ACCEPTED
05-14-01490-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
7/7/2015 2:12:37 PM
No. 05-14-01490-CV LISA MATZ
CLERK
In the Matter of
In the Fifth Court of Appeals
J.I.L.
FILED IN
5th COURT OF APPEALS
Appellant’s Motion for Rehearing or En Banc Consideration
DALLAS, TEXAS
7/7/2015 2:12:37 PM
LISA MATZ
Clerk
To the Honorable Court of Appeals:
Appellant J.I.L. moves for rehearing under Texas Rule of Appellate
Procedure 49.1, and for en banc consideration under Texas Rule of
Appellate Procedure 49.7.
Introduction
By choosing to pretend that the sole issue in this case—Is Section 33.07
unconstitutional?—no longer legally matters to the parties, this Court
has failed to follow the “consistent policy” of the Texas Supreme
Court “to apply rules of procedure liberally to reach the merits of the
appeal whenever possible.” Warwick Towers Council of Co-Owners ex
rel. St. Paul Fire & Marine Ins. Co. v. Park Warwick, L.P., 244 S.W.3d
838, 839 (Tex. 2008).
The case is not moot.
A case becomes moot if, since the time of filing, there has ceased to exist a justiciable
controversy between the parties—that is, if the issues presented are no longer “live,”
or if the parties lack a legally cognizable interest in the outcome. Put simply, a case is
moot when the court’s action on the merits cannot affect the parties’ rights or interests.
Heckman v. Williamson County, 369 S.W.3d 137, 162 (Tex. 2012)
None of those things are true of the current case. There is still a
justiciable controversy between the parties. The issue presented—Is
Section 33.07 unconstitutional?—is still live, and the parties still have a
legally cognizable interest in the outcome. This Court’s action on the
merits—finding Section 33.07 of the Texas Penal Code
unconstitutional—will affect the parties’ rights and interests.
J.I.L. alleged in his Application for Writ of Habeas Corpus that
he was
illegally restrained of his liberty and confined in Collin County, Texas by the
Respondent, Judge, 417th District Court, by virtue of the restrictive conditions of his
release from detention from the Collin County Juvenile Detention Facility and the
oppressive burden of a juvenile delinquency proceeding. … The terms "confinement"
and “restraint” encompass incarceration, release on bail or bond, release on
community supervision or parole, or any other restrain[t] on personal liberty.
CR 20. He further alleged that his restraint was illegal because the
statute under which he was being prosecuted was unconstitutional. CR
21.
The statute is still unconstitutional. That did not change with
J.I.L.’s plea of true.
J.I.L. is still restrained by the Respondent, the judge of the 417th
District Court. That did not change with J.I.L.’s plea of true.
J.I.L. is still restrained because of the unconstitutional statute.
That, too, did not change with his plea of true.
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The exact form of J.I.L.’s restraint has changed—instead of
pretrial restraint, he suffers the restraint of being on probation—but
he is restrained by the 417th District Court nonetheless because, until
J.I.L. is discharged from probation, the 417th District Court may
modify his disposition. Tex. Fam. Code §54.05.
This is a juvenile case, analogous to an adult criminal case, which
“is moot only if it is shown that there is no possibility that any
collateral legal consequences will be imposed on the basis of the
challenged conviction.” Sibron v. New York, 392 U.S. 40, 57 (1968).
“[P]rior convictions that had been discharged may have serious
collateral consequences to a criminal defendant, thus the mootness
doctrine cannot prohibit a collateral attack.” Ex parte Guzman, 551
S.W.2d 387, 388 (Tex. Crim. App. 1977). Likewise, even after he is
discharged from probation, J.I.L. will continue to be restrained by the
“oppressive burden of a juvenile delinquency proceeding” for the rest
of his life because this adjudication may be used to enhance his future
punishment. Tex. Code Crim. Proc. art. 37.07 § 3(a)(1); see Ex
parte Ormsby, 676 S.W.2d 130, 131 (Tex. Crim. App. 1984) (in an adult
case, “applicant’s habeas claim is not rendered moot by the discharge
of his probated sentence”).
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This Court’s ruling on the merits of the issue—Is Section 33.07
unconstitutional?—will not be an advisory opinion, but rather will
affect the parties’ rights and interests. An affirmative answer will
terminate J.I.L.’s probation and the juvenile proceedings; it will
discharge J.I.L., allow him to seek expunction of the record of his
arrest, and prevent further collateral consequences.
Saucedo is inapposite.
In dismissing the appeal this Court cited Saucedo v. State, 795 S.W.2d 8,
9 (Tex. App.—Houston [14th Dist.] 1990, no pet.) for the proposition,
“Because the case has gone forward to adjudication, the issue
appellant raised by pretrial habeas corpus is moot.”
It is not a rule that adjudication moots issues raised by habeas
before adjudication. Adjudication may in some cases moot such issues,
but adjudication does not automatically cause mootness.
