             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-19-00466-CR
          No. 02-20-00046-CR
          No. 02-20-00047-CR
     ___________________________

       Ex parte Eligah Darnell Jr.


  On Appeal from the 432nd District Court
         Tarrant County, Texas
       Trial Court No. 1575071D


  Before Bassel, Womack, and Wallach, JJ.
 Memorandum Opinion by Justice Womack
                          MEMORANDUM OPINION

                                I. INTRODUCTION

      In these three companion cases, pro se appellant Eligah Darnell Jr. appeals the

trial court’s orders denying (1) his application for pretrial writ of habeas corpus

wherein Darnell made an “as applied” constitutional challenge to Texas Code of

Criminal Procedure Article 62.055 (appellate cause number 02-19-00466-CR);1 (2) his

“Supplement to Pre-Trial Writ” wherein he made facial and as-applied constitutional

challenges to Article 62.055 (appellate cause number 02-20-00046-CR); and (3) his

pretrial writ of habeas corpus seeking bond reduction (appellate cause number 02-20-

00047-CR). We affirm.

                                 II. BACKGROUND

      The record is sparse in these cases, and most of what is known in these cases

comes from documents attached to Darnell’s notices of appeal (NOA) or through

what he pleaded in his writs. What can be established from the record is that the

State indicted Darnell for failure to comply with sex-offender-registration

requirements. The State’s indictment also contains a habitual-offender notice stating

that prior to his failure to register, Darnell was previously convicted of failure to

comply with sex-offender-registration requirements and felony possession of a

handgun on the premises of a school.

      1
        See Tex. Code Crim. Proc. Ann. art. 62.055 (requiring registered sex offenders
to notify local law enforcement of any anticipated move date and new address).


                                          2
        According to documents attached to his NOA, Darnell called and rescheduled

an October 16, 2018 appointment when he was supposed to report that he had

moved to a new address, and he was more than an hour late to his rescheduled

November 15, 2018 appointment.               These documents further reveal that his

appointment to register his new address was then rescheduled again for November

28, 2018. Nothing in the record or the NOA documents indicates whether Darnell

attended the November 28, 2018 appointment. But an arrest warrant attached to

Darnell’s NOA shows that police obtained a warrant for Darnell’s arrest on

December 6, 2018. The indictment that is in the record indicates that the date of his

offense occurred on December 5, 2018. Darnell is currently in jail awaiting trial,

allegedly being held under a $25,000 bail.

        After being arrested, Darnell filed three separate pretrial writs of habeas corpus.

In his first writ, Darnell challenged the constitutionality of Article 62.055 as applied to

him. He later filed a “Supplement to Pre-Trial Writ” wherein he made facial and the

same as-applied constitutional challenges to Article 62.055. In both instances, the trial

judge signed hand-written orders prepared by Darnell, one of which the trial court

modified to reflect that it was specifically denying the “Supplement to Pre-Trial Writ,”

and the other the trial court signed unaltered reflecting that it was denying Darnell’s

initial writ.

        Rather than there being an order in the record regarding his third writ titled

“Application for Writ of Habeas Corpus Bond Reduction,” wherein Darnell sought

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bail reduction, the record contains only a “Certificate of Proceedings” which is signed

by the magistrate and states in the proceeding field, “WITNESS SWORN [Darnell]:

AFTER CONSID ARGMNTS, RSK ASSMNT, HSTRY&CHRG; MOTION TO

REDUCE BAIL IS DENIED.” Darnell now appeals the denials of all three of his

writs.

                                    III. DISCUSSION

         In general, we review a trial court’s ruling on an application for writ of habeas

corpus under an abuse-of-discretion standard. Phuong Anh Thi Le v. State, 300 S.W.3d

324, 327 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Under this standard, we

view any evidence in the light most favorable to the trial court’s ruling, and we defer

to implied factual findings supported by the record. Id. This same standard applies

to our review of a trial court’s ruling on the setting of bail amount. See Ex parte Rubac,

611 S.W.2d 848, 850 (Tex. Crim. App. 1981); Milner v. State, 263 S.W.3d 146, 147 (Tex.

App.—Houston [1st Dist.] 2006, no pet.).

A.       As Applied Challenge to Article 62.055

         In his first writ, Darnell argued that Article 62.055 was unconstitutional as

applied to him. We conclude that the trial court did not abuse its discretion by

denying the writ.

