In The Court of Appeals Ninth District of Texas at Beaumont __________________ NO. 09-19-00125-CR __________________ EX PARTE ADELIO ALEXANDER BARAHONA __________________________________________________________________ On Appeal from the County Court at Law No. 5 Montgomery County, Texas Trial Cause No. 19-31229 __________________________________________________________________ MEMORANDUM OPINION In this appeal, we must decide whether the court that heard Alexander Barahona’s second petition seeking a writ of habeas corpus erred by denying the petition, which sought to overturn Barahona’s conviction for his 2018 misdemeanor conviction for DWI. 1 Article 11.59 of the Code of Criminal Procedure prevents 1 We dismissed Barahona’s appeal from his first petition seeking habeas relief in 2018. Ex parte Barahona, No. 09-18-00328-CR, 2018 Tex. App. LEXIS 8886, at *2 (Tex. App.—Beaumont Oct. 31, 2018, no pet.) (mem. op., not designated for publication) (dismissing Barahona’s first appeal from the habeas court’s ruling on Barahona’s first petition seeking habeas relief in the same case he challenged in the first habeas proceeding, which he filed in July 2018). courts from considering a successive petition for habeas relief unless the petitioner establishes that his claims are based on facts not within the petitioner’s power to produce when the habeas court heard the petitioner’s former writ.2 For the reasons explained below, we affirm in part and reverse and remand in part. Background Between 2001 and May 24, 2018, Barahona lived in Montgomery County, Texas as a temporary-resident alien under a federal program that allowed an agency of the federal government to give him permission to live in the United States.3 But in May 2018, the agency, which operates within the Department of Homeland Security, notified Barahona that he might no longer qualify to continue living in the United States under the program based on the application he filed to renew his status under the federal program. The letter informed Barahona that his application contained information showing he had been convicted of two misdemeanors, and 2 Tex. Code Crim. Proc. Ann. art. 11.59. 3 8 U.S.C.S. § 1254a(c)(2)(B)(i). (LEXIS through Pub. L. No. 116-91). The program described by the federal agency in a letter Barahona filed in support of his second petition for relief outlines the rules of the agency’s program under which Barahona had qualified to live in the United States. The letter states that Barahona’s application seeking to renew his right to live here under “Temporary Protected Status (TPS)” contains information—referring to the two misdemeanor convictions—“that may warrant the denial of your TPS application.” that under the rules of the program, he might be ineligible to renew the status as a temporary-resident alien living in the United States. In June 2018, Barahona filed his former petition, his first, challenging the validity of his conviction on the 2018 misdemeanor DWI. The habeas court conducted a hearing on Barahona’s 2018 petition and denied the petition. Barahona appealed the ruling, but this Court dismissed that appeal after finding the Court of Appeals did not have jurisdiction over the appeal because the notice required to perfect the appeal had not been ...
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