Ex parte Paxton, No. 05–16–00004–CR

CourtCourt of Appeals of Texas
Writing for the CourtOpinion by Chief Justice Wright
Citation493 S.W.3d 292
PartiesEx parte Warren Kenneth Paxton Jr.
Decision Date01 June 2016
Docket Number No. 05–16–00006–CR,No. 05–16–00004–CR, No. 05–16–00005–CR

493 S.W.3d 292

Ex parte Warren Kenneth Paxton Jr.

No. 05–16–00004–CR
No. 05–16–00005–CR
No. 05–16–00006–CR

Court of Appeals of Texas, Dallas.

Opinion Filed June 1, 2016
Rehearing En Banc Overruled June 30, 2016
Discretionary Review Stricken August 31, 2016


Heather J. Barbieri, Plano, TX, J. Mitchell Little, Frisco, TX, William B. Mateja, Dallas, TX, Terri Hammond Moore, Ft. Worth, TX, Dan Lamar Cogdell, Philip H. Hilder, Stephanie K. McGuire, Q. Tate Williams, Paul Creech, Houston, TX, for appellants.

Brian W. Wice, Kent A. Schaffer, Nicole W. DeBorde, Houston, TX, for appellees.

Before the Court En Banc1

OPINION

Opinion by Chief Justice Wright

The question before us in this accelerated appeal is whether the trial court properly denied Warren Kenneth Paxton, Jr. the relief sought in his applications for writ of habeas corpus challenging the State's ability to prosecute him.2 We conclude three of appellant's claims are not cognizable by pretrial writ of habeas corpus and the fourth does not entitle him to relief. Consequently, we affirm the trial court's orders denying the relief sought by appellant.

Background

The Collin County Grand Jury returned three felony indictments against appellant. One indictment charged appellant with acting as an “investment advisor representative” without being registered with the Texas Securities Board; and the other two indictments alleged appellant committed securities fraud. Appellant challenged the three indictments in four applications for pretrial writs of habeas corpus. Specifically, appellant argued (1) he could not be

493 S.W.3d 297

charged under the Texas Securities Act because he was not required to register under the act; (2) he could not be charged under the Texas Securities Act for failing to register as an investment advisor representative because there is no valid definition of investment adviser representative, rendering article 581–29(I) of the Texas Securities Act unconstitutionally vague; (3) all three indictments are void because the grand jury that returned the indictments was illegally constituted; and (4) article 581–29(I) is facially unconstitutional because it is overbroad and vague. After a hearing, the trial court denied appellant's applications. In four issues on appeal, appellant challenges each of the trial court's determinations.

Pretrial Habeas

Pretrial habeas, followed by an interlocutory appeal, is an extraordinary remedy. Ex parte Perry, 483 S.W.3d 884, 895 (Tex.Crim.App.2016). This remedy is 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. Id. Neither trial courts nor appellate courts should entertain an application for writ of habeas corpus when there is an adequate remedy by appeal. Ex parte Weise, 55 S.W.3d 617, 619 (Tex.Crim.App.2001). Whether a claim is 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 71, 79 (Tex.2010) ; see Perry, 483 S.W.3d at 895 (addressing cognizability of as-applied challenge). When determining whether an issue is cognizable by pretrial habeas, we consider a variety of factors, including whether the rights underlying the claims would be effectively undermined if not vindicated before trial and whether the alleged defect would bring into question the trial court's power to proceed. Perry, 483 S.W.3d at 895–96 ; Weise, 55 S.W.3d at 619. A defendant may use a pretrial writ of habeas corpus only in very limited circumstances. Ex parte Smith, 178 S.W.3d 797, 801 (Tex.Crim.App.2005). The accused may challenge the (1) State's power to restrain him at all, i.e., the existence of probable cause, (2) the manner of his restraint, i.e., the denial of bail or conditions attached to bail, and (3) certain issues that would bar prosecution or conviction. Id. Designating a particular complaint as one that is cognizable is not enough; if the complaint is in fact one that is not cognizable, we should refuse to consider the merits of the claim. See Ellis, 309 S.W.3d at 79–80.

