            COURT OF APPEALS

    THIRTEENTH DISTRICT OF TEXAS

      CORPUS CHRISTI - EDINBURG


       NUMBERS          13-14-00238-CV
                        13-14-00239-CV
                        13-14-00240-CR

        EX PARTE JERRY HARTFIELD


    On appeal from the 130th District Court
        of Matagorda County, Texas.


        NUMBER        13-14-00344-CR

           IN RE JERRY HARTFIELD


       On Petition for Writ of Prohibition.


                   OPINION

Before Justices Rodriguez, Garza, and Benavides
         Opinion by Justice Rodriguez
        In June 1977, a jury convicted appellant Jerry Hartfield of capital murder and

sentenced him to death. On September 17, 1980, the Texas Court of Criminal Appeals

reversed his conviction and ordered a new trial.                 Hartfield v. State (Hartfield I), 645

S.W.2d 436, 441 (Tex. Crim. App. 1980) (en banc) (reversing and remanding for a new

trial on the basis that the State violated Hartfield’s rights under the Sixth and Fourteenth

Amendments by striking a juror for cause because of her reservations about the death

penalty). The court of criminal appeals issued its mandate on March 4, 1983. On March

15, 1983, the Governor purportedly commuted Hartfield’s sentence to life in prison, and

the Texas Department of Criminal Justice maintained custody of Hartfield.

        In 2006 and 2007, Hartfield asserted his speedy-trial claims through an article

11.07 post-conviction habeas petition. 1            See TEX. CODE CRIM. PROC. ANN. art. 11.07

(West, Westlaw through 2013 3d C.S.) (setting out the procedure for seeking post-

conviction habeas relief in a noncapital felony case). When the state courts denied him

relief, Hartfield filed a pro se federal habeas application in the United States District Court.

The federal district court construed Hartfield’s application as a pretrial habeas application

under section 2241 and dismissed his speedy-trial claims, without prejudice, as

unexhausted. See Hartfield v. Thaler (Hartfield II), 498 Fed. App’x. 440, 444 (5th Cir.

2012) (per curiam) (outlining the course of Hartfield’s proceedings in federal court); see

also 28 U.S.C.A. § 2241(c)(3) (West, Westlaw through P.L. 113–120). Both parties

appealed that determination, and the Fifth Circuit certified the following question to the

Texas Court of Criminal Appeals: “What was the status of the judgment of conviction


        1 We note that Hartfield’s attempts to compel a new trial by filing petitions for writ of mandamus in
state and federal courts during this time were unsuccessful.
                                                     2
after these events[, the issuance of the mandate and the commutation of the sentence,]

occurred?” Hartfield II, 498 Fed. App’x. at 445. In 2013, after the court of criminal

appeals answered “[t]he status of the judgment of conviction is that [Hartfield] is under no

conviction or sentence,” see Hartfield v. Thaler (Hartfield III), 403 S.W.3d 234, 240 (Tex.

Crim. App. 2013), the Fifth Circuit affirmed the federal district court’s judgment dismissing

Hartfield’s section 2241 application without prejudice. Hartfield v. Stephens (Hartfield

IV), 536 Fed. App’x. 455, 456 (5th Cir. 2013).

       On June 20, 2013, Hartfield again sought to enforce his constitutional right to a

speedy trial in state court, this time by filling an article 11.08 pretrial habeas petition in

each of three trial-court cause numbers, two civil and one criminal. See TEX. CODE CRIM.

PROC. ANN. art. 11.08 (West, Westlaw through 2013 3d C.S.) (setting out the procedures

for post-indictment, pre-conviction habeas petitions that challenge confinement). In the

criminal cause, Hartfield also filed a motion to dismiss the 1976 indictment on speedy-

trial grounds, which the trial court later denied.        In April 2014, after a December

evidentiary hearing on Hartfield’s pretrial habeas petitions, the trial court filed its findings

of fact and conclusions of law, concluding, in sum, the following: “In the final balance,

this [trial] court concludes that the four Barker factors weighs [sic] against finding a

speedy[-]trial violation.” See Barker v. Wingo, 407 U.S. 514, 515 (1972) (setting out the

following four-factor weighing and balancing test for assessing a claim that the speedy-

trial right of the Sixth Amendment has been violation: (1) length of the delay, (2) reason

for the delay, (3) assertion of the right, and (4) prejudice to the accused). On April 17,

2014, the trial court entered an order denying Hartfield’s petitions for writ of pretrial


                                               3
habeas corpus and his motion to set aside the indictment. Hartfield appealed from the

trial court’s denial of his habeas petitions.

