Ex parte K.W.

650 S.W.3d 862

EX PARTE K.W.

NUMBER 13-20-00291-CR

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed May 12, 2022

Jessica Freud, Freud Law, PC, Waco, for Appellant.

Gabriel Price, Assistant District Attorney, Appellate Division, Waco, for State of Texas.

Before Justices Longoria, Hinojosa, and Silva

OPINION¹

Opinion by Justice Hinojosa This is an interlocutory appeal that arises from the denial of an application for a pretrial writ of habeas corpus seeking a personal bond. By five issues, appellant K.W.² argues that: (1) grand jury meetings are not "court proceedings" for the purposes of Texas Government Code § 22.0035(b) ; (2) the State cannot announce ready on a void indictment under Texas Code of Criminal Procedure article 17.151 ; and (3–5) the Texas Supreme Court's Twelfth Emergency Order, Texas Governor Greg Abbott's Executive Order GA-13, and the McLennan County Local Standing Order, all enacted during the COVID-19 pandemic and in place at the time of K.W.’s detainment, are unconstitutional. We affirm.

I. BACKGROUND FACTS

On February 16, 2020, K.W. was arrested for the capital murder of JoAngel Elias Ortegon, a first-degree felony. See TEX. PENAL CODE ANN. § 19.03. According to the arrest warrant affidavit, K.W. entered a habitation at 1903 Trice Avenue in Waco, Texas with another man, where they found Ortegon and Carson Elias playing video games. According to Elias, K.W. allegedly told the men "you're not going to like this" and began firing a weapon. Ortegon was killed and Elias was injured. K.W. allegedly told a detective that he went to the home with the intent to commit a robbery but was forced to use his weapon when he was fired upon first.

Beginning in March of 2020, the State of Texas instituted numerous orders to protect Texans from the deadly COVID-19 pandemic. This included the Texas Supreme Court's April 27, 2020, "Twelfth Emergency Order Regarding the COVID-19 State of Disaster," THE TEXAS SUPREME COURT , Twelfth Emergency Order Regarding COVID-19 , 629 S.W.3d 144 (Tex. Apr. 27, 2020). The supreme court referred to Texas Government Code § 22.0035(b) in its Twelfth Emergency Order, which grants it authority to modify court rules in disaster situations:

Notwithstanding any other statute, the supreme court may modify or suspend procedures for the conduct of any court proceeding affected by a disaster during the pendency of a disaster declared by the governor. An order under this section may not extend for more than 90 days from the date the order was signed unless renewed by the chief justice of the supreme court.

TEX. GOV'T CODE ANN. § 22.0035(b). In the emergency order, the supreme court allowed anyone involved in any court proceeding, "including but not limited to a party, attorney, witness, court reporter, or grand juror[,] ... to participate remotely, such as by teleconferencing, videoconferencing, or other means ...."

On May 6, 2020, within ninety days of K.W.’s arrest, a McLennan County grand jury authorized under the Texas Supreme Court's Twelfth Emergency Order indicted K.W. for capital murder in Cause Number 2020-596-C1. See TEX. CODE CRIM. PROC. ANN. art. 17.151, § 1(1). The grand jury was comprised of six "in-person" jurors and six jurors who participated remotely by Zoom.

On May 18, 2020, ninety-two days after his arrest, K.W. filed his original application for writ of habeas corpus. In his application, K.W. asserted that the Twelfth Emergency Order was unconstitutional because it purported "to suspend the constitutional requirements of a grand jury quorum to return indictments; the common law requirement of grand juror[ ] in[-]person attendance; and allow[ed] unauthorized persons into grand jury deliberations ...." K.W. further asserted that the indictment was therefore invalid and his confinement and restraint were illegal because the State was not ready for trial within ninety days from the commencement of his detention. See id.

On May 26, 2020, while K.W. was still incarcerated, he was reindicted for the capital murder offense by a grand jury empaneled entirely in-person. See TEX. PENAL CODE ANN. § 19.03. K.W. was further indicted for the offense of aggravated robbery of Elias in Cause Number 2020-607-C1. See id. § 29.03.

The trial court conducted a hearing on K.W.’s habeas application on May 29, 2020. After the hearing, the trial court adopted the following findings of facts and conclusion of law:

1. Applicant was arrested on a charge of Capital Murder on February 16, 2020.

2. Applicant's detention on the Capital Murder allegation began that date.

3. Applicant was indicted on May 6, 2020[,] by the grand jury of McLennan County for the offense of Capital Murder in Cause Number 2020-[ ]596-C1.

4. Applicant was re[ ]indicted on May 26, 2020[,] by the grand jury of McLennan County for the offense of Capital Murder in the same cause number.

5. Applicant was indicted on May 26, 2020[,] by the grand jury of McLennan County for the offense of Aggravated Robbery in Cause Number 2020-607-C1.

