No. 05-10-00526-CR
Opinion Filed August 19, 2010. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the County Criminal Court No. 6 Dallas County, Texas, Trial Court Cause No. MC10-A3476-G.
Before Justices BRIDGES, FITZGERALD, and FILLMORE.
Opinion By Justice BRIDGES.
Bobby Collard appeals the trial court's order denying his application for pretrial writ of habeas corpus. In three issues, appellant contends the trial court erred in denying his application because the trial court has no subject matter or personal jurisdiction over his criminal case and Texas Code of Criminal Procedure article 25.04 is unconstitutional. We affirm.
BACKGROUND
Appellant is charged with prostitution. Appellant filed a special appearance contending the trial court lacked jurisdiction over the case. When the trial court concluded it had jurisdiction, appellant appealed the trial court's oral ruling. This Court dismissed the appeal on the ground there was no written order and the trial court's ruling is not challengeable by interlocutory appeal. See Collard v. State, No. 05-09-01120-CR, 2009 WL 3740805 (Tex. App.-Dallas November 10, 2009, pet. ref'd.) (not designated for publication), cert. denied, 130 S.Ct. 2378 (2010). Appellant filed petitions for review with the court of criminal appeals and the Texas Supreme Court which were denied. The United States Supreme Court denied his petition for writ of certiorari. Appellant then filed his application for habeas corpus, which the trial court denied. STANDARD OF REVIEW
We review for abuse of discretion the trial court's decision to deny habeas corpus relief. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). Appellant bears the burden to prove his entitlement to the relief he seeks by a preponderance of the evidence. Id. We review the evidence presented in the light most favorable to the trial court's ruling. Id. In conducting our review, we afford almost total deference to the trial court's determination of the historical facts the record supports, especially when the fact findings require an evaluation of credibility and demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006). SUBJECT MATTER JURISDICTION
In his first point of error, appellant contends the trial court erred in denying his application for writ of habeas corpus because there is no subject matter jurisdiction to try him in the trial court for what he characterizes as a "civil non-case." Appellant asserts he did not engage in any sexual conduct and, therefore, the State must prove an actionable offer, agreement, or solicitation to convict him of prostitution. See Tex. Penal Code Ann. § 43.02(a) (Vernon Supp. 2009) (setting forth the elements of the offense of prostitution). Appellant contends the State cannot prove an offer, agreement, or solicitation in this case absent evidence that he "animated the federal capacity" and agreed in writing to a "choice of law" of "this state." Thus, appellant contends the State is unable to establish the necessary "commercial nexus" to show he committed the offense of prostitution. Appellant contends that because the State will be unable to establish elements of the offense, it has no grievance and thus no standing to bring the charge. Without a showing of the State's standing, appellant concludes, the trial court lacks subject matter jurisdiction over the case. A pretrial writ of habeas corpus is an extraordinary remedy reserved for situations in which protecting the applicant's substantive rights or conserving judicial resources necessitates interlocutory review. Ex parte Weise, 55 S.W.3d 617, 619-20 (Tex. Crim. App. 2001). The writ is not available when there is an adequate remedy by appeal. Id. at 619. The issue appellant raises challenges the sufficiency of the State's evidence to support the information. Whether the State is able to prove appellant made an offer, agreement, or solicitation are matters to be resolved at trial, not through pretrial habeas corpus. See Ex parte Smith, 178 S.W.3d 797, 801-02 (Tex. Crim. App. 2005) (per curiam) (pretrial writ of habeas corpus not permitted to test sufficiency of information). Moreover, even if appellant could raise such matters in a pretrial writ, the record shows the trial court has subject matter jurisdiction over his case. A trial court's subject matter jurisdiction is established by a statutory grant of authority to the trial court coupled with a charging information invoking that authority over a particular case. See Trejo v. State, 280 S.W.3d 258, 260 (Tex. Crim. App. 2009). The trial court has subject matter jurisdiction over misdemeanor prostitution offenses. See Tex. Code Crim. Proc. Ann. art. 4.07 (Vernon 2005) (establishing jurisdiction of county courts over all misdemeanor offenses not committed to the justice court's exclusive original jurisdiction and when the fine to be imposed exceeds five hundred dollars). See also Tex. Penal Code Ann. § 43.02(c) (establishing that a first prostitution offense is a Class B misdemeanor). The trial court's subject matter jurisdiction was invoked by the filing of an information charging appellant with offering and agreeing to engage in sexual contact with the complainant for a fee in Dallas County. The actions taken by the State in appellant's case were sufficient to invoke the trial court's subject matter jurisdiction. See Trejo, 280 S.W.3d at 260. Contrary to appellant's belief, Texas law does not condition the trial court's subject matter jurisdiction on appellant's express acceptance of Texas law as governing his behavior. Thus, whether he "animated the federal capacity" or consented in writing to be bound by Texas law is irrelevant. In his reply brief, appellant argues that the Texas Supreme Court's denial of his petition for discretionary review in cause no. 05-09-01120-CR somehow constituted an endorsement of his view that the prostitution case against him is a civil proceeding and, according to appellant, actually reversed this Court's judgment dismissing his appeal. The supreme court's order on appellant's petition states in its entirety: "Petitioner's petition for review, filed herein in the above numbered and styled case, having been duly considered, is ordered, and hereby is, denied." We do not view the supreme court's order as endorsing appellant's unorthodox view of the law. The Texas Supreme Court does not have jurisdiction to review criminal matters. See Dearing v. Wright, 653 S.W.2d 288, 289 (Tex. 1983) (interpreting the jurisdiction granted to the supreme court under Article V of the Texas Constitution). We overrule appellant's first point of error. PERSONAL JURISDICTION
