CURIPOMA, JESUS ALBERTO GUZMAN v. the State of Texas

In the Court of Criminal
Appeals of Texas
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No. PD-0159-22
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EX PARTE JESUS ALBERTO GUZMAN CURIPOMA,
Appellee
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On Petition from the Kinney County Attorney
And on the Court’s Own Motion for Discretionary Review
From the Third Court of Appeals
Travis County
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YEARY, J., filed a concurring opinion.

It is always appropriate for courts to ascertain who are the proper
parties to litigation. But, in my view, the dissent gets the answer to that
question wrong, and it falls apart from there. The dissent says: “The
State is a party in this case, so the question becomes who has the
authority to represent the State in filing a PDR.” Dissenting Opinion at
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4. The dissent also says that “the Travis County District Attorney was
the ‘prosecuting attorney’ with the sole authority to represent the State
on appeal.” Id. at 9. These statements suggest an underlying assumption
that “the State” is a party in these habeas proceedings, and that, because
the Travis County District Attorney is the elected attorney
constitutionally authorized to represent “the State” in cases filed in the
trial courts of his county, only the Travis County District Attorney was
authorized to oppose Appellee in these proceedings and on appeal from
them. But that is just wrong.
The applicable statutory law must always be examined. And after
examining our controlling statutory law, it is evident to me that the
dissent improperly excludes the only elected prosecutor—the only
“prosecuting attorney”—with an interest in these proceedings from any
power to defend his action. I will endeavor to explain.
I. ARTICLE 11.01, CODE OF CRIMINAL PROCEDURE
Let us begin with the language of Article 11.01 of our Code of
Criminal Procedure. Article 11.01 establishes what a writ of habeas
corpus is:
It is an order issued by a court or judge of competent
jurisdiction, directed to any one having a person in his
custody, or under his restraint, commanding him to
produce such person, at a time and place named in the writ,
and show why he is held in custody or under restraint.

TEX. CODE CRIM. PROC. art. 11.01 (emphasis added). This statute makes
clear that whoever has a person “in his custody or under restraint” is a
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party to habeas litigation. 1 In some cases the person who has another
person “in his custody or under restraint” might be the State, but that
is not necessarily aways the case. Because Appellee in this case was
being held by authorities in Kinney County pending trial or resolution
of the charges against him, those authorities were the necessary parties
to his pre-trial application for the writ of habeas corpus. Id.
The dissent disagrees. But its position is belied by the plain and
unambiguous language of Article 11.01. Appellee was held in custody or
restraint, not by the State of Texas per se, or by authorities from Travis
County, but by local authorities in Kinney County. It is they, the Kinney
County authorities, who must answer for Appellee’s detention, restraint,
and prosecution.
During the entire pendency of Appellee’s pre-trial detention or
restraint, including during the proceedings on his pre-trial application
for the writ of habeas corpus filed in Travis County, it was the Kinney
County authorities (who undoubtedly exercise the power of a political
subdivision of the state distinct from the Travis County District
Attorney) who held or restrained him. The writ issued by the trial court
in this case, pursuant to the plain language of Article 11.01, was
required to order the authorities from Kinney County to produce
Appellee and answer “why he [was] held in custody or under restraint.”
TEX. CODE CRIM. PROC. art. 11.01. This was true even if the trial court
that issued the writ was located far away from Kinney County. Id. The

1 See Party, BLACK’S LAW DICTIONARY (11th ed. 2019) 1350−51 (“2. One

by or against whom a lawsuit is brought; anyone who is both directly interested
in a lawsuit and has a right to control the proceedings, make a defense, or
appeal from an adverse judgment[.]”).
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dissent concludes differently, and so I respectfully offer my own view on
the subject.
II. WHO IS AUTHORIZED BY ARTICLE 44.01
TO BRING A STATE’S APPEAL

After failing to acknowledge the plain and unambiguous language
in Article 11.01, the dissent then compounds the problem when it
concludes that “the Kinney County Attorney had no authority to
represent the State in an appeal from Appellee’s habeas action[.]”
Dissenting Opinion at 9. Attempting to explain why it draws that
conclusion, the dissent focuses on Article 44.01, which makes clear that
it is only the “prosecuting attorney” who holds the State’s authority to
appeal in Texas criminal cases. Specifically, the Court points to
Subsection (d) of Article 44.01, which provides:
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.

