Ex Parte Glenda Hammons

• Court: Court of Appeals of Texas
• Decided: May 25, 2022
• Docket: 10-19-00362-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-19-00362-CR

EX PARTE GLENDA HAMMONS

From the 54th District Court McLennan County, Texas Trial Court No. 2019-3806-02

OPINION

Glenda Hammons is charged under Section 22.04 (a) (2) with the offense of injury

to a child. TEX. PENAL CODE ANN. § 22.04 (a) (2). Hammons filed an Application for Writ

of Habeas Corpus arguing that Section 22.04 (a) (2) is unconstitutional on its face.

Hammons appealed the trial court’s order denying relief. On May 26, 2021, this Court

issued an opinion upholding the trial court’s ruling and concluded that § 22.04 (a) (2) was

not unconstitutional on its face. Hammons filed a petition for discretionary review with

the Court of Criminal Appeals. The Court of Criminal Appeals refused the petition for

discretionary review without prejudice, but granted review on its own motion. The Court

vacated the judgment of this Court and remanded the case to this Court to address the cognizability of the issue raised by Hammons in the pretrial habeas application. We

affirm.

Hammons was charged in a three-count indictment with injury to a child. TEX.

PENAL CODE ANN. § 22.04. Section 22.04 provides:

(a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual: (1) serious bodily injury (2) serious mental deficiency, impairment, or injury (3) bodily injury.

TEX. PENAL CODE ANN. § 22.04 (West). In Counts 1 and 3 of the indictment, Hammons

was charged under Section 22.04 (a) (2) with causing serious mental deficiency,

impairment, or injury to the complainant. In Count 2, she was charged under Section

22.04 (a) (3) with causing bodily injury to the complainant. In her Pretrial Application for

Writ of Habeas Corpus, Hammons only challenged the constitutionality of Section 22.04

(a) (2). Because Hammons does not challenge the constitutionality of Section 22.04 (a) (3),

the Court of Criminal Appeals remanded the case to this Court to determine if her claim

is cognizable.

On remand Hammons argues in her sole issue that her claim is cognizable under

22.04 (a) (2) because she makes a facial challenge to the statute, because she is restrained

by being on bond pending trial, and because she would be “immediately released from

the restraint of Counts One and Three, and the trial court would be deprived of the power

to proceed on those counts if the claims raised are resolved in her favor.”

Ex parte Hammons Page 2 In determining whether an issue is cognizable on habeas, we consider whether the

alleged defect would bring into question the trial court's power to proceed. Ex parte Weise,

55 S.W.3d 617, 619 (Tex. Crim. App. 2001). A pretrial writ application is not appropriate

when resolution of the question presented, even if resolved in favor of the applicant,

would not result in immediate release. Id. Hammons argues that “immediate release”

with respect to the charge, and not the entirety of the prosecution is consistent with

pretrial habeas jurisprudence. We disagree. Even if Section 22.04 (a) (2) was found to be

facially unconstitutional, only Counts 1 and 3 would need to be struck. The prosecution

could proceed on Count 2. Hammons would not be “immediately released” from the

restraint of the charge in Count 2. Therefore, Hammons’s claim that Section 22.04 (a) (2)

is unconstitutional on its face is not cognizable in a pretrial writ of habeas corpus. We

overrule the sole issue.

We affirm the trial court’s Order denying the Pretrial Application for Writ of

Habeas Corpus.

STEVE SMITH Justice

Before Chief Justice Gray, Justice Smith, and Justice Wright1 Affirmed Opinion delivered and filed May 25, 2022 Publish [OT06]

1 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.