Ex Parte David Mark Temple ( 2021 )

Affirmed and Opinion filed November 23, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00156-CR
NO. 14-20-00238-CR
EX PARTE DAVID MARK TEMPLE
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause Nos. 1662171 & 1667270
OPINION
Appellant David Mark Temple appeals the trial court’s denial of his
application for pretrial writ of habeas corpus in cause number 14-20-00156-CR and
the trial court’s writ of habeas corpus judgment denying the requested relief in
cause number 14-20-00238-CR. He contends (1) the trial court abused its
discretion in granting a mistrial because it did not result from manifest necessity
(therefore barring any further prosecution as required by the double jeopardy
provisions of the United States and Texas Constitutions); and (2) a punishment
retrial pursuant to Texas Code of Criminal Procedure article 37.07, section 3(c), as
amended in 2005, would violate (a) the Ex Post Facto Clauses of the federal and
state constitutions, (b) the ban on retroactive laws in the state constitution, and (c)
Appellant’s right to a jury trial under the federal and state constitutions. We
affirm.
BACKGROUND
Appellant’s wife, Belinda Temple, was murdered in 1999. In 2007, a jury
convicted Appellant of Belinda’s murder and sentenced him to life in prison.
Following extensive litigation, Appellant’s conviction and life sentence were
reversed and a new trial ordered. On June 20, 2019, a second jury trial began.
After hearing evidence for several weeks, the jury found Appellant guilty of his
wife’s murder on August 6, 2019. That same day, the punishment phase of trial
began. The State and defense presented their closing arguments on August 7,
2019, and the jury started deliberating thereafter. The court released two of the
four alternate jurors (leaving two alternate jurors remaining).
The jury sent a note on August 8, 2019, requesting a break and informing the
trial court that it made no progress during two days of deliberation and “could use
some counsel from [the court] on how to proceed.” The following morning at
10:40 a.m., the trial court received a second note from the jury stating: “Judge: 2
jurors will not deliberate. What should we do?” Appellant’s counsel requested
that the parties be given an opportunity to address the jury after the court “give[s] a
supplemental instruction to the jury.” The State objected to Appellant’s request
but raised the following concern:
I am concerned about one thing, Your Honor. There is case law
where jurors have said that — or where courts have said a refusal to
deliberate can lead to disability, so I do have some concern about that.
And at this point, I realize I don’t think in any way, shape, or form
that I’m suggesting to the Court at this point with what we know that
2
the jurors are disabled. But it certainly sounds like it bears some
potential of looking into.
The court denied Appellant’s request for additional arguments. The court read an
Allen1 charge and asked the jury to continue deliberations. In the early afternoon,
the jury sent a third note to the trial court.2 In the jury’s presence, the trial court
read the jury’s third note, which stated:
Judge, severe violence has already been done to most of our
conscience to even get this far. We believe it is a total fluke, a one
and a thousand chance that this group of jurors was assembled. We
know the price a mistrial carries. We know it will put families
through weeks of hell again. But for the sentence, we can and are
willing to accept it, it is worth it. We believe any other jury
assembled could do this job properly, and deliver the proper or even
reasonable sentence. When two jurors are not willing to budge at all,
there is nothing more we can do. It is best for all families involved, as
well as society, to give someone else a try. We will keep deliberating
until you tell us otherwise.
After reading the note, the trial court stated that “based on that very well-written
note, it is time that the Court declares a mistrial.” The trial court also stated that it
“intend[s] to put this back on the trial docket at the end of March of next year” for
a new punishment hearing. The court signed a “Mistrial (Hung Jury) Order” on
August 9, 2019.
Appellant filed an application for pretrial writ of habeas corpus under trial
court number 1662171 on January 15, 2020. He (1) argued that a punishment
retrial pursuant to Texas Code of Criminal Procedure article 37.07, section 3(c), as
amended in 2005, would violate the Ex Post Facto Clauses of the federal and state
constitutions, the ban on retroactive laws in the state constitution, and Appellant’s
1
See Allen v. United States, 164 U.S. 492, 501 (1896).
2
Before the jury was seated in the courtroom, Appellant “object[ed] to a mistrial at this
time.”
