Reversed and Remanded and Opinion Filed June 18, 2013




                                        S   In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas

                                     No. 05-13-00247-CR

                             THE STATE OF TEXAS, Appellant
                                         V.
                            ROSS MARTIN BURNETT, Appellee

               On Appeal from the County Criminal Court of Appeals No. 1
                                 Dallas County, Texas
                          Trial Court Cause No. MC12-B7509

                              MEMORANDUM OPINION
                         Before Justices O'Neill, Francis, and Fillmore
                                  Opinion by Justice Francis
       The State of Texas appeals the trial court’s order granting appellee Ross Martin Burnett

post-conviction habeas corpus relief under article 11.072 of the Texas Code of Criminal

Procedure and ordering the Carrollton Municipal Court to vacate the judgment of conviction for

consumption of alcohol by a minor. In five issues, the State contends the trial court abused its

discretion by granting habeas corpus relief to appellee because: (1) the Carrollton Municipal

Court retained discretion to determine whether appellee had satisfied the required conditions of

his deferred disposition and the County Criminal Court of Appeals No. 1 should have deferred to

the Municipal Court’s determination of that matter; (2) habeas corpus relief is an extraordinary

remedy that could not properly be used by appellee to substitute for or circumvent the procedures

of appeal or other adequate legal remedies; (3) appellee did not present a record in the habeas

corpus proceeding to show his entitlement to relief; and (4) appellee did not show he was subject
to collateral consequences related to his conviction but sought relief from the judgment alone.

We reverse the trial court’s order and remand for further proceedings.

       Appellee was charged in Carrollton Municipal Court with consumption of alcohol by a

minor. He entered an agreed no contest plea to the charge and was granted a deferred disposition

on June 21, 2011. As conditions of the deferral, appellee was ordered to complete a Youthful

Drinking and Driving Prevention program to satisfy the statutory requirement that he complete a

minimum of eight alcohol education-related community service hours and a statutorily-required

Alcohol Awareness course. Upon appellee’s request, the Municipal Court allowed appellee to

substitute proof that he completed eight hours of alcohol-related community service in lieu of the

Youthful Drinking and Driving Prevention program. The alcohol-related community service and

Alcohol Awareness course were to be completed within ninety days of the deferral order.

Appellee submitted documents showing his participation in community service programs, but the

Municipal Court determined those programs did not satisfy the requirement that they be alcohol-

related. After denying appellee’s motion for continuance, on May 1, 2012, the trial court entered

a judgment of conviction. No appeal was taken from the May 1, 2012 judgment, but on October

1, 2012, appellee filed a petition for writ of habeas corpus in the Dallas County Criminal Court

of Appeals No. 1 seeking to have the May 1, 2012 judgment set aside. The County Criminal

Court of Appeals No. 1 granted habeas corpus relief and ordered the Carrollton Municipal Court

of Record to accept appellee’s community service hours and vacate the conviction for

consumption of alcohol by a minor. The State appealed.

       In reviewing the trial court’s decision to grant or deny habeas corpus relief, we view the

facts in the light most favorable to the trial court’s ruling. Ex parte Peterson, 117 S.W.3d 804,

819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219

S.W.3d 335 (Tex. Crim. App. 2007). We uphold the ruling absent an abuse of discretion. Id.

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We afford almost total deference to the trial court’s determination of the historical facts that are

supported by the record, especially when the fact findings are based on an evaluation of

credibility and demeanor. Id. We afford the same amount of deference to the trial court’s

application of the law to the facts if the resolution of the ultimate questions turns on an

evaluation of credibility and demeanor. Id. If the resolution of the ultimate questions turns on

an application of legal standards, we review the determination de novo. Id.

       In its third issue, the State asserts that appellee attempted to use the habeas corpus

procedure to circumvent the procedures of appeal or other adequate legal remedies. Appellee

responds that he was not able to appeal because he did not receive timely notice of the judgment

of conviction.

