                                                                                   WR-83,674-02
                                                                    COURT OF CRIMINAL APPEALS
                                                                                     AUSTIN, TEXAS
                                                                    Transmitted 8/14/2015 2:55:05 PM
                                                                      Accepted 8/14/2015 3:13:09 PM
                                                                                      ABEL ACOSTA
                                WR-83,674-02                                                  CLERK
                     (Trial Court Cause No. 2014CR1548)
                                                                       RECEIVED
                                                                COURT OF CRIMINAL APPEALS
EX PARTE                                 §         IN THE    COURT OF 8/14/2015
                                         §                         ABEL ACOSTA, CLERK

                                         §         CRIMINAL APPEALS
                                         §
JASON CHILDRESS                          §         AT AUSTIN

    STATE’S ORIGINAL ANSWER TO APPLICATION FOR WRIT OF
                      HABEAS CORPUS

TO THE HONORABLE JUDGES OF SAID COURT:

      COMES NOW the State of Texas, by and through its Assistant District

Attorney, and files this its Original Answer to the Application for Writ of Habeas

Corpus in the above-captioned cause.

                        Factual and Procedural History

      On December 15, 2014, the State filed an information and complaint with

the Comal County Clerk charging Applicant with Failure to Identify as a Fugitive

from Justice, a class “A” misdemeanor. Complaint, attached. Applicant apparently

mailed a letter to the County Clerk’s office requesting that they update his address

prior to his appearance date on February 3, 2015. For reasons unknown, the notice

of Applicant’s court appearance date was sent to the address on the bond. Although

a capias warrant was issued for Failure to Appear on that date, in light of the

forgoing, the County Court at Law has cancelled the capias warrant for the Failure

to Appear offense. Cancellation, attached.


                                         1
A.    Jurisdiction Was More Appropriate in the County Court at Law.

      Applicant never submitted his habeas application to the County Court at

Law. Tex. Crim. Proc. Code Ann. art. 11.05, 11.09 (West, Westlaw through 2013

Sess.) (“If a person is confined on a charge of misdemeanor, he may apply to the

county judge of the county in which the misdemeanor is charged to have been

committed….”). Because a complaint was filed in the County Court on December

15, 2014 – well before the instant application – Applicant should have pursued

relief in that court first. See Tex. Crim. Proc. Code Ann. art. 4.16 (West, Westlaw

through 2015 R.S. ch. 46) (“[w]hen two or more courts have concurrent

jurisdiction of any criminal offense, the court in which … a complaint shall first be

filed shall retain jurisdiction ….”); see also Tex. Gov’t Code Ann. § 26.045(a)

(West, Westlaw through 2015 R.S. ch. 46) (county courts have exclusive original

jurisdiction over most misdemeanors).

      The Court of Criminal Appeals has generally declined to issue writs of

habeas corpus where other courts have jurisdiction to do so. Ex parte Alderete, 203

S.W. 763, 764 (Tex. Crim. App. 1918). This is particularly true in the context of

misdemeanor cases. See generally Ex parte Smallwood, 87 Tex. Crim. 268, 269,

221 S.W. 293 (1920) (“applications for writs of habeas corpus in misdemeanor

cases should be made to the county judge of the county in which the applicant

resides”); Ex parte Phelper, 433 S.W.2d 897, 897-98 (Tex. Crim. App. 1968)


                                         2
(“This court has consistently declined to exercise its original jurisdiction in habeas

corpus attacks upon the validity of a misdemeanor conviction, the county court,

district court, or a judge of said court having jurisdiction to grant relief, and the

petitioner having the right of appeal from an order denying relief”); see also Ralph

H. Brock, The Art of Criminal Habeas Corpus Practice in State Courts, 2 App.

Advoc. 3, 7 (1989) (“The only writ that should be filed initially in the Court of

Criminal Appeals is the art. 11.07 writ. Thus the way is marked, and the maze is

easily run.”); 43 Tex. Prac., Criminal Practice And Procedure § 35:13 (3d ed.)

(“Comity strongly suggests that the writ should be made returnable to the county

court in which the misdemeanor prosecution is pending”).

