In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-20-00216-CR
EX PARTE KEVIN DALE SHEFFIELD
On Appeal from the 413th District Court of Johnson County, Texas Trial Court No. DC-F201900865-1, Honorable William C. Bosworth, Jr., Presiding
October 20, 2020
ORDER ON MOTION FOR REHEARING Before QUINN, C.J., PARKER and DOSS, JJ.
Pending before this court is the State’s motion for rehearing. It cites “precedent,
brought to this Court’s attention for the first time” and urges us to reconsider a portion of
our earlier opinion.1 The portion is that wherein we held: “denying Sheffield’s motion for
a speedy trial because the Office of Court Administration, the Presiding Judge of the
Texas Court of Criminal Appeals, or the Chief Justice of the Texas Supreme Court
purportedly told the trial court at bar to indefinitely forgo proceedings last Spring was and
is an erroneous legal basis upon which to act.” Ex parte Sheffield, No. 07-20-00216-CR,
1 The State does now what it did not do when the merits of the appeal were considered, that is, respond to Sheffield’s speedy trial complaint. 2020 Tex. App. LEXIS 7598, at *9 (Tex. App.—Amarillo Sept. 17, 2020, no pet. h.) (mem.
op., not designated for publication). Allegedly, the newly cited precedent denies us
jurisdiction to make that pronouncement via an interlocutory appeal from an order denying
a petition for habeas relief. That “precedent” is inapposite, however.
The opinions cited by the State may concern the right to speedy trial and an
interlocutory appeal from the denial of a writ of habeas corpus. Yet, the relief sought in
them was dismissal or discharge based upon a purported denial of the right. The
respective trial courts refused to do either. See, e.g., Ex parte Doster, 303 S.W.3d 720,
721 (Tex. Crim. App. 2010) (raising, via an interlocutory appeal, the trial court’s refusal to
dismiss the prosecution due to the violation of the Interstate Agreement on Detainers
and analogizing it to speedy trial violations); Ex parte Delbert, 582 S.W.2d 145, 145 (Tex.
Crim. App. 1979) (noting that “[t]his is an appeal from an order denying relief after habeas
corpus proceedings were instituted for the purpose of having the petitioner discharged
for failure to provide a speedy trial”) (emphasis added); Ex parte Jones, 449 S.W.2d 59,
59 (Tex. Crim. App. 1970) (noting that “[a]ppellant next contends that he should be
discharged, because he has been denied a speedy trial as provided for in Article I, Sec.
10, Vernon’s Annotated Constitution of Texas”) (emphasis added). Furthermore, the
Doster court ruled as it did upon observing that 1) an exception to the rule against pretrial
appeals for speedy trial claims actually threatened the values manifested in the Speedy
Trial Clause, those values being a speedy disposition of the criminal action, Ex parte
Doster, 303 S.W.3d at 726 (quoting United States v. MacDonald, 435 U.S. 850, 861, 98
S. Ct. 1547, 56 L. Ed. 2d 18 (1978)), and 2) the right to a speedy trial did not embody a
right “not to be tried” but rather a right to a speedy disposition. Id. at 727.
2 As for Delbert, the court applied the rationale in Ordunez v. Bean, 579 S.W.2d 911
(1979) (involving a petition for writ of mandamus), to reject the defendant’s attempt to
gain freedom through an interlocutory appeal of an order denying habeas relief. Ex parte
Delbert, 582 S.W.2d at 145. Simply put, it said that the defendant had an adequate legal
remedy through an appeal perfected after conviction. Id. (quoting Ordunez, 579 S.W.2d
at 913–14).
Here, Sheffield did not seek dismissal or discharge. He wanted to be tried and,
thereby, avoid being made to languish in jail due to an inability to post bond. Asking to
be tried is not the norm when a defendant invokes the right to a speedy trial.
Nevertheless, and unlike the relief sought by the defendants in the State’s precedent,
seeking a trial when a court indefinitely refuses one furthers the values inherent in the
Speedy Trial Clause, as does testing the refusal through an interlocutory appeal. In both
instances, the complainant pursues a speedy disposition. So, the rationale underlying
Doster comes up short, at bar.
Additionally, denying him the right at issue while leaving him in jail hardly affords
him the legal remedy deemed pivotal in Delbert and Ordunez. That is, appealing after
conviction is not a viable remedy when the very act found objectionable precludes the
necessary element for enjoying the legal remedy from arising. Without a trial, there can
be no conviction. Without a conviction, there can be no post-conviction appeal. And,
Sheffield is being denied that trial.
If nothing else, we learn from Ex parte Perry, 483 S.W.3d 884 (Tex. Crim. App.