       By a single issue on appeal, Hartfield contends that his constitutional right to a

speedy trial has been violated. See id. (explaining that the right to a speedy trial is

guaranteed by the Sixth Amendment to the United States Constitution and is applicable

to the states through the Fourteenth Amendment). On May 14, 2014, this Court granted

Hartfield’s unopposed motion to give preferential treatment in this Court’s scheduling.

See TEX. R. APP. P. 43.6 (“The court of appeals may make any other appropriate order

that the law and the nature of the case require.”). With the issuance of this opinion, we

have handled the cases expeditiously because of the significant issue involved. See id.;

see also TEX. GOV’T CODE ANN. § 21.001(b) (West, Westlaw through 2013 3d C.S.) (“A

court shall require that proceedings be conducted with dignity and in an orderly and

expeditious manner and control the proceedings so that justice is done.”).

       The trial court then set a trial on this matter for September 22, 2014. Hartfield

responded by filing, in this Court, a petition for writ of prohibition and motion for

emergency stay of the September trial setting, pending our resolution of this appeal. On

June 25, 2014, we entered an order staying the trial court’s proceedings.

       Even though this case documents what appears to be the longest gap between

indictment and trial in any speedy-trial case that has come before this Court or any other

court, the uniqueness and fundamental differences that underlie Hartfield’s speedy-trial

claim, no matter how extraordinary, cannot establish its independent pretrial appealability.

See United States v. MacDonald, 435 U.S. 850, 857 n.6 (1978). Because a pretrial


                                                4
habeas proceeding is not an appropriate avenue for raising a speedy-trial claim, we

vacate the portion of the trial court’s order denying Hartfield’s petitions for writ of habeas

corpus, and we dismiss Hartfield’s appeals. See Ex parte Barnett, 424 S.W.3d 809, 811

(Tex. App.—Waco 2014, no pet.) (dismissing the appeal because Barnett’s pretrial

habeas proceeding was not an appropriate avenue for raising his penalty-range

challenge) (citing Ex parte Doster, 303 S.W.3d 720, 727 (Tex. Crim. App. 2010)

(dismissing Doster’s appeal after vacating the court of appeals’ opinion that affirmed the

trial court's denial of his writ of habeas corpus)).                Having resolved the appeals, we

dismiss the writ of prohibition as moot and lift the stay in the trial court’s proceedings.

                                             I. BACKGROUND2

A.    Conviction, Appeal, and Purported Commutation of Sentence: 1977–1983

        In 1977, a jury convicted Hartfield of the capital murder of Eunice Lowe and

sentenced him to death.            On direct appeal, Hartfield complained of a Witherspoon

error—specifically that a member of the venire panel was improperly excluded from the

jury. See Witherspoon v. Illinois, 391 U.S. 510, 522 (1968) (holding “that sentence of

death cannot be carried out if the jury that imposed or recommended it was chosen by

excluding veniremen for cause simply because they voiced general objections to the

death penalty”). The court of criminal appeals agreed, and on September 17, 1980, it



        2  We have taken the procedural history from Hartfield v. Thaler (Hartfield II), 498 Fed. App’x. 440,
441–45 (5th Cir. 2012) (per curiam), the Fifth Circuit’s opinion certifying the question of whether the prior
judgment of conviction had been effectively vacated to the Texas Court of Criminal Appeals, from Hartfield
v. Thaler (Hartfield III), 403 S.W.3d 234, 236–38 (Tex. Crim. App. 2013), the opinion by the Texas Court of
Criminal Appeals on the certified question, and from Hartfield v. Stephens (Hartfield IV), 536 Fed. App’x.
455, 456 (5th Cir. 2013), the Fifth Circuit’s opinion affirming the federal district court’s judgment dismissing
Hartfield’s section 2241 application without prejudice.

                                                       5
reversed the judgment and remanded for a new trial.

       On October 2, 1980, the State sought leave to file a motion for rehearing, urging

the court of criminal appeals to reform the sentence to life imprisonment instead of

remanding for a new trial. Alternatively, the State asked for a reasonable period of time

to seek a commutation of Hartfield’s sentence from the Governor. On November 26,

1980, the court of criminal appeals granted the motion for leave to file the motion for

rehearing. However, on January 26, 1983, it denied the State’s motion for rehearing,

refusing the State’s request to reform the sentence and holding that the fifteen-day period

between the rendition of its decision and the date that the mandate issues was a

reasonable time to seek commutation of Hartfield’s sentence from the Governor. On

March 1, 1983, the court of criminal appeals denied the State’s motion for leave to file a

second motion for rehearing. Mandate issued on March 4, 1983, and the trial court

acknowledged receipt of the mandate on March 9, 1983.

