Ex Parte Patricio Estrada

Opinion issued March 28, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00792-CR
———————————
EX PARTE PATRICIO ESTRADA
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 17-DCR-077572
OPINION
Appellant, Patricio Estrada, appeals from the trial court’s order denying his
pro se application for a pretrial writ of habeas corpus, filed under article 11.08 of the
Texas Code of Criminal Procedure.1 Estrada contends that he is entitled to
1
See TEX. CODE CRIM. PROC. ANN. art. 11.08 (West 2015) (“If a person is confined
after indictment on a charge of felony, he may apply to the judge of the court in
which he is indicted.”).
immediate release from custody on the following five grounds: (1) a violation of the
Fifth Amendment Double Jeopardy Clause; (2) a Sixth Amendment violation for
ineffective assistance of counsel; (3) a violation of the Fifth Amendment Due
Process Clause; (4) vindictive prosecution; and (5) a Sixth Amendment violation of
the Speedy Trial Clause.
We affirm.
Background
A. Procedural History in Harris County
On April 17, 2014, after Estrada pleaded guilty to the first-degree felony
offense of aggravated sexual assault of a child under fourteen years of age, a Harris
County district court signed an order of deferred adjudication placing him on
community supervision for six years under trial court cause number 1404467.2 Two
of the conditions of Estrada’s deferred adjudication required him to comply with the
sex offender registration requirements provided in Chapter 62 of the Texas Code of
Criminal Procedure and to attend a substance abuse residential treatment facility.3
On August 29, 2016, after the State’s third motion to adjudicate was filed,
Estrada pleaded true to the violation alleging that he had left a substance abuse
2
See Estrada v. State, No. 14-17-00410-CR, 2018 WL 5914504, at *1 (Tex. App.—
Houston [14th Dist.] Nov. 13, 2018, pet. ref’d) (mem. op., not designated for
publication).
3
See id.
2
treatment facility without court approval in March 2016.4 The district court revoked
Estrada’s community supervision, adjudicated him guilty of the underlying felony
offense of aggravated sexual assault of a child under fourteen years of age, and
assessed his punishment at twelve years’ confinement.5 On direct appeal, the
Fourteenth Court of Appeals affirmed Estrada’s conviction on November 13, 2018,
and the Court of Criminal Appeals refused his petition for discretionary review.6
B. Procedural History in Fort Bend County
On April 17, 2017, in Fort Bend County, Estrada was indicted for the third-
degree felony offense of failure to comply with the sex offender registration
requirements under trial court cause number 17-DCR-77572.7 Because Estrada had
been previously convicted of aggravated sexual assault of a child in Harris County,
he had been required to comply with the sex offender registration requirements.
Specifically, Estrada was charged with failing to report in person, on or about April
4, 2016, to the Fort Bend County Sheriff’s Office to provide his anticipated move
date and new address, as required by article 62.055, no later than the seventh day
4
See id.
5
See id. at *3.
6
See id. at *6; Estrada v. State, PD-1330-18 (Tex. Crim. App. Jan. 16, 2019).
7
See TEX. CODE CRIM. PROC. ANN. art. 62.102(a), (b)(2) (West 2006 and Supp.
2018).
3
before the intended change.8
On July 16, 2018, Estrada filed a pro se pretrial habeas corpus application
arising from trial court cause number 17-DCR- 77572 in Fort Bend County district
court. Estrada’s pretrial habeas application raised the following five grounds:
(1) violation of the Fifth Amendment Double Jeopardy Clause; (2) Sixth
Amendment violation for ineffective assistance of counsel; (3) violation of the Fifth
Amendment Due Process Clause; (4) vindictive prosecution; and (5) a Sixth
Amendment violation of the Speedy Trial Clause.
