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Ex Parte Tony Ramirez v. the State of Texas

2026-10-22

Authorities cited

Opinion

majority opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-26-00314-CR

Ex parte Tony Ramirez

FROM THE 460TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-DC-19-207142-D, THE HONORABLE SELENA ALVARENGA, JUDGE PRESIDING

MEMORANDUM OPINION

Tony Ramirez filed an application for a writ of habeas corpus, seeking to

challenge his conviction for the felony offense of driving while intoxicated (“DWI”). See Tex.

Code Crim. Proc. art. 11.072; Tex. Penal Code §§ 49.04, .09(b). The trial court denied his

application, and he appeals the trial court’s ruling. We will affirm the trial court’s order.

BACKGROUND

Ramirez was charged with felony DWI with two or more prior convictions. See

Tex. Penal Code §§ 49.04, .09(b). In 2020, he agreed to plead guilty to the offense under the

terms of a plea-bargain agreement under which he would be placed on community supervision

for ten years and serve 180 days in jail. Before the trial court approved the plea bargain, the

State dismissed another charge against Ramirez for the offense of causing a collision with

damage to a vehicle. See Tex. Transp. Code § 550.022.

A few months later, Ramirez filed a pro se application for a writ of habeas corpus,

arguing that his trial attorney provided ineffective assistance of counsel and that his guilty plea

was involuntary. The State denied Ramirez’s allegations. After reviewing Ramirez’s

application, the State’s response, and Ramirez’s trial attorney’s affidavit, the trial court issued an

order denying the requested relief in 2021. The trial court also issued findings of fact and

conclusions of law stating in part that Ramirez’s claims were without merit and that he failed to

show that he received ineffective assistance of counsel or that his guilty plea was not knowingly,

voluntarily, and intelligently given.

Ramirez appealed the trial court’s order denying his requested habeas relief and

argued that the trial court abused its discretion by denying his writ application because his trial

attorney provided ineffective assistance of counsel and because his guilty plea was not voluntary.

See Ex parte Ramirez, 652 S.W.3d 841, 846 (Tex. App.—Austin 2022, no pet.). This Court

overruled the ineffective assistance of counsel challenge because Ramirez failed to meet his

burden of showing that his trial attorney’s performance fell below an objective standard of

reasonableness. Id. at 848. Next, this Court determined that the trial court did not abuse its

discretion by failing to grant relief on Ramirez’s claim that his guilty plea was involuntary. Id. at

849. Accordingly, this Court affirmed the trial court’s order denying his requested habeas relief.

Id.

Approximately two years later, Ramirez filed a subsequent pro se application for

writ of habeas corpus. See Ex parte Ramirez, No. 03-25-00027-CR, 2025 WL 2534673, at *3

(Tex. App.—Austin Sep. 4, 2025, pet. ref’d) (mem. op., not designated for publication). In that

application, he asserted that the trial court’s judgment of conviction was void, that his guilty plea

was involuntarily given, and that his trial counsel provided ineffective assistance. Id. After

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considering the habeas application and the State’s response, the trial court denied the writ

application and issued findings of fact and conclusions of law stating that Ramirez had pleaded

no new facts or evidence to establish why his subsequent writ could be considered and that he

did not meet his burden of establishing that he was entitled to relief on the grounds asserted. Id.

Ramirez appealed the trial court’s order. Id. at *5. This Court determined that the trial court did

not abuse its discretion because Ramirez did not establish that his claims could not have been

presented in his first habeas application, because many of his claims were presented in his first

application, and because he was not entitled to the relief requested. Id. at *5-6.

Four months later, Ramirez filed the pro se habeas application that forms the basis

for this appeal. In this application, he alleged that his commission of the offense of causing a

collision with damage to a vehicle led to his DWI arrest and that the charge for the traffic offense

was dismissed by the State; however, he asserted that jeopardy had attached to the traffic offense

before it was dismissed. Ramirez argued that his subsequent conviction for DWI was barred by

the Double Jeopardy Clause because establishing the traffic offense was necessary for the State

to establish that probable cause existed for suspecting he had also committed the offense of DWI.

Next, he contended that his trial attorney provided ineffective assistance of counsel by failing to

present the double-jeopardy claim. The trial court denied relief and explained in its order that

Ramirez’s application was barred because he failed to establish that the basis for the claims “was

unavailable to him at the time of his previous applications.”