       On March 14, 1983, the Board of Pardons and Paroles sent a letter to the Governor

recommending that he commute Hartfield’s death sentence to life. The following day,

March 15, 1983, the Governor signed proclamation number 83-04805 purportedly

commuting Hartfield’s sentence from death to life imprisonment. On March 23, 1983,

the trial court returned a postcard to the court of criminal appeals stating that the execution

of the mandate had been carried out. The card read “Executed on March 16, 1983 by

Governor Mark White,” with a notation stating, “Death Sentence commuted to Life by

Governor.” No further action was taken, and the Texas Department of Criminal Justice




                                              6
maintained custody of Hartfield.3

B. Proceedings in State and Federal Courts: 2006–2013

        On November 14, 2006, Hartfield filed a pro se petition for writ of habeas corpus

in state court, seeking relief under article 11.07 of the code of criminal procedure. See

TEX. CODE CRIM. PROC. ANN. art. 11.07. On November 27, Hartfield supplemented his

petition with a speedy-trial claim. The district court forwarded Hartfield’s petition and

supplement to the Texas Court of Criminal Appeals. Also, on January 4, 2007, Hartfield

filed a pro se petition for writ of mandamus in the court of criminal appeals, seeking to

compel a new trial. On January 31, 2007, without written order, the court of criminal

appeals denied Hartfield’s habeas petition and his petition for writ of mandamus. On

April 22, 2007, Hartfield filed a second pro se petition for writ of habeas corpus, which the

court of criminal appeals dismissed on May 30, 2007, as a subsequent petition under

article 11.07, section 4(a)–(c) of the Texas Code of Criminal Procedure. See id.

        Hartfield then filed a pro se application for writ of habeas corpus in the United

States District Court for the Southern District of Texas, raising two claims: (1) that his

right to due process had been denied by the trial court’s failure to retry him; and (2) that

he was being detained by an illegal sentence. The district court referred the application

to a magistrate judge, who, on October 3, 2008, appointed a federal public defender as

counsel for Hartfield.        The magistrate judge later concluded, in relevant part, that

Hartfield was not in custody pursuant to a judgment of a state court and that his claim


        3 The trial court set out, among others, the following finding of fact:          “Hartfield remained
incarcerated in the Texas Department of Criminal Justice, Institutional Division, from the date the mandate
issued until June 28, 2013, when the Matagorda County [S]heriff [D]eputies executed the bench warrant by
the 130th [D]istrict [C]ourt.”
                                                     7
was actually a pre-conviction habeas petition. However, because Hartfield was confined

in the Eastern District of Texas, the case was transferred there.

       A magistrate judge for the Eastern District likewise construed Hartfield’s

application as a pretrial habeas application under section 2241, recommended that

Hartfield’s application be dismissed without prejudice, and concluded that Hartfield had

failed to exhaust state-law remedies. The federal district court adopted the magistrate

judge’s recommendations, holding that (1) Hartfield was not in custody pursuant to the

judgment of a state court; and (2) Hartfield’s claims were not properly before it because,

having taken the procedurally improper step of directly asking the court of criminal

appeals for relief, Hartfield had yet to properly seek relief from the state trial court. The

district court required Hartfield to proceed in state court with his claim that the indictment

should be dismissed because a new trial would violate his Sixth Amendment right to a

speedy trial. On April 29, 2011, the federal district court dismissed Hartfield’s application

without prejudice.

       Both parties appealed to the Fifth Circuit, the State challenging the holding that

Hartfield was not in custody pursuant to a judgment, and Hartfield appealing from the

requirement that he exhaust his speedy-trial claim. On November 28, 2012, finding no

controlling state precedent regarding the status of Hartfield’s conviction and sentence,

the federal court of appeals certified the following question to the Texas Court of Criminal

Appeals: Whether the judgment of conviction had been effectively vacated prior to the

1983 commutation.

       On June 12, 2013, the court of criminal appeals answered the Fifth Circuit’s


                                              8
certified question, determining that no judgment of conviction existed after mandate

issued on March 4, 1983. The court of criminal appeals reasoned that with no conviction

and no sentence to reduce, the governor’s March 15, 1983 commutation order had no

effect. The court of criminal appeals also agreed that Hartfield had not exhausted his

state remedies.         The Fifth Circuit then affirmed the federal district court’s order

dismissing Hartfield’s speedy-trial claim without prejudice, as unexhausted.

C. Proceedings in State Court: 2013 to Present

        On June 20, 2013, Hartfield filed three petitions for writ of habeas corpus pursuant

to article 11.08.4 See id. art. 11.08. On September 4, 2014, the State filed a motion to

dismiss Hartfield’s petitions, arguing that his speedy-trial claim was not cognizable in such

an article 11.08 petition. The trial court denied the State’s motion on November 27,

2013. On December 17, 2013, Hartfield filed a motion in the trial court to set aside his



        4Hartfield filed a petition for writ of habeas corpus in each of the following: (1) Civil Cause Number
13-E-0324 (appellate cause number 13-14-00238-CV) in the Matagorda County District Court; (2) Civil
Cause Number 13-E-0325 (13-14-00239-CV) in the Matagorda County District Court; and (3) Criminal
Cause Number 7794 in the 329th District Court of Wharton County, Texas. On July 29, 2013, Cause
Number 7794 was transferred to Criminal Cause Number 13-0334 (13-14-00240-CR) in the Matagorda
County District Court.