TEX. CODE CRIM. PROC. art. 44.01(d) (emphasis added); Dissenting
Opinion at 8. The dissent then focuses on the definition of “prosecuting
attorney” found in Subsection (i) of that article. Dissenting Opinion at
8–9. Subsection (i) provides that, “[i]n this article, ‘prosecuting attorney’
means”:
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.

TEX. CODE CRIM. PROC. art. 44.01(i) (emphasis added).
After examining these provisions of Article 44.01, the dissent
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concludes that, because “[t]he appeal in the present case is from a habeas
action in Travis County District Court,” the “Travis County District
Attorney [is] the ‘prosecuting attorney’ with the sole authority to
represent the State on appeal.” Dissenting Opinion at 9 (emphasis
added). But I am persuaded that the dissent misperceives both the
language in Article 44.01(i) and the limited breadth of the State’s Article
44.01-authorized right of appeal.
Article 44.01 provides a limited right of appeal for the State. TEX.
CODE CRIM. PROC. art. 44.01. In Subsection (i) of that article, the
Legislature specifically identifies the person who is authorized to take
those limited appeals. That person is the “prosecuting attorney.” Our
law says that he is the person “who has the primary responsibility of
prosecuting cases in the court hearing the case.” TEX. CODE CRIM. PROC.
art. 44.01(i) (emphasis added). Focusing on that text then, the question
which we must answer is what “case” is “the case” to which Article
44.01(i) refers? Does “the case” include a pre-trial application for a writ
of habeas corpus, even when that proceeding is filed by an applicant in
a court in a county foreign to the one in which the applicant is charged,
in an attempt to defeat his own ongoing prosecution outside the reach of
the elected attorney prosecuting him? The dissent concludes that it does.
In the dissent’s view, “[t]he case” in Article 44.01(i), refers to the
application for writ of habeas corpus case that Appellee filed in Travis
County. Dissenting Opinion at 8–10. But Article 44.01 does not speak to
a right of appeal in relation to a pre-trial application for the writ of
habeas corpus. In fact, it does not mention habeas corpus other than
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with respect to Article 11.072, which is not applicable here. 2 Nor does it
grant “the State” a general right to appeal from any conceivable adverse
orders that may arise in pre-trial habeas corpus proceedings. It only
grants “the State” specific authorization to appeal from orders that
“meet[] specified requisites in [their] effect” or “results[.]” See Alvarez v.
Eighth Court of Appeals, 977 S.W.2d 590, 593 (Tex. Crim. App. 1998)
(“[I]f the granting of relief by a habeas corpus court results in one of the
enumerated situations within Art. 44.01(a), the State may appeal[.]”).
Stated another way, it is not the existence of an adverse order in
some pre-trial habeas proceeding that Article 44.01(a) gives the State a
right to appeal from. It is the “effect” or “results” of an order granting
habeas relief that may or may not make such an order appealable. And
the “effect” or “result” of the Travis County District Court’s order in this
case is to compel the dismissal of a criminal case, but not any criminal
case then pending in Travis County. The dismissal is ordered to take
place “in Kinney County, Texas”!
That dismissal, whenever it happens or happened, will have its
effect on a case then pending in the Kinney County Court, where the
constitutionally authorized representative of the State is the Kinney
County Attorney, not the Travis County District Attorney. It is the
dismissal of that prosecution in Kinney County that Article 44.01(a)
permits the State to appeal. Logically, this must mean that the Kinney
County Attorney is the proper representative of the State—the