Saucedo is inapposite to this case. Mr. Saucedo filed a pretrial
application for a writ of habeas corpus challenging his pretrial
detention. While his pro se appeal was pending, he pled guilty and was
sentenced to a term of imprisonment. The Fourteenth Court held that
his appeal was moot because “any determination [it] might make on
the merits would be advisory only.” Id.
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Mr. Saucedo did not petition the Court of Criminal Appeals for
discretionary review, but in her concurrence to Kniatt v. State
Presiding Judge Keller hinted at some doubt about the holding in
Saucedo. See Kniatt v. State, 206 S.W.3d 657, 665 (Tex. Crim. App.
2006) (Keller, P.J., concurring) (“Even if we were to adopt the
holding[]…”).
Saucedo might apply if J.I.L. had complained only of his pretrial
release, and had that pretrial release been terminated while the appeal
was pending. But J.I.L. complained of the burden, generally, of a
juvenile delinquency proceeding. That burden remains, and will
remain, and if this court answers the issue—Is Section 33.07
unconstitutional?—in the affirmative, J.I.L. will be relieved of that
burden. This distinguishes this case from Saucedo.
It may be that Mr. Saucedo’s complaints about his restraint were
complaints that, like most, are not cognizable on pretrial habeas; the
opinion in Saucedo does not specify those complaints. J.I.L.’s sole
issue, however, was an as-written First Amendment overbreadth
challenge, cognizable on pretrial habeas. See Ex Parte Lo, 424 S.W.3d
10 (Tex. Crim. App. 2013) (on appeal from pretrial habeas, holding
statute overbroad as written in violation of the First Amendment).
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Put otherwise, in Saucedo the issue was “is Mr. Saucedo’s
pretrial detention legal?”; that issue, which may not have been
cognizable in habeas in the first place, became moot with his
conviction. In the present case the issue—Is Section 33.07
unconstitutional?—was cognizable in pretrial habeas, and remains live
after adjudication.
As in Kniatt v. State, “the habeas claim in the present case
purports to undermine the validity of the conviction, and so does not
disappear after conviction like complaints regarding probable cause or
bail.” Kniatt v. State, 206 S.W.3d 657, 665 (Tex. Crim. App. 2006)
(Keller, P.J., concurring).
Like Mr. Kniatt, J.I.L. has no adequate remedy on appeal.1 He
might have at one point, but unless his Notice of Appeal invoked this
Court’s jurisdiction to review the preserved error in the trial court, he
lost his appellate remedy when this Court dismissed his appeal.
Ex Parte Powell stands for the proposition that an application for
habeas corpus may not be used as a substitute for an appeal. J.I.L. is
not using an application for habeas corpus as a substitute for appeal.
1
That is, unless this Court treats his Notice of Appeal as a general notice of appeal,
as discussed infra.
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Rather, he is appealing the denial of an application for writ of habeas
corpus that was the proper instrument at the time. The issue was
cognizable, the trial court had authority to decide the application for
writ of habeas corpus under Article 5, section 8 of the Texas
Constitution, and this Court’s jurisdiction was set when he filed his
notice of appeal: “if the district court grants the writ, but subsequently
denies relief, the applicant has the right to appeal. An appeal invokes
the jurisdiction of the appellate court.” Ex parte McCullough, 966
S.W.2d 529, 531 (Tex. Crim. App. 1998) (citations omitted).
The Kniatt cases apply.
In Kniatt the Court of Criminal Appeals ruled on the merits of the
denial of an application for writ of habeas corpus, filed while the
applicant was on deferred-adjudication probation but ruled on after
adjudication. Kniatt, 206 S.W.3d 657.
In Arreola v. State, similarly, the First Court of Appeals held that
it had jurisdiction over the appellant’s appeal from the denial of his
application for writ of habeas corpus, where the adjudication of guilt
had intervened between the denial of habeas corpus relief and the
appeal. Arreola v. State, 207 S.W.3d 387, 390 (Tex. App.—Houston
[1st Dist.] 2006, no pet.).
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If nothing else, these two cases prove that adjudication does not
necessarily moot pre-adjudication habeas. Like the adjudications in
Kniatt and Arreola, the adjudication in J.I.L.’s case did not render the
underlying issue moot.
This is J.I.L.’s remedy on appeal.
J.I.L. filed his Application for Writ of Habeas Corpus expecting that it
would be docketed separately from the underlying case. (CR 20,
showing additional line for new cause number). “Such habeas corpus
proceedings should be docketed separately from the substantive cause
and given a different cause number.” Kelson v. State, 167 S.W.3d 587,
593 (Tex. App.—Beaumont 2005, no pet.). “Failure to docket habeas
corpus proceedings separately is a common mistake of the bench and
bar and the court clerks of this State.” Ex parte Carter, 849 S.W.2d 410,
412 n.2 (Tex. App.—San Antonio 1993, pet. ref’d.). The District Clerk
in this case made that common mistake and docketed J.I.L.’s
Application for Writ of Habeas Corpus under cause number
417-70360-2014.