       During a preliminary hearing below, Hartfield informed the trial court that, to avoid redundancy, he
would pursue his petition only in Criminal Cause Number 13-0334. However, the petitions in Civil Cause
Numbers 13-E-0324 and 13-E-0325 were neither withdrawn nor dismissed, and the trial court’s order
denied Hartfield’s petitions for writ of habeas corpus filed in those cause numbers as well as in Criminal
Cause Number 13-0334.

         On appeal, Hartfield has advised this Court that, out of an abundance of caution, he filed three
notices of appeal, two civil and one criminal. Upon receipt, we docketed the three notices separately, two
as civil appeals and one as a criminal appeal. Now, the State respectfully suggests that we have not
properly docketed the two civil appeals because our decision will ultimately be appealable to the Texas
Court of Criminal Appeals for an article 11.08 determination. We share each party’s concern. Yet this
Court does not have the ability to re-characterize an appeal filed from a trial-court cause number that an
appellant prudently specifies. Following this appeal, we propose that the trial court and the parties take
any necessary action to resolve this matter.

                                                      9
indictment in the criminal case, Cause Number 13-0334.

        On December 19, 2013, the trial court heard Hartfield’s habeas petitions and, on

December 27, 2013, ordered additional briefing. Both parties complied. Because no

order was forthcoming, on April 7, 2014, Hartfield filed a petition for writ of mandamus in

this Court. We dismissed the petition as moot when the trial court entered its order on

Hartfield’s petitions for writ of habeas corpus as discussed below. In re Hartfield, No.

13-14-00210-CR, 2014 WL 1514171, at *1 (Tex. App.—Corpus Christi April 15, 2014,

orig. proceeding) (per curiam) (mem. op., not designated for publication).

        On April 17, 2014, the trial court entered an order denying Hartfield relief on his

three pretrial habeas petitions. In its April 17, 2014 order, the trial court also denied

Hartfield’s motion to set aside the indictment. The trial court later filed thirty-five pages

of findings of fact and conclusions of law addressing Hartfield’s speedy-trial claim and

concluding that the Barker factors weighed against a speedy-trial violation.5

        On April 25, 2014, Hartfield appealed the trial court’s order denying his pretrial



        5
          As part of its conclusions of law, the trial court provided the following chart summarizing its
analysis of the Barker factors.

 Barker v. Wingo Factor      Finding                       Weighs Against the   Degree
                             Over 30 years from
 Length of the Delay         mandate to instant            State                Triggers Barker review
                             motion
 Reason for Delay            State’s Negligence            State                Not as heavily as bad
                                                                                faith or intentional delay
 Defendant’s assertion       Acquiescence for over
 of the right to speedy      23 years; no filings          Hartfield            Heavily
 trial                       directly in the trial court
                             Over 30 years pre-trial
 Prejudice     to      the   incarceration;                State                Slight
 Accused                     presumed        prejudice,
                             extenuated

                                                       10
habeas petitions. Hartfield did not appeal the trial court’s order denying his motion to set

aside the indictment, as that avenue of appeal, as will be discussed later in this opinion,

is available only post-conviction.

       On June 24, 2014, Hartfield filed a petition for writ of prohibition and motion for

emergency stay in this Court. In his petition, Hartfield informed us that the trial court had

scheduled the trial in this matter for September 22, 2014. He alleged that the trial court

had done so in an attempt to “circumvent this Court’s ability to determine whether

Hartfield’s right to a speedy trial was violated.” See Gano v. Villarreal, 745 S.W.2d 586,

587 (Tex. App.—Corpus Christi 1988, orig. proceeding) (setting out that a writ of

prohibition may issue to prevent, among other things, a lower court from interfering with

a higher court’s determination of a case pending on appeal). Hartfield argued that he

was entitled to have the trial stayed. We granted an emergency stay and requested a

response, which the State filed on June 19, 2014.                       We then stayed the trial court

proceedings, pending resolution of the appeals.6

                                          II. ISSUES PRESENTED

       On appeal, Hartfield brings the following issue: “Whether the Sixth Amendment

right to a speedy trial is violated when the State of Texas confines a man to the

penitentiary for more than thirty years following a decision by the State’s highest court to

provide that man with a new trial.” By a number of sub-issues, Hartfield challenges

relevant findings of fact and conclusions of law that the trial court entered following its

denial of Hartfield’s petitions for a pretrial writ of habeas corpus. In sum, Hartfield claims



       6   We consider Hartfield’s appeals and his petition for writ of prohibition in this consolidated opinion.
                                                       11
that the trial court should have found the first Barker factor weighed heavily in favor of

Hartfield, the third factor weighed slightly in his favor or slightly against him, and the fourth

factor weighed heavily in his favor, leading to the conclusion that Hartfield’s right to a

speedy trial has been violated. See Barker, 407 U.S. at 533; Cantu v. State, 253 S.W.3d

273, 280 (Tex. Crim. App. 2008); see also U.S. CONST. amend. VI (“In all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall have been committed . . . .”).

