ACCEPTED
03-14-00669-CR
12601055
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/8/2016 4:41:58 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00669-CR
__________________________________________________________
IN THE COURT OF APPEALS FOR THE THIRD
DISTRICT OF TEXAS
__________________________________________________________
Ex parte Justin River Carter
__________________________________________________________
FILED IN
On Remand from the Court of Criminal Appeals 3rd COURT OF APPEALS
*** AUSTIN, TEXAS
Originally on Appeal from the 207 Judicial District Court of9/9/2016
th
Comal12:20:00 PM
County,
JEFFREY D. KYLE
Texas Clerk
Cause No. CR2013-159
Honorable Jack Robison Presiding
__________________________________________________________
SUPPLEMENTAL BRIEF FOR THE STATE-APPELLEE
__________________________________________________________
Jennifer Tharp
Criminal District Attorney
By
Joshua D. Presley
SBN: 24088254
Assistant District Attorney
150 N. Seguin Avenue, Suite #307
(830) 221-1300
Fax (830) 608-2008
New Braunfels, Texas 78130
E-mail: preslj@co.comal.tx.us
Attorney for the State
Oral Argument Is Respectfully Requested
Issue
The Court of Criminal Appeals remanded this cause for this Court to
consider “the effect of Perry, if any, on its reasoning and analysis in this case.” Ex
parte Carter, PD-1291-15, 2016 WL 3094331, at *1 (Tex. Crim. App. May 25,
2016) (not designated for publication). This brief will address how the limited Ex
parte Perry expansion of pretrial habeas review is inapplicable to Appellant’s case,
and further discuss how “judicial economy” considerations discussed in Ex parte
Perry support rejecting review in cases such as Appellant’s.
Summary of the Argument
As this Court has recognized both before and after Ex parte Perry, any
expansion of pretrial habeas review must come from the Legislature or the Court of
Criminal Appeals. Ex parte Perry’s holding was extremely limited, covering
situations involving separation of powers claims and infringing on an individual’s
power as a government official. Notably in that opinion, the Court of Criminal
Appeals itself distinguished both Ellis and DeLay on those bases. As this Court has
already recognized, the record in Appellant’s case has not yet been developed.
Contrary to Appellant’s claim that the principle of “judicial efficiency” supports
review, extending pretrial habeas appellate review to situations such as Appellant’s
would constitute a colossal waste of judicial time and resources.
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Pretrial “As Applied” Habeas Review Is Inappropriate in
Appellant’s Circumstances
a. The Third Court has recently reaffirmed – after Ex parte Perry – that it is
inappropriate for an intermediate appellate court to judicially expand
pretrial habeas relief.
Although Ex parte Perry was based on the separation of powers issue and
does not impact the analysis in the instant case, notably, this Court has
acknowledged subsequent to Ex parte Perry that it is inappropriate for an
intermediate appellate court to judicially expand the availability of pretrial habeas
relief. As the Court observed in Blanchard v. State:
[Defendant] may not bring an as-applied challenge to the statute’s
constitutionality in a pre-trial writ of habeas corpus. See, e.g., Ex parte
Ellis, 309 S.W.3d 71, 79 (Tex.2010) (“Pretrial habeas can be used to
bring a facial challenge to the constitutionality of the statute that
defines the offense but may not be used to advance an ‘as applied’
challenge.”) (citing Ex parte Weise, 55 S.W.3d 617, 620–21 (Tex.
Crim. App. 2001)); cf. Ex parte Perry, 483 S.W.3d 884, 898 (Tex.
Crim. App. 2016) (pre-trial habeas is available vehicle for government
official to advance as applied separation of powers claim that alleges
infringement of his own power as government official).
03-16-00014-CR, 2016 WL 3144142, at *2 n.2 (Tex. App.—Austin June 2, 2016,
no pet.) (not designated for publication) (emphasis added). The Court further
observed that as an intermediate appellate court, “[w]e must, in short, follow the
existing law rather than change it, and we have adhered to that basic limiting
principle in a variety of contexts.” Anderson v. Archer, 490 S.W.3d 175, 177 (Tex.
App.—Austin 2016, pet. filed) (citing, among other cases, Ex parte Perry, 483
2
S.W.3d 884, 898 (Tex. Crim. App. 2016)). Because Ex parte Perry was clearly
based on the separation of powers issue, the Court should continue to follow the
existing law rather than change it. See id.; see also Ex parte Paxton, 05-16-00004-
CR, 2016 WL 3086093, at *6 (Tex. App.—Dallas June 1, 2016, no pet.) (“Perry
reaffirms that ‘as applied’ challenges are not cognizable on pretrial habeas except
for certain carefully limited exceptions. See Perry, 483 S.W.3d at 895–98. The
court concluded that cases involving criminal charges arising from an elected
official’s performance of his duties and implicating the separation of powers
qualify as such an exception”) (emphasis added).
b. Ex parte Perry’s holding was limited to situations involving separation of
powers issues infringing on an elected official’s exercise of his power.