Ramirez appeals the trial court’s order.

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STANDARD OF REVIEW

Appellate courts review a trial court’s ruling on an application for writ of habeas

corpus under an abuse-of-discretion standard. Ex parte Zantos-Cuebas, 429 S.W.3d 83, 87 (Tex.

App.—Houston [1st Dist.] 2014, no pet.). “A trial court abuses its discretion when its ruling is

arbitrary or unreasonable.” Gaytan v. State, 331 S.W.3d 218, 223 (Tex. App.—Austin 2011, pet.

ref’d). However, a trial court does not abuse its discretion if its ruling lies within “the zone of

reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008); see

Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002). Under that standard, appellate

courts review the record evidence “in the light most favorable to the trial court’s ruling.”

Ex parte Nelson, 546 S.W.3d 742, 746 (Tex. App.—Houston [1st Dist.] 2018, no pet.).

The writ of habeas corpus is an extraordinary remedy. See Ex parte Smith,

444 S.W.3d 661, 666 (Tex. Crim. App. 2014). To succeed on a post-conviction writ of habeas

corpus, the applicant must prove, “by a preponderance of the evidence, the facts that would

entitle him to relief.” Ex parte Ali, 368 S.W.3d 827, 830 (Tex. App.—Austin 2012, pet. ref’d).

“When the trial court’s findings of fact in a habeas corpus proceeding are supported by the

record, they should be accepted” by the reviewing court. See Ex parte Amezquita, 223 S.W.3d

363, 367 (Tex. Crim. App. 2006). A “trial court’s resolution of mixed questions of law and fact

that do not turn on witness credibility and its resolution of pure questions of law” are reviewed

de novo. Ex parte Beck, 541 S.W.3d 846, 852 (Tex. Crim. App. 2017).

An individual convicted of a felony or misdemeanor may seek habeas “relief from

an order or a judgment of conviction ordering community supervision.” Tex. Code Crim. Proc.

art. 11.072, § 1. When a person files a writ application, he “must be, or have been, on

community supervision, and the application must challenge the legal validity of . . . the

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conviction for which or order in which community supervision was imposed” or “the conditions

of community supervision.” Id. art. 11.072, § 2(b). Regarding a subsequent application for writ

of habeas corpus filed after the final disposition of an initial one, section 9 of article 11.072

provides as follows:

[A] court may not consider the merits of or grant relief based on the subsequent

application unless the application contains sufficient specific facts establishing

that the current claims and issues have not been and could not have been

presented previously in an original application or in a previously considered

application filed under this article because the factual or legal basis for the claim

was unavailable on the date the applicant filed the previous application.

Id. art. 11.072, § 9(a); see Ex parte Nelson, 546 S.W.3d at 747 (“Article 11.072 normally

restricts habeas applicants to just ‘one bite of the apple.’” (quoting Ex parte Santana,

227 S.W.3d 700, 703 (Tex. Crim. App. 2007))).

Concerning legal claims, article 11.072 clarifies that “a legal basis of a claim is

unavailable on or before a date described by that subsection if the legal basis was not recognized

by and could not have been reasonably formulated from a final decision of the United States

Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this

state on or before that date.” Tex. Code Crim. Proc. art. 11.072, § 9(b). For factual claims, the

provision states that “a factual basis of a claim is unavailable on or before a date described by

that subsection if the factual basis was not ascertainable through the exercise of reasonable

diligence on or before that date.” Id. art. 11.072, § 9(c). “The rejection of an initial habeas

corpus application is the trigger event for the Section 9 subsequent application restrictions.”

Ex parte Salazar, 510 S.W.3d 619, 625 (Tex. App.—El Paso 2016, pet. ref’d).

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DISCUSSION

In two issues on appeal, Ramirez contends that the trial court erred by denying

him habeas relief on his double-jeopardy and ineffective-assistance claims.

Double Jeopardy

In his first issue, Ramirez argues that the trial court erred by denying his

application because his DWI conviction was barred by double jeopardy. Essentially, he asserts

that he committed a traffic violation and that the traffic violation gave the police probable cause

to begin investigating him to determine if he also committed the offense of DWI and to

ultimately arrest him for DWI. Although he asserts that the traffic offense was dismissed, he

also claims that he “had been prosecuted and punished already for the traffic offense” before

being punished for the DWI offense. For that reason, he claims that his DWI conviction was

barred by double jeopardy and that the trial court erred by failing to grant his habeas application.

