Ex Parte Smith

Decision Date01 February 2006
Docket NumberNo. PD-0262-05.,PD-0262-05.
Citation185 S.W.3d 887
PartiesEx Parte Cornelius S. SMITH, Jr., Appellant.
CourtTexas Court of Criminal Appeals

Ladawn H. Conway, Dallas, for Appellant.

Karen R. Wise, Asst. District Atty., Dallas, Matthew Paul, State's Atty., Austin, for State.

OPINION

HERVEY, J., delivered the opinion for a unanimous Court.

Appellant was charged in a facially valid indictment with the felony offense of aggravated assault. This indictment alleged that appellant "intentionally, knowingly and recklessly" caused serious bodily injury to the victim "by causing [the victim] to ingest liquid."1 Apparently, the victim was seriously injured when appellant and several others forced him to drink large quantities of water as part of the victim's initiation into a college fraternity in which appellant and the others were members. The other participants in this incident were also indicted for aggravated assault.2

Appellant claimed in a motion to quash3 that he could be prosecuted only for the Class A misdemeanor offense of hazing4 under an application of a rule of statutory construction known as the in pari materia doctrine.5 Appellant's pleading asserted that the "alleged injuries to the [victim] in the case, according to the government's theory of the case, arose out of a hazing incident wherein the [victim] was forced to drink water by others in the fraternity." One of the other defendants filed a brief in support of this claim.6 This brief asserted:

This case arises out of a widely reported incident known as the "SMU Hazing Case." In general, the factual information has alleged that the defendant in concert with co-defendants hazed the complaining witness by forcing the complaining witness to consume water. It is alleged that the Defendant's were members of Alpha Phi Alpha Fraternity, Inc. It is further alleged that the complaining witness consumed water in his efforts to become a member of Alpha Phi Alpha, Fraternity Inc. It is alleged that the complaining witness suffered serious bodily injury as a result of his excessive consumption of water. It is alleged the complaining witness' was forced to by threat of injury to consume water.

To the extent, the State does not stipulate that these general factual allegations adequately represent the factual predicate of the State's case, the defendant request an in immediate hearing in order for the Court to ascertain the factual basis of the State's case. See Tex.Code Crim. Proc.[7] In addition, the defendant request that the Court take judicial notice of the contents of the Court's file including the probable cause affidavit.[8] The defendant has been indicted under 22.02 of the Texas Penal Code. [sic passim].

(Emphasis in bold in original).

The State's response did not address the factual claims made in these defense pleadings. The State's response addressed the legal issue of whether appellant could be prosecuted only for a Class A misdemeanor offense of hazing under the in pari materia rule of statutory construction.

The trial court held an evidentiary hearing. At this evidentiary hearing, appellant presented the testimony of Jones, a captain with the Criminal Investigation Division at SMU, who investigated the incident giving rise to the charge in this case. Jones was the only witness to testify at the evidentiary hearing.

Jones testified that the victim was injured from consuming a large amount of water during a hazing activity as part of an initiation into a fraternity.

Q. [DEFENSE]: Okay. Describe for me what was learned in the investigation of this case.

A. [JONES]: Well, wewe learned that an individual was involved in a hazing activity at—in an off-campus apartment that resulted in an individual being taken to the—well, [the victim] being taken to the hospital for consuming a large amount of water and it ultimately caused him to go into convulsions and to go in—wind up I intensive care.

Q. Okay. And so when you use the term "hazing activities", I understand you to mean an activity that is occurring as part of the initiation into a fraternal organization; is that correct?

A. Yes.

Jones also testified that, to the best of his knowledge, "the acts causing bodily injury or serious bodily injury in this case all occurred as a result of hazing."

Q. [DEFENSE]: Okay. So the acts causing bodily injury or serious bodily injury in this case all occurred as a result of hazing to the best of your knowledge, correct?

A. [JONES]: Yes.

Q. Okay. To your knowledge, have—to your knowledge, there were no activities that occurred outside of hazing, correct?

A. That's correct.

During the State's cross-examination, Jones testified that he and a detective with the Dallas Police department determined that "the defendants not only knowingly, intentionally or recklessly engaged in hazing, but that they also knowingly, intentionally or recklessly caused serious bodily injury." On redirect examination, Jones testified that the factual basis for this determination was the "same factual basis for the hazing."

Q. [DEFENSE]: The—the same factual basis for the statement you just made is the exact same factual basis for the hazing; is that correct?

