State v. Jan Heilbut ( 2020 )

Opinion issued September 3, 2020
In The
Court of Appeals
For The
First District of Texas
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NO. 01-19-00509-CR
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EX PARTE JAN HEILBUT, Appellant
On Appeal from the County Criminal Court at Law No. 6
Harris County, Texas
Trial Court Case No. 2254068
MEMORANDUM OPINION
The State appeals the trial court’s order that granted habeas relief and
ordered a new trial. In three issues, the State argues that the trial court erred in
granting habeas relief because (1) the applicant failed to plead sufficient facts to
invoke the trial court’s habeas jurisdiction and (2) the applicant’s claims of judicial
bias and violations of article 38.05 were not cognizable on writ of habeas corpus
and should have been raised on direct appeal.
We reverse.
Background
In 2015, the State charged Heilbut by information with interfering with a
police service animal. A jury found Heilbut guilty of the offense, and the trial
court assessed punishment at confinement for three days and a $3,000 fine.
Heilbut appealed to this Court, raising two points of error: (1) the trial court erred
in denying Heilbut’s motion to quash and (2) the trial court erred in admitting
photographs. This Court affirmed the conviction on October 12, 2017. See
Heilbut v. State, No. 01-16-00652-CR, 2017 WL 4545878, at *4 (Tex. App.—
Houston [1st Dist.] Oct. 12, 2017, pet. ref’d) (mem. op., not designated for
publication). We issued our mandate on February 16, 2018.
On February 19, 2019, Heilbut filed an application for writ of habeas corpus
in the trial court,1 arguing in two issues that: (1) his rights to a fair trial were
abrogated by the conduct of the trial court and (2) the trial court’s comments
during trial violated article 38.05 of the Texas Code of Criminal Procedure.2 The
1
See TEX. CODE CRIM. PROC. art. 11.09.
2
Article 38.05 provides, “In ruling upon the admissibility of evidence, the judge
shall not discuss or comment upon the weight of the same or its bearing in the
case, but shall simply decide whether or not it is admissible; nor shall he, at any
2
State answered, arguing that the trial court lacked jurisdiction because Heilbut was
not actually confined and that his claim of right to fair trial and alleged violations
of article 38.05 should have been raised on direct appeal. Even if Heilbut’s claims
were considered, the State argued that they were meritless.
Heilbut responded to the State’s answer, admitting that he was not confined
but nevertheless was restrained because his “conviction constitutes a restraint and
he has absolute right to challenge the validity of that conviction.”
On June 11, 2019, the trial court granted habeas relief and ordered that the
August 9, 2016 judgment be vacated and that a new trial be granted. The State
filed its notice of appeal pursuant to article 44.01 on June 25, 2019.3
Collateral Consequences
In its first issue, the State argues that Heilbut failed to plead sufficient facts
to invoke the trial court’s jurisdiction. Specifically, the State argues that Heilbut
neither alleged, nor proved that he suffered collateral legal consequences as a result
of his misdemeanor conviction.
stage of the proceeding previous to the return of the verdict, make any remark
calculated to convey to the jury his opinion of the case.” See TEX. CODE CRIM.
PROC. art. 38.05.
3
Article 44.01 provides that the State may appeal an order that “dismisses an
indictment, information, or complaint or any portion of an indictment,
information, or complaint.” See TEX. CODE CRIM. PROC. art. 44.01(a)(1).
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A. Standard of Review
An applicant seeking misdemeanor post-conviction habeas corpus relief
must establish entitlement to such relief by a preponderance of the evidence. Ex
parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002); Ex parte Pinnock,
No. 14-17-00591-CR, 2018 WL 2106615, at *1 (Tex. App.—Houston [14th Dist.]
May 8, 2018, no pet.) (mem. op., not designated for publication). Appellate courts
review a trial court’s ruling on an application for writ of habeas corpus under an
abuse-of-discretion standard of review. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.
Crim. App. 2006). “A trial court abuses its discretion when its ruling is arbitrary
or unreasonable.” Gaytan v. State, 331 S.W.3d 218, 223 (Tex. App.—Austin
2011, pet. ref’d). But a trial court does not abuse its discretion if its ruling lies
“within the zone of reasonable disagreement.” Bigon v. State, 252 S.W.3d 360,
367 (Tex. Crim. App. 2008); see Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim.