2 The application filed in this case appears to be filed pursuant to Article

11.09, which authorizes pre-trial applications for the writ in misdemeanor
cases. TEX. CODE CRIM. PROC. art. 11.09.
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“prosecuting attorney”—with the authority to appeal the order. TEX.
CONST. art. V, § 21 (authorizing a County Attorney to “represent the
state” in the trial courts in his county).
Even though this Court already essentially prohibited the kind of
out-of-county writ practice at issue here, in In re Smith, 665 S.W.3d 449
(Tex. Crim. App. 2022), it acknowledged that an out-of-county writ
application might still be authorized in some circumstances.
Specifically, the Court referred to cases in which there is “a truly
catastrophic event” or if venue is transferred. Id. at 457. The Court did
not exclude the possibility that it also might be appropriate in other
cases as well. But in those circumstances, going forward, the dissenting
opinion in this case would counsel that the foreign County or District
Attorney should “represent the State” in those habeas proceedings, even
though the results of those proceedings will ultimately affect only
proceedings in the counties where the challenged charges are pending.
That is a mistake, and this case proves it.
Cases like this should remind the Court that, in this big state, it
is not at all unusual to find elected County and District Attorneys from
different counties who are adverse to one another with regard to the
desirability of certain kinds of prosecutions. This reality should also
illuminate the Court’s understanding of the words “the case” in Article
44.01(i). Let’s face it. In the real world, the Travis County District
Attorney may be the only attorney constitutionally authorized to
represent “the State” in the trial courts of his own county, but he has no
vested interest in preserving the Kinney County Attorney’s right to
continue prosecuting Appellee and similarly charged individuals. And
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with regard to those cases pending in Kinney County, there is no way in
which the Travis County District Attorney could properly be considered
a “prosecuting attorney.” The only way in which Article 44.01(i) works
to identify a real “prosecuting attorney” with an actual legislatively
granted interest in appealing is if its reference to “the case” means the
case in which there actually is a “prosecuting attorney.” And once we
acknowledge that the Kinney County case is “the case” from which
Article 44.01 authorizes an appeal, it is clear that only the Kinney
County Attorney is a “prosecuting attorney” with a statutory right to
appeal the order issued by the District Court in this case.
This interpretation of “the case” is bolstered by the fact that it
also synchronizes the meaning of “the case” and “a case” as used
elsewhere in the statute. Article 44.01(a)(5) permits the State to appeal
an order that “grants a motion to suppress evidence, a confession, or an
admission, if jeopardy has not attached” and “if the prosecuting attorney
certifies” that “the evidence, confession, or admission is of substantial
importance in the case.” TEX. CODE CRIM. PROC. art. 44.01(a)(5)
(emphasis added). Article 44.01(b) gives the State the authority to
appeal “a sentence in a case on the ground that the sentence is illegal.”
Id. art. 44.01(b) (emphasis added). Article 44.01(c) gives the State the
authority “to appeal a ruling on a question of law if the defendant is
convicted in the case and appeals the judgment.” Id. art. 44.01(c)
(emphasis added). Read contextually, all of these uses of the phrase “the
case” or “a case” in the statute refer to the criminal prosecution itself,
not to an ancillary proceeding like a pre-trial application for a writ of
habeas corpus.
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No provision in Article 44.01, other than 44.01(k) 3—which, again,
is not applicable here—expressly permits the State to “appeal an order
granting relief to an applicant for a writ of habeas corpus[.]” TEX. CODE
CRIM. PROC. art. 44.01(k). At the same time, the State only has the
limited authority to appeal provided for by Article 44.01. Pfeiffer v. State,
363 S.W.3d 594, 599–600 (2012) (“In 1987, the State obtained a limited
right to appeal certain trial-court orders and rulings when the Texas
Legislature enacted Article 44.01 of the Texas Code of Criminal
Procedure. The State’s right to appeal was limited to the specific
circumstances set forth in Article 44.01 and only as provided by the
procedure set out in the statute.”). And those appeals may only take
place to challenge the effect of an order on “the case” that is the
underlying prosecution. See TEX. CODE CRIM. PROC. art. 44.01. 4
Ordinarily, the District Attorney of Travis County would have no
interest in an appeal from the dismissal of a prosecution ongoing in
another county, unless he had been appointed attorney pro-tem because

3 “The state is entitled to appeal an order granting relief to an applicant

for a writ of habeas corpus under Article 11.072.” TEX. CODE CRIM. PROC. art.
44.01(k).

4 The dissent points out that Article 44.01(a)(6) authorizes an appeal

from an order of a court in a criminal case if the order is issued under Chapter
64 of the Code of Criminal Procedure. Dissenting Opinion at 11–12. It is true
that such an order does not ordinarily issue in the course of a prosecution, but
neither does Article 44.01 directly authorize an appeal generally from any
adverse rulings entered in pre-trial habeas corpus proceedings. What it does
permit is a State’s appeal of an order that produces certain specific effects on
a pending prosecution. TEX. CODE CRIM. PROC. art. 44.01(a).
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the local elected prosecutor was recused or disqualified. 5 The
prosecution in this case was brought in Kinney County, by Kinney
County prosecutors, and if a charging instrument was dismissed, the
dismissal was effective only in Kinney County, not in Travis County.
The attorney “who has the primary responsibility of prosecuting cases
in the court hearing the case” is the Kinney County Attorney, not the
Travis County District Attorney. I conclude, therefore, that the Kinney
County Attorney is the only attorney authorized by our law to pursue an
appeal from the dismissal order in this case, and I would not approve
the dismissal of Kinney County’s appeal as the dissent would.
Stated another way, because the dismissal of the prosecution
happened or would happen in Kinney County, the Kinney County
Attorney must be the representative of the State who is permitted to
take any appeal. See TEX. CODE CRIM. PROC. art. 44.01(a)(1) (“The state
is entitled to appeal an order of a court in a criminal case if the order . .
. dismisses an indictment, information, or complaint or any portion of