3
right to a jury trial under the federal and state constitutions; and (2) asked the trial
court to enter an order that Appellant “receive a new trial as to guilt and
punishment as the law existed in 1999.” After a hearing on February 5, 2020, the
trial court denied Appellant’s application for writ of habeas corpus. That same
day, Appellant filed a notice of appeal from the trial court’s order, and the appeal
was assigned to this court under appellate number 14-20-00156-CR.
On March 5, 2020, the trial court held a hearing on the State’s motion to
exclude exonerating or residual doubt evidence at punishment, and the trial court
granted the motion. That same day, Appellant filed an application for pretrial writ
of habeas corpus under trial court number 1667270, arguing that a punishment
retrial was barred by the Double Jeopardy Clause of the federal and state
constitutions because the court failed to consider less drastic alternatives before
ordering a mistrial. Appellant asked the trial court to bar “further prosecution and
dismiss the charges pending against him.” The trial court held a hearing on March
13, 2020, and signed a judgment denying the relief requested. Appellant filed a
notice of appeal from the trial court’s writ of habeas corpus judgment. That appeal
was assigned to this court under appellate number 14-20-00238-CR.
On May 18, 2020, Appellant filed an unopposed motion to consolidate the
related appeals. This Court granted the motion in an order issued on July 2, 2020.
ANALYSIS
Appellant raises two issues on appeal. We begin by addressing Appellant’s
Double Jeopardy Clause argument before turning to his Ex Post Facto Clause and
retroactive law complaints.
I. Double Jeopardy
In his first issue, Appellant argues that the trial court abused its discretion by
4
denying his pretrial application for writ of habeas corpus because the Double
Jeopardy Clauses of the United States and Texas Constitutions bar a retrial after a
court declares a mistrial when the jury cannot reach a verdict if the court fails to
consider each reasonable less drastic alternative before making the ruling.
Appellant contends he is therefore entitled to an acquittal.
Jurisdiction and Standard of Review
“Pretrial habeas, followed by an interlocutory appeal, is an extraordinary
remedy.” Ex parte Ingram, 533 S.W.3d 887, 892 (Tex. Crim. App. 2017). “A
defendant may use a pretrial writ of habeas corpus only in very limited
circumstances.” Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005). A
pretrial writ application is improper when resolution of the question presented,
even if resolved in defendant’s favor, would not result in immediate release. Ex
parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001). However, a defendant
may use a pretrial habeas application to assert his constitutional protections with
respect to double jeopardy. Ex parte Ingram, 533 S.W.3d at 892; Ex parte Weise,
55 S.W.3d at 619.
We review a trial court’s ruling on a pretrial writ of habeas corpus for an
abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006);
see also Ex parte Onyeahialam, 558 S.W.3d 740, 743 (Tex. App.—Houston [14th
Dist.] 2018, pet. ref’d). A trial court abuses its discretion if it acts arbitrarily or
unreasonably or without reference to any guiding rules or principles. Ex parte
Allen, 619 S.W.3d 813, 816 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d). In
making this determination, we view the facts in the light most favorable to the trial
court’s ruling. See Kniatt, 206 S.W.3d at 664; Ex parte Onyeahialam, 558 S.W.3d
at 743.
Because Appellant raises a double jeopardy claim, it is cognizable via
5
pretrial habeas corpus and we may address the merits. See Ex parte Ingram, 533
S.W.3d at 892; Ex parte Weise, 55 S.W.3d at 619.
Merits
Appellant argues that the trial court abused its discretion when it ordered a
mistrial that was not based on manifest necessity because the trial court refused to
explore “less drastic alternatives”, thereby barring a punishment retrial under the
double jeopardy protections of the United States and Texas Constitutions. In that
regard, Appellant contends (1) he has a “valued right to have his trial completed by
a particular tribunal”; (2) “double jeopardy protection applies to a punishment only
proceeding if it has all of the ‘hallmarks’ of a trial”;3 (3) pursuant to Texas Code of
Criminal Procedure article 37.07, section 3(c), “[w]hen a jury can not reach a
verdict at punishment, and a mistrial is declared, there is no jeopardy”; (4) under
article 37.07, section 3(c), his “double jeopardy rights are called into question
when a trial court abuses [its] discretion in declaring a mistrial without
consideration of all less drastic alternatives”; (5) unless a mistrial is ordered based
on manifest necessity, double jeopardy bars his retrial on punishment; and (6) here
there was no manifest necessity for a mistrial because the trial court did not
determine if the two jurors who refused to deliberate were disabled and the trial
court did not allow the parties to make additional arguments to the jury during
deliberation.
