hartfield 1108 cca pdr filed.20140815

8/11/2019 Hartfield 1108 Cca Pdr FILED.20140815

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No. ________________

IN THE COURT OF CRIMINAL APPEALSIN AUSTIN, TEXAS

Jerry Hartfield,

Petitioner,

vs.

The State of Texas ,

Respondent.

_________________________________

PETITION FOR DISCRETIONARY REVIEW _________________________________

David R. DowTexas Bar No. 06064900

[email protected] R. Newberry

Texas Bar No. 24060966 [email protected]

University of Houston Law Center100 Law Center

Houston, Texas 77204-6060TEL: (713) 743-2171FAX: (713) 743-2131


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IDENTITY OF PARTIES AND COUNSEL

So the members of this Honorable Court can determine disqualification and

recusal, Appellant certifies the following is a complete list of the parties and theirattorneys in accordance with Texas Rule of Appellate Procedure 38.1(a).

1. Trial court judge

Hon. John Craig Estlinbaum130th District Court, Matagorda CountyTexas Bar No. 007906531700 7th Street, Room 317

Bay City, Texas 77414Tel. (979) 244-7635

2. Court of appeals justices

Justice Nelda V. RodriguezTexas Bar No. 17147900901 Leopard Street, Room 1001Corpus Christi, Texas 78401-3685

Tel. (361) 888-0416Justice Dori C. GarzaTexas Bar No. 17992450100 E. Cano Street, Suite 501Edinburg, Texas 78539-4548Tel. (956) 318-2405

Justice Georgina M. BenavidesTexas Bar No. 02112210100 E. Cano Street, Suite 501Edinburg, Texas 78539-4548Tel. (956) 318-2409


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3. Petitioner

Jerry HartfieldMatagorda County Jail

2323 Avenue EBay City, Texas 77414

4. Counsel for Petitioner

David R. DowTexas Bar No. 06064900University of Houston Law Center100 Law CenterHouston, Texas 77204-6060

Tel. (713) 743-2171

Jeffrey R. NewberryTexas Bar No. 24060966University of Houston Law Center100 Law CenterHouston, Texas 77204-6060Tel. (713) 743-6843

5. Counsel for Petitioner at trial

Jack StoffregenTexas Bar No. 19262500Regional Public Defender for Capital CasesP.O. Box 2097Lubbock, Texas 79408Tel. (806) 775-5650

Anna JimenezTexas Bar No. 24027031Regional Public Defender for Capital Cases2301 Red Mile Rd.Corpus Christi, Texas 78418Tel. (361) 739-2297


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6. Counsel for the State

Steven E. ReisTexas Bar No. 16757960Matagorda County District Attorney1700 7th St., Room 325Bay City, Texas 77414Tel. (979) 244-7657

Lindsay K. DeshotelsTexas Bar No. 240696081700 7th Street, Room 325

Bay City, Texas 77414Tel. (979) 244-7657

Lisa M. TannerTexas Bar No. 19637700Texas Office of the Attorney GeneralP.O. Box 12548Austin, Texas 78711Tel. (512) 463-3125

Joseph P. CorcoranTexas Bar No. 00793549Texas Office of the AttorneyP.O. Box 12548Austin, Texas 78711-2548Tel. (512) 936-1400

7. Counsel for Petitioner at 1977 trial

Robert A. ScardinoTexas Bar No. 177195001004 Congress St., 3rd FloorHouston, Texas 77002-1761Tel. (713) 229-9292


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Richard L. ManskeTexas Bar No. 12956500121 E. Monseratte St.El Campo, Texas 77437-4423

Tel. (979) 543-68328. Counsel for State at 1977 trial

Judge Wilburn Jack SalyerTexas Bar No. 17550000


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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ........................................................................................ viINDEX OF AUTHORITIES .................................................................................. vii

STATEMENT REGARDING ORAL ARGUMENT ............................................. ix

PETITION FOR DISCRETIONARY REVIEW ....................................................... 1

STATEMENT OF THE CASE ................................................................................. 1

STATEMENT OF PROCEDURAL HISTORY ....................................................... 5

GROUND FOR REVIEW ......................................................................................... 8

ARGUMENT ............................................................................................................. 8

I. This Court already decided that Mr. Hartfields claim is cognizable in hisapplication filed pursuant to Article 11.08. ..................................................... 8

II. Mr. Hartfields case is fundamentally different from the other speedy trialcases cited by the court below. ...................................................................... 12

PRAYER FOR RELIEF .......................................................................................... 17

CERTIFICATE OF SERVICE ................................................................................ 19

CERTIFICATE OF COMPLIANCE ....................................................................... 19

APPENDIX ............................................................................................................. 20


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INDEX OF AUTHORITIES

Cases

Ex parte Doster ,303 S.W.3d 720 (Tex. Crim. App. 2010) ................................................ 12, 13

