Ex Parte Robbie Gail Charette v. State

Affirmed and Memorandum Opinion filed April 20, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00855-CR
NO. 14-19-00856-CR
NO. 14-19-00857-CR
NO. 14-19-00858-CR
EX PARTE ROBBIE GAIL CHARETTE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 21st District Court
Washington County, Texas
Trial Court Cause No. 18,345, 18,346, 18,347 & 18,348
MEMORANDUM OPINION
Appellant, Robbie Gail Charette, appeals from the trial court’s order denying
her “application for pretrial writ of habeas corpus and/or first motion to quash and
dismiss the indictment as prosecution improperly brought” in four misdemeanor
cases in which she was charged under the Texas Election Code and Texas
Government Code. In two issues, appellant contends that the trial court erred in
denying her relief. We affirm the trial court’s order.
I. BACKGROUND
Appellant, a candidate for county court-at-law judge in Washington County
in the March 2018 primary, was indicted for four misdemeanor charges arising out
of alleged violations of the Texas Election Code and Texas Government Code. A
special prosecutor, Austin County District Attorney Travis Keohn, presented the
case to a Washington County Grand Jury, which in June 2018 indicted appellant as
follows: failure to disclose true source of communication in violation of Section
255.004 of the Texas Election Code;1 Misleading Use of Office Title in violation
of Section 255.006 of the Texas Election Code;2 Failure to Timely File Personal
Financial Statement in violation of Sections 159.052, 159.056, and 572.027 of the
Texas Government Code;3 and Recordkeeping Required–Political Campaign in
violation of Section 254.001 of the Texas Election Code.4 Appellant was released
after posting cash bonds.
In April 2019, appellant filed a “pretrial application for a writ of habeas
corpus and/or first motion to quash and dismiss the indictment as prosecution
improperly brought,” challenging the validity of the prosecution by Koehn in
seeking and obtaining the four indictments. Appellant asserted that the indictments
were void “due to the State’s complete failure to comply with applicable Texas
1
A Class A misdemeanor in trial court cause number 18,345 is being appealed as 14-19-
00855-CR.
2
A Class A misdemeanor in trial court cause number 18,346 is being appealed as 14-19-
00856-CR.
3
A Class B misdemeanor in trial court cause number 18,347 is being appealed as 14-19-
00857-CR.
4
A Class B misdemeanor in trial court cause number 18,348 is being appealed as 14-19-
00858-CR.
2
constitutional and statutory procedure requiring the Texas [Ethics] Commission’s
. . . oversight of the alleged violations of the Election Code and Chapter 572,
Government Code.” The State filed its response to appellant’s application for a
pretrial writ, arguing, in relevant part, that it should be dismissed for failing to
allege a due process violation which would entitle her to file an application for pre-
trial habeas relief and, alternatively, that it should be denied on the merits, as the
Texas Ethics Commission (“TEC”) has no jurisdiction, discretion, or authority
over a prosecutor’s decision to investigate and prosecute crimes.
On April 25, 2019, the trial court held a hearing on appellant’s pretrial
application. During the hearing, the trial court admitted an exhibit offered by the
State, a news article entitled “Update – Charette Campaign Answers Questions.”
Additionally, the trial court admitted an exhibit offered by appellant – a letter from
the Texas Ethics Commission dated April 22, 2019, confirming no sworn
complaint had been filed. After the hearing, appellant filed a post-hearing brief in
support of her application for a pretrial writ, arguing that the special prosecutor’s
“leapfrogging” – failing to file a complaint with the TEC – violated appellant’s
right to due process. Appellant also argued that the special prosecutor does not
have “unfettered discretion” and that it “may be limited by Constitution and
statute, as well as caselaw.” Appellant distinguished cases raised by the State
during the hearing.
On October 16, 2019, the trial court signed its Memorandum Ruling and
Order denying appellant’s “application for pretrial writ of habeas corpus and/or
first motion to quash and dismiss the indictment as prosecution improperly
brought.” The trial court noted in its order that it found no legislative language
granting the TEC exclusive authority to enforce the violations of the laws of which
appellant is charged. Additionally, the trial court observed that there was no
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requirement for the district attorney to present the results of an investigation in
connection with an election or campaign finance law to the TEC prior to the
commencement of a criminal prosecution. Appellant timely filed a notice of
appeal of the trial court’s denial and the cases were consolidated in this appeal.
II. ANALYSIS
On appeal, appellant raises two issues: “Does a Special Prosecutor have
authority, without a referral by the Texas Ethics Commission (TEC), to prosecute
violations of Election Code, title 15, and Government Code, chapter 572, where
the Texas Constitution and Government code specifically provide the TEC ‘shall
administer and enforce’ the statutes alleged to have been violated?”; and “Did the
trial court err in denying Appellant’s pretrial writ of habeas corpus because the
failure to afford Appellant the due process provided by statute and/or Art. I, sec. 19
due course of law violated her substantive rights in that as a subject of prosecution
for alleged violations of statutes wholly within the jurisdiction of TEC, she was not
able to first raise defenses in an administrate hearing, obtain formal and informal
rulings by the TEC or have an opportunity to cure?”