       The purpose to be served by a post-conviction writ of habeas corpus is limited, and “lies

only to review jurisdictional defects or denials of fundamental or constitutional rights.” Ex parte

Tovar, 901 S.W.2d 484, 485 (Tex. Crim. App. 1995) (quoting Ex parte Watson, 601 S.W.2d 350,

352 (Tex. Crim. App. 1980)). “The purpose of a writ of habeas corpus is to obtain a speedy and

effective adjudication of a person’s right to liberation from illegal restraint.” Ex parte Kerr, 64

S.W.3d 414, 419 (Tex. Crim. App. 2002). “Habeas corpus is an extraordinary remedy and is

available only when there is no other adequate remedy at law.” Ex parte Cruzata, 220 S.W.3d

518, 520 (Tex. Crim. App. 2007). It may not be used to assert claims that could have been

asserted on direct appeal. Id.

       The majority of appellee’s claims for entitlement to habeas corpus relief attack the

Municipal Court proceedings and the denial of the motion for continuance which ultimately

resulted in the judgment of conviction. These are issues that should have been raised by appeal.

Although appellee asserts he was prevented from appealing because he did not receive timely




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notice of the judgment of conviction, we note that appellee’s habeas corpus petition requested, as

an alternate prayer for relief, that he be granted an out-of-time appeal.

        The granting of an out-of-time appeal would have returned appellee to a position where

he could challenge the Municipal Court proceedings and the judgment of conviction. See Ex

parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). Therefore, an out-of-time appeal, if

appropriate, would be sufficient to protect appellee’s ability to challenge the judgment of

conviction. See id. By ordering the Municipal Court to vacate its judgment of conviction, the

County Criminal Court of Appeals No. 1 granted appellee more relief than was necessary to

preserve his rights. Therefore, we conclude the County Criminal Court of Appeals No. 1 abused

its discretion by ordering the Municipal Court to vacate the judgment of conviction. We sustain

the State’s third issue.

        We reverse the County Criminal Court of Appeals No. 1’s order granting habeas corpus

relief. We remand the case to the County Criminal Court of Appeals No. 1 for a determination

of whether appellee is entitled to an out-of-time appeal from the May 1, 2012 judgment of

conviction. In making this determination, the County Criminal Court of Appeals No. 1 may take

additional evidence on the issue, including evidence by affidavit.

        If the County Criminal Court of Appeals No. 1 determines that appellee is entitled to an

out-of-time appeal, the order granting the relief shall include language that specifically notifies

appellee of the deadline for filing the documents required to perfect the appeal. See, e.g., TEX.

GOV’T CODE ANN. § 30.00014 (West Supp. 2012); Ex parte Thornton, No. AP-76967, 2013 WL

458180, at *1 (Tex. Crim. App. Feb. 16, 2013) (per curiam) (not designated for publication)

(example of setting deadline for perfecting appeal following grant of out-of-time appeal).




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Because of our disposition of the State’s third issue, we do not address the State’s remaining

issues.



                                                   /Molly Francis/
                                                   MOLLY FRANCIS
                                                   JUSTICE

Do Not Publish
TEX. R. APP. P. 47
130247F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

THE STATE OF TEXAS, Appellant                      On Appeal from the County Criminal Court
                                                   of Appeals No. 1, Dallas County, Texas
No. 05-13-00247-CR        V.                       Trial Court Cause No. MC12-B7509.
                                                   Opinion delivered by Justice Francis,
ROSS MARTIN BURNETT, Appellee                      Justices O’Neill and Fillmore participating.

       Based on the Court’s opinion of this date, we REVERSE the trial court’s order granting
habeas corpus relief and REMAND the cause for further proceedings consistent with the
opinion.


Judgment entered June 18, 2013




                                                   /Molly Francis/
                                                   MOLLY FRANCIS
                                                   JUSTICE




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