Ex Parte Quincy Harrison ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00209-CR
EX PARTE Quincy HARRISON
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2017-CR-4194
Honorable Joey Contreras, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: December 5, 2018
DISMISSED FOR WANT OF JURISDICTION
This appeal stems from Appellant Quincy Harrison’s pretrial application for writ of habeas
corpus asserting the statutes upon which his indictments were based were facially unconstitutional.
The State counters the claims are not cognizable by pretrial habeas. Because we conclude
Harrison’s claims are not cognizable in a pretrial writ of habeas corpus, we dismiss this appeal for
want of jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
On April 18, 2017, Appellant Quincy Harrison was indicted by a Bexar County Grand Jury
on one count of continuous trafficking of persons pursuant to Texas Penal Code section 20A.03
and three counts of compelling prostitution pursuant to Texas Penal Code section 43.05(a)(2). See
TEX. PENAL CODE §§ 20A.03; 43.05(a)(2).
04-18-00209-CR
On February 23, 2018, Harrison filed a pretrial application for writ of habeas corpus
asserting both statutes under which he was charged, the pre-September 2017 versions, were
facially unconstitutional. More specifically, Harrison contended section 43.05(a)(2): (1) negated
the mens rea requirement; (2) violated his right to due process, due course of law, and right to
present a defense; and (3) does not afford an opportunity to ascertain the true age of the child.
Additionally, Harrison argued both sections 43.05(a)(2) and 20A.02(a)(7) were unconstitutionally
vague and overbroad, thus violative of his due process rights.
On March 14, 2018, without a hearing, the trial court considered Harrison’s application,
and relying on Fleming v. State, 455 S.W.3d 577, 581–82 (Tex. Crim. App. 2014), concluded the
statutes’ failure to require a mens rea as to the victim’s age did not violate either federal or state
constitution protections. The trial court, therefore, denied the relief requested by Harrison.
On appeal, Harrison contends (1) Texas Penal Code section 43.05(a)(2) is unconstitutional
because the statute does not require proof the defendant knew the age of the child at the time of
the commission of the offense; and (2) Texas Penal Codes 43.05(a)(2) and 20A.03–20.A02(a)(7)
are unconstitutionally vague by their use of the language defining the offense as causing—“by any
means”—a child to be sexually trafficked or commit prostitution is vague. The State counters no
mens rea is constitutionally required; but more importantly, these claims are not cognizable in a
pretrial writ of habeas corpus.
We turn first to whether these claims are cognizable in a pretrial writ of habeas corpus.
COGNIZABLE CLAIMS
A. Anti-Defensive Issues
Generally, “a claim is cognizable in a pretrial 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.” Ex parte Smith, 185 S.W.3d 887, 892 (Tex. Crim. App. 2006).
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Pretrial habeas proceedings, followed by an interlocutory appeal, provide an extraordinary remedy,
and courts must ensure that a pretrial writ is not misused to procure a premature and inappropriate
pretrial appellate review of matters. See Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010);
Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010); Ex parte Smith, 178 S.W.3d 797,
801 (Tex. Crim. App. 2005). “A defendant may use a pretrial writ of habeas corpus only in very
limited circumstances.” Ex parte Paxton, 493 S.W.3d 292, 297 (Tex. App.—Dallas 2016, pet.
ref’d) (citing Smith, 178 S.W.3d at 801). “Except when double jeopardy is involved, pretrial
habeas is not available when the question presented, even if resolved in the defendant’s favor,
would not result in immediate release.” Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App.
2016); see also Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001). “The accused may
challenge the (1) State’s power to restrain him at all, i.e., the existence of probable cause, (2) the
manner of his restraint, i.e., the denial of bail or conditions attached to bail, and (3) certain issues
that would bar prosecution or conviction.” Paxton, 493 S.W.3d at 297.
B. Harrison’s Complaint
1. Lack of Mens Rea
Harrison’s first challenge is the statute’s failure to expressly require a mens rea—it does
not require proof the defendant knew the age of the child at the time of the commission of the
offense. However, constitutional challenges on free-standing anti-defensive issues are not
cognizable on pretrial habeas. Ex parte Ingram, 533 S.W.3d 887, 894 (Tex. Crim. App. 2017).