When reviewing the trial court's decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial court's ruling. Ex parte Wilson, 171 S.W.3d 925, 928 (Tex. App—Dallas 2005, no pet.). We will uphold the trial court's ruling absent an abuse of discretion. Id. In conducting our review, we afford almost total deference to the trial court's determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. Id. We afford the same amount of deference to the trial court's application of the law to the facts if the resolution of the ultimate question turns on an evaluation of credibility and demeanor. Id. If the resolution of the ultimate question turns on an application of legal standards, we review the determination de novo. Id.

Grand Jury

In his third issue, appellant contends the trial court erred by denying his third application for writ of habeas corpus because the grand jury that returned the indictments was improperly formed, rendering all three indictments void. Specifically,

493 S.W.3d 298

appellant alleges the grand jury was impaneled in arbitrary violation of the code of criminal procedure because the trial court added an “impermissible, additional qualification for grand jury service, ‘willingness to serve’ prior to qualifying anyone on the venire.” Appellant contends this issue is appropriate for review on pretrial habeas under Ex parte Becker, 459 S.W.2d 442 (Tex.Crim.App.1970).

In response, the State first contends this Court is not bound by Becker, because that case has “been eroded by time and intervening authority.” Even if, as the State argues, the court of criminal appeals' habeas corpus jurisprudence has “taken a path” that will likely prompt the higher court to reexamine Becker, that is for the court of criminal appeals, not this Court, to decide. See Patterson v. State, 654 S.W.2d 825, 827 (Tex. App—Dallas 1983, pet. ref'd). We acknowledge the Becker court, on appeal from the trial court,3 addressed Becker's complaint without first determining whether the complaint was cognizable on pretrial habeas. We likewise recognize that in Becker, unlike in this case, the court of criminal appeals was addressing an immediate existing problem in that the grand jury was still in session and presumably continuing to return indictments. Becker, 459 S.W.2d at 442 (“The question presented by this appeal is a rather difficult one requiring a prompt reply since the Dallas County Grand Jury involved is still in session.”). However, since Becker, the court of criminal appeals has increasingly placed importance on determining cognizability as a threshold issue, and has cautioned courts that addressing the merits of a non-cognizable claim on pretrial habeas is a misuse of the writ. Ellis, 309 S.W.3d at 79 ; see also Perry, 483 S.W.3d at 895–97 (addressing cognizability of separation of powers claim as a threshold matter). Thus, we follow the court's instruction in Ellis and first determine whether appellant's particular claim is cognizable on pretrial habeas corpus.

When there is a valid statute or ordinance under which a prosecution may be brought, pretrial habeas is generally not available to test the sufficiency of the charging instrument. Perry, 483 S.W.3d at 895 ; Weise, 55 S.W.3d at 620. A few exceptions to this rule exist, but they have usually been found only when the complaint is such that it would render the proceedings void from the outset. Ex parte Smith, 152 S.W.3d 170, 171 (Tex. App—Dallas 2004), aff'd, 185 S.W.3d 887 (Tex.Crim.App.2006). One such exception is a complaint that the composition of the grand jury is illegal. See Becker, 459 S.W.2d at 443–44. When there has been “an arbitrary disregard” of statutes regarding the “selection and organization of a grand jury,” a grand jury is without authority to return an indictment. See id. at 444. But not all complaints about the methods used to empanel a grand jury rise to the level of rendering the grand jury without authority to return an indictment. See id. at 445.

