Opinion
No. 06-20-00085-CR
11-12-2020
EX PARTE PHILIP J. EMERSON, JR.
On Appeal from the 402nd District Court Wood County, Texas
Trial Court No. 2020-062 Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Philip J. Emerson, Jr., appeals the denial of his application for a pretrial writ of habeas corpus. On appeal, Emerson argues, among other things, that the 402nd Judicial District Court of Wood County, Texas (District Court), erred in denying his application because the Justice Court, Precinct No. 2, of Wood County, Texas (JP2 Court), was without jurisdiction over his misdemeanor charge and because he was entitled to an examining trial. Because we find that Emerson's case was properly transferred from the Justice Court, Precinct No. 3, of Wood County (JP3 Court) to the JP2 Court, he was not entitled to an examining trial, and adequate remedies at law exist to resolve Emerson's remaining complaints, we affirm the District Court's denial of Emerson's application for a writ of habeas corpus.
I. Factual and Procedural Background
In 2012, Emerson sued the Holly Lake Ranch Association (Association) in the District Court "because it charged maintenance and garbage fees and expended Association funds to hire security personnel who restricted Emerson's use of the main gate until he paid the Association's fees and acquired a gate card." In re Emerson, No. 06-19-00067-CV, 2019 WL 3756231, at *1 (Tex. App.—Texarkana Aug. 9, 2019, orig. proceeding) (mem. op.). In 2014, the District Court entered a take-nothing judgment against Emerson, which was not timely appealed. Id.
In this case, and in companion cause numbers 06-20-00086-CR, 06-20-00087-CR, and 06-20-00088-CR, Emerson was charged with criminal mischief after four separate probable cause affidavits, executed by different officers within the Wood County Sheriff's Department, recited facts showing that Emerson had driven his truck through the Association's gate, damaging the gate arm. Each probable cause affidavit stated that the peace officer had spoken with the Association's security officers who said that Emerson had run through their gate and that there was surveillance footage of the incident showing that Emerson's vehicle had driven through it.
The offense occurred on March 14, 2019, in this case, on March 16 in cause number 06-20-00086-CR, on March 19 in cause number 06-20-00087-CR, and on March 27 in cause number 06-20-00088-CR.
After reviewing those probable cause affidavits, Jerry E. Parker, Justice of the Peace for the JP3 Court, signed warrants for Emerson's arrest on April 15, 2019. "On May 24, 2019, Emerson filed a motion demanding recusal of Judge Jerry E. Parker," who, on June 27, transferred each case to Judge Janae Holland, Justice of the Peace of the JP2 Court. Each order of transfer recited that Judge Parker recused "for the reason that he is interested in the outcome of the case." Emerson's cases received new cause numbers in the JP2 Court, and those cases remain pending.
Emerson filed a pro se application for a writ of habeas corpus in the District Court. Emerson argued, among other things, that the transfer order failed to confer jurisdiction on the JP2 Court because it did not state the "time and place, when and where, the parties and witness shall appear," as required by Article 30.08 of the Texas Code of Criminal Procedure, that Parker was not neutral when he signed the warrants, and that he was entitled to an examining trial. TEX. CODE CRIM. PROC. ANN. art. 30.08. Emerson also raised the merits of civil complaints stemming from the 2012 litigation and claimed that he was entitled to run through the gate because it was allegedly on his property. After a hearing, the District Court denied Emerson's petition.
Emerson provided no proof that he had succeeded on the merits of his civil claim by quieting title.
On appeal, Emerson argues that the transfer order did not confer jurisdiction on the JP2 Court and that he was entitled to an examining trial, and he raises other matters not suited for our review at this juncture.
II. Standard of Review
"The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty." TEX. CODE CRIM. PROC. ANN. art. 11.01. We review a trial court's grant or denial of relief under an application for a writ of habeas corpus for an abuse of discretion. In re Shaw, 204 S.W.3d 9, 14 (Tex. App.—Texarkana 2006, pet. ref'd).
"Pretrial habeas, followed by an interlocutory appeal, is an extraordinary remedy." Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016). It will issue only if the applicant has no adequate remedy at law. Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001); Shaw, 204 S.W.3d at 14. Thus, "appellate courts have been careful to ensure that a pretrial writ 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) (quoting 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.
"Neither a trial court nor an appellate court should entertain an application for writ of habeas corpus when there is an adequate remedy by appeal." Weise, 55 S.W.3d at 619 ("applicant may not use a pretrial writ to . . . challenge the denial of a motion to suppress"); see also Ex parte Smith, 178 S.W.3d 797, 801 n.13 (Tex. Crim. App. 2005) ("[A] writ of habeas corpus cannot be used as a substitute for an appeal or to serve the office of an appeal."); Ex parte Brooks, 97 S.W.3d 639, 640 (Tex. App.—Waco 2002, no pet.) (denying review of pretrial application for writ of habeas corpus which alleged accused's arrest was based solely on racial profiling without probable cause or reasonable suspicion because accused could raise those issues in a suppression motion). Moreover, "pre-trial habeas will not lie to address claims that would benefit from a record development of the facts." Diruzzo v. State, 581 S.W.3d 788, 797 (Tex. Crim. App. 2019).
