpus filed on or after September 1, 2023. See
Act of May 29, 2023, 88th Leg. R.S., ch. 933, §§ 5, 21, 22, 2023 Tex. Sess. Law Serv. ch. 933 (S.B. 1516). Because
Appellant’s habeas application was filed before that effective date, we apply the law that was in effect immediately
before the amendments.

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Here, Appellant is not currently physically confined. His judgment sentenced him to ten

days’ confinement in the Jim Hogg County Jail, crediting him with ten days of time served. The

judgment does not impose a fine. Cf. Kleinman, 2025 WL 2169102, at *8 (not reaching question

of whether a post-conviction fine alone could amount to restraint for purposes of Chapter 11).

Appellant did not specifically allege any confinement in his habeas application. Cf. TEX. CODE

CRIM. PRO. ANN. arts. 11.09, 11.21. He alleged restraint in his habeas application based only on a

pre-trial bond, asserting in his application, “[Appellant] remains on bond pending trial, and thus

the State restrains his liberty.” He requested the trial court to “discharge him from his lone bond

condition — that he appear in court — which is the lone restriction on his liberty.” Appellant has

not suggested that his pre-trial bond imposes any post-conviction restraint. Cf. Bennet v. State, 818

S.W.2d 199, 200 (Tex. App.—Houston [14th Dist.] 1991, no pet.) (holding habeas appeal

challenging denial of request for bond reduction was moot after applicant was legally confined

pursuant to a guilty verdict in the underlying criminal case). Additionally, Appellant does not

assert any collateral consequences from his misdemeanor conviction, either in his habeas

application or in appellate briefing. Cf. TEX. CODE CRIM. PRO. ANN. arts. 11.05, 11.09; Kleinman,

2025 WL 2169102, at *7; Valdez, 489 S.W.3d at 463–64. Nor does he argue an exception to

mootness. See Pharris v. State, 165 S.W.3d 681, 688 (Tex. Crim. App. 2005) (acknowledging an

exception to mootness for a claim that is “capable of repetition, yet evading review”).

Under these circumstances, we hold that this appeal is moot because Appellant has not

identified any current restraint imposed upon him. See TEX. CODE CRIM. PRO. ANN. arts. 11.01,

11.22; cf. Ex parte Horton, 305 S.W.3d 200, 202 (Tex. App.—Waco 2009, pet. ref’d) (holding

habeas appeal moot where application challenged the validity of a capias under which applicant

had been held before a revocation hearing because, after the hearing, he was no longer being held

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on the capias but was held on the court’s revocation judgment). Consequently, we dismiss this

appeal as moot. See Martinez v. State, 826 S.W.2d 620 (Tex. Crim. App. 1992) (dismissing petition

for discretionary review where the applicant’s habeas petition was moot); Ex parte Guerrero, 99

S.W.3d 852, 853 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (per curiam) (“The longstanding

rule in Texas regarding habeas corpus is that where the premise of a habeas corpus application is

destroyed by subsequent developments, the legal issues raised thereunder are moot.”) (citations

omitted).

PER CURIAM

DO NOT PUBLISH

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