Childress, Jason

WR-83,674-02
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/14/2015 2:55:05 PM
Accepted 8/14/2015 3:13:09 PM
ABEL ACOSTA
WR-83,674-02 CLERK
(Trial Court Cause No. 2014CR1548)
RECEIVED
COURT OF CRIMINAL APPEALS
EX PARTE § IN THE COURT OF 8/14/2015
§ ABEL ACOSTA, CLERK
§ CRIMINAL APPEALS
§
JASON CHILDRESS § AT AUSTIN
STATE’S ORIGINAL ANSWER TO APPLICATION FOR WRIT OF
HABEAS CORPUS
TO THE HONORABLE JUDGES OF SAID COURT:
COMES NOW the State of Texas, by and through its Assistant District
Attorney, and files this its Original Answer to the Application for Writ of Habeas
Corpus in the above-captioned cause.
Factual and Procedural History
On December 15, 2014, the State filed an information and complaint with
the Comal County Clerk charging Applicant with Failure to Identify as a Fugitive
from Justice, a class “A” misdemeanor. Complaint, attached. Applicant apparently
mailed a letter to the County Clerk’s office requesting that they update his address
prior to his appearance date on February 3, 2015. For reasons unknown, the notice
of Applicant’s court appearance date was sent to the address on the bond. Although
a capias warrant was issued for Failure to Appear on that date, in light of the
forgoing, the County Court at Law has cancelled the capias warrant for the Failure
to Appear offense. Cancellation, attached.
1
A. Jurisdiction Was More Appropriate in the County Court at Law.
Applicant never submitted his habeas application to the County Court at
Law. Tex. Crim. Proc. Code Ann. art. 11.05, 11.09 (West, Westlaw through 2013
Sess.) (“If a person is confined on a charge of misdemeanor, he may apply to the
county judge of the county in which the misdemeanor is charged to have been
committed….”). Because a complaint was filed in the County Court on December
15, 2014 – well before the instant application – Applicant should have pursued
relief in that court first. See Tex. Crim. Proc. Code Ann. art. 4.16 (West, Westlaw
through 2015 R.S. ch. 46) (“[w]hen two or more courts have concurrent
jurisdiction of any criminal offense, the court in which … a complaint shall first be
filed shall retain jurisdiction ….”); see also Tex. Gov’t Code Ann. § 26.045(a)
(West, Westlaw through 2015 R.S. ch. 46) (county courts have exclusive original
jurisdiction over most misdemeanors).
The Court of Criminal Appeals has generally declined to issue writs of
habeas corpus where other courts have jurisdiction to do so. Ex parte Alderete, 203
S.W. 763, 764 (Tex. Crim. App. 1918). This is particularly true in the context of
misdemeanor cases. See generally Ex parte Smallwood, 87 Tex. Crim. 268, 269,
221 S.W. 293 (1920) (“applications for writs of habeas corpus in misdemeanor
cases should be made to the county judge of the county in which the applicant
resides”); Ex parte Phelper, 433 S.W.2d 897, 897-98 (Tex. Crim. App. 1968)
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(“This court has consistently declined to exercise its original jurisdiction in habeas
corpus attacks upon the validity of a misdemeanor conviction, the county court,
district court, or a judge of said court having jurisdiction to grant relief, and the
petitioner having the right of appeal from an order denying relief”); see also Ralph
H. Brock, The Art of Criminal Habeas Corpus Practice in State Courts, 2 App.
Advoc. 3, 7 (1989) (“The only writ that should be filed initially in the Court of
Criminal Appeals is the art. 11.07 writ. Thus the way is marked, and the maze is
easily run.”); 43 Tex. Prac., Criminal Practice And Procedure § 35:13 (3d ed.)
(“Comity strongly suggests that the writ should be made returnable to the county
court in which the misdemeanor prosecution is pending”).
As one court observed as early as 1885, although a provision granting the
local court jurisdiction – substantially similar to Texas Code of Criminal Procedure
article 11.09 – was not mandatory, it clearly “indicate[d] that the application for
the writ should, in the first instance, be made to the local judge or court competent
to grant the same” to localize the administration of law as much as possible. Ex
parte Lynn, 1885 WL 6887, 19 Tex. App. 120, 121 (1885, no writ). Despite that
applicant’s claim that the local judge was prejudiced against him, the court refused
his application, observing that his allegation was mere supposition and conjecture.
