NUMBERS 13-22-00120-CR, 13-22-00121-CR

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

 

EX PARTE JOSE ANTONIO SANCHEZ-HERNANDEZ

 

On appeal from the County Court at Law No. 2 

of Cameron County, Texas. 

 

DISSENTING MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Silva and Peña 

Dissenting Memorandum Opinion by Chief Justice Contreras

The majority concludes that the denial of appellant’s habeas corpus application 

was not merits-based. The result of this ruling is that appellant is deprived of appellate 

review of the habeas court’s decision, and he is deprived of the relief which all parties to 

the proceeding agree he is entitled to. Because the record establishes that the habeas 

court’s ruling was merits-based, I would conclude that we have jurisdiction over the 

appeal. And in exercising that jurisdiction, I would further conclude that the trial court erred 

by denying the relief requested in appellant’s application. 
2

As the majority correctly notes, we lack jurisdiction over an appeal of a habeas 

corpus ruling which is not based on the merits of the application. See Ex parte Villanueva,

252 S.W.3d 391, 394 (Tex. Crim. App. 2008). To determine whether an order can be 

appealed, we review the order and the entire record. See Ex parte Bowers, 36 S.W.3d 

926, 927 (Tex. App.—Dallas 2001, pet. ref’d) (examining whether an order denying an 

application for writ of habeas corpus was on the merits); see also Ex parte Lee, No. 11-

18-00018-CR, 2018 WL 3151530, at *1 (Tex. App.—Eastland June 28, 2018, no pet.) 

(mem. op., not designated for publication) (“Although the trial court did not hold a hearing, 

it appears from the language of the order that the trial court ruled on the merits of Lee’s 

claims.”); Purchase v. State, 176 S.W.3d 406, 407 (Tex. App.—Houston [1st Dist.] 2004, 

no pet.) (examining the record to determine if the trial court considered the merits); Ex 

parte Okere, 56 S.W.3d 846, 851 (Tex. App.—Fort Worth 2001, pet. ref’d) (same).

The case law does not define “on the merits,” but Black’s Law Dictionary defines 

“merits” as “[t]he elements or grounds of a claim or defense; the substantive 

considerations to be taken into account in deciding a case, as opposed to extraneous or 

technical points, esp[ecially] of procedure.” Merits, BLACK’S LAW DICTIONARY (2d. ed. 

2001). Usually, a ruling is described as “on the merits” to distinguish it from an order 

based on alleged jurisdictional defects. See, e.g., Thomas v. Long, 207 S.W.3d 334, 339–

340 (Tex. 2006) (“Because a trial court cannot reach the merits of a case without subject 

matter jurisdiction, a trial court that rules on the merits of an issue without explicitly 

rejecting an asserted jurisdictional attack has implicitly denied the jurisdictional 

challenge.” (internal citation omitted)); Hause v. LG Chem, Ltd., 658 S.W.3d 714, 731 

(Tex. App.—El Paso 2022, pet. filed) (separating appellee’s “jurisdictional arguments from 
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its arguments on the merits”).

The term “on the merits” has a specialized meaning in the context of habeas corpus 

proceedings. This stems from the fact that “there is a distinction between the issuance of 

a writ of habeas corpus and the granting of relief on the claims set forth in an application 

for that writ.” Ex parte Hargett, 819 S.W.2d 866, 869 (Tex. Crim. App. 1991). The code of 

criminal procedure provides that “[t]he Court of Criminal Appeals, the District Courts, the 

County Courts, or any Judge of said Courts, have power to issue the writ of habeas 

corpus; and it is their duty, upon proper motion, to grant the writ under the rules prescribed 

by law.” TEX. CODE CRIM. PROC. ANN. art. 11.05. But the code also “prescribe[s] that the 

legality of particular restraints be determined only by certain courts, depending upon a 

variety of factors, including the grade of the offense charged, and the stage of the criminal 

proceedings. It has done this by fixing the county or court to which certain writs must be 

made returnable.” Ex parte Renier, 734 S.W.2d 349, 356 (Tex. Crim. App. 1987) (Teague, 

J., dissenting). Only “[t]he court of return, not the issuing court, has authority to grant or 

deny relief under the writ.” Id.

In Ex parte Hargett, the Texas Court of Criminal Appeals held that an order denying 

habeas relief was “on the merits” because the court “went beyond merely deciding not to 

issue the writ of habeas corpus.” 819 S.W.2d at 869. It was “not a case where the district 

court simply refused to hear the application as presented.” Id. It was not a case where “a 

judge refuses to issue the requested writ of habeas corpus or denies an applicant the 

requested hearing on the merits of his claim.” Id. at 868. Hargett demonstrates that, in 

habeas proceedings, “on the merits” generally refers to a consideration of the substantive 

claims for relief made in the applicant’s pleadings, as opposed to the preliminary 
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determination of whether to issue the writ in the first place.1 See id.; Ex parte Bowers, 36 

S.W.3d at 927 (“An applicant cannot appeal from a trial court’s refusal to issue or grant a 

writ of habeas corpus, but may appeal the denial of relief on the merits of the 

application.”); see also Ex parte Tyler, No. 2-02-267-CR, 2003 WL 300485, at *1 (Tex. 

