Opinion issued November 20, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00375-CR
                           ———————————
                EX PARTE WILLIAM D. DRIVER, Appellant



                   On Appeal from the 182nd District Court
                           Harris County, Texas
                       Trial Court Case No. 1396922


                         MEMORANDUM OPINION

      Appellant William Driver appeals the trial court’s denial of his request for a

pretrial writ of habeas corpus. He challenges his indictment on the basis that a

firearms-training simulation offered as part of the grand jury’s orientation caused

the grand jury returning the indictment to be biased against him. We conclude that
this complaint is not a proper basis for pretrial habeas corpus relief, and

accordingly we affirm the ruling of the trial court.

                                    Background

      A Harris County grand jury returned an indictment against William Driver

for committing the offense of assault of a public servant, specifically a police

officer. See TEX. PENAL CODE ANN. § 22.01(a), (b)(1) (West Supp. 2014). Driver

filed a motion to quash the indictment, in which he claimed that the grand jury that

had indicted him had been “tampered with” because some of the grand jurors may

have participated in a firearms-training simulator offered as part of the grand jury’s

initial orientation. Driver claimed that the grand jury was biased against him

because the simulator “indoctrinated” the grand jurors to identify with the police in

any altercation between a citizen and a police officer. After conducting an

evidentiary hearing on the motion to quash, the trial court issued an order denying

the motion along with the court’s findings of fact and conclusions of law.

      Driver filed a pretrial “Motion for Writ of Habeas Corpus and Motion to

Stay” that challenged the indictment on the same grounds as in the motion to

quash. The trial court denied Driver’s request for a writ of habeas corpus and

stayed the case pending the outcome of the appeal of the denial. Driver filed a

notice of appeal from the order denying his request for a pretrial writ of habeas

corpus.


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                                      Analysis

       “[A] pretrial habeas, followed by an interlocutory appeal, is an

‘extraordinary remedy,’ and ‘appellate courts have been 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

Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010) (quoting Ex parte Doster, 303

S.W.3d 720, 724 (Tex. Crim. App. 2010)). Appellate courts must be careful, on

interlocutory review, not to entertain an application for writ of habeas corpus when

there is an adequate remedy by direct, post-conviction appeal. See Ex parte Weise,

55 S.W.3d 617, 619 (Tex. Crim. App. 2001); see also Ex parte Smith, 178 S.W.3d

797, 801 n.13 (Tex. Crim. App. 2005) (“[A] writ of habeas corpus cannot be used

as a substitute for an appeal or to serve the office of an appeal.”); Smith v.

Gohmert, 962 S.W.2d 590, 593 (Tex. Crim. App. 1998) (“Habeas corpus is an

extraordinary remedy; and, ordinarily, neither a trial court nor this Court, either in

the exercise of our original or appellate jurisdiction, should entertain an application

for writ of habeas corpus where there is an adequate remedy at law.”) (quoting Ex

parte Groves, 571 S.W.2d 888, 890 (Tex. Crim. App. 1978)). 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 at 79. “If a non-cognizable claim is resolved on the merits in a


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pretrial habeas appeal, then the pretrial writ has been misused, and the State can

appropriately petition [the Court of Criminal Appeals] to correct such misuse.” Id.

      A defendant may use a pretrial writ of habeas corpus only in very limited

circumstances. See Smith, 178 S.W.3d at 801. As a general rule, an indictment may

not be challenged in a pretrial application for writ of habeas corpus. See Ex parte

Matthews, 873 S.W.2d 40, 42 (Tex. Crim. App. 1994); see also Ex parte Doster,

303 S.W.3d at 724; Ex parte Weise, 55 S.W.3d at 620. The exceptions to this rule

are generally limited to complaints regarding prosecutions under a void statute or

prosecutions barred by double jeopardy or limitations. See Maya v. State, 932

S.W.2d 633, 637 n.6 (Tex. App.—Houston [14th Dist.] 1996, no pet.) (citing Ex

parte Matthews, 873 S.W.2d 40, 41–43 (Tex. Crim. App. 1994)); see also Ex parte

Tamez, 4 S.W.3d 854, 855-56 (Tex. App.—Houston [1st Dist.] 1999) (“Pretrial

writs for habeas corpus generally may not challenge an indictment except for

instances of a void statute or to assert a statute of limitations bar.”), aff’d, 38

S.W.3d 159 (Tex. Crim. App. 2001) (“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 prior to trial to test the sufficiency of the complaint,

information, or indictment.”). Conversely, the Court of Criminal Appeals has held

that a pretrial writ may not be used to assert constitutional rights to a speedy trial,

challenge a denial of a pretrial motion to suppress, or make a collateral estoppel


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claim that does not allege a double-jeopardy violation. See Ex parte Weise, 55

S.W.3d at 620. These issues are better addressed by a post-conviction appeal. Id.

