                              NUMBER 13-17-00638-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

                             EX PARTE JO LEIGH ARES


                    On appeal from the 404th District Court
                         of Cameron County, Texas.



                         MEMORANDUM OPINION
   Before Chief Justice Contreras and Justices Longoria and Perkes
              Memorandum Opinion by Justice Longoria

       Appellant Jo Leigh Ares appeals the trial court’s denial of her pre-trial petition for

writ of habeas corpus. Ares asserts: (1) the trial court erred by failing to grant her petition

for writ of habeas corpus; (2) an in pari materia challenge to an indictment is cognizable

in a pre-trial petition for writ of habeas corpus; (3) a pre-trial writ of habeas corpus is

cognizable when it involves a violation of the separation of powers as well as the

defendant’s rights to due process and due course of law; (4) an as-applied challenge to

the indictment is cognizable where the violation is apparent from the face of the record;
and (5) the Manufactured Housing Act is in pari materia with the Texas Penal Code

statutes for theft of property and securing execution of a document by deception. See

TEX. OCC. CODE ANN. § 1201.451; TEX. PENAL CODE ANN. §§ 31.03, 32.46. We affirm.

                                  I.     BACKGROUND

      In March 2012, Ares was charged by complaints with misdemeanor violations of

the Texas Occupations Code. The State dismissed the misdemeanor charges in 2013

and charged Ares by indictment for the felony offenses of: (1) theft of property in an

aggregate amount of more than $100,000 but less than $200,000; and (2) securing the

execution of a document by deception with a value of $20,000 or more but less than

$100,000. See TEX. PENAL CODE ANN. §§ 31.03, 31.09, 32.46. The indictment arose from

complaints that Ares, through her business “The Park Girl,” took payments from

customers for the purchase of mobile homes, but never gave the customers the products.

      Ares filed a pre-trial motion for writ of habeas corpus and a hearing was held in

2014. The trial court denied the relief requested and Ares appealed. In her sole issue

before this Court, Ares argued that she was being illegally restrained by criminal charges

related to a civil debt and that the statute she was charged under was unconstitutional as

applied to her. See Ares v. State, No. 13-14-00164-CR, 2015 WL 6593814 at *1–2 (Tex.

App.—Corpus Christi–Edinburg 2015, no pet.) (mem. op., not designated for publication).

We affirmed the denial of her writ of habeas corpus. See id.

      In September 2017, Ares filed her “Motion to Quash and Dismiss Indictment

Pursuant to the Doctrine of In pari materia, as a Matter of Due Course of Law and Due

Process of Law Violations of the United States and Texas Constitutions” which she later

supplemented twice. The second supplemental motion was titled “Second Supplemental



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Motion to Quash and Dismiss Indictment Pursuant to the Texas Code Construction Act,

Doctrine of In pari materia, as a Matter of Due Course of Law and Due Process of Law

Violations of the United States and Texas Constitutions and Request for Writ of Habeas

Corpus Relief.” The trial court heard the motion over the course of three hearings and

denied the relief requested by Ares. This interlocutory appeal followed.

                          II.   PRE-TRIAL WRIT OF HABEAS CORPUS

       Ares complains that the trial court erred in denying her petition for writ of habeas

corpus, specifically arguing that the statutes under which she was indicted are in pari

materia with the Manufactured Housing Act and that such a claim is cognizable in a pre-

trial petition for writ of habeas corpus. She further argues that a petition for pre-trial writ

of habeas corpus is cognizable when it involves a violation of separation of powers and

the defendant’s rights to due process and due course of law. Lastly, she argues that an

as-applied challenge to the indictment is cognizable where the violation is apparent from

the face of the record.

A.     Standard of Review

       A pre-trial writ of habeas corpus “followed by an interlocutory appeal, is an

‘extraordinary remedy’ and ‘appellate courts have been careful to ensure that a pre-trial

writ is not misused to secure pre-trial appellate review of matters that in actual fact should

not be put before appellate courts at the pre-trial stage.’” Ex parte Ellis, 309 S.W.3d 71,

79 (Tex. Crim. App. 2010) (quoting Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim.

