Ex Parte Eligah Darnell Jr. ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00466-CR
No. 02-20-00046-CR
No. 02-20-00047-CR
___________________________
Ex parte Eligah Darnell Jr.
On Appeal from the 432nd District Court
Tarrant County, Texas
Trial Court No. 1575071D
Before Bassel, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
In these three companion cases, pro se appellant Eligah Darnell Jr. appeals the
trial court’s orders denying (1) his application for pretrial writ of habeas corpus
wherein Darnell made an “as applied” constitutional challenge to Texas Code of
Criminal Procedure Article 62.055 (appellate cause number 02-19-00466-CR);1 (2) his
“Supplement to Pre-Trial Writ” wherein he made facial and as-applied constitutional
challenges to Article 62.055 (appellate cause number 02-20-00046-CR); and (3) his
pretrial writ of habeas corpus seeking bond reduction (appellate cause number 02-20-
00047-CR). We affirm.
II. BACKGROUND
The record is sparse in these cases, and most of what is known in these cases
comes from documents attached to Darnell’s notices of appeal (NOA) or through
what he pleaded in his writs. What can be established from the record is that the
State indicted Darnell for failure to comply with sex-offender-registration
requirements. The State’s indictment also contains a habitual-offender notice stating
that prior to his failure to register, Darnell was previously convicted of failure to
comply with sex-offender-registration requirements and felony possession of a
handgun on the premises of a school.
1
See Tex. Code Crim. Proc. Ann. art. 62.055 (requiring registered sex offenders
to notify local law enforcement of any anticipated move date and new address).
2
According to documents attached to his NOA, Darnell called and rescheduled
an October 16, 2018 appointment when he was supposed to report that he had
moved to a new address, and he was more than an hour late to his rescheduled
November 15, 2018 appointment. These documents further reveal that his
appointment to register his new address was then rescheduled again for November
28, 2018. Nothing in the record or the NOA documents indicates whether Darnell
attended the November 28, 2018 appointment. But an arrest warrant attached to
Darnell’s NOA shows that police obtained a warrant for Darnell’s arrest on
December 6, 2018. The indictment that is in the record indicates that the date of his
offense occurred on December 5, 2018. Darnell is currently in jail awaiting trial,
allegedly being held under a $25,000 bail.
After being arrested, Darnell filed three separate pretrial writs of habeas corpus.
In his first writ, Darnell challenged the constitutionality of Article 62.055 as applied to
him. He later filed a “Supplement to Pre-Trial Writ” wherein he made facial and the
same as-applied constitutional challenges to Article 62.055. In both instances, the trial
judge signed hand-written orders prepared by Darnell, one of which the trial court
modified to reflect that it was specifically denying the “Supplement to Pre-Trial Writ,”
and the other the trial court signed unaltered reflecting that it was denying Darnell’s
initial writ.
Rather than there being an order in the record regarding his third writ titled
“Application for Writ of Habeas Corpus Bond Reduction,” wherein Darnell sought
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bail reduction, the record contains only a “Certificate of Proceedings” which is signed
by the magistrate and states in the proceeding field, “WITNESS SWORN [Darnell]:
AFTER CONSID ARGMNTS, RSK ASSMNT, HSTRY&CHRG; MOTION TO
REDUCE BAIL IS DENIED.” Darnell now appeals the denials of all three of his
writs.
III. DISCUSSION
In general, we review a trial court’s ruling on an application for writ of habeas
corpus under an abuse-of-discretion standard. Phuong Anh Thi Le v. State, 300 S.W.3d
324, 327 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Under this standard, we
view any evidence in the light most favorable to the trial court’s ruling, and we defer
to implied factual findings supported by the record. Id. This same standard applies
to our review of a trial court’s ruling on the setting of bail amount. See Ex parte Rubac,
611 S.W.2d 848, 850 (Tex. Crim. App. 1981); Milner v. State, 263 S.W.3d 146, 147 (Tex.
App.—Houston [1st Dist.] 2006, no pet.).
A. As Applied Challenge to Article 62.055
In his first writ, Darnell argued that Article 62.055 was unconstitutional as
applied to him. We conclude that the trial court did not abuse its discretion by
denying the writ.
