Ex Parte Sheffield

685 S.W.3d 86

NO. PD-1102-20

Court of Criminal Appeals of Texas.

Delivered: June 21, 2023

ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE SEVENTH COURT OF APPEALS, JOHNSON COUNTY

Emily Johnson-Liu, for State.

Kevin Dale Sheffield, Pro Se.

Bryan Bufkin, Johnna Bonds McArthur, Cleburne, for Appellant.

OPINION

Walker, J., delivered the opinion of the Court in which Keller, P.J., and Hervey, Richardson, Newell, Keel, Slaughter, and McClure, JJ., joined.

Many claims are not cognizable in pretrial habeas corpus. For example, a claim that a statute is unconstitutional as-applied is generally not cognizable. However, in Ex parte Perry, we allowed an as-applied challenge in pretrial habeas, despite the general rule. Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016). Speedy trial claims are also not cognizable, but the court of appeals in this case determined that the Perry rule applied to Appellant Kevin Dale Sheffield’s speedy trial claim. We hold that the Perry rule does not apply to speedy trial claims because pretrial habeas corpus litigation would not vindicate the speedy trial right and would effectively undermine that right instead. Vindication of the speedy trial right must be had through a motion to dismiss followed by appeal after trial if the motion is wrongly denied. If trial and appeal are indefinitely postponed, mandamus, not pretrial habeas, is available. The judgment of the court of appeals is reversed.

I — Background

With bond set at $100,000, Appellant has been in custody since August 5, 2019. While in custody, Appellant filed several pro se documents with the trial court even though he had appointed counsel. In his first pro se letter, filed August 22, Appellant requested an examining trial and a personal recognizance (PR) bond until the examining trial could take place. Appellant also filed a pro se motion, file-stamped September 19, for a speedy trial and for discharge under article 28.061.¹ Appellant followed the motion with another pro se letter, filed September 20, reasserting his requests for a speedy trial, a speedy examining trial, and a PR bond until the examining trial.

On September 26, the grand jury returned a five-count indictment alleging possession, with intent to deliver, first degree felony amounts of methamphetamine and heroin;² possession of a first degree felony amount of cocaine;³ evading arrest in a vehicle;⁴ and unlawful possession of a firearm by a convicted felon.⁵

On September 30, a brief status hearing was held. The trial court appointed new counsel for Appellant, and, in order to work his new attorney, Appellant withdrew his motion for speedy trial. On that same date, the trial court entered its pre-trial scheduling order, setting jury trial for January 23, 2020, which was then filed with the district clerk on October 8.

In January, although represented by counsel, Appellant sent a pro se letter, filed January 7, seeking a hearing on a motion for discovery and a motion for speedy trial. On January 9, a status hearing was held, and Appellant testified that, after discussing his case with counsel, he no longer wished to pursue the motion for speedy trial. On the motion for discovery, Appellant explained that he was simply trying to get whatever information he could regarding his case. He was admonished that as the defendant he was not allowed to have copies of certain items of discovery,⁶ and he was instructed to allow counsel to do the lawyering for him.

On January 24, a hearing was held on Appellant’s motion to suppress, in which the officers who encountered and arrested Appellant testified, and Appellant argued that he was unlawfully detained and that his pickup truck was illegally seized and searched. The trial court denied Appellant’s motion.

Proceedings in Appellant’s case came to a halt in the spring of 2020, as the trial court and all trial courts in Texas shut down in response to the emerging COVID-19 pandemic. Nevertheless, Appellant sought to keep his case moving forward, and Appellant sent a pro se letter, filed May 6, challenging the arrest, the indictment, and the seizure and search of his pickup truck. Appellant also repeated his request for a PR bond.

On May 12, a hearing was held, via teleconference, in which the trial court allowed Appellant to represent himself but keep standby counsel. On Appellant’s requests for discovery, the trial court explained that discovery would be:

difficult because you’re going to — we’re going to have to have to bring you over to the Guinn building at some point and you can sit down and look at the file. In an open file policy, you can look at it and take notes, but you can’t photocopy or take things home with you.