III. Analysis
A. The JP2 Court Had Jurisdiction
Emerson bases his claim that the JP2 Court did not have jurisdiction on Chapter 30 of the Texas Code of Criminal Procedure. He believes that the transfer occurred under Article 30.07 because it provides, "If a justice of the peace be disqualified from sitting in any criminal action pending before him, he shall transfer the same to any justice of the peace in the county who is not disqualified to try the case." TEX. CODE CRIM. PROC. ANN. art. 30.07. Emerson's specific complaint is that the transfer order here did not comply with Article 30.08, which requires, "[in] cases provided for in the preceding Article," that the order state "the time and place, when and where, the parties and witnesses shall appear before such court." TEX. CODE CRIM. PROC. ANN. art. 30.08.
Emerson's belief that Chapter 30 supplied the grounds for transfer is mistaken because, under Chapter 30, events constituting disqualification are narrow, as shown by the following language of Article 30.01:
No judge or justice of the peace shall sit in any case where he may be the party injured, or where he has been of counsel for the State or the accused, or where the accused or the party injured may be connected with him by consanguinity or affinity within the third degree, as determined under Chapter 573, Government Code.TEX. CODE CRIM. PROC. ANN. art. 30.01. Nothing shows that Judge Parker was disqualified in this case for the reasons stated in Article 30.01.
Instead, the transfer order specified that the reason for transfer was because Judge Parker was interested in the outcome of the case. That reason fits squarely with the requirement of Rule 18b(a)(2) of the Texas Rules of Civil Procedure that "[a] judge must disqualify in any proceeding in which . . . the judge knows that, individually or as a fiduciary, the judge has an interest in the subject matter or controversy." TEX. R. CIV. P. 18b(a)(2). This Rule of Civil Procedure applies to criminal proceedings. See Gaal v. State, 332 S.W.3d 448, 452 (Tex. Crim. App. 2011); Freeman v. State, 125 S.W.3d 505, 513 (Tex. Crim. App. 2003) (citing Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993)).
Judge Parker's transfer order was made after disqualification under Rule 18b(a) of the Texas Rules of Civil Procedure, not Chapter 30 of the Texas Code of Criminal Procedure, and there is no authority stating that transfer orders under Rule 18b(a) do not confer jurisdiction on a transferee court unless it states the time and place, when and where, the parties and witnesses shall appear before a transferring court. As a result, we conclude that the JP2 Court had jurisdiction due to the transfer order. Emerson's first point of error is overruled.
B. Emerson Was Not Entitled to An Examining Trial
Next, Emerson argues that he was entitled to an examining trial. We disagree. Article 15.17 of the Texas Code of Criminal Procedure directs magistrates to inform an accused person of his right to an examining trial. TEX. CODE CRIM. PROC. ANN. art. 15.17. Article 15.17 is not expressly limited to persons accused of felonies. Id. However, the Texas Court of Criminal Appeals views Article 16.01, which governs examining trials, as constituting and defining an accused's right to an examining trial and has held that Article 16.01 does not guarantee a misdemeanor defendant a right to an examining trial. Clark v. State, 417 S.W.2d 402, 403 (Tex. Crim. App. 1967); see TEX. CODE CRIM. PROC. ANN. art. 16.01 (examining trial). Because Emerson was arrested for and charged with a misdemeanor, the District Court did not abuse its discretion in finding that he was not entitled to an examining trial. As a result, we overrule his second complaint.
C. Adequate Remedies at Law Exist to Resolve Emerson's Other Complaints
Next, Emerson's brief contains a slew of other complaints that are inappropriate for resolution at this stage of the proceedings and require further factual development. For example, Emerson argues that his actions were not criminal because the gate was allegedly on his property. Because title has not been quieted in his name and he had raised and lost similar issues in other civil cases, further factual development would be required for Emerson to succeed on this claim.
Also, Emerson does not argue that the officer's affidavits lacked facts supporting a finding of probable cause or that he was arrested without a warrant, which are issues that can be resolved via a suppression motion. Instead, he argues that Judge Parker was disqualified at the time that he signed the warrants. It is questionable whether such a claim would have any bearing on the question of probable cause. In any case, such a claim would require additional factual development of proof that the judge knew he had an interest in the case at the time the warrants were signed or whether he was made aware of such interest by Emerson's recusal motion filed after they were signed.
Because Emerson can raise these and other miscellaneous issues included in his briefing in the JP2 Court where his case is pending at a later juncture, we will not entertain them in this appeal from the denial of a pretrial writ of habeas corpus. As a result, we overrule Emerson's remaining complaints.
We find no abuse of discretion in the District Court's denial of Emerson's application.
IV. Conclusion
We affirm the District Court's denial of Emerson's application for a pretrial writ of habeas corpus.
Ralph K. Burgess
Justice Date Submitted: October 19, 2020
Date Decided: November 12, 2020 Do Not Publish