The State counters that Appellant waived any complaint under the Texas
Constitution because he failed to brief and establish that the Texas Constitution
provides broader protections than its federal counterpart. Specifically, the State
claims that Appellant failed to establish the trial court erred when it denied his
3
See infra pp. 9-10.
6
double jeopardy claims because (1) “[a]lthough double jeopardy attached when the
jury was sworn, there can be no violation here because jeopardy never terminated”
as there was no acquittal or conviction; (2) “the Double Jeopardy Clause does not
extend to Texas’ non-capital sentencing regime”; and, alternatively, (3) “a mistrial
resulting from a jury’s inability to reach a verdict as to punishment is a ‘classic
basis’ to establish manifest necessity.”
“The prohibition against double jeopardy is found in the Fifth Amendment
to the United States Constitution.” Stephens v. State, 806 S.W.2d 812, 814 (Tex.
Crim. App. 1990) (en banc). The Fifth Amendment’s prohibition is fully
applicable to the states through the Fourteenth Amendment. Id. at 814-15. The
protection against double jeopardy also may be found in Article I, section 14 of the
Texas Constitution. Id. at 814. “Conceptually, the State and Federal double
jeopardy provisions are identical.” Id. at 815. The Texas Constitution provides no
greater protection than the United States Constitution regarding double jeopardy
except in cases in which the State causes a mistrial. Id. Because the state and
federal protections against double jeopardy are conceptually identical, we rely on
the Double Jeopardy Clause of the United States Constitution in addressing a
jeopardy challenge. Ex parte Navarro, 523 S.W.3d 777, 780 (Tex. App.—Houston
[14th Dist.] 2017, pet. ref’d). Appellant has not established or even briefed that the
Texas Constitution provides broader protections than its federal counterpart. See
Tex. R. App. P. 38.1(i).
The Fifth Amendment’s Double Jeopardy Clause provides that no person
shall “be subject for the same offence to be twice put in jeopardy of life or limb.”
U.S. Const. amend. V. Double jeopardy protects an accused against: (1) a second
prosecution for the same offense after acquittal; (2) a second prosecution for the
same offense after conviction; and (3) multiple punishments for the same offense.
7
Brown v. Ohio, 432 U.S. 161, 165 (1977); Weinn v. State, 326 S.W.3d 189, 192
(Tex. Crim. App. 2010).
Appellant contends that “double jeopardy protection applies to a punishment
only proceeding if it has all of the ‘hallmarks’ of a trial” and cites Bullington v.
Missouri, 451 U.S. 430, 439 (1981). Relying on Bullington, he asserts double
jeopardy applies to the punishment proceeding in this case because the State had
“the burden of establishing facts beyond a reasonable doubt” and “the evidence
was introduced in a separate proceeding that formally resembled a trial.”
However, Appellant’s assertion is belied by the Supreme Court’s pronouncements
in Monge v. California, 524 U.S. 721 (1998).
There, the Supreme Court reaffirmed that “[h]istorically, we have found
double jeopardy protections inapplicable to sentencing proceedings . . . because the
determinations at issue do not place a defendant in jeopardy for an ‘offense.’” Id.
at 728 (internal citations omitted). The Court stated that sentencing decisions
favorable to a defendant cannot generally be analogized to an acquittal and that
when an appeals court overturns a conviction on the ground that the State proffered
insufficient evidence of guilt, that finding is comparable to an acquittal and the
Double Jeopardy Clause precludes a second trial. Id. at 729. “Where a similar
failure of proof occurs in a sentencing proceeding, however, the analogy is inapt.
The pronouncement of sentence simply does not ‘have the qualities of
constitutional finality that attend an acquittal.’” Id. (quoting United States v.
