Opinion issued April 5, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00824-CR
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EX PARTE DONALD WAYNE HEROD
On Appeal from the County Criminal Court at Law No. 8
Harris County, Texas
Trial Court Case No. 782792
MEMORANDUM OPINION
On October 12, 1984, pursuant to a plea agreement with the State, appellant
Donald Wayne Herod was convicted and sentenced to fifteen days in jail for the
misdemeanor offense of driving while intoxicated.1 On December 23, 2014, Herod
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TEX. PENAL CODE ANN. § 49.04 (West Supp. 2015) (providing elements for offense of
driving while intoxicated).
filed a pro se ”Motion for Application of Article 11.073 Writ of Habeas Corpus” in
the trial court claiming that there was insufficient evidence demonstrating his
intoxication in 1984. On March 9, 2015, Herod filed in the trial court a related pro
se “Motion for Leave to Proceed Under Chapter 11 of the Code of Criminal
Procedure Under Article 11.073 Writ of Habeas Corpus Based on Relevant
Scientific Evidence ‘Blood Sample.’” In this filing, Herod alleges that (1) after he
was arrested for driving while intoxicated in 1984, the police failed to perform any
tests and (2) even though Herod told the officer that he was invoking his Fifth
Amendment right to refuse any test, statutes required a blood sample when a person
refuses testing. Herod claims that, had a blood sample been taken despite his refusal,
it would have shown no alcohol in his body. On April 21, 2015, Herod filed another
related pro se habeas application in the trial court similarly asserting that the police
were required to take a blood sample despite his refusal.
On August 3, 2015, before the trial court ruled upon the habeas application,
Herod filed a pro se notice of appeal. The trial court subsequently denied Herod’s
habeas application on September 24, 2015.
To the extent that Herod’s August 3, 2015 notice of appeal seeks to appeal his
1984 judgment of conviction, his appeal is untimely. See TEX. R. APP. P. 26.2(a)(1).
To the extent that Herod prematurely appealed the trial court’s September 24, 2015
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denial of his habeas application, we affirm the trial court’s denial for the reasons
below. See TEX. R. APP. P. 27.1(b).
CONFINEMENT
I. Applicable Law
An applicant for habeas relief bears the burden of proof as to his application.
See Ex parte Galvan, 770 S.W.2d 822, 823 (Tex. Crim. App. 1989); see also Ex
parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995) (applicant for writ of
habeas corpus bears burden to prove factual allegations by preponderance of
evidence).
As part of this burden, an applicant must demonstrate that he is currently
unlawfully confined or otherwise restrained. State v. Collazo, 264 S.W.3d 121, 126
(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); see also TEX. CODE CRIM. PROC.
ANN. art. 11.01 (West Supp. 2015) (specifying that “[t]he writ of habeas corpus is
the remedy to be used when any person is restrained in his liberty”); TEX. CODE
CRIM. PROC. ANN. art. 11.23 (West Supp. 2015) (stating that “[t]he writ of habeas
corpus is intended to be applicable to all such cases of confinement and restraint,
where there is no lawful right in the person exercising the power, or where, though
the power in fact exists, it is exercised in a manner or degree not sanctioned by law”);
Ex parte Schmidt, 109 S.W.3d 480, 481–83 (Tex. Crim. App. 2003). The Legislature
has broadly defined the terms “confined” and “restraint.” See TEX. CODE CRIM.
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PROC. ANN. art. 11.21 (West Supp. 2015) (stating that “confined” refers “not only to
the actual corporeal and forcible detention of a person, but likewise to any coercive
measures by threats, menaces or the fear or injury, whereby one person exercises a
control over the person of another, and detains him within certain limits”); id. art.
11.22 (West Supp. 2015) (stating that “restraint” means “the kind of control which
one person exercises over another, not to confine him within certain limits, but to
subject him to the general authority and power of the person claiming such right”).
Collateral consequences, such as the use of the conviction to enhance punishment in
other cases, may constitute confinement. Tarvin v. State, 01–08–00449–CR, 2011
WL 3820705, at *3 (Tex. App.—Houston [1st Dist.] Aug. 25, 2011, no pet.) (mem.
op., not designated for publication).
The applicant must also establish that the confinement or restraint is a result
of the conviction that he challenges in his habeas application. See Le v. State, 300
S.W.3d 324, 326 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (habeas applicant
must establish that collateral legal consequences resulted from her Texas
misdemeanor convictions); Collazzo, 264 S.W.3d at 125–26 (defendant may attack
a misdemeanor conviction provided he is confined, restrained, or subject to collateral
legal consequences resulting from conviction he attacks).
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II. Analysis
In this case, Herod’s habeas application does not allege that he is confined,
restrained, or otherwise subject to any collateral legal consequences as a result of the
1984 misdemeanor conviction from which he seeks habeas relief. Because Herod
does not allege or identify how he is confined or restrained by the 1984 conviction
from which he seeks habeas relief, Herod’s habeas application fails to state a
cognizable claim. See Ex parte O’Neal, No. 09-15-00229-CR, 2015 WL 5604623,
at *5 (Tex. App.—Beaumont Sept. 23, 2015, pet. ref’d) (mem. op., not designated
for publication).
Further, our review of the record does not reveal any current confinement or
restraint related to the 1984 conviction. Herod is currently incarcerated and serving
a fifty-year sentence for an unrelated judgment of conviction for driving while
intoxicated. This conviction was enhanced by two prior driving while intoxicated
convictions, on November 17, 1993 and September 8, 1987. See Herod v. State, No.
01-08-00908-CR, 2010 WL 1981577, at *1-2 (Tex. App.—Houston [1st Dist.] May
13, 2010, pet. ref’d); see also TEX. PENAL CODE ANN. § 49.09(b)(2) (West Supp.
2015) (offense of driving while intoxicated is third-degree felony if defendant
previously convicted “two times of any other offense relating to the operating of a
motor vehicle while intoxicated . . . .”). This Court affirmed Herod’s conviction and
sentence on appeal. See Herod, 2010 WL 1981577 at *1-2. The 1984 conviction
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underlying this habeas petition was not one of the two convictions used to enhance
Herod’s conviction and the sentence for which he is currently confined. See id. at
*1-2. Because his confinement is neither the result, nor a collateral consequence of,
the 1984 misdemeanor conviction, the trial court properly denied Herod’s request
for habeas relief. See Le, 300 S.W.3d at 326; Collazzo, 264 S.W.3d at 125–26.
CONCLUSION
We hold that the trial court did not err in denying Herod’s habeas application
because it fails to allege or demonstrate any confinement or restraint arising from
the 1984 conviction. Accordingly, we affirm the order of the trial court.
PER CURIAM
Panel consists of Justices Bland, Brown, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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