App. 2002). Under that standard, appellate courts “review the record evidence in
the light most favorable to the trial court’s ruling.” Kniatt, 206 S.W.3d at 664.
“The trial court sits as the fact finder in a habeas proceeding brought under
article 11.09.” Ex parte Pinnock, 2018 WL 2106615, at *2. “In such cases, the
habeas court is the sole judge of witness credibility, and we will not disturb its
ruling absent a clear abuse of discretion.” Id. “The habeas court may accept or
reject any or all of any witness’s testimony, even if that testimony is
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uncontroverted.” Id. Similarly, a trial court is “free to believe” or “free to
disbelieve” an affidavit attached to a habeas application. See Ex parte Scott, 541
S.W.3d 104, 117 n.13 (Tex. Crim. App. 2017). Appellate courts “imply all
findings of fact that are necessary to support the habeas court’s ruling” and “defer
to the habeas court’s implied . . . findings of fact that are supported by the record.”
Ex parte Pinnock, 2018 WL 2106615, at *2.
“For a county court at law to have habeas jurisdiction under the Texas
Constitution, an applicant’s liberty must be restrained.” Ex parte Wolf, 296
S.W.3d 160, 166 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). “A
defendant convicted of a misdemeanor offense may attack the validity of the
conviction by way of habeas corpus if he is either (i) confined or restrained as a
result of a misdemeanor charge or conviction or (ii) is no longer confined, but is
subject to collateral legal consequences resulting from the conviction.” Ex parte
Rinkevich, 222 S.W.3d 900, 902 (Tex. App.—Dallas 2007, no pet.); see also Ex
parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim. App. 2010) (explaining that
showing of collateral consequences establishes “confinement”); Phuong Anh Thi
Le v. State, 300 S.W.3d 324, 326 (Tex. App.—Houston [14th Dist.] 2009, no pet.)
(noting that habeas applicant must establish that collateral legal consequences
resulted from her Texas misdemeanor convictions); State v. Collazzo, 264 S.W.3d
121, 125–26 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (stating that
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defendant may attack misdemeanor conviction provided he is confined, restrained,
or subject to collateral legal consequences resulting from conviction he attacks).
The word “confined” refers not only to the “actual, corporeal and forcible
detention of a person,” but also 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.” TEX. CODE CRIM. PROC. art. 11.21.
The statute uses the word “restraint” to mean “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.”
TEX. CODE CRIM. PROC. art. 11.22. A person who is not confined but is suffering
some collateral consequence as a result of his conviction may seek habeas corpus
relief. See Ex parte Harrington, 310 S.W.3d at 457–58 (holding that adverse
consequences to applicant’s present and future employment opportunities
constitute confinement); Collazo, 264 S.W.3d at 126–27 (holding that denial of
opportunity to obtain Texas peace officer license constitutes confinement); Ex
parte Davis, 748 S.W.2d 555, 557 (Tex. App.—Houston [1st Dist.] 1988, pet.
ref’d) (holding that denial of entry into military constitutes confinement or
restraint).
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B. Analysis
The record reflects that at the time Heilbut filed his application for writ of
habeas corpus, Heilbut was not confined.4 Thus, Helibut had to establish that he
was subject to collateral legal consequences. See Ex parte Rinkevich, 222 S.W.3d
at 902. In his application, Heilbut made no mention of being subjected to
collateral legal consequences. The State’s answer to Heilbut’s habeas application
raised the issue that Heilbut was neither confined, nor restrained. The State further
argued that the trial court lacked jurisdiction to consider the application for writ of
habeas corpus because Heilbut had neither alleged, nor proved that he suffered
collateral legal consequences as a result of his misdemeanor conviction.
After the trial court gave Heilbut an opportunity to respond to the State’s
jurisdictional argument, Heilbut responded that he was neither confined nor
restrained, and “[t]he fallacy of the State’s argument reflects it’s cavalier review of
the trial judge’s comments and conduct to suggest that they did not impact the
jury’s consideration of the evidence and the resulting conviction.” Heilbut also
argued that restraint has been construed broadly, and “[t]his is a case where the
trial court harassed and belittled trial counsel in front of the jury. The State wants
this court to sanction that conduct. Clearly, the fact of Applicant’s conviction
4
Heilbut’s response to the State admitted that he was not confined as defined by the
statute but he has been restrained by virtue of his conviction.
