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 the Court’s Own Motion for Discretionary Review

From the Third Court of Appeals

Travis County

═══════════════════════════════════════

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 
CURIPOMA – 2

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 
CURIPOMA – 3

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[.]”).
CURIPOMA – 4

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
CURIPOMA – 5

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 
CURIPOMA – 6

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.
CURIPOMA – 7

“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 
CURIPOMA – 8

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. 
CURIPOMA – 9

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). 
CURIPOMA – 10

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).
CURIPOMA – 11

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 
CURIPOMA – 12

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, 
CURIPOMA – 13

(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