Ex parte Graves ,271 S.W.3d 801 (Tex. App.Waco 2008, pet. refd) .................................. 15

Ex parte Hartfield , Nos. 13-14-00238-CV, 13-14-00239-CV, 13-14-00240-CR,13-14-00344-CR, (Tex. App.Corpus Christi Aug. 14, 2014, pet. filedAug. 15, 2014) ....................................................................................... passim

Ex parte Jones ,449 S.W.2d 59 (Tex. Crim. App. 1970) .................................................. 13, 14

Ex parte Lamar ,184 S.W.3d 322 (Tex. App.Fort Worth 2005, pet. refd) .......................... 16

Ex parte Weise ,55 S.W.3d 617 (Tex. Crim. App. 2001) ........................................................ 13

Graves v. Dretke ,442 F.3d 334 (5th Cir. 2006) ......................................................................... 15

Hartfield v. State ,645 S.W.2d 436 (Tex. Crim. App. 1980) ........................................................ 5

Hartfield v. Thaler ,403 S.W.3d 234 (Tex. Crim. App. 2013) .............................................. passim

Hartfield v. Thaler ,498 F. Appx 440 (5th Cir. 2012) .................................................................... 6

State v. Chavez , No. 13-13-00413-CR, 2013 WL 6175232 (Tex. App.Corpus Christi Nov. 21, 2013, no pet.) (mem. op., not designated for publication). .............. 4


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United States v. MacDonald ,435 U.S. 850 (1978) .............................................................................. 8, 9, 10

Statutes

Tex. R. App. P. 66.3(c) .............................................................................................. 4


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STATEMENT REGARDING ORAL ARGUMENT

Counsel for Mr. Hartfield believes this case is appropriate for summary

reversal of the decision of the court of appeals, which clearly disregarded aunanimous decision of this Court that is barely over one year old. However, if the

Court does not believe summary reversal is appropriate, counsel requests oral

argument of this petition for discretionary review. While it is counsels belief that

this Court clearly indicated in its June 12, 2013 opinion that Hartfields claim that

his right to a speedy trial has been violated is cognizable in a pre-trial application

for a writ of habeas corpus, the Courts prior precedent had held such claims are

not cognizable in pre-trial applications. If the Court has concerns as to how Mr.

Hartfields claim is unique, and justifies this Courts decision rendered in June

2014, oral argument would be appropriate and helpful in understanding the

extraordinary nature of this case which makes it appropriate for interlocutory

appeal.


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No. ________________

IN THE COURT OF CRIMINAL APPEALSIN AUSTIN, TEXAS

Jerry Hartfield,

Petitioner,

vs.

The State of Texas ,

Respondent.

_________________________________

PETITION FOR DISCRETIONARY REVIEW

_________________________________TO THE HONORABLE JUDGES OF THIS COURT:

STATEMENT OF THE CASE

This case comes before this Court for the second time in just over one year.

Another year has therefore passed, and Jerry Hartfield remains in unlawful

custody. Mr. Hartfield has now been unlawfully held and confined in custody by

the State of Texas for thirty-four years.

Fourteen months ago, this Court clearly and unambiguously suggested that

Mr. Hartfield seek release from his unlawful custody by filing, in the trial court, a


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pre-trial application for a writ of habeas corpus. See Hartfield v. Thaler , 403

S.W.3d 234, 240 (Tex. Crim. App. 2013). At oral argument when this case was

previously before the Court, Mr. Hartfields counsel asked that this Court order hisimmediate release. When this Court instead issued an opinion indicating that

Hartfield should seek such relief from the trial court, Mr. Hartfields counsel

immediately heeded the suggestion of the Court and filed such a petition (I C.R. at

7-18). Eight days following the issuance of this Courts opinion, a pre-trial writ of

habeas corpus, raising a claim under the speedy trial clause, was filed in the trial

court, in accordance with this Courts June 2013 judgment.

The case then languished in the trial court for many months, while Mr.

Hartfield remained in unlawful custody. Eventually, on April 17, 2014, Judge

John Craig Estlinbaum, of the 130th District Court, while accepting the view of

this Court that Mr. Hartfields claim was cognizable in a pre-trial writ of habeas

corpus, nevertheless entered an order denying Mr. Hartfield relief, finding that his

right to a speedy trial had not been violated (II C.R. at 369). Though finding in

favor of Mr. Hartfield on three of the four factors prescribed by the Supreme Court

in Barker v. Wingo , the trial court found Hartfield had failed to timely assert his

right to a speedy trial and that this failure weighed so heavily against him as to

support a conclusion that his right to a speedy trial under the Sixth Amendment has

not been violated (II C.R. at 360-61).


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Immediately after the trial court denied relief, Hartfield appealed his claim

to the Thirteenth Court of Appeals. Before that court, Mr. Hartfield argued that the

trial courts conclusion as to the merits of the speedy trial claim was unsound forseveral reasons. To begin, as this Court determined in June 2013, he was in

custody unlawfully. See Hartfield , 403 S.W.3d at 240. It is simply not possible, as

a matter of law, to assent to an unlawful punishment. In addition, even if it were

somehow possible to make someone responsible for his own unlawful

confinement, such a conclusion would be extraordinary in the present case. The

undisputed evidence in the record before the trial court reflects that Mr. Hartfield

has an IQ of fifty-eight and reads and writes on a first-grade level (III R.R. States

Ex. 1, at 125-26). The trial courts conclusion that Mr. Hartfield was himself

responsible for the violation of the right to a speedy trial rests upon the premise

that in order to assert ones right to a speedy trial, a defendant must using the

proper form properly file a pleading in which the claim is cognizable in a court

that has jurisdiction to try the case (II CR at 345-56). That premise is unsupported

by any legal authority, and is in fact an incorrect statement of the governing law.

Yet in finding that this factor was by itself sufficient to support a conclusion

that Hartfields right to a speedy trial had not been violated, the court ignored a

large body of precedent including cases in the Thirteenth Court of Appeals, to

which appeal was taken holding that in cases similar to Hartfields (in which the


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States negligence is great and the delay in bringing a defendant to trial is long),

the burden to demonstrate a timely assertion of the right is lessened. See, e.g. ,

State v. Chavez , No. 13-13-00413-CR, 2013 WL 6175232, at *4 (Tex. App. Corpus Christi Nov. 21, 2013, no pet.) (mem. op., not designated for publication).

Astonishingly, instead of deciding whether Hartfields Sixth Amendment

right to a speedy trial was violated, the court of appeals held that Hartfields claim

is not cognizable in an article 11.08 pretrial habeas motion and dismissed his

appeals. Ex parte Hartfield , Nos. 13-14-00238-CV, 13-14-00239-CV, 13-14-

00240-CR, 13-14-00344-CR, slip op. at 21-22 (Tex. App.Corpus Christi Aug.

14, 2014, pet. filed Aug. 15, 2014) (attached as Exhibit A). That decision

manifestly conflicts with the applicable decision[] of this Court. Tex. R. App. P.

66.3(c). Specifically, on June 12, 2013, this Court held that Hartfield could raise

his speedy-trial claim in an application under Article 11.08.

Because the decision from the court below conflicts with this Courts

decision, Hartfield respectfully prays this Court grant discretionary review, once

again hold his claim is cognizable in a pre-trial habeas application, and hold that

his Sixth Amendment right to a speedy trial has been violated.


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STATEMENT OF PROCEDURAL HISTORY

Because the procedural history was described at length when this case was

previously before this Court, Mr. Hartfield here presents an abbreviated version ofthat history.

Jerry Hartfield was convicted of the capital murder of Eunice Lowe and

sentenced to death in June 1977. On September 17, 1980, this Court unanimously

reversed his conviction and ordered a new trial, Hartfield v. State , 645 S.W.2d 436,

441 (Tex. Crim. App. 1980), and issued its mandate on March 4, 1983 (II C.R. at

201-02). On March 15, 1983, the governor signed a document purporting to

commute Mr. Hartfields sentence to life in prison (II C.R. at 204; III R.R. States

Ex. 2, at 4-5). However, [b]ecause there was no longer a death sentence to

commute, the governors order had no effect. Hartfield , 403 S.W.3d at 239.

An illiterate man with an IQ in the 50s, Mr. Hartfield received assistance

from fellow inmates in attempting to challenge his unlawful confinement, although

the procedural vehicles employed were identified by this Court as improper,

Hartfield , 403 S.W. 3d at 239-40.

Eventually, a federal court appointed counsel to represent Mr. Hartfield, and

the case proceeded to the U.S. Court of Appeals for the Fifth Circuit. Finding no

controlling state precedent regarding the status of Mr. Hartfields conviction and


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Eight days after this Court answered the certified question, on June 20, 2013

(nearly fourteen months ago), Mr. Hartfield heeded this Courts suggestion and

filed his application for a writ of habeas corpus pursuant to article 11.08 in the130th District Court.

Mr. Hartfields petition remained pending in the 130th Judicial District

Court for almost ten months. Eventually, on April 10, 2014, the trial judge signed

findings of fact and conclusions of law denying Mr. Hartfields speedy trial claim

(II C.R. at 362). Hartfield immediately appealed the trial courts decision and filed

appellate briefs on April 25, 2014. Because the trial court commenced trial

proceedings while the appeal lay pending, on June 24, 2014, counsel filed a

petition for a writ of prohibition and emergency motion for stay in the court of

appeals, requesting the trial court be prohibited from moving forward with trial

proceedings until the speedy trial claim was resolved on appeal. The following

day, the court of appeals granted Hartfields motion for emergency stay and stayed

proceedings in the 130th District Court. Order, In re Hartfield , No. 13-14-00344-

CR (Tex. App.Corpus Christ June 25, 2014, pet. filed Aug. 15, 2014).

The court of appeals ruled against Mr. Hartfield on August 14, 2014.

However, and surprisingly (given this Courts opinion from June 2013), instead of

reaching the merits of Hartfields speedy trial claim, the court of appeals held

Hartfields claim could not be raised in a pre-trial application and dismissed his


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appeals. The courts opinion is attached as Exhibit A. No motion for rehearing

has been filed.

GROUND FOR REVIEW.

Whether Hartfields claim that his right to a speedy trial has been violated is

cognizable in a pre-trial habeas application (and, if so, whether that right has in

fact been violated).

ARGUMENT

I. This Court already decided that Mr. Hartfields claim is cognizable inhis application filed pursuant to Article 11.08.

Whether the Court intended to overrule precedent or merely recognized that

Mr. Hartfields case is unique, the Court clearly indicated in its June 12, 2013

opinion that filing an application under Article 11.08 was one of two means by

which Mr. Hartfield could raise his speedy trial claim. See Hartfield , 403 S.W.3dat 240 (Alternatively, Petitioner could have filed an application under Article

11.08).

The court below correctly observed that this Courts precedent regarding

speedy trial claims is grounded in the Supreme Courts opinion in United States v.

MacDonald , 435 U.S. 850 (1978). Exhibit A at 14. But the MacDonald Courts

holding that a denial of a speedy trial motion was not immediately appealable was

based on two grounds that were present in the particular case of Mr. MacDonald:


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that it is typically difficult to determine the degree to which a defendant has been

prejudiced by the delay prior to the trial, and that allowing immediate appeal on

speedy trial issues would frustrate the purposes of the Speedy Trial Clause. UnitedStates v. MacDonald , 435 U.S. at 859-60, 861-62 (1978). These concerns of the

MacDonald Court are present in most, perhaps nearly all, speedy trial claims, but

they are clearly not at issue in Mr. Hartfields case. Moreover, and in any event,

although the content of the federal right is ultimately rooted in federal law, the

manner in which that right can be asserted in state courts is a matter of state law.

In holding in June 2013 that Mr. Hartfield could raise his claim in a pre-trial writ

of habeas corpus, this Court was applying state law.

In any event, it is not difficult to make a pre-trial determination as to the

degree to which Hartfield has been prejudiced by the States delay in bringing him

to trial because Mr. Hatfield was already previously tried. Although it would

require speculation to assess prejudice in the case of a defendant who has not been

tried, ascertaining the prejudice in Mr. Hartfields case would not require any

speculation whatsoever. We know what evidence the State would present at trial,

because the State presented that evidence in its 1977 prosecution of Mr. Hartfield.

And, because of the proceedings in the court below on Hartfields pre-trial

application, we know the current state of that evidence: the weapon that is

believed to have killed Eunice Lowe has been lost by the Clerks office and the car


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that the State alleges Hartfield stole was returned to Ms. Lowes family. In short,

the first concern expressed by the MacDonald Court is irrelevant here.

The MacDonald Courts second concern was that allowing speedy trialclaims to be immediately appealed would threaten precisely the values manifested

in the Speedy Trial Clause. MacDonald , 435 U.S. at 862. Specifically, the Court

feared that delay caused by an interlocutory appeal would prejudice the

prosecutions ability to prove its case, increase the cost to society of maintaining

defendants subject to pre-trial detention, and prolong the period during which

defendants released on bail may commit other crimes. Id. It is, of course,

laughable to suggest that those concerns are even remotely present in Mr.

Hartfields case.

This Court ordered a new trial for Mr. Hartfield in 1980. Any prejudice that

would result to the State because of delay and any costs associated with

incarcerating Mr. Hartfield prior to trial have already long since been incurred.

Further, since the Court issued its June 12 opinion, affirming that Mr. Hartfields

incarceration in the Department of Corrections has been entirely unlawful, Mr.

Hartfield has acted with diligence and without delay in seeking relief on the basis

of his speedy trial claim. This Court ordered a new trial thirty-four years ago.

Measured in that context, the additional time required to fully litigate Mr.

Hartfields speedy trial claim through this Article 11.08 proceeding (even given the


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delay in the trial court) constitutes a tiny fraction of the delay that has occurred

solely as a result of the States wrongful detention of Mr. Hartfield.

Moreover, any delay in the prosecution of Hartfield, any fault for anyincreased difficulty to the State prosecuting its case, and any costs associated with

keeping Mr. Hartfield incarcerated during the delay, would all result from the

States own wrongful conduct. This Court handed down its opinion ordering a

new trial in 1980. The order became final when the mandate issued on March 4,

1983. For the next thirty years, the State took no action toward carrying out this

dictate. The State was content to allow Mr. Hartfield to remain in prison under no

conviction or sentence and allow taxpayers to foot the bill for that incarceration for

thirty years. Had Mr. Hartfield not initiated these proceedings, the State would

have been content to keep Mr. Hartfield incarcerated indefinitely in spite of this

Courts mandate, in spite of any increasing difficulty in prosecuting him caused by

the delay, and in spite of the costs of incarcerating him.

United States v. MacDonald undergirds this Courts previous rulings that

speedy trial claims are not immediately appealable and therefore not cognizable in

petitions filed pursuant to Article 11.08. Realizing that none of the concerns that

were present in MacDonald have any applicability to Mr. Hartfields case, this

Court, in June 2013, stated unequivocally that a petition filed pursuant to Article

11.08 is one of two means by which Mr. Hartfield could exhaust his claim. The


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statement was certainly not dicta, and it borders on insulting to suggest that this

Court made this observation unthinkingly. On the contrary, the issues of whether

Mr. Hartfields claim has been exhausted and whether attempts to exhaust would be futile were threshold issues in proceedings that were at that time pending in the

federal courts.

This Courts June opinion authoritatively identifies the state law procedural

avenues applicable in Mr. Hartfields case. One of those avenues is a habeas

petition under Article 11.08. This Court has the authority to grant relief and order

Mr. Hartfields immediate release.

II. Mr. Hartfields case is fundamentally different from the other speedytrial cases cited by the court below.

The State and the court below cite several cases in support of the proposition

that a pre-trial habeas application may not be used to assert a violation of the rightto a speedy trial. But every case is fundamentally and meaningfully different from

Mr. Hartfields.

For example, Ex parte Doster , 303 S.W.3d 720 (Tex. Crim. App. 2010),

Exhibit A at 5, 13, 14, 16, 19, did not even involve the same legal issue presented

in Mr. Hartfields case. The central legal issue in Doster was a failure to comply

with the Interstate Agreement on Detainers. Ex parte Doster , 303 S.W.3d 720, 721

(Tex. Crim. App. 2010). Though noting a similarity between this issue and a


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speedy trial claim, this Court expressly stated the speedy disposition of the

charges under the IAD is not an identical right to the constitutional right to a

speedy trial. Id. at 727 (emphasis added). Mr. Hartfields claim is that hisconstitutional right to a speedy trial was violated. The Courts opinion on whether

pre-trial habeas is available to a claim raised under the IAD is not applicable to

Hartfield.

Similarly, the relevant issue in Ex parte Weise , 55 S.W.3d 617 (Tex. Crim.

App. 2001), Exhibit A at 13, 14, 15, 16, 19, has no relevance to Mr. Hartfields

case. The issue in Weise was whether a pretrial writ of habeas corpus may issue

on the ground that a penal statute is being unconstitutionally applied because of the

allegations in the indictment or information. Ex parte Weise , 55 S.W.3d 617, 618

(Tex. Crim. App. 2001). In the course of its discussion, this Court observed that it

had previously held that a speedy trial claim could not be raised through a pre-trial

writ of habeas corpus, but it neither amplified nor applied that holding in Weises

case. Id. at 620. Instead, the Court in Weise simply held that the issue of whether

the illegal dumping statute requires a culpable mental state is not appropriate for

interlocutory appeal; that holding is wholly inapplicable to Hartfield. Id. at 621.

Finally, Ex parte Jones , 449 S.W.2d 59 (Tex. Crim. App. 1970), Exhibit A

at 16, addresses a different procedural vehicle from the one invoked by Mr.

Hartfield. Although the Courts opinion in Jones lacks a great deal of details, it


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seems to address whether a denial of a motion to set aside an indictment filed

pursuant to Article 27.03 can be immediately appealed. See Ex parte Jones , 449

S.W.2d. 59, 60 (Tex. Crim. App. 1970). Mr. Hartfield did not raise his speedy trialclaim in an Article 27.03 motion. Recognizing this procedural vehicle would not

allow for immediate appeal, Mr. Hartfield chose the other procedural vehicle listed

by this Court as being available to him a petition filed pursuant to Article 11.08. 1

Moreover, perhaps because of the extraordinary and unique facts in Mr.

Hartfields case, this Courts June opinion recognized specifically that a motion to

set aside the indictment in Mr. Hartfields case was not an adequate remedy at law

and that a pre-trial writ of habeas corpus was therefore an available vehicle through

which to raise his speedy trial claim. Forcing Hartfield to seek relief by raising his

claim in a pre-trial motion to set aside the indictment would add potentially two

years or more to the already thirty years that he has been wrongfully imprisoned.

A pre-trial motion is simply not an adequate remedy for Mr. Hartfield, and this

Court recognized this very fact in its June 12 opinion.

1 The court below is correct that counsel for Mr. Hartfield filed a motion to set aside theindictment pursuant to Article 27.03 of the Texas Code of Criminal Procedure (I C.R. at 114-16).Counsel filed the motion on the eve of the December 19 hearing (six months after filing theapplication filed pursuant to Article 11.08 and three weeks after the trial court denied the Statesmotion to dismiss (I C.R. at 43)) because the Court had indicated it believed that should it find infavor of Mr. Hartfield, it needed some vehicle by which to dismiss the indictment. Both themotion and counsels testimony at the December 19, 2013 hearing make clear the motion wasfiled solely for this purpose and that the vehicle by which Hartfield raised his speedy trial claimwas the application filed pursuant to Article 11.08 (I C.R. at 114; II R.R. at 1-3).


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Ex parte Lamar , 184 S.W.3d 322 (Tex. App.Fort Worth 2005, pet. refd),

Exhibit A at 17, also differs factually from Mr. Hartfields case in an important

way. Lamar received one year of deferred adjudication in November 2003. Twomonths later, in January 2004, Lamar was arrested on an unrelated matter. Id. at

323. And less than a month after that, on February 2, 2004, the State filed a

motion to adjudicate the original charge (i.e., the one to which Lamar had received

deferred adjudication). A year later, on February 22, 2005, Lamar filed a pre-trial

writ of habeas corpus raising a speedy trial claim. That same day, the trial court

was prepared to set the case for trial. Id. Lamars trial court was ready to proceed

to trial one year after the State filed its motion to adjudicate nowhere near the

thirty years Mr. Hartfield waited.

Every case relied upon or even cited by the court below is so dramatically

unlike Mr. Hartfields case as to be irrelevant and uncontrolling. None of the

applicants in any of the cases cited by the court below waited anywhere near the

thirty years for their trial that Mr. Hartfield has waited for his. As the court below

noted, Hartfields 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. Exhibit A at 20-21. Mr. Hartfields case is extraordinary and

probably unique; and its uniqueness was implicitly acknowledged by this Court


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when it acknowledged the availability of a pre-trial writ of habeas corpus as one of

the two means by which Mr. Hartfield could raise a speedy trial claim.

And finally: This Court already decided the issue when it held, just morethan one year ago, that Mr. Hartfield could raise his speedy trial claim in a pre-trial

writ of habeas corpus. The court below was without authority to ignore or attempt

to overrule that decision. Mr. Hartfield requests that this Court say again what it

already said: that an 11.08 pre-trial writ is an appropriate vehicle to raise this

constitutional claim.

Mr. Hartfield further requests that this Court, as the highest court for matters

of criminal law in this State, finally put an end to this extraordinary injustice; hold

that his right to a speedy trial claim has been denied; and order that he be

immediately released from the unlawful custody that has now stretched in to the

middle of its fourth decade.

PRAYER FOR RELIEF

If there is another case like this in the United States, undersigned counsel is

unaware of it. Mr. Hartfield has spent sixty percent of his entire life and some

three-quarters of his adult life held in unlawful confinement. While the District

Attorneys Office still postures as if it intends to proceed with a trial, the

uncontested fact is that crucial evidence including the murder weapon has been

lost. If subjecting Mr. Hartfield to a new trial after this passage of time and under


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these circumstances does not violate the Sixth Amendments speedy trial

guarantee, that right has no meaning.

WHEREFORE, Mr. Hartfield respectfully prays this Court grantdiscretionary review, once again hold his claim is cognizable in a pre-trial habeas

application, and hold that his Sixth Amendment right to a speedy trial has been

violated.

Respectfully Submitted,

s/ David R. Dow ___________________________

David R. DowUniversity of Houston Law Center

Texas Bar No. 06064900100 Law Center

Houston, Texas 77204-6060Tel. (713) 743-2171Fax (713) 743-2131

s/ Jeffrey R. Newberry __________________________

Jeffrey R. NewberryUniversity of Houston Law Center

Texas Bar No. 24060966100 Law Center

Houston, Texas 77204-6060Tel. (713) 743-6843Fax (713) 743-2131

Counsel for Jerry Hartfield


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CERTIFICATE OF SERVICE

I certify that on the 15th day of August 2014, a true and correct copy of theabove legal document was delivered to the following:

The Honorable Steven ReisCriminal District Attorney1700 7th Street, Room 325Bay City, Texas 77414-5094Tel. (979) 244-7657Fax (979) 245-9409Email [email protected]

The State Prosecuting Attorney

209 W. 14th StreetAustin, Texas 78701Email [email protected]

s/ Jeffrey R. Newberry _________________________Jeffrey R. Newberry

CERTIFICATE OF COMPLIANCE

This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface using MS Word in Times New Roman 14-point font for body text. The petition contains 4,215 words,excluding the parts exempted by Tex. R. App. P. 9.4(i)(1)

s/ Jeffrey R. Newberry _________________________Jeffrey R. Newberry


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APPENDIX

Exhibit A Ex parte Hartfield , Nos. 13-14-00238-CV, 13-14-00239-CV,13-14-00240-CR, 13-14-00344-CR, (Tex. App.Corpus Christi

Aug. 14, 2014, pet. filed Aug. 15, 2014)


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Exhibit A


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COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

NUMBERS 13-14-00238-CV13-14-00239-CV13-14-00240-CR

EX PARTE JERRY HARTFIELD

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

NUMBER 13-14-00344-CR

IN RE JERRY HARTFIELD

On Petition for Writ of Prohibition.

OPINION

Before Justices Rodriguez, Garza, and BenavidesOpinion by Justice Rodriguez


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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 violate d Hartfields 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 Hartfields 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. P ROC . 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 cour t construed Hartfields 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. Appx. 440, 444 (5th Cir.

2012) (per curiam) (outlining the course of Hartfields 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 Hartfields attempts to compel a new trial by filing petitions for writ of mandamus instate and federal courts during this time were unsuccessful.


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after these events[, the issuance of the mandate and the commutation of the sentence,]

occurred? Hartfield II , 498 Fed. Appx. 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 courts judgment dismissing

Hartfields section 2241 application without prejudice. Hartfield v. Stephens (Hartfield

IV ), 536 Fed. Appx. 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 ineach of three trial-court cause numbers, two civil and one criminal. See TEX. CODE CRIM.

P ROC . 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 Hartfields 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 Hartfields petitions for writ of pretrial


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

vacate the portion of the trial courts order denying Hartfields petitions for writ of habeas

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

(Tex. App. Waco 2014, no pet.) (dismissing the appeal because Barnetts 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 Dosters 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 li ft the stay in the trial courts p roceedings.I. BACKGROUND 2

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. Appx. 440,441 45 (5th Cir. 2012) (per curiam), the Fifth Circuits opinion certifying the question of whether the prior judgment of conviction had been effectively vacated to the Texas Court of Criminal Appeals, from Hartfieldv. Thaler (Hartfield III ), 403 S.W.3d 234, 236 38 (Tex. Crim. App. 2013), the opinion by the Texas Court ofCriminal Appeals on the certified question, and from Hartfield v. Stephens (Hartfield IV ), 536 Fed. Appx.455, 456 (5th Cir. 2013), the Fifth Circuits opinion affirming the federal district courts judgment dismissingHartfields section 2241 application without prejudice.


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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 Hartfields sentence from the G overnor. 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 States motion for rehearing,

refusing the States 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 areasonable time to seek commutation of Hartfields sentence from the G overnor. On

March 1, 1983, the court of criminal appeals denied the States 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 Hartfields death sentence to life. The following day,

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

commuting Hartfields 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 m andate 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


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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. P ROC . ANN. art. 11.07. On November 27, Hartfield supplemented his

petition with a speedy-trial claim. The district court f orwarded Hartfields 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 criminalappeals denie d Hartfields 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 courts failure to retry him; an d (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 remainedincarcerated in the Texas Department of Criminal Justice, Institutional Division, from the date the mandateissued until June 28, 2013, when the Matagorda County [S]heriff [D]eputies executed the bench warrant bythe 130th [D]istrict [C]ourt.


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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 Hartfields

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

Hartfields application be dismissed without prejudice, and concluded that Hartfield had

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

judges recommendation s, holding that (1) Hartfield was not in custody pursuant to the

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

having taken the procedurally improper step of directly asking the court of criminalappeals 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 Hartfields 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 Hartfields conviction and sen tence,

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 Circuits


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

On December 19, 2013, the trial court hear d Hartfields 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

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

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

of findings of fact and conclusions of law addressing Hartfields speedy -trial claim and

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

On April 25, 2014, Hartfield appealed the trial courts order denying his pretrial

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

Barker v. Wingo Factor Finding Weighs Against the Degree

Length of the DelayOver 30 years frommandate to instantmotion

State Triggers Barker review

Reason for Delay States Negligence State Not as heavily as badfaith or intentional delay

Defendants assertionof the right to speedytrial

Acquiescence for over23 years; no filingsdirectly in the trial court

Hartfield Heavily

Prejudice to the Accused

Over 30 years pre-trialincarceration;presumed prejudice,extenuated

State Slight


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habeas petitions . Hartfield did not appeal the trial courts 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 Courts ability to determine whether

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

a higher courts 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 P RESENTED

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 States highest court to

pr ovide 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

de nial of Hartfields petition s for a pretrial writ of habeas corpus. In sum, Hartfield claims

6 We consider Hartfields appeals and his petition for writ of prohibition in this consolidated opinion.


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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 Hartfields 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 Hartfields speedy -trial complaint is not

cognizable in a petition for a pretrial writ of habeas corpus. Alternatively, the Statecontends that, should we conclude that Hartfields complaint is cognizable; his Barker -

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

Hartfields claim is even cognizabl e 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 meri ts 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 personis restrained in his liberty. It is an order issued by a court or judge ofcompetent jurisdiction, directed to any one having a person in his custody,or under his restraint, commanding him to produce such person, at a timeand place named in the writ, and show why he is held in custody or underrestraint.

7 Because the facts and issues are the same in each case, we address them in one opinion.


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TEX. CODE CRIM. P ROC . 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 withinthe district, then to the judge of any district whose residence is nearest tothe 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, follow ed 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 constitutionalprotections with respect to double jeopardy and bail. We reasoned thatthese protections would be effectively undermined if these issues were notcognizable. Conversely, we have held that an applicant may not use apretrial writ to assert his or her constitutional rights to a speedy trial,


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challenge a denial of a pretrial motion to suppress, or make a collateralestoppel claim that does not allege a double jeopardy violation. Theseissues 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

defendants Sixth Amendment right to a speedy trial cannot be rais ed 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

appellants 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 thedelay was a result of intentional prosecu torial 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 rightto a speedy trial . . . must be vindicated before trial in order to insure that nononspeedy trial is ever held. Both doctrinally and pragmatically, however,this argument fails. Unlike the protection afforded by the Double JeopardyClause, the Speedy Trial Clause does not, either on its face or according tothe decisions of this Court, enc ompass a right not to be tried which mustbe 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, bydefinition, occurs before trial. Proceeding with the trial does not cause orcompound the deprivation already suffered.

MacDonald , 435 U.S. at 860 61.

Instead, the remedy [for an alleged violation of ones 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


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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 e stablish 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 ReviewWe 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 Ha rtfields non-cognizable speedy-trial claim. So,

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

novo. See id .

C. Discussion

1. Motion to Dismiss the Indictment


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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 intermed iate 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. P ROC . 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, Hartfields post- conviction appeal of the trial courts 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 e ntertain Hartfields 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


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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 rehg).

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

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

merely recognized that Mr. Hartfields 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, [Hartfields] interpretation fails. We are persuaded by the

States arguments because, were we to follow Hartfields 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, t he Fifth Circuit cert ified 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 thatreversal. Because some penalty must be assessed for the authority ofcommutation to be exercised and Petitioners death sentence was erasedby our mandate, the governors proclamation of commutation was a nullity.The status of the judgment of conviction is that Petitioner is under noconviction 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 filedit under Code of Criminal Procedure Article 11.07. Because Article 11.07relates only to post-conviction applications for writ of habeas corpus andthere was no judgment of conviction against Petitioner, this was not theproper procedure, and we denied his application. He also filed anapplication for leave to file a petition for mandamus asking us to compel anew trial. This too was the improper procedure because our reversal of hisconviction left him in the same position as if he had never had a trial. If hismotion to set aside the indictment for failure to provide a speedy trial wassustained, then Petitioner would be discharged under Article 28.061 of theTexas Code of Criminal Procedure. Alternatively, Petitioner could havefiled an application under Article 11.08. Therefore, the United StatesDistrict Court for the Eastern District is correct that Petitioner has notexhausted state remedies. Because our denial of Petitioner's applicationsfor writs of habeas corpus and mandamus were based on his failure tofollow the proper procedure, it is not a forgone conclusion that Petitioner'sstate 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 o f the applicant). Perhaps in an effort to ensure that theFifth Circuit did not waive the federal exhaustion requirement and address Hartfields

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. P ROC . 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 Hartfields Claim an Exception to the General Rule ?

Hartfield also asserts that his claim is cognizable in a pretrial writ of habeas corpusbecause 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 defendants 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 Hartfields 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 t he 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


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

uniqueness and fundamental differences that underlie Hartfields 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 Hartfields 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), Hartfields 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 t he trial court erred in determining the merits of

Hartfields spee dy-trial claim in this pretrial habeas proceeding.

Having concluded that Hartfields speedy -trial claim is not cognizable in such an

article 11.08 pretrial habeas petition , we do not reach Hartfields contentions regarding

the Barker factors. See TEX. R. APP . P. 47.1. We overrule Hartfields sole issue.

IV. CONCLUSION

Accordingly, we vacate the portion of the trial courts order that denied Hartfields

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


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E-0325, and 13-0334, and we dismiss Hartfields 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 Hartfields 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. RODRIGUEZJustice

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

Delivered and filed the 14thday of August, 2014.

hartfield 1108 cca pdr filed.20140815

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