As support, Ramirez refers exclusively to Cooper v. State, 828 S.W.2d 565 (Tex.

App.—Houston [14th Dist.] 1992, no pet.), which addressed a similar double-jeopardy claim.

That case was decided well before the trial court denied his first habeas application. See

Ex parte Salazar, 510 S.W.3d at 625 (noting triggering event for section 9). Accordingly,

Ramirez cannot rely on Cooper to establish the unavailable legal basis exception to the

subsequent writ prohibition. See Tex. Code Crim. Proc. art. 11.072, § 9(b); see also Ex parte

Navarro, 538 S.W.3d 608, 615 (Tex. Crim. App. 2018) (explaining that legal basis was

previously available if it “could have been rationally fashioned” from relevant precedent);

Ex parte Aubin, 537 S.W.3d 39, 45 (Tex. Crim. App. 2017) (rejecting double-jeopardy claim

raised in subsequent writ because “the principles of double-jeopardy law” “were not new”).

Moreover, he does not attempt to explain why the factual basis for this claim could not have been

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ascertained on or before the date he filed his first habeas application, see Tex. Code Crim. Proc.

art. 11.072, § 9(c), and cannot rely on the unavailable factual basis exception, see Ex parte Smith,

No. 03-17-00628-CR, 2018 WL 2347012, at *3 (Tex. App.—Austin May 24, 2018, pet. ref’d)

(mem. op., not designated for publication) (determining that exception to subsequent writ

application did not apply where applicant “fail[ed] to explain why he failed to raise this

complaint . . . in his prior habeas application”).

In any event, Ramirez would not be entitled to relief. As an initial matter, we

note that in the case relied on by Ramirez, the court concluded that the prosecution of the

defendant for DWI was not barred by double jeopardy. Cooper, 828 S.W.2d at 566-67. The

defendant had been charged with failing to drive in a single marked lane, disregarding a police

officer, and DWI. Id. at 565. The defendant pleaded guilty to the traffic offenses, and the State

subsequently sought to prosecute the DWI offense. Id. In response, the defendant filed an

application for writ of habeas corpus arguing that his convictions for the traffic offenses

prohibited the State from pursuing the DWI case. See id. at 565-66. The appellate court

determined that there were no double-jeopardy implications because DWI required proof of an

element (intoxication) that the traffic offenses did not. Id. at 566. 1

Here, unlike in Cooper, Ramirez was not convicted of a traffic offense before

being prosecuted for DWI; instead, the State dismissed the charge of causing a collision with

1 The appellate court also addressed whether the DWI prosecution was barred under the United States Supreme Court’s opinion in Grady v. Corbin, 495 U.S. 508 (1990), because the State must prove the traffic offenses to prove the DWI case. Cooper v. State, 828 S.W.2d 565, 566 (Tex. App.—Houston [14th Dist.] 1992, no pet.). However, the United States Supreme Court overruled its Grady opinion shortly after the Cooper case was issued and explained that the rule from Grady was “wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy.” United States v. Dixon, 509 U.S. 688, 704 (1993).

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damage to a vehicle before the trial court accepted the plea agreement. Moreover, Ramirez has

not shown that jeopardy had attached to the traffic offense before it was dismissed. See Ex parte

Ali, 368 S.W.3d at 830 (explaining that applicant carries burden to show entitled to habeas

relief); see Ortiz v. State, 933 S.W.2d 102, 105, 106 (Tex. Crim. App. 1996) (discussing when

jeopardy attaches in jury trials, in bench trials, and in plea-agreement cases). Assuming that

dismissal of a traffic offense charge could implicate double jeopardy, it would not trigger

double-jeopardy protections if it occurred before jeopardy attached. See Ex parte George,

913 S.W.2d 523, 525 (Tex. Crim. App. 1995) (“[B]efore it can be said that an accused has been

put in jeopardy a second time, in violation of the Texas or United States Constitution, it must

appear that he was actually put in jeopardy before.”).

For these reasons, we conclude that the trial court did not abuse its discretion by

denying Ramirez’s requested habeas relief based on his double-jeopardy claim and, therefore,

overrule his first issue on appeal.

