                             NUMBER 13-14-00164-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

JOLEIGH ARES,                                                                  Appellant,

                                            v.

THE STATE OF TEXAS,                                                             Appellee.


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


                        MEMORANDUM OPINION
             Before Justices Benavides, Perkes, and Longoria
               Memorandum Opinion by Justice Benavides

       By one issue, appellant Joleigh Ares appeals the trial court’s denial of her pre-trial

writ of habeas corpus and asserts that:    (1) she is being unlawfully restrained because

of a debt; and (2) the statute for which she is charged under is unconstitutional and vague

as applied to her. We affirm.
                                   I.     BACKGROUND

       The State indicted Ares for: (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. See TEX. PENAL CODE ANN. §§ 31.03, 31.09, 32.46 (West, Westlaw through

2015 R.S.). Ares ran a business that sold used or repossessed mobile homes. The

indictment stems from complaints from customers that they had given Ares payments

towards their mobile homes and had not received the product.              Ares argued that

because there was a contract between the parties, this case is a civil matter and she

should not have been charged criminally.      Ares subsequently filed a pre-trial motion for

writ of habeas corpus alleging that (1) she is being illegally restrained against her liberty

and (2) the underlying charges stem from statutes that are vague and unconstitutional as

applied to her. See TEX. CODE CRIM. PROC. ANN. art. 11.01 (West, Westlaw through 2015

R.S.). The trial court held a hearing on the motion and denied the relief she requested.

This interlocutory appeal followed.

                        II.    PRE-TRIAL WRIT OF HABEAS CORPUS

       By her sole issue, Ares argues she is being illegally restrained by criminal charges

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

applied to her.

A.     Standard of Review and Applicable Law

       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 pretrial

writ is not misused to secure pretrial appellate review of matters that in actual fact should

                                             2
not be put before appellate courts at the pretrial 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 pretrial

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

be resolved.”     Id.   The Texas Court of Criminal Appeals has held that “an applicant may

use pretrial writs to assert his or her constitutional protections with respect to double

jeopardy and bail.”       Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001).

“Pretrial habeas should be reserved for situations in which the protection of the applicant’s

substantive rights or the conservation of judicial resources would be better served by

interlocutory review.”     Id. at 620.   It can be used to bring a facial challenge to the

constitutionality of the statute that defines the offense but may not be used to advance an

‘as-applied’ challenge.     Ex parte Ellis, 309 S.W.3d at 79.

       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); see

also Ex parte Hartfield, 442 S.W.3d 805, 814 (Tex. App.—Corpus Christi 2014, pet. ref’d).

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

determination de novo.”      Id.

B.     Discussion

       1.        Ares is not being illegally restrained due to her bond

       The Texas Court of Criminal Appeals has “long held that when there is a valid

statute or ordinance under which a prosecution may be brought, habeas corpus is not

generally available before trial to test the sufficiency of the complaint, information, or

indictment.”     Ex parte Weise, 55 S.W.3d at 620.       Ares is claiming that the criminal

                                               3
prosecution is being brought out of a civil contract dispute as the State secured an

indictment based on Ares’s alleged inability to comply with her contractual obligations.

However, civil disputes can become criminal in nature based on the particular facts of

each case. See, e.g., Taylor v. State, 450 S.W.3d 528, 539 (Tex. Crim. App. 2014);

Berry v. State, 424 S.W.3d 579, 586–87 (Tex. Crim. App. 2014); Merryman v. State, 391

S.W.3d 261, 270 (Tex. App.—San Antonio 2012, pet. ref’d); Olle v. State, No. 13-14-

00207-CR, 2015 WL 5626192, at *5–6 (Tex. App.—Corpus Christi September 17, 2015,

pet. filed).

         Here, Ares effectively wants this Court to consider the merits of her case before

trial.   However, a writ of habeas corpus is not proper to test the sufficiency of the

indictment against her.     See Ex parte Weise, 55 S.W.3d at 620. Accordingly, the trial

court properly did not abuse its discretion by denying her pre-trial writ of habeas corpus

on this ground.

         2.     As-applied challenges to a statute cannot be brought pre-trial

         “A litigant raising only an ‘as applied’ challenged concedes [to] the general

constitutionality of the statute, but asserts that the statute is unconstitutional as applied

to his particular facts or circumstances.”    State ex. rel. Lykos v. Fine, 330 S.W.3d 904,

910 (Tex. Crim. App. 2011). In an as-applied challenge, the litigant “must show that, in

its operation, the challenged statute was unconstitutionally applied to him; that it may be

unconstitutional to others is not sufficient (or even relevant).”   Id.

         An “‘as-applied’ challenge is brought during or after a trial on the merits, for it is

only then that the trial judge and reviewing courts have the particular facts and

circumstances of the case needed to determine whether the statute or law has been

                                               4
applied in an unconstitutional manner.”           Id.    An “as-applied” challenge to the

constitutionality of a statute requires the challenger to demonstrate that the statute has

operated unconstitutionally when applied to his particular circumstances.”        Id. at 915.

Therefore, any court considering an ‘as-applied’ challenge to a statute must look at the

challenger’s conduct alone to determine whether the statute operated unconstitutionally.”

Id.

       Ares argues an “as-applied” challenge to this Court. Even though the trial court

had a hearing and admitted multiple exhibits from Ares, she presents no cognizable issue

for review on a pre-trial writ of habeas corpus. The case law is very clear that only facial

challenges to statutes will be considered pre-trial.    See Ex parte Ellis, 309 S.W.3d at 79.

Ares specifically states that she is challenging the statutes from which her charges arise

“as they apply to her.” Her challenge to the statute is premature.        See State ex. rel.

Lykos, 330 S.W.3d at 910.      The trial court did not abuse its discretion and Ares’s sole

issue is overruled.

                                    III.   CONCLUSION

       We affirm the judgment of the trial court.




                                                          GINA M. BENAVIDES,
                                                          Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
29th day of October, 2015.


                                              5