On July 23, 2018, the habeas judge held a non-evidentiary writ hearing on
Estrada’s pro se pretrial habeas application in which his appointed counsel for trial,
Mark Racer, and the prosecutor appeared, but no witnesses were called. Estrada’s
counsel stated that he was not adopting his client’s pro se habeas application because
counsel did not believe there was a double-jeopardy argument to be made in good
faith, and Estrada proceeded to argue his claims pro se. At the end of the hearing,
the habeas court orally denied Estrada’s writ after denying each claim individually.
C. The Habeas Court’s Findings of Fact and Conclusions of Law
On August 19, 2018, the habeas court signed findings of fact and conclusions
of law and an order denying Estrada’s pretrial habeas application. The pertinent
findings and conclusions are, as follows:
8
See TEX. CODE CRIM. PROC. ANN. art. 62.055(a) (West 2006 and Supp. 2018).
4
FINDINGS OF FACT
...
2. The defendant was subsequently charged with Failure to Comply
with the Sex Offender Registration Program in Fort Bend County in
cause no. 17-DCR-077572 in the 268th District Court of Fort Bend
County and a bench warrant was issued. The indictment alleges that
the defendant failed to comply with the registration requirements of
Chapter 62, Sex Offender Registration Program, of the Texas Code
of Criminal Procedure on April 4, 2016 by failing to report to the
Fort Bend County Sheriff’s Office an anticipated move date and new
address not later than the seventh day before the intended change.
...
6. The defendant’s counsel, Mark Racer, advised the Court that he was
not adopting the pro se motions of the defendant, specifically
because he believed them to be baseless claims not supported by the
law.
7. The Court permitted the defendant the opportunity to present his
legal arguments supporting his belief that the present charge of
Failure to Comply with Sex Offender Registration should be
dismissed.
8. The defendant informed the Court that he is being prosecuted for the
same actions that led to his probated sentence in Harris County being
adjudicated and resulted in his 12-year-sentence and that this
constitutes double jeopardy. The defendant further claimed in his
motion that due to this violation, the Fort Bend County charge
constitutes vindictive prosecution. The defendant also presented a
claim of ineffective assistance of counsel which he agreed had been
previously heard and denied by the Court. The defendant further
presented a request for dismissal due to violation of the Speedy Trial
Act because the State had waited 13 months after his alleged
violation for Failure to Comply with Sex Offender Registration to
bring charges.
9. When the Court asked the defendant what prejudice he had []
suffered due to the failure of the State to promptly charge him after
the commission of his alleged offense, the defendant said that he
was unable to locate his landlady who would testify in his behalf.
5
The State indicated that they had as much of an interest in locating
the defendant’s landlady as the defendant, as she would be a fact
witness for the State in his impending trial.
10. Defense counsel informed the Court that he had met with the
defendant in the Fort Bend County Jail as well as at each of the court
settings for this case. He further explained that he had attempted to
contact the landlady where the defendant had allegedly been
residing prior to his arrest.
CONCLUSIONS OF LAW
Alleged Double Jeopardy Claim
1. The Court finds that there is no evidence that the elements of
Aggravated Sexual Assault of a Child under Fourteen and those for
Failure to Comply with Sex Offender Registration are the same or
similar, nor is one offense the lesser-included offense of the other.
The Court further finds that the punishment the defendant received
as a result of the motion to adjudicate was for Aggravated Sexual
Assault of a Child and not for failing to comply with the
requirements of the sex offender statute.
2. The Court further finds that failing to report for a substance abuse
treatment facility is not the same act as failing to comply with the
sex offender statute.
3. Based on the record, the Court concludes that the defendant has
provided no evidence that a subsequent charge of Failure to Comply
with Sex Offender Registration after sentencing for a charge of
Aggravated Sexual Assault of a Child under Fourteen placed the
defendant in double jeopardy. See Stafford v. State, 2011 WL
341386 (not reported in S.W. 3d), Ct. App. Texarkana, 2011 [sic].