A. [JONES]: Re-ask me the question.

Q. Okay. Sheshe—you answered yes when she asked not only did they engage in hazing, but they also intentionally, knowingly and recklessly caused serious bodily injury to [the victim]. You answered, yes, to that question, right?

A. Yes.

Q. The acts which you're referring to in answering yes, are the same acts you referenced when I discussed hazing with you, correct?

A. Yes.

Jones also testified that he sought indictments against appellant and the others based on "the victim's statement" and "statements from other witnesses."

Q. [DEFENSE]: Were you aware of a statement being obtained from the victim?

A. [JONES]: I was made aware later, yes.

Q. Did the statement from the victim identify the alleged culprits who were involved in the assault?

A. He identified several individuals who were there. I don't remember all the specifics in what his statement was at this moment.

Q. Were there defendants who were not identified in the victim's statement who are charged in the crime today?

A. I can't recall.

Q. Other than the victim's statement, did you have statements from other witnesses that caused you to seek indictments against other defendants here today?

A. Yes.

Jones also testified that he believed that the incident in this case went beyond hazing because of "what the end result was" even though the hazing statute "not only covers serious bodily injury but death as well."9

Q. [DEFENSE]: When you said it went beyond hazing, are you familiar with the hazing statute?

A.[JONES]: Yes.

Q. Are you aware of the fact that the hazing statute not only covers serious bodily injury but death as well?

A. Yes.

Q. So when you made the statement that it went beyond hazing—in—in what effect did it go beyond hazing?

A. Well, just what the end result was.

Q. Well, if the hazing statute covers death, what end result could be greater than death?

A. None, I guess.

Jones also testified that he did not interview "all the witnesses involved in the case." Jones testified that the Dallas police interviewed these witnesses.

Q. [DEFENSE]: Well, you—you participated in the initial stage of the investigation; is that correct?

A. [JONES]: Yes.

Q. Okay. Did you interview all the witnesses involved in this case?

A. No.

Q. Okay. Was that done by Dallas police?

A. Yes.

Following the evidentiary hearing, the trial court denied appellant's motion to quash/pretrial writ of habeas corpus.

[THE COURT]: Well, I don't know if it's as clear as the State believes it is, but I am going to deny your Motion to Quash and Your Writ.

On appellant's direct appeal from this ruling, the Court of Appeals decided that appellant's in pari materia claim is not cognizable by pretrial writ of habeas corpus. Its opinion states:

In this case, there is a valid statute under which the aggravated assault prosecution is being brought. Appellant does not raise a challenge that would render his prosecution void. He does not assert the aggravated assault statute is unconstitutional on its face or that the prosecution is barred by the statute of limitations. Nor does appellant contend there was any irregularity that would render the indictment void. Rather, appellant is challenging the State's decision as to which statute it will use to prosecute appellant. Appellant's in pari materia claim, if successful, will not result in his immediate release. If convicted of aggravated assault, appellant has an adequate remedy on appeal to challenge the denial of his in pari materia claim. (Citations omitted).

We hold that appellant's in pari materia claim is not cognizable by pretrial writ of habeas corpus. Therefore, we affirm the trial court's order.

Ex parte Smith, 152 S.W.3d 170, 172 (Tex. App.-Dallas 2004).

We granted review.10 We decide that the claim presented in appellant's writ is not cognizable in a pretrial writ of habeas corpus.

Our decision in Ex parte Weise succinctly summarizes our case-law on the types of claims that are cognizable in a pretrial writ of habeas corpus. See Ex parte Weise, 55 S.W.3d 617, 619-20 (Tex. Cr.App.2001). Weise can be read to support the general principle that a claim is cognizable in a pretrial writ of habeas corpus if, resolved in the defendant's favor, it would deprive the trial court of the power to proceed and result in the appellant's immediate release. See Weise, 55 S.W.3d at 619.11

Our more recent decision in Ex parte Smith12 is not to the contrary. In Smith, we stated, among other things, that a defendant may raise in a pretrial writ of habeas corpus "certain issues which, if meritorious, would bar prosecution or conviction." See Smith, at 801. We further stated that "[b]ecause the denial of habeas corpus relief, based on fundamental constitutional principles, permits an interlocutory...

