In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-25-00382-CR No. 02-25-00383-CR ___________________________
EX PARTE BESSIE TEKILA MARTIN
On Appeal from the 415th District Court Parker County, Texas Trial Court Nos. CR24-0849, CR24-0850
Before Sudderth, C.J.; Bassel and Walker, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION
I. Introduction
Appellant Bessie Tekila Martin appeals the denial of her application for a writ
of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.08. The application alleged
that a Tarrant County court had taken certain out-of-county unadjudicated offenses
into account when it adjudicated her guilt on an offense for which she had previously
been placed on deferred-adjudication community supervision. According to the
application, a Parker County grand jury indicted Appellant for the same offenses that
the Tarrant County court had taken into account.1 Appellant argues that because she
was “punished” when the court that adjudicated her guilt took the offenses into
account, she cannot be again placed in jeopardy for those offenses in Parker County.
In the proceedings below, Appellant simply assumed that there were facts that
supported the legal theories that she raised, but we lack a record to know whether
those facts exist. Accordingly, we will remand this matter to the trial court to permit
Appellant to develop the record necessary to determine if there is a factual basis for
her theories.
1 We would normally refer to the Appellee in this matter as the State but refer to it as Parker County to avoid the confusion of too many references to the State.
2 II. Factual and Procedural Background
A. Relevant chronology
Appellant’s argument turns primarily on a chronology of events; thus, our
summary will follow the same path:
November 14, 2023: Appellant was placed on deferred-adjudication
community supervision for three years by the 432nd District Court of Tarrant County
in case number 1780633 for the third-degree felony offense of credit-card or debit-
card abuse against an elderly individual. See Tex. Penal Code Ann. § 32.31(b), (d).
January 11, 2024: Appellant allegedly stole a debit card and rings from an
elderly patient at the rehabilitation center where she was employed and had used the
card to purchase items in the nearby cities of Azle and Grapevine, as noted in an
offense report from the Springtown Police Department dated January 15, 2024.
February 6, 2024: A State’s petition to proceed to adjudication was filed
against Appellant in the Tarrant County case in which she had been placed on
community supervision. The petition alleged that Appellant had committed the
following offenses that violated the conditions of her community supervision:
1. [Appellant] committed the offense of CREDIT CARD OR DEBIT CARD ABUSE ELDERLY on or about the 28th day of December, 2023 in the County of Navarro and the State of Texas.
2. [Appellant] committed the offense of CREDIT CARD OR DEBIT CARD ABUSE ELDERLY on or about the 11th day of January, 2024 in the County of Parker and the State of Texas.
3 3. [Appellant] committed the offense of CREDIT CARD OR DEBIT CARD ABUSE ELDERLY on or about the 11th day of January, 2024 in the County of Parker and the State of Texas.
4. [Appellant] committed the offense of CREDIT CARD OR DEBIT CARD ABUSE ELDERLY on or about the 11th day of January, 2024 in the County of Parker and the State of Texas.
5. [Appellant] committed the offense of THEFT OF PROPERTY >=$750<$2,500 – ALL OTHER LARCENY on or about the 11th day of January, 2024 in the County of Parker and the State of Texas.
We will refer to these five allegations as the Unadjudicated Offenses.
August 22, 2024: A Parker County grand jury indicted Appellant in the 415th
District Court for two felony offenses of “Credit Card or Debit Card Abuse Elderly”
that had occurred on or about January 11 and 13, 2024, involving the use of an Austin
Telco debit card held by the cardholder named in the police report described above.
September 3, 2024: Appellant signed “Written Plea Admonishments on
Motion to Revoke Community Supervision or Petition to Proceed to Adjudication” in
the Tarrant County case for which she had been placed on community supervision.
Initially, the admonishments state that Appellant was given notice of the following:
1. A motion to revoke your community supervision or a petition to proceed to adjudication has been filed in which you are charged with a violation of the conditions of your community supervision.
2. The punishment agreement is: 2 days [in] Tarrant County Jail under 12.44(a) on the less[e]r[-]included offense of Debit/Credit Card Abuse. Offense reduced to State[-]Jail Felony by waiving elderly enhancement.
4 The admonishments also recite that
[Appellant] understand[s] that if I have entered a plea of true to any allegation in a motion to revoke community supervision that the [c]ourt may set my punishment anywhere from the minimum of the range of punishment up to and including the amount of time of my original sentence. I understand that if I have entered a plea of true to any allegation in the petition to proceed to adjudication that my punishment can be set anywhere within the range of punishment prescribed by law for this offense.