Alleged Vindictive Prosecution
4. The decision whether to prosecute and what charge to file generally
rests entirely within [a prosecutor’s] discretion. Neal v. State, 150
S.W.3d 169, 173 (Tex. Crim. App. 2004). To be entitled to a
rebuttable presumption of prosecutorial vindictiveness, the
6
defendant must prove that he was convicted, he appealed and
obtained a new trial, and that the State thereafter filed a greater
charge or additional enhancements. Id. at 174. The Court finds that
there is no evidence that the defendants successfully obtained a new
trial on his Harris County conviction, nor that the Fort Bend County
charge is a greater charge. The Court finds that the defendant has
presented no evidence of prosecutorial vindictiveness.
Alleged Ineffective Assistance Claim
5. The Court finds that this allegation has been heard previously and
was denied.
6. The Court further finds that contrary to the defendant’s written
assertions that his counsel has not visited him or spoken with him,
counsel has visited the defendant at the Fort Bend County Jail and
spoken with him at each court setting. The Court further finds that
defense counsel has made attempts to contact the defendant’s
alleged landlady to develop possible defensive evidence.
7. The Court finds that the defendant failed to show that trial counsel’s
conduct falls below an objective standard of reasonableness; that but
for trial counsel’s alleged deficient conduct, there is a reasonable
probability that the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 686 (1984);
Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986)
(adopting the Strickland standard in Texas). Further, the present
case is still pending and defense counsel has not completed his
responsibilities and any potential claim is not yet ripe.
Alleged Violation of Speedy Trial Act
8. The Court takes judicial notice of the Court’s file in this case which
contains the indictment that was true billed on April 17, 2017. The
defendant was bench warranted from the Texas Department of
Criminal Justice-Institutional Division after the indictment on
March 6, 2018, and his first appearance in the 268 th District Court
was April 9, 2018, a period of time that is less than a year. The
7
Court further takes judicial notice of the fact that the defendant’s
case is set for trial October 8, 2018.9
...
ORDER
The Court has considered the application for writ of habeas corpus
and the evidence presented at the July 23, 2018 hearing on the
matter. The Court recommends that relief be DENIED.10
...
D. Proceedings in this Court
On September 4, 2018, Estrada timely filed a pro se notice of appeal from the
habeas court’s August 19, 2018 findings and conclusions and order denying his
pretrial habeas application. See TEX. R. APP. P. 26.2(a)(1). On September 21, 2018,
the district clerk filed a supplemental clerk’s record containing the trial court’s
certification of Estrada’s right of appeal of the denial of his pretrial habeas
application. See TEX. R. APP. P. 25.2(a)(2), (d). This Court’s September 28, 2018
Order did not request briefing. See TEX. R. APP. P. 31.1(b).
Standard of Review
Generally, an appellate court reviews a trial court’s decision to grant or deny
9
According to the district clerk’s website, Estrada’s trial date has been reset to June
25, 2019.
10
The habeas court did not address Estrada’s due process claim, but did address his
request to appeal the trial court’s denial of his motion to dismiss his appointed trial
counsel, for which he filed a separate notice of appeal on July 11, 2018. This Court
dismissed that appeal for want of jurisdiction. See Estrada v. State, No. 01-18-
00645-CR, 2018 WL 4190058, at *2 (Tex. App.—Houston [1st Dist.] Aug. 31,
2018, no pet.) (mem. op., not designated for publication).
8
habeas corpus relief for an abuse of discretion. See Ex parte Montano, 451 S.W.3d
874, 877 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (citing Sandifer v. State,
233 S.W.3d 1, 2 (Tex. App.—Houston [1st Dist.] 2007, no pet.)). In reviewing the
trial court’s decision to grant or deny habeas corpus relief, we view the evidence in
the light most favorable to the trial court’s ruling. See Ex parte Masonheimer, 220
S.W.3d 494, 507 (Tex. Crim. App. 2007).