      As one court observed as early as 1885, although a provision granting the

local court jurisdiction – substantially similar to Texas Code of Criminal Procedure

article 11.09 – was not mandatory, it clearly “indicate[d] that the application for

the writ should, in the first instance, be made to the local judge or court competent

to grant the same” to localize the administration of law as much as possible. Ex

parte Lynn, 1885 WL 6887, 19 Tex. App. 120, 121 (1885, no writ). Despite that

applicant’s claim that the local judge was prejudiced against him, the court refused

his application, observing that his allegation was mere supposition and conjecture.

Id. at 122-23.




                                          3
      In the present case, Applicant has not provided any evidence that the local

court could not handle the application. Because he should have first presented it to

the County Court at Law, this Court should deny his application. See Ex parte

Alderete, 203 S.W. at 764; Ex parte Smallwood, 221 S.W. 293; Ex parte Phelper,

433 S.W.2d at 897-98; Tex. Crim. Proc. Code Ann. art. 4.16, 11.05, 11.09.



B.    The State Generally Denies Applicant’s Allegations.

      The State generally denies each and every allegation in the application, and

respectfully demands strict proof thereof.



C.    Applicant’s Complaints Related to His Failure to Appear Capias
      Warrant Are Now Moot.

      The cancellation of the capias for Failure to Appear should moot Applicant’s

claims related to that issue in the instant habeas application and in Applicant’s

petition for writ of mandamus filed under case number WR-83,674-01. See Ex

parte Thompson, 685 S.W.2d 338, 339 (Tex. Crim. App. 1985) (dismissal of

complained-of indictment rendered applicant’s contention moot). Because the only

relief Applicant requested was to “relieve Petitioner of his unlawful restraint

resulting from the void Capias” (Application at 15), the Court should dismiss his

application as moot.



                                         4
D.    Applicant Cannot Challenge a Statute “As Applied” in a Pretrial Writ,
      Nor Otherwise Try the Facts of His Case Pretrial.
      Applicant complains of several issues in his lengthy application, such as his

failure to be afforded an examining trial. Application Appendix, Tab K, at 19.

However, the Court of Criminal Appeals has not construed article 16.01 to require

examining trials in misdemeanor cases. Clark v. State, 417 S.W.2d 402, 403 (Tex.

Crim. App. 1967); Tex. Crim. Proc. Code Ann. § art. 16.01 (West, Westlaw

through 2015 R.S. ch. 46). Applicant does not even assert he requested an

examining trial before the complaint was filed. Applicant’s other claims similarly

lack merit.

      Habeas corpus is an extraordinary remedy that should not be used as a

substitute for an appeal. Ex parte Clore, 690 S.W.2d 899, 900 (Tex. Crim. App.

1985); Ex parte Groves, 571 S.W.2d 888, 890 (Tex. Crim. App. 1978); Ex parte

Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010); Ex parte Morales, 416

S.W.3d 546, 548 (Tex.App.—Houston [14th Dist] 2013, pet. ref’d.). On

interlocutory review, appellate courts must be careful not to entertain an

application for writ of habeas corpus when there is an adequate remedy by direct,

post-conviction appeal. See Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App.

2001); see also Ex parte Smith, 178 S.W.3d 797, 801 n.13 (Tex. Crim. App. 2005).

Only issues cognizable on habeas grounds, such as those that protect the

applicant’s substantive rights or conserve the use of judicial resources may be

                                        5
considered on interlocutory appeal. See Weise, 55 S.W.3d at 620; Ex parte

Morales, 416 S.W.3d at 548.

       Applicant seeks to raise an “as applied” challenge to 38.02(a). Application at

11. While a defendant may raise a facial challenge to a statute via pretrial writ, a

defendant must preserve an “as applied” constitutional challenge by raising it at

trial. Flores v. State, 245 S.W.2d 432, 437 (Tex. Crim. App. 2008); Grant v. State,

2010 WL 311430 (Tex.App.—Waco 2010, no pet.). “The writ of habeas corpus

cannot be used to try a violation of the law as an original proceeding in [the

appellate courts]; that is, it cannot be resorted to ascertain the guilt or innocence of

a party.” Ex parte Kent, 90 S.W. 168, 168 (Tex. Crim. App. 1905). 1 Defendants

may not use pretrial habeas corpus to obtain appellate rulings on whether the

particular facts of their case constitute a criminal violation of the law at issue in

their case. Ex parte Hammonds, 230 S.W.2d 820, 821 (Tex. Crim. App. 1950); Ex

parte Overstreet, 89 S.W.2d 1002, 1003 (Tex. Crim. App. 1935); Ex parte Meers,

88 S.W.2d 100, 100–01 (Tex. Crim. App. 1935); Ex parte Drenner, 67 S.W.2d

870, 871–72 (Tex. Crim. App. 1934); Ex parte Windsor, 78 S.W. 510, 510 (Tex.

