Ex Parte Daniel Lee Ainsworth

Opinion

ACCEPTED 07-15-0091-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 10/26/2015 5:35:07 PM Vivian Long, Clerk

No. 07-15-00091-CR; 07-15-00106-CR; 07-15-00107-CR FILED IN 7th COURT OF APPEALS __________________________________________________________________ AMARILLO, TEXAS 10/26/2015 5:35:07 PM IN THE COURT OF APPEALS VIVIAN LONG FOR THE SEVENTH DISTRICT OF TEXAS CLERK AT AMARILLO, TEXAS __________________________________________________________________

DANIEL LEE AINSWORTH, APPELLANT

VS.

THE STATE OF TEXAS, APPELLEE __________________________________________________________________

On Appeal From The County Court At Law No. 1 of Potter County, Texas Honorable W. F. “CORKY” ROBERTS, Presiding Trial Court Cause No. 141,066-1; 141,094-1; 141,118-1

BRIEF FOR THE STATE OF TEXAS

C. SCOTT BRUMLEY POTTER COUNTY ATTORNEY State Bar No. 00783738

J. WILLIAM RICHMOND Assistant County Attorney State Bar No. 24085552 500 South Fillmore, Room 303 Amarillo, Texas 79101 Telephone: (806) 379-2255 Fax: (806) 379-2215 Email: williamrichmond@co.potter.tx.us ATTORNEYS FOR THE STATE ORAL ARGUMENT WAIVED IDENTITY OF PARTIES AND COUNSEL

Appellant……………………………………. Daniel Lee Ainsworth TDCJ #00615301 Telford Unit 3899 Hwy 98 New Boston, TX 75570

Appellant’s Appellate Counsel……………. W. Brooks Barfield Jr. P.O. Box 308 Amarillo, TX 79105

Appellee……………………………………… THE STATE OF TEXAS

C. SCOTT BRUMLEY COUNTY ATTORNEY

J. William Richmond Trial and Appellate Counsel

500 S. Fillmore, Room 303 Amarillo, Texas 79101

i TABLE OF CONTENTS

IDENTITY OF PARIES…………………………………….……………….i

INDEX OF AUTHORITIES ……………………………………..….………iii

STATEMENT OF THE CASE …………………………………….…..……2

STATEMENT OF THE FACTS …………………………………..….……..2

SUMMARY OF THE STATE’S ARGUMENTS………………….…..…….3

ARGUMENT..…………………………………………………………….….3

STATE’S RESPONSE TO ISSUE ONE: a. The alleged harm that Applicant suffered has been rendered moot. b. The trial court did not have the authority to grant or deny Applicant’s writ. c. Even if the trial court did have the authority over the writ, it did not abuse its discretion in denying the writ.

CONCLUSION…………………………………………………………..……10

PRAYER ……………………………..……………………………….……….10

CERTIFICATE OF COMPLIANCE……………………………………….….11

CERTIFICATE OF SERVICE ………………………………………………..11

ii INDEX OF AUTHORITIES

CASES

Bennet v. State, 818 S.W.2d 199, 199-200 (Tex.Crim.App. 1991)…………….5

Board of Pardons and Parolex ex. Rel. Keene v/ court of Appeals for the Eight Dist., 910 S.W.2d 481, 483 (Tex.Crim.App. 1995)…………………...…...….....5,6

Ex parte Elliot, 746 S.W.2d 762 (Tex.Crim.App. 1988)………………………..6

Ex parte Hoang, 872 S.W.2d 694 (Tex.Crim.App. 1993)………………..….....5

Ex parte Layton, 928 S.W.2d 781, 781-82 (Tex.Crim.App.- Amarillo 1996)…7

Ex parte Okere, 56 S.W.3d 846, 854 (Tex.Crim.App. 2001)…………………..7

Ex parte Schmidt, Tex.Crim.App. 109 S.W.3d 480, 483 (2003)………….……5

Ex parte White, 400 S.W.3d 92, 93 (Tex.Crim.App. 2013)…………………….6

In re Vincent Friemel, No. 07-08-0216-CV, 2008 WL 2346396 (Tex.Crim.App. 1995)…………………………………………………………………….……….5