Ineffective Assistance of Counsel

In his second issue, Ramirez contends that the trial court erred by denying his

habeas application because his trial attorney provided ineffective assistance of counsel by failing

to present the double-jeopardy claim set out above. As support for his second issue, Ramirez

refers to Haynes v. State, 790 S.W.2d 824 (Tex. App.—Austin 1990, no pet.), but he does not

identify what portions of the case he is relying on or discuss how the case supports his assertion

that his attorney should have made a double-jeopardy argument.

Under the Rules of Appellate Procedure, a “brief must contain a clear and concise

argument for the contentions made, with appropriate citations to authorities and to the record.”

Tex. R. App. P. 38.1(i). A party must not only cite relevant authority and the record but must

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also provide substantive legal analysis. Burton v. Prince, 577 S.W.3d 280, 292 (Tex. App.—

Houston [14th Dist.] 2019, no pet.). An appellate court is not required to construct on his behalf

an appellant’s arguments with appropriate citations to the record and to legal authority. Wolfe

v. State, 509 S.W.3d 325, 343 (Tex. Crim. App. 2017); see also Lucio v. State, 351 S.W.3d 878,

896 (Tex. Crim. App. 2011) (determining that defendant’s issue was inadequately briefed and

presented nothing for review); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App.

2000) (same).

Although appellate courts construe briefing rules liberally, they also hold pro se

defendants to the same standards as they hold licensed attorneys, meaning that pro se defendants

must comply with applicable laws and rules of procedure. Brown v. State, 632 S.W.3d 75, 78

(Tex. App.—El Paso 2020, no pet.); Griffis v. State, 441 S.W.3d 599, 612 (Tex. App.—San

Antonio 2014, pet. ref’d); see also Faretta v. California, 422 U.S. 806, 834 n.46 (1975) (“The

right of self-representation is not . . . a license not to comply with relevant rules of procedural

and substantive law”). “If pro se litigants were not required to comply with applicable rules of

procedure, they would be given an unfair advantage over parties represented by counsel.”

Brown, 632 S.W.3d at 78. Additionally, “the right to appellate review extends only to

complaints made in accordance with our rules of appellate procedure.” See Alvarado v. State,

912 S.W.2d 199, 210 (Tex. Crim. App. 1995).

Because Ramirez’s brief does not set out substantive legal analysis on this issue,

the issue is “inadequately briefed and presents nothing for review.” See Lucio, 351 S.W.3d at

896; see also Alonzo v. State, No. 03-22-00518-CR, 2023 WL 5597362, at *1 (Tex. App.—

Austin Aug. 30, 2023, no pet.) (mem. op., not designated for publication) (determining that pro

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se defendant inadequately briefed issues by failing “to supply appropriate citations to authority

and to the record”).

Even liberally construing Ramirez’s brief, we note that the case he cites was

decided well before the trial court denied his first habeas application. See Ex parte Salazar,

510 S.W.3d at 625. Accordingly, like the first issue, he cannot rely on this case to establish the

unavailable-legal-basis exception to the subsequent writ prohibition. See Tex. Code Crim. Proc.

art. 11.072, § 9; Ex parte Navarro, 538 S.W.3d at 615; see also Ex parte Salazar, 510 S.W.3d at

629 (determining that abuse-of-writ provision of article 11.072 prohibited court from considering

ineffective assistance claim because defendant “failed to raise it in his first habeas application”

where “both the legal and factual bases for an ineffective assistance of counsel claim were

available at the time of the initial habeas petition”). As with his first issue, he does not explain

why the factual basis for his ineffective-assistance claim could not have been ascertained before

he filed his first habeas application, see Tex. Code Crim. Proc. art. 11.072, § 9(c), and cannot

rely on the unavailable factual basis exception, see Ex parte Smith, 2018 WL 2347012, at *3.

For these reasons, we conclude that the trial court did not abuse its discretion by

denying Ramirez’s requested habeas relief based on his ineffective-assistance claim and,

therefore, overrule his second issue on appeal.

CONCLUSION

Having overruled Ramirez’s two issues on appeal, we affirm the trial court’s

order denying his habeas application.

Karin Crump, Justice

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Before Justices Triana, Crump, and Ellis

Affirmed

Filed: October 22, 2026

Do Not Publish

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