Id. at 122-23.
3
In the present case, Applicant has not provided any evidence that the local
court could not handle the application. Because he should have first presented it to
the County Court at Law, this Court should deny his application. See Ex parte
Alderete, 203 S.W. at 764; Ex parte Smallwood, 221 S.W. 293; Ex parte Phelper,
433 S.W.2d at 897-98; Tex. Crim. Proc. Code Ann. art. 4.16, 11.05, 11.09.
B. The State Generally Denies Applicant’s Allegations.
The State generally denies each and every allegation in the application, and
respectfully demands strict proof thereof.
C. Applicant’s Complaints Related to His Failure to Appear Capias
Warrant Are Now Moot.
The cancellation of the capias for Failure to Appear should moot Applicant’s
claims related to that issue in the instant habeas application and in Applicant’s
petition for writ of mandamus filed under case number WR-83,674-01. See Ex
parte Thompson, 685 S.W.2d 338, 339 (Tex. Crim. App. 1985) (dismissal of
complained-of indictment rendered applicant’s contention moot). Because the only
relief Applicant requested was to “relieve Petitioner of his unlawful restraint
resulting from the void Capias” (Application at 15), the Court should dismiss his
application as moot.
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D. Applicant Cannot Challenge a Statute “As Applied” in a Pretrial Writ,
Nor Otherwise Try the Facts of His Case Pretrial.
Applicant complains of several issues in his lengthy application, such as his
failure to be afforded an examining trial. Application Appendix, Tab K, at 19.
However, the Court of Criminal Appeals has not construed article 16.01 to require
examining trials in misdemeanor cases. Clark v. State, 417 S.W.2d 402, 403 (Tex.
Crim. App. 1967); Tex. Crim. Proc. Code Ann. § art. 16.01 (West, Westlaw
through 2015 R.S. ch. 46). Applicant does not even assert he requested an
examining trial before the complaint was filed. Applicant’s other claims similarly
lack merit.
Habeas corpus is an extraordinary remedy that should not be used as a
substitute for an appeal. Ex parte Clore, 690 S.W.2d 899, 900 (Tex. Crim. App.
1985); Ex parte Groves, 571 S.W.2d 888, 890 (Tex. Crim. App. 1978); Ex parte
Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010); Ex parte Morales, 416
S.W.3d 546, 548 (Tex.App.—Houston [14th Dist] 2013, pet. ref’d.). On
interlocutory review, appellate courts must be careful not to entertain an
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).
Only issues cognizable on habeas grounds, such as those that protect the
applicant’s substantive rights or conserve the use of judicial resources may be
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considered on interlocutory appeal. See Weise, 55 S.W.3d at 620; Ex parte
Morales, 416 S.W.3d at 548.
Applicant seeks to raise an “as applied” challenge to 38.02(a). Application at
11. While a defendant may raise a facial challenge to a statute via pretrial writ, a
defendant must preserve an “as applied” constitutional challenge by raising it at
trial. Flores v. State, 245 S.W.2d 432, 437 (Tex. Crim. App. 2008); Grant v. State,
2010 WL 311430 (Tex.App.—Waco 2010, no pet.). “The writ of habeas corpus
cannot be used to try a violation of the law as an original proceeding in [the
appellate courts]; that is, it cannot be resorted to ascertain the guilt or innocence of
a party.” Ex parte Kent, 90 S.W. 168, 168 (Tex. Crim. App. 1905). 1 Defendants
may not use pretrial habeas corpus to obtain appellate rulings on whether the
particular facts of their case constitute a criminal violation of the law at issue in
their case. Ex parte Hammonds, 230 S.W.2d 820, 821 (Tex. Crim. App. 1950); Ex
parte Overstreet, 89 S.W.2d 1002, 1003 (Tex. Crim. App. 1935); Ex parte Meers,
88 S.W.2d 100, 100–01 (Tex. Crim. App. 1935); Ex parte Drenner, 67 S.W.2d
870, 871–72 (Tex. Crim. App. 1934); Ex parte Windsor, 78 S.W. 510, 510 (Tex.