The admonishments also contain the following judicial confession: “I further admit
my guilt on any [U]nadjudicated [O]ffenses set forth in the plea agreement set out
above[] and request the [c]ourt to take each into account in determining my sentence
for the instant offense.” Appellant’s counsel, State’s counsel, and the Tarrant County
District Judge signed a notation that “[w]e further agree and consent to the admission
of guilt of any unadjudicated offense under Sec. 12.45 Texas Penal Code.”
September 16, 2024: The Tarrant County court entered judgment that
adjudicated Appellant’s guilt (the Tarrant County Judgment). That judgment recites
that the sentence was imposed on September 3, 2024. As Parker County’s brief
points out, the Tarrant County Judgment bears a different cause number than does
the order for community supervision, the petition to proceed to adjudication, or the
plea admonishments. The Tarrant County Judgment also recites that Appellant
pleaded true to a motion to adjudicate and that the degree of the offense was “Felony-
State Jail Felony 12.44[(a) Penal Code].” The Tarrant County Judgment then
references an amended motion to adjudicate that is not in the record before us:
5 “While on deferred[-]adjudication community supervision, [Appellant] violated the
conditions of community supervision, as set out in the State’s Amended Motion to
Adjudicate Guilt, as follows: PARA 1.” The Tarrant County Judgment goes on to
provide the following: “Terms of Plea Bargain (if any): or □Terms of Plea Bargain are
attached and incorporated herein by this reference. 2 DAYS TCJ ON LIO 12.44A.”
Finally, that judgment recites the following:
County Jail—State Jail Felony Conviction. Pursuant to § 12.44(a), Tex. Penal Code, the [c]ourt FINDS that the ends of justice are best served by imposing confinement permissible as punishment for a Class A misdemeanor instead of a state jail felony. Accordingly, [Appellant] will serve punishment in the county jail as indicated above. The [c]ourt ORDERS [Appellant] committed to the custody of the County Sheriff immediately or on the date the sentence commences. Upon release from confinement, the [c]ourt ORDERS [Appellant] to proceed without unnecessary delay to the District Clerk’s office, or any other office designated by the [c]ourt or the [c]ourt’s designee, to pay or to make arrangements to pay any fines, court costs, reimbursement fees, and restitution due.
The Tarrant County Judgment imposed a sentence of two days’ confinement.
B. Habeas Application Grounds
Appellant filed an application for pretrial writ of habeas corpus seeking relief
from double jeopardy in the 415th District Court on the Parker County cause
numbers for which she had been indicted for credit-card or debit-card abuse. In
essence, the application claimed that the Tarrant County court had taken account of
the Unadjudicated Offenses—for which she was now indicted in Parker County—
when the Tarrant County court determined her sentence after adjudicating her guilt.
6 Thus, Appellant argued that Section 12.45 of the Penal Code barred further
prosecution of the Unadjudicated Offenses in Parker County. The focus of the
application was set out in the following paragraphs:
When [Appellant] ple[aded] true to the allegations set forth in the State’s [p]etition to [p]roceed to [a]djudication, she admitted her guilt in several [U]nadjudicated [O]ffenses pursuant to Tex. Penal Code § 12.45. Those allegations included the offenses that were indicted in Parker County Cause Nos. CR24-0849 and CR24-0850 and remain unadjudicated.
Because the Parker County offenses were considered by the 432nd District Court of Tarrant County when it considered whether to accept the plea agreement and sentence between the Tarrant County Criminal District Attorney and [Appellant], prosecution is barred in Cause Nos. CR24-0849 and CR24-0850. The 432nd District Court’s judgment and acceptance of the plea agreement must be presumed to be regular and lawful.
The Springtown Police Department offense report included information that one of the transactions for which the alleged stolen debit card was used was located in Grapevine, Texas, which is located in Tarrant County. It is the same debit card that [Appellant] was indicted for unlawfully using in Parker County within a very short period of two or three days. This would indicate that [Appellant’s] conduct consisted of two or more transactions that constituted a common scheme or plan, or the conduct consisted of repeated commission of the same offense. Thus, because the criminal episode was not exclusive to any single jurisdiction but rather two jurisdictions, the 432nd District Court was lawful in considering the conduct when it sentenced [Appellant] in Tarrant County Cause No. 1782142.
Even if the separate debit[-]card transactions in Parker County conferred exclusive jurisdiction upon the 415th District Court, then it must be presumed that the Tarrant County [D]istrict [C]ourt and [D]istrict [A]ttorney complied with the law and [that] the [judgment] and [documents] in Tarrant County Cause No. 1782142 are binding absent direct proof of their falsity. [Citations omitted.]
