Opinion
03-23-00708-CR 03-23-00709-CR03-23-00710-CR 03-23-00711-CR 03-23-00712-CR03-23-00713-CR 03-23-00714-CR 03-23-00715-CR03-23-00716-CR 03-23-00718-CR 03-23-00719-CR03-23-00720-CR 03-23-00721-CR 03-23-00722-CR03-23-00723-CR
07-10-2024
Michael Kleinman, Appellant v. The State of Texas, Appellee AusPro Enterprises, L.P., Appellant v. The State of Texas, Appellee
FROM COUNTY COURT AT LAW NO. 5 OF WILLIAMSON COUNTY NOS. 23-00734-5; 23-00735-5; 23-00740-5; 23-00742-5; 23-00747-5; 23-00752-5; 23-00753-5; 23-00756-5; & 23-00761-5 THE HONORABLE WILL WARD, JUDGE PRESIDING
FROM COUNTY COURT AT LAW NO. 5 OF WILLIAMSON COUNTY NOS. 23-00675-5; 23-00677-5; 23-00684-5; 23-00688-5; 23-00693-5; & 23-00696-5 THE HONORABLE WILL WARD, JUDGE PRESIDING
Before Justices Baker, Triana, and Kelly
OPINION
Thomas J. Baker, Justice
Michael Kleinman and AusPro Enterprises, L.P., ("AusPro") were charged with multiple counts of violating a City of Cedar Park ("City"), Texas zoning ordinance prohibiting the operation of a head shop. Kleinman and AusPro pleaded not guilty to the charges, and the municipal court found them guilty. Kleinman and AusPro appealed the municipal court's judgment to the county court at law ("trial court") for a trial de novo. Following their appeal being initiated, Kleinman and AusPro filed a pretrial application for writ of habeas corpus challenging the constitutionality of the City's ordinance on multiple grounds. After holding a hearing, the trial court denied the writ application. In one issue, Kleinman and AusPro challenge the trial court's order, asserting only that the City's ordinance is unconstitutionally vague. We will affirm the trial court's order denying their writ application.
BACKGROUND
Kleinman through his limited partnerships, including AusPro, has opened Planet K stores in several cities in Texas. In December 2021, Kleinman opened a new Planet K in the City. After the store opened, two code-compliance officers noticed that the new business was displaying flags and a banner in a manner that was prohibited by a City ordinance and went inside the store to provide a warning regarding the violation. When talking with their director about both the incident and some of the products sold in Planet K, the code compliance officers learned that Planet K might be in violation of the City's "headshop" ordinance prohibiting the sale of drug paraphernalia.
Following their discussion with their director, the code-compliance officers returned to Planet K, verified that there were "bongs" and "water pipes" being sold at the store, and informed either Kleinman or an employee that some of the items in the store qualify as drug paraphernalia. The code-compliance officers also provided a written notice of violation stating that the owners of Planet K had two weeks to come into compliance with the ordinance prohibiting the sale of paraphernalia before another inspection and warning that failure to come into compliance before the next inspection could result in citations and that each day of noncompliance qualifies as a separate violation. See City of Cedar Park Tex. Code of Ordinances § 1.01.009. The code compliance officers returned on the reinspection date and then on additional days over the next three months, noticed that the allegedly noncompliant products were still being sold, and filled out affidavits in support of the issuance of citations for zoning violations. In total, fifteen citations were issued with nine being issued against Kleinman and six being issued against AusPro. Specifically, the citations alleged that Kleinman and AusPro violated the City's Code of Ordinances by engaging in the following conduct:
knowingly, intentionally, and recklessly us[ing] land, building, structures, or appurtenances located within the City, in violation of the zoning regulations prescribed for the zoning district in which such land, building, structure, or appurtenance is located as provided in Chapter 11 of the Cedar Park Code of Ordinances, to wit: operating a head shop on property zoned Local Business, in violation of Cedar Park Code of Ordinances, Section 11.01.032 and Section 11.02.064.See id. §§ 11.01.032, .02.064; see also id. § 11.09.001 (defining "head shop"). Those violations are Class C misdemeanors, which are punishable by fines only. See id. § 11.08.003 (providing that zoning violation is Class C misdemeanor); see also Tex. Penal Code § 12.22 (setting out punishment for Class C misdemeanor).