Knight v. Estelle, 501 F.2d 963, 964 (U.S. Fifth Cir. 1974)…………………….8

Martinez v. State, 826 S.W.2d 620, 620 (Tex.Crim.App 1992)…………………5

Saucedo v. State, 795 S.W.2d 8, 9 (Tex.App.-Houston 1990)…………………..5

CODES

TEX. CODE CRIM. PROC. Art. 4.07…………………………………….…..…5

TEX. CODE CRIM. PROC. Art. 11.01…………………………………….……5

TEX. CODE CRIM. PROC. Art. 11.07………………………………………….5,6

TEX. CODE CRIM PROC. Art. 11.09………………………………………..…5

TEX. GOV. CODE Art. 508.254……………………………………….………..7

TEX. GOV. CODE Art. 508.282………………………………………...………8

iii TEX. PEN. CODE Sec. 12.21…………...……………………………..………...2

iv No. 07-15-00091-CR; 07-15-00106-CR; 07-15-00107-CR __________________________________________________________________

IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO, TEXAS __________________________________________________________________

THE STATE OF TEXAS, APPELLEE __________________________________________________________________

On Appeal From The County Court At Law No. 1 of Potter County, Texas Honorable W. F. “CORKY” ROBERTS, Presiding Trial Court Cause No. 141,066-1; 141,094-1; 141,118-1

__________________________________________________

BRIEF FOR THE STATE __________________________________________________

TO THE HONORABLE COURT OF APPEALS:

Comes now the State, by and through its Assistant County Attorney, and

respectfully submits its brief on Applicant’s request for an 11.09 writ, urging that

this Honorable Court deny Applicant’s appeal.

1 STATEMENT OF THE CASE

Applicant was charged by information in cause numbers 141,066-1,

141,094-1, and 141,118-1 in the County Court at Law No. One of Potter County,

Texas, all alleged to have occurred on February 27, 2014. R.R.vol.2. pg.8. This

was a unified proceeding with only one Reporter’s Record, so all cites are the

same for all cause numbers. Applicant was charged with Terroristic Threat,

Family Violence, in cause number 141,066-1; Assault Causes Bodily Injury,

Family Violence; and Interference with an Emergency Request For Assistance in

cause number 141,118-1. CR 141,006 pg.6; CR 141,094 pg.6; CR 141,118 pg.6.

All three offenses are Class A misdemeanors, punishable by a fine not to exceed

$4,000; confinement in jail for a term not to exceed 365 days; or both such fine

and confinement. Tex. Pen. Code Section 12.21, 2013.

On January 27, 2015 Applicant’s filed his writ for all three charges. On

February 3, 2015, the trial court held a hearing on the writ, and denied it. RR vol.

1 pg. 15. A unified bench trial was held on April 27, 2015. The Appellant

pleaded not guilty to all three charges. R.R. vol.2 pg.16. The trial court found the

Appellant guilty of all three charges. The trial court assessed punishment for cause

number 141,066-1 at one year in the Potter County jail, plus a $4000.00 fine;

cause number 141,094-1, at one year in the Potter County jail, plus a $4000.00

fine; and in cause number 141,118-1, at one year in the Potter County jail, plus a

$4000.00 fine. CR 141,066 pg. 66-67, CR 141,094 pg. 68-69, CR 141,118 pg. 68-

69.

2 Applicant filed separate appeals on both the denial of his writ and the

verdict at trial. This brief only pertains to the denial of the writ. This Court

abated the appellate proceedings and ordered the trial court to hold a hearing on

whether to appoint counsel for the Applicant on his writ action. As a result of that

hearing, appellate counsel was appointed for the Applicant. This Court then

reinstated the appellate proceedings.

