Ex Parte Nicholas Owen Thompson ( 2022 )

IN THE
TENTH COURT OF APPEALS
No. 10-22-00162-CR
EX PARTE NICHOLAS OWEN THOMPSON
From the County Court at Law
Hill County, Texas
Trial Court No. M0255-21
MEMORANDUM OPINION
Appellant Nicholas Owen Thompson appeals the trial court’s denial of his writ of
habeas corpus. We will affirm.
Background
The underlying facts are not disputed. Thompson was arrested in Hill County for
the Class A misdemeanor offense of resisting arrest. The trial court signed an order to
have Thompson examined for competency. After a hearing, the trial court signed an
order of initial commitment pursuant to Article 46B.073. TEX. CODE CRIM. PROC. ANN. art.
46B.073. The trial court specifically found that Thompson was “a danger to himself or
others and cannot be safely treated on an outpatient basis.” The commitment order
directed Thompson to be confined at a mental health facility or residential care facility
determined to be appropriate by the Texas Health and Human Services Commission
(HHSC). The commitment order further directed the Sheriff of Hill County, where
Thompson was incarcerated, to place Thompson on the HHSC Forensic Admission
Clearinghouse list to determine placement in an available facility and to deliver
Thompson to said facility when designated by the HHSC.
Approximately nine months after Thompson’s initial incarceration, he filed a
petition for a writ of habeas corpus seeking his immediate release from custody or,
alternatively, an order directing the Hill County Sheriff to transfer Thompson to a
suitable mental health facility within seventy-two hours. After a hearing, the trial court
denied the habeas petition.
Testimony at the habeas hearing reflected that Thompson has been kept in solitary
confinement in the Hill County Jail while awaiting designation to an appropriate mental
health care facility, that Hill County does not have a jail-based competency restoration
program, that the anticipated wait time for admittance to an appropriate mental health
care facility was over six hundred days, and that Thompson’s mental state has continued
to deteriorate. The testimony additionally revealed that Thompson has been non-
compliant in taking the medication he has been prescribed and that there is a warrant for
Thompson from the Austin Police Department for the first degree felony offense of
aggravated robbery with a deadly weapon.
Issue One
Thompson argues that the trial court abused its discretion in denying his habeas
petition because he is unlawfully restrained and is entitled to immediate release.
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Thompson asserts that “an incompetent defendant’s right to due process is violated if
competency restoration services do not commence within a reasonable period after the
trial court commits him to receive such services.” Thompson argues that Chapter 46B
mandates “prompt” transportation to a mental health care facility, but he does not
challenge a specific statute as unconstitutional. 1 The relief Thompson seeks is reversal of
the trial court’s order denying habeas relief and immediate release from custody with
conditions of bail.
AUTHORITY
We generally review a ruling on a pre-trial habeas petition for an abuse of
discretion. See Ex parte Wheeler, 203 S.W.3d 317, 326 (Tex. Crim. App. 2006); Ex parte
Powell, 570 S.W.3d 417, 419 (Tex. App.—Waco 2019, no pet.). However, when the
resolution of an ultimate question turns on an application of legal standards, we review
the trial court’s ruling de novo. Ex parte Martin, 6 S.W.3d 524, 526 (Tex. Crim. App. 1999);
Powell, 570 S.W.3d at 419.
The Texas legislature has codified procedures for determining competency to
assure that incompetent defendants do not stand trial. TEX. CODE CRIM. PROC. ANN. ch.
46B; Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018).
Under article 46B.071, once a defendant is found incompetent to stand trial,
the trial court has two options aimed at restoring the defendant's
competency. Id. art. 46B.071 (options on determination of incompetency).
Absent a determination that the defendant is unlikely to be restored to
competency in the foreseeable future, the court must either (1) commit the
1
Thompson asserts a violation of the Due Process Clause of the Fourteenth Amendment to the United
States Constitution. He does not raise such a claim under the Due Course of Law provision of the Texas
Constitution. See U.S. CONST. amend. XIV, § 1; TEX. CONST. art I, § 19.
Ex Parte Thompson Page 3
defendant to a mental health facility or residential care facility for treatment
aimed at restoring the defendant's competency, or (2) release (or continue
the release of) the defendant on bail, subject to the defendant's participation
in an outpatient treatment facility for purposes of restoring competency. Id.
However, release with outpatient treatment is an option only if the court
first determines that the defendant “is not a danger to others and may be
safely treated on an outpatient basis.” Id. art. 46B.072 (release on bail).
Otherwise, the trial court must commit the defendant to a mental health
facility or residential care facility for examination and treatment for the
purpose of restoring the defendant's competency to stand trial. Id. art.
46B.073.