On January 7, 2023, Kleinman and AusPro pleaded not guilty to the multiple complaints in municipal court. The municipal court then found Kleinman and AusPro guilty of the fifteen violations, imposed $1,000 fines for each violation, and assessed costs for each violation. Kleinman and AusPro elected to appeal the municipal court's judgments to the trial court for a trial de novo. See Tex. Code Crim. Proc. art. 45.042. As part of that process, Kleinman and AusPro filed appeal bonds for each conviction for double the amount of the total fine and costs assessed in each case, and the municipal court approved the bonds. See id. art. 45.0425.
Following the filing of their appeals, Kleinman and AusPro filed a pretrial application for writ of habeas corpus seeking to challenge the ordinance forming the basis for the citations. Specifically, they argued that the ordinance is unconstitutionally vague on its face and that the prosecution in these cases is unconstitutionally selective and violates their rights to equal protection. During a hearing on the writ application, Kleinman's attorney and one of the code-compliance officers testified.
After considering the evidence and arguments by the parties, the trial court denied the writ application and later issued findings of fact and conclusions of law supporting its denial of the writ application on the merits. Although it denied the writ application, the trial court did conclude that Kleinman and AusPro were restrained in their liberty.
Kleinman and AusPro appeal the trial court's order denying their application for writ of habeas corpus.
DISCUSSION
On appeal, Kleinman and AusPro contend that the trial court erred by denying their writ application. In challenging the trial court's ruling, they limit their arguments to their claim that the ordinance is unconstitutionally vague on its face. Specifically, they argue that the ordinance provides no objective criteria or guidance regarding what is and is not prohibited and relies on subjective assessments by City employees who have unfettered discretion to make these assessments. Additionally, Kleinman and AusPro assert that the ordinance is vague because it lacks a culpable mental state. Accordingly, they request that this Court reverse the trial court's denial of their pretrial writ application.
"[P]retrial habeas, followed by an interlocutory appeal, is an 'extraordinary remedy,' and '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)). "When a trial court denies habeas relief, the applicant has the right to appeal." Ex parte Dominguez Ortiz, 668 S.W.3d 126, 131 (Tex. App.-San Antonio 2023, no pet.). When reviewing a trial court's decision on a pretrial application for writ of habeas corpus, we will uphold the ruling absent an abuse of discretion. Ex parte Jarreau, 623 S.W.3d 468, 472 (Tex. App.-San Antonio 2020, pet. ref'd).
"An abuse of discretion does not occur unless the trial court acts 'arbitrarily or unreasonably' or 'without reference to any guiding rules and principles,'" State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)), or unless the trial court's decision "falls outside the zone of reasonable disagreement," Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). Reviewing courts "afford almost total deference to the trial court's determination of historical facts supported by the record, especially when the fact findings are based upon credibility and demeanor." Ex parte Estrada, 573 S.W.3d 884, 891 (Tex. App.-Houston [1st Dist.] 2019, no pet.). That same deference is given "to the trial judge's rulings on applications of law to fact questions if resolving those ultimate questions turns on evaluating credibility and demeanor." Id. However, "[i]f resolving those ultimate questions turns on applying legal standards," appellate courts "review the determination de novo." Id.; see Rivera v. State, 363 S.W.3d 660, 666 (Tex. App.-Houston [1st Dist.] 2011, no pet.). Further, appellate courts uphold the ruling "if it is correct under any theory of law." Ex parte Estrada, 573 S.W.3d at 891.
