Dismissed and Majority and Dissenting Opinion filed April 3, 2012.




                                          In The

                          Fourteenth Court of Appeals
                                     ____________

                                  NO. 14-11-00618-CR
                                    ____________


                EX PARTE DAVID LORENZA JOYNER, Appellant.


                       On Appeal from the 174th District Court
                                Harris County, Texas
                           Trial Court Cause No. 1310608


                      DISSENTING OPINION

       I respectfully dissent because (1) this court has made an improper assumption of
fact; and (2) Joyner’s pretrial writ of habeas corpus alleges a constitutional impediment to
prosecution that does not depend on his incarceration, so his imprisonment for another
crime does not render his current appeal moot.

I.     Improper Assumption of Fact

       The State did not file a Motion to Dismiss, and our record in this case does not
include information about Joyner’s current imprisonment on another charge. Only by
examining court files for another case, Cause No. 14-11-00807-CR, did we discover that
Joyner is currently imprisoned for another crime. This court has assumed that the David
Lorenza Joyner in this appeal is the same person as the David Lorenza Joyner named in
Cause No. 14-11-00807-CR. While I do not dispute that assumption, I would note that
merely having the same name is insufficient proof of a prior criminal conviction. Beck v.
State, 719 S.W. 2d 205, 210 (Tex. Crim. App. 1986); Griffin v. State, 181 S.W. 3d 818,
820 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). The majority reviewed the
clerk’s record from Cause No. 14-11-00807-CR with the clerk’s record in this case to
confirm Joyner’s identity. In my opinion, such a review is improper. See Smith v. State,
540 S.W. 2d 693, 697 n.4 (Tex. Crim. App. 1976) (op. on reh’g) (trial transcript from
another trial is not properly part of the record on appeal and cannot be considered by an
appellate court) (citing Booth v. State, 499 S.W. 2d 129, 135–36 (Tex. Crim. App.
1973)); Pittman v. State, 321 S.W. 3d 565, 571 (Tex. App.—Houston [14th Dist.] 2005,
no pet.) (same). While an appellate court can take judicial notice of its own records—
such as the date a mandate issued in a case—a trial court clerk’s record is not our own
record and is just like a reporter's record from another case. Compare Goodson v. State,
221 S.W.3d 303, 304, n.2 (Tex. App.—Fort Worth 2007, no pet.) (date mandate issued)
with Pittman, 321 S.W. 3d at 571 (trial transcript from a related case on appeal in the
Fourteenth Court of Appeals).

II.   Can A Pretrial Writ of Habeas Corpus, Alleging a Facial Constitutional
Challenge, Be Pursued While Imprisoned On Another Offense?
       A defendant may use a pretrial writ of habeas corpus in very limited
circumstances. First, the defendant may challenge the State’s power to restrain him at all.
Second a defendant may challenge the manner of his pretrial restraint, i.e., the denial of
bail or conditions attached to bail. Third, the defendant may raise certain issues which, if
meritorious, would bar prosecution. Ex parte Smith, 178 S.W. 3d 797, 801 (Tex. Crim.
App. 2005) (per curiam).

       A claim that a statute is unconstitutional on its face may be raised by pretrial writ
of habeas corpus because if the statute is invalid, then the charging instrument is void. Ex


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parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001). Joyner’s application for
habeas corpus alleges that the Sex Offender Registration Statute is void for vagueness.1
While it is difficult to tell from Joyner’s application whether he is making a facial
challenge or an “as applied” challenge, because appellant is pro se we should construe his
allegations liberally and conclude that he is making a facial challenge. See Haines v.
Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596, 30 L. Ed. 2d 252 (1972) (per curiam); Ex
parte Benavides, 801 S.W. 2d 535, 537 (Tex. App.—Houston [1st Dist.] 1990, writ
dism’d w.o.j.).

        The purpose of allowing such a pretrial writ is to prevent the prosecution of the
offense entirely. The remedy would be dismissal of the indictment, not release from
prison. See Florio v. State, 814 S.W. 2d 778, 784 (Tex. App.—Houston [14th Dist.]
1991), aff’d, 845 S.W.2d 849, 853 (Tex. Crim. App. 1992).

