Ex Parte Quincy Blakely ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00426-CR
___________________________
Ex parte Quincy Blakely
On Appeal from the 16th District Court
Denton County, Texas
Trial Court No. F17-2106-211
Before Kerr, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Pro se appellant Quincy Blakely is trying to appeal the trial court’s November
14, 2019 order denying what he called a “Pre-Trial Writ of Habeas Corpus.” An order
denying a pretrial writ of habeas corpus is appealable—even if the claims raised within
the writ are not cognizable for habeas relief. See Ex parte McCullough, 966 S.W.2d 529,
531 (Tex. Crim. App. 1998).
But the trial court’s appellate-right certificate provides that Blakely cannot
appeal the order. We agree. Blakely is not appealing an order denying a pretrial writ of
habeas corpus; he is trying to appeal an interlocutory order denying a pretrial motion.
We dismiss for want of jurisdiction.
Background
Blakely filed an original and an amended “Pre-Trial Writ of Habeas Corpus.”
Our record review shows that Blakely argued and the trial court denied the amended
“Pre-Trial Writ.” The document we describe below is thus Blakely’s amended “Pre-
Trial Writ.”
In his amended “Writ,” Blakely complained about
• the State’s inability to prove its case under the applicable law (under three
incarnations—a section analyzing the penal code statute, a section entitled
“Non-Applicable Statute,” and a third captioned “Non-Applicability”);
• the officer’s arresting him without probable cause;
• the invalidity of the arrest warrant’s affidavit;
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• lack of jurisdiction because the indictment failed to specify where in the county
the offense had allegedly occurred;
• an allegedly defective indictment—again because the indictment did not
identify where in the county the offense allegedly occurred;
• double jeopardy—not because the State had already tried and convicted him of
the charged offense but because the indictment—he asserted—was so
ambiguous that the State could prospectively force him to trial and potentially
convict him using the same ambiguous language;1
• witness tampering; and
• false imprisonment because the police arrested him without a warrant (but not
because his current liberty was restrained in any capacity).2
Despite the nomenclature, the record shows that the trial court did not
consider Blakely’s “Pre-Trial Writ” to be a pretrial writ; rather, the trial court referred
repeatedly to it as a pretrial motion. In the same vein, the trial court repeatedly called
the hearing a “pretrial hearing” and not a hearing on a pretrial writ. Not once during
the entire hearing are the words “habeas corpus” mentioned. And after ruling against
Blakely, the trial court specifically told him that he could not appeal an interlocutory
order.
At the hearing, Blakely explained, “The indictment is fundamentally defective
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because it doesn’t state the place. That puts me at risk of double jeopardy. The State
could, at a later time, charge me for the same offense in a different location. So it has
to specify the place.”
The police arrested Blakely on an outstanding arrest warrant for criminal
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trespass.
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On the same date as the hearing and ruling, November 14, 2019, the trial court
signed the “Trial Court’s Certification of Defendant’s Right of Appeal” but did not
check any of the available options on the form. Designed primarily for postconviction
appeals, the form has no option addressing interlocutory orders.
Despite the trial court’s admonition that Blakely was not entitled to an
interlocutory appeal, on the very next day, Blakely filed a notice of appeal.
And on November 18, 2019, Blakely filed in our court a file-marked copy of his
notice of appeal along with a copy of the trial court’s November 14, 2019 order, but
he did not file the trial court’s appellate-right certification. So, on November 19, 2019,
we requested one. See Tex. R. App. P. 25.2(a)(2) (“The trial court shall enter a
certification of the defendant’s right of appeal each time it enters a judgment of guilt
or other appealable order . . . .”).
Back in the trial court, on November 25, 2019, Blakely filed a “Notice to the
Court” requesting the certification. He argued that he had the right to appeal under
McCullough, 966 S.W.2d at 531, and Waldie v. State, 923 S.W.2d 152, 157 (Tex. App.—
Beaumont 1996, no pet.). In McCullough, the court wrote,
Certain claims may not be cognizable on habeas corpus, i.e., they may
not be proper grounds for habeas corpus relief. However, if the district
court denies relief, regardless of the underlying claims for the relief
sought, the applicant may appeal. In the present case, the district court
denied the relief sought. Appellant properly appealed. The Court of
Appeals had jurisdiction. Whether Appellant’s grounds for relief are
cognizable is another matter.