The Texas Court of Criminal Appeals has held that pretrial habeas, followed by
an interlocutory appeal, is an extraordinary remedy. Ex parte Perry, 483 S.W.3d 884,
895 (Tex. Crim. App. 2016). A claim that a statute is unconstitutional “as applied” is a
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claim that the statute, although generally constitutional, operates unconstitutionally as
to the claimant because of his particular facts and circumstances. State ex rel. Lykos v.
Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011); Gillenwaters v. State, 205 S.W.3d 534,
536 n.3 (Tex. Crim. App. 2006). Consequently, with exceptions that are not present
in this case, an as-applied constitutional challenge typically may not be resolved
pretrial because it depends on development of the specific facts of the case showing
how the statute is being applied to the defendant. See Lykos, 330 S.W.3d at 910 (“An
‘as applied’ challenge is brought during or after a trial on the merits, for it is only then
that the trial judge and reviewing 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.”); Ex parte Walsh, 530 S.W.3d 774, 781 (Tex. App.—Fort
Worth 2017, no pet.) (holding that, under Perry, because applicant was not a
government official, he could not challenge the allegedly unconstitutional acts of
government officials via pretrial writ of habeas corpus); see also Ex parte Smith, 178
S.W.3d 797, 801 (Tex. Crim. App. 2005) (“[T]he accused may challenge the manner of
his pretrial restraint, i.e., the denial of bail or conditions attached to bail.”); Ex parte
Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001) (“[A]n applicant may use pretrial
writs to assert his or her constitutional protections with respect to double jeopardy.”).
In his first writ, Darnell claimed that Article 62.055 is unconstitutional as
applied to him because the police department’s policy of rescheduling a sex-offender
registrant’s appointment when they have showed up late “systematically denie[d him]
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due process.” But Darnell has not claimed that this right is equivalent to any known
exception to the general rule that as-applied constitutional challenges typically may not
be resolved pretrial. Indeed, despite the little information that Darnell has provided,
he cannot claim that a record has been developed demonstrating specific facts of his
case that show how Article 62.055 is being applied to him. See Lykos, 330 S.W.3d at
910. We hold that the trial court did not abuse its discretion by denying Darnell’s pre-
trial writ for habeas corpus.
B. Facial Challenge to Article 62.055
In his “Supplement to Pre-Trial Writ,” in addition to echoing the as-applied
challenge addressed above, Darnell argued that Article 62.055 is facially
unconstitutional. A claim that a statute is unconstitutional on its face may be raised
by pretrial writ of habeas corpus because the invalidity of the statute would render the
charging instrument void. Ex parte Flores, 483 S.W.3d 632, 638 (Tex. App.—Houston
[14th Dist.] 2015, pet. ref’d). To invalidate a statute as facially unconstitutional, the
defendant must show that the statute is unconstitutional in all of its applications. Ex
parte Ellis, 309 S.W.3d 71, 80 (Tex. Crim. App. 2010). As mentioned above, pretrial
habeas may not be used to advance an “as applied” challenge to a statute. Id. at 79. If
a claim is designated as a facial challenge but is actually a challenge to a particular
application of the statute, courts should refuse to consider the merits of the claim. Id.
at 80.
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Here, even though Darnell designated his supplemental claim as a facial
challenge to Article 62.055, Darnell in fact made an as-applied challenge to the
constitutionality of Article 62.055. Indeed, in his supplemental writ, after expressing
that Article 62.055 is “facially unconstitutional,” he proceeded to explain how he was
prevented from complying with Article 62.055 because of the police department’s
policy of rescheduling sex-offender registrants who do not timely show for their
appointments and how the policy was enforced in his case to deny him the right to
register his moving address. Thus, Darnell in fact is making an as-applied challenge to
the statute. Id. As explained above, Darnell cannot bring his as-applied challenge to
Article 62.055. Moreover, Darnell does not attempt to show that Article 62.055 is
unconstitutional in all of its applications. See id. Therefore, the trial court did not
abuse its discretion by denying Darnell’s supplemental writ.
C. Bond Reduction
In his “Application for Writ of Habeas Corpus Bond Reduction,” Darnell
sought to have the trial court reduce his bail amount from $25,000 to $7,000. In his
application, Darnell stated that he “has no financial resources,” but he did not
otherwise explain why he has no financial resources or how he would have the
resources to afford being able to post bail through a bondsman in the amount of
$7,000.