To continue reading

Request your trial
64 cases
  • Ex Parte Ellis
    • United States
    • Texas Court of Appeals
    • 22 Agosto 2008
    ... ... at 43-44, 96 S.Ct. 612. Such "express terms" would include, the court suggested, those such as "`vote for,' `elect,' `support,' `cast your ballot for,' `Smith for Congress,' `vote against,' `defeat,' `reject.'" Id. at 44 n. 52, 96 S.Ct. 612. 10 ...         The United States Supreme Court has continued to adhere to this "express advocacy" doctrine, construing similar regulations of campaign expenditures to apply only to the types of "explicit ... ...
  • Ex parte Perry
    • United States
    • Texas Court of Appeals
    • 24 Julio 2015
    ... ... at 5 n. 3 (similarly terming persuasive arguments urged by amici Constitutional and Criminal Law Experts). 19 Ellis, 309 S.W.3d at 79 (citing Ex parte Doster, 303 S.W.3d 720, 721 & n. 2, 727 (Tex.Crim.App.2010)). 20 Id. (quoting Doster, 303 S.W.3d at 724). 21 Ex parte Smith, 178 S.W.3d 797, 801 (Tex.Crim.App.2005) (per curiam). 22 Weise, 55 S.W.3d at 620. 23 Order at 10. 24 As the district court observed, the cognizability of Perry's claims turns on issues of law, and we review such questions de novo. See generally Ellis, 309 S.W.3d at 7982; cf. State v ... ...
  • Ex parte Perry
    • United States
    • Texas Court of Criminal Appeals
    • 24 Febrero 2016
    ... ... See Delay v. State, 465 S.W.3d 232, 234 (Tex. Crim. App. 2014). For example, in our last session, this Court decided 483 S.W.3d 928 to employ the doctrine of laches to prevent applicants from obtaining relief for valid constitutional claims. Ex parte Smith, 444 S.W.3d 661 (Tex. Crim. App. 2014). Also, many on this Court want to limit the ability to obtain a writ of habeas corpus even further. See Ex parte Marascio, 471 S.W.3d 832,833-40 (Tex. Crim. App. 2015)(Keasler, J., dissenting). In addition to reaching an incorrect conclusion in this case, ... ...
  • Ex parte Lee
    • United States
    • Texas Court of Appeals
    • 29 Diciembre 2020
    ... ... , 159 S.W.3d 645, 650 (Tex. Crim. App. 2005). A claim is cognizable in a pretrial writ of habeas corpus if, resolved in the defendant's favor, it would deprive the trial court of the power to proceed and result in the appellant's immediate release. Ex parte Smith , 185 S.W.3d 887, 892 (Tex. Crim. App. 2006) (citing Ex Parte Weise , 55 S.W.3d 617, 619 (Tex. Crim. App. 2001) ). A claim that a statute is unconstitutional on its face may be raised by pretrial writ of habeas corpus because the invalidity of the statute would render the charging instrument ... ...
  • Request a trial to view additional results
23 books & journal articles
  • Rules of Statutory and Legal Interpretation
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2020 Contents
    • 16 Agosto 2020
    ...under a “special” statute that is in pari materia with a broader statute when these statutes irreconcilably conflict. Ex parte Smith, 185 S.W.3d 887 (Tex. Crim. App. 2006). To determine whether two statutes share a common purpose, we consider whether the two statutes (1) are contained in th......
  • Pretrial Motions
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2021 Contents
    • 16 Agosto 2021
    ...the indictment will be sufficient on its face. The claim is also not cognizable on a pretrial writ of habeas corpus. Ex parte Smith, 185 S.W.3d 887 (Tex. Crim. App. 2006). An indictment will not be found insufficient and therefore be quashed pretrial on the basis of insufficient evidence to......
  • Pretrial Motions
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2015 Contents
    • 17 Agosto 2015
    ...the indictment will be sufficient on its face. The claim is also not cognizable on a pretrial writ of habeas corpus. Ex parte Smith, 185 S.W.3d 887 (Tex. Crim. App. 2006). An indictment will not be found insufficient and therefore be quashed pretrial on the basis of insufficient evidence to......
  • Pre-trial motions
    • United States
    • James Publishing Practical Law Books Texas Criminal Forms - Volume 1-2 Volume I
    • 2 Abril 2022
    ...the indictment will be sufficient on its face. The claim is also not cognizable on a pre-trial writ of habeas corpus. Ex parte Smith , 185 S.W.3d 887 (Tex. Crim. App. 2006). PRE-TRIAL MOTIONS §12:23 Texas Criminal Forms 12-10 Under TEX. CONST. art. III, § 35(a) a statute is facially unconst......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT