                                        In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-13-00550-CR
                            ____________________


                        IN RE DAVID LEE VICTORICK

_______________________________________________________               ______________

                                Original Proceeding
________________________________________________________               _____________

                           MEMORANDUM OPINION

      Relator, David Lee Victorick (“Victorick”) filed a Request for Emergency

Stay and a Petition for Writ of Mandamus and Writ of Prohibition relating to the

trial court’s pre-trial denial of his petition for writ of habeas corpus. Victorick asks

this Court to either compel the trial court to stay the trial or to prohibit the trial

court from proceeding to trial for the duration of Victorick’s appeal from the denial

of his application for writ of habeas corpus. We deny the Request for Emergency

Stay, and we deny the Petition for Writ of Mandamus and Writ of Prohibition. 1


      1
       We have not yet ruled upon the appeal of the trial court’s denial of the writ
of habeas corpus which challenges the facial constitutionality of subsection (c) of
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                            Brief Overview of Underlying Matter

        Victorick was originally charged by an indictment on August 29, 2013, with

the offense of online solicitation of a minor in violation of section 33.021(b) of the

Texas Penal Code. See Tex. Penal Code Ann. § 33.021(b) (West 2011) (the

“Online Solicitation Statute”).      In Ex parte Lo, No. PD-1560-12, 2013 WL

5807802, at **3-4 (Tex. Crim. App. Oct. 30, 2013), the Court of Criminal Appeals

held that subpart (b) of the Online Solicitation Statute was unconstitutionally

overbroad. Id. at **3-7. Thereafter, on November 14, 2013, the grand jury re-

indicted Victorick under subsection (c) of the Online Solicitation Statute.

        Prior to trial, Victorick filed an application for a writ of habeas corpus in the

trial court. He challenged the facial constitutionality of subsection (c) of the

Online Solicitation Statute. Respondent denied the application. Victorick appealed

the denial of his application for habeas relief and petitioned Respondent for a stay.

Respondent denied the stay and Victorick’s trial is currently set for December 30,

2013.

        Victorick filed a Notice of Appeal of Respondent’s denial of the pretrial writ

of habeas corpus, and that appeal is pending in this Court under cause number 09-

13-00551-CR. Concurrently with that filing, Victorick also filed a Request for

the Online Solicitation Statute. See Tex. Penal Code Ann. § 33.021(c) (West
2011).
                                            2
Emergency Stay and a Petition for Writ of Mandamus and Writ of Prohibition as

an original proceeding with this Court docketed under cause number 09-13-00550-

CR, and the subject of this Opinion.

      With respect to Victorick’s Request for Emergency Stay and Petition for

Writ of Mandamus and Writ of Prohibition, Victorick contends that the trial, if

allowed to proceed, will interfere with this Court’s jurisdiction over his appeal and

will deprive him of the right to have the facial constitutionality of the Online

Solicitation Statute determined before he is subjected to a trial. We disagree.

                                       Discussion

      We may issue a writ of mandamus in a criminal proceeding if the relator

establishes that he has no adequate remedy at law to redress the harm visited upon

him and if what he seeks to compel is a ministerial act. See State ex rel. Young v.

Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex.

Crim. App. 2007).

      A writ of prohibition is available to the Court to enforce this Court’s

jurisdiction. Tex. Gov’t Code Ann. § 22.221(a) (West 2004). “The writ [of

prohibition] is typically used to protect the subject matter of an appeal or to

prohibit an unlawful interference with the enforcement of a superior court’s orders




                                           3
and judgments.” Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 683 (Tex.

1989) (orig. proceeding).

      To establish his right to either mandamus or prohibition relief, the relator

must “show that he has no adequate remedy at law to redress the harm that he

alleges will ensue if the act he wishes to prohibit is carried out.” Simon v. Levario,

306 S.W.3d 318, 320 (Tex. Crim. App. 2009) (orig. proceeding) (footnote

omitted). He must “show that the act he seeks to compel or prohibit does not

involve a discretionary or judicial decision.” Id. A matter is discretionary with the

trial court unless the facts and circumstances dictate a single rational decision

under unequivocal, well-settled, and clearly controlling legal principles. Id.

      Victorick argues that the trial court should have no discretion to refuse a stay

of a criminal prosecution when there is an appeal of the denial of a pretrial writ of

habeas corpus that presents a facial challenge to the constitutionality of the statute

upon which the prosecution is based. However, the authorities cited by Victorick

do not support Victorick’s position that a stay of the trial is mandatory during the

appeal of a cognizable pre-conviction claim. 2 Rather, Victorick principally relies

      2
        Generally, a pretrial petition for writ of habeas corpus is available (1) to
challenge the State’s power to restrain the applicant, (2) to challenge the manner of
the applicant’s pretrial restraint, and (3) to raise issues that bar prosecution. Ex
parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005). Conversely, pretrial
habeas is not available to test the sufficiency of the charging instrument or to
                                          4
upon two cases that discuss whether habeas relief is cognizable, but neither case

supports the issuance of a mandatory stay in Victorick’s case. Ex parte Weise, 55

S.W.3d 617, 619-20 (Tex. Crim. App. 2001) (describing cases where pretrial

habeas corpus is cognizable, but holding the challenge to the illegal dumping

statute was not ripe for review); Ex parte Robinson, 641 S.W.2d 552, 555 (Tex.

Crim. App. 1982) (ruling that a double jeopardy claim may be raised and appealed

in a pretrial habeas corpus proceeding).

      A habeas corpus proceeding is appealable precisely because it is an

independent original proceeding that is not part of the criminal case. See Ex parte

Shumake, 953 S.W.2d 842, 846 n.8 (Tex. App.—Austin 1997, no pet.) (“Habeas

corpus proceedings are separate and distinct proceedings independent of the cause

instituted by the presentation of an indictment or other forms of the State’s

pleadings.”). Victorick’s habeas appeal is not an interlocutory appeal from the

substantive cause arising out of the indictment. See id.

construe the meaning and application of the charged offense. Ex parte Ellis, 309
S.W.3d 71, 79 (Tex. Crim. App. 2010). The Court of Criminal Appeals recently
addressed the merits of a pretrial habeas challenge to a different subsection of the
Online Solicitation Statute. See Ex parte Lo, No. PD-1560-12, 2013 WL 5807802,
at *1 (Tex. Crim. App. Oct. 30, 2013). For purposes of the review of the pending
requests only, we will assume Victorick may have presented a “cognizable”
challenge to the facial constitutionality of Penal Code section 33.021(c), but that
issue is reserved for either his pending appeal of the denial of the pretrial habeas
relief in cause number 09-13-00551-CR or the appeal of the conviction, should he
be convicted and an appeal be filed, and we do not decide it here.
                                           5
      Having the right to an appeal and having a right to prohibit the trial court

from proceeding with the trial before the appeal is decided are two different things.

For example, in L.L.S. v. Wade, 565 S.W.2d 251, 251-52 (Tex. Civ. App.—Dallas

1978, orig. proceeding), a juvenile accused of murder appealed the order

transferring her to the criminal court for trial as an adult, and then sought a writ of

prohibition to prevent the district court from proceeding to trial until the

interlocutory appeal had been decided. The court of civil appeals denied the

juvenile’s application for a writ of prohibition because the court’s order in the

interlocutory appeal would be given effect regardless of the outcome of the

criminal prosecution. Id. at 252.

      The jurisdiction of the trial court to consider a pretrial habeas corpus

application is determined at the time the application is filed, and the trial court does

not lose jurisdiction to hear a pretrial application if that court finds the applicant

guilty. Kniatt v. State, 206 S.W.3d 657, 663 (Tex. Crim. App. 2006). Similarly, if

the trial court adjudicates guilt, the appellate court does not lose jurisdiction over

the pretrial habeas appeal that challenges the facial constitutionality of the statute

under which the appellant was charged. We do not decide in this proceeding

whether Victorick’s pretrial habeas appeal may be mooted by subsequent

proceedings. See, e.g., Ex parte Flores, 130 S.W.3d 100, 104-05 (Tex. App.—El

                                           6
Paso 2003, pet. ref’d) (exceptions to the mootness doctrine allowed the appellate

court to address the facial challenge to the constitutionality of an expired protective

order). Even if the appeal of the pretrial application of the writ of habeas corpus is

mooted by the conviction in the trial court, this Court’s jurisdiction to resolve the

constitutional challenge to the statute will remain and is protected if the claim is

preserved in the trial court. See generally Karenev v. State, 281 S.W.3d 428, 434

(Tex. Crim. App. 2009). If Victorick is convicted at trial, he may still make a

facial challenge to the constitutionality of the statute in his direct appeal. See

Saucedo v. State, 795 S.W.2d 8, 9 (Tex. App.—Houston [14th Dist.] 1990, no pet.)

(the extraordinary remedy of habeas corpus should not be entertained where there

is an adequate remedy by direct appeal from the conviction).

      Victorick argues that we should treat his facial constitutionality challenge

like a successive-prosecution double jeopardy claim. See Williams v. White, 856

S.W.2d 847, 848 (Tex. App.—Fort Worth 1993, orig. proceeding) (prohibiting trial

pending appeal of non-frivolous claim that jeopardy terminated with mistrial);

Trimboli v. MacLean, 735 S.W.2d 953, 954-55 (Tex. App.—Fort Worth 1987,

orig. proceeding) (denying prohibition where mistrial resulted from jury

misconduct). In the context of successive prosecutions, protection from exposure

to a second trial is the constitutional right being asserted. Robinson, 641 S.W.2d at

                                          7
555. In contrast, “developments in the law of charging instruments and void

judgments undercut the notion that a facial challenge to the constitutionality of a

statute involves a question of ‘jurisdiction.’” Karenev, 281 S.W.3d at 432. A

facial challenge to the constitutionality of a statute is neither an absolute

requirement or prohibition, nor a right that is waivable-only, but is a right that is

forfeited if it is raised for the first time on appeal. Id. at 434. Therefore, the

successive-prosecution double jeopardy rationale would not apply.

      Victorick has failed to establish that the trial court’s denial of his motion to

stay the trial during the appeal of the pretrial petition for writ of habeas corpus is a

non-discretionary decision under unequivocal, well-settled, and clearly controlling

legal principles. Simon v. Levario, 306 S.W.3d 318, 320 (Tex. Crim. App. 2009).

Further, we find Victorick has an adequate remedy on appeal. Accordingly, we

deny Victorick’s Petition for Writ of Mandamus and Writ of Prohibition, and we

deny the Request for Emergency Relief.

      PETITION DENIED.


                                                                  PER CURIAM

Submitted on December 17, 2013
Opinion Delivered December 30, 2013
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.
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