Weise v. State, No. 1425-00

CourtTexas Court of Criminal Appeals
Writing for the CourtKeasler, J., delivered the opinion of the Court, which Keller, P.J., and Meyers, Price, Womack, Hervey, and Holcomb
Citation55 S.W.3d 617
Parties(Tex.Crim.App. 2001) BENNETT WEISE, Appellant v. THE STATE OF TEXAS
Docket NumberNo. 1425-00
Decision Date19 September 2001

Page 617

55 S.W.3d 617 (Tex.Crim.App. 2001)
BENNETT WEISE, Appellant
v.
THE STATE OF TEXAS
No. 1425-00
Court of Criminal Appeals of Texas
September 19, 2001.

ON COURT'S OWN MOTION ON DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY

Page 618

Cynthia Russell Henley, Timothy Watts, Houston, for Appellant.

Roger Haseman, Asst. DA, Houston, for State.

OPINION

Keasler, J., delivered the opinion of the Court, which Keller, P.J., and Meyers, Price, Womack, Hervey, and Holcomb, J.J., joined.

Bennett Weise filed an application for pretrial writ of habeas corpus, claiming that the illegal dumping statute as applied to him was unconstitutional because it failed to allege a culpable mental state. We granted review on our own motion to decide whether a pretrial writ of habeas corpus may issue on the ground that a penal statute is being unconstitutionally applied because of the allegations in the indictment or information. We conclude that it may not.

Procedural and Factual History

Weise was charged by information with illegal dumping under § 365.012(a) of the Texas Health and Safety Code. Tracking the language of the statute, the information alleged that Weise

heretofore on or about SEPTEMBER 30, 1997, did then and there unlawfully, transport litter and other solid waste, namely HOUSEHOLD TRASH, having an aggregate weight of more than fifteen pounds and less than 500 pounds, and a volume of more than thirteen gallons and less than 100 cubic feet, to a place that was not an approved solid waste site for disposal at the site.

Weise filed a motion to quash the information and a pretrial application for writ of habeas corpus on the single ground that

Page 619

the illegal dumping statute was unconstitutional, as applied to Weise, because the information did not allege a culpable mental state. The trial judge denied the motion to quash and the writ application. Weise appealed the denial of the writ application. Subsequently, the First Court of Appeals reversed the trial court's order denying relief and dismissed the information.1 Without addressing whether Weise's claim was cognizable on habeas, the appellate court found that a mental state of at least "recklessly" is required under the illegal dumping statute.2

The State filed a petition for discretionary review which we refused. We then granted review on our own motion and requested the parties to brief whether the writ of habeas corpus should issue before trial on the ground that, because of the allegations in the indictment or information, a penal statute is being unconstitutionally applied to Weise. This is the question we now address.

Writ of Habeas Corpus

Background

The writ of habeas corpus is an extraordinary writ.3 Neither a trial court nor an appellate court should entertain an application for writ of habeas corpus when there is an adequate remedy by appeal.4 Additionally, an applicant must be illegally restrained to be entitled to relief.5 Weise was restrained of his liberty within the meaning of article 11.01 of the Texas Code of Criminal Procedure when he was charged with illegal dumping and released on bond to await trial.6 The question that remains is whether he is permitted to bring his claim through a pretrial writ application.

In determining whether an issue is cognizable on habeas, we have considered a variety of factors. We have looked at whether the alleged defect would bring into question the trial court's power to proceed.7 Along these same lines, we have found that a pretrial writ application is not appropriate when resolution of the question presented, even if resolved in favor of the applicant, would not result in immediate release.8 We have held that an applicant may use pretrial writs to assert his or her constitutional protections with respect to double jeopardy9 and bail.10 We reasoned that these protections would be effectively undermined if these issues were

Page 620

not cognizable.11 Conversely, we have held that an applicant may not use a pretrial writ to assert his or her constitutional rights to a speedy trial,12 challenge a denial of a pretrial motion to suppress,13 or make a collateral estoppel claim that does not allege a double jeopardy violation.14 These issues are better addressed by a post-conviction appeal. Pretrial habeas should be 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.15

