                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-13-00339-CR

                EX PARTE TIMOTHY MICHAEL BARNETT


                          From the 19th District Court
                           McLennan County, Texas
                          Trial Court No. 2013-2468-1


                                   OPINION


      Timothy Michael Barnett appeals the trial court’s denial of his pretrial

application for writ of habeas corpus in which he requested the trial court to declare

section 30.04(b)(2) of the Texas Penal Code unconstitutional. See TEX. PENAL CODE ANN.

§ 30.04(b)(2) (West 2011). Specifically, Barnett contended in his application that an

amendment raising the base penalty range of the statute from a state jail felony to a

third degree felony was unconstitutional. Because Barnett’s pretrial habeas proceeding

was not an appropriate avenue for raising his claim in the trial court, we dismiss his

appeal.
        A pretrial habeas, followed by an interlocutory appeal, is an "extraordinary

remedy," and appellate courts should be careful to ensure that it is not “misused to

secure pretrial appellate review of matters that in actual fact should not be put before

appellate courts at the pretrial stage." Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App.

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

whether 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. Ellis, 309 S.W.3d at 79.

        Generally, a claim is cognizable in a pretrial writ of habeas corpus if, resolved in

the defendant's favor, it would deprive the trial court of the power to proceed and

result in the appellant's immediate release. Ex parte Smith, 185 S.W.3d 887, 892 (Tex.

Crim. App. 2006); Weise v. State, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001). However,

pretrial habeas is not available to test the sufficiency of the charging instrument or to

construe the meaning and application of the statute defining the offense charged. An

exception to this rule is when the applicant alleges that the statute under which he is

prosecuted is unconstitutional on its face. Ellis, 309 S.W.3d at 79; Weise, 55 S.W.3d at

620. If the statute is unconstitutional on its face, the statute is not valid and, thus, the

charging instrument is void. Weise, 55 S.W.3d at 620.

        Relying on the Court of Criminal Appeals’ opinion in Weise, id., Barnett contends

that because he challenged the constitutionality of the statute “on its face,” a pretrial

writ of habeas corpus is the proper vehicle to use. On the facts of this case, we disagree.


Ex parte Barnett                                                                      Page 2
        Although Barnett contends he made a facial challenge to the constitutionality of

the statute under which he is being prosecuted, we cannot determine that he did so.

The instrument charging the offense is not a part of this record on appeal. When

Barnett’s application for writ of habeas corpus was filed in the trial court, it was given a

new case number. A copy of the charging instrument was not transferred into the new

trial court number. Although at the hearing it appeared the trial court had the criminal

charge file in front of him because he was also being asked to reduce Barnett’s bond, no

one introduced the charging instrument or asked the judge to take judicial notice of it.

Thus, it is not a part of the record of this appeal. Consequently, without the actual

charging instrument showing the statute under which he is to be prosecuted, we cannot

say that Barnett’s challenge is cognizable as a pretrial writ of habeas corpus. See Weise,

55 S.W.3d at 620.

        Further, even if we had the charging instrument, it does not appear that Barnett’s

claim is otherwise cognizable in a pretrial writ of habeas corpus because he does not

request an immediate release from custody. See Ex parte Smith, 185 S.W.3d 887, 892

(Tex. Crim. App. 2006). Rather, he asks the trial court to hold that the proper base

penalty range for the offense is a state jail felony rather than a third degree felony.

Barnett seems to concede that even if the statute is found to be defective as argued, the

trial court would, nevertheless, have the jurisdiction to proceed to trial on a felony

charge with a different base punishment range. But even in the cases relied on by the


Ex parte Barnett                                                                      Page 3
Weise court in discussing that a facial challenge to the constitutionality of a statute is

cognizable in a pretrial writ of habeas corpus, the applicant had either requested a

discharge from custody, or, in the cases in which it was unclear whether a discharge

was requested, was actually discharged from custody by the reviewing court. See Weise

v. State, 55 S.W.3d 617, 620 n. 17 (Tex. Crim. App. 2001).

        Accordingly, we conclude that Barnett’s pretrial habeas proceeding was not an

appropriate avenue for raising his claim regarding the proper base penalty range for

section 30.04(b)(2) of the Texas Penal Code, and this appeal is dismissed. See Ex parte

Doster, 303 S.W.3d 720, 727 (Tex. Crim. App. 2010) (court of appeals opinion affirming

trial court’s denial of writ of habeas corpus vacated and appeal dismissed).




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Appeal dismissed
Opinion delivered and filed March 13, 2014
Publish
[OT06]




Ex parte Barnett                                                                    Page 4
