                                                                                                                        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.



                                             2
     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”).




                                   3
           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.




                                         4
     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).




                                  5
      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.




                                          6
      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.).




                                          7
           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.




                                         8
          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




                                    10
     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.




                                        11
           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.



                                          12
 Thank you,



 ________________________
 Mark Bennett
 SBN 00792970
 Bennett & Bennett
 917 Franklin Street, Fourth Floor
 Houston, Texas 77002
 713.224.1747




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