        Even though appellant is in prison on another offense, he still remains subject to
prosecution on this charged offense. The cases cited by the majority stand for the
proposition that if a defendant is ultimately convicted of a crime while his pretrial
application is pending as to that crime, then his habeas petition is moot. The facts of this
case are different; appellant was not convicted of the crime of failure to register but,
apparently, was convicted of theft. I would agree with the majority that imprisonment on
another offense would moot any pretrial writ of habeas on the first two types of pretrial
writ—for imprisonment or for denial of bail. See Ex parte Smith, 178 S.W. 3d at 801.
But this pretrial writ falls into the third category—that of barring prosecution—and, in
this case, our holding could bar prosecution on his current offense and therefore would
not be moot.

        In what appears to be a case of first impression, the majority holds that
imprisonment on another offense will prevent us from deciding this issue. Suppose that
the offense in our case was barred by limitations—a recognized use of the pretrial writ to


1
       This reporting statute has previously been held by our court not to be void for vagueness as applied.
Coronado v. State, 148 S.W. 3d 607, 610 (Tex. App.—Houston [14th Dist.] 2004, no pet.)

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bar prosecution. See Ex parte Tamez, 38 S.W. 3d 159, 160–61 (Tex. Crim. App. 2001).
Would the majority penalize the appellant, forcing him to go to trial, when a pretrial writ
of habeas corpus would have prevented the prosecution?

       Similarly, a pretrial writ of habeas corpus is the appropriate remedy to review a
claim of double jeopardy. Apolinar v. State, 820 S.W. 2d 792, 794 (Tex. Crim. App.
1991). The Double Jeopardy Clause protects against three distinct abuses: (1) a second
prosecution for the same offense after acquittal; (2) a second prosecution for the same
offense after conviction; and (3) multiple punishments for the same offense. United
States v. Halper, 490 U.S. 435, 440, 109 S. Ct. 1892, 1897, 104 L. Ed. 2d 487 (1989),
abrogated on other grounds by Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 139
L. Ed. 2d 450 (1997); Ex parte Watkins, 73 S.W. 3d 264, 268 (Tex. Crim. App. 2002).
Under the majority’s holding, a person in jail could not pursue a pretrial writ of habeas
corpus for the second or third type of abuse. I do not believe that this is the law, as the
following case history shows.

       In Preston v. State, the court upheld a conviction for aggravated robbery. 1990
WL 119536, at *1 (Tex. App.—Houston [1st Dist.] Aug. 16, 1990, pet. ref’d) (not
designated for publication). The jury had assessed punishment at 29 years. Id. From the
appellate cause number, we know that the appeal was filed in 1989, leading to the
conclusion that the defendant was convicted in 1989—or possibly December 1988—
given the appellate time tables. See TEX. R. APP. P. 26.2(a)(1) (appeal in criminal case is
perfected when defendant files notice of appeal within 30 days after the sentence is
imposed); S. Political Consulting, Inc. v. State, 788 S.W.2d 452, 453 (Tex. App.—
Houston [1st Dist.] 1990, no pet.) (citing identical provision under former appellate rule
41(b)). In that first trial, the defendant was charged with three counts of aggravated
robbery. Ex parte Preston, 833 S.W. 2d 515, 516 (Tex. Crim. App. 1992). The State,
without dismissing the other counts, presented only one of three counts of aggravated




                                             4
robbery to the jury. Id. at 516–17. Some time before or during the year 1990,2 the State
re-indicted the defendant on the remaining two counts and the defendant filed a pretrial
writ of habeas corpus, alleging double jeopardy. Id. at 516. The Court of Criminal
Appeals held that the prosecution was barred by double jeopardy and remanded the case
to the trial court “with orders to dismiss the prosecution.” Id. at 518. Given a jury
sentence of 29 years in either 1988 or 1989, the defendant was lawfully in prison, on
another offense, when he filed his double jeopardy claim.

        By holding that Joyner’s case is moot, the majority prevents Joyner from obtaining
a judicial determination that his case should not be prosecuted at all. Thus, Joyner must
go to trial and then raise his issue again on appeal. This would be a waste of judicial
resources. Accordingly, I dissent.




                                                  /s/       Tracy Christopher
                                                            Justice



Panel consists of Justices Frost, Brown, and Christopher. (Brown, J., Majority).
Publish—TEX. R. APP. P. 47.2(b)




2
          See Ex parte Preston, 801 S.W. 2d 604 (Tex. App.—Houston [1st Dist.] 1990), rev’d, 833 S.W. 2d 515
(Tex. Crim. App. 1992). The appellate cause number in that case—No. 01-90-00607—indicates that the appeal was
filed in 1990, leading to the conclusion that the re-indictment was between 1988 and 1990).

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