Weise's Claim

Weise argues that we have permitted pretrial habeas challenges to the constitutionality of statutes under which a defendant is restrained of his liberty and, therefore, his claim is likewise cognizable. We have long held that when there is a valid statute or ordinance under which a prosecution may be brought, habeas corpus is generally not available before trial to test the sufficiency of the complaint, information, or indictment.16 But we have recognized certain exceptions to this rule. One exception is when the applicant alleges that the statute under which he or she is prosecuted is unconstitutional on its face; consequently, there is no valid statute and the charging instrument is void.17 Another exception is when the pleading, on its face, shows that the offense charged is barred by limitations.18 With both of these exceptions, the applicant is challenging the trial court's power to proceed.19 But Weise's challenge is distinguishable. He does not allege that the illegal dumping statute is facially unconstitutional. Instead, during his pretrial habeas hearing, he argued:

What I have raised is a constitutional as applied and not to the statute itself. As we're applying it, if we don't...

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212 practice notes
  • Ex parte Perry, NO. PD–1067–15
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 24 February 2016
    ...(Tex.Crim.App.2010)(pretrial habeas cannot be used to construe the meaning and application of money laundering statute); Ex parte Weise, 55 S.W.3d 617, 620–21 (Tex.Crim.App.2001)(pretrial habeas cannot be used to construe the meaning and application of illegal dumping statute). And in contr......
  • Ex Parte Ellis, No. 03-05-00585-CR.
    • United States
    • Court of Appeals of Texas
    • 22 August 2008
    ...the original prosecutions on the basis that election code section 253.094 is unconstitutionally vague and overbroad. See Ex parte Weise, 55 S.W.3d 617, 620 (Tex.Crim.App.2001) (criminal defendant may use pretrial habeas corpus to challenge facial constitutionality of statute he is accused o......
  • Ex parte Metzger, Nos. 04-19-00438-CR & 04-19-00450-CR
    • United States
    • Court of Appeals of Texas
    • 26 August 2020
    ...may file a pretrial habeas challenge to the facial constitutionality of a statute that defines the offense charged. Ex parte Weise , 55 S.W.3d 617, 620 (Tex. Crim. App. 2001). A party may bring a facial challenge to a statute pursuant to the First Amendment doctrine of substantial overbread......
  • Ex Parte Ellis, No. 03-05-00585-CR.
    • United States
    • Court of Appeals of Texas
    • 22 August 2008
    ...the original prosecutions on the basis that election code section 253.094 is unconstitutionally vague and overbroad. See Ex parte Weise, 55 S.W.3d 617, 620 (Tex.Crim.App.2001) (criminal defendant may use pretrial habeas corpus to challenge facial constitutionality of statute he is accused o......
  • Request a trial to view additional results
209 cases
  • Ex parte Perry, NO. PD–1067–15
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 24 February 2016
    ...(Tex.Crim.App.2010)(pretrial habeas cannot be used to construe the meaning and application of money laundering statute); Ex parte Weise, 55 S.W.3d 617, 620–21 (Tex.Crim.App.2001)(pretrial habeas cannot be used to construe the meaning and application of illegal dumping statute). And in contr......
  • Ex Parte Ellis, No. 03-05-00585-CR.
    • United States
    • Court of Appeals of Texas
    • 22 August 2008
    ...the original prosecutions on the basis that election code section 253.094 is unconstitutionally vague and overbroad. See Ex parte Weise, 55 S.W.3d 617, 620 (Tex.Crim.App.2001) (criminal defendant may use pretrial habeas corpus to challenge facial constitutionality of statute he is accused o......
  • Ex parte Metzger, Nos. 04-19-00438-CR & 04-19-00450-CR
    • United States
    • Court of Appeals of Texas
    • 26 August 2020
    ...may file a pretrial habeas challenge to the facial constitutionality of a statute that defines the offense charged. Ex parte Weise , 55 S.W.3d 617, 620 (Tex. Crim. App. 2001). A party may bring a facial challenge to a statute pursuant to the First Amendment doctrine of substantial overbread......
  • Ex Parte Ellis, No. 03-05-00585-CR.
    • United States
    • Court of Appeals of Texas
    • 22 August 2008
    ...the original prosecutions on the basis that election code section 253.094 is unconstitutionally vague and overbroad. See Ex parte Weise, 55 S.W.3d 617, 620 (Tex.Crim.App.2001) (criminal defendant may use pretrial habeas corpus to challenge facial constitutionality of statute he is accused o......
  • Request a trial to view additional results

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