For example, the complained-of grand jury in Becker was impaneled using the jury commissioner system. See Becker, 459 S.W.2d at 442. Under that system, the grand jury commissioners submitted a list of names to the district judge in a sealed envelope, and the list was given to the sheriff. Id. at 443. Before the grand jury was impaneled, the district judge reordered the names and moved a number of people down the list including Rene Martinez and Lola Darby. Id. The district

493 S.W.3d 299

judge explained that Martinez was too young and did not “reflect the beliefs and opinions held by the majority of Dallas County” and Darby, as a fourth woman on the grand jury, would make a “predominance of women.” Id. Becker complained that the grand jury was illegally formed because the district judge did not select the first twelve names on the list prepared by the commissioners. The court of...

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34 practice notes
  • Ex parte Chapa, NO. 03-18-00104-CR
    • United States
    • Court of Appeals of Texas
    • August 22, 2018
    ...be addressed before the merits of the claim may be resolved. Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010); Ex parte Paxton, 493 S.W.3d 292, 297 (Tex. App.—Dallas 2016, pet. ref'd); see, e.g., Perry, 483 S.W.3d at 895 (addressing cognizability of "as applied" challenge to constit......
  • Ex parte Bradshaw, No. 05-16-00570-CR
    • United States
    • Court of Appeals of Texas
    • August 23, 2016
    ...v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ; Ex parte Paxton , No. 05–16–00004–CR, 493 S.W.3d 292, 305, 2016 WL 3086093, at *8 (Tex.App.—Dallas June 1, 2016, pet. filed) (en banc). All criminal laws must give fair notice about what activity......
  • Ex parte Nuncio, No. 04-18-00127-CR
    • United States
    • Court of Appeals of Texas
    • April 10, 2019
    ...mathematically precise; rather, statutes need only provide fair warning in light of common understanding and practices. Ex parte Paxton , 493 S.W.3d 292, 305 (Tex. App.—Dallas 2016, pet. ref'd) (en banc). A statute is not unconstitutionally vague simply because the words or terms used are n......
  • Ex parte Chapa, NO. 03-18-00104-CR
    • United States
    • Court of Appeals of Texas
    • May 23, 2018
    ...be addressed before the merits of the claim may be resolved. Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010); Ex parte Paxton, 493 S.W.3d 292, 297 (Tex. App.—Dallas 2016, pet. ref'd); see, e.g., Perry, 483 S.W.3d at 895 (addressing cognizability of "as applied" challenge to constit......
  • Request a trial to view additional results
34 cases
  • Ex parte Chapa, NO. 03-18-00104-CR
    • United States
    • Court of Appeals of Texas
    • August 22, 2018
    ...be addressed before the merits of the claim may be resolved. Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010); Ex parte Paxton, 493 S.W.3d 292, 297 (Tex. App.—Dallas 2016, pet. ref'd); see, e.g., Perry, 483 S.W.3d at 895 (addressing cognizability of "as applied" challenge ......
  • Ex parte Bradshaw, No. 05-16-00570-CR
    • United States
    • Court of Appeals of Texas
    • August 23, 2016
    ...v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ; Ex parte Paxton , No. 05–16–00004–CR, 493 S.W.3d 292, 305, 2016 WL 3086093, at *8 (Tex.App.—Dallas June 1, 2016, pet. filed) (en banc). All criminal laws must give fair notice about what activity......
  • Ex parte Nuncio, No. 04-18-00127-CR
    • United States
    • Court of Appeals of Texas
    • April 10, 2019
    ...mathematically precise; rather, statutes need only provide fair warning in light of common understanding and practices. Ex parte Paxton , 493 S.W.3d 292, 305 (Tex. App.—Dallas 2016, pet. ref'd) (en banc). A statute is not unconstitutionally vague simply because the words or terms used are n......
  • Ex parte Chapa, NO. 03-18-00104-CR
    • United States
    • Court of Appeals of Texas
    • May 23, 2018
    ...be addressed before the merits of the claim may be resolved. Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010); Ex parte Paxton, 493 S.W.3d 292, 297 (Tex. App.—Dallas 2016, pet. ref'd); see, e.g., Perry, 483 S.W.3d at 895 (addressing cognizability of "as applied" challenge ......
  • Request a trial to view additional results

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