"The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty," and it "is an order issued by a court or judge of competent jurisdiction, directed to any one having a person in his custody, or under his restraint, commanding him to produce such person, at a time and place named in the writ, and show why he is held in custody or under restraint." Tex. Code Crim. Proc. art. 11.01; see Ex parte Schmidt, 109 S.W.3d 480, 483 (Tex. Crim. App. 2003) (explaining that Texas constitution, Government Code, and Code of Criminal Procedure, read together, give county courts at law power to issue writs of habeas corpus). Article 11.09 directs to whom writ application should apply "[i]f the applicant is accused of committing a misdemeanor offense . . . and has not been convicted of the offense." Tex. Code Crim. Proc. art. 11.09. "The words 'confined', 'imprisoned', 'in custody', 'confinement', 'imprisonment', refer not only to the actual, corporeal and forcible detention of a person, but likewise to any coercive measures by threats, menaces or the fear of injury, whereby one person exercises a control over the person of another, and detains him within certain limits." Id. art. 11.21. "By 'restraint' is meant the kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right." Id. art. 11.22. "The writ of habeas corpus is intended to be applicable to all such cases of confinement and restraint, where there is no lawful right in the person exercising the power, or where, though the power in fact exists, it is exercised in a manner or degree not sanctioned by law." Id. art. 11.23.
Consistent with this statutory scheme, the Court of Criminal Appeals has explained that "an applicant must be illegally restrained to be entitled to relief." Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001); see also United States v. Morgan, 346 U.S. 502, 505 n.3 (1954) (noting that writ of habeas corpus is "the essential remedy to safeguard a citizen against imprisonment by State or Nation in violation of his constitutional rights" (emphasis added) (quoting Darr v. Burford, 339 U.S. 200, 203 (1950), overruled on other grounds by Fay v. Noia, 372 U.S. 391 (1963))). In other words, "[b]ecause the function of a writ of habeas corpus is to secure release from an unlawful custody, the relator must show that the contemnor has undergone a restraint of liberty." In re Kuster, 363 S.W.3d 287, 292 (Tex. App - Amarillo 2012, orig. proceeding); see also Johnson v. Avery, 393 U.S. 483, 485 (1969) (noting that "the basic purpose of the writ is to enable those unlawfully incarcerated to obtain their freedom" (emphasis added)).
"Although actual confinement is typically the restraint of liberty at issue, courts have extended the meaning of the term 'restraint of liberty' beyond actual imprisonment." Id. "Concepts of 'confinement' and 'restraint' encompass incarceration, release on bail or bond, release on probation or parole, or any other restraint on 'personal liberty.'" Ex parte Davis, 748 S.W.2d 555, 557 (Tex. App-Houston [1st Dist] 1988, pet. refd); see also Ex parte Zavala, 421 S.W.3d 227, 230 (Tex. App-San Antonio 2013, pet. refd) (explaining that applicant was restrained where applicant was released from confinement on bond pending trial); In re Kuster, 363 S.W.3d at 292 (noting that '"restraint of liberty' includes probation where the terms of the probation include some type of tangible restraint of liberty"). The concept of liberty restraints excludes punishments for offenses "for which the only punishment is a fine or the forfeiture of property." Ex parte Lewis, 219 S.W.3d 335, 351 (Tex. Crim. App. 2007). The writ applicant has the burden of establishing "his entitlement to habeas corpus relief," Ex parte Culver, 932 S.W.2d 207, 212 (Tex. App-El Paso 1996, pet. ref d), and an applicant seeking habeas relief should detail in his application how he is subject to confinement, restraint, or collateral legal consequences, Ex parte Harrington, 310 S.W.3d 452, 458 n.16 (Tex. Crim. App. 2010). Whether an applicant is being restrained within the meaning of the habeas corpus statutes is a threshold question. Ex parte Schmidt, 109 S.W.3d at 481.
