Ex Parte Andrew Pete v. the State of Texas ( 2023 )

Affirmed and Memorandum Opinion filed March 30, 2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00581-CR
EX PARTE ANDREW PETE, Appellant
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause No. 1724931
MEMORANDUM OPINION
In two issues, pro se appellant Andrew Pete challenges the trial court’s order
denying his request for pretrial habeas corpus relief. In his first issue, Appellant
argues that the trial judge violated Canons 2(A) and 3(B)(9) of the Texas Code of
Judicial Conduct, and in his second issue, he asserts that the trial court abused its
discretion in denying his pretrial application for a writ of habeas corpus. We
affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 9, 2018, appellant was indicted by a Harris County grand jury for
the first-degree felony offense of continuous sexual abuse of a young child,
committed on or about May 1, 2014 through April 19, 2015, under cause number
1535047. On May 28, 2021, the State made a re-presenment of the case to a Harris
County grand jury under cause number 1724931. The grand jury re-indicted
appellant for the first-degree felony offense of continuous sexual abuse of a young
child, committed on or about May 1, 2014 through April 1, 2015. On June 1, 2021,
the State moved to dismiss the previous charge against Appellant, citing “Case
refiled as Case No. 1724931. The trial court signed the dismissal order.
Appellant filed several pretrial motions, including a pretrial application for a
writ of habeas corpus which challenged the validity of the two indictments. In his
habeas corpus application, appellant argued that the 2016 probable cause affidavit
used by the State to secure both indictments was fatally deficient based on his
allegation that the oath in the probable cause affidavit indicates that it was made to
an “Assistant District Attorney of Harris County” but was either not signed by the
assistant district attorney who accepted the charges or another assistant district
attorney in Harris County. Consequently, appellant contended, that document is
fraudulent.
On July 13, 2021, the trial court held a pretrial hearing and considered, in
addition to Appellant’s other motions, Appellant’s habeas corpus application. At
the conclusion of the hearing, the trial court announced that it lacked jurisdiction to
rule with respect to the prior indictment because it had been dismissed and stated
that it denied the habeas relief requested in the pending case. The trial court
certified appellant’s right to appeal.
II. ISSUES AND ANALYSIS
Liberally construing appellant’s second issue against a finding of waiver,
appellant contends that the trial court abused its discretion in denying his habeas
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corpus application, specifically alleging that the State’s indictment is not founded
on probable cause because it was secured from the grand jury based on a “false
statement” in a probable cause affidavit. Appellant argues he has been prevented
from perfecting an appeal on this allegation because he alleges that in an abuse of
official capacity, the State’s prosecutor presented a re-indictment of the same
charge to by-pass an obligation to show good cause. (“Appellant is challenged to
perfect this appeal, partly due to prosecutor Edward Applebaum, re-indictment of
the State’s alleged offense(s) without showing good cause.”)
Standard of Review and Applicable Law
We review the trial court’s ruling on a pretrial application for a writ of
habeas corpus for abuse of discretion, viewing the facts in the light most favorable
to the ruling. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex
parte Gonzalez, 525 S.W.3d 342, 346 (Tex. App.—Houston [14th Dist.] 2017, no
pet.). However, when the resolution of the ultimate issue turns on an application of
purely legal standards, our review is de novo. See Ex parte Martin, 6 S.W.3d 524,
526 (Tex. Crim. App. 1999); cf. Ex parte Jones, 410 S.W.3d 349, 350 (Tex.
App.—Houston [14th Dist.] 2013) (explaining trial court has no discretion to
analyze the law incorrectly), aff’d, 440 S.W.3d 628 (Tex. Crim. App. 2014). We
will uphold the trial court’s judgment if it is correct on any theory of law
applicable to the case. Ex parte Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App.
2001); Ex parte Walsh, 530 S.W.3d 774, 778 (Tex. App.—Fort Worth 2017, no
pet.).
Analysis
Upon our review of the record, we acknowledge that the State reindicted
appellant well after he had been detained under cause number 1535047, and shortly
after the State was asked to show cause under the Texas Code of Criminal
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Procedure, article 32.01(a).1 Contrary to appellant’s suggestion, nothing in the
record indicates that the State acted improperly or maliciously when it re-indicted
appellant under cause number 1724931 and subsequently dismissed cause number
1535047. The State was not prevented from charging appellant a second time
under a different cause number so long as it had probable cause to believe that the
accused committed an offense defined by statute. See Bordenkircher v. Hayes, 434
U.S. 357, 364 (1978). Additionally, contrary to appellant’s unsupported
contentions, when it reindicted appellant under cause number 1724931, the state
was not additionally required to make a “good cause” showing under article
32.01(a).
The face of the probable cause affidavit, including the officer’s oath, does
not reveal any impropriety. Appellant’s allegation that the signature above
“Assistant District Attorney of Harris County” is improper or fraudulent is
unsupported by the face of the instrument.2 Appellant presented no evidence of
impropriety either by the district attorney signing the complaint or the magistrate
who signed the arrest warrant. Appellant points to no law requiring that an oath in
such an affidavit must be made to the same officer who reviewed the case and
accepted charges.
On this record we cannot find that the trial court violated any constitutional
provision or abused its discretion in granting appellant’s pretrial application for a
writ of habeas corpus for abuse of discretion. We therefore overrule appellant’s
second issue.
1
Appellant’s current complaint on appeal is not based on a speedy trial assertion. Additionally,
Appellant has not presented on appeal any meaningful challenge to the probable cause affidavit.