Crim. App. 1904); accord, Ex parte Osborne, 1999 WL 792435 (Tex.App.—San

Antonio 1999, pet. ref’d) (not designated for publication) (pretrial habeas corpus

1
  It would likewise be inappropriate in a local court habeas corpus proceeding to try to determine
whether the accused is guilty under the particular facts of his case. Ex parte Price, 210 S.W.2d
152, 153 (Tex. Crim. App. 1948); State v. Cleaton, 5 S.W.3d 908, 910 (Tex. App.—Houston
[14th Dist.] 1999, pet. ref’d).
                                                6
could not be used to challenge indictment based on the alleged ground that the

State could not prove the defendant’s actions caused the victim’s death).

      Applicant cannot challenge statutes as applied, nor otherwise attempt to try

the facts of his case in a pretrial writ of habeas corpus. “[W]here there is an

adequate remedy at law by appeal following a final judgment, neither an appellate

court nor a trial court should entertain an application for a writ of habeas corpus.”

Sara Rodriguez, Appellate Review of Pretrial Requests for Habeas Corpus Relief

in Texas, 32 Tex. Tech L. Rev. 45, 48 (2000) (citing, inter alia, M.B. v. State, 905

S.W.2d 344, 346 (Tex. App.—El Paso 1995, no pet.) (citing Ex parte Hopkins, 610

S.W.2d 479, 480 (Tex. Crim. App. 1980); Ex parte Powell, 558 S.W.2d 480, 481

(Tex. Crim. App. 1977)). Because Applicant may not usurp the function of an

appeal through a pretrial habeas corpus application, the Court should deny him any

relief. See Ex parte Banks, 769 S.W.2d 539 (Tex. Crim. App.1989); Ex parte

Overstreet, 89 S.W.2d 1002, 1003 (Tex. Crim. App. 1935).



                                     PRAYER

      Respondent prays that no relief be granted to Applicant and that all costs be

taxed against Applicant. Alternatively, Respondent prays that the Court request a

response to any particular issue it wishes Respondent to address before deciding

whether to grant relief. Cf. Tex. R. App. P. 52.4. Furthermore, Respondent prays


                                         7
for all relief, both special and general, in law and in equity, to which it may be

entitled.

       WHEREFORE, PREMISES CONSIDERED, the application for Writ of

Habeas Corpus should be, in all things, DENIED.

                                            Respectfully submitted,

                                            /s/ Joshua D. Presley
                                            Joshua D. Presley
                                            SBN: 24088254
                                            Assistant District Attorney
                                            150 N. Seguin Avenue, Ste. #307
                                            New Braunfels, Texas 78130
                                            Phone: (830) 221-1300
                                            Fax: (830) 608-2008
                                            E-mail: preslj@co.comal.tx.us
                                            Attorney for the State




                                        8
                         CERTIFICATE OF SERVICE

      I certify that on the 14th day of August, 2015, a true and correct copy of the

foregoing document and the following attached appendix was sent to the pro se

Applicant:

      Jason Childress
      jchildress1980@gmail.com
      9141 Gristmill Ct.
      Fort Worth, TX 76179

By electronic service through efile.txcourts.gov to the above-listed email address.

                                             /s/ Joshua D. Presley
                                             Joshua D. Presley
                                             Assistant District Attorney


                      CERTIFICATE OF COMPLIANCE

      I hereby certify, pursuant to Rule 73.3 of the Texas Rules of Appellate

Procedure, that the instant response is computer-generated using Microsoft Word

and said computer program has identified that there are 1,724 words within the

portions of this response required to be counted by Rule 73.1 of the Texas Rules of

Appellate Procedure. The document was prepared in proportionally-spaced

typeface using Times New Roman 14 for text and Times New Roman 12 for

footnotes.