We afford almost total deference to the trial court’s determination of historical
facts supported by the record, especially when the fact findings are based upon
credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997). And we afford the same deference to the trial judge’s rulings on applications
of law to fact questions if resolving those ultimate questions turns on evaluating
credibility and demeanor. Sandifer, 233 S.W.3d at 2 (citing Guzman, 955 S.W.2d
at 89). If resolving those ultimate questions turns on applying legal standards,
however, we review the determination de novo. Id. (citing Guzman, 955 S.W.2d at
89). We will uphold the habeas court’s judgment if it is correct under any theory of
law. See Ex parte Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App. 2001) (per curiam).
We may treat findings mislabeled as conclusions of law as findings of fact. See Ray
v. Farmers State Bank of Hart, 576 S.W.2d 607, 608 n.1 (Tex. 1979).
9
Discussion
A. 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,
“appellate courts have been 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.” Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim.
App. 2010) (internal quotation marks and citation omitted); see, e.g., Ex parte
Driver, No. 01-14-00375-CR, 2014 WL 6602529, at *1 (Tex. App.—Houston [1st
Dist.] Nov. 20, 2014, pet. ref’d) (mem. op., not designated for publication).
Appellate courts must be careful, on interlocutory review, not to entertain a pretrial
application for writ of habeas corpus when there is an adequate remedy by direct,
post-conviction appeal. See Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App.
2001); see also Ex parte Smith, 178 S.W.3d 797, 801 n.13 (Tex. Crim. App. 2005)
(“[A] writ of habeas corpus cannot be used as a substitute for an appeal or to serve
the office of an appeal.”). Consequently, “whether a claim is even cognizable on
pretrial habeas is a threshold issue that should be addressed before the merits of the
claim may be resolved.” Ex parte Ellis, 309 S.W.3d at 79. “If a non-cognizable
claim is resolved on the merits in a pretrial habeas appeal, then the pretrial writ has
10
been misused, and the State can appropriately petition [the Court of Criminal
Appeals] to correct such misuse.” Id.
A defendant may use a pretrial writ of habeas corpus only in very limited
circumstances. See Ex parte Smith, 178 S.W.3d at 801; see, e.g., Ex parte Driver,
2014 WL 6602529, at *2. A “pretrial writ application is not appropriate when
resolution of the question presented, even if resolved in favor of the applicant, would
not result in immediate release.” Ex parte Weise, 55 S.W.3d at 619. The Court of
Criminal Appeals has limited the use of pretrial habeas applications to issues that
would result in immediate release and has “held that an applicant may use pretrial
writs to assert his or her constitutional protections with respect to double jeopardy
and bail,” to challenge the facial constitutionality of the statute under which he or
she is prosecuted, or to allege that the offense charged is barred by the statute of
limitations. Id. at 619–620 (holding that as-applied constitutionality challenge to
illegal dumping statute was not cognizable via pretrial habeas application); see also
Ex parte Arango, 518 S.W.3d 916, 923–25 (Tex. App.—Houston [1st Dist.] 2017,
pet. ref’d) (reversing denial of pretrial habeas application challenging order
transferring juvenile defendant to criminal district court as invalid to vest that court
with jurisdiction under Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014)).
Conversely, “pretrial habeas is generally unavailable ‘when the resolution of
a claim may be aided by the development of a record at trial.’” Ex parte Ingram,
11
533 S.W.3d at 892 (quoting Ex parte Weise, 55 S.W.3d at 620). For example, the
Court of Criminal Appeals has “held that an applicant may not use a pretrial writ to
assert his or her constitutional rights to a speedy trial, challenge a denial of a pretrial
motion to suppress, or make a collateral estoppel claim that does not allege a double
jeopardy violation” because these issues are better addressed by a post-conviction
appeal. Ex parte Weise, 55 S.W.3d at 620; see, e.g., Ex parte Doster, 303 S.W.3d
720, 727 (Tex. Crim. App. 2010) (dismissing appeal because pretrial habeas
application not appropriate vehicle to raise alleged violation of Interstate Agreement
on Detainers Act); see also Ex parte Smith, 185 S.W.3d 887, 892–93 (Tex. Crim.