STATEMENT OF FACTS

The Appellee stipulates that the Statement of Facts as set forth in the

Appellant’s brief are correct, save for the section entitled “Writ Hearing February

3, 2015” on page 9. The State would submit its own Statement of Facts for that

section only:

WRIT HEARING FEBRUARY 3, 2015

The trial court conducted a hearing on Applicant’s writ. Applicant

represented himself, with assistance from counsel. RR vol. 1 pg. 2. Applicant

argued that he was being illegally detained on a blue warrant. The blue warrant

stated that the charge was Aggravated Assault with a Deadly Weapon, but the

violation itself was that Office Renner with the Amarillo Police Department had

submitted a report that the Applicant had assaulted Patricia Peek. The blue

warrant was issued on July 14, 2015. The felony was dismissed on December 1,

2015. The misdemeanor charges were based on the same facts that had given rise

to the dismissed aggravated assault charge. RR vol. 1 pg. 15.

3 Applicant argued that any court could issue a writ for any person

unlawfully detained, regardless of where the detainment occurred or what it was

based on. RR vol. 1 .pg. 11. The State was unsure whether the trial court had that

type of authority. RR vol. 1 pg. 11. The trial court denied the writ without

comment. RR vol. 1 pg. 15.

SUMMARY OF THE STATE’S ARGUMENTS

Issue One, as to whether the trial court erred in denying Applicant’s relief: a. The harm that Applicant has allegedly suffered has been rendered moot. If the premise of a habeus corpus application has been destroyed by subsequent developments, than the issue is rendered moot. Since the denial of the writ, Applicant was found guilty on his misdemeanor charges and was revoked off of parole. Since he is no longer in the custody of the Potter County Detention Center, and the blue warrant is no longer in existence, the issue of whether it should have been retracted has been rendered moot. b. The trial court did not have the authority to grant or deny Applicant’s writ. In a post-conviction proceeding for a felony, the sole court with authority to hear a request for a writ is the Court of Criminal Appeals. Applicant was a parolee with a final conviction for a felony. He was being held on a blue warrant, which alleged a violation of Applicant’s parole. This necessarily means that the only court that had the authority to hear his writ was the Court of Criminal Appeals. c. Even if the trial court had the authority to rule on the writ, it was justified in doing so. The Government Code only requires the Parole Board to give a parolee a preliminary hearing within 41 days of revoking his parole if the violation is of an administrative nature. Since

4 the Applicant committed a criminal violation of his parole, and the blue warrant was issued because Applicant had assaulted a person, the trial court could justifiably deny Applicant’s writ.

ARGUMENT

THE STATE’S RESPONSE TO ISSUE ONE

a. THE ISSUE HAS BEEN RENDERED MOOT

LEGAL STANDARD

A habeus corpus application is an extraordinary remedy. Bennet v. State,

818 S.W.2d 199, 199 (Tex.Crim.App.- Houston 1991). When the premise of a

habeus corpus application has been destroyed by subsequent development, the

case is rendered moot. Id at 200, ctg. Saucedo v. State, 795 S.W.2d 8, 9

(Tex.App.-Houston) 1990. When the applicant is no longer subject to pre-trial

confinement, the habeus petition becomes moot. Martinez v. State, 826 S.W.2d

620, 620 (Tex.Crim.App 1992).

PRESENT CASE

In this case, the Applicant appealed the denial of his habeus corpus petition

after he had been tried, convicted, and sentenced. He has appeals pending on his

misdemeanor convictions, but the sentences themselves have been served. The

Applicant is no longer in the custody of the Potter County Detention Center, and

has since been transferred to the Texas Department of Criminal Justice. These

developments have effectively rendered Applicant’s appeal of his habeus corpus

denial moot. The blue warrant is no longer in effect. Applicant’s requested relief

5 bears out the mootness argument. He has asked for a new trial or to reverse his

convictions. Applicant’s trial, conviction, and sentence had nothing to do with his

habeus corpus petition, which was based on whether the Parole Board should have

recalled its warrant. The misdemeanors that Applicant was on trial for were

irrelevant as to whether the blue warrant was still valid.

b. THE TRIAL COURT DID NOT HAVE AUTHORITY TO RULE

ON APPLICANT’S WRIT.

