                                       NO. 12-19-00267-CR

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

                                                          §       APPEAL FROM THE 114TH
 EX PARTE:
                                                          §       JUDICIAL DISTRICT COURT
 DAMEON JAMARC MOSLEY
                                                          §       SMITH COUNTY, TEXAS

                                       MEMORANDUM OPINION
       Dameon Jamarc Mosley appeals the trial court’s denial of his pre-trial application for writ
of habeas corpus. In one issue, he challenges the constitutionality of Texas Code of Criminal
Procedure Article 37.071. Because a claim challenging the constitutionality of Article 37.071 is
not cognizable on pre-trial writ of habeas corpus, we dismiss the appeal for want of jurisdiction.


                                                BACKGROUND
       Appellant was indicted for capital murder. The State provided Appellant with written
notice that it would seek the death penalty. On July 19, 2019, Appellant filed a pre-trial application
for writ of habeas corpus in the trial court claiming that Article 37.071 of the code of criminal
procedure is unconstitutional. 1
       In his writ application, Appellant claimed that there is no statutory procedure to “deal with
intellectual disability in death penalty cases, therefore the death penalty statute is unconstitutional
‘as applied’ to those with intellectual disability.” Appellant argued that he is “in all probability
intellectually disabled” and attached the affidavit of Kristi Compton, a clinical and forensic
psychologist.
       On July 25, the trial court held a hearing on the application and orally informed Appellant
that it was denying his application without reaching the merits because his “as applied” challenge


       1
           See TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2 (a)(1)-(g) (West Supp. 2019).
to Article 37.071 is not cognizable on pre-trial habeas. 2 On August 5, the trial court signed a
written order generally denying the application. Appellant filed a notice of appeal.
        On August 22, Appellant filed a writ of mandamus and stay of capital proceedings, seeking
an order directing the trial court to stay his trial pending resolution of this appeal. We denied
Appellant’s petition because he failed to file a mandamus record and failed to file a petition that
complied with the appellate rules. 3 Appellant’s case went to trial and he was found “guilty” of
capital murder on November 13. This appeal was submitted on November 18. On November 20,
Appellant was sentenced to death. Appellant’s conviction was automatically appealed to the Texas
Court of Criminal Appeals. 4


                            APPLICATION FOR WRIT OF HABEAS CORPUS
        In his only issue, Appellant contends that his claim is cognizable on pre-trial habeas
because Ex Parte Perry, 483 S.W.3d 884 (Tex. Crim. App. 2016) stands for the proposition that
“the unconstitutionality of a law ‘as applied’ can be addressed pre-trial.” He argues that he is “in
all probability intellectually disabled” and “the United States Supreme Court has ruled that
executing people with intellectual disability violates the Eight[h] Amendment’s ban on cruel and
unusual punishment, but that States can define who has intellectual disability [sic].” Appellant
argues that, because the Texas Legislature has not adopted a statutory scheme for the presentation
and determination of the issue of intellectual disability in capital cases, Article 37.071 of the code
of criminal procedure is unconstitutional “as applied” to “those who exhibit signs of intellectual
disability.” See TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2 (a)(1)-(g) (West Supp. 2019). The
State argues that Appellant’s claim is not cognizable on pre-trial habeas. Alternatively, the State
argues that Appellant’s argument is without merit.
Analysis
        A pre-trial writ of habeas corpus “followed by an interlocutory appeal, is an ‘extraordinary
remedy’ and ‘appellate courts have been careful to ensure that a pre-trial writ is not misused to


        2
            See id.
        3
          See In re Mosley, 12-19-00292-CR, 2019 WL 4296499, at *2 (Tex. App.—Tyler Sept. 11, 2019, no pet.)
(mem. op., not designated for publication).
        4
          See TEX. CODE CRIM. PROC. ANN. art. 37.071(h) (West Supp. 2019) (“The judgment of conviction and
sentence of death shall be subject to automatic review by the Court of Criminal Appeals.”).