         The Texas Court of Criminal Appeals has held that pretrial habeas, followed by

an interlocutory appeal, is an extraordinary remedy. Ex parte Perry, 483 S.W.3d 884,

895 (Tex. Crim. App. 2016). A claim that a statute is unconstitutional “as applied” is a

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claim that the statute, although generally constitutional, operates unconstitutionally as

to the claimant because of his particular facts and circumstances. State ex rel. Lykos v.

Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011); Gillenwaters v. State, 205 S.W.3d 534,

536 n.3 (Tex. Crim. App. 2006). Consequently, with exceptions that are not present

in this case, an as-applied constitutional challenge typically 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. See Lykos, 330 S.W.3d at 910 (“An

‘as applied’ challenge is brought during or after a trial on the merits, for 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 Walsh, 530 S.W.3d 774, 781 (Tex. App.—Fort

Worth 2017, no pet.) (holding that, under Perry, because applicant was not a

government official, he could not challenge the allegedly unconstitutional acts of

government officials via pretrial writ of habeas corpus); see also Ex parte Smith, 178

S.W.3d 797, 801 (Tex. Crim. App. 2005) (“[T]he accused may challenge the manner of

his pretrial restraint, i.e., the denial of bail or conditions attached to bail.”); Ex parte

Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001) (“[A]n applicant may use pretrial

writs to assert his or her constitutional protections with respect to double jeopardy.”).

       In his first writ, Darnell claimed that Article 62.055 is unconstitutional as

applied to him because the police department’s policy of rescheduling a sex-offender

registrant’s appointment when they have showed up late “systematically denie[d him]

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due process.” But Darnell has not claimed that this right is equivalent to any known

exception to the general rule that as-applied constitutional challenges typically may not

be resolved pretrial. Indeed, despite the little information that Darnell has provided,

he cannot claim that a record has been developed demonstrating specific facts of his

case that show how Article 62.055 is being applied to him. See Lykos, 330 S.W.3d at

910. We hold that the trial court did not abuse its discretion by denying Darnell’s pre-

trial writ for habeas corpus.

B.       Facial Challenge to Article 62.055

         In his “Supplement to Pre-Trial Writ,” in addition to echoing the as-applied

challenge addressed above, Darnell argued that Article 62.055 is facially

unconstitutional. A claim that a statute is unconstitutional on its face may be raised

by pretrial writ of habeas corpus because the invalidity of the statute would render the

charging instrument void. Ex parte Flores, 483 S.W.3d 632, 638 (Tex. App.—Houston

[14th Dist.] 2015, pet. ref’d). To invalidate a statute as facially unconstitutional, the

defendant must show that the statute is unconstitutional in all of its applications. Ex

parte Ellis, 309 S.W.3d 71, 80 (Tex. Crim. App. 2010). As mentioned above, pretrial

habeas may not be used to advance an “as applied” challenge to a statute. Id. at 79. If

a claim is designated as a facial challenge but is actually a challenge to a particular

application of the statute, courts should refuse to consider the merits of the claim. Id.

at 80.



                                           6
      Here, even though Darnell designated his supplemental claim as a facial

challenge to Article 62.055, Darnell in fact made an as-applied challenge to the

constitutionality of Article 62.055. Indeed, in his supplemental writ, after expressing

that Article 62.055 is “facially unconstitutional,” he proceeded to explain how he was

prevented from complying with Article 62.055 because of the police department’s

policy of rescheduling sex-offender registrants who do not timely show for their

appointments and how the policy was enforced in his case to deny him the right to

register his moving address. Thus, Darnell in fact is making an as-applied challenge to

the statute. Id. As explained above, Darnell cannot bring his as-applied challenge to

Article 62.055. Moreover, Darnell does not attempt to show that Article 62.055 is

unconstitutional in all of its applications. See id. Therefore, the trial court did not

abuse its discretion by denying Darnell’s supplemental writ.

C.    Bond Reduction

      In his “Application for Writ of Habeas Corpus Bond Reduction,” Darnell

sought to have the trial court reduce his bail amount from $25,000 to $7,000. In his

application, Darnell stated that he “has no financial resources,” but he did not

otherwise explain why he has no financial resources or how he would have the

resources to afford being able to post bail through a bondsman in the amount of

$7,000.

