Ex Parte Tarun Bhardwaj

IN THE
TENTH COURT OF APPEALS
No. 10-19-00032-CR
EX PARTE TARUN BHARDWAJ
From the 272nd District Court
Brazos County, Texas
Trial Court No. 16-03580-CRF-272
OPINION
This is an original habeas corpus proceeding filed in an intermediate appellate
court in Texas. The initial question in this proceeding is whether it is properly
characterized as a pretrial habeas corpus proceeding from a pending criminal case or
whether it is a habeas corpus proceeding challenging a confinement for some reason
other than due to a pending criminal proceeding, specifically a civil proceeding.
If this is a pretrial petition for a writ of habeas corpus from detention for a criminal
proceeding, we do not have jurisdiction of it. On the other hand, we do have jurisdiction
of some original habeas corpus proceedings if, among other criteria, they are properly
characterized as civil proceedings.
Bhardwaj’s detention clearly started as a criminal proceeding. His competency to
stand trial was raised. It was determined that he was not, at that time, competent to stand
trial.
Bhardwaj had been detained for a substantial length of time before he filed a
petition for a writ of habeas corpus with this Court. The Court was concerned that a
pretrial detention to determine competency had been, or should be, converted to a civil
commitment proceeding of some type rather than proceed as a pretrial detention in a
criminal proceeding that could not be brought to a conclusion because the defendant was
not competent to stand trial and could thus potentially become involuntary restraint
without judicial review.
The Court asked the parties to address our concerns. Responding to our expressed
concerns as it related to the question of our jurisdiction the State filed a comprehensive
brief.1 The brief documents the extensive factual and procedural history in the trial court
and commitment proceedings. The brief then reviews the applicable law and again urged
the State’s motion to dismiss. The motion to dismiss, as does the brief, argues that
because this is a pretrial petition for a writ of habeas corpus in a pending criminal
proceeding, this intermediate appellate court has no jurisdiction. The motion thus seeks
dismissal for want of jurisdiction. We requested and received a response to the motion
1
We seldom see this issue or even closely related issues. We seldom receive extensive briefing on the
narrow issue of our habeas corpus jurisdiction. Because we believe the legal research and analysis on the
issue contained in the brief should be available to the judges and lawyers in Texas, we have attached the
entire brief, excluding the exhibits attached to the brief, to this opinion as an appendix. We do not
incorporate it, but we do make reference to it for a discussion of the factual background and procedural
history of this proceeding as well as the applicable law. Because the State’s entire brief is attached, no
useful purpose would be served for the Court to recite the facts, procedural history, or the relevant legal
authorities herein.
Ex parte Bhardwaj Page 2
to dismiss from Bhardwaj.
After due consideration of the State’s brief, the State’s motion to dismiss,
Bhardwaj’s response to the motion to dismiss, the record before us, and conducting our
own legal research, we agree with the State that the petition for a writ of habeas corpus,
filed while a criminal complaint/indictment is pending against the defendant but after a
determination of incompetency to stand trial during the period of time prior to a jury trial
on that issue, nevertheless remains a criminal proceeding over which this Court does not
have jurisdiction.
Accordingly we grant the State’s motion and dismiss this proceeding for want of
jurisdiction.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Appeal dismissed
Opinion delivered and filed May 15, 2019
Publish
[OT06]
Ex parte Bhardwaj Page 3
APPENDIX
ACCEPTED
10-19-00032-CR
TENTH COURT OF APPEALS
WACO, TEXAS
3/29/2019 2:43 PM
SHARRI ROESSLER
CLERK
FILED IN
10th COURT OF APPEALS
WACO, TEXAS
3/29/2019 2:47:00 PM
SHARRI ROESSLER
Clerk
CASE NO. 10-19-00032-CR
EX PARTE § IN THE COURT OF APPEALS
§ TENTH JUDICIAL DISTRICT
TARUN BHARDWAJ § OF TEXAS
______________________________________________________________________________
STATE’S RESPONSE TO
APPLICATION FOR WRIT OF HABEAS CORPUS
______________________________________________________________________________
NOW COMES THE STATE OF TEXAS by and through her prosecuting attorney and in
opposition of the Application for Writ of Habeas Corpus respectfully states the following to the
Court based on its information and belief:
I.
