Ex parte Culver

• Decision Date: 22 August 1996
• Docket Number: No. 08-95-00166-CR,08-95-00166-CR
• Citation: 932 S.W.2d 207
• Parties: Ex parte Lawrence Lanier CULVER.
• Court: Texas Court of Appeals

Page 207

932 S.W.2d 207

Ex parte Lawrence Lanier CULVER.

No. 08-95-00166-CR.

Court of Appeals of Texas El Paso.

Aug. 22, 1996.

Discretionary Review Refused Nov. 6, 1996.

Thomas S. Morgan, Midland, for Appellant.

Al W. Schorre, Jr., District Attorney of Midland County, Midland, for State.

Before BARAJAS, C.J., and LARSEN and CHEW, JJ.

OPINION

BARAJAS, Chief Justice.

This is an appeal from a denial of Appellant's pretrial writ of habeas corpus. We affirm the order of the trial court denying habeas corpus relief.

I. PROCEDURAL HISTORY

Appellant was originally indicted in cause number CRC-21,210 in the 142nd District Court of Midland County, Texas for the felony offense of driving while intoxicated. Appellant filed a motion to suppress the evidence in which he challenged the legality of the initial stop. At the November 22, 1994 hearing on the motion to suppress, the State stipulated that Appellant was not arrested pursuant to a warrant. When the trial court then called upon the State to present evidence, the prosecutor said, "State doesn't have any witnesses at this time, Your Honor." Because the State presented no evidence establishing the legality of the initial stop, the trial judge found that he had no alternative but to grant the motion. ¹

The State subsequently filed a "Motion to Reconsider Ruling on Defendant's Motion to Dismiss Indictment/Motion to Suppress Unlawful Detention and Arrest," which the trial court denied on December 9, 1994. That same day, the State, rather than appealing the court's ruling on the motion to suppress, filed a motion to dismiss the indictment. The motion, signed by the same prosecutor who represented the State at the suppression hearing, stated the following reason for dismissal: "State witnesses unavailable at PreTrial hearing. State will seek re-indictment." The trial judge granted the motion to dismiss on December 9, 1994. Appellant was re-indicted for the identical offense on January 12, 1995, and the case was assigned to the same trial judge.

On February 6, 1995, Appellant filed a document entitled "Defendant's Plea in Bar/Motion to Suppress Unlawful Detention and Arrest" in which he challenged the legality of the stop, and further urged that the State could not relitigate the suppression issue since it had been determined in a prior proceeding. After hearing evidence on the issue of whether the State could relitigate the suppression issue, the trial court denied Appellant's plea in bar and motion to suppress. Appellant then filed an application for a pretrial writ of habeas corpus in which he again challenged the legality of the stop. Appellant further asserted that relitigation of the motion to suppress was prohibited by the doctrines of collateral estoppel, double jeopardy, res judicata, and law of the case, and that permitting the State to do so would deny him due process and due course of law. The trial court denied the requested relief after an evidentiary hearing on May 12, 1995. The record does not reflect whether the trial court has in fact held an evidentiary hearing on the motion to suppress.

II. DISCUSSION

JURISDICTION

In four points of error, Appellant challenges the trial court's denial of a pretrial writ of habeas corpus. He alleges that permitting the State to relitigate the motion to suppress is prohibited by collateral estoppel/double jeopardy (Point of Error No. One), res judicata (Point of Error No. Two), law of the case (Point of Error No. Three), and due process/due course of law (Point of Error No. Four). We have raised, on our own motion, the issue of whether we have jurisdiction over this appeal.

Generally, we only have jurisdiction to consider an appeal by a criminal defendant where there has been a judgment of conviction. McKown v. State, 915 S.W.2d 160, 161 (Tex.App.--Fort Worth 1996, no pet. h.). We do not have jurisdiction to review interlocutory orders unless that jurisdiction has been expressly granted to us by law. Apolinar v. State, 820 S.W.2d 792, 794 (Tex.Crim.App.1991)(appellate court does not have jurisdiction to review interlocutory denial of plea in bar based upon double jeopardy); McKown, 915 S.W.2d at 161 (appellate court does not have jurisdiction to review interlocutory denial of defendant's motion to suppress). An appeal from a denial of a pretrial application for writ of habeas corpus is an exception to this rule.