Lakey v. Taylor, 435 S.W.3d 309, 313 (Tex. App.—Austin 2014, no pet.) (footnotes omitted).
The objective of the treatment is to allow the incompetent defendant to regain his
competency to stand trial. See TEX. CODE CRIM. PROC. ANN. art. 46B.073. If, after
treatment, it is determined that a defendant is unable to be restored to competency and
the charges against him are not dismissed, the State may seek to have the defendant
civilly committed under Subchapter E.
A trial court’s pre-trial ruling on a defendant’s competence to stand trial is not
appealable. Id. art. 46B.011. In certain circumstances, a defendant may challenge such a
pre-trial ruling through a petition for a writ of habeas corpus. However, a pre-trial
habeas, followed by an interlocutory appeal, is an “extraordinary remedy,” and appellate
courts should be careful to ensure that it is not “misused to secure pretrial appellate
review of matters that in actual fact should 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)); Ex parte Barnett, 424 S.W.3d 809, 810
(Tex. App.—Waco 2014, no pet.). In general, habeas relief is only available for
“jurisdictional defects and violations of constitutional and fundamental rights.” Ex parte
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Johnson, 541 S.W.3d 827, 829 (Tex. Crim. App. 2017) (quoting Ex parte Moss, 446 S.W.3d
786, 788 (Tex. Crim. App. 2014)). “[A]bsent statutory direction to the contrary, . . . habeas
relief is not available for mere statutory violations.” Johnson, 541 S.W.3d at 829 (footnotes
omitted).
We determine, as a threshold matter, whether the issues raised in the habeas
petition should be addressed prior to determining whether the merits of the claim should
be resolved. Ellis, 309 S.W.3d at 79; Barnett, 424 S.W.3d at 810. Generally, a claim is
cognizable in a pretrial habeas petition if the granting of such a petition would deprive
the trial court of the power to proceed and result in the habeas petitioner’s immediate
release, such as if the courts determine that the statute under which a defendant is being
held is unconstitutional. Ex parte Smith, 185 S.W.3d 887, 892 (Tex. Crim. App. 2006);
Barnett, 424 S.W.3d at 810. Pretrial habeas relief is reserved for those cases which, if
resolved in the petitioner’s favor, must result in the petitioner’s immediate release. Ex
parte Walsh, 530 S.W.3d 774, 778 (Tex. App.—Fort Worth, 2017, no pet.) (emphasis added).
The courts decide constitutional questions when the issues raised cannot be
resolved on nonconstitutional grounds. Phillips v. McNeill, 635 S.W.3d 620, 630 (Tex.
2021); see also Jimenez v. State, 32 S.W.3d 233, 239 n.23 (Tex. Crim. App. 2000)
(“[C]onstitutional issues should not be addressed if the case can be resolved on
nonconstitutional grounds.”). “This rule is not optional.” Phillips, 635 S.W.3d at 630.
“When an appellate court can provide the appealing party with complete relief on
nonconstitutional grounds, it must do so.” Id.; see also Jean v. Nelson, 472 U.S. 846, 854,
105 S.Ct. 2992, 2997, 86 L.Ed.2d 664 (1985); VanDevender v. Woods, 222 S.W.3d 430, 432-33
Ex Parte Thompson Page 5
(Tex. 2007). This doctrine of judicial restraint also precludes the courts from expanding
constitutional issues beyond what is raised. See Estes v. State, 546 S.W.3d 691, 696-97 (Tex.
Crim. App. 2018).
Applying judicial restraint, a substantive due process analysis begins with a
careful description of the asserted right as the courts are required to exercise the utmost
care whenever asked to “break new ground in this field.” Reno v. Flores, 507 U.S. 292, 302,
113 S.Ct. 1439, 1447, 123 L.Ed.2d 1 (1993) (quoting Collins v. Harker Heights, 503 U.S. 115,
125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992)). Substantive due process protects those
liberty interests that are “objectively, deeply rooted in this Nation’s history and tradition,
and implicit in the concept of ordered liberty, such that neither liberty nor justice would
exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct.
2258, 2268, 138 L.Ed.2d 772 (1997). A liberty interest may arise from the Constitution
itself or from an “expectation or interest created by state laws or policies.” Wilkinson v.
Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 2393, 162 L.Ed.2d 174 (2005).