      As noted earlier, the record does not contain a signed order denying Darnell’s

“Application for Writ of Habeas Corpus Bond Reduction.” The only document in

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the record indicating that the trial court heard Darnell’s writ for bond reduction is the

certificate of proceedings signed by the magistrate which states that Darnell’s

“MOTION TO REDUCE BAIL IS DENIED.”

      This court has previously determined that we did not have jurisdiction under

similar circumstances. See Langlais v. State, No. 02-17-00248-CR, 2017 WL 4296447, at

*1 (Tex. App.—Fort Worth Sept. 28, 2017, no pet.) (mem. op., not designated for

publication). In Langlais, even though the defendant had filed a pretrial “Motion to

Reduce Bond and Application for Writ of Habeas Corpus” and the record contained a

“Certificate of Proceedings” denying the filing, this court expressed concerns that the

record did not demonstrate that the trial court had signed a formal, appealable order.

Id. This court also expressed concerns regarding the title of Langlais’s filing being

labeled as a motion. Id. Ultimately, this court dismissed the appeal “for want of

jurisdiction for want of a signed, written order.” Id.

      In this case, this court detects the same two potential problems. First, this

court can find no authority to support the proposition that a signed “Certificate of

Proceedings” can be treated as a formal order for purposes of appeal. See State v.

Wachtendorf, 475 S.W.3d 895, 904 (Tex. Crim. App. 2015). Second, the certificate

states that the court was denying Darnell’s “MOTION TO REDUCE BAIL” and

does not state that it was denying Darnell’s “Application for Writ of Habeas Corpus

Bond Reduction.” See Bridle v. State, 16 S.W.3d 906, 907–08 (Tex. App.—Fort Worth

2000, no pet.); see also Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991)

                                            8
(“The courts of appeals do not have jurisdiction to review interlocutory orders unless

that jurisdiction has been expressly granted by law.”). Thus, in accordance with this

court’s decision in Langlais, we conclude that we do not have jurisdiction to address

Darnell’s appeal regarding his “Application for Writ of Habeas Corpus Bond

Reduction.”

      But even assuming that the certificate of proceedings signed by the magistrate

is a formal, appealable order and that the trial court’s recitation that it was denying a

“motion” was a misstatement and the trial court did in fact deny Darnell’s writ

seeking bail reduction, we cannot conclude that the magistrate abused its discretion by

denying his writ.

      A defendant who seeks a reduction in the amount of bail has the burden of

proof to demonstrate that it is excessive. Maldonado v. State, 999 S.W.2d 91, 93 (Tex.

App.—Houston [14th Dist.] 1999, pet. ref’d). A writ applicant has the burden to

ensure that a sufficient record is presented to show error requiring reversal. See Ex

parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993). An appellate court may not

reduce the trial court’s bail amount unless the applicant has satisfied this burden. Ex

parte Welch, 729 S.W.2d 306, 310 (Tex. App.—Dallas 1987, no pet.).

      Here, the record indicates that there is not a reporter’s record of any hearing

wherein the magistrate considered Darnell’s “Application for Writ of Habeas Corpus

Bond Reduction.” The only indication regarding what evidence the magistrate might

have considered is the line from the certificate of proceedings stating, “WITNESS

                                           9
SWORN        [Darnell]:   AFTER       CONSID        ARGMNTS,         RSK        ASSMNT,

HSTRY&CHRG; MOTION TO REDUCE BAIL IS DENIED.” In short, Darnell

has failed to ensure that a sufficient record is presented showing this court an error

requiring reversal. Kimes, 872 S.W.2d at 703. We conclude that Darnell has failed to

carry his burden to demonstrate that the magistrate abused its discretion by denying

his “Application for Writ of Habeas Corpus Bond Reduction.”

D.    Motion to Stay

      Darnell has also filed a “Motion to Stay” the trial court proceedings below

while this court addressed these appeals. We deny that motion.

                                  IV. CONCLUSION

      Having concluded that the trial court did not abuse its discretion by denying

Darnell’s pretrial writ of habeas corpus and his supplemental pretrial writ, and having

concluded that either we do not have jurisdiction to review the alleged denial of his

“Application for Writ of Habeas Corpus Bond Reduction” or, in the alternative, that

Darnell has failed to carry his burden to prove that the magistrate abused its

discretion by denying the application, we affirm the trial court’s judgments.

                                                      /s/ Dana Womack
                                                      Dana Womack
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: March 19, 2020


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