The procedural history of Bhardwaj’s case is long and complicated. This is mostly due to
(a) the fact that Bhardwaj has frequently changed attorneys throughout the proceedings, (b)
Bhardwaj has refused to cooperate with the district court’s inquiry into the matter of his
competency to stand trial, (c) Bhardwaj has taken the unusual position of opposing any finding
that he is incompetent to stand trial in spite of the recommendations and opinions of his lawyers,
and (d) Bhardwaj’s mental illness causes him to believe that his attorneys are working against him.
The facts most directly responsive to this Court’s February 13, 2019 order are as follows:
Ex parte Bhardwaj Page 4
1. The Brazos County grand jury indicted Bhardwaj on one count of Stalking (Tex. Penal Code §
42.072) on July 21, 2016. Exhibit 1 - Indictment.
2. Prior to his indictment, Bhardwaj already had two separate harassment charges pending.
3. Bhardwaj was arrested on two new misdemeanor charges on December 30, 2016.
4. Currently, Bhardwaj is detained pending trial on the felony stalking charge as well as two
misdemeanor charges of harassment, one charge of unlawful restraint, and one charge of resisting
arrest.
5. On January 30, 2017, the U.S. Department of Homeland Security placed an immigration detainer
on Bhardwaj. Bhardwaj is being held without bond on the immigration detainer. Exhibit 2 - ICE
Detainer.
6. Pursuant to Tex. Code Crim. Proc. art. 46B.005, Dr. Mary Conroy evaluated Bhardwaj
concerning his competency to stand trial. She concluded that it is “highly unlikely” Bhardwaj is
competent to stand trial. Exhibit 3 - Forensic Report of Dr. Conroy.
7. Bhardwaj requested a jury trial so that he might prove he was competent to stand trial and contest
Dr. Conroy’s opinion that he is mentally incompetent to stand trial. See Tex. Code Crim. Proc.
arts. 46B.005(c) and 46B.051.
8. After being represented at various stages of his pending criminal charges by attorneys Cam
Reynolds, Margaret Meece, Bash Sharma, Kaushik Rambhotla and Lane Thibodeaux, Bhardwaj
notified the court of his intention to proceed pro se. The court held a Faretta hearing and found
that (a) a substantial issue exists concerning Bhardwaj’s competency under the law; (b) Bhardwaj
is unable to voluntarily, knowingly, and intelligently invoke his right to represent himself or waive
assistance of counsel; and, (c) Bhardwaj lacks the mental capacity to conduct his trial defense on
the issue of competency or on the merits unless represented by counsel. Exhibit 4 – Order Denying
Ex parte Bhardwaj Page 5
Waiver of Counsel Assistance.
9. A jury trial was set for July 12, 2018, in order to determine whether Bhardwaj is competent to
stand trial. However, on the morning of trial, Bhardwaj waived the jury trial and the court
determined the issue of Bhardwaj’s competency pursuant to Tex. Code Crim. Proc. arts. 46B.005
and 46B.054. The trial court found that Bhardwaj is incompetent to stand trial and ordered he be
committed to Austin State Hospital (“ASH”) for restoration to competency pursuant to Tex. Code
Crim. Proc. art. 46B.073. Exhibit 5 - Order of Incompetency to Stand Trial and Restoration
Commitment.
10. After attempting to restore Bhardwaj to competency, ASH reported to the trial court that he
remains incompetent to stand trial. See Tex. Code Crim. Proc. art. 46B.079. Furthermore, ASH
found that Bhardwaj is not likely to be restored to legal competency within the foreseeable future
and that Bhardwaj meets the criteria for civil commitment. Exhibit 6 - Austin State Hospital
Forensic Report.
11. Upon Bhardwaj’s return from ASH neither party objected to the final report of ASH. See Tex.
Code Crim. Proc. art. 46B.084.
12. On March 25, 2019, the district court entered judgment finding Bhardwaj incompetent to stand
trial pursuant to Tex. Code Crim. Proc. art. 46B.084(a-1)(1). Exhibits 8 - Transcript of March 25,
2019 Status Hearing & 9 – Judgment Based on Final Report.
13. The felony stalking indictment pending against Bhardwaj has not been dismissed. See Tex.
Code Crim. Proc. art. 46B.084(e).
14. Bhardwaj’s case is currently set for a jury trial on civil commitment pursuant to Tex. Code
Crim. Proc. art. 46B.084(e) and Subchapter E of Chapter 46B. Trial is set to commence on May
20, 2019. Exhibit 7 - Notice of Setting.
Ex parte Bhardwaj Page 6
II.
Bhardwaj’s detention is criminal. He is currently under indictment for Stalking. See Tex.