App. 2010)). The determination of “whether a claim is even cognizable on pre-trial habeas

is a threshold issue that should be addressed before the merits of the claim may be

resolved.” Id. “Pre-trial habeas should be reserved for situations in which the protection



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of the applicant’s substantive rights or the conservation of judicial resources would be

better served by interlocutory review.” Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim.

App. 2001).

       We review a trial court’s decision to grant or deny a writ of habeas corpus for abuse

of discretion. See Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006).

However, if the resolution turns on an application of legal standards, we review the

determination de novo. See Sandifer v. State, 233 S.W.3d 1, 2 (Tex. App.—Houston [1st

Dist.] 2007, no pet.) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997));

see also Ex parte Hartfield, 442 S.W.3d 805, 814 (Tex. App.—Corpus Christi–Edinburg

2014, pet. ref’d).

B.     Claim Must Be Cognizable

       Before turning to the merits of Ares’s claim, we must first determine whether her

claim is cognizable. See Ellis, 309 S.W.3d at 79. When determining whether an issue is

cognizable by pre-trial habeas, we consider a variety of factors, including whether the

rights underlying the claims would be effectively undermined if not vindicated before trial

and whether the alleged defect would bring into question the trial court’s power to

proceed. Ex parte Perry, 483 S.W.3d 884, 895–96 (Tex. Crim. App. 2016); Weise, 55

S.W.3d at 619. A defendant may use a pre-trial writ of habeas corpus only in very limited

circumstances. Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005). The

accused may challenge: (1) the State’s power to restrain her at all, i.e., the existence of

probable cause; (2) the manner of her restraint, i.e., the denial of bail or conditions

attached to bail; and (3) certain issues that would bar prosecution or conviction. Id.

Designating a particular complaint as one that is cognizable is not enough; if the complaint



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is in fact one that is not cognizable, we should refuse to consider the merits of the claim.

See Ellis, 309 S.W.3d at 79–80; see also Ex parte Paxton, 493 S.W.3d 292, 297 (Tex.

App.—Dallas 2016, pet. ref’d).

       When there is a valid statute or ordinance under which a prosecution may be

brought, pre-trial habeas is generally not available to test the sufficiency of the charging

instrument. Perry, 483 S.W.3d at 895; Weise, 55 S.W.3d at 620. A few exceptions to

this rule exist, but they have usually been found only when the complaint is such that it

would render the proceedings void from the outset. Ex parte Smith, 152 S.W.3d 170, 171

(Tex. App.—Dallas 2004), aff’d, 185 S.W.3d 887 (Tex. Crim. App. 2006). Pre-trial habeas

is available when the question presented, when resolved in the defendant’s favor, would

result in immediate release. Perry, 483 S.W.3d at 895.

       1.     As-Applied Challenge

       Ares argues that Perry overhauled the cognizability analysis, allowing for as-

applied challenges “if the violation is apparent from the pleadings or the right requires

vindication pre-trial.” See 483 S.W.3d at 918. In Perry, former Texas governor Rick Perry

contended that as applied to certain circumstances, the abuse of official capacity statute

violated separation of powers principles. Id. at 888. The State contended that Perry’s

argument was not cognizable in a pre-trial habeas corpus application. Id. at 895. The

court of criminal appeals disagreed, holding that “pre-trial habeas is an available vehicle

for a government official to advance an as-applied separation of powers claim that alleges

the infringement of his own power as a government official.” Id. at 898; see Ex parte

Walsh, 530 S.W.3d 774, 781 (Tex. App.—Fort Worth 2017, no pet.) (emphasis added).