6. Applicant was arrested on the Aggravated Robbery allegation on May 20, 2020.

7. Applicant's detention on the Aggravated Robbery allegation began that date.

8. On March 23, 2020, this Court entered a Standing Order applicable to all cases extending the period in Tex. Code of Crim. Pro. [sic] Article 17.151 from 90 days until 120 days. See State's Exhibit #1.

9. As of the date of the hearing, May 29, 2020, approximate[ly] 104 days ha[ve] elapsed from the date that Applicant was initially detained on the allegation of Capital Murder indicting in Cause Number 2020-5[96]-C1.

10. The time period under Article 17.151 as modified by this Court's standing order has not expired.

11. Governor Abbott issued an executive order on March 29, 2020[,] which suspended the operation of Article 17.151 in order to prevent any person's automatic release on personal bond because the State is not ready for trial.

12. Governor Abbott's March 29, 2020 order also prohibits trial courts from releasing any person currently arrested for a crime that involves physical violence on personal bonds. See EO-GA-13.

13. Applicant is currently arrested for the offenses of Capital Murder and Aggravated Robbery. Both offenses involve physical violence.

14. The Governor's order does not violate the Constitutions of the United States or of the State of Texas.

15. During the hearing on this Application, the State announced that it had been ready at the time of the return of the indictment on May 6, 2020.

16. Applicant failed to present sufficient evidence to rebut the State's retrospective announcement of readiness.

17. This Court finds that the State was ready on May 6, 2020.

18. Six out of the twelve grand jurors at the meeting on May 6, 2020 appeared through videoconferencing.

19. This Court authorized grand jurors to appear through video conferencing at the meeting on May 6, 2020.

20. The Texas Supreme Court authorized trial courts to allow grand jurors to appear remotely in their Twelfth Emergency Order issued on April 27, 2020.

21. The State's reliance on this Court's authorization for the remote appearance of grand jurors and the Twelfth Emergency Order was reasonable.

22. There is no evidence of bad faith on part of the State.

23. Pursuant to Ex parte Brosky , 863 S.W.[2]d 775 (Tex. App.—Fort Worth, 1993) ; Behrend v. State , 729 S.W.2d 717 (Tex. Crim. App. 1987) [;] and Ward v. State , 659 S.W.2d 643 (Tex. Crim. App. 1983[) (en banc)]³ , the State was "ready" as contemplated under 17.151 on May 6, 2020[,] regardless of the validity of the indictment returned.

24. The appearance of the grand jurors remotely did not violate the Constitutions of the United States or of the State of Texas.

25. The Twelfth Emergency Order by the Texas Supreme Court does not violate the Constitutions of the United States or of the State of Texas.

26. The indictment returned by the Grand Jury on May 6, 2020 was returned by a quorum of a lawfully impaneled Grand Jury and is therefore valid.

27. Applicant's detention on the Aggravated Robbery beginning on May 20, 2020 constitutes "another allegation" pursuant to Article 17.151.

28. Applicant is currently detained on "another allegation" in which the deadline under 17.151 has not expired. See Martinez v. State , 810 S.W.2d 428 (Tex. App.—Houston [14th Dist.] 1991, pet. [ref'd]) [sic].

29. Applicant is not entitled to a personal bond pursuant to Article 17.151.

On June 1, 2020, K.W. appealed the denial of his pretrial application for writ of habeas corpus.

II. STANDARD OF REVIEW

An applicant may seek pretrial habeas corpus relief "only in very limited circumstances." Ex parte Smith , 178 S.W.3d 797, 801 (Tex. Crim. App. 2005) (per curiam). The purpose of an application for writ of habeas corpus is to remove an illegal restraint on an applicant's liberty. See TEX. CODE CRIM. PROC. ANN. art. 11.01. Thus, pretrial habeas relief—"an extraordinary remedy"—is reserved for cases in which resolution of a legal issue in the applicant's favor must result in the applicant's immediate release. See Ex parte Ingram , 533 S.W.3d 887, 891–92 (Tex. Crim. App. 2017) ; Ex parte Perry , 483 S.W.3d 884, 895 (Tex. Crim. App. 2016). Here, K.W.’s pretrial application for writ of habeas corpus was to challenge the trial court's denial of bail on a personal bond. See Ex parte Smith , 178 S.W.3d at 801.

"We review a trial court's denial of habeas corpus relief for an abuse of discretion." Ex parte Walsh , 530 S.W.3d 774, 778 (Tex. App.—Fort Worth 2017, no pet.). Appellate courts must uphold the trial court's judgment if it is correct on any theory of law applicable to the case. Id. (citing Ex parte Evans , 410 S.W.3d 481, 484 (Tex. App.—Fort Worth 2013, pet. ref'd) ). "If we conclude the grounds asserted in the application for writ of habeas corpus are not cognizable, then we must affirm the trial court's denial of relief." Id. (citing Ex parte Schoolcraft , 107 S.W.3d 674, 676 (Tex. App.—San Antonio 2003, no pet.) ). A writ applicant bears the...