Penal Code § 42.072. He is also charged by information with two counts of harassment, one count
of unlawful restraint, and one count of resisting arrest. Further, his detention is pursuant to an
immigration detainer placed on him by the United States government.
Tex. Gov’t Code Ann. § 22.221 provides courts of appeals with limited writ power. Ex
parte Hawkins, 885 S.W.2d 586, 587 (Tex. App.—El Paso 1994, no writ). Section 22.221(d)
provides:
Concurrently with the supreme court, the court of appeals of a court of appeals
district in which a person is restrained in his liberty, or a justice of the court of
appeals, may issue a writ of habeas corpus when it appears that the restraint of
liberty Is by virtue of an order, process or commitment issued by a court or judge
because of the violation of an order, judgment or decree previously made,
rendered, or entered by the court or judge in a civil case.
Tex. Gov’t Code Ann. § 22.221(d) (emphasis added).
Thus, the original jurisdiction of a court of appeals to issue a writ of habeas corpus is
limited to those cases where a person’s liberty is restrained because the person has violated an
order, judgment, or decree entered in a civil case. The courts of appeals have no original habeas-
corpus jurisdiction in criminal matters. Tex. Gov’t Code Ann. § 22.221(d). In re Ayers, 515 S.W.3d
356 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Original jurisdiction to grant a writ of habeas
corpus in a criminal case is vested in the Court of Criminal Appeals, the district courts, the county
courts, or a judge in those courts. Tex. Code Crim. Proc. art. 11.05; Ex parte Hawkins, 885 S.W.2d
at 588.
Bhardwaj’s detention is not related to of the “violation of an order, judgment or decree
previously made, rendered, or entered by the court or judge in a civil case.” Tex. Gov’t Code Ann.
§ 22.221(d). Instead, his detention is due to both a federal immigration detainer and his pending
Ex parte Bhardwaj Page 7
criminal charges.
III.
This Court further ordered the State to address “whether, and at what point, [Bhardwaj’s]
confinement converts from criminal to civil confinement, if at all.” Initially, it is important to note
that Bhardwaj’s confinement is criminal in nature since he is currently charged with one felony
and four misdemeanors. Incompetency proceedings under Code of Criminal Procedure Chapter
46B are ancillary to the criminal case. Jackson v. State, 548 S.W.2d 685, 690 (Tex. Crim. App.
1977). However, Bhardwaj is not in jail because of the incompetency proceedings. He is in jail
because of his pending criminal charges as well as his immigration detainer. If Bhardwaj’s
confinement converts to civil confinement at all, it would only be after the criminal charges against
him are dismissed and the trial court determines that there is evidence of mental illness or
retardation. Tex. Code Crim. Proc. arts. 46B.084(f), 46B.151. In such cases where the criminal
charges are dismissed – which in not the case with Bhardwaj – the criminal court transfers the case
to the appropriate civil court for civil commitment proceedings. See Tex. Code Crim. Proc.
Subchapter F.
In order to ensure a criminal defendant receives a fair trial, due process requires that a
defendant who is incompetent may not be put to trial. E.g., Cooper v. Oklahoma, 517 U.S. 348,
354, 116 S. Ct. 1373, 134 L. Ed. 2d 498 (1996). When the issue of the competency of a criminal
defendant to stand trial is raised in the trial court, a finding of competency is a necessary
prerequisite of a criminal trial. Morales v. State, 830 S.W.2d 139, 140 (Tex. Crim. App. 1992)
adopting the opinion of the appellate court in Morales v. State, 801 S.W.2d 624, 625 (Tex. App.—
Dallas 1990). Consequently, a preliminary hearing to determine competency is ancillary to the
main criminal proceeding. Jackson, 548 S.W.2d at 690.
Ex parte Bhardwaj Page 8
So long as the indictment is not dismissed, it is the criminal court that retains jurisdiction
over the inquiry into the defendant’s competency. See Tex. Code Crim. Proc. arts. 46B.001, et seq.
Incompetency may be raised by either party, or the trial court may raise the issue of incompetency
sua sponte. Tex. Code Crim. Proc. art. 46B.004. It is the trial court that conducts the informal
inquiry and appoints experts to evaluate the mental competency of a defendant when evidence
exists to support a finding of incompetency. Tex. Code Crim. Proc. arts. 46B.004-.005. Once a
criminal defendant has been evaluated by an expert (see Tex. Code Crim. Proc. arts. 46B.021-
.0026), the trial court is designated by statute as the court with jurisdiction over a hearing to
determine incompetency. Tex. Code Crim. Proc. arts. 46B.005(c), 46B.051-.055.