966 S.W.2d at 531 (citations omitted). And in Waldie, the court wrote,
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Double jeopardy may be raised either by a pretrial special plea pursuant
to Tex. Code Crim. Proc. Ann. art. 27.05 (Vernon 1989) or by a pretrial
writ of habeas corpus. The special plea protects only against
reconviction, not retrial. A defendant who seeks protection from retrial
must file a writ of habeas corpus. If the court grants the writ and
thereafter denies the relief requested, the defendant may take an
immediate appeal.
923 S.W.2d at 157. As noted earlier, Blakely raised prospective double-jeopardy
concerns in his “Pre-Trial Writ.”
On December 2, 2019, the trial court signed a certificate indicating that Blakely
did not have the right to appeal. When doing so, the trial court modified the form so
that it now provided, “I, judge of the trial court, certify this criminal case: X is not a
plea-bargain case, and the defendant has NO right of appeal.”
After reviewing the certification, we sent the following clerk’s letter,
The court has jurisdictional concerns. Although appellant is attempting
to appeal the order denying what he styled a “Pre-Trial Writ of Habeas
Corpus,” the court is concerned that his “writ” is a pleading that may be
a writ in caption only. Substantively, that is, appellant appears to have
filed an omnibus pretrial motion. Because the title of a document is not
controlling, See State v. Evans, 843 S.W.2d 576, 577–78 (Tex. Crim. App.
1992), the court is concerned that appellant is attempting to appeal an
interlocutory order disposing of nonappealable matters. See Ex parte
Walsh, 530 S.W.3d 774, 778 (Tex. App.—Fort Worth 2017, no pet.);
Ahmad v. State, 158 S.W.3d 525, 526 (Tex. App.—Fort Worth 2004, pet.
ref’d).
Unless appellant or any party desiring to continue the appeal files
with the court, on or before Friday, January 3, 2020, a response showing
grounds for continuing the appeal, the appeal may be dismissed. See Tex.
R. App. P. 25.2(d), 44.3. [Cleaned up.]
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Our concern was not whether Blakely had filed a pretrial writ of habeas corpus
with non-cognizable claims, although that was certainly one argument. Rather, our
concern was whether Blakely had filed a document not cognizable as a pretrial writ of
habeas corpus.
Blakely filed no timely response.
Discussion
The Texas Code of Criminal Procedure’s Chapter 11 addresses habeas corpus
proceedings. See Tex. Code Crim. Proc. Ann. arts. 11.01–.65. In his “Pre-Trial Writ,”
Blakely never cited to any Chapter 11 provision.
“The writ of habeas corpus is the remedy to be used when any person is
restrained in his liberty.” Id. art. 11.01. A habeas corpus requisite is a petition stating
that the applicant is “illegally restrained in his liberty.” Id. art. 11.14(1). Although
Blakely asserted many things in his document, he did not assert that he was being
“illegally restrained in his liberty.”
And although Blakely cited much caselaw, he did not cite any addressing
pretrial writs of habeas corpus.3
An applicant may seek pretrial habeas corpus relief only in very limited
circumstances. Ex parte Walsh, 530 S.W.3d 774, 778 (Tex. App.—Fort Worth 2017, no
pet.). Pretrial habeas relief is an extraordinary remedy reserved for cases in which
He cited one postconviction habeas case: Ex parte Patterson, 969 S.W.2d 16,
3
18 (Tex. Crim. App. 1998).
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resolving a legal issue in the applicant’s favor results in the applicant’s immediate
release from an illegal restraint on the applicant’s liberty. Id.; see Ex parte Flores,
483 S.W.3d 632, 638 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (“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.”); Green v. State, 999 S.W.2d 474, 477 (Tex. App.—Fort Worth
1999, pet. ref’d) (“[T]he purpose of a pretrial habeas corpus application is not to
facilitate trial, but to stop trial and secure immediate release from confinement.”); see
also Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010) (explaining that
pretrial habeas relief is unavailable for asserting the constitutional right to a speedy
trial or, generally, to test the sufficiency of a charging instrument); Ex parte Smith,
178 S.W.3d 797, 801 (Tex. Crim. App. 2005) (explaining that a pretrial habeas
applicant may challenge the State’s power to restrain him at all; the manner of his
pretrial restraint (such as challenging conditions attached to bail); or other issues
which, if meritorious, would bar prosecution or conviction). Generally, due-process
claims are not cognizable for pretrial habeas relief. Walsh, 530 S.W.3d at 778.