       In response, the State asserts that Hartfield’s speedy-trial complaint is not

cognizable in a petition for a pretrial writ of habeas corpus. Alternatively, the State

contends that, should we conclude that Hartfield’s complaint is cognizable; his Barker-

factor arguments are without merit. Because the threshold determination of whether

Hartfield’s claim is even cognizable in a pretrial habeas petition is dispositive of all

appeals, we address it first.7 See Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App.

2010) (“[W]hether a claim is even cognizable on pretrial habeas is a threshold issue that

should be addressed before the merits of the claim may be resolved.”); see also TEX. R.

APP. P. 47.1.

                                           III. DISCUSSION

A. Applicable Law

              The writ of habeas corpus is the remedy to be used when any person
       is restrained in his liberty. It is an order issued by a court or judge of
       competent jurisdiction, directed to any one having a person in his custody,
       or under his restraint, commanding him to produce such person, at a time
       and place named in the writ, and show why he is held in custody or under
       restraint.


       7   Because the facts and issues are the same in each case, we address them in one opinion.
                                                  12
TEX. CODE CRIM. PROC. ANN. art. 11.01 (West, Westlaw through 2013 3d C.S.). Article

11.08 provides for a pretrial writ of habeas corpus:

       If a person is confined after indictment on a charge of felony, he may apply
       to the judge of the court in which he is indicted; or if there be no judge within
       the district, then to the judge of any district whose residence is nearest to
       the court house of the county in which the applicant is held in custody.

Id. art. 11.08; see id art. 11.07 (providing for a post-conviction writ of habeas corpus).

       A pretrial habeas, followed by an interlocutory appeal, is an “extraordinary

remedy.” Ex parte Ellis, 309 S.W.3d at 79. Because it is an extraordinary remedy,

“appellate courts have been careful to ensure that a pretrial writ is not misused to secure

pretrial appellate review of matters that should not be put before appellate courts at the

pretrial stage.” Ex parte Ragston, 402 S.W.3d 472, 475 (Tex. App.—Houston [14th Dist.]

2013), aff'd sub nom. Ragston v. State, 424 S.W.3d 49 (Tex. Crim. App. 2014) (citing Ex

parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010)). Neither a trial court nor an

appellate court should entertain a petition for writ of habeas corpus when there is an

adequate remedy by appeal. Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App.

2001). “If a non-cognizable claim is resolved on the merits in a pretrial habeas appeal,

then the pretrial writ has been misused, and the State can appropriately petition [the court

of criminal appeals] to correct such misuse.” Ex parte Ellis, 309 S.W.3d at 79.

       In Ex parte Weise, the Texas Court of Criminal Appeals succinctly summarized its

holdings on the types of claims that are cognizable in a pretrial writ of habeas corpus:

       [A]n applicant may use pretrial writs to assert his or her constitutional
       protections with respect to double jeopardy and bail. We reasoned that
       these protections would be effectively undermined if these issues were not
       cognizable. Conversely, we have held that an applicant may not use a
       pretrial writ to assert his or her constitutional rights to a speedy trial,

                                              13
       challenge a denial of a pretrial motion to suppress, or make a collateral
       estoppel claim that does not allege a double jeopardy violation. These
       issues are better addressed by a post-conviction appeal.

55 S.W.3d at 619–20 (footnotes omitted). In other words, an alleged violation of a

defendant’s Sixth Amendment right to a speedy trial cannot be raised by pretrial habeas

because a ruling on such an issue is not entitled to interlocutory review. MacDonald,

435 U.S. at 863; Ex parte Doster, 303 S.W.3d at 724; Ex parte Weise, 55 S.W.3d at 620;

Ex parte Graves, 271 S.W.3d 801, 807 (Tex. App.—Waco 2008, pet. ref'd) (denying

appellant’s pretrial writ of habeas corpus speedy-trial claim that “his due process rights

[would be] violated [if he were] re-tried fourteen years after the original trial, when the

delay was a result of intentional prosecutorial misconduct,” on the basis that his claim

was not cognizable). As the United States Supreme Court observed:

       There perhaps is some superficial attraction in the argument that the right
       to a speedy trial . . . must be vindicated before trial in order to insure that no
       nonspeedy trial is ever held. Both doctrinally and pragmatically, however,
       this argument fails. Unlike the protection afforded by the Double Jeopardy
       Clause, the Speedy Trial Clause does not, either on its face or according to
       the decisions of this Court, encompass a “right not to be tried” which must
       be upheld prior to trial if it is to be enjoyed at all. It is the delay before trial,
       not the trial itself, that offends the constitutional guarantee of a speedy trial.
       If . . . an accused [is deprived] of his right to a speedy trial, that loss, by
       definition, occurs before trial. Proceeding with the trial does not cause or
       compound the deprivation already suffered.