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. Id.

      Although Driver fails to address the availability of pretrial habeas relief in

his appellate brief, his petition filed with the trial court argued that pretrial habeas

relief is available to test the validity of the indictment in this case because (1) he

“would be released of the charges against him should the indictment be held

improper,” (2) he “has a substantive right not to be put on trial on an invalid

indictment,” and (3) “conservation of judicial resources requires that the accused

have the right to test the indictment prior to a full trial taking place.” Driver further

argued that his situation “is similar to a double jeopardy claim, which has long

been available pre-trial.” Driver, however, offered no authority to support his

proposition that the validity of an indictment based on allegations of grand jury

bias can be remedied by pretrial habeas relief. Indeed, because Driver’s arguments

are true of most pretrial challenges to an indictment, they are contrary to the

general rule that an indictment may not be challenged in a pretrial application for

writ of habeas corpus.




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      Although the Court of Criminal Appeals has narrowly drawn certain

exceptions to the general rule against challenging indictments by pretrial writ of

habeas corpus, Driver fails to demonstrate that any of these exceptions apply to his

case. As this court has explained, a court generally should not grant habeas corpus

relief when there is an adequate remedy by appeal. See Ex parte Wilhelm, 901

S.W.2d 956, 957 (Tex. App.–Houston [1st Dist.] 1995, pet. ref’d) (citing Ex parte

Hopkins, 610 S.W.2d 479, 480 (Tex. Crim. App. 1980)). The exceptions to this

rule, including pretrial challenges to an indictment or to the constitutionality of a

statute under which the defendant was being charged, involve circumstances in

which the defendant was asserting a legal challenge which, if successful, would

have totally barred prosecution. See id.; see also Ex parte Smith, 178 S.W.3d 797,

801 (Tex. Crim. App. 2005) (pretrial writ of habeas corpus is cognizable only in

very limited circumstances, including certain issues that would bar prosecution or

conviction). Unlike the exceptions noted in Wilhelm, Driver’s challenge to the

indictment in this case, even if successful, would not bar his prosecution through a

new indictment.

      Driver’s assertion that his situation “is similar to a double jeopardy claim,

which has long been available pre-trial” is unpersuasive. In rejecting a similar

attempt to seek pretrial relief, the United States Supreme Court explained the

unique basis for allowing double-jeopardy claims to be asserted before trial:


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       There perhaps is some superficial attraction in the argument that the
       right to a speedy trial—by analogy to these other rights—must be
       vindicated before trial in order to insure that no nonspeedy trial is ever
       held. Both doctrinally and pragmatically, however, this argument
       fails. Unlike the protection afforded by the Double Jeopardy Clause,
       the Speedy Trial Clause does not, either on its face or according to the
       decisions of this Court, encompass a “right not to be tried” which
       must be upheld prior to trial if it is to be enjoyed at all. It is the delay
       before trial, not the trial itself, that offends the constitutional
       guarantee of a speedy trial. If . . . an accused [is deprived] of his right
       to a speedy trial, that loss, by definition, occurs before trial.
       Proceeding with the trial does not cause or compound the deprivation
       already suffered.

United States v. MacDonald, 435 U.S. 850, 860–61 (1978). The Supreme Court’s

reasoning is instructive because, unlike a claim of double jeopardy, Driver has

failed to demonstrate that his claim of grand jury bias encompasses a similar “right

not to be tried which must be upheld prior to trial if it is to be enjoyed at all.” Id. at

861.

       For the foregoing reasons, we adhere to the general rule that pretrial habeas

relief is not available to challenge indictments and therefore affirm the trial court’s

order denying Driver’s request for a pretrial writ of habeas corpus.




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                                    Conclusion

      We affirm the trial court’s ruling denying the pretrial application for a writ

of habeas corpus.


                                               Michael Massengale
                                               Justice

Panel consists of Justices Massengale, Brown, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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