Fourth Court of Appeals

San Antonio, Texas

OPINION

No. 04-23-00156-CR

The STATE of Texas,

Appellant

v.

Jonathan COLIN-TAPIO,

Appellee

From the County Court at Law No. 1, Webb County, Texas

Trial Court No. 2022CRB000752L1

Honorable Leticia Martinez, Judge Presiding

Opinion by: Lori I. Valenzuela, Justice

Sitting: Patricia O. Alvarez, Justice

Beth Watkins, Justice

Lori I. Valenzuela, Justice

Delivered and Filed: September 20, 2023

REVERSED AND REMANDED

The State appeals the trial court’s order granting Jonathan Colin-Tapio habeas relief. We 

reverse and remand for further proceedings consistent with our opinion.

BACKGROUND

As part of Operation Lone Star, Jonathan Colin-Tapio, a noncitizen, was arrested for 

trespassing on private property in Webb County. He filed an application for writ of habeas corpus 

seeking dismissal of the criminal charge on Fourth Amendment grounds. Specifically, Colin-Tapio 

argued the State lacked probable cause to arrest him for criminal trespass. At an evidentiary
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hearing, Colin-Tapio presented evidence that the location of his arrest was not fenced-in. The trial 

court granted his requested relief. The State appeals.

COGNIZABILITY

“The writ of habeas corpus is an extraordinary writ. Neither a trial court nor an appellate 

court should entertain an application for writ of habeas corpus when there is an adequate remedy 

by appeal.” Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001). Whether a claim is 

cognizable on pretrial habeas is a threshold issue that we must address first. See Ex parte 

Dominguez Ortiz, 668 S.W.3d 126, 132 (Tex. App.—San Antonio 2023, no pet.).

Pretrial habeas corpus is available “only in very limited circumstances.” Ex parte Sheffield, 

No. PD-1102-20, 2023 WL 4092747, at *5 (Tex. Crim. App. June 21, 2023); Ex parte Perry, 483 

S.W.3d 884, 896 (Tex. Crim. App. 2016). As-applied challenges are generally not cognizable. 

Sheffield, 2023 WL 4092747, at *6. However, certain types of as-applied challenges may be raised 

by pretrial habeas where the rights underlying those claims would be effectively undermined if not 

vindicated before trial. Id. at *7; Perry, 483 S.W.3d at 896.

Colin-Tapio’s habeas petition sought dismissal of his prosecution on the ground that 

officers lacked probable cause to arrest him for criminal trespass. Under Texas law, criminal 

trespass requires the State to establish, inter alia, that the defendant’s entry onto the property of 

another was made with notice that the entry was forbidden. TEX. PENAL CODE § 30.05(a)(1).

According to Colin-Tapio, the complaint was deficient of sufficient facts to support Colin-Tapio’s 

continued restraint because nothing indicates notice to Colin-Tapio that entry was forbidden.

However, the complaint facially stated, “We were then able to track and find seven male subjects

[including Colin-Tapio] inside the property well beyond 100 ft. inside the property; the property 

also has barbed wire fencing all around the property.” At the pretrial habeas evidentiary hearing, 

Colin-Tapio called one witness who testified to the lack of posted signage and visible fencing 
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around the area where Colin-Tapio was arrested. Colin-Tapio also admitted into evidence, without 

objection, photographs tending to show a lack of signage or fencing in that same area.

Colin-Tapio’s habeas petition is predicated on a factual dispute regarding an element of the 

alleged offense—the presence (or lack) of fencing or signage providing notice that entry was 

forbidden. Such a factual dispute is precisely the type of claim appropriately vindicated at trial.

See Ex parte Edwards, 663 S.W.3d 614, 616 (Tex. Crim. App. 2022) (pretrial habeas usually 

unavailable to test the sufficiency of a charging instrument); Woods v. State, 153 S.W.3d 413, 415 

(Tex. Crim. App. 2005) (“[T]he statutes authorizing pre-trial proceedings do not contemplate a 

‘mini-trial’ on the sufficiency of the evidence to support an element of the offense.”). And if a jury 

ultimately returns a guilty verdict, Colin-Tapio may directly challenge on appeal the sufficiency

of the evidence that his entry was forbidden. See Weise, 55 S.W.3d at 619 (appellate court should 

not entertain pretrial habeas when there is an adequate remedy by appeal). In other words, this case 

does not involve the type of constitutional right that would be effectively undermined if not 

vindicated prior to trial. See Perry, 483 S.W.3d at 896.

Moreover, appellate decision “would be premature before the State has had an opportunity 

to develop a complete factual record during a trial, and we are not aware of any authority that 

would require the State to prove its case before this time.” See Ex parte Smith, 185 S.W.3d 887, 

893 (Tex. Crim. App. 2006). Like the indictment in Smith, the information and complaint here are 

facially valid, and a review of the sufficiency of the evidence based on testimony presented at the 

evidentiary hearing would be premature. See id.

Colin-Tapio nevertheless asserts the State had an opportunity to present opposing evidence 

at the hearing and argues the State’s failure to do so is fatal on appeal. We disagree. The State is 

not required to marshal evidence in support of an as-applied challenge to an element of a crime in 

pretrial habeas proceedings for the simple reason that a defendant does not have a cognizable claim
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to challenge the element of a crime in pretrial habeas proceedings. In sum, because Colin-Tapio’s

claim is not cognizable in a pretrial habeas proceeding, the State had no burden to discharge at the 

pretrial habeas hearing.

Because Colin-Tapio’s claim is not cognizable by pretrial writ of habeas corpus, we sustain 

the State’s first issue. We need not reach the remainder of the State’s issues.

CONCLUSION

We reverse the trial court’s order granting appellee’s application for pretrial writ of habeas 

corpus and remand the cause to the trial court for further proceedings consistent with this opinion.

Lori I. Valenzuela, Justice

PUBLISH