Crim. App. 1904); accord, Ex parte Osborne, 1999 WL 792435 (Tex.App.—San
Antonio 1999, pet. ref’d) (not designated for publication) (pretrial habeas corpus
1
It would likewise be inappropriate in a local court habeas corpus proceeding to try to determine
whether the accused is guilty under the particular facts of his case. Ex parte Price, 210 S.W.2d
152, 153 (Tex. Crim. App. 1948); State v. Cleaton, 5 S.W.3d 908, 910 (Tex. App.—Houston
[14th Dist.] 1999, pet. ref’d).
6
could not be used to challenge indictment based on the alleged ground that the
State could not prove the defendant’s actions caused the victim’s death).
Applicant cannot challenge statutes as applied, nor otherwise attempt to try
the facts of his case in a pretrial writ of habeas corpus. “[W]here there is an
adequate remedy at law by appeal following a final judgment, neither an appellate
court nor a trial court should entertain an application for a writ of habeas corpus.”
Sara Rodriguez, Appellate Review of Pretrial Requests for Habeas Corpus Relief
in Texas, 32 Tex. Tech L. Rev. 45, 48 (2000) (citing, inter alia, M.B. v. State, 905
S.W.2d 344, 346 (Tex. App.—El Paso 1995, no pet.) (citing Ex parte Hopkins, 610
S.W.2d 479, 480 (Tex. Crim. App. 1980); Ex parte Powell, 558 S.W.2d 480, 481
(Tex. Crim. App. 1977)). Because Applicant may not usurp the function of an
appeal through a pretrial habeas corpus application, the Court should deny him any
relief. See Ex parte Banks, 769 S.W.2d 539 (Tex. Crim. App.1989); Ex parte
Overstreet, 89 S.W.2d 1002, 1003 (Tex. Crim. App. 1935).
PRAYER
Respondent prays that no relief be granted to Applicant and that all costs be
taxed against Applicant. Alternatively, Respondent prays that the Court request a
response to any particular issue it wishes Respondent to address before deciding
whether to grant relief. Cf. Tex. R. App. P. 52.4. Furthermore, Respondent prays
7
for all relief, both special and general, in law and in equity, to which it may be
entitled.
WHEREFORE, PREMISES CONSIDERED, the application for Writ of
Habeas Corpus should be, in all things, DENIED.
Respectfully submitted,
/s/ Joshua D. Presley
Joshua D. Presley
SBN: 24088254
Assistant District Attorney
150 N. Seguin Avenue, Ste. #307
New Braunfels, Texas 78130
Phone: (830) 221-1300
Fax: (830) 608-2008
E-mail: preslj@co.comal.tx.us
Attorney for the State
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CERTIFICATE OF SERVICE
I certify that on the 14th day of August, 2015, a true and correct copy of the
foregoing document and the following attached appendix was sent to the pro se
Applicant:
Jason Childress
jchildress1980@gmail.com
9141 Gristmill Ct.
Fort Worth, TX 76179
By electronic service through efile.txcourts.gov to the above-listed email address.
/s/ Joshua D. Presley
Joshua D. Presley
Assistant District Attorney
CERTIFICATE OF COMPLIANCE
I hereby certify, pursuant to Rule 73.3 of the Texas Rules of Appellate
Procedure, that the instant response is computer-generated using Microsoft Word
and said computer program has identified that there are 1,724 words within the
portions of this response required to be counted by Rule 73.1 of the Texas Rules of
Appellate Procedure. The document was prepared in proportionally-spaced
typeface using Times New Roman 14 for text and Times New Roman 12 for
footnotes.