County courts at law have original jurisdiction over misdemeanors over

which exclusive jurisdiction is not given to the justice courts, and when the fine to

be imposed is over 500 dollars. Tex. Code Crim. Proc. Art. 4.07 (2013). A person

charged with a misdemeanor may apply for a writ of habeus corpus to the county

judge in the county where the misdemeanor is alleged to have been committed.

Tex. Code Crim. Proc. Art 11.09 (2013). A writ for habeus corpus is the remedy

given to a person who is unlawfully restrained in their liberty. Tex. Code Crim.

Proc. Art 11.01 (2013). A county court at law can only have jurisdiction over the

writ when the restraint is based on a conviction or accusation of a misdemeanor.

Ex parte Schmidt, Tex.Crim.App. 109 S.W.3d 480, 483 (2003).

The Court of Criminal Appeals has the exclusive jurisdiction over a post-

conviction writ of habeus corpus in felony cases. In re Vincent Friemel, No. 07-

08-0216-CV, 2008 WL 2346396 (Tex.Crim.App-Amarillo June 4, 2008), ctg.

Board of Pardons and Paroles ex. Rel. Keene v. Court of Appeals for the Eight

6 Dist., 910 S.W.2d 481, 483 (Tex.Crim.App. 1995); Tex. Code Crim. Proc. Art.

11.07(3) (Verson Supp. 2007); see also Ex parte Hoang 872 S.W.2d 694

(Tex.Crim.App 1993). Parole is a form of restraint which allows the applicant to

pursue remedies under the Texas Code of Criminal Procedure 11.07. Board of

Pardons and Paroles ex Rel. Keene 910 S.W.2d at 483, ctg. Ex Parte Elliot, 746

S.W.2d 762 (Tex.Crim.App. 1988). If the parole has been unlawfully revoked, the

applicant must first bring it to the attention of the court where the applicant

received his final conviction. Board of Pardons and Paroles ex Rel. Keene 910

S.W.2d at 483. The convicting court must then review the writ, and if the applicant

has not shown any facts that would question the underlying validity of the

conviction, the court clerk must then transmit a copy of the writ to the Court of

Criminal Appeals within 20 days. Id, citing Tex. Code Crim. Proc. Art. 11.07(3).

In the present case, the Applicant was being held on a parole revocation,

not a misdemeanor. The Applicant has argued that the blue warrant should have

been lifted once the felony charge was dismissed. A blue warrant is an arrest

warrant issued by the Parole Board for a parolee who is suspected of violating

their parole. See Ex part White, 400 S.W.3d 92, 93 (Tex.Crim.App. 2013).

Applicant was not challenging the misdemeanors that he had been accused of, but

the Parole Board’s continuing custody over him.

Applicant was a parolee who necessarily must have had a final felony

conviction. Therefore, the proper court, and indeed the only court with authority

7 to hear Applicant’s writ, was the Court of Criminal Appeals. The Applicant

should have sent the writ to the court that convicted him of the felony for which he

was on parole for, and which would have then forwarded on to the Court of

Criminal Appeals. County courts do not have jurisdiction to hear issues related to

parole revocations.