7 C. The Parker County Court’s order denying the habeas application
The Parker County court conducted a non-evidentiary hearing on Appellant’s
habeas application. The court signed an order denying the writ (the Parker County
Order), which contained the following recitations:
WHEREAS the State’s Petition to Proceed to Adjudication filed February 6, 2024[,] in Cause No. 1780633, 432nd District Court of Tarrant County, Texas[,] against the above-referenced defendant and referenced in exhibit 4 attached to [Appellant’s] Application failed to name any victim of the three alleged Parker County offenses;
WHEREAS [Appellant] was indicted by a Parker County Grand Jury for . . . the Third[-]Degree Felony offense of Credit / Debit Card Abuse from Elderly, to-wit: Joann Putnam, in Cause No. CR24-0849 and CR24-0850 on August 22, 2024;
WHEREAS [Appellant’s] September 3, 2024 plea of true to the State’s Petition fails to identify who any of the three alleged victims of January 11, 2024 offenses alleged in paragraphs 2–4 are, or even if they are one or more than one individual;
WHEREAS the indictment by a Parker County Grand Jury in Cause No. CR24-0849 and CR24-0850 on August 22, 2024[,] gives exclusive jurisdiction of these offenses to the Parker County District Courts, prior to [Appellant’s] plea of true in the Tarrant County Petition to Proceed to Adjudication September 3, 2024.
WHEREAS the Tarrant County waivers and stipulations portion of the plea packet includes general language admitting to unadjudicated offenses under Section 12.45, Texas Penal Code and the Tarrant County Judge took judicial notice of said admission, nowhere in the waivers, stipulations, court approval[,] or judgment does the [c]ourt indicate it is taking into account[] the admitted offense(s) in assessing punishment;
WHEREAS the Tarrant County Judgment Adjudicating Guilt indicates a sentence of two (2) days in the Tarrant County Jail under § 12.44(a), reducing the punishment of a [s]tate[-j]ail [f]elony offense to that of a Class A misdemeanor in consideration of the gravity of the offense, [Appellant’s] character, and [Appellant’s] history, which
8 indicates that the [c]ourt did not take into consideration the commission of three additional felony offense[s] committed while on probation when assessing the revocation sentence; and
WHEREAS there is no evidence that permission was sought or obtained from the Parker County District Attorney’s Office to allow the offenses [that are] the subject of Parker County Cause No[.] CR24-0849 or CR24-0850 to be considered as punishment in the Tarrant County Petition to Proceed to Adjudication in accordance with Texas Penal Code § 12.45[.]
The Parker County court certified Appellant’s right to appeal, and she filed a
notice of appeal. We requested briefing from the parties, and both Appellant and
Parker County filed briefs.
III. Analysis
A. We set forth why Appellant’s habeas claim is cognizable, the applicable standard of review, and the statutory basis for Appellant’s habeas application.
“[T]he writ of habeas corpus is an extraordinary remedy that is available only in
the absence of an adequate remedy at law.” Ex parte Beck, 541 S.W.3d 846, 852 (Tex.
Crim. App. 2017). Thus, a claim raised by a habeas application must be cognizable
because “[t]his remedy is reserved ‘for situations in which the protection of the
applicant’s substantive rights or the conservation of judicial resources would be better
served by interlocutory review.’” Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim.
App. 2016) (quoting Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001)).
There is no issue of cognizability in this matter because the Court of Criminal Appeals
permits double-jeopardy claims to be raised by pretrial habeas. See id.
9 We review a trial court’s ruling on a pretrial application for habeas relief for an
abuse of discretion. Ex parte Todman, Nos. 02-23-00061-CR through 02-23-00064-CR,
2023 WL 4942026, at *4 (Tex. App.—Fort Worth Aug. 3, 2023, no pet.) (mem. op.,
not designated for publication) (citing Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.
Crim. App. 2006)). The trial court abuses its discretion when it acts arbitrarily or
unreasonably, without reference to guiding rules and principles. Montgomery v. State,
810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
A habeas applicant has “the obligation to provide a sufficient record that
supports his factual allegations with proof by a preponderance of the evidence.”
Ex parte Darnell, Nos. 02-19-00390-CR, 02-19-00391-CR, 2020 WL 5949928, at *7
(Tex. App.—Fort Worth Oct. 8, 2020, pet. ref’d) (mem. op., not designated for
publication) (citing Ex parte Chandler, 182 S.W.3d 350, 353 n.2 (Tex. Crim. App.
2005)). “In conducting our review, we view the evidence in the light most favorable
to the trial court’s ruling and defer to the trial court’s fact findings supported by the
record.” Todman, 2023 WL 4942026, at *4. On review, we must give deference to the
trial court’s resolution of historical facts supported by the record, as well as to the
application of law to fact questions that turn on credibility and demeanor. Alford v.
