Ex Parte Damien Lashaun Mims v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 27, 2025
• Docket: 02-24-00325-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-24-00324-CR No. 02-24-00325-CR No. 02-24-00326-CR ___________________________

Ex parte Damien Lashaun Mims

On Appeal from the 432nd District Court Tarrant County, Texas Trial Court Nos. C0012202-1766571, C0012202-1766574, C0012202-1770591

Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION

Appellant Damien Lashaun Mims appeals from the denial of his pretrial

application for writ of habeas corpus, claiming that his initial trial counsel in his

underlying cases provided ineffective assistance of counsel during plea negotiations.

We do not have jurisdiction over this appeal and dismiss it.

I. Discussion

In his pretrial application, Mims alleged that his initial trial counsel failed to

communicate that a particular plea offer had a deadline, which had expired before

Mims could accept it. The trial court conducted a hearing on Mims’s application,

during which Mims, his life partner, and his initial trial counsel testified about the plea

negotiations.

After the State and Mims presented closing arguments, the trial court asked

both sides for additional briefing, including on whether Mims’s pretrial application

was the “appropriate vehicle” to consider Mims’s ineffective-assistance claim. The

trial court questioned, “[I]s this the appropriate time to even take this up[?]” The trial

court also asked the parties to brief several questions about the merits of Mims’s

ineffective-assistance claim. Both sides filed briefing.

Thereafter, the trial court signed the following Order Denying Pretrial

Application for Writ of Habeas Corpus:

The Court has considered defendant Damien Lashaun Mims’s pretrial application for writ of habeas corpus and briefing in support; the state’s response to Mims’s briefing; Mims’s reply in support of his application;

2 and the parties’ arguments and the evidence presented at the Court’s hearing on the application. The Court DENIES the application.

The order does not indicate the basis for the trial court’s ruling and does not

affirmatively state that the trial court had reached the merits of Mims’s claim or, in

contrast, had refused to issue a pretrial writ without reaching the merits. And no one

requested any findings of fact or conclusions of law.

On whether Mims has the right to appeal, the trial court signed a certification

containing the following handwritten modification to the trial court’s standard

certification form: “Defendant’s writ of habeas corpus to enforce plea bargain was

raised by written motion filed and ruled on before trial and not withdrawn or waived,

and the defendant does not have a right of appeal.” Mims appealed.

Because the trial court’s denial order did not state the basis for its ruling, but its

certification expressly indicated that Mims did not have the right to appeal, we

questioned our jurisdiction and asked the parties for a response. Neither Mims nor

the State squarely addressed the jurisdictional issue; rather, they argued about the

cognizability of Mims’s claims. So we issued an abatement order asking the trial court

to clarify Mims’s right to appeal. See Tex. R. App. P. 34.5(c), 37.1; Dears v. State,

154 S.W.3d 610, 614–15 (Tex. Crim. App. 2005).

As we explained, an order denying a pretrial writ of habeas corpus may be

appealable—even if the claims within the writ are not cognizable. See Ex parte Blakely,

No. 02-19-00426-CR, 2020 WL 719430, at *1 (Tex. App.—Fort Worth Feb. 13, 2020,

3 no pet.) (mem. op., not designated for publication) (citing Ex parte McCullough,

966 S.W.2d 529, 531 (Tex. Crim. App. 1998)); see also Ex parte Castillo, No. 04-22-

00598-CR, 2022 WL 17480551, at *1 (Tex. App.—San Antonio Dec. 7, 2022, no pet.)

(mem. op., not designated for publication) (“In a habeas corpus proceeding, an order

denying relief on the merits is a final judgment and [is] immediately appealable.”).

To determine whether we have jurisdiction over a trial court’s pretrial habeas

ruling, we review the entire record to determine whether the trial court ruled on the

merits of the claim. See Ex parte Bowers, 36 S.W.3d 926, 927 (Tex. App.—Dallas 2001,

pet. ref’d). When a trial court considers and rules on the merits of a pretrial habeas

claim, the losing party may appeal. Ex parte Villanueva, 252 S.W.3d 391, 394–95 (Tex.

Crim. App. 2008); Ex parte Martinez, No. 04-22-00475-CR, 2024 WL 349311, at

*2 (Tex. App.—San Antonio Jan. 31, 2024, no pet.) (mem. op., not designated for

publication). In contrast, if the trial court refuses to issue a writ or dismisses or denies

a habeas application without ruling on the merits of the applicant’s claim, the

applicant has no right to appeal. See Martinez, 2024 WL 349311, at *2 (first citing

Villanueva, 252 S.W.3d at 394; then Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim.

App. 1991), superseded in part by statute as discussed in Villanueva, 252 S.W.3d at 397; and

then Ex parte Garcia, 683 S.W.3d 467, 471–72 (Tex. App.—San Antonio Nov. 22,

2023, no pet.) (en banc)).

The trial court has now signed an amended certification, which certifies that

“this criminal case is not a plea-bargain case, and the defendant does not have a right

4 of appeal because [the] Trial Court did not reach the merits of his pretrial application

for writ of habeas corpus.” Both Mims and his new trial counsel signed the amended

certification, and one of them wrote above their signatures “under protest and with

objection to changed language[.]”

We again notified the parties of our concern that we lacked jurisdiction over

this appeal because the trial court’s amended certification confirms that it did not

reach the merits of Mims’s request for a pretrial writ, and we informed Mims that this

appeal would be dismissed for want of jurisdiction unless he responded with grounds

for continuing the appeal. See Tex. R. App. P. 25.2(a)(2), (f); Villanueva, 252 S.W.3d at

394–95. In response, Mims argues that the record contradicts the trial court’s

amended certification and shows that the trial court reached the merits of his habeas

application. We disagree.

The trial court’s order denying Mims’s application states what the trial court

considered, both evidence and the briefing that the parties had submitted to the trial

court. And as Mims acknowledges in his response to our jurisdictional inquiry, the

parties’ briefing addressed the parties’ respective positions on the non-merits legal

issues the trial court had raised. Because the trial court’s denial order did not specify

the grounds upon which it denied Mims’s habeas request, that is why we requested

clarification from the trial court, which it provided to us in the amended certification:

the trial court denied Mims’s pretrial application without reaching the merits. Mims

5 therefore has no right to appeal the denial order. See Villanueva, 252 S.W.3d at 394–95;

Martinez, 2024 WL 349311, at *2.

II. Conclusion

We must dismiss an appeal if the trial court’s certification, as supported by the

record, does not show the defendant has a right of appeal. Tex. R. App. P. 25.2(d); see

Dears, 154 S.W.3d at 614–15. Because that is the case here, we dismiss this appeal. See

Tex. R. App. P. 25.2(d), 43.2(f).

/s/ Elizabeth Kerr Elizabeth Kerr Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: February 27, 2025