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). Thus, an application for pretrial writ of habeas corpus should not be entertained where there is an adequate remedy by appeal after final judgment. Ex parte Groves, 571 S.W.2d at 890. Because of the existence of an adequate remedy by appeal, a defendant may not use pretrial habeas corpus to assert his constitutional rights to a speedy trial or due process. Ex parte Delbert, 582 S.W.2d 145 (Tex.Crim.App.1979)(speedy trial); Ex parte Gonzales, 667 S.W.2d 932, 935 (Tex.App.--Austin 1984, pet. ref'd)(due process). Pretrial habeas corpus is not available to test the sufficiency of the complaint, information, or indictment. Ex parte Dickerson, 549 S.W.2d 202, 203 (Tex.Crim.App.1977). However, a defendant may use pretrial habeas corpus to challenge an indictment under other circumstances. Ex parte Matthews, 873 S.W.2d 40, 43 (Tex.Crim.App.1994)[challenge of tolling provision of TEX.CODE CRIM.PROC.ANN. art. 12.05(a) ]; Ex parte Ward, 560 S.W.2d 660, 662 (Tex.Crim.App.1978)[challenge of tolling provision of TEX.CODE CRIM.PROC.ANN. art. 12.05(b) ]; Ex parte Dickerson, 549 S.W.2d at 203 (if the pleading, on its face, shows that the offense charged is barred by limitations, it may be challenged by pretrial writ of habeas corpus); Ex parte Meyer, 172 Tex.Crim. 403, 357 S.W.2d 754, 755 (1962)(claim that prosecution was based upon a void statute). Further, a defendant may raise by pretrial habeas corpus claims concerning double jeopardy, collateral estoppel and bail, because if he were not allowed to do so, those protections would be effectively undermined. Stephens v. State, 806 S.W.2d 812 (Tex.Crim.App.1990)(double jeopardy claim), citing Abney v. United States, 431 U.S. 651, 660-61, 97 S.Ct. 2034, 2040-41, 52 L.Ed.2d 651 (1977)(the preferred procedural vehicle for review of a double jeopardy claim is the writ of habeas corpus since the rights conferred on a criminal accused by the double jeopardy clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence); Ex parte Robinson, 641 S.W.2d 552, 555 (Tex.Crim.App.1982)(the protection afforded by the double jeopardy clause encompasses a "right not to be tried", which would be significantly undermined by postponement of review until after conviction); Ex parte Keller, 595 S.W.2d 531, 532-33 (Tex.Crim.App.1980)(bail).

Under the above authorities, we conclude that Appellant may not utilize pretrial habeas corpus to raise his claims based upon law of the case and due process/due course of law since they may be adequately addressed on direct appeal in the event Appellant is convicted. Therefore, we do not have jurisdiction to address Points of Error Nos. Three and Four.

Appellant's claim raised in Point of Error No. One that the State is collaterally estopped from relitigating the suppression issue is more problematic because it is based upon what we perceive as two distinct aspects of collateral estoppel. He first relies upon collateral estoppel as embodied in the double jeopardy clause of the Fifth Amendment. See Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970). Under Ex parte Robinson, Appellant may utilize pretrial habeas corpus to raise this collateral estoppel claim. Ex parte Robinson 641 S.W.2d at 556. Therefore, we have jurisdiction to address this aspect of Point of Error No. One.

In the body of his argument under Point of Error No. One, however, Appellant additionally cites United States v. Evans, 655 F.Supp. 243 (D.C.La.1987), which held that the government was collaterally estopped from relitigating a suppression issue that had been decided adversely to it in a prior proceeding since the government had a full opportunity to litigate the issue and had dismissed the indictment against the defendant rather than appealing the court's ruling on the motion to suppress. The federal district court based its decision, not upon the rule of collateral estoppel incorporated in the double jeopardy clause, but upon a rule of collateral estoppel that is "doctrinally involved with notions of due process." Evans, 655 F.Supp. at 244 [relying upon United States ex rel. DiGiangiemo v. Regan, 528 F.2d 1262 (2nd Cir.1975), cert. denied, 426 U.S. 950, 96 S.Ct. 3172, 49 L.Ed.2d 1187 (1976) ]. ² Thus, the question presented is whether we have jurisdiction to address a collateral estoppel claim based upon considerations of due process.

In Ex parte Gonzales, the Third Court of Appeals found that it had jurisdiction to consider the defendant's double jeopardy claims raised by pretrial habeas corpus, but did not have jurisdiction to review his contention that permitting the State to proceed with a second trial against him for the same offense would be "fundamentally unfair." Gonzales, 667 S.W.2d at 935. This latter contention is similar to the issue raised by Appellant, namely, that permitting the State to relitigate the suppression issue is fundamentally unfair and denies him due process and due course of law. Although we are dismayed that the State chose to dismiss the original proceeding after obtaining an adverse ruling, and in our view, perhaps unfairly obtained a second bite at the apple, we are persuaded by the decision in Gonzales that we lack jurisdiction to consider this particular aspect of Point of Error No. One. Accordingly, this contention will not be...