                                             /s/ Joshua D. Presley
                                             Joshua D. Presley
                                             Assistant District Attorney

                                         9
Appendix




   10
                                                                              2014CR JS"lfe

                  IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS

      I, IDA PANIAGUA, BEING DULY SWORN, DO STATE UPON MY OATH THAT I HAVE GOOD REASON TO
BELIEVE AND DO BELIEVE BASED UPON THE INFORMATION SUPPLIED BY JAMES BELL AND I CHARGE THAT
BEFORE THE MAKING AND FILING OF THIS COMPLAINT, ON OR ABOUT THE 4TH DAY OF SEPTEMBER, 2014, IN
THE COUNTY OF COMAL AND STATE OF TEXAS, JASON TRUMAN CHILDRESS, DID THEN AND THERE, KNOWING
THAT JAMES BELL WAS A PEACE OFFICER, INTENTIONALLY REFUSE TO GIVE HIS NAME, DATE OF BIRTH, AND
ADDRESS TO JAMES BELL, A PEACE OFFICER WHO HAD LAWFULLY ARRESTED THE DEFENDANT AND
REQUESTED THE INFORMATION, AND THE DEFENDANT WAS THEN AND THERE A FUGITIVE FROM JUSTICE.

AGAINST THE PEACE AND DIGNITY OF THE STATE.           ~-


                                        Jit0_cJ
                                      COMPLAINANT

      CHARGES:    FAILURE TO IDENTIFY FUGITIVE
                  CLASS A

     - T O ANnsuBSCRIBED BEFORE ME BY IDA PANIAGUA, A CREDIBLE PERSON, THIS / ) DAY
OF   ~                 ,A.D.,2014.



                                     JENNIFER A. THARP
                                     COMAL COUNTY CRIMINAL DISTRICT ATTORNEY



      FOR JENNIFER A. THARP BY:


07/14/1980   14-43028
ARREST DATE: 09/04/2014
BOND AMOUNT: $3,000.00
TRN: 9213066511 TRS: A001
       .
                                                                              2014CR_d_

                   IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS

      I, THE UNDERSIGNED AUTHORITY REPRESENTING THE OFFICE OF THE CRIMINAL DISTRICT AITORNEY
OF COMAL COUNTY, IN SAID STATE, ON THE WRIITEN AFFIDAVIT OF IDA PANIAGUA, A COMPETENT AND
CREDIBLE PERSON HEREWITH FILED IN THE COUNTY COURT AT LAW DO PRESENT IN AND TO SAID COURT
THAT ON OR ABOUT THE 4TH DAY OF SEPTEMBER, 2014, AND BEFORE THE MAKING AND FILING OF THIS
INFORMATION, IN THE COUNTY OF COMAL AND THE STATE OF TEXAS, JASON TRUMAN CHILDRESS, DID THEN
AND THERE, KNOWING THAT JAMES BELL WAS A PEACE OFFICER, INTENTIONALLY REFUSE TO GIVE HIS NAME,
DATE OF BIRTH, AND ADDRESS TO JAMES BELL, A PEACE OFFICER WHO HAD LAWFULLY ARRESTED THE
DEFENDANT AND REQUESTED THE INFORMATION, AND THE DEFENDANT WAS THEN AND THERE A FUGITIVE
FROM JUSTICE.

AGAINST THE PEACE AND DIGNITY OF THE STATE



                                     JENNIFER A. THARP
                                     COMAL COUNTY CRIMINAL DISTRICT ATTORNEY



       FOR JENNIFER A. THARP BY:


07/1411980   14-43028
        •   •             0




                                                                       BOBBIE KOEPP, COUNTY CLERK


                                                     AUTHORIZATION FOR CAPIAS CANCELLATION



                DEFENDANT'S NAME: JASON TRUMAN CHILDRESS


                CAUSE NO: 2014CR1548


                TYPE OF CAPIAS/OFFENSE:FTA/ FAIL TO IDENTIFY FUGITIVE FROM JUSTICE


                CAPIAS ISSUE DATE: 03/02/2015 BOND REINSTATED: _X_ YES                                                           NO


                REASON FOR CANCELLATION: PER ASHLEY EVANS

                RECALLED TO: _,D~i;.;.;a.;;.;;.ne.;;........,,....,......,,.....,.....--- BY:   Cyn Peterson             DATE:    8/12/2015
                                                     Warrant Division                           Deputy Clerk




                I, the undersigned authority, do hereby authorize the cancellation of the capias on the

                above named defendant, this                      the~ day of                                   , 2015.



       STATE OF TEXAS
       C9UN'f'Y.. OF COMAL
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3     ~-~~on ~t_c...and tt.me stamped                                            County Court At Law
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