2016), that the rules regulating interlocutory appeals from orders denying habeas relief
are strict, but not immutable. That case involved effort by the Texas Governor to raise
3 constitutional claims through a pretrial writ of habeas corpus. More importantly, our Court
of Criminal Appeals uniformly ruled that those type of claims could not be pursued through
that procedural mechanism. Yet, it created an exception given the peculiar and weighty
circumstances before it.
As said in Perry, “[p]retrial habeas, followed by an interlocutory appeal, is an
extraordinary remedy . . . 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.’” Id. at 895 (quoting Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim.
App. 2001)). For instance, “we have stated that pretrial habeas cannot be used to
advance an as-applied constitutional challenge to a statute.” Id. Furthermore, “[t]he court
of appeals relied on these statements to hold that Governor Perry could not litigate his
as-applied claims before trial.” Id. Now, “[w]e conclude, however, that the nature of the
constitutional right at issue entitles him to raise these claims by pretrial habeas corpus.”
Id. We “allow certain types of claims to be raised by pretrial habeas because the rights
underlying those claims would be effectively undermined if not vindicated before trial.” Id.
As exemplified by those statements and the result in Perry, the rules controlling pretrial
habeas relief are strict, but not immutable. For those “certain types of claims” where “the
rights underlying” them “would be effectively undermined if not vindicated before trial,” a
pretrial writ for habeas relief may be the appropriate course of action. The constitutional
claim urged by Sheffield here is one such right given the unique circumstances preventing
its enjoyment. Unless addressed before trial, the denial of his entitlement to a speedy
disposition cannot be vindicated when the trial judge indefinitely forgoes trial. His claim
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-20-00216-CR
EX PARTE KEVIN DALE SHEFFIELD
On Appeal from the 413th District Court of Johnson County, Texas Trial Court No. DC-F201900865-1, Honorable William C. Bosworth, Jr., Presiding
October 20, 2020
ORDER ON MOTION FOR REHEARING Before QUINN, C.J., PARKER and DOSS, JJ.
Pending before this court is the State’s motion for rehearing. It cites “precedent,
brought to this Court’s attention for the first time” and urges us to reconsider a portion of
our earlier opinion.1 The portion is that wherein we held: “denying Sheffield’s motion for
a speedy trial because the Office of Court Administration, the Presiding Judge of the
Texas Court of Criminal Appeals, or the Chief Justice of the Texas Supreme Court
purportedly told the trial court at bar to indefinitely forgo proceedings last Spring was and
is an erroneous legal basis upon which to act.” Ex parte Sheffield, No. 07-20-00216-CR,
1 The State does now what it did not do when the merits of the appeal were considered, that is, respond to Sheffield’s speedy trial complaint. 2020 Tex. App. LEXIS 7598, at *9 (Tex. App.—Amarillo Sept. 17, 2020, no pet. h.) (mem.
op., not designated for publication). Allegedly, the newly cited precedent denies us
jurisdiction to make that pronouncement via an interlocutory appeal from an order denying
a petition for habeas relief. That “precedent” is inapposite, however.
The opinions cited by the State may concern the right to speedy trial and an
interlocutory appeal from the denial of a writ of habeas corpus. Yet, the relief sought in
them was dismissal or discharge based upon a purported denial of the right. The
respective trial courts refused to do either. See, e.g., Ex parte Doster, 303 S.W.3d 720,
721 (Tex. Crim. App. 2010) (raising, via an interlocutory appeal, the trial court’s refusal to
dismiss the prosecution due to the violation of the Interstate Agreement on Detainers
and analogizing it to speedy trial violations); Ex parte Delbert, 582 S.W.2d 145, 145 (Tex.
Crim. App. 1979) (noting that “[t]his is an appeal from an order denying relief after habeas
corpus proceedings were instituted for the purpose of having the petitioner discharged
for failure to provide a speedy trial”) (emphasis added); Ex parte Jones, 449 S.W.2d 59,
59 (Tex. Crim. App. 1970) (noting that “[a]ppellant next contends that he should be
discharged, because he has been denied a speedy trial as provided for in Article I, Sec.
10, Vernon’s Annotated Constitution of Texas”) (emphasis added). Furthermore, the
Doster court ruled as it did upon observing that 1) an exception to the rule against pretrial
appeals for speedy trial claims actually threatened the values manifested in the Speedy
Trial Clause, those values being a speedy disposition of the criminal action, Ex parte
Doster, 303 S.W.3d at 726 (quoting United States v. MacDonald, 435 U.S. 850, 861, 98
S. Ct. 1547, 56 L. Ed. 2d 18 (1978)), and 2) the right to a speedy trial did not embody a
right “not to be tried” but rather a right to a speedy disposition. Id. at 727.