The trial court signed its Order denying habeas corpus relief
under cause number 417-70360-2014.
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J.I.L. filed his Notice of Appeal under cause number
417-70360-2014.
There are two ways this Court could treat these procedural facts.
This Court could treat this appeal as a direct appeal from the
underlying case.
This Court could treat the Notice of Appeal as what it purports to be—a
direct appeal of cause number 417-70360-2014, timely filed according
to Texas Rule of Appellate Procedure 27.1, and complaining
specifically of the denial of the Application for Writ of Habeas Corpus.
That Application was effectively a motion to dismiss the case for
the unconstitutionality of the statute, and the trial court’s order was a
refusal to dismiss the case for the unconstitutionality of the statute.
“An appellate court, in order to determine its jurisdiction, must look
to the effect of any orders concerning an indictment or information,
not what the trial court or the parties at trial have labeled such
orders.” State v. Moreno, 807 S.W.2d 327, 333 (Tex. Crim. App. 1991).
J.I.L.’s designation of the denial of the writ of habeas corpus as
the subject of the appeal does not deprive this Court of jurisdiction or
convert his appeal to an interlocutory appeal (which would not be
permitted); it simply limits the subject matter of the appeal. See Bynog
9
v. Prater, 60 S.W.3d 310, 314 (Tex.App.—Eastland 2001, pet. denied)
(holding that appellant presented nothing for review concerning
complaints related to motion to reinstate because notice of appeal
designated order of dismissal as order from which she appealed). This
limitation is not a problem for J.I.L. The trial court’s refusal to dismiss
the prosecution because the statute is unconstitutional is the only error
preserved in this case; by granting relief the trial court would have
disposed of the case, and by denying relief the trial court eliminated
J.I.L.’s only proffered defense.
In cause number 417-70360-2014 there was only one judgment:
the final judgment. The signing of that judgment triggered the time for
filing a notice of appeal. See Tex. R. App. Proc. 26.1 (“The notice of
appeal must be filed within 30 days after the judgment is signed…”).
If the Application for Writ of Habeas Corpus and the Notice of
Appeal are treated as part of cause number 417-70360-2014 (which, on
their faces, they are), then J.I.L. preserved error in compliance with
Texas Rule of Appellate Procedure 33.1—he brought his complaint to
the court’s attention and got a ruling on it—and this Court should
reach the merits of the appeal in compliance with the Texas Supreme
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Court’s policy of applying the rules of procedure liberally to reach the
merits of the appeal.
Or this Court could treat this appeal as an appeal from a separate
habeas proceeding.
This Court could treat the Application for Writ of Habeas Corpus and
the Notice of Appeal as though they had been properly docketed under
separate cause number X (anything but 417-70360-2014), even though
they were not. This is the approach that J.I.L. initially took, but he is
not bound to that approach, and in retrospect it is probably wrong
because the papers were not docketed under a separate case.
If the Application for Writ of Habeas Corpus and the Notice of
Appeal had been properly docketed under cause number X, then the
order denying habeas relief would have disposed of cause number X,
and it would have been an appealable final judgment, triggering the 30-
day timeline for filing a notice of appeal in cause number X.
But if he had asked for relief only in cause number X, J.I.L. would
not have filed a motion to dismiss in cause number 417-70360-2014,
would not have preserved error under Texas Rule of Appellate
Procedure 33.1, and would not have a remedy on direct appeal from
cause number 417-70360-2014.
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If J.I.L. did not have a remedy on direct appeal from cause
number 417-70360-2014, then either a) the writ of habeas corpus (and
appeal of the denial of relief) remains the appropriate instrument for
reviewing the legality of J.I.L.’s continued restraint; or b) J.I.L.’s trial
counsel—the undersigned architect of this gallimaufry—was
ineffective in failing to preserve error under Rule 33.1 and file a direct
appeal.
By choosing to treat the appeal from cause number
417-70360-2014 as one over which it has no jurisdiction, this Court
applies the rules of procedure illiberally to avoid the merits of the
appeal, but it only postpones the inevitable ruling. “The choice is
simply between habeas proceedings now and habeas proceedings
later.” Kniatt v. State, 206 S.W.3d 657, 666 (Tex. Crim. App. 2006)
(Keller, P.J., concurring).
Conclusion
The sole issue in this case—whether the statute under which J.I.L. was
and is being restrained is constitutional—is still live, and not moot.
Certificate of Service
A copy of this motion will be delivered to the attorney for the State by
the efile system.
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Thank you,
________________________
Mark Bennett
SBN 00792970
Bennett & Bennett
917 Franklin Street, Fourth Floor
Houston, Texas 77002
713.224.1747
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