State, 358 S.W.3d 647, 652 (Tex. Crim. App. 2012). However, when the resolution of
any ultimate question turns on an application of legal standards, we review the trial
court’s ruling de novo. Id. at 653. We will uphold the habeas court’s judgment if it is
10 correct on any theory of law applicable to the case. Ex parte Taylor, 36 S.W.3d 883,
886 (Tex. Crim. App. 2001).
Appellant’s brief does not identify the nature of the writ under which she is
seeking relief. We assume that she relies on Article 11.08 of the Code of Criminal
Procedure. Article 11.08 allows an applicant indicted for a criminal offense—whose
guilt has not been formally adjudicated—to challenge her confinement by a pretrial
writ application. See Tex. Code Crim. Proc. Ann. art. 11.08; see also Ward v. State, 662
S.W.3d 415, 416 (Tex. Crim. App. 2020) (specifying use of Article 11.08 writ for
defendant confined but not yet convicted for felony offense); Ex parte Meltzer, 180
S.W.3d 252, 255 (Tex. App.—Fort Worth 2005, no pet.) (op. on reh’g) (“Under
[A]rticle 11.08, a criminal defendant who has been indicted, but not yet convicted,
may file an application for writ of habeas corpus, that is returnable to the court in
which the defendant stands indicted.”).
“If a trial court denies relief on the merits [of an Article 11.08 writ application],
the defendant may file an interlocutory appeal.” Ward, 662 S.W.3d at 416. The courts
of appeals have jurisdiction over that appeal. Id. (citing Tex. Const. art. V, § 5(b)).
B. We set forth the double-jeopardy claim that Appellant raised in her habeas application.
Appellant’s double-jeopardy argument turns on Section 12.45 of the Penal
Code. She argues that the actions of the Tarrant County court triggered the following
provision of the statute: “A person may, with the consent of the attorney for the
11 state, admit during the sentencing hearing his guilt of one or more unadjudicated
offenses and request the court to take each into account in determining sentence for
the offense or offenses of which he stands adjudged guilty.” Tex. Penal Code Ann.
§ 12.45(a). The basis for her argument is that the petition to proceed to adjudication
filed in Tarrant County alleged the Unadjudicated Offenses—for which she was also
indicted in Parker County—as grounds to proceed to adjudication, she admitted her
guilt to those offenses in Tarrant County, and thus the offenses were taken into
account by the Tarrant County court when sentencing her after her guilt was
adjudicated. Appellant argues that further prosecution of the Unadjudicated Offenses
is barred because Section 12.45 also provides that “[i]f a court lawfully takes into
account an admitted offense, prosecution is barred for that offense.” Id. § 12.45(c); see
Dooley v. State, No. 05-01-01914-CR, 2002 WL 31312502, at *1 (Tex. App.—Dallas
Oct. 16, 2002, pets. ref’d) (not designated for publication) (analyzing double-jeopardy
claim based on Section 12.45 to bar prosecution of cases indicted in another county).
C. We set forth Appellant’s argument involving Section 12.44 of the Penal Code and why we lack an adequate record to decide the question that Appellant presents.
Appellant argues that the plea admonishments that she signed in Tarrant
County demonstrate that the Unadjudicated Offenses alleged in the petition to
adjudicate were taken into account when she was sentenced in Tarrant County.
However, the Parker County Order concludes that the Tarrant County Judgment
indicated that the Tarrant County court did not take the Unadjudicated Offenses into
12 account when sentencing Appellant. The recitations in the Parker County Order in
this regard turn on two things. First, it relies on the absence of an indication that the
Tarrant County court actually took the Unadjudicated Offenses into account. Second,
the Parker County Order concludes that the short two-day sentence imposed on
Appellant militates against a conclusion that the Tarrant County court took the
Unadjudicated Offenses into account when it applied Section 12.44 of the Penal
Code—a code section that allows a court to exercise leniency by sentencing a
defendant charged with a state-jail felony to “the confinement permissible as
punishment for a Class A misdemeanor.” Tex. Penal Code Ann. § 12.44(a). Those
arguments aside, we do not have a record that allows us to know what the Tarrant
County court took into account.
Two recitations in the Parker County Order demonstrate why the Parker
County court concluded that the Unadjudicated Offenses were not taken into account
during the sentencing in the Tarrant County court. The Parker County Order notes
that Appellant’s plea admonishments filed in Tarrant County “include[] general
language admitting to unadjudicated offenses under Section 12.45[ of the] Texas Penal
Code[,] and the Tarrant County Judge took judicial notice of said admission.” But the
Parker County Order then concludes that “nowhere in the waivers, stipulations, court
approval[,] or judgment does the [Tarrant County court] indicate it is taking into
account[] the admitted offense(s) in assessing punishment.” [Emphasis added.] The
Parker County Order then gleans from the nature of the sentence imposed that the
13 Tarrant County court did not take the Unadjudicated Offenses into account. Looking
to the Tarrant County Judgment’s statement that the court had considered “the
gravity of the offense, [Appellant’s] character, and [Appellant’s] history” and was
exercising its power under Section 12.44 to impose only a two-day sentence, the
Parker County Order concludes that this “indicates that the [Tarrant County c]ourt
did not take into consideration the commission of three additional felony offense[s]
committed while on probation when assessing the revocation sentence.”
Section 12.44(a) of the Penal Code provides that
[a] court may punish a defendant who is convicted of a state[-]jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.
Id. Appellant argues in essence that the inference that the Parker County court drew
from the short sentence—that the Tarrant County court did not take into account the
Unadjudicated Offenses—is unsupportable. Initially, she argues that the sentence was
not “illegal” and cites a case holding that the failure of a court to make a specific
finding on an enhancement paragraph does not mean that a sentence within the
unenhanced penalty range is “illegal.” See Baines v. State, 418 S.W.3d 663, 674 (Tex.
App.—Texarkana 2010, pet. ref’d). Further, Appellant argues that the fact that the
Tarrant County Judgment recited that she was punished under Section 12.44(a) “is
14 more evidence that the court did take all relevant information, including the
[U]nadjudicated [O]ffenses[,] into consideration.”
But there is a hole in the proof of Appellant’s theory because we do not know
what was alleged in the specific motion to adjudicate that is referenced in the Tarrant
County Judgment. The original petition to proceed to adjudication was filed in
February 2024. Appellant’s plea admonishments were not filed until seven months
later in September 2024—on the same day that the Tarrant County Judgment was
rendered. And the Tarrant County Judgment recites that Appellant had “violated the
conditions of community supervision as set out in [Paragraph 1 of] the State’s
Amended Motion to Adjudicate Guilt.” Thus, there is apparently an amended
motion that was on file when Appellant signed her admonishments and that was the
basis of the Tarrant County Judgment. But we do not have the amended motion in
our record. Thus, we have no idea what it alleges. Specifically, we do not know if
Appellant was admitting guilt to the Unadjudicated Offenses because we do not know
what was alleged in the amended motion to adjudicate guilt to which Appellant’s plea
was apparently directed. Because of this failing, we do not know if the Unadjudicated
Offenses were a part of what the Tarrant County court allegedly took into
consideration under Section 12.44.2
2 Parker County’s brief also argues that Appellant did not admit guilt to the Unadjudicated Offenses. This argument turns on the fact that the judicial-confession section in the plea admonishments recites, “I further admit my guilt on any unadjudicated offenses set forth in the plea agreement set out above[] and request the
15 D. We set forth Appellant’s argument under Section 12.45 of the Penal Code and why we again lack an adequate record to decide the question that she presents.
But even if we accept Appellant’s argument that the Tarrant County court
considered the Unadjudicated Offenses indicted in Parker County, we must address
the subsection of Section 12.45 that prohibits the sentencing court (under certain
circumstances) from taking account of an unadjudicated offense without permission
from another county. Again, we lack a record adequate to review Appellant’s claims.
Specifically, Section 12.45(b) requires that “[b]efore a court may take into
account an admitted offense over which exclusive venue lies in another county or
district, the court must obtain permission from the prosecuting attorney with
jurisdiction over the offense.” Tex. Penal Code Ann. § 12.45(b); see Ex parte Butler,
No. 10-13-00362-CR, 2014 WL 2466564, at *4 (Tex. App.—Waco May 29, 2014, pet.
ref’d) (mem. op., not designated for publication) (“[S]ection 12.45(b) requires the
[c]ourt to take each into account in determining my sentence for the instant offense.” According to Parker County, this statement does not “reflect that the signatories admitted Appellant’s guilt of any such offenses or requested the trial court take such offenses under consideration.” But as we have noted, Appellant did state the following in her plea admonishments: “I understand that if I have entered a plea of true to any allegation in a motion to revoke community supervision,” then the court could use that in setting punishment. [Emphasis added.] Whether that is an adequate reference to Unadjudicated Offenses is another argument that we will not reach until we have an adequate record. The highlighted hole in the proof also renders us unable to address Parker County’s argument that the Tarrant County Judgment only found true an allegation in the amended motion to adjudicate relating to an offense committed in Navarro County. Without knowing what the referenced amended motion to adjudicate said, we have no means to test Parker County’s argument. The same holds true of Parker County’s contention that the petition to adjudicate did not adequately describe the Parker County offenses.