App. 2006) (affirming denial of pretrial habeas because in pari materia claim that
defendant should be prosecuted under hazing statute was not cognizable in pretrial
habeas application); Ex parte Smith, 178 S.W.3d at 802, 805 (reversing grant of
pretrial habeas because neither sufficiency of indictment nor purported defects in
tolling paragraph of successive indictment is cognizable claim in pretrial habeas
application); see also Ex parte Ahmad, 498 S.W.3d 254, 256 (Tex. App.—Houston
[14th Dist.] 2016, pet. ref’d) (dismissing appeal from denial of pretrial habeas
application due to lack of cognizability of applicant’s claim to self-representation).
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
12
better served by interlocutory review. Ex parte Weise, 55 S.W.3d at 620; see, e.g.,
Ex parte Driver, 2014 WL 6602529, at *2.
Consequently, we must determine which, if any, of Estrada’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. Because the habeas court’s findings and conclusions did
not evaluate credibility and demeanor and, instead, turned on applying legal
standards, we review the determination de novo. See Guzman, 955 S.W.2d at 89.
B. Estrada’s Issues
1. Double Jeopardy
“[T]here is a Fifth Amendment right not to be exposed to double jeopardy,
and . . . it must be reviewable before that exposure occurs,” which includes on
appeal. Ex parte Robinson, 641 S.W.2d 552, 555 (Tex. Crim. App. 1982).
Consequently, the Court of Criminal Appeals has held that an applicant may use a
pretrial writ of habeas corpus to assert his or her constitutional protections regarding
double jeopardy. See Ex parte Weise, 55 S.W.3d at 619. Thus, the denial of
Estrada’s double-jeopardy claim is cognizable in his pretrial habeas application and
is reviewable on the merits on appeal. See Ex parte Robinson, 641 S.W.2d at 555;
see also Ex parte Weise, 55 S.W.3d at 619–20.
The double jeopardy prohibition protects against (1) a second prosecution “for
the ‘same offense’” after acquittal; (2) a second prosecution “for the ‘same offense’”
13
after conviction; and (3) “multiple punishments for the ‘same offense.’” Hisey v.
State, 207 S.W.3d 383, 385 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (quoting
Ex parte Kopecky, 821 S.W.2d 957, 958 (Tex. Crim. App. 1992) (citations omitted)).
“In the multiple-punishment and multiple-prosecution contexts, the double
jeopardy bar applies if the two offenses for which the defendant is punished or tried
cannot survive the ‘same elements’ or ‘Blockburger I’ test.” Ex parte Leachman,
554 S.W.3d 730, 738 (Tex. App.—Houston [1st Dist.] June 19, 2018, pet. ref’d)
(citing Blockburger v. United States, 284 U.S. 299, 304 (1932), and Watson v. State,
900 S.W.2d 60, 61–62 (Tex. Crim. App. 1995)). “The same elements” test inquires
whether each offense contains an element not contained in the other. Watson, 900
S.W.2d at 61. If the second offense contains an element not found in the first
offense, then double jeopardy protections are not violated. See id.
Here, Estrada does not claim that the first double-jeopardy ground—a second
prosecution for the same offense after acquittal—applies here. See Hisey, 207
S.W.3d at 385. Instead, he contends that the court should “compare why [he] was
revoked” for the “same dates, same offense, and act, just worded different on
indictments, but none[]the[]less, same crime” while he “was on probation in Harris
County, but living in Fort Bend County,” and he cites cases barring successive
prosecution for the same offense after conviction and multiple punishments for the
same offense. Thus, Estrada claims relief under either the multiple-prosecution
14
context or the multiple-punishments context because he claims that prosecution for
failure to register as a sex offender in Fort Bend County involves the “same offense”
for which he had his probation revoked in Harris County—absconding from a
substance abuse residential treatment facility. See Hisey, 207 S.W.3d at 385. We
disagree.