2
Appellant alleged that the handwritten bar card number was “24062181”, a fact appellant
considered to be “unambiguous”. This appears to have led to his assumption the instrument was
signed by a non-prosecutor, and thus “falsified”.
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Did the Trial Judge Violate Canons 2(A) and 3(B)(9) of the Texas Code of
Judicial Conduct?
Appellant sets out his first issue by briefly describing the manner in which
the court addressed the various matters presented at the July 13, 2021 hearing–
without “being invited nor allowed to present his position in any of his pleadings.”
Our review of the record conflicts with appellant’s view. While the trial court did
give ample time to the County attorney on the County’s motion related to
appellant’s library use, the record shows the judge also took care to address
appellant’s various motions, beginning with appellant’s discovery motion. In the
course of that motion, the court asked the State if an arrest warrant had been
provided to appellant, (“Mr. Appelbaum, was there an arrest warrant? I think it’s a
capias”), and without objection the State confirmed that a copy of the arrest
warrant had been provided to appellant. The discussion continued on appellant’s
motions, and at some point appellant indicated a desire for the court to “at least
acknowledge” his pretrial writ of habeas corpus on file and obtain a ruling from the
court so he could move forward with an appeal, at which time the court issued its
summary rulings. The relevant portion of the record is as follows:
Another thing, Judge, there’s three motions I’ve been trying to get
some kind of ruling on. Motion for dismiss for selective prosecution, I
filed a pretrial writ of habeas corpus on this case. I want the Judge to
at least acknowledge it so if I need to move forward with an appeal, I
can move forward with an appeal and all that.
...
THE COURT: On Defendant’s Pro Se Motion to Dismiss Indictment
for Selective Prosecution, like you said, 6/24/2021, the Court denies
that motion. I will sign the order and we’ll give you a copy, Mr. Pete.
And then finally, the writ of habeas corpus, Mr. Pete --
THE DEFENDANT: Mr. Appelbaum – you asked Mr. Appelbaum
was an arrest warrant given --
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THE COURT: Mr. Pete, I’m ruling on something else. Give me one
second, please.
Mr. Pete, on the prior -- under the habeas corpus relief where you’re
asking the Court to dismiss the prior indictment, the Court rules that
the Court has no jurisdiction at this moment as the case has already
been dismissed; so therefore, there is nothing for the Court to rule on -
-
THE DEFENDANT: You said -- I’m sorry, but you said the case been
dismissed?
THE COURT: The prior case.
THE DEFENDANT: I’m not asking for the prior case, Judge, on the
habeas corpus.
THE COURT: Mr. Pete, the prayer on your motion says: Applicant
Andrew Pete prays the Court dismiss the prior/present indictment and
case with prejudice. Therefore, as to the prior case, the Court has no
jurisdiction. As to the present indictment, the Court rules that that’s
denied and that is the order of the Court. I will make the order in
writing; so that way, you can take it up if you need to, Mr. Pete.
As far as the scheduling for the trial, based on the arguments today,
Mr. Pete, you are still missing evidence on your case.
THE DEFENDANT: Judge, I’m willing to waive all that and let’s go
to trial. . ..
On this record, appellant contends that that the trial court violated two
Cannons of Judicial Conduct, first that “[a] judge shall comply with the law and
should act at all times in a manner that promotes public confidence in the integrity
and impartiality of the judiciary. Tex. Code Jud. Conduct, Canon 2(A), reprinted in
Tex. Gov’t Code Ann., tit. 2, subtit. G, app. C (West 2021) (“Code of Judicial
Conduct”), and second, that “[a] judge should dispose of all judicial matters
promptly, efficiently and fairly.” Tex. Code Jud. Conduct, Canon 3(B)(9). To
reverse a trial court’s judgment on the grounds of judicial misconduct, there must
be judicial impropriety, coupled with probable prejudice to the complaining party,
and rendition of an improper verdict. Fernandez v. State, 597 S.W.3d 546, 560
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(Tex. App.—El Paso 2020, pet. ref’d).
The record must show that the trial court ruled, expressly or implicitly, on
the request, objection, or motion, or the trial court refused to rule on the request,
objection, or motion, and the complaining party objected to the refusal. Tex. R.
App. P. 33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011);
see also McKeand v. State, No. 14-14-00943-CR, 2015 WL 5092177, at *2 (Tex.
App.—Houston [14th Dist.] Aug. 27, 2015, no pet.)(mem. op., not designated for
publication). Appellant did not object to the trial court’s refusal to hear argument
on appellant’s position with respect to the habeas corpus application. We find
appellant’s statements prior to the court’s ruling an invitation for a summary ruling
without argument, e.g., “I want the Judge to at least acknowledge it so if I need to
move forward with an appeal, I can move forward with an appeal and all that”.
Later when appellant referred to the prior discussion in the discovery motion–about
the court’s question about the arrest warrant, appellant failed to provide sufficient
specificity to make the trial court aware of any complaint in connection with the
habeas corpus application. Assuming, arguendo, that the court committed breach in
not fairly allocating time to appellant to present additional legal arguments in
support of his position in his pleadings appellant has not demonstrated any harm.
See Fernandez, 597 S.W.3d at 560. The court properly rejected appellant’s habeas
application and appellant has not shown any further legal argument that would
have altered the result based on the record.
We therefore overrule appellant’s first issue.
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III. CONCLUSION
Having overruled appellant’s two issues, we affirm the trial court’s order
denying appellant’s pretrial habeas corpus application.
/s/ Randy Wilson
Justice
Panel consists of Justices Wise, Poissant and Wilson.
Do not publish — TEX. R. APP. P. 47.2(b).
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