Opinion
NO. 03-20-00142-CV
08-12-2020
In re Emmanuel Poulis
ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY
MEMORANDUM OPINION
Relator was indicted for multiple child sexual abuse offenses—three counts of sexual assault of a child and three counts of sexual performance by a child. See Tex. Penal Code §§ 22.011, 43.25. He filed a pretrial application for writ of habeas corpus challenging the constitutionality of article 38.37(b) of the Code of Criminal Procedure, which allows the admission of evidence in a trial for certain enumerated sexual crimes against children that the defendant has committed extraneous child sexual abuse offenses. See Tex. Code Crim. Proc. arts. 11.01, 11.08; see id. art. 38.37(b). The trial court entered an order dismissing the application, and relator appealed that order.
During the pendency of that appeal, the underlying case proceeded to trial. Relator was tried by a jury, found guilty, and sentenced to prison on the three sexual-assault counts. Relator has filed a petition for writ of mandamus asking us to vacate the trial court's judgments of conviction and issue a writ of mandamus ordering the trial court to release relator. Relator contends that the trial court lacked jurisdiction to have the trial under Texas Rule of Appellate Procedure 25.2(g), which suspends further proceedings in the trial court during the pendency of an appeal, because the appeal of the order dismissing his pretrial habeas was pending. See Tex. R. App. P. 25.2(g).
Subsequently, the three counts of sexual performance of a child were dismissed on the State's motion based on relator's convictions for the three sexual-assault counts.
However, a pretrial habeas proceeding is a separate criminal action independent of the underlying criminal prosecution proceeding. See Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645, 650 (Tex. Crim. App. 2005) (explaining that "[a] habeas corpus proceeding has always been regarded as separate from the criminal prosecution" and "considered a separate 'criminal action."); Enard v. State, 513 S.W.3d 206, 211 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) (observing that "[a] pre-trial habeas-corpus action is a separate proceeding from the case in which the defendant is being prosecuted for the criminal offense"); Kelson v. State, 167 S.W.3d 587, 593 (Tex. App.—Beaumont 2005, no pet.) ("Habeas corpus proceedings are separate and distinct proceedings independent of the cause instituted by the presentation of an indictment or other forms of the State's pleadings."). Thus, because the pretrial habeas proceeding is a separate criminal action, the trial proceedings in the prosecution of the indicted offenses were not suspended by the pending appeal in the habeas proceeding. See Ex parte Hawthorne, No. 11-16-00337-CR, 2018 WL 6928985, at *3 (Tex. App.—Eastland Dec. 31, 2018, pet. ref'd) (mem. op., not designated for publication) (concluding that "defendant is not entitled to a stay of further proceedings in the trial court while an appeal from the denial of the pretrial writ of habeas corpus is pending in the appellate court"); see also Peters v. State, 651 S.W.2d 31 (Tex. App.—Dallas 1983, pet. dism'd as improvidently granted) (interpreting article 44.11 of the Code of Criminal Procedure, forerunner of Rule 25.2(g), and concluding that pendency of pretrial habeas corpus appeal did not affect trial court's authority to proceed with adjudication of guilt); see, e.g., Wheeler v. Lykos, No. 01-89-00548-CV, 1989 WL 69378, at *1 (Tex. App.—Houston [1st Dist.] June 16, 1989, original proceeding) (per curiam) (denying mandamus relief because relator's appeal from denial of pretrial application for writ of habeas corpus did not arrest further trial court proceedings in case in which relator was indicted for drug possession prosecution).
The petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a).
/s/_________
Melissa Goodwin, Justice Before Justices Goodwin, Kelly, and Smith Filed: August 12, 2020