DiFrancesco, 449 U.S. 117, 134 (1980)). Specifically, the Supreme Court’s
statement that its “opinion in Bullington established a ‘narrow exception’ to the
general rule that double jeopardy principles have no application in the sentencing
context” is determinative here. Id. at 730 (quoting Schiro v. Farley, 510 U.S. 222,
231 (1994)). In Monge, the Court rejected the defendant’s argument that the
8
rationale for imposing a double jeopardy bar in Bullington “applies with equal
force to California’s proceedings to determine the truth of a prior conviction
allegation.” Id. at 731-32. The Court explained:
In Bullington, a capital defendant had received a sentence of life
imprisonment from the original sentencing jury. The defendant
subsequently obtained a new trial on the ground that the court had
permitted prospective women jurors to claim automatic exemption
from jury service in violation of the Sixth and Fourteenth
Amendments. When the State announced its intention to seek the
death penalty again, the defendant alleged a double jeopardy
violation. We determined that the first jury’s deliberations bore the
“hallmarks of the trial on guilt or innocence,” because the jury was
presented with a choice between two alternatives together with
standards to guide their decision, the prosecution undertook the
burden of establishing facts beyond a reasonable doubt, and the
evidence was introduced in a separate proceeding that formally
resembled a trial. In light of the jury’s binary determination and the
heightened procedural protections, we found the proceeding distinct
from traditional sentencing, in which “it is impossible to conclude that
a sentence less than the statutory maximum ‘constitute[s] a decision to
the effect that the government has failed to prove its case.’”
Moreover, we reasoned that the “embarrassment, expense and ordeal”
as well as the “anxiety and insecurity” that a capital defendant faces
“are at least equivalent to that faced by any defendant at the guilt
phase of a criminal trial.” And we cited the “unacceptably high risk”
that repeated attempts to persuade a jury to impose the death penalty
would lead to an erroneous capital sentence. . . .
. . . Like the Missouri capital sentencing scheme at issue in Bullington,
petitioner argues, the sentencing proceedings here have the “hallmarks
of a trial on guilt or innocence” because the sentencer makes an
objective finding as to whether the prosecution has proved a historical
fact beyond a reasonable doubt. . . .
Even assuming, however, that the proceeding on the prior conviction
allegation has the “hallmarks” of a trial that we identified in
Bullington, a critical component of our reasoning in that case was the
capital sentencing context. The penalty phase of a capital trial is
undertaken to assess the gravity of a particular offense and to
9
determine whether it warrants the ultimate punishment; it is in many
respects a continuation of the trial on guilt or innocence of capital
murder. “It is of vital importance” that the decisions made in that
context “be, and appear to be, based on reason rather than caprice or
emotion.” Because the death penalty is unique “in both its severity
and its finality,” we have recognized an acute need for reliability in
capital sentencing proceedings.
* * *
Moreover, we have suggested in earlier cases that Bullington’s
rationale is confined to the “unique circumstances of a capital
sentencing proceeding.”
Id. at 730-33.
Thus, Bullington does not support Appellant’s argument that double
jeopardy protections apply to punishment proceedings, bar a punishment retrial in
this case, and require an acquittal. Instead, the Supreme Court concluded that
double jeopardy does not apply to non-capital sentencing proceedings. See id. at
728-34. Further, the Court of Criminal Appeals has affirmatively cited and
acknowledged the Supreme Court’s holding in Monge that double jeopardy
protections do not preclude a non-capital sentencing retrial. See Rollerson v. State,
227 S.W.3d 718, 730 (Tex. Crim. App. 2007) (“[R]elitigation of the deadly-
weapon issue is not barred by double jeopardy because double jeopardy does not
apply to sentencing proceedings of a trial for a non-capital offense.”); Allen v.
State, No. AP-74,951, 2006 WL 1751227, at *7 (Tex. Crim. App. June 28, 2006)
(not designated for publication) (“The United States Supreme Court has held that
double jeopardy protections are inapplicable to sentencing proceedings because the
determinations at issue do not place a defendant in jeopardy for an ‘offense.’”);
Bell v. State, 994 S.W.2d 173, 175 (Tex. Crim. App. 1999) (en banc) (“Under the
United States Supreme Court’s decision in Monge v. California, it would not
violate federal double jeopardy principles to allow the State ‘a second chance to
10
present its proof of the prior burglary conviction.’”). Our sister courts have also
determined that double jeopardy is inapplicable to non-capital sentencing
proceedings.4 We will not hold otherwise.