16 sentencing court to have permission from the prosecutor with jurisdiction; it does not
permit reliance upon the oral representations of defendant’s counsel or the prosecutor
from the court’s own jurisdiction.”); Swinnie v. State, No. 05-08-01076-CR, 2009 WL
1981849, at *4 (Tex. App.—Dallas July 10, 2009, pet. ref’d) (“Section 12.45 requires
that the trial court, not a prosecuting attorney, obtain permission from the prosecuting
attorney with jurisdiction over the offense. . . . That was not done here.”); Escobedo v.
State, 643 S.W.2d 243, 246 (Tex. App.—Austin 1982, no pet.) ([“Section 12.45] also
clearly requires that the sentencing court have permission from the prosecutor with jurisdiction
over the unadjudicated offense[] and does not permit reliance upon the mere oral
representations of either counsel for the accused or the prosecuting attorney of the
court’s own jurisdiction.”).
Here, as our chronology reveals, Parker County indicted the Unadjudicated
Offenses before the Tarrant County court sentenced Appellant. Nothing in the
record shows that the Tarrant County court obtained permission from the Parker
County prosecuting attorney before it allegedly took the Unadjudicated Offenses into
account when sentencing Appellant.
To sidestep the need to prove permission was obtained, Appellant first argues
that we may rely on a presumption of regularity to show that the required permission
was obtained:
The habeas court’s order states that “there is no evidence that permission was sought or obtained from the Parker County District Attorney’s Office to allow the offenses . . . to be considered as
17 punishment in the Tarrant County Petition to Proceed to Adjudication in accordance with Texas Penal Code § 12.45.” Because the Tarrant County court records must be presumed to be lawful absent evidence of their falsity, then the habeas court should have presumed by the documents which were signed by both a Tarrant County prosecutor and a Tarrant County judge to have been done in a lawful manner to include abiding by Tex. Penal Code § 12.45. The State proffered no evidence to the contrary, and only incidentally mentioned during its arguments about “jurisdiction” that Parker County would have had to waive the right to prosecute. This is insufficient to be considered evidence that a prosecutor and judge in Tarrant County did not seek permission from the Parker County District Attorney. Parker County could have provided myriad evidence in attempts to prove otherwise but failed to do so. [Record reference omitted.]
In other words, Appellant argues that Parker County had a burden to prove a
negative by showing permission was not obtained. But the burden of proof was on
Appellant, not Parker County. Further, there is no recitation in the judgment that
permission was obtained. “Recitals in a judgment create a ‘presumption of regularity
and truthfulness,’ and these recitals are binding unless there is direct proof of their
falsity.” Smith v. State, 620 S.W.3d 445, 457 (Tex. App.—Dallas 2020, no pet.) (first
citing Lincoln v. State, 307 S.W.3d 921, 922 (Tex. App.—Dallas 2010, no pet.); and then
quoting Breazeale v. State, 683 S.W.2d 446, 450–51 (Tex. Crim. App. 1984)); see also
Harvey v. State, 605 S.W.3d 812, 816 (Tex. App.—Houston [1st Dist.] 2020, no pet.).
Here, there is no recitation that would trigger the presumption.
In addition, “[t]he presumption of regularity is a judicial construct that requires
a reviewing court, ‘absent evidence of impropriety,’ to indulge every presumption in
favor of the regularity of the trial court’s judgment.” Murphy v. State, 95 S.W.3d 317,
18 320 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (op. on reh’g) (quoting Light v.
State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000)). Section 12.45(b) provides that the
trial court must obtain permission. See Tex. Penal Code Ann. § 12.45(b). At the
informal hearing of this matter, counsel for Parker County (just as counsel for
Appellant) made statements about what had occurred. Counsel for Parker County
stated on the record that “Tarrant County never indicted this charge, so the State
would argue that under [Section] 12.45, the only proper channel would be [Section]
12.45(b) where we would have had to waive our right to prosecute these charges for
that plea.” See Vaccaro v. Raymond James & Assocs., 655 S.W.3d 485, 491–92 (Tex.
App.—Fort Worth 2022, no pet.) (“[A]n attorney’s unsworn statements may be
considered evidence . . . ‘when the circumstances clearly indicate that the attorney is
tendering evidence on the record based on personal knowledge and the opposing
party fails to object.’”). The statement’s implication is that Parker County did not give
its permission to take the Unadjudicated Offenses into account.