App.—Fort Worth Feb. 13, 2003, no pet.) (mem. op., not designated for publication) 

(“Because the trial court’s order indicates that the court examined the applicable law and 

applied it to Tyler’s complaint, it appears the trial court denied the requested relief based 

on its merits, as opposed to denying the writ.”).

In this case, it is undisputed that the habeas court was the proper “court of return” 

under the applicable law. See TEX. CODE CRIM. PROC. ANN. 11.09. Accordingly, it is not 

reasonable to construe the trial court’s ruling as a disposition based on lack of jurisdiction

to grant relief under the statute.

2

1 The applicant in Hargett was ordered to serve community supervision and filed his application 

pursuant to article V, § 8 of the Texas Constitution, which generally imbues district courts with “the power 

to issue writs necessary to enforce their jurisdiction.” TEX. CONST. art. V, § 8. As recognized in Ex parte 

Villanueva, the Legislature since enacted code of criminal procedure article § 11.072, which specifically

pertains to habeas proceedings in community supervision cases. See Ex parte Villanueva, 252 S.W.3d 

391, 395 (Tex. Crim. App. 2008). Under article 11.072, a writ of habeas corpus “issues by operation of law” 

whenever an application is filed. Id. (quoting TEX. CODE CRIM. PROC. ANN. art. 11.072, § 4(a)). And article 

11.072 specifically provides that an applicant “may appeal under Article 44.02 and Rule 31, Texas Code of 

Appellate Procedure” if the trial judge “denied the application in whole or in part.” Id. (quoting TEX. CODE 

CRIM. PROC. ANN. art. 11.072, § 8). Because the Legislature intended article 11.072 “to provide the exclusive 

means by which the district courts may exercise their original habeas jurisdiction” in community supervision 

cases, “the rule governing appellate review [set forth in Hargett] no longer applies” to such cases. Id. at 

397. But this is not a community supervision case, and article 11.09 does not contain the same procedures 

as article 11.072. Therefore, Hargett remains applicable to this case.

2 I disagree with the majority to the extent it bases its conclusion (i.e., that the habeas court’s ruling 

was jurisdictional and therefore not “on the merits”) on the fact that appellant’s pleadings did not specifically 

allege that he was suffering collateral legal consequences from his 1992 misdemeanor conviction. As the 

majority notes, the appellant’s confinement or restraint is a jurisdictional requirement in habeas cases. See

Ex parte Schmidt, 109 S.W.3d 480, 481–83 (Tex. Crim. App. 2003). In this case, appellant’s counsel 

explained to the habeas court that appellant was in the process of applying for a visa. But because the 

State completely acquiesced to all of appellant’s requests, appellant was never called upon to produce 

evidence establishing this element of his habeas claim. And crucially, there is no reason for this Court to 

infer that the habeas court denied appellant’s application on the jurisdictional basis that he failed to show 

he was suffering from collateral legal consequences.
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Moreover, the habeas court held a hearing on appellant’s application on February 

9, 2022. Appellant was sworn in to testify at the beginning of the hearing. Appellant’s 

counsel informed the court that he filed the application because appellant “is in the 

process of applying for a [v]isa.” The prosecutor informed the court that “the State is not 

contesting these motions” and “we just have no reason to object to this filing and the 

request that they’re making.” The trial court stated she would take the matter under 

advisement. When appellant’s counsel asked whether the court “want[ed] to hear from 

my client,” the court replied, “No, that’s fine.” In its April 1, 2022 written order denying 

appellant’s application, the court noted that the matter was heard and “the parties[] made 

their arguments,” but it did not specify the reason for the denial. Nevertheless, the order 

explicitly stated that it is appealable. And the court certified appellant’s right to appeal. 

See TEX. R. APP. P. 25.2(d).

Based on my review of the entire record and the order, I would conclude that the 

order was “on the merits” and that we have jurisdiction over the appeal.3 In its brief on 

appeal, the State “asks this Court to find that the Appellant’s pro se plea of guilty was 

involuntary due to the lack of an interpreter at the plea hearing, and to grant a new trial 

as requested by Appellant.” Accordingly, in light of the parties’ agreement, I would further 

conclude that the trial court erred in denying the requested relief.

In an appeal from the denial of a habeas corpus application, “[t]he sole purpose of 

3 A trial court’s certification of a defendant’s right to appeal cannot turn an otherwise non-appealable 

order into one that is appealable. See Chavez v. State, 183 S.W.3d 675, 679 (Tex. Crim. App. 2006) (“[The]

Rules of Appellate Procedure do not establish appellate jurisdiction, but rather set out procedures which 

must be followed to invoke a court’s jurisdiction over a particular appeal”); see also Sarringar v. State, No. 

02-22-00070-CR, 2022 WL 2526941, at *2 (Tex. App.—Fort Worth July 7, 2022, no pet.) (mem. op., not 

designated for publication). However, the fact that the habeas court certified appellant’s right to appeal in 

this case is an indication of the court’s intent to dispose of the habeas application on its merits.
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the appeal is to do substantial justice to the parties.” TEX. R. APP. P. 31.2. Because the 

majority’s conclusion is contrary to this directive, I respectfully dissent.

DORI CONTRERAS

Chief Justice

Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed on the

1st day of June, 2023.