The meaning of the restraint has also been extended to collateral consequences resulting from a conviction even though the applicant is no longer confined. Ex parte Davis, 506 S.W.3d 150, 152 (Tex. App-Tyler 2016, no pet.); Ex parte Rinkevich, 222 S.W.3d 900, 902 (Tex. App-Dallas 2007, no pet.); see also State v. Collazo, 264 S.W.3d 121, 126 n.3 (Tex. App- Houston [1st Dist] 2007, pet. ref d) (noting that "'[confinement' may be established in either an article 11.07 or an article 11.09 writ application by showing collateral consequences resulting from the conviction"). However, Kleinman and AusPro appealed their municipal-court convictions for a trial de novo, see Tex. Code Crim. Proc. art. 45.042, and are not "confined" "by the collateral consequences of a final conviction," Ex parte Fulce, 993 S.W.2d 660, 661 n.1 (Tex. Crim. App. 1999). In any event, Kleinman and AusPro have not identified any collateral consequences that they are suffering or will suffer. See Ex parte Sewell, 495 S.W.3d 54, 57 (Tex. App-Houston [14th Dist.] 2016, no pet.) (noting that appellate court had not found any Texas precedent addressing whether collateral consequences exception applied to situation in which applicant has not been convicted and concluding that collateral consequences doctrine did not apply to case in which applicant was not convicted and had not identified adverse collateral consequence that he would suffer if his issues on appeal were not addressed).
In their writ application, Kleinman and AusPro asserted that they are restrained "by virtue of the Class C misdemeanor criminal complaint[s] filed against" them for alleged violations of the zoning ordinance and by "virtue of the appeal bond which was posted so as to seek de novo review in the" trial court. They did not assert that they had been arrested, confined in some other manner, or released from confinement under conditions of a bond. Similarly, during the habeas hearing, they did not present evidence showing that they had been arrested, confined, or released on bond.
The three cases relied on by Kleinman and AusPro in their application as support dealt with circumstances in which appellate courts determined that applicants charged with more serious misdemeanor offenses or felony offenses and released from custody on bond were sufficiently restrained in their liberty to satisfy the requirement to seek pretrial habeas relief. See, e.g., Ex parte Weise, 55 S.W.3d at 619 (noting that applicant's liberty was restrained where "he was charged with illegal dumping," which was Class B misdemeanor as charged, "and released on bond to await trial"); Ex parte Dominguez Ortiz, 668 S.W.3d at 132 (deciding that individual accused of criminal trespass and "released on a personal bond" had his liberty interests sufficiently restrained); Ex parte Zavala, 421 S.W.3d at 230 (concluding that applicant's liberty interests were restrained where he was charged with felony offense of online solicitation of minor and released on bond pending trial).
However, we have been unable to find a controlling case determining that the restraint requirement had been satisfied in circumstances like those present here where an applicant seeks to appeal the denial of a pretrial writ application pertaining to a fine-only Class C misdemeanor for which the applicant was never placed in custody or released from custody on bond. See Ex parte Lewis, 219 S.W.3d at 351 (noting concept of liberty restraint "exclude[s] offenses for which the only punishment is a fine or the forfeiture of property"); City of El Paso v. Alvarez, 931 S.W.2d 370, 379 (Tex. App -El Paso 1996, orig. proceeding) (observing that "the mere filing of a complaint in municipal court, without more, does not confine the defendant or restrain her liberty"), mand. conditionally granted on other grounds sub. nom. Alvarez v. Eighth Ct. of Appeals, 977 S.W.2d 590 (Tex. Crim. App. 1998) (orig. proceeding) (per curiam); see also Tex. Code Crim. Proc. art. 11.65 (explaining that applicant "released on bond under this article remains restrained in his liberty" (emphasis added)); McCann v. State, Nos. 14-97-00563- 00564-CR, 1997 WL 786951, at *2 (Tex. App-Houston [14th Dist] Dec. 23, 1997, no pet.) (op., not designated for publication) (noting that fine imposed for offense in municipal court "does not constitute 'restraint' in order to be entitled to habeas relief).
