                                       IN THE
                               TENTH COURT OF APPEALS

                                       No. 10-18-00142-CR
                                       No. 10-18-00147-CR

                               EX PARTE JOHN R. POWELL


                                  From the 12th District Court
                                     Walker County, Texas
                             Trial Court Case Nos. 27986 & 25048


                                            OPINION


        John R. Powell was charged with sexual assault, see TEX. PENAL CODE ANN. § 22.011

(West 2019), and placed on deferred adjudication community supervision in 2010 for

seven years in trial court case number 25048.1 Later, Powell was again charged with

sexual assault, id., in trial court case number 27986. He filed a single pretrial writ of

habeas corpus in both cases contending that section 12.42(c)(2) and (g)(1) is

unconstitutional on its face and as applied and that his plea of guilty in case number

25048 was involuntary. After a hearing, the trial court denied his application in both

cases. Because a constitutional challenge to section 12.42(c)(2) and (g)(1) is not cognizable



1
 It was established at the writ hearing that a motion to adjudicate had been filed by the State but had not
been ruled upon.
in a pretrial writ of habeas corpus, and because Powell did not establish his plea was

involuntary, the trial court’s Order, signed on May 8, 2018, is affirmed.

STANDARD OF REVIEW

       An appellate court reviews a trial court's decision to grant or deny an application

for writ of habeas corpus under an abuse-of-discretion standard. Kniatt v. State, 206

S.W.3d 657, 664 (Tex. Crim. App. 2006). When the resolution of any ultimate question

turns on an application of legal standards, we review the trial court's ruling de novo.

Doyle v. State, 317 S.W.3d 471, 475 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). See

Ex parte Martin, 6 S.W.3d 524, 526 (Tex. Crim. App. 1999).

VOLUNTARINESS OF PLEA

       In his first issue, Powell contends his plea in case number 25048 was involuntary

because he was not admonished that a sentence of deferred adjudication would constitute

a final conviction under certain circumstances. In essence, Powell complains that he

should have been admonished of the collateral consequences of his plea if he committed

another sexual assault.

       Section 12.42(c)(2) and (g)(1) of the Texas Penal Code provides:

       (c)(2) Notwithstanding Subdivision (1), a defendant shall be punished by
       imprisonment in the Texas Department of Criminal Justice for life if:

       (A) the defendant is convicted of an offense:

       (i) under Section 20A.02(a)(7) or (8), 21.11(a)(1), 22.021, or 22.011 [sexual
       assault], Penal Code;…and

       (B) the defendant has been previously convicted of an offense:

       (ii) under Section 20A.02(a)(7) or (8), 21.02, 21.11, 22.011 [sexual assault],

Ex parte Powell                                                                         Page 2
       22.021, or 25.02, Penal Code….
                                                ***

       (g) For the purposes of Subsection (c)(2):

       (1) a defendant has been previously convicted of an offense listed under
       Subsection (c)(2)(B) if the defendant was adjudged guilty of the offense or
       entered a plea of guilty or nolo contendere in return for a grant of deferred
       adjudication, regardless of whether the sentence for the offense was ever
       imposed or whether the sentence was probated and the defendant was
       subsequently discharged from community supervision.

See TEX. PENAL CODE ANN. § 12.42(c)(2)(A), (B) and (g)(1) (West 2019). In other words,

because Powell entered a plea of guilty to a sexual assault charge in return for a grant of

deferred adjudication, regardless of whether he was ever adjudicated guilty, he “shall be

punished” by life in prison if, in the future, he is convicted of sexual assault.

       An applicant seeking habeas corpus relief on the basis of an involuntary guilty

plea must prove his claim by a preponderance of the evidence. Kniatt v. State, 206 S.W.3d

657, 664 (Tex. Crim. App. 2006). When a person attacks the validity of his prior guilty

plea as that plea is reflected in the written judgment, he bears the burden of defeating the

normal presumption that recitals in the written judgment are correct. State v. Guerrero,

400 S.W.3d 576, 583 (Tex. Crim. App. 2013). Those written recitals are binding in the

absence of direct proof of their falsity. Id.

