Ex Parte: Tyrone Jamaal Williams

• Court: Court of Appeals of Texas
• Decided: September 2, 2021
• Docket: 05-21-00482-CR
• Status: Published

Opinion

DISMISSED and Opinion Filed September 2, 2021

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00482-CR

EX PARTE TYRONE JAMAAL WILLIAMS

On Appeal from the 196th District Court Hunt County, Texas Trial Court Cause No. 31293

MEMORANDUM OPINION Before Justices Molberg, Nowell, and Goldstein Opinion by Justice Molberg Tyrone Jamaal Williams appeals the trial court’s order denying relief on his

pretrial application for writ of habeas corpus. In a single issue, appellant contends

article 37.071, section 2(a)(1) of the code of criminal procedure violates the First

Amendment right to freedom of speech. Appellant has filed his brief. Rather than

file its brief, the State has filed a Motion to Apply Rule 2 of the Texas Rules of

Appellate Procedure to Expeditiously Resolve Appellant’s Non-Cognizable Claim.

In its motion, the State seeks to forgo further briefing and have the Court

dismiss appellant’s appeal on the ground his issue is not cognizable as a pretrial

habeas matter. Appellant has responded he does not object to the State not submitting

a brief under rule 2, but he insists his issue is cognizable and requests the Court stay approaching trial proceedings to consider the merits of this case. Appellant has

informed the Court that general voir dire in his trial is scheduled to begin September

8, 2021 and individual voir dire begins September 13, 2021.1

Concluding appellant’s issue is non-cognizable, we grant the State’s motion

and dismiss the appeal.

APPLICATION OF RULE 2

Rule 2 of the Texas Rules of Appellate Procedure provides:

On a party’s motion or on its own initiative an appellate court may—to expedite a decision or for other good cause—suspend a rule’s operation in a particular case and order a different procedure; but a court must not construe this rule to suspend any provision in the Code of Criminal Procedure or to alter the time for perfecting an appeal in a civil case.

TEX. R. APP. P. 2.

Initially, we note that we need not necessarily resort to rule 2 to submit this

case on the partial briefing already completed. Habeas appeals are governed by rule

of appellate procedure 31. See TEX. R. APP. P. 31. Rule 31 gives the Court substantial

flexibility to adjust briefing and submission to expedite review of habeas appeals.

Under rule 31, the Court may consider a habeas appeal without briefing if it so

desires. See id. at 31.1(b). The rule further provides that a habeas appeal “shall be

submitted and heard at the earliest practicable time.” See id. at 31.2(b). “The sole

purpose of the appeal is to do substantial justice to the parties.” See id. at 31.2.

1 In its motion, the State reports individual voir dire begins on September 15, 2021.

–2– According to the record, appellant was indicted on August 26, 2016 for capital

murder and other offenses. Thus, this case has been pending for a considerable

period of time. During the hearing on appellant’s writ application, held on May 6,

2021, appellant’s counsel represented to the trial court:

I would let the Court know that I don’t intend to seek to stay the proceedings in this case. I do believe that we are going to pursue it by way—to the appropriate appellate avenues but I think that all can be done with the current trial scheduling. I just wanted to, you know, let the Court know that.

We conclude under the circumstances presented, applying rule 31, and rule 2

to the extent necessary, that doing substantial justice to the parties requires the Court

to consider the State’s dispositive motion without further briefing from the parties

and without disrupting the scheduled trial. Accordingly, we suspend further briefing

and proceed to consider the State’s motion.

PRINCIPLES OF COGNIZABILITY

Whether a claim is cognizable through pretrial habeas proceedings is a

threshold issue that we must address before considering the merits of the claim. Ex

parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010). Pretrial habeas, followed by

an interlocutory appeal, is an extraordinary remedy reserved for situations in which

interlocutory review best protects an accused’s substantive rights or conserves

judicial resources. Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016).

Courts must use the remedy carefully to ensure that only appropriate matters receive

pretrial appellate review. Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App.