5 Article 2A.104(b) of the Code of Criminal Procedure provides:

If an attorney representing the state is disqualified to act in any
case or proceeding, is absent from the county or district, or is
otherwise unable to perform the duties of the attorney’s office,
or if there is no attorney representing the state, the judge of the
court in which the attorney represents the state may appoint to
perform the duties of the attorney’s office during the attorney’s
absence or disqualification:

(1) an attorney representing the state from any county or
district; or

(2) an assistant attorney general.

TEX. CODE CRIM. PROC. art. 2A.104(b).
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an indictment, information, or complaint[.]”). In fact, and I will elaborate
on this more in Part III of this opinion, it would be incumbent upon him
to do so to continue his constitutionally authorized representation of the
State in his own county. TEX. CONST. art. V, § 21. The Travis County
District Attorney, having seen no appealable effect or result on any
prosecutions pending in his own county, would have no right to
represent the State on any appeal.
III. THE TEXAS CONSTITUTION
Finally, but as a matter of ultimate importance, there is the
guidance provided by our own Texas Constitution. Our state
constitution places the primary responsibility to “represent the state” in
our local trial courts upon locally elected attorneys. TEX. CONST. art. V,
§ 21. But this constitutionally established and electorally delegated
responsibility of locally elected prosecutors is meaningless if it does not
also entail the co-extensive authority to appear in proceedings—even
those initiated and occurring in courts outside of their own home
counties—to preserve their authority to represent the State according to
their own lights in cases pending in the courts of their home county.
Having been delegated the responsibility to represent the State in the
trial courts of their own counties, these locally elected prosecutors
cannot, at the same time, be expected or required to sit idly by while
defendants, whom they have otherwise lawfully accused of a crime,
attack their ability to prosecute, in foreign forums, where the locally
elected prosecutors are not permitted to appear. Of what use then would
be the constitutional authority to represent the State in their own
county if the defendant in a prosecution can simply find a friendly
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county, with friendly courts and friendly prosecutors, to thwart that
power from a place where the locally elected prosecuting attorney cannot
go? If for no other reason, our constitution’s requirement that a locally
elected prosecutor represent the State in the trial courts of his or her
own county must also at least afford a concomitant authority for that
same prosecutor to appear in a court in another county, when necessary,
to defend his or her own constitutional representation mandate.
Unquestionably, Appellee attempted to invoke the jurisdiction of
a Travis County district court over his habeas application to thwart his
prosecution in Kinney County. While the Travis County District
Attorney has his own constitutional responsibility to “represent the
State” in the trial courts of Travis County, the Kinney County Attorney
must also not be denied the authority to appear and represent his own
county and county officials, as well as the State, even in a foreign county,
when the proceedings there directly threaten his own authority to
prosecute a defendant in proceedings initiated in his home county. The
dissent is wrong to conclude otherwise.
IV. CONCLUSION
The whole pursuit of this out-of-county application for habeas
corpus relief was both an ill-conceived and an ill-fated adventure that
should never have been attempted. Perhaps that is one of the reasons
why, in a different case, on mandamus, this Court recently decided that
such an enterprise could not be tolerated. In re Smith, 665 S.W.3d at
461. But I would not allow the unique and disturbing arrangement of
facts present here to distort the answers to (1) who is the proper elected
attorney responsible for all aspects of the prosecution of a criminal case,
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(2) who may enter a proper appearance in court to put an errant foreign
trial court on notice that it should not erroneously attempt to exercise
authority to interfere with a prosecution in a different county, and (3)
who may undertake any appeal that might be needed in order to rescue
such a case from an arguably unauthorized or illegal dismissal order.
The correct answer to each of these questions is the elected attorney who
initiated, and is attempting to pursue, the prosecution of the
defendant/habeas-applicant and not the prosecutor in a foreign
jurisdiction where the defendant chose to file an application for habeas
relief.

FILED: June 26, 2024
PUBLISH