As noted earlier, the record does not contain a signed order denying Darnell’s
“Application for Writ of Habeas Corpus Bond Reduction.” The only document in
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the record indicating that the trial court heard Darnell’s writ for bond reduction is the
certificate of proceedings signed by the magistrate which states that Darnell’s
“MOTION TO REDUCE BAIL IS DENIED.”
This court has previously determined that we did not have jurisdiction under
similar circumstances. See Langlais v. State, No. 02-17-00248-CR, 2017 WL 4296447, at
*1 (Tex. App.—Fort Worth Sept. 28, 2017, no pet.) (mem. op., not designated for
publication). In Langlais, even though the defendant had filed a pretrial “Motion to
Reduce Bond and Application for Writ of Habeas Corpus” and the record contained a
“Certificate of Proceedings” denying the filing, this court expressed concerns that the
record did not demonstrate that the trial court had signed a formal, appealable order.
Id. This court also expressed concerns regarding the title of Langlais’s filing being
labeled as a motion. Id. Ultimately, this court dismissed the appeal “for want of
jurisdiction for want of a signed, written order.” Id.
In this case, this court detects the same two potential problems. First, this
court can find no authority to support the proposition that a signed “Certificate of
Proceedings” can be treated as a formal order for purposes of appeal. See State v.
Wachtendorf, 475 S.W.3d 895, 904 (Tex. Crim. App. 2015). Second, the certificate
states that the court was denying Darnell’s “MOTION TO REDUCE BAIL” and
does not state that it was denying Darnell’s “Application for Writ of Habeas Corpus
Bond Reduction.” See Bridle v. State, 16 S.W.3d 906, 907–08 (Tex. App.—Fort Worth
2000, no pet.); see also Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991)
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(“The courts of appeals do not have jurisdiction to review interlocutory orders unless
that jurisdiction has been expressly granted by law.”). Thus, in accordance with this
court’s decision in Langlais, we conclude that we do not have jurisdiction to address
Darnell’s appeal regarding his “Application for Writ of Habeas Corpus Bond
Reduction.”
But even assuming that the certificate of proceedings signed by the magistrate
is a formal, appealable order and that the trial court’s recitation that it was denying a
“motion” was a misstatement and the trial court did in fact deny Darnell’s writ
seeking bail reduction, we cannot conclude that the magistrate abused its discretion by
denying his writ.
A defendant who seeks a reduction in the amount of bail has the burden of
proof to demonstrate that it is excessive. Maldonado v. State, 999 S.W.2d 91, 93 (Tex.
App.—Houston [14th Dist.] 1999, pet. ref’d). A writ applicant has the burden to
ensure that a sufficient record is presented to show error requiring reversal. See Ex
parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993). An appellate court may not
reduce the trial court’s bail amount unless the applicant has satisfied this burden. Ex
parte Welch, 729 S.W.2d 306, 310 (Tex. App.—Dallas 1987, no pet.).
Here, the record indicates that there is not a reporter’s record of any hearing
wherein the magistrate considered Darnell’s “Application for Writ of Habeas Corpus
Bond Reduction.” The only indication regarding what evidence the magistrate might
have considered is the line from the certificate of proceedings stating, “WITNESS
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SWORN [Darnell]: AFTER CONSID ARGMNTS, RSK ASSMNT,
HSTRY&CHRG; MOTION TO REDUCE BAIL IS DENIED.” In short, Darnell
has failed to ensure that a sufficient record is presented showing this court an error
requiring reversal. Kimes, 872 S.W.2d at 703. We conclude that Darnell has failed to
carry his burden to demonstrate that the magistrate abused its discretion by denying
his “Application for Writ of Habeas Corpus Bond Reduction.”
D. Motion to Stay
Darnell has also filed a “Motion to Stay” the trial court proceedings below
while this court addressed these appeals. We deny that motion.
IV. CONCLUSION
Having concluded that the trial court did not abuse its discretion by denying
Darnell’s pretrial writ of habeas corpus and his supplemental pretrial writ, and having
concluded that either we do not have jurisdiction to review the alleged denial of his
“Application for Writ of Habeas Corpus Bond Reduction” or, in the alternative, that
Darnell has failed to carry his burden to prove that the magistrate abused its
discretion by denying the application, we affirm the trial court’s judgments.
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: March 19, 2020
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