Even if this Court wanted to grant Applicant the relief he requests, it could

not. Court of appeals can only grant writs in cases where the applicant has been

committed in a civil court proceeding. Ex Parte Layton, 928 S.W.2d 781

(Tex.Crim.App.-Amarillo 1996). Furthermore, the applicant must be physically

located in the same district as the appellate court. Id. Since this is not a civil case,

and the Applicant is located in a county served outside of the 7th Court of Appeals

jurisdiction, relief cannot be granted to the Applicant.

c. EVEN IF THE TRIAL COURT HAD JURISDICTION OVER

THE WRIT, IT WAS JUSTIFIED IN DENYING IT

An appellate court reviews the denial of a writ for habeus corpus de novo,

if the resolution of the writ turns on an application of legal standards. Ex parte

Okere, 56 S.W.3d 846, 854 (Tex.Crim.App 2001). Texas Government Code

Section 508.282(a)(1)(a) states that charges against a parolee must be resolved

before the 41st day after the warrant is executed, if the parolee has only been

charged with an administrative violation and no charges for an offense involving

anything other than a Class C misdemeanor have been filed. (2013). An

8 administrative violation is defined as a technical violation of parole which does

not allege criminal conduct. 2014 Tx. Reg. Text 359502 (NS) (2014). A parolee

who is the subject of a warrant may be held in custody pending a determination of

the facts around the alleged offense, violation of a rule, or condition of release.

Tex. Gov. Code Art 508.254(2) (2015).

The blue warrant was valid because it was not based on an administrative

offense. Applicant argues that because the blue warrant was not released after 41

days, it should have been released. However, the Parole Board was only required

to release the warrant if the Applicant had only committed a technical violation

and no charges were brought after the warrant was executed. Here, the Parole

Board was not alleging a technical violation but a criminal one: that he had

assaulted another person.

Applicant has further argued that because the title of the violation was for

Aggravated Assault with a Deadly Weapon, the blue warrant should have been

withdrawn once the felony charge was dismissed. The Parole Board is not

automatically prohibited from revoking a parolee’s parole simply because the

charges against the parolee have resulted in something other than a conviction. See

Knight v. Estelle, 501 F.2d 963, 964 (U.S. Fifth. Cir. 1974) (“a parole revocation

hearing is not a criminal proceeding. Its purpose is not to assess guilt or to assign

blameworthy acts to the various discrete pigeonholes of the criminal laws. Rather

9 it is held to determine whether the attempt by parole to restore the parolee to the

ranks of the carriers and remove him from those of the carried has failed.”)

Furthermore, Applicant’s argument ignores the substance of the violation.

The summary of the violation report stated that the Applicant had assaulted

Patricia Peek, as corroborated by an incident report filed by Office Renner of the

Amarillo Police Department. Exhibit 1. To the Parole Division, the actual criminal

charge was not so important as the Applicant’s actual conduct. It was issued in

good faith by the Parole Board. To give the Applicant his asked-for relief would

result in a windfall based on how the Parole Division chose to title a violation of a

parolee, and which would result in a gross perversion of the law.

CONCLUSION

Appellant’s contentions are without merit. The trial court did not have the

authority to rule on his writ, and even if it had, Applicant’s writ was rightly

denied.

PRAYER

Wherefore, the State of Texas prays that the Court denies Applicant’s

appeal.

Respectfully submitted,

C. SCOTT BRUMLEY Potter County Attorney

/S/ J. William Richmond J. WILLIAM RICHMOND 10 Assistant County Attorney 500 S. Fillmore, Room 303 Amarillo, TX 79101 State Bar No. 24085552 Phone: (806) 379-2255 Fax: (806) 379-2215 Email: williamrichmond@co.potter.tx.us

CERTIFICATE OF COMPLIANCE

I certify that this document brief was prepared with Microsoft Word 2010, and that, according to that program’s word-count function, the sections covered by TRAP 9.4(i)(1) contain 2,222 words.

/S/ J. William Richmond Assistant County Attorney

CERTIFICATE OF SERVICE

A true copy of the State’s brief was delivered to counsel for Appellant, Brooks Barfield Jr., on this 26th day of October, 2015.