In his second point of error, appellant contends the State's failure to give him timely notice of the charge against him deprives the trial court of personal jurisdiction over the prostitution case. Relying on an analogy to the notice required in municipal court cases, appellant alleges the State should have been required to serve him with a copy of the information no later than one day before either his arraignment or a hearing on any motion. Appellant contends the State did not provide him with this required service of process and, therefore, the prostitution case amounts to only a civil "non-case." In a misdemeanor case, the law does not require the State to serve the defendant with a copy of the charging instrument before trial. See Tex. Code Crim. Proc. Ann. art. 25.04 (Vernon 2009). Moreover, the record of the hearing the trial court conducted on appellant's writ application shows appellant has already received a copy of the information and everything else in the State's file. The charging instrument in the prostitution case contains all the necessary elements to invoke the trial court's jurisdiction over appellant's case. See Tex. Code Crim. Proc. Ann. art. 21.21 (Vernon 2009) (specifying requirements for an information). Thus, we conclude the trial court acquired personal jurisdiction over appellant. We overrule appellant's second point of error. DUE PROCESS CHALLENGE TO ARTICLE 25.04
In his third point of error, appellant contends code of criminal procedure article 25.04 violates his federal due process rights. See U. S. Const. amend. XIV. Article 25.04 states: "In misdemeanors, it shall not be necessary before trial to furnish the accused with a copy of the indictment or information; but he or his counsel may demand a copy, which shall be given as early as possible." See Tex. Code Crim. Proc. Ann. art. 25.04. Appellant presents scant argument in support of his position, mainly expressing his incredulity that the State would not bear the burden of providing advance notice of the charges against him and suggesting that the statute "facially defies and offends Due Process" by relieving the State "of its duty to provide meaningful Notice at a meaningful time in a meaningful manner . . ." As authority for his argument, appellant recites the wording of article 25.04, refers the Court, without comment, to "Point 2," and contends that criminal cases require notice, providing a citation, " Cf. Smith." The State responds appellant may not bring his due process complaint as part of a pretrial writ application because appellant's point presents a forbidden "as-applied" constitutional challenge to the statute. See Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010). The State further responds that because appellant has received actual notice of the charge against him, his third issue is moot. We agree with both of the State's responses. "Pretrial habeas can be used to bring a facial challenge to the constitutionality of the statute that defines the offense but may not be used to advance an `as applied' challenge." Id. at 79. Although appellant couches his argument as a facial challenge to article 25.04, his argument to the trial court was, essentially, that he did not feel the particular notice given to him meets due process standards because it fails to comport with the service of process required in civil proceedings. Such an argument should not be addressed in a pretrial habeas proceeding. See id. Moreover, even if we were to view appellant's point as raising a true facial challenge to article 25.04, appellant cites no authority and offers no convincing argument that the statute deprives a defendant of notice or violates due process protections in any manner. In Smith v. O'Grady, the United States Supreme Court held that the petitioner was entitled to a hearing on his application for writ of habeas corpus where he alleged he had been convicted and sentenced to twenty years in prison after being tricked into entering a guilty plea without benefit of counsel or real notice of the charges against him. See Smith v. O'Grady, 312 U.S. 329, 334 (1941). The record before us reflects appellant received a hearing on his application for writ of habeas corpus. The record further reflects appellant chose to represent himself and received a copy of the State's file, which the trial court indicated contained a copy of the information. From his argument before the trial court, it appears appellant's concern is not that he has not received notice, but rather that he was not formally served with a copy of the information. Nothing in Smith indicates that such service of process is required to satisfy federal due process requirements. Thus, we cannot agree with appellant that Smith supports his view he has been denied due process of law. Finally, we note appellant has in fact received a copy of the information and sufficient notice of the charges for him to file his "special appearance" and his application for pretrial writ of habeas corpus. Thus, his complaint about inadequate notice has been rendered moot. See Ex parte Guerrero, 99 S.W.3d 852, 853 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (per curiam) (when premises of habeas application are destroyed by subsequent developments, legal issues raised therein are moot). We overrule appellant's third point of error. We affirm the trial court's order.