We must decide whether Blakely filed a pretrial writ or a pretrial motion.
Pretrial writs and pretrial motions serve different functions, and procedurally, they are
distinct.
Pretrial motions and pretrial hearings are conducted under Article 28.01 of the
Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 28.01. The pretrial
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hearing’s purpose is to address and resolve certain matters before trial and thus avoid
delays during trial. Green, 999 S.W.2d at 476. “Rulings on pretrial motions are
interlocutory and not subject to immediate appeal.” Id. This is true even of pretrial
motions that seek to abort trial. See id. at 475–76; Ahmad v. State, 158 S.W.3d 525,
527 (Tex. App.—Fort Worth 2004, pet. ref’d); see also Ex parte Wiley, 949 S.W.2d 3,
4 (Tex. App.—Fort Worth 1996, no pet.) (“There is no statute providing for
interlocutory appeal of denial of a motion to dismiss.”).
In contrast, the pretrial habeas corpus application’s purpose is to stop trial and
to secure immediate release from illegal confinement or restraint, not to facilitate trial.
Green, 999 S.W.2d at 477. Unlike motions, a habeas corpus action is a separate
proceeding—distinct from the cause instituted by the State’s indictment. Id. Habeas
corpus proceedings should be docketed separately from the substantive cause and be
given a different cause number. Id. (relying on Ex parte Shumake, 953 S.W.2d 842,
846 n.8 (Tex. App.—Austin 1997, no pet.)). An appeal from an order denying habeas
relief is not an interlocutory appeal from within the substantive cause (the one that the
State is prosecuting under the indictment). Id. Rather, an appeal from an order
denying habeas relief is an appeal from a final judgment because a pretrial application
for writ of habeas corpus is its own separate proceeding. Greenwell v. Court of Appeals for
the Thirteenth Judicial Dist., 159 S.W.3d 645, 649–50 (Tex. Crim. App. 2005) (orig.
proceeding).
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Substantively, although Blakely was trying to abort the criminal proceedings
against him, he did not package or couch his arguments in terms of procuring his
immediate release from any illegal restraint—the sine qua non of a habeas writ. See Tex.
Code Crim. Proc. Ann. arts. 11.01, 11.14(1). And procedurally, Blakely’s “Pre-Trial
Writ” was not filed under a separate cause number. It is true that a separate cause
number’s presence or absence is not the be-all and end-all; its absence might be
happenstance. See Ex parte Carter, 849 S.W.2d 410, 411 n.2 (Tex. App.—San Antonio
1993, pet. ref’d) (“Failure to docket habeas corpus proceedings separately is a
common mistake of the bench and bar and the court clerks of this State.”). But based
on the trial court’s comments during the hearing, Blakely’s document’s not having a
separate cause number was no oversight. See Ex parte Cantu, 913 S.W.2d 701,
704 (Tex. App.—San Antonio 1995, pet. ref’d) (“[T]he district courts are not limited
by the denomination of pleadings but may look to the essence of those pleadings.”)
What Blakely filed was a pretrial motion within the substantive cause. See Green,
999 S.W.2d at 477.
In short, Blakely’s document is more accurately described as an omnibus
pretrial motion that he simply captioned as a writ. See State v. Evans, 843 S.W.2d 576,
577 (Tex. Crim. App. 1992) (“While designated as a motion to reconsider a plea,
appellant’s motion should more aptly have been called a motion for new trial.”); see
also State v. Davis, 349 S.W.3d 535, 538 (Tex. Crim. App. 2011) (looking past labels
when construing motions and orders). A caption or title helps identify a document.
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See Caption, Title-and-Headings Canon, Black’s Law Dictionary (10th ed. 2014). But
captions and titles are not controlling. See Evans, 843 S.W.2d at 577–78. We hold that
Blakely’s “Pre-Trial Writ of Habeas Corpus” was a writ in caption only; substantively
and procedurally, it was an omnibus pretrial motion, the denial of which was not
subject to an interlocutory appeal. See Ahmad, 158 S.W.3d at 526–27.
We dismiss Blakely’s appeal for want of jurisdiction.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: February 13, 2020
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