The Court of Criminal Appeals’ holding in Ex parte Perry was extremely
limited; the Court observed the general prohibition on pretrial habeas for as-
applied challenges before carving a narrow exception based on the separation of
powers principle. See Ex parte Perry, 483 S.W.3d 884, 898 (Tex. Crim. App.
2016); Ex parte Paxton, 2016 WL 3086093 at *6; cf. Blanchard v. State, 2016 WL
3144142 at *2 n.2. Ex parte Perry observed that:
We have also said that pretrial habeas is generally not available to test
the sufficiency of the charging instrument or to construe the meaning
and application of the statute defining the offense charged ….we have
stated that pretrial habeas cannot be used to advance an as-applied
constitutional challenge to a statute. And we have said that pretrial
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habeas is unavailable “when the resolution of a claim may be aided by
the development of a record at trial.”
483 S.W.3d at 895. The Court then went through an examination of interlocutory
habeas appeal exceptions in other jurisdictions related to the exercise of
government power. See id. at 896 (citing, e.g., Helstoski v. Meanor, 442 U.S. 500,
506-07 (1979) (involving claims arising out of the United States Constitution’s
Speech and Debate Clause); Nixon v. Fitzgerald, 457 U.S. 731, 742-43 (1982)
(involving “threatened breach of essential Presidential prerogatives under the
separation of powers”). Quoting Helstoski, the Court noted that “[p]articularly for a
member of Congress, however” the issuance of an indictment can be devastating.
Ex parte Perry, 483 S.W.3d at 897. After reviewing cases involving government
actors, the Court determined that:
in light of our more aggressive enforcement of separation of powers in
Texas, we hold that the type of separation of powers claim in this case
may be resolved prior to trial. If a statute violates separation of
powers by unconstitutionally infringing on a public official’s own
power, then the mere prosecution of the public official is an undue
infringement on his power …. pretrial resolution of this type of
separation of powers claim is necessary to ensure that public officials
can effectively perform their duties. We conclude pretrial habeas is an
available vehicle for a government official to advance an as-applied
separation of powers claim that alleges the infringement of his own
power as a government official.
Id. at 898. Notably, although the Third Court “suggested that some of the same
concerns behind allowing pretrial resolution of Governor Perry’s claims were also
present in the Ellis and DeLay cases,” the Court of Criminal Appeals actually
4
distinguished both: “neither of those cases involved a separation of powers claim,
and the charges were based upon election activities and not upon the public
official’s performance of his duties.” Id. n.78 (emphasis added).
The Court’s holding in Ex parte Perry was extremely narrow and based
upon cases involving similar separation of powers claims for government officials.
Id. Ex parte Perry’s expansion of pretrial habeas review has no effect upon the
instant case; Appellant 1) is not a government official, 2) does not allege an as-
applied separation of powers claim, and obviously 3) does not allege any
infringement of his power as a government official. See id. at 898; see also Ex
parte Paxton, 2016 WL 3086093 at *6; cf. Blanchard, 2016 WL 3144142 at *2 n.2
c. Policy considerations – including the “judicial efficiency” mentioned in
Ex parte Perry – warrant rejecting interlocutory appeals in “as applied”
situations like Appellant’s.
An as-applied challenge should be brought “during or after a trial on the
merits, because it is only then that the trial judge and reviewing courts have the
particular facts and circumstances of the case needed to determine whether the
statute or law has been applied in an unconstitutional manner.” Ex parte Justice,
14-14-00951-CR, 2015 WL 5770811, at *2 (Tex. App.—Houston [14th Dist.] Oct.
1, 2015, no pet.) (not designated for publication). In Ex parte Perry, this concern
was largely alleviated by a bill of particulars: “[a] key unresolved fact, according
to the State, is whether the act constituting ‘misuse’ of the funds for the public
5
integrity unit is the Governor’s veto…. We will hold the State to its allegation in
the bill of particulars that the veto is the sole act of misuse on which the State
relies.” 483 S.W.3d at 899-900.
In the instant case, there was no “bill of particulars,” nor has the State put on
its case against Appellant – though he essentially wanted to hold a ‘mini trial’ prior
to his trial on the merits. Although Appellant speculates that “[t]he only further
evidence that the State may possibly wish to pursue is a smear campaign based
upon statements to a childhood school counsel and alleged statement made to an
ex-girlfriend some years before” (Supplemental Brief of Appellant at 7-8), such
speculation is outside the record and is precisely the reason claims such as
Appellant’s should not be pursued pretrial. Notably, the record before the Court
does not even include “State’s Exhibit 8” (III R.R. at 58), Appellant’s letter
admitted into evidence in which the Appellant admitted to thinking of the then-
recent Sandy Hook school shooting atrocity before he threatened to “SHOOT UP
A KINDERGARTEN AND WATCH THE BLOOD OF THE INNOCENT RAIN
DOWN … AND EAT THE BEATING HEART OF ONE OF THEM.” See Ex
parte Carter, 03-14-00669-CR, 2015 WL 5248525, at *6 n.5 (Tex. App.—Austin
Aug. 31, 2015), petition for discretionary review granted, judgment vacated, PD-
1291-15, 2016 WL 3094331 (Tex. Crim. App. May 25, 2016).