                                                     2
secure pre-trial appellate review of matters that in actual fact should not be put before appellate
courts at the pre-trial 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)). The determination of “whether
a claim is even cognizable on pre-trial habeas is a threshold issue that should be addressed before
the merits of the claim may be resolved.” Ellis, 309 S.W.3d at 79. “Pre-trial 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.” Ex parte
Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001). The Court of Criminal Appeals has held that
a pre-trial writ application is not appropriate when the resolution of the question presented, even
if resolved in favor of the applicant, would not result in immediate release. Id. at 619.
        Here, we must determine if Appellant’s claim is cognizable on pre-trial habeas before we
reach the merits of his claim. See Ellis, 309 S.W.3d at 79. To do so, we consider several factors,
including whether the rights underlying the claim would be effectively undermined if not
vindicated before trial and whether the alleged defect would cast doubt on the trial court’s power
to proceed. Perry, 483 S.W.3d at 895-96. A defendant can utilize a pre-trial writ of habeas corpus
only in very limited circumstances. Ex Parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005).
An accused may challenge: (1) the State’s power to restrain him at all, i.e., the existence of
probable cause; (2) the manner of his restraint; i.e., the denial of bail or the conditions attached to
his bail; and (3) certain issues that would bar prosecution or conviction. Id. The designation of a
particular complaint as one that is cognizable is not enough; the complaint must be in fact
cognizable, and we must refuse to consider the merits of a claim that is not cognizable. See Ellis,
309 S.W.3d at 79-80; see also Ex Parte Paxton, 493 S.W.3d 292, 297 (Tex. App.—Dallas 2016,
pet. ref’d).
        A claim that a statute is unconstitutional “as applied” is a 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, 537 n.3 (Tex. Crim. App. 2006). Consequently, an
“as applied” challenge typically may not be resolved pre-trial because it depends on the
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



                                                  3
facts and circumstances of the case needed to determine whether the statute or law has been applied
in an unconstitutional manner.”).
       Appellant cites Perry for the proposition that an “as applied” constitutional challenge to a
statute is cognizable on pre-trial habeas. Perry, 483 S.W.3d at 884. 5 In Perry, former Texas
Governor Rick Perry argued that “as applied” to certain circumstances, the abuse of official
capacity statute violated the separation of powers provision set forth in the Texas Constitution. Id.
at 888; see also TEX. CONST. art. II, § 1. The charges against Governor Perry arose from his threat
to exercise a veto and his ultimate exercise of that veto. Perry, 483 S.W.3d at 888. The court
noted that it has held “as applied” challenges not cognizable on pre-trial habeas, but clarified that
certain limited exceptions exist because the particular constitutional right at issue in the “as
applied” challenge is the type that would be effectively undermined if not vindicated prior to trial.
Id. at 895-96. The court considered that the issuance of indictments against public officials often
results in widespread pre-trial publicity that could destroy an official’s career, and that the mere
threat of an indictment could intimidate a public official and jeopardize his independence. Id. at
897. Further, the court noted that if a statute violates separation of powers by unconstitutionally
infringing on a public official’s own power, then the mere prosecution of the public official is an
undue infringement of the public official’s power. Id. at 898. Ultimately, the Court held that “pre-
trial habeas is an available vehicle for a government official to advance an ‘as applied’ separation
of powers claim that alleges the infringement of his own power as a government official.” Id.
(emphasis added); see also Ex Parte Walsh, 530 S.W.3d 774, 781 (Tex. App.—Fort Worth 2017,
no pet.). Thus, the reasoning underpinning the court’s holding was the likelihood that the
disruptive effects of a criminal prosecution could prevent public officials from effectively
performing their duties. See Perry, 483 S.W.3d at 898.
       The court’s holding in Perry is inapposite to Appellant’s claim. See e.g., Paxton, 493
S.W.3d at 303 (declining to hold that pre-trial habeas relief was available under Perry because
defendant’s charges did “not arise out of his duties as an elected official but rather from his conduct
as a private citizen”); Walsh, 530 S.W.3d at 781 (declining to extend holding in Perry to
appellant’s “as applied” challenge because, inter alia, appellant was not a government official); Ex
parte Ares, No. 13-17-00638-CR, 2019 WL 4493698, at *3 (Tex. App.—Corpus Christi Sept. 19,
2019, no pet.) (mem. op., not designated for publication) (holding Perry did not support