Harrison’s complaint regarding the mens rea is not a right to avoid trial and would require the
development of a record at a pretrial habeas proceeding. Id. at 893. Thus, “it follows that the
proper remedy would be to litigate the constitutionality of a freestanding anti-defensive issue at
trial if the issue is raised by the evidence at trial.” Id.
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This case is further analogous to Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App.
2001)).
Weise [was] not claiming that the statute itself is unconstitutional. He [was] not
claiming that the trial court lacked the power to proceed. Rather, he [was] claiming
that the statute as applied via the information [was] unconstitutional because it
fail[ed] to allege a mens rea. This [was], in reality simply an attack on the charging
instrument.
Id.
Here, like in Ingram, 533 S.W.3d 893–94, and Weise, 55 S.W.3d at 620, Harrison’s claim
is truly that the statute, via the indictment, is unconstitutional because it fails to allege a mens rea
and is, thus, not cognizable on pretrial habeas. See also Ex parte Ellis, 309 S.W.3d 71, 79 (Tex.
Crim. App. 2010) (concluding that applicant’s assertion that statute is facially unconstitutional “is
not, by itself, enough. If a claim designated as a facial challenge is in fact an as-applied challenge,
courts should refuse to consider the merits of the claim.”); Smith, 185 S.W.3d at 892–93
(concluding that in pari materia claim was not yet ripe for review and thus not cognizable on
pretrial habeas); Smith, 178 S.W.3d at 803 (referring to “specificity defects” in charging
instruments as “reparable” matters that “do not destroy a trial court’s power or jurisdiction to
proceed”).
Additionally, even if Harrison prevailed on his complaint, it would not terminate the State’s
prosecution and would not result in immediate release. Harrison’s claim requires development of
a factual record in the trial court and such record is a precursor to the court’s determination of the
issues. See Ingram, 533 S.W.3d at 894. Thus, Harrison’s claim “revolve[s] around” an anti-
defensive issue and is not cognizable on pretrial habeas. Id.
2. Failure to Define Terms
Harrison’s second challenge is that the statutes are unconstitutionally vague by their use of
“by any means” to cause the child to be sexually trafficked or commit prostitution. “Generally,
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pretrial habeas is not available to test the sufficiency of the charging instrument or to construe the
meaning and application of the statute defining the offense charged.” Ellis, 309 S.W.3d at 79.
“But unless First Amendment freedoms are implicated, a facial vagueness challenge can succeed
only if it is shown that the law is unconstitutionally vague in all of its applications.” Id. at 80
(internal citations omitted). Harrison does not contend the statute implicates First Amendment
freedoms; he must, therefore, show that the definition of “by any means” is unconstitutionally
vague in all of its applications. See Shaffer v. State, 184 S.W.3d 353, 364 (Tex. App.—Fort Worth
2006, pet. ref’d) (explaining when First Amendment is not involved, facial challenge is difficult
to sustain because requires IT establishing no set of circumstances exists under which statute is
valid).
When First Amendment freedoms are not implicated, a facial vagueness challenge can
succeed only if it is shown that the law is unconstitutionally vague in all of its applications. Ellis,
309 S.W.3d at 80. A statute is vague if persons of common intelligence are incapable of
deciphering what conduct is prohibited. See Watson v. State, 369 S.W.3d 865, 870 (Tex. Crim.
App. 2012). Harrison argues the language (1) creates “countless possibilities” and a “wide-open
range of possibilities” for what someone can be charged; and (2) offers little guidance to law
enforcement. Accordingly, because Harrison has not shown the complained of language, “by any
means,” is vague in all applications, he is not entitled to pretrial habeas relief. See Ellis, 309
S.W.3d at 80; see also Ex parte Dillard, No. 05-15-00488-CR, 2015 WL 4099837, at *1–2 (Tex.
App.—Dallas July 7, 2015, no pet.) (mem. op., not designated for publication) (concluding
challenge to criminal solicitation of a minor “by any means” was facially unconstitutional was not
cognizable by pretrial writ of habeas corpus).
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CONCLUSION
Because Harrison’s challenge to the constitutionality of the statutes are not cognizable from
the denial of pretrial writ of habeas corpus, we lack jurisdiction over this appeal. We, therefore,
dismiss the appeal for want of jurisdiction.
Patricia O. Alvarez, Justice
DO NOT PUBLISH
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