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      We find the facts here to be inapposite to the holding in Perry. See Paxton, 493

S.W.3d at 303 (declining to hold that pre-trial habeas relief was available under Perry

because the defendant’s charges did “not arise out of his duties as an elected official but

rather from his conduct as a private citizen”); Walsh, 530 S.W.3d at 781 (declining to

extend the holding in Perry to appellant’s as-applied challenge because, inter alia,

appellant was not a government official). Perry reaffirms that “as applied” challenges are

not cognizable on pre-trial habeas except for certain carefully limited exceptions. See

Perry, 483 S.W.3d at 895–98. The court concluded that cases involving criminal charges

arising from an elected official’s performance of his duties and implicating the separation

of powers qualify as such an exception. See id. at 898. As a private citizen, Ares’s

charges do not arise out of any duty as an elected official. See Paxton, 493 S.W.3d at

303. Accordingly, we conclude that Perry does not support Ares’s position that she may

raise an as-applied challenge on pre-trial habeas. Perry, 483 S.W.3d at 898.

      2.     Immediate Release and Vindication of Rights Pre-Trial

      Ares also argues that her in pari materia challenge is cognizable because if we

find in her favor, the trial court would no longer have jurisdiction to proceed. Ares

contends that, if we determined that the statutes under which she was indicted are in pari

materia with the Manufactured Housing Act, she would be released, making her pre-trial

writ cognizable. See Ex parte Flores, 483 S.W.3d 632, 638 (Tex. App.—Houston [14th

Dist.] 2015, pet. ref’d) (“A claim is cognizable in a pre-trial writ of habeas corpus if,

resolved in the defendant’s favor, it would deprive the trial court of the power to proceed

and result in the appellant’s immediate release.”). She asserts that the two-year statute

of limitations has already run on any potential misdemeanor charges against her under



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the Manufactured Housing Act. See TEX. CRIM. PROC. CODE ANN. art. 12.02(a) (“An

indictment or information for any Class A or Class B misdemeanor may be presented

within two years from the date of the commission of the offense, and not afterward.”).

Accordingly, Ares argues that if we resolved these arguments in her favor, the trial court

would be deprived of the power to proceed and she would be released. Ex parte Flores,

483 S.W.3d at 638.

       Ares asserts further that her rights “would be effectively undermined if not

vindicated pre-trial.” Certain types of claims may be raised by pre-trial habeas because

the rights underlying those claims would be effectively undermined if not vindicated before

trial. Perry, 483 S.W.3d at 895 (citing Weise, 55 S.W.3d at 619 (“[A]n applicant may use

pre-trial writs to assert his or her constitutional protections with respect to double

jeopardy.”)); Ex parte Robinson, 641 S.W.2d 552, 555 (Tex. Crim. App. 1982) (concluding

that Fifth Amendment right not to be exposed to double jeopardy must be reviewable

before that exposure occurs). In determining whether a claim falls under this exception,

courts first consider whether the right at stake provides a basis for cognizability, and

secondarily whether judicial economy favors pre-trial review. Perry, 483 S.W.3d at 898.

       Ares contends that her in pari materia challenge was properly raised pre-trial

because the violation is apparent from the face of the record and no further factual

development is necessary. See State v. Wiesman, 269 S.W.3d 769, 773 (Tex. App.—

Austin 2008, no pet.).      The doctrine of in pari materia is a principle of statutory

interpretation, a means of giving full effect to legislative intent. Mills v. State, 722 S.W.2d

411, 413 (Tex. Crim. App. 1986). Under this doctrine, statutes that deal with the same

general subject, have the same general purpose, or relate to the same person, thing, or



                                              7
class are considered to be in pari materia even if they contain no reference to each other

or were passed at different times or at different sessions of the legislature. Cheney v.

State, 755 S.W.2d 123, 126 (Tex. Crim. App. 1988). The doctrine applies, for example,

when one statute deals with a subject in comprehensive terms and another deals with a

portion of the same subject in a more definite way. Id. Statutes found to be in pari materia

are construed together and, if possible, conflicts between the statutes are

harmonized. Id. at 127; see TEX. GOV’T CODE ANN. § 311.026(a) (“If a general provision

conflicts with a special or local provision, the provisions shall be construed, if possible, so

that effect is given to both.”). In the case of an irreconcilable conflict, the specific statute

controls over the more general statute. Cheney, 755 S.W.2d at 126; see TEX. GOV’T CODE

ANN. § 311.026(b) (“If the conflict between the general provision and the special or local

provision is irreconcilable, the special or local provision prevails as an exception to the

general provision, unless the general provision is the later enactment and the manifest

intent is that the general provision prevail.”).