–3– 2010). Pretrial habeas relief is available only in a limited number of circumstances

where the accused is challenging (1) the State’s right to hold or restrain the accused

at all; (2) the manner of restraint, such as denial of bail or bail conditions; and (3)

consideration of issues that would bar prosecution or conviction. Ex parte Smith,

178 S.W.3d 797, 801 (Tex. Crim. App. 2005).

Except for matters of double jeopardy, “pretrial habeas is not appropriate

when the question presented, even if resolved in the defendant’s favor, would not

result in immediate release.” Doster, 303 S.W.3d at 724. An appellate court should

not entertain a pretrial habeas writ application when the accused has an adequate

remedy by appeal. Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001).

In his writ application and now in his appellate brief, appellant mounts a facial

challenge to the constitutionality of article 37.071, section 2(a)(1). A facial challenge

attacks the statute itself rather than contending it operates unconstitutionally in a

particular application. Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015).

An accused may raise on pretrial habeas a facial challenge to “the statute defining

the offense.” Ex parte Ingram, 533 S.W.3d 887, 892 (Tex. Crim. App. 2017).

THE STATUTE AND APPELLANT’S ISSUE

Article 37.071 provides procedures to be followed in the sentencing phase of

capital cases. See TEX. CODE CRIM. PROC. art. 37.071. Appellant is challenging the

last sentence of article 37.071, section 2(a)(1), which states: “The court, the attorney

representing the state, the defendant, or the defendant’s counsel may not inform a

–4– juror or a prospective juror of the effect of a failure of a jury to agree on issues

submitted under Subsection (c) or (e).”2

In his brief, appellant contends trial participants have a right to free speech in

the court room and that right extends to informing jurors and potential jurors of the

effect not reaching a unanimous decision on punishment issues may have on the

case. Appellant characterizes section 2(a)(1) as a regulation of the content of speech

subject to strict scrutiny. Appellant contends the statute cannot survive strict scrutiny

because the law serves no compelling governmental interest.

Appellant argues trial judges have a duty to adequately explain the law to the

jury, and counsel has a duty to zealously advocate for his client. Appellant contends

counsel cannot render effective assistance if the statute hampers counsel’s ability to

conduct voir dire and make intelligent challenges without being able to question the

jurors about the possibility of a non-unanimous sentencing verdict. Appellant

contends the statute operates as a “gag rule,” depriving the jurors of highly relevant

information, leaving them misinformed about their role in the sentencing process,

and potentially causing them to speculate incorrectly that a non-unanimous verdict

2 Under subsection (b), the jury must determine “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;” and a second issue applicable to cases where the defendant may be found guilty as a party. Subsection (c) requires the jury to return a special verdict of “yes” or ‘no” to each issue submitted under subsection (b) and places the burden of proof on each issue on the State. Subsection (e) sets out an additional issue regarding mitigating circumstances the jury must answer if it answers the subsection (b) issue or issues in the affirmative. See TEX. CODE CRIM. PROC. art. 37.071, §2 (b), (c), (e). –5– may lead to the necessity of another trial with attendant expense to the State and

harm to the families of victims.

Appellant points to several other states that now allow the jury to know the

effect of a non-unanimous verdict. Appellant concedes that the United States

Supreme Court has rejected a similar constitutional challenge brought under the

Eighth Amendment,3 but he contends this is the first challenge brought under the

First Amendment.

ANALYSIS OF COGNIZABILITY

Appellant contends his constitutional claim is cognizable and better reviewed

pretrial because it is a facial challenge to the statute and his substantive right to a

constitutional voir dire would be better protected by interlocutory review. In its

motion, the State contends appellant’s constitutional challenge is not cognizable

because it does not fall into the limited categories of claims that may be reviewed by

pretrial habeas and it will not result in appellant’s release even if he is successful.

The State cites Doster in urging the Court to dismiss appellant’s appeal because there

is no cognizable issue for consideration.