We also note that contrary to Appellant’s assertion, he does not have an
absolute or unqualified right to have his trial completed by a particular jury.
Appellant cites Arizona v. Washington, 434 U.S. 497, 503 (1978), to support his
contention that he has a “prized right to have his trial, once under way, completed
by a particular trier.” However, while acknowledging a defendant’s right to have
his trial completed by a particular jury, the Supreme Court stated that “‘the
public’s interest in fair trials designed to end in just judgements’ must prevail over
the defendant’s ‘valued right’ to have his trial concluded before the first jury
impaneled.” Id. at 516 (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)).
We conclude that double jeopardy does not bar a new non-capital sentencing
proceeding in this case and Appellant is not entitled to an acquittal.5 Accordingly,
we overrule Appellant’s first issue.
II. Ex Post Facto Clause and Retroactive Law
4
See Bunton v. State, 136 S.W.3d 355, 364 (Tex. App.—Austin 2004, pet. ref’d)
(“Historically, the double jeopardy protections have been held inapplicable to state sentencing.”);
Barnes v. State, 70 S.W.3d 294, 303 (Tex. App.—Fort Worth 2002, pet. ref’d) (“Double
jeopardy principles are generally not applicable to non-capital sentencing proceedings.”); State v.
Webb, 980 S.W.2d 924, 926 (Tex. App.—Fort Worth 1998), aff’d, 12 S.W.3d 808 (Tex. Crim.
App. 2000) (en banc) (“In other words, double jeopardy protections are inapplicable to
sentencing proceedings in a noncapital context.”); see also Machuca v. State, No. 03-08-00597-
CR, 2009 WL 1423993, at *2 (Tex. App.—Austin May 21, 2009, pet. ref’d) (mem. op., not
designated for publication) (“This argument fails because the Double Jeopardy Clause does not
extend to noncapital sentencing proceedings.”); Turner v. State, No. 10-02-051-CR, 2003 WL
22023483, at *5 (Tex. App.—Waco Aug. 27, 2003, no pet.) (mem. op., not designated for
publication) (“The Double Jeopardy Clause of the Fifth Amendment of the United States
Constitution is not applicable in non-capital sentencing proceedings.”).
5
In light of our holding, we need not address any alternative arguments raised by the
parties, including whether the trial court abused its discretion in granting a mistrial sua sponte.
11
In his second issue, Appellant contends that applying amended article 37.07,
section 3(c) to him violates the (1) Ex Post Facto Clause of the United States and
Texas Constitutions; (2) ban on retroactive laws in the Texas Constitution; and (3)
right to a jury trial under the United States and Texas Constitutions. In that
respect, he seems to argue that application of the amended statute to his
punishment retrial would deny him the vested right to have a single jury determine
both his guilt and punishment, and the right to have the jury consider “exonerating
or residual doubt evidence in its determination of [his] punishment.”6
A pretrial writ of habeas corpus is an appropriate vehicle to assert a facial
constitutional challenge to the validity of a statute, but it may not be used to
advance an as-applied constitutional challenge to a statute. Ex parte Ellis, 309
6
At the time of Belinda’s murder in 1999, article 37.07, section 3(c) provided as follows:
In cases where the matter of punishment is referred to the jury, the verdict shall
not be complete until the jury has rendered a verdict both on the guilt or
innocence of the defendant and the amount of punishment, where the jury finds
the defendant guilty. In the event the jury shall fail to agree, a mistrial shall be
declared, the jury shall be discharged, and no jeopardy shall attach.
Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 2, art. 37.07, sec. 3(c), 1973 Tex. Gen. Laws
883, 972. Article 37.07, section 3(c) was amended effective September 1, 2005, and since that
time provides as follows:
If the jury finds the defendant guilty and the matter of punishment is referred to
the jury, the verdict shall not be complete until a jury verdict has been rendered on
both the guilt or innocence of the defendant and the amount of punishment. In the
event the jury shall fail to agree on the issue of punishment, a mistrial shall be
declared only in the punishment phase of the trial, the jury shall be discharged,
and no jeopardy shall attach. The court shall impanel another jury as soon as
practicable to determine the issue of punishment.