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constitutes a restraint and he has [the] absolute right to challenge the validity of
that conviction.”
Heilbut’s response to the trial court did not meet his burden to prove that he
was confined or restrained or subject to any collateral consequences as a result of
his misdemeanor conviction. Heilbut failed to include factual allegations within
his application or response to the State’s answer regarding his confinement or
restraint, and he did not provide evidence at the habeas hearing to establish that he
was then confined or restrained or subject to any collateral legal consequences as a
result of the misdemeanor conviction. See, e.g., Tarvin v. State, No. 01–08–
00449–CR, 2011 WL 3820705, at *3 (Tex. App.—Houston [1st Dist.] Aug. 25,
2011, no pet.) (mem. op., not designated for publication) (concluding defendant
invoked trial court’s habeas jurisdiction when prior misdemeanor conviction used
to enhance subsequent misdemeanor offense to third-degree felony offense); Ex
parte Wolf, 296 S.W.3d 160, 166–67 (Tex. App.—Houston [14th Dist.] 2009, pet.
ref’d) (concluding that applicant’s inability to obtain employment in banking and
securities industry constitutes collateral consequences); Collazo, 264 S.W.3d at
126–27 (concluding that applicant who was denied opportunity to obtain Texas
peace officer license is confined); Ex parte Davis, 748 S.W.2d 555, 557 (Tex.
App.—Houston [1st Dist.] 1998, pet. ref’d) (concluding that applicant who was
denied entry into military as result of prior misdemeanor conviction was
8
sufficiently confined to authorize application for writ of habeas corpus).
Accordingly, we conclude that the trial court abused its discretion in granting
habeas relief because Heilbut failed to present any evidence to establish that he
was subject to collateral legal consequences.
We sustain the State’s first issue.
Direct Appeal
In its second and third issues, the State argues that Heilbut’s habeas
complaints are not cognizable and should have been raised in his direct appeal.
Heilbut’s habeas application argued that the trial judge who presided over
the underlying trial was biased and that the trial court violated article 38.05 of the
Texas Code of Criminal Procedure. The State’s answer to the application pointed
out that Heilbut’s complaints were not cognizable because they were not asserted
in his direct appeal.
Habeas corpus may not be used to bring claims that could have been brought
on direct appeal. Ex parte Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004).
As the Texas Court of Criminal Appeals has held,
The Great Writ should not be used in matters that should have
been raised on appeal. Even a constitutional claim is forfeited
if the applicant had the opportunity to raise the issue on appeal.
This is because the writ of habeas corpus is an extraordinary
remedy that is available only when there is no other adequate
remedy at law. There was nothing to prevent the applicant from
raising this claim on direct appeal. He had an adequate remedy
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at law. Because the applicant did not raise the issue on direct
appeal, the applicant has forfeited his claim.
Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004).
After the jury found him guilty of interfering with a service animal, Heilbut
appealed his conviction to this Court. In his direct appeal, Heilbut did not attempt
to assert the complaints he now raises in his habeas application. See Heilbut, 2017
WL 4545878, at *1. In this State’s appeal, Heilbut asserts that his habeas
complaints, had they originally been raised on direct appeal, would have been
“perhaps rejected” because no objections were made to the trial court’s conduct,
Heilbut did not testify at the motion for new trial hearing, and Heilbut lacked
affidavits from himself and his counsel at trial. We cannot speculate as to how this
issue would have been resolved on direct appeal, but we can say that Helibut’s
habeas complaints could have been raised during trial, post-trial, and on direct
appeal. By not raising these complaints in his direct appeal, Heilbut forfeited the
complaints. Ex parte Townsend, 137 S.W.3d at 81. We therefore hold that the
trial court abused its discretion in granting habeas relief.
We sustain the State’s second and third issues.
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Conclusion
We reverse the trial court’s judgment and render judgment denying habeas
corpus relief and ordering that the prior judgment entered on August 9, 2016, in
cause number 2076524, County Criminal Court at Law No. 6, Harris County,
Texas, shall remain in effect.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Lloyd and Countiss.
Do not publish. See TEX. R. APP. P. 47.2(b).
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