The Due Process Clause does not allow a criminal defendant who is incompetent
to be put to trial. Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S.Ct. 1373, 1376, 134 L.Ed.2d
498 (1996); see also Turner v. State, 422 S.W.3d 676, 688 (Tex. Crim. App. 2013). This right
must be weighed against the State’s interest in bringing a criminal defendant accused of
a serious crime to trial and in attempting treatments aimed at restoring the defendant’s
competency. See generally Sell v. United States, 539 U.S. 166, 179-80, 123 S.Ct. 2174, 2184,
156 L.Ed.2d 197 (2003); see also Bell v. Wolfish, 441 U.S. 520, 534, 99 S.Ct. 1861, 1871, 60
L.Ed.2d 447 (1979) (“[T]he Government has a substantial interest in ensuring that persons
Ex Parte Thompson Page 6
accused of crime are available for trials and, ultimately, for service of their sentence, [and]
that confinement of such persons pending trial is a legitimate means of furthering that
interest.”). However, a state is under no affirmative obligation to protect its citizens from
private harm or to provide substantive services to them, including medical or mental
health treatment, except in the case of incarcerated individuals when the deprivation of
such services rises to the level of “cruel and unusual punishment.” See DeShaney v.
Winnebago Cty. Dep’t of Soc. Servs, 489 U.S. 189, 195-98, 109 S.Ct. 998, 1003-05, 103 L.Ed.2d
249 (1989); see also Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982).
DISCUSSION
Thompson’s claims are not cognizable on appeal as his success would not deprive
the trial court of jurisdiction nor require his immediate release. Under Article 46B.012, a
finding that an individual is not in compliance with Chapter 46B does not entitle a
defendant to dismissal of charges and immediate release. TEX. CRIM. PROC. ANN. art.
46B.012. Neither this statute, nor any other section of Chapter 46B, create a substantive
right that impacts Thompson’s liberty interests. See Ex parte Seidel, 39 S.W.3d 221, 224
(Tex. Crim. App. 2001). Defining Thompson’s claim in the narrowest fashion, he is
asserting a fundamental due process right to being transferred to a mental health facility
within a “reasonable” time. No such fundamental right exists in the United States
Constitution, nor has the United States Supreme Court identified such a fundamental
right. At most, Article 46B creates a procedural right to be released from custody if certain
circumstances exist. Those circumstances are not present in this case. Thompson is not
entitled to release on bail due to the trial court’s determination that he is a danger to
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himself or others and that outpatient treatment is not appropriate. Thompson does not
challenge the validity of the trial court’s commitment order.
Even assuming that Thompson would be entitled to release, he has failed to
establish that his continued incarceration while awaiting assignment to an appropriate
mental health facility is a violation of his rights under the Due Process Clause. While
Thompson relies on the Austin Court of Appeals’ opinion in Lakey, the plaintiffs in that
case did “not argue that committed detainees are constitutionally entitled to a particular
amount, degree, or speed of competency-restoration treatment based on the Department’s
expressed willingness or statutory duty to provide treatment.” Lakey, 435 S.W.3d at 318(emphasis added). In Lakey, a direct appeal from a civil suit for declaratory and injunctive
relief, the court further noted, “We are not asked to decide whether the constitutional
rights of any individual plaintiff have been violated by a delay between the criminal
court’s declaration of incompetence and the committed detainee’s transfer to a mental
facility for competency restoration. Nor are we asked to decide whether a particular
amount of delay is unconstitutional.” Id. at 316. Additionally, Lakey involves a challenge
to the due course of law provision of the Texas Constitution rather than the Due Process
Clause of the United States Constitution. While the Due Process Clause and the due
course of law provision are treated similarly, they are not identical. See Honors Acad., Inc.
v. Tex. Educ. Agency, 555 S.W.3d 54, 61 (Tex. 2018). To the extent that Lakey identifies a
new liberty interest under the Due Process Clause, we decline to adopt such a finding.
Thompson’s case is more akin to that presented in Ex parte McVade, Nos. 03-17-
00207-CR, 03-17-00208-CR, 03-17-00209-CR, 2017 WL 4348151, at *3 (Tex. App.—Austin
Ex Parte Thompson Page 8
2017, no pet.) (mem. op., not designated for publication), wherein the habeas petitioner
requested release on the ground that his pre-trial confinement while awaiting transfer to
a mental health facility for competency restoration treatment violated his due process
rights. As in McVade, Thompson does not challenge the validity of the commitment
order, the trial court’s compliance with the applicable statutory procedures, or the
statutory provisions under which he was taken into custody and is being confined.
Thompson has, therefore, failed to establish that he is entitled to immediate release or
that his rights under the Due Process Clause have been violated.
In light of the foregoing, Thompson’s claim is not cognizable in a habeas petition,
and his sole issue is overruled.
Conclusion
Having overruled Thompson’s sole issue, we affirm the trial court’s order denying
Thompson’s petition for a writ of habeas corpus.
MATT JOHNSON
Justice
Before Chief Justice Gray,*
Justice Johnson, and
Justice Smith
Affirmed
*(Chief Justice Gray concurs in the result.
A separate opinion will not issue.)
Opinion entered and filed October 5, 2022
[CR25]
Do not publish
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