Where the trial court initially determines, following a jury trial or a bench trial, that the
defendant is incompetent to stand trial, the trial court has the authority to commit the defendant to
an appropriate facility for inpatient or outpatient restoration of competency. Tex. Code Crim. Proc.
arts. 46B.071-.073. The responsibilities of the treatment facility are fully outlined in Chapter 46B,
Subchapter D. Once the treatment facility has fulfilled its responsibilities, the defendant returns to
the trial court and the court is required to make a determination of the defendant’s competency to
stand trial based on the final report from the treatment facility. Tex. Code Crim. Proc. art.
46B.084(a). If the defendant is found by the court to be competent, the criminal proceedings
resume. Tex. Code Crim. Proc. art. 46B.084(d)(1). If the defendant is determined to be
incompetent to stand trial, then the criminal court proceeds either under Subchapter E or F,
depending on whether the criminal charges have been dismissed. Tex. Code Crim. Proc. art.
46B.084(e), (f).
If the charges are not dismissed, as is the case with Bhardwaj, then the trial court determines
if there is evidence of mental illness. Tex. Code Crim. Proc. art. 46B.102. In such cases, the
Ex parte Bhardwaj Page 9
criminal court conducts the commitment hearing for the defendant pursuant to Subtitle C, Title 7,
Health and Safety Code. Id. Bhardwaj is set for a commitment hearing on May 20, 2019, pursuant
to Subchapter E. See Exhibit 7 & 8.
Only when charges are dismissed does the criminal court transfer its jurisdiction over the
case to a civil court for civil commitment proceedings. Tex. Code Crim. Proc. art. 46B.151. At this
point, if Bhardwaj were still incarcerated, then his detention might possibly be characterized as a
civil detention. See Tex. Code Crim. Proc. arts. 46B.151(c).
IV.
Finally, this Court has ordered the State to “address the procedure this Court should use to
address the application or this situation as presented.”
As the Court can glean from Bhardwaj’s writ, he insists he is competent to stand trial. Cases where
a criminal defendant opposes a trial court’s finding of incompetence are rare, but they do exist.
See, e.g., United States v. Boigegrain, 155 F.3d 1181, 1187 (10th Cir. 1998). Bhardwaj’s1
insistence upon his competence is contrary to the evidence and the trial court’s rulings. Bhardwaj
has been found incompetent by Dr. Conroy as well as his treatment team at Austin State Hospital.
See Exhibits 3 & 6. The trial court has also ruled that he is not competent to represent himself or
conduct his own defense on the issue of competency or on the merits of his criminal charges. See
Exhibit 4. Furthermore, Bhardwaj is represented in these matters (the issues of his competency
and the merits of his criminal charges) by attorney Lane Thibodeaux, who has been appointed by
the trial court. See Exhibit 8.
_________________
1
Here, the State notes that Bhardwaj has filed this handwritten writ application pro se. The State does not presume to
speak for Bhardwaj’s attorney on this matter whatsoever.
Ex parte Bhardwaj Page 10
In response to the Court’s instruction to “address the procedure this Court should use to
address the application or this situation as presented,” the State would respectfully reurge its
motion to dismiss. Bhardwaj’s pretrial writ of habeas corpus seeks relief in a criminal case. Under
Tex. Gov’t Code § 22.221, courts of appeals do not have original jurisdiction in criminal cases. Ex
parte Hearon, 3 S.W.3d 650 (Tex. App.—Waco 1999, no pet.); Ex Parte Dennis, 10-17-00195-
CR, 2017 WL 3427560, at *1 (Tex. App.—Waco Aug. 9, 2017, no pet.); In re Letizia, No. 01-18-
01052-CR, 2019 WL 610772, at *1 (Tex. App.—Houston [1st Dist.] Feb. 14, 2019, no pet. h.).
PRAYER
Wherefore, premises considered, the State prays that this Court GRANT the State’s Motion
to Dismiss filed in this matter on February 6, 2019.
Respectfully Submitted,
/s/
Nathaniel T. Wood
Tx Bar 24062328
Assistant District Attorney
Brazos County District Attorney’s Office
300 #. 26th St., Suite 310
Bryan, Texas 77803
979-361-4320
nwood@brazoscountytx.gov
Certificate of Service
I certify that I have delivered a true and correct copy of this filing to the following on
March 29, 2018:
Lane Thibodeaux via email: lanet1@msn.com
/s/
Nathaniel T. Wood
Ex parte Bhardwaj Page 11