Without a recital in the judgment that the Tarrant County court obtained the
required statutory permission and in consideration of the implication of Parker
County’s counsel’s statement, we will not presume based on the otherwise silent
record that permission was obtained by the Tarrant County court. And there is no
reason to determine this matter based on a shaky presumption when we are
19 remanding this case for a fuller hearing during which Parker County may present
testimony that it did not give the permission referenced in Section 12.45(b). 3
Next, Appellant offers a statutory-interpretation argument: Section 12.45(b)
does not apply because both Tarrant and Parker Counties were venues to prosecute
the Unadjudicated Offenses. Thus, Appellant argues that Parker County ignores a
precondition to the application of Section 12.45(b)—permission must be sought only
if the other county has exclusive venue, i.e., “[b]efore a court may take into account
an admitted offense over which exclusive venue lies in another county or district,” it
must obtain permission from the prosecuting attorney. Tex. Penal Code Ann.
§ 12.45(b) (emphasis added). Appellant makes this argument in response to Parker
County’s argument in the trial court that it had jurisdiction over the Unadjudicated
Offenses because when two counties have concurrent jurisdiction, the first county to
indict the offense “retains” jurisdiction. See Tex. Code Crim. Proc. Ann. art. 4.16
(“When two or more courts have concurrent jurisdiction of any criminal offense, the
court in which an indictment or a complaint shall first be filed shall retain jurisdiction
except as provided in Article 4.12.”).4 Thus, Parker County argued that it had won
the race to indict and that Tarrant County needed its permission to take the
Unadjudicated Offenses into account because Section 12.45(b) provides that “the
3 At this point, we will not reach Parker County’s arguments about irregularities in the Tarrant County Judgment. 4 Article 4.12 deals with misdemeanor offenses and has no application to these cases before us. See Tex. Code Crim. Proc. Ann. art. 4.12.
20 court [taking account of the unadjudicated offense] must obtain permission from the
prosecuting attorney with jurisdiction over the offense.” See Tex. Penal Code Ann.
§ 12.45(b).
Parker County’s brief augments its argument in the trial court by citing a 1938
opinion from the Court of Criminal Appeals that interpreted the predecessor statute
to Article 4.16 to mean that the county that indicted first had control of the case, no
matter whether other counties shared venue. See Ringer v. State, 121 S.W.2d 364, 366
(Tex. Crim. App. 1938). Parker County argues that Ringer’s holding means that
“[o]nce Appellant was indicted in Parker County, no district court in Tarrant County
had any authority or jurisdiction to hear a prosecution against Appellant for the
Parker County offenses.” In other words, no matter the reference to exclusive venue
in Section 12.45(c), we should interpret that section to mean that Parker County’s
permission had to be obtained before the Tarrant County court could consider the
Unadjudicated Offenses now indicted in Parker County.
We will not reach these legal arguments because the record before us is
inadequate to prove Appellant’s premise that both Tarrant County and Parker County
had venue. Appellant’s argument that both counties had venue turns on provisions
governing the offense of credit-card or debit-card abuse and unique—but as of yet
unproven—issues of geography.
Appellant was indicted in Parker County for the offense of “Credit Card or
Debit Card Abuse Elderly” by “then and there [in Parker County, Texas, on or about
21 the 11th day of January, 2024], with intent to fraudulently obtain a benefit,
present[ing] or us[ing] a debit or credit card.” This offense is defined by Penal Code
Section 32.31 in the following way:
(b) A person commits an offense if:
(1) with intent to obtain a benefit fraudulently, he presents or uses a credit card or debit card with knowledge that:
(A) the card, whether or not expired, has not been issued to him and is not used with the effective consent of the cardholder; or
(B) the card has expired or has been revoked or cancelled[.]
Tex. Penal Code Ann. § 32.31(b)(1). In turn, the Code of Criminal Procedure places
venue for this offense in the following places: “An offense under Section 32.31,
Penal Code, may be prosecuted in any county in which: (1) the offense was
committed; or (2) any person whose credit card or debit card was unlawfully
possessed or used resides.” Tex. Code Crim. Proc. Ann. art. 13A.255.
Here, Appellant contends that the debit card was stolen from a person residing
in Parker County and that makes Parker County a county with venue to prosecute the
offense. But according to Appellant, other facts also gave Tarrant County venue
because that is where the card was fraudulently presented: Appellant apparently relies
on the assertion in the offense report that the stolen card was used in Grapevine and
in Azle. Specifically, Appellant’s counsel argued before the trial court:
The offensive conduct that was alleged happened in Tarrant County within 400 yards of Parker County, so it’s within Tarrant County. This
22 offense also carries a statutory venue -- there’s a venue statute for this offense that states that it can -- the proper venue is anywhere where the offense happened, like physically happened, or where the individual whose credit card or debit card was abused resides, which in this case is, I believe, Springtown. Within -- well within Parker County. So either county would be a proper venue. And so as long as a court of competent jurisdiction within either venue took it up, there’s no problem with that.