MacDonald, 435 U.S. at 860–61.

       Instead, the “remedy [for an alleged violation of one’s constitutional right to a

speedy trial] is a pretrial motion to set aside the charging instrument on speedy-trial

grounds.” Ex parte Graves, 271 S.W.3d at 807. And while the denial of relief on a

pretrial writ of habeas corpus in certain instances may be appealed immediately, Ex parte


                                                14
Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005) (per curiam); see Ex parte Weise, 55

S.W.3d at 619–20, the denial of a speedy-trial pretrial motion to quash an indictment may

be appealed only after conviction and sentencing. See Ex parte Smith, 178 S.W.3d at

801; see also MacDonald, 435 U.S. at 860–61. Finally, in MacDonald, the United States

Supreme Court stated that “‘[a]ppeal rights cannot depend on the facts of a particular

case.’        The factual circumstances that underlie a speedy trial claim, however

‘extraordinary,’ cannot establish its independent appealability prior to trial.” 435 U.S. at

857 n.6 (quoting Carroll v. United States, 354 U.S. 394, 405 (1957)).

B.       Standard of Review

         We review a trial court's decision to grant or deny a writ of habeas corpus for abuse

of discretion. See Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006); see

also Ex parte Cedillo, No. 13-09-00219-CR, 2010 WL 2136607, *2 (Tex. App.—Corpus

Christi May 27, 2010, no pet.) (mem. op., not designated for publication). However, if

the resolution turns on an application of legal standards, we review the determination de

novo. See Sandifer v. State, 233 S.W.3d 1, 2 (Tex. App.—Houston [1st Dist.] 2007, no

pet.) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc)).

Here, the State asserts that the trial court misapplied the law when, in this pretrial habeas

proceeding, it reviewed the merits of Hartfield’s non-cognizable speedy-trial claim. So,

in this case, we review the trial court's denial of Hartfield’s pretrial habeas petitions de

novo. See id.

C.       Discussion

         1.      Motion to Dismiss the Indictment


                                              15
       In the present case, Hartfield filed a pretrial motion to dismiss his indictment, which

the trial court denied. Based on the case law set out above, over which we lack that

authority to overturn, see State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.—Austin 2006)

(“As an intermediate court, we lack the authority to overturn the court of criminal

appeals.”), aff'd sub nom. State v. Colyandro, 233 S.W.3d 870, 885 (Tex. Crim. App.

2007), because this issue is better addressed by a post-trial appeal, see MacDonald, 435

U.S. at 863; Ex parte Weise, 55 S.W.3d at 620, Hartfield has an adequate remedy at law

by raising his speedy-trial claim on direct appeal of an underlying murder conviction, if

any, on the retrial of his case. See Ex parte Graves, 271 S.W.3d at 807; see also TEX.

CODE CRIM. PROC. ANN. art. 27.03 (West, Westlaw through 2013 3d C.S.) (governing the

grounds on which a motion to set aside an indictment may be sought); id. art. 28.061

(West, Westlaw through 2013 3d C.S.) (“If a motion to set aside an indictment,

information, or complaint for failure to provide a speedy trial is sustained, the court shall

discharge the defendant.”); id. art. 44.01(a)(1) (West, Westlaw through 2013 3d C.S.)

(providing that the State may appeal when the trial court grants a motion to dismiss an

indictment). In other words, Hartfield’s post-conviction appeal of the trial court’s denial

of his motion to dismiss his indictment is his avenue to assert his speedy-trial claim, not

the drastic remedy of pretrial habeas relief. See Ex parte Doster, 303 S.W.3d at 724; Ex

parte Weise, 55 S.W.3d at 620; Ex parte Jones, 449 S.W.2d 59, 60 (Tex. Crim. App.