2 As for Delbert, the court applied the rationale in Ordunez v. Bean, 579 S.W.2d 911
(1979) (involving a petition for writ of mandamus), to reject the defendant’s attempt to
gain freedom through an interlocutory appeal of an order denying habeas relief. Ex parte
Delbert, 582 S.W.2d at 145. Simply put, it said that the defendant had an adequate legal
remedy through an appeal perfected after conviction. Id. (quoting Ordunez, 579 S.W.2d
at 913–14).
Here, Sheffield did not seek dismissal or discharge. He wanted to be tried and,
thereby, avoid being made to languish in jail due to an inability to post bond. Asking to
be tried is not the norm when a defendant invokes the right to a speedy trial.
Nevertheless, and unlike the relief sought by the defendants in the State’s precedent,
seeking a trial when a court indefinitely refuses one furthers the values inherent in the
Speedy Trial Clause, as does testing the refusal through an interlocutory appeal. In both
instances, the complainant pursues a speedy disposition. So, the rationale underlying
Doster comes up short, at bar.
Additionally, denying him the right at issue while leaving him in jail hardly affords
him the legal remedy deemed pivotal in Delbert and Ordunez. That is, appealing after
conviction is not a viable remedy when the very act found objectionable precludes the
necessary element for enjoying the legal remedy from arising. Without a trial, there can
be no conviction. Without a conviction, there can be no post-conviction appeal. And,
Sheffield is being denied that trial.
If nothing else, we learn from Ex parte Perry, 483 S.W.3d 884 (Tex. Crim. App.
2016), that the rules regulating interlocutory appeals from orders denying habeas relief
are strict, but not immutable. That case involved effort by the Texas Governor to raise
3 constitutional claims through a pretrial writ of habeas corpus. More importantly, our Court
of Criminal Appeals uniformly ruled that those type of claims could not be pursued through
that procedural mechanism. Yet, it created an exception given the peculiar and weighty
circumstances before it.
As said in Perry, “[p]retrial habeas, followed by an interlocutory appeal, is an
extraordinary remedy . . . 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.’” Id. at 895 (quoting Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim.
App. 2001)). For instance, “we have stated that pretrial habeas cannot be used to
advance an as-applied constitutional challenge to a statute.” Id. Furthermore, “[t]he court
of appeals relied on these statements to hold that Governor Perry could not litigate his
as-applied claims before trial.” Id. Now, “[w]e conclude, however, that the nature of the
constitutional right at issue entitles him to raise these claims by pretrial habeas corpus.”
Id. We “allow certain types of claims to be raised by pretrial habeas because the rights
underlying those claims would be effectively undermined if not vindicated before trial.” Id.
As exemplified by those statements and the result in Perry, the rules controlling pretrial
habeas relief are strict, but not immutable. For those “certain types of claims” where “the
rights underlying” them “would be effectively undermined if not vindicated before trial,” a
pretrial writ for habeas relief may be the appropriate course of action. The constitutional
claim urged by Sheffield here is one such right given the unique circumstances preventing
its enjoyment. Unless addressed before trial, the denial of his entitlement to a speedy
disposition cannot be vindicated when the trial judge indefinitely forgoes trial. His claim
entails a substantive right to a timely disposition of the charges against him, which right
4 is being effectively undermined through administrative fiat. These circumstances satisfy
the very criteria used in Perry to justify deviation from historical limitations imposed on the
availability of habeas relief. So, we disagree with the State, conclude that we have
jurisdiction over the claim and deny rehearing.2
Brian Quinn Chief Justice
Publish.
2 In reaching our decision, we do not ignore the State’s reference to Raines v. State, No. 10-20-
00167-CR, 2020 Tex. App. LEXIS 5252 (Tex. App.—Waco July 9, 2020, no pet.) (mem. op., not designated for publication). There, “Charles Raines attempt[ed] to appeal the trial court’s order withdrawing its grant of Raines’s motion for speedy trial in each of his six criminal cases.” Id. at *1. Whether Raines sought to have the accusations against him dismissed is not mentioned in the opinion. Nevertheless, it seems rather clear that the circumstances involved a “motion” and an interlocutory appeal from action on that “motion.” Id. No doubt, reviewing courts generally lack jurisdiction over interlocutory appeals from an order denying a “motion” unless statute permits it. Abbott v. State., 271 S.W.3d 694, 696–97 (Tex. Crim. App. 2008). We do not have before us an appeal from a “motion” but rather from the denial of an application for writ of habeas corpus. Such an appeal is a viable mechanism by which to present cognizable claims to an intermediate appellate court. And, while the refusal to dismiss a criminal prosecution due to a delay in obtaining a speedy trial may not be a cognizable claim, nothing said by the Raines court can be read as holding that the same is true when the appellant complains of a trial court’s indefinite refusal to convene a trial.