/s/ Joshua D. Presley
Joshua D. Presley
Assistant District Attorney
9
Appendix
10
2014CR JS"lfe
IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS
I, IDA PANIAGUA, BEING DULY SWORN, DO STATE UPON MY OATH THAT I HAVE GOOD REASON TO
BELIEVE AND DO BELIEVE BASED UPON THE INFORMATION SUPPLIED BY JAMES BELL AND I CHARGE THAT
BEFORE THE MAKING AND FILING OF THIS COMPLAINT, ON OR ABOUT THE 4TH DAY OF SEPTEMBER, 2014, IN
THE COUNTY OF COMAL AND STATE OF TEXAS, JASON TRUMAN CHILDRESS, DID THEN AND THERE, KNOWING
THAT JAMES BELL WAS A PEACE OFFICER, INTENTIONALLY REFUSE TO GIVE HIS NAME, DATE OF BIRTH, AND
ADDRESS TO JAMES BELL, A PEACE OFFICER WHO HAD LAWFULLY ARRESTED THE DEFENDANT AND
REQUESTED THE INFORMATION, AND THE DEFENDANT WAS THEN AND THERE A FUGITIVE FROM JUSTICE.
AGAINST THE PEACE AND DIGNITY OF THE STATE. ~-
Jit0_cJ
COMPLAINANT
CHARGES: FAILURE TO IDENTIFY FUGITIVE
CLASS A
- T O ANnsuBSCRIBED BEFORE ME BY IDA PANIAGUA, A CREDIBLE PERSON, THIS / ) DAY
OF ~ ,A.D.,2014.
JENNIFER A. THARP
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY
FOR JENNIFER A. THARP BY:
07/14/1980 14-43028
ARREST DATE: 09/04/2014
BOND AMOUNT: $3,000.00
TRN: 9213066511 TRS: A001
.
2014CR_d_
IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS
I, THE UNDERSIGNED AUTHORITY REPRESENTING THE OFFICE OF THE CRIMINAL DISTRICT AITORNEY
OF COMAL COUNTY, IN SAID STATE, ON THE WRIITEN AFFIDAVIT OF IDA PANIAGUA, A COMPETENT AND
CREDIBLE PERSON HEREWITH FILED IN THE COUNTY COURT AT LAW DO PRESENT IN AND TO SAID COURT
THAT ON OR ABOUT THE 4TH DAY OF SEPTEMBER, 2014, AND BEFORE THE MAKING AND FILING OF THIS
INFORMATION, IN THE COUNTY OF COMAL AND THE STATE OF TEXAS, JASON TRUMAN CHILDRESS, DID THEN
AND THERE, KNOWING THAT JAMES BELL WAS A PEACE OFFICER, INTENTIONALLY REFUSE TO GIVE HIS NAME,
DATE OF BIRTH, AND ADDRESS TO JAMES BELL, A PEACE OFFICER WHO HAD LAWFULLY ARRESTED THE
DEFENDANT AND REQUESTED THE INFORMATION, AND THE DEFENDANT WAS THEN AND THERE A FUGITIVE
FROM JUSTICE.
AGAINST THE PEACE AND DIGNITY OF THE STATE
JENNIFER A. THARP
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY
FOR JENNIFER A. THARP BY:
07/1411980 14-43028
• • 0
BOBBIE KOEPP, COUNTY CLERK
AUTHORIZATION FOR CAPIAS CANCELLATION
DEFENDANT'S NAME: JASON TRUMAN CHILDRESS
CAUSE NO: 2014CR1548
TYPE OF CAPIAS/OFFENSE:FTA/ FAIL TO IDENTIFY FUGITIVE FROM JUSTICE
CAPIAS ISSUE DATE: 03/02/2015 BOND REINSTATED: _X_ YES NO
REASON FOR CANCELLATION: PER ASHLEY EVANS
RECALLED TO: _,D~i;.;.;a.;;.;;.ne.;;........,,....,......,,.....,.....--- BY: Cyn Peterson DATE: 8/12/2015
Warrant Division Deputy Clerk
I, the undersigned authority, do hereby authorize the cancellation of the capias on the
above named defendant, this the~ day of , 2015.
STATE OF TEXAS
C9UN'f'Y.. OF COMAL
-<~:~ti.ly.lbis ro...be._a true a~d correct
.-· - e · of the re_cord ·fiLED m the
; -.. ·oOfdci~l Cou.rt t``rds of County Court JUDGE PRESIDING
3 ~-``on ~t_c...and tt.me stamped County Court At Law
~ ;_thereon. /J<~· D. rQJJ>O • Coma) County, Texas
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