First, Estrada was not convicted in Harris County for the failure to register as
a sex offender—the charge he faces in Fort Bend County—or for the probation
violation of absconding from a substance abuse residential treatment facility. He
was convicted of the underlying first-degree felony offense of aggravated sexual
assault of a child under fourteen years of age. See Estrada, 2018 WL 5914504, at
*3. Thus, the multiple-prosecution context does not apply here because he is not
subject to a second prosecution in Fort Bend County “for the same offense” after
conviction in Harris County. Hisey, 207 S.W.3d at 385.
Second, neither the multiple-prosecution nor the multiple-punishments
contexts applies here even when comparing the probation violation of absconding
from a substance abuse residential treatment facility in Harris County with the felony
offense of failure to register as a sex offender in Fort Bend County. The “same
elements” of the Blockburger I test are not met here. See Blockburger, 284 U.S. at
304; see also Watson, 900 S.W.2d at 61–62. Here, the charge of failure to register
as a sex offender charges Estrada with failing to report in person, on or about April
15
4, 2016, to the Fort Bend County Sheriff’s Office to provide his anticipated move
date and new address, as required by Article 62.055, no later than the seventh day
before the intended change. See TEX. CODE CRIM. PROC. ANN. arts. 62.055(a).
Estrada’s probation was revoked in Harris County, not for his failing to report
to the Fort Bend County Sheriff’s Office, but for violating one of the conditions of
his deferred adjudication, namely, leaving a substance abuse residential treatment
facility without court permission on March 18, 2016. See Estrada, 2018 WL
5914504, at *1. Thus, the felony offense that Estrada was subsequently charged
with in Fort Bend County (failure to register as a sex offender) involves a completely
different statute requiring proof of elements, such as not informing law enforcement
in person of his intended change of address, that are not required under the probation
condition (absconding from a substance abuse residential treatment facility without
court permission in Harris County). See Watson, 900 S.W.2d at 61.
We overrule Estrada’s double-jeopardy claim.
2. Vindictive Prosecution
Estrada also sought pretrial habeas corpus relief on grounds of prosecutorial
vindictiveness. Unlike double-jeopardy claims, vindictive-prosecution claims are
not among those claims listed by the Court of Criminal Appeals as cognizable in a
pretrial habeas application. Ex parte Weise, 55 S.W.3d at 619–20. Accordingly, we
must determine whether a vindictive-prosecution claim is cognizable in a petition
16
for pretrial habeas corpus. See Ex parte McCullough, 966 S.W.2d 529, 531 (Tex.
Crim. App. 1998) (holding that if district court denies habeas relief, applicant may
appeal “regardless of the underlying claims for the relief sought”).
A constitutional claim of prosecutorial vindictiveness may be established in
either of two distinct ways: (1) proof of circumstances that pose a “realistic
likelihood” of such misconduct sufficient to raise a “presumption of prosecutorial
vindictiveness,” which the State must rebut or face dismissal of the charges; or (2)
proof of “actual vindictiveness”—that is, direct evidence that the prosecutor’s
charging decision is an unjustifiable penalty resulting solely from the defendant’s
exercise of a protected legal right. Neal, 150 S.W.3d at 173 (citations omitted).
“Under the first prong, if the State pursues increased charges or an enhanced
sentence after a defendant is convicted, exercises his legal right to appeal, and
obtains a new trial, the Supreme Court has found a presumption of prosecutorial
vindictiveness.” Id. To establish the second prong, a defendant must prove, with
objective evidence, that the prosecutor’s charging decision was a “direct and
unjustifiable penalty” that resulted “solely from the defendant’s exercise of a
protected legal right.” Id. at 174 (citation omitted).
Here, Estrada’s vindictive-prosecution claim alleges that after he filed an out-
of-time appeal in January 2017 from his absconding charge in Harris County, which
was granted by the Fourteenth Court of Appeals, Fort Bend County filed an
17
indictment on April 24, 2017, for failure to notify sex offender registration. He
claims that the charge filed in Fort Bend County is “more serious in nature,” but
“[b]oth counties are using the same evidence, which is walking out of a rehab
without permission, after being threatened for being a sex offender. However, we
disagree because Estrada cannot satisfy either prong.