       Count one of the indictment alleged that Ares “unlawfully appropriate[d], by

acquiring or otherwise exercising control over, property, to-wit: US Currency. . .” from six

victims, “pursuant to one scheme or continuing course of conduct, and the aggregate

value of the property obtained was $100,000 or more, but less than $200,000.” See TEX.

PENAL CODE. ANN. § 31.03(e)(6). Count two of the indictment alleged that Ares:

       with the intent to harm or defraud Joanna Llanas, by deception, to-wit:
       altered mobile home purchase agreement, intentionally or knowingly
       cause[d] Johanna Llanas to sign or execute a document affecting the
       pecuniary interest . . . the value of said pecuniary interest being $20,000 or
       more but less than $100,000, and said document is of the tenor following:
       Purchase Agreement dated September 24, 2011.




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See TEX. PENAL CODE ANN. § 32.46(b)(5). Ares argues that the alleged injuries to the

victims in this case arise out of her ownership and operation of her mobile home business.

She argues the State has alleged that she agreed to sell mobile homes and accepted

payment with no intent to deliver the homes. She contends that the statutes under which

she was indicted are in pari materia with the Manufactured Housing Act, and therefore

her indictment under these statutes violates her constitutional rights to due process and

due course of law. See U.S. CONST. amend. XIV; TEX. CONST. art. I, § 19; TEX. OCC. CODE

ANN. § 1201.451(a) (“[A] person may not sell or exchange a used manufactured home

without the appropriate transfer of good and marketable title to the home.”); id. § 1201.606

(stating that a person commits a Class A misdemeanor if the person knowingly and

willfully violates the Manufactured Housing Act); TEX. PENAL CODE ANN. § 31.03.

       When an in pari materia assertion is made prior to trial and, accordingly, before an

evidentiary record has been developed, a court may only conclude that two statutes are

in pari materia if the charging instrument “on its face” raises the in pari materia issue. See

Weisman, 269 S.W.3d at773–74. Likewise, the Texas Court of Criminal Appeals has held

that when the charging instrument was unobjectionable on its face, it was only after the

State’s evidence disclosed the statutory provisions purportedly at issue that the basis for

an in pari materia challenge became manifest. See Azeez v. State, 248 S.W.3d 182, 194

(Tex. Crim. App. 2008).

       Count one of Ares’s indictment for theft of property does not allege any facts

indicating that manufactured housing was involved or that she could have been charged

under the Manufactured Housing Act. See Azeez, 248 S.W.3d at 194 (holding that

appellant could not raise an in pari materia claim to quash a complaint accusing him of



                                              9
failing to appear where the complaint did not allege any facts that the defendant had failed

to appear specifically pursuant to a traffic violation); see also Smith, 185 S.W.3d at 893

(holding that in pari materia claim was not cognizable on pre-trial writ of habeas where

assault indictment was valid on its face and did not allege facts indicating that hazing was

involved). Accordingly, because count one of the indictment does not present an in pari

materia issue on its face, we find that Ares’s in pari materia claim as to count one is not

cognizable by pre-trial writ of habeas corpus. See Smith, 185 S.W.3d at 893. Count two

of Ares’s indictment alleges facts involving the purchase of a mobile home and documents

executed pursuant to the purchase of a mobile home. However, because count one is

valid, even if Ares were to be successful on her in pari materia claim as to count two, it

would not result in her immediate release; therefore, the issue as to count two is also not

cognizable in a pre-trial writ of habeas corpus. See Flores, 483 S.W.3d at 638

       The trial court did not abuse its discretion in denying Ares’s petition for pre-trial writ

of habeas corpus.

                                     III.    CONCLUSION

       We affirm the judgment of the trial court.

                                                                   NORA L. LONGORIA
                                                                   Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
19th day of September, 2019.




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