…

Or to the jail with you. So that’s kind of the way attorneys have to work, so —

…

— we’ll have to make arrangements. The Office of Court Administration says that after June 1st if we have an approved plan in place, we can start letting people come back in the building. Our county health official has to sign off on that. He’s not comfortable until July 1st, but I’m working on a plan to try to convince him that after June 15th or sometime in earlier June that he would let limited people, you know, come back in here.

So if that’s the case, then you have to come over here and put a mask on, put gloves on and go through the file, and [standby counsel] can sit with you and go through the file and just make yournotes and things like that. And when you’re done, you go back to jail. And then we can have a hearing on what you want.

Appellant, now representing himself, mailed a pro se motion, filed May 18, seeking release under article 17.151.⁷ On June 4, the trial court held a teleconference hearing on the motion. The State indicated that it had been ready for trial since the day Appellant was indicted. The prosecutor added:

[T]he Governor in the State of Texas issued a disaster declaration. I believe that is declaration of March 13th, 2020 which states certain portions are suspended, particularly the release on personal recognizance bond, the automatic release on P.R. bond because the State is not ready for trial.⁸ At this particular point because of the COVID-19 disaster declaration and other issues related to that, it’s my understanding we are not in a position to be able to conduct a jury trial, so the State would oppose Mr. Sheffield’s motion and ask that the Court would leave — leave the $100,000 bond in place.

The trial court denied Appellant’s article 17.151 motion, explaining:

The problem is that the State’s ready but the Court is not allowed to conduct a jury trial because the Office of Court Administration has instructed me that I’m not allowed to conduct any jury trials until they let me know. They don’t think that there will be any jury trials until after August 15th, and that even then, there may not be any jury trials until next year. On top of the Office of Court Administration, the Chief Justice [sic] of the Court of Criminal Appeals and the Chief Justice of the Texas Supreme Court have instructed the courts, including me, that we are not to have live, in-person hearings unless it’s absolutely necessary and there’s no other way to have the hearing, and that we are not to have jury trials. We’re not even to convene a Grand Jury selection hearing, so they’ve extended the previous Grand Jury six months so we don’t have to have 140 people in here to pick a new Grand Jury. So, I would like to have a jury trial. I would be more than willing to have a jury trial, but the Court is being prevented from having any trials under direct direction and instruction from higher authority.

So I am going to deny your motion.

If you wish to appeal the motion, you may do so to the Waco Court of Appeals and let them figure out how to handle it. But it’s not me, it’s not [the prosecutor] and his office that are not ready to go forward with the trial. It’s the Office of Court Administration and the higher courts in Texas that have decided that until they can get a handle on this virus problem that we are not to go forward with trials, so that’s where we are.

…

I would love to have a trial here. I would love to have a Jury in here and not have this computer program, but that’s justnot the reality that I’m in right now and neither are you[.]

A week later, Appellant sent a pro se letter, filed June 15, reasserting his request for a speedy trial, but "It should be a Judge Trial" instead of a jury trial. He added: "The state said that they are ready for trial I say that I am ready for trial. After pre-trial motions are finished we should proceed to trial. As soon as is possible." Appellant’s letter also purported to withdraw his plea of Not Guilty and requested a visit to the courthouse for discovery purposes.

On June 29, Appellant, through standby counsel, filed an application for writ of habeas corpus, again seeking release on personal bond under article 17.151 because more than ninety days had passed and, because of COVID-19 related restrictions, the State was not and could not be ready for trial. In the alternative, Appellant requested that "[i]f such request is denied, Movant is entitled under the law to a speedy trial, which he re-urges his request for." The trial court held a teleconference hearing on the writ application on the next day, June 30. At that hearing, standby counsel spoke for Appellant and urged a speedy trial or release under article 17.151, because although he was ready and wanted to go to trial, a trial could not occur due to COVID-19 and the Texas Supreme Court’s emergency orders; thus, article 17.151 required his release on personal bond. The prosecutor responded that the State was ready to proceed to trial, but:

It’s emergency orders that have been handed down by the Office of Court Administration, the Court of Criminal Appeals, the Supreme Court of Texas that have placed this roadblock in our path to — to getting this case resolved at this point.

However, with regard to Article 17.151 of the Code of

...