       5
           Appellant did not cite to a particular page of the Perry opinion.


                                                           4
defendant’s claim for pre-trial habeas release because as a private citizen, his charges did not arise
out of any duty as public official). The Perry opinion reaffirms that “as applied” challenges are
not cognizable on pre-trial habeas except for certain carefully limited exceptions. See Perry, 483
S.W.3d at 898. The court concluded that cases involving criminal charges arising from an elected
official’s performance of his duties and implicating separation of powers qualify as such an
exception. See id. Appellant is not an elected official. His charges do not arise out of any duty
as an elected official. Appellant has not directed us to any authority that his “as applied”
constitutional challenge is the type that would be effectively undermined if not vindicated prior to
trial. See id. Thus, we conclude that Perry does not support his argument that he may raise an “as
applied” challenge to Article 37.071 on pre-trial habeas. Id.; see also TEX. CODE CRIM. PROC.
ANN. art. 37.071 § 2 (a)(1)-(g).
       Appellant cites no other authority beyond Perry for his argument that his “as applied”
challenge to Article 37.071 is cognizable on pre-trial habeas. See TEX. CODE CRIM. PROC. ANN.
art. 37.071 § 2. (a)(1)-(g); see also TEX. R. APP. P. 38.1(i). Furthermore, Appellant’s complaint
does not relate to the existence of probable cause, bail, or an issue that bars prosecution or
conviction. See Smith, 178 S.W.3d at 801. Moreover, resolution of Appellant’s complaint in his
favor, i.e. that Article 37.071 § 2 (a)(1)-(g) is unconstitutional “as applied” to the intellectually
disabled, would not result in his immediate release. See Weise, 55 S.W.3d at 619; see also TEX.
CODE CRIM. PROC. ANN. art. 37.071 § 2. (a)(1)-(g). Appellant has now been convicted of capital
murder and sentenced to death. His conviction has been automatically appealed to the Texas Court
of Criminal Appeals.      See TEX. CODE CRIM. PROC. ANN. art. 37.071(h).            Issues regarding
intellectual disability can be raised by post judgment appeal, and post judgment habeas corpus.
See generally id. art. 11.071 (West Supp. 2019); see also Ex parte Lizcano, No. 05-07-00720-CR,
2007 WL 2421515, at *2 (Tex. App.—Dallas Aug. 28, 2007, pet. ref’d) (mem. op., not designated
for publication). Therefore, we hold that Appellant’s claim that Article 37.071 is unconstitutional
“as applied” to him is not cognizable on pre-trial habeas. See TEX. CODE CRIM. PROC. ANN. art.
37.071 § 2 (a)(1)-(g); see also Doster, 303 S.W.3d at 727 (dismissing appeal of pre-trial writ when
court determined relief sought was not cognizable on pre-trial habeas); Ex parte Ahmad, 498
S.W.3d 254, 256 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (“[b]ecause appellant’s
claim…is not cognizable on pre-trial habeas, we lack jurisdiction to consider appellant’s appeal).
We overrule Appellant’s sole issue.



                                                  5
                                                  DISPOSITION
         Having concluded that Appellant’s claim is not cognizable on pre-trial habeas, we dismiss
the appeal for want of jurisdiction.

                                                                GREG NEELEY
                                                                   Justice

Opinion delivered March 25, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                          6
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           MARCH 25, 2020


                                         NO. 12-19-00267-CR


                          EX PARTE: DAMEON JAMARC MOSLEY


                                Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-0510-17)

                       THIS CAUSE came to be heard on the appellate record; and the same being
considered, it is the opinion of this court that this court is without jurisdiction of the appeal, and
that the appeal should be dismissed.
                       It is therefore ORDERED, ADJUDGED and DECREED by this court that
this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision
be certified to the court below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