1970). Were we to entertain Hartfield’s petitions and resolve his speedy-trial claim on

the merits in this pretrial habeas appeal, we would be misusing the pretrial writ. See Ex

parte Ellis, 309 S.W.3d at 79; see also Ex parte Weise, 55 S.W.3d at 619. For if it is


                                             16
determined on direct appeal that Hartfield has been deprived of his right to a speedy trial,

that loss, by definition, occurred before trial and proceeding with trial would not have

caused or compounded any deprivation which had already been suffered.                     See

MacDonald, 435 U.S. at 860–61; Ex parte Lamar, 184 S.W.3d 322, 323 (Tex. App.—Fort

Worth 2005, pet. ref'd) (op. on reh’g).

       2.     Is a Speedy-Trial Claim Cognizable Through an Article 11.08
       Pretrial Habeas Petition?

       Nevertheless, Hartfield argues that “[w]hether it intended to overrule precedent or

merely recognized that Mr. Hartfield’s case is unique, the [Texas] Court of Criminal

Appeals clearly indicated in its June 12, 2013 opinion that filing [a petition] under [a]rticle

11.08 was one of the two means by which Mr. Hartfield could raise his speedy[-]trial

claim.” See Hartfield III, 403 S.W.3d at 240.

              a.     Did the Court of Criminal Appeals Overturn Precedent?

       By the following language from Hartfield III, “Alternatively, Petitioner could have

filed an application under Article 11.08,” Hartfield argues that the Texas Court of Criminal

Appeals overturned its own precedent. See id. The State characterizes this language

as, among other things, “a single, fleeting sentence” and asserts that if this sentence is

“placed back into context, [Hartfield’s] interpretation fails.” We are persuaded by the

State’s arguments because, were we to follow Hartfield’s reasoning, we would have to

conclude that the court of criminal appeals intended to overturn decades of its own

precedent with this one sentence. And we decline to do so.

       “Finding no controlling precedent under Texas law,” the Fifth Circuit certified “the

following determinative question to the Texas Court of Criminal Appeals: What was the

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status of the judgment of conviction after these events occurred?” Id. at 236.           The

court of criminal appeals provided the following answer to the certified question:

       The March 4, 1983 mandate issued by this Court reversed the judgment of
       conviction, and no court has entered any order thereafter to alter that
       reversal. Because some penalty must be assessed for the authority of
       commutation to be exercised and Petitioner’s death sentence was erased
       by our mandate, the governor’s proclamation of commutation was a nullity.
       The status of the judgment of conviction is that Petitioner is under no
       conviction or sentence.

Id. at 240. Beyond this answer to the certified question, the court of criminal appeals

ended its opinion with the following section titled “State Remedies for Pretrial Claim”:

       When Petitioner filed a state application for writ of habeas corpus, he filed
       it under Code of Criminal Procedure Article 11.07. Because Article 11.07
       relates only to post-conviction applications for writ of habeas corpus and
       there was no judgment of conviction against Petitioner, this was not the
       proper procedure, and we denied his application. He also filed an
       application for leave to file a petition for mandamus asking us to compel a
       new trial. This too was the improper procedure because our reversal of his
       conviction left him in the same position as if he had never had a trial. If his
       motion to set aside the indictment for failure to provide a speedy trial was
       sustained, then Petitioner would be discharged under Article 28.061 of the
       Texas Code of Criminal Procedure. Alternatively, Petitioner could have
       filed an application under Article 11.08. Therefore, the United States
       District Court for the Eastern District is correct that Petitioner has not
       exhausted state remedies. Because our denial of Petitioner's applications
       for writs of habeas corpus and mandamus were based on his failure to
       follow the proper procedure, it is not a forgone conclusion that Petitioner's
       state claims will be denied and exhaustion of state remedies is not futile.

Id. at 239–40.

       Although the federal exhaustion requirement is absent from the statutory language

of section 2241(c)(3), generally, a pretrial, federal habeas petitioner must first present a

constitutional claim to the state courts before the federal courts can pass on it. See, e.g.,

Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 489–92 (1973) (determining


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that exhaustion is necessary under section 2241 as well as section 2254); compare 28

U.S.C.A. § 2241(C)(3) (West, Westlaw through P.L. 113–120) (providing for pre-trial

habeas proceedings absent an exhaustion requirement in the statutory language) with 28

U.S.C.A. § 2254(b)(1)(A)–(B) (West, Westlaw through P.L. 113–120) (providing that “[a]n

application for a writ of habeas corpus on behalf of a person in custody pursuant to the

judgment of a State court shall not be granted unless it appears that . . . the applicant has

exhausted the remedies available in the courts of the State,” that “there is an absence of

available State corrective process” or that “circumstances exist that render such process

ineffective to protect the rights of the applicant”). Perhaps in an effort to ensure that the

Fifth Circuit did not waive the federal exhaustion requirement and address Hartfield’s

speedy-trial claim de novo, the court of criminal appeals suggested the existence of a

pretrial remedy to inform the state courts of his speedy-trial claim, that remedy being a

pretrial motion to set aside the indictment for failure to provide a speedy trial. See