Our argument is that the Tarrant County court had proper venue. It was a felony court, a district court, the 432nd, so they had jurisdiction as well to consider any offensive conduct within its territorial jurisdiction regardless of when an indictment [was presented.][5]
And Appellant’s habeas application also claimed that the offense report from the
Springtown Police Department alleged that the stolen card had been used in
Grapevine, Texas, which the application claimed is in Tarrant County. The offense
report does mention use of the stolen debit card at Walmart in Grapevine without
providing anything further about the location of the Walmart within Grapevine.
Appellant’s brief expands on the argument by contending, “These offenses took place
5 The 400-yard reference to the Code of Criminal Procedure stems from its venue provision that provides that “[a]n offense committed on or within 400 yards of the boundaries of two or more counties may be prosecuted in any one of those counties.” Tex. Code Crim. Proc. Ann. art. 13A.053(a); see Parr v. State, 299 S.W.2d 940, 941 (Tex. Crim. App. 1957) (discussing predecessor to Article 13A.053(a) and stating that it provides that “when an offense is committed within 400 yards of the boundary of any two counties, the prosecution may be conducted in either county. That statute is purely a venue statute”). Here, we are unsure why the statute would apply as Appellant argues that the card stolen in Parker County was used in Tarrant County, which we assume would give both counties venue. Indeed, at another point in the record apart from the statement we quote above, Appellant’s counsel stated, “Ordinarily, I would say Parker County -- they couldn’t consider a Parker County indictment or a case; however, what’s interesting about this case is that the two locations for the indictments actually lie in Tarrant County. They are within 400 yards of the Parker County line with Tarrant County . . . .”
23 in a portion of the city of Azle located within the territorial limits of Tarrant County.”
And the offense report states that the stolen card was used in Azle at a “Jack in the
Box” and a “QT.”
Thus, the offense report indicates that the card was used in Grapevine and in
Azle, but other than counsel’s statements—which were mere conclusions—there is no
proof that the locations of the stores within Grapevine and Azle where the card was
used are in Tarrant County. This question is more than a theoretical one as the
boundaries of both Grapevine and Azle are within more than one county. See
Grapevine, Tex., Code of Ordinances, art. 1, § 1.02 (2025),
https://library.municode.com/tx/grapevine/codes/code_of_ordinances?nodeId=PT
IHORUCH_ART1FOGOBO_S1.02THBO (last visited Jan. 30, 2026); Azle, Tex.,
Home Rule Charter, art. 1, § 1.02 (2016),
https://www.cityofazle.org/DocumentCenter/View/4429/Home-Rule-Charter---
Amended-05-17-2016?bidId= (last visited Jan. 30, 2026).
Appellant’s theory turns on proof that the venue for the Unadjudicated
Offenses was also in Tarrant County because that is the county where the card was
used. No evidence attached to the habeas application or offered at the hearing
located those businesses or provided information about the county in which they
were located other than the bald conclusory statements of counsel. Thus, what record
we have to review Appellant’s claims is unexplained. We are again left with a theory
for which Appellant offered inadequate proof.
24 IV. Conclusion
The burden of proof was on Appellant in the habeas proceeding, but as we
have documented, she left so many gaps in the proof that we do not know if there are
facts that support the theories raised in her habeas application. On the unique facts
before us, we remand this matter to give her the opportunity to close those gaps.
Usually, we may not remand a matter without concluding that the trial court
committed error. See Tex. R. App. P. 43.3. In reviewing a habeas appeal, we operate
with broader powers as the Rules of Appellate Procedure governing such appeals
provide that “[t]he appellate court will render whatever judgment and make whatever
orders the law and the nature of the case require.” Tex. R. App. P. 31.3.
Here, fundamental factual questions that underlie Appellant’s theories of relief
are unanswered: (1) what unadjudicated offenses were alleged in the State’s amended
motion to adjudicate guilt that is referenced in the Tarrant County Judgment and thus
what offenses did the Tarrant County court take into account that arguably fall under
the sway of Section 12.45; and (2) what facts are there to support Appellant’s claim
that venue for the Unadjudicated Offenses is in Tarrant County because the stolen
debit card was presented or used in Tarrant County? We are not remanding this
matter based on a present conclusion that the Parker County court committed error in
denying Appellant’s application for a writ of habeas corpus. Instead, we do so
because the record before us currently constitutes smoke rather than fire, but
Appellant presents legal arguments that, if they are supported by facts, should be
25 answered. We therefore remand to give Appellant an opportunity to create a record
that provides a factual basis for the legal theories that she presents—a record that at
this point does not exist.
/s/ Dabney Bassel
Dabney Bassel Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: February 5, 2026