       In his application, Powell faults both his attorney and the trial court for the failure

to admonish him of the collateral consequences of his plea. On appeal, however, Powell

does not fault his attorney for the failure to admonish him. Thus, we discuss only

whether the trial court was required to admonish Powell regarding the consequences of




Ex parte Powell                                                                         Page 3
Powell’s plea should Powell commit another offense of sexual assault.2

        Powell provides no statutory or case authority that would suggest the trial court

was required to admonish him beyond what is required in article 26.13 of the Texas Code

of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 26.13 (West 2009). His only

authority cited is State v. Guerrero, 400 S.W.3d 576 (Tex. Crim. App. 2013), in which he

specifically relies on the Court’s statement that the recitals in a judgment are presumed

correct. This does not support his argument that the trial court was required to admonish

him on the potential collateral consequences of his plea.

        Article 26.13 requires only that a court explain to a defendant who pleads guilty

the range of punishment within which the court will assess the punishment in that

specific case. Meadows v. State, 499 S.W.2d 156, 157 (Tex. Crim. App. 1973); TEX. CODE

CRIM. PROC. ANN. art. 26.13 (West 2009). Further, it is unnecessary for a court to admonish

a defendant that a conviction on a plea of guilty may be later used for enhancement

purposes. Id. Because a court is not required to admonish a defendant that a conviction

could be used to enhance a subsequent charge, we see no need to require a court to do so

when a defendant pleads guilty to a sexual assault charge in return for a grant of deferred

adjudication. Cf. Ex parte Villalpando, 85 S.W.3d 832, 835 (Tex. App.—Waco 2002, no pet.)

(court not required to admonish misdemeanor defendants when not required to do so for

felony defendants).

        Powell’s first issue is overruled.



2
 This limitation on our discussion should not be construed to mean that we believe that trial court had the
duty to admonish Powell about the impact on his sentence if, in the future, he was convicted of sexual
assault. It simply means that issue is not in front of us.

Ex parte Powell                                                                                     Page 4
CONSTITUTIONAL CHALLENGE

       In his second issue, Powell contends the provisions of section 12.42(c)(2) and (g)(1)

are unconstitutional as applied to him.3 Specifically, Powell contends that the provisions

are unconstitutional under the 6th, 8th, and 14th Amendments to the United States

Constitution. However, Powell did not raise a 6th Amendment or 14th Amendment

challenge to the constitutionality of the provisions in his application or before the trial

court. Accordingly, those challenges are not preserved and present nothing for review.

TEX. R. APP. P. 33.1(a)(1).

       Next, we determine whether Powell’s constitutional challenge based on a violation

of the 8th amendment is cognizable in a pretrial writ of habeas corpus.

       Pretrial habeas, followed by an interlocutory appeal, is an extraordinary remedy.

Ex parte Ingram, 533 S.W.3d 887, 891 (Tex. Crim. App. 2017). As such, appellate courts

must be careful to ensure that a pretrial writ is not misused to secure pretrial appellate

review of matters that in actual fact should not be put before appellate courts at the

pretrial stage. Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010). Consequently,

whether a claim is even cognizable on pretrial habeas is a threshold issue that should be

addressed before the merits of the claim may be resolved. Ex parte Ellis, 309 S.W.3d 71,

79 (Tex. Crim. App. 2010). Except when double jeopardy is involved, pretrial habeas is

not cognizable when the question presented, even if resolved in the defendant's favor,



3
 Powell does not contend on appeal, as he did in his pretrial writ application, that the statute is also
unconstitutional on its face.

Ex parte Powell                                                                                  Page 5
would not result in immediate release. Ex parte Ingram, 533 S.W.3d 887, 892 (Tex. Crim.

App. 2017); Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001); Ex parte Ruby, 403

S.W.2d 129, 130 (Tex. Crim. App. 1966).

        Powell was charged with Sexual Assault in both cases. If we determined section

12.42(c)(2) and (g)(1) to be unconstitutional, that determination would not result in

Powell’s release in either case. It would only potentially reduce the punishment assessed

in trial court case number 27986. Accordingly, Powell’s challenge to the constitutionality

of section 12.42(c)(2) and (g)(1) is not cognizable by way of a pretrial writ of habeas

corpus.

        Powell’s second issue is overruled.

CONCLUSION

        Having overruled each issue on appeal, we affirm the trial court’s Order signed

on May 8, 2018.


                                                TOM GRAY
                                                Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins4
Affirmed
Opinion delivered and filed February 20, 2019
Publish
[CR25]




4
 The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment of the
Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003 (West 2013).

Ex parte Powell                                                                                   Page 6