Act of May 20, 2005, 79th Leg., R.S., ch. 660, § 2, sec. 3(c), § 4, 2005 Tex. Gen. Laws 1641,
1641 (current Tex. Code Crim. Proc. Ann. art. 37.07, § (3)(c)).
12
S.W.3d 71, 79 (Tex. Crim. App. 2010). An as-applied challenge is brought during
or after a trial on the merits because it is only then that the trial court and appellate
courts have the particular facts and circumstances of the case needed to determine
whether the statute or law has been applied in an unconstitutional manner. State ex
rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011).
Pretrial habeas corpus, followed by an interlocutory appeal, is an
extraordinary remedy. Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App.
2016); Ex parte Ellis, 309 S.W.3d at 79. Thus, we must be careful to ensure that a
pretrial writ is not misused to secure pretrial appellate review of matters that
should not be put before the appellate courts at the pretrial stage. Ex parte Ellis,
309 S.W.3d at 79. “Neither a trial court nor an appellate court should entertain an
application for writ of habeas corpus when there is an adequate remedy by appeal.”
Ex parte Weise, 55 S.W.3d at 619. Accordingly, whether a claim is cognizable on
pretrial habeas corpus is a threshold issue that we must address before we may
resolve the merits of a claim. See Ex parte Ellis, 309 S.W.3d at 79. If a non-
cognizable claim is resolved on the merits in a pretrial habeas appeal, the pretrial
writ has been misused, and the State can appropriately petition the Court of
Criminal Appeals to correct such misuse. Id.
Here, Appellant contends that his as-applied claim is available through a
pretrial writ of habeas corpus based on the Court of Criminal Appeals’ holding in
Ex parte Perry.
In Perry, former Texas Governor Rick Perry argued that the abuse-of-
official-capacity statute was unconstitutional as applied because it violated the
Texas Constitution’s Separation of Powers provision. Ex parte Perry, 483 S.W.3d
at 890. The court of appeals held that Perry’s as-applied claim was not cognizable
in a pretrial habeas corpus application. Id. at 892. The Court of Criminal Appeals
13
disagreed and concluded 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.
We find the facts in this case are distinguishable from those present in Perry.
See Ex parte Walsh, 530 S.W.3d 774, 781 (Tex. App.—Fort Worth 2017, no pet.)
(declining to extend the Perry holding to defendant’s as-applied challenge because,
among other things, he was not a government official and his claim did not concern
an infringement of governmental power); Ex parte Paxton, 493 S.W.3d 292, 303
(Tex. App.—Dallas 2016, pet. ref’d) (declining to hold that pretrial habeas relief
was available under Perry because defendant’s charges did not arise out of his
duties as an elected official but from his conduct as a private citizen). The Court of
Criminal Appeals in Perry reaffirmed that as-applied challenges are not cognizable
on pretrial habeas corpus except for very limited exceptions. See Ex parte 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 a limited exception. See id. at 898. However,
Appellant here is a private citizen and not an elected official. And Appellant’s
charges do not arise out of any duty as an elected official. Perry’s narrow holding
provides no support for Appellant.
Further, we are not persuaded by Appellant’s contention that his as-applied
constitutional challenge to the application of article 37.07, section 3(c) constitutes
a cognizable claim because the trial court “specifically identified the scope or
identifiable exonerating or residual doubt testimony and witnesses that will be
excluded from a punishment only trial” when it granted the State’s motion to
exclude evidence at his new punishment trial. The trial court can easily change its
mind, reconsider its ruling, and admit evidence once Appellant offers it at the
14
punishment trial.
We conclude that Perry does not provide support for Appellant’s contention
that his as-applied constitutional challenge is a cognizable claim on pretrial writ of
habeas corpus. See id. at 895-98. Accordingly, we overrule Appellant’s second
issue.
CONCLUSION
We affirm (1) the trial court’s order denying Appellant’s application for
pretrial writ of habeas corpus in cause number 14-20-00156-CR and (2) the trial
court’s habeas corpus judgment denying the requested relief in cause number
14-20-00238-CR.
/s/ Meagan Hassan
Justice
Panel consists of Justices Zimmerer, Spain, and Hassan.
Publish — Tex. R. App. P. 47.2(b).
15