Hartfield III, 403 S.W.3d at 240. As the court of criminal appeals explained, if this pretrial

motion were sustained, Hartfield would be discharged under article 28.061 of the Texas

Code of Criminal Procedure.       Id.; see TEX. CODE CRIM. PROC. ANN. art. 28.061.          If

denied, Hartfield would have the opportunity to challenge the ruling post-conviction on

direct appeal. See Ex parte Doster, 303 S.W.3d at 724; Ex parte Weise, 55 S.W.3d at

620. Identifying a second pretrial remedy, the court of criminal appeals also set out that

Hartfield “could have filed an application under [a]rticle 11.08.” Hartfield III, 403 S.W.3d

at 240. Importantly, its reference to article 11.08 did not set out that Hartfield could have

filed a petition under article 11.08 to advance his speedy-trial claim. See id. The court


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of criminal appeals omitted that specific language, perhaps to indicate that Hartfield could

have used article 11.08 to advance his contention that he was in prison despite the fact

that he was under no conviction or sentence. See id. In that regard, Hartfield would not

have exhausted his state court remedies.          See id.   So, as the State submits, we

conclude that the court of criminal appeals’ article 11.08 reference is narrower than

Hartfield contends. And we cannot conclude that the Texas Court of Criminal Appeals,

without more, overturned precedent with a single sentence.

              b.     Is Hartfield’s Claim an Exception to the General Rule?

       Hartfield also asserts that his claim is cognizable in a pretrial writ of habeas corpus

because it is so unique and fundamentally different from every other speedy-trial case.

He contends that, by its language, the court of criminal appeals recognized that the

following concerns that ordinarily make a pretrial petition an inappropriate vehicle by

which to raise a speedy-trial claim are not present in this case: (1) the degree to which

a defendant’s ability to present a defense has been prejudiced by the delay prior to the

trial is typically difficult to determine; and (2) allowing immediate appeal on speedy-trial

issues would frustrate the purposes of the Speedy Trial Clause. See MacDonald, 435

U.S. at 859–62; see also Barker, 407 U.S. at 530, 533. We do not agree that the court

of criminal appeals recognized that Hartfield’s case was so “out of the ordinary,” that he

could apply for pretrial habeas corpus relief on his speedy-trial claim.

       As set out above, “[a]ppeal rights cannot depend on the facts of a particular case.”

MacDonald, 435 U.S. at 857 n.6; Carroll, 354 U.S. at 405. And, as noted earlier, even

though this case documents what appears to be the longest gap between indictment and


                                             20
trial in any speedy-trial case that has come before this Court or any other court, the

uniqueness and fundamental differences that underlie Hartfield’s speedy-trial claim, no

matter how extraordinary, cannot establish its independent pretrial appealability. See

MacDonald, 435 U.S. at 857 n.6.

       3. Summary

       We cannot conclude that the court of criminal appeals has overruled its precedent

or created an exception to the general rule under the facts of this case, and we are obliged

to conform our opinions to those of the court of criminal appeals.        See DeLay, 208

S.W.3d at 607. Being bound by the court of criminal appeals precedent on this subject,

see Moses, 590 S.W.2d at 470, we reject Hartfield’s arguments in support of his

contention that he may raise his speedy-trial claim in a pretrial writ of habeas corpus.

       Based on our de novo review, see Sandifer, 233 S.W.3d at 2 (citing Guzman, 955

S.W.2d at 89), Hartfield’s speedy-trial claim is not cognizable by a pretrial petition for a

writ of habeas corpus. Hartfield has an adequate remedy at law; therefore, he is not

eligible for pretrial habeas relief. And the trial court erred in determining the merits of

Hartfield’s speedy-trial claim in this pretrial habeas proceeding.

       Having concluded that Hartfield’s speedy-trial claim is not cognizable in such an

article 11.08 pretrial habeas petition, we do not reach Hartfield’s contentions regarding

the Barker factors. See TEX. R. APP. P. 47.1. We overrule Hartfield’s sole issue.

                                     IV. CONCLUSION

       Accordingly, we vacate the portion of the trial court’s order that denied Hartfield’s

petitions for writ of habeas corpus under article 11.08 in Cause Numbers 13-E-0324, 13-


                                            21
E-0325, and 13-0334, and we dismiss Hartfield’s appeals. See Ex parte Barnett, 424

S.W.3d at 811 (citing Ex parte Doster, 303 S.W.3d at 727; see also TEX. R. APP. P. 43.2(f).

We further dismiss Hartfield’s petition for writ of prohibition, which complains of a trial

setting prior to the resolution of his appeals, as moot and lift the stay in the trial court.



                                                                  NELDA V. RODRIGUEZ
                                                                  Justice

Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 14th
day of August, 2014.




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