In fact, federal circuit courts, including the Fifth Circuit, have determined that federal habeas relief is not available for violations with punishments that are fines only. See Bailey v. Hill, 599 F.3d 976, 979 (9th Cir. 2010); Obado v. New Jersey, 328 F.3d 716, 717-18 (3rd Cir. 2003); Barnickel v. U.S., 113 F.3d 704, 706 (7th Cir. 1997); Spring v. Caldwell, 692 F.2d 994, 998 (5th Cir. 1982); Hanson v. Circuit Court, 591 F.2d 404, 407 (7th Cir. 1979). When detailing its reasoning, the Fifth Circuit explained that being subject to a fine does not result in a restraint of liberty in the way that being released on bail, probation, or parole does because "[t]here are no conditions or restraints on . . . liberty." Spring, 692 F.2d at 998; see also In re Kuster, 363 S.W.3d at 292 (explaining that "when a jail sentence is probated without any type of tangible restraint of liberty, a contemnor is not restrained for purposes of habeas corpus relief when she is merely ordered to make payments that the trial court adjudges that she owes or otherwise comply with the trial court's orders").
Because Texas habeas law, like its federal counterpart, requires a restraint on liberty to warrant relief, see Ex parte Weise, 55 S.W.3d at 619, we similarly conclude that pretrial habeas relief is not available to applicants who have been charged with a fine-only offense and are not in custody or have not been released from custody on bond. In reaching this conclusion, we recognize that Kleinman and AusPro filed appeal bonds to perfect their appeals to the trial court, that the appeal bonds state that they may be arrested if they do not comply with the terms of the appeal bond, and that confinement for failure to pay a criminal fine following a guilty verdict is a possible outcome. See In re Henry, 154 S.W.3d 594, 596 n.1 (Tex. 2005) (orig. proceeding) (per curiam); In re Byrom, 316 S.W.3d 787, 792 (Tex. App-Tyler 2010, orig. proceeding [mand. denied]). However, the language regarding the potential for an arrest was required to be included by statute and does not indicate that any type of arrest was currently looming. See Tex. Code Crim. Proc. art. 17.08 (listing required contents of bond).
Moreover, the possible confinement here "does not depend on a number of factors over which [Kleinman and AusPro have] no control. On the contrary, by" later "paying the fine," if any, they "will be able to avoid" any confinement entirely. See Spring, 692 F.2d at 998. Further, the possibility that confinement might be ordered if the fines are not paid following guilty verdicts in the trial court "is an event far too speculative to serve as a basis upon which we can grant habeas corpus relief." See In re Kuster, 363 S.W.3d at 292; see also Tinder v. Paula, 725 F.2d 801, 804 (1st Cir. 1984) (noting that fine is not sufficient restraint to warrant habeas relief, that "the possibility that the court will resort to imprisonment to enforce the fine is considered too remote and speculative to warrant the invocation of federal habeas jurisdiction," and that "persons subject to fines maintain greater 'control' over the threat of imprisonment than do probationers or parolees" and "can avoid the possibility of incarceration simply by paying the fine").
For these reasons, we conclude that Kleinman and AusPro failed to meet their burden of establishing that they were under a restraint sufficient to justify their requested habeas relief and, therefore, also conclude that the trial court did not abuse its discretion by denying their pretrial application for writ of habeas corpus. See Ex parte Gutierrez, 989 S.W.2d 55, 56 (Tex. App -San Antonio 1998, no pet.) (explaining that if appellate court determines that habeas claims are not cognizable, it "must affirm the trial court's denial of habeas corpus relief); see also Ex parte Estrada, 573 S.W.3d at 891 (noting that ruling on writ application will be upheld if "correct under any theory of law"); Ex parte O'Neal, No. 09-15-00229-CR, 2015 WL 5604623, at *5 (Tex. App-Beaumont Sept. 23, 2015, pet. refd) (mem. op., not designated for publication) (concluding that because applicant failed to state cognizable claim by not establishing how he was confined or restrained, trial court did not abuse its discretion by denying writ application).
CONCLUSION
We affirm the trial court's order denying Kleinman and AusPro's pretrial application for writ of habeas corpus.
Affirmed