The first vindictive-prosecution prong is not satisfied because the Fort Bend
County third-degree felony charge is lower in degree from the first-degree felony
offense for which Estrada was convicted in Harris County, and he did not
successfully obtain a new trial on his Harris County conviction because the Court of
Criminal Appeals refused his petition for discretionary review. See Neal, 150
S.W.3d at 173; Estrada, PD-1330-18. Moreover, Estrada cannot satisfy the second
prong because his habeas petition did not provide any evidence of prosecutorial
vindictiveness from the Fort Bend County indictment, let alone “objective evidence,
that the prosecutor’s charging decision was a direct and unjustifiable penalty that
resulted solely from the defendant’s exercise of a protected legal right.” Neal, 150
S.W.3d at 174 (internal quotation marks omitted).
We conclude that a vindictive-prosecution claim, by its very nature, is not
among the claims for which pretrial habeas corpus relief lies. Its proper use requires
a prior conviction that is reversed on appeal or vacated upon granting a new trial or
the deprivation of a protected legal right whose resolution “may be aided by the
18
development of a record at trial.” Ex parte Ingram, 533 S.W.3d at 892; see also
Neal, 150 S.W.3d at 173. Accordingly, we hold that Estrada’s vindictive
prosecution claim is not cognizable in a pretrial habeas corpus proceeding. See Ex
parte Ellis, 309 S.W.3d at 79 (stating that “[i]f a non-cognizable claim is resolved
on the merits in a pretrial habeas appeal, then the pretrial writ has been misused, and
the State can appropriately petition [the Court of Criminal Appeals] to correct such
misuse.”).
3. Ineffective Assistance
Similarly to the vindictive-prosecution claims, ineffective-assistance claims
are also not among those claims listed by the Court of Criminal Appeals as
cognizable in a pretrial habeas application; rather, they are reviewable upon direct
appeal or a postconviction habeas application, which provide an adequate remedy at
law. See Ex parte Weise, 55 S.W.3d at 619–20. Rather, the Court of Criminal
Appeals has held that “generally, claims about ineffective assistance of counsel and
involuntariness of a plea are cognizable on [post-conviction] habeas corpus.” Ex
parte McCullough, 966 S.W.2d at 532 n.1 (citing Ex parte Welborn, 785 S.W.2d
391 (Tex. Crim. App. 1990) (reversing postconviction habeas application based on
ineffectiveness of counsel) and Ex parte Wilson, 716 S.W.2d 953 (Tex. Crim. App.
1986) (denying postconviction habeas application based on ineffectiveness of
counsel)); see also Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002)
19
(noting that “[g]enerally the record on direct appeal will not be sufficient to show
that counsel’s representation was so deficient as to meet the first part of the
Strickland standard” because “[t]he reasonableness of counsel’s choices often
involves facts that do not appear in the appellate record,” and that post-conviction
“petition for writ of habeas corpus usually is the appropriate vehicle to investigate
ineffective-assistance claims.”).
Here, because the ineffective-assistance claim was non-cognizable, the
pretrial habeas proceeding was misused. See Ex parte Ellis, 309 S.W.3d at 79. Thus,
we hold that Estrada’s ineffective-assistance claim is not cognizable in a pretrial
habeas corpus proceeding.
4. Speedy Trial
Finally, the Court of Criminal Appeals has expressly “held that an applicant
may not use a pretrial writ to assert his or her constitutional rights to a speedy trial”
because this issue is better addressed by a post-conviction appeal. Ex parte Weise,
55 S.W.3d at 620. Thus, although the habeas court addressed Estrada’s speedy-trial
claim, we will not address it on the merits here, and we overrule it. See id. at 619;
see also Ex parte Ellis, 309 S.W.3d at 79.
20
Conclusion
Accordingly, we conclude that the habeas court did not abuse its discretion in
denying Estrada’s pretrial habeas application, and we affirm its order.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Landau.
Publish. TEX. R. APP. P. 47.2(b).
21