In responding to the State’s argument, appellant contends the rule in Doster

and other cases stating claims not resulting in the defendant’s immediate release are

not cognizable should not be applied because of the paramount nature of free speech

3 See Jones v. U.S., 527 U.S. 373, 381 (1999) (holding Eighth Amendment does not require jury be instructed on what happens under federal death penalty statute if they fail to agree on sentencing). –6– claims and the unique nature of capital punishment. Without citing authority for the

proposition, appellant contends his constitutional claims stand alone independently

of any other case law decided under chapter 11 of the code of criminal procedure.

A defendant may bring a facial challenge to a statute that defines the offense

charged. See Ingram, 533 S.W.3d at 892; Ellis, 309 S.W.3d at 79. The statute that

defines appellant’s charged offense is section 19.03 of the penal code which defines

the offense of capital murder. See TEX. PENAL CODE § 19.03(a). Appellant would be

able to bring a pretrial habeas application to challenge the facial constitutionality of

section 19.03 because if his challenge was successful, it would result in his

immediate release and conserve judicial resources. See Ingram, 533 S.W.3d at 892;

Perry, 483 S.W.3d at 895; Doster, 303 S.W.3d at 724.

In this case, however, appellant is not seeking to challenge the statute defining

his offense, but rather to challenge a procedural statute relevant only if he is

convicted at trial. See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 909–10 (Tex.

Crim. App. 2011) (stating defendant could not attack facial constitutionality of

article 37.071 under Eighth and Fourteenth Amendments in pretrial motion because

he had not been sentenced under the statute and thus any ruling would be declaratory

judgment). If appellant’s challenge is successful, he will still be tried for capital

murder. The only modification to the pending trial will be some additional questions

to prospective jurors during voir dire. Thus, because appellant will not be released

if he wins, appellant’s claims are not appropriate for consideration in pretrial habeas

–7– proceedings. See Ingram, 533 S.W.3d at 892; Perry, 483 S.W.3d at 895; Doster, 303

S.W.3d at 724.

Appellant further contends counsel cannot fulfill his duties under Wainwright

v. Witt4 to inquire about each juror’s view of the death penalty if he is not allowed

to explain to the potential juror how Texas law works in the event the jury cannot

come to a unanimous decision on the special sentencing issues. Appellant contends

that if he succeeds, his trial will be different from other death penalty cases in both

the trial and penalty phases. However, if, in fact, appellant is convicted and

sentenced to death, he will have the opportunity to challenge the constitutionality of

section 2(a)(1) on appeal. Because appellant has an adequate remedy on appeal, his

claim is not cognizable on a pretrial habeas application. See Weise, 55 S.W.3d at

619.

Under the circumstances presented, we conclude appellant’s claim that article

37.071, section 2(a)(1) of the code of criminal procedure abridges free speech and

violates the First Amendment to the United States Constitution is not a cognizable

claim for resolution in a pretrial application for writ of habeas corpus. See Ingram,

533 S.W.3d at 892. We grant the State’s Motion to Apply Rule 2 of the Texas Rules

4 See Wainwright v. Witt, 469 U.S. 412, 424 (1985) (prospective juror may be dismissed for cause because of their views on capital punishment when juror’s views would prevent or substantially impair performance of juror duties in accordance with instructions and oath). –8– of Appellate Procedure to Expeditiously Resolve Appellant’s Non-Cognizable

Claim.

We dismiss the appeal without reaching the merits of appellant’s claim, and

we order the Clerk of the Court to release the mandate instanter.

/Ken Molberg// KEN MOLBERG JUSTICE

210482f.u05 Do Not Publish TEX. R. APP. P. 47.2(b)

–9– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

EX PARTE TYRONE JAMAAL On Appeal from the 196th District WILLIAMS Court, Hunt County, Texas Trial Court Cause No. 31293. No. 05-21-00482-CR Opinion delivered by Justice Molberg. Justices Nowell and Goldstein participating.

Based on the Court’s opinion of this date, the appeal from the trial court’s order denying the writ of habeas corpus is DISMISSED.

Judgment entered this 2nd day of September, 2021.

–10–