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The Court correctly observed in its opinion that an “‘as applied’
constitutional challenge may not be resolved pretrial because it depends on
development of the specific facts of the case showing how the statute is being
applied to the defendant. Id. at *7. Appellate courts “are careful to ensure that a
pretrial writ is not misused ‘to secure a pretrial appellate review of matters that in
actual fact should not be put before appellate courts at the pretrial stage.’” Ex parte
Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005). As the court determined in
Ex parte Paxton:
we conclude appellant’s first issue is not cognizable on appeal of a pretrial writ
because resolving it would require that we construe the statute under which
appellant is charged, it would require us to resolve disputed factual
controversies, and it would require us to apply the statute to appellant’s
particular circumstances notwithstanding the existence of an adequate remedy
by appeal after trial. See Perry, 483 S.W.3d at 895; Weise, 55 S.W.3d at 619.
2016 WL 3086093 at *6 (emphasis added).
Because the State has not had the opportunity to develop the evidence
regarding issues such as the context of the statement and Appellant’s intent,
pretrial resolution is inappropriate. See Ex parte Carter, 2015 WL 5248525, at *7.
Appellant once again claims his comments were not threatening; however, as this
Court has already recognized, the resolution of that claim “is dependent on the
facts of the case—which have yet to be developed through trial.” Id.
Although Appellant stresses “judicial economy” in attempting to obtain
pretrial review, Ex parte Perry noted that “pretrial habeas enhances judicial
7
economy only if the habeas applicant wins; it actually hinders judicial economy if
the habeas applicant loses.” 483 S.W.3d at 898 n.79 (emphasis added). If every
habeas applicant merely needs to assert his threat “fits within First Amendment
protection,”1 (Supplemental Brief for Appellant at 6) to obtain pretrial as-applied
habeas appellate review:
1) the trial courts will necessarily be forced to conduct extensive “mini trials”
before each trial;
2) the intermediate appellate courts will see a deluge of appeals attempting to
resolve the matter pretrial;
3) the Court of Criminal Appeals will see a massive increase in petitions for
discretionary review;
4) the vast majority of such claims will likely fail;
5) the matters will return to the trial courts for the full-blown trial – perhaps
many months or years later; and
6) following trial, defendants will start the lengthy appellate process all over
again.
Appellant already has an adequate remedy by appeal. See Ex parte Paxton, 2016
WL 3086093 at *6. Because pretrial appellate review in situations such as
Appellant’s would “actually hinder[] judicial economy,” substantially lengthen the
1
As this Court has already noted, “the challenged subsections of the terroristic threat statute do
not regulate First Amendment protected speech or conduct” Ex parte Carter, 2015 WL 5248525,
at *6 n.4.
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overall process and waste valuable judicial time and resources, Ex parte Perry
actually supports denying review in the instant case. See 483 S.W.3d at 898 n.79.
Prayer
Wherefore, premises considered, the State respectfully prays that this
Honorable Court of Appeals deny Appellant’s writ in all respects. The State also
prays for all other relief, in law and in equity, to which it may be entitled.
JENNIFER THARP
Criminal District Attorney
By
/s/ Joshua D. Presley
Joshua D. Presley
SBN: 24088254
Assistant District Attorney
150 N. Seguin Avenue, Ste. #307
New Braunfels, Texas 78130
Phone: (830) 221-1300
Fax: (830) 608-2008
E-mail: preslj@co.comal.tx.us
Attorney for the State
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CERTIFICATE OF SERVICE
I, Joshua D. Presley, Assistant District Attorney for the State of Texas,
Appellee, hereby certify that a true and correct copy of this State’s Supplemental
Brief has been delivered to Appellant JUSTIN CARTER’s attorney in this matter:
Chad P. Van Brunt
vanbruntlaw@live.com
210 S. St. Mary’s Street
Suite 1840 – Tower Life Bldg.
San Antonio, TX 78205
Counsel for Appellant on Appeal
By electronically sending it to his above-listed email address through
efile.txcourts.gov, this 8th day of September, 2016.
/s/ Joshua D. Presley
Joshua D. Presley
Certificate of Compliance
I hereby certify, pursuant to Rule 9.4 of the Texas Rules of Appellate
Procedure that the instant brief is computer-generated using Microsoft Word and
said computer program has identified that there are 2,087 words within the portions
of this brief required to be counted by Rule 9.4 of the Texas Rules of Appellate
Procedure.
The document was prepared in proportionally-spaced typeface using Times
New Roman 14 for text and Times New Roman 12 for footnotes.
/s/ Joshua D. Presley
Joshua D. Presley
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