A. PRETRIAL HABEAS RELIEF AND STANDARD OF REVIEW
We review the trial court’s ruling on a pretrial application for a writ of
habeas corpus for abuse of discretion, viewing the facts in the light most favorable
to the ruling. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex
parte Gonzalez, 525 S.W.3d 342, 346 (Tex. App.—Houston [14th Dist.] 2017, no
pet.). However, when the resolution of the ultimate issue turns on an application of
purely legal standards, as here, our review is de novo. See Ex parte Martin, 6
S.W.3d 524, 526 (Tex. Crim. App. 1999); cf. Ex parte Jones, 410 S.W.3d 349, 350
(Tex. App.—Houston [14th Dist.] 2013) (explaining trial court has no discretion to
analyze the law incorrectly), aff’d, 440 S.W.3d 628 (Tex. Crim. App. 2014). We
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will uphold the trial court’s judgment if it is correct on any theory of law
applicable to the case. Ex parte Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App.
2001); Ex parte Walsh, 530 S.W.3d 774, 778 (Tex. App.—Fort Worth 2017, no
pet.).
B. GOVERNING LAW ON COGNIZABILITY
“Pretrial habeas, followed by an interlocutory appeal, is an extraordinary
remedy.” Ex parte Ingram, 533 S.W.3d 887, 891 (Tex. Crim. App. 2017). As
such, a defendant may only seek pretrial habeas relief in limited circumstances. Ex
parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005). “Those limited
circumstances are (1) to challenge the State’s power to restrain the defendant;
(2) to challenge the manner of pretrial restraint, i.e., the denial of bail or conditions
of bail; and (3) to raise certain issues that would bar prosecution or conviction.”
Ex parte Gonzalez, 525 S.W.3d at 346 (citing Ex Parte Smith, 178 S.W.3d at 801).
A threshold issue is “whether a claim is even cognizable on pretrial habeas.”
Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010). Appellate courts must
be careful “to ensure that a pretrial writ 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.” Id. (internal quotation marks and citation omitted). “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). Pretrial habeas
should be reserved for situations in which the protection of the applicant’s
substantive rights or the conservation of judicial resources would be better served
by interlocutory review. Ex parte Weise, 55 S.W.3d at 620.
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Consequently, we must determine if appellant’s claims are cognizable via
pretrial habeas before we are able to address the merits. See Ex parte Ellis, 309
S.W.3d at 79.
C. APPLICATION
Appellant maintains that she presents a cognizable pretrial habeas claim –
“the prosecutor’s failure to properly refer the complaints or obtain a referral from
the TEC for matters wholly within the jurisdiction of the TEC deprives the trial
court from [sic] jurisdiction in this case.” Appellant asserts the indictments lodged
against her must be dismissed because there was no referral from the TEC to the
Special Prosecutor. According to appellant, the State is statutorily required to
obtain a referral from TEC in matters solely within the enforcement authority of
the TEC. Appellant further contends that the State’s failure to obtain a referral
from the TEC deprived her of due process, including the informal, formal, and
other complaint resolution procedures of the TEC and State Office of
Administrative Hearings.
The State maintains that appellant has failed to allege a due process violation
that would entitle her to pretrial habeas relief. The State contends that appellant’s
current arguments, even if true, fail to deprive the Washington County District
Court of jurisdiction over her cases or warrant her immediate release. See Ex parte
Smith, 178 S.W.3d at 801; Ex parte Weise, 55 S.W.3d at 619; Ex parte Flores, 483
S.W.3d 632, 638 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). We agree.
The Washington County District Court is vested with original jurisdiction
over all misdemeanors involving “official misconduct.” See Tex. Code Crim.
Proc. art. 4.05.5 “Official misconduct” is defined as an “offense that is an
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“District courts and criminal district courts shall have original jurisdiction in criminal
cases of the grade of felony, of all misdemeanors involving official misconduct, and of
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intentional or knowing violation of a law committed by a public servant while
acting in an official capacity as a public servant.” Tex. Code Crim. Proc. art.
3.04(1). Section 1.07 defines “public servant” to include “a candidate for
nomination or election to public office.” Tex. Penal Code § 1.07(41)(E). Here,
appellant’s misdemeanor charges derive from crimes she is alleged to have
knowingly committed while acting as a candidate for election to public office in
Washington County. Thus, jurisdiction properly vested in the district court in
Washington County. Appellant has not and cannot establish how a denial of any
alleged civil due process rights afforded by a TEC investigation deprives the
district court in Washington County of jurisdiction over her indictments.
In sum, in light of the clear pronouncements from the Court of Criminal
Appeals detailing the limits of pretrial habeas review, we conclude neither of
appellant’s issues are cognizable in a pretrial habeas corpus proceeding. See Ex
parte Ellis, 309 S.W.3d at 79.
We overrule appellant’s first and second issues.
III. CONCLUSION
We conclude appellant has not stated a cognizable claim for pretrial habeas
relief. Thus, we affirm the trial court’s order denying appellant’s pretrial
application for a writ of habeas corpus and/or first motion to quash and dismiss the
indictment as prosecution improperly brought.
misdemeanor cases transferred to the district court under Article 4.17 of this code.” Tex. Code
Crim. Proc. art. 4.05.
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/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Bourliot, Hassan, and Poissant.
Do Not Publish. Tex. R. App. P. 47.2.
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