Hartfield 1108 Cca PDR FILED.20140815

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No. ________________

IN THE COURT OF CRIMINAL APPEALS
IN AUSTIN, TEXAS

Jerry Hartfield,

Petitioner,

vs.

The State of Texas,

Respondent.

_________________________________

PETITION FOR DISCRETIONARY REVIEW
_________________________________

David R. Dow
Texas Bar No. 06064900
ddow@central.uh.edu
Jeffrey R. Newberry
jrnewber@central.uh.edu
University of Houston Law Center
100 Law Center
Houston, Texas 77204-6060
TEL: (713) 743-2171
FAX: (713) 743-2131

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IDENTITY OF PARTIES AND COUNSEL

So the members of this Honorable Court can determine disqualification and
recusal, Appellant certifies the following is a complete list of the parties and their
attorneys in accordance with Texas Rule of Appellate Procedure 38.1(a).
1. Trial court judge

Hon. John Craig Estlinbaum
130th District Court, Matagorda County
1700 7th Street, Room 317
Bay City, Texas 77414
Tel. (979) 244-7635

2. Court of appeals justices

Justice Nelda V. Rodriguez
901 Leopard Street, Room 1001
Corpus Christi, Texas 78401-3685
Tel. (361) 888-0416

Justice Dori C. Garza
100 E. Cano Street, Suite 501
Edinburg, Texas 78539-4548
Tel. (956) 318-2405

Justice Georgina M. Benavides
100 E. Cano Street, Suite 501
Edinburg, Texas 78539-4548
Tel. (956) 318-2409

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3. Petitioner

Jerry Hartfield
Matagorda County Jail
2323 Avenue E

4. Counsel for Petitioner

David R. Dow
100 Law Center
Tel. (713) 743-2171

Jeffrey R. Newberry
100 Law Center
Tel. (713) 743-6843

5. Counsel for Petitioner at trial

Jack Stoffregen
Regional Public Defender for Capital Cases
P.O. Box 2097
Lubbock, Texas 79408
Tel. (806) 775-5650

Anna Jimenez
Regional Public Defender for Capital Cases
2301 Red Mile Rd.
Corpus Christi, Texas 78418
Tel. (361) 739-2297

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6. Counsel for the State

Steven E. Reis
Matagorda County District Attorney
1700 7th St., Room 325
Tel. (979) 244-7657

Lindsay K. Deshotels
Tel. (979) 244-7657

Lisa M. Tanner
Texas Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711
Tel. (512) 463-3125

Joseph P. Corcoran
Texas Office of the Attorney
P.O. Box 12548
Austin, Texas 78711-2548
Tel. (512) 936-1400

7. Counsel for Petitioner at 1977 trial

Robert A. Scardino
1004 Congress St., 3rd Floor
Tel. (713) 229-9292

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Richard L. Manske
121 E. Monseratte St.
El Campo, Texas 77437-4423
Tel. (979) 543-6832

8. Counsel for State at 1977 trial

Judge Wilburn Jack Salyer

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
TABLE OF CONTENTS ........................................................................................ vi
INDEX OF AUTHORITIES .................................................................................. vii
STATEMENT REGARDING ORAL ARGUMENT ............................................. ix
PETITION FOR DISCRETIONARY REVIEW ....................................................... 1
STATEMENT OF THE CASE ................................................................................. 1
STATEMENT OF PROCEDURAL HISTORY ....................................................... 5
GROUND FOR REVIEW ......................................................................................... 8
ARGUMENT ............................................................................................................. 8
I. This Court already decided that Mr. Hartfields claim is cognizable in his
application filed pursuant to Article 11.08. ..................................................... 8

II. Mr. Hartfields case is fundamentally different from the other speedy trial
cases cited by the court below. ...................................................................... 12

PRAYER FOR RELIEF .......................................................................................... 17

CERTIFICATE OF SERVICE ................................................................................ 19
CERTIFICATE OF COMPLIANCE ....................................................................... 19
APPENDIX ............................................................................................................. 20

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INDEX OF AUTHORITIES
Cases

Ex parte Doster,
303 S.W.3d 720 (Tex. Crim. App. 2010) ................................................ 12, 13

Ex parte Graves,
271 S.W.3d 801 (Tex. App.Waco 2008, pet. refd) .................................. 15

Ex parte Hartfield,
Nos. 13-14-00238-CV, 13-14-00239-CV, 13-14-00240-CR,
13-14-00344-CR, (Tex. App.Corpus Christi Aug. 14, 2014, pet. filed
Aug. 15, 2014) ....................................................................................... passim

Ex parte Jones,
449 S.W.2d 59 (Tex. Crim. App. 1970) .................................................. 13, 14

Ex parte Lamar,
184 S.W.3d 322 (Tex. App.Fort Worth 2005, pet. refd) .......................... 16

Ex parte Weise,
55 S.W.3d 617 (Tex. Crim. App. 2001) ........................................................ 13

Graves v. Dretke,
442 F.3d 334 (5th Cir. 2006) ......................................................................... 15

Hartfield v. State,
645 S.W.2d 436 (Tex. Crim. App. 1980) ........................................................ 5

Hartfield v. Thaler,
403 S.W.3d 234 (Tex. Crim. App. 2013) .............................................. passim

Hartfield v. Thaler,
498 F. Appx 440 (5th Cir. 2012) .................................................................... 6

State v. Chavez,
No. 13-13-00413-CR, 2013 WL 6175232 (Tex. App.Corpus Christi
Nov. 21, 2013, no pet.) (mem. op., not designated for publication). .............. 4

viii

United States v. MacDonald,
435 U.S. 850 (1978) .............................................................................. 8, 9, 10

Statutes

Tex. R. App. P. 66.3(c) .............................................................................................. 4

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STATEMENT REGARDING ORAL ARGUMENT

Counsel for Mr. Hartfield believes this case is appropriate for summary
reversal of the decision of the court of appeals, which clearly disregarded a
unanimous decision of this Court that is barely over one year old. However, if the
Court does not believe summary reversal is appropriate, counsel requests oral
argument of this petition for discretionary review. While it is counsels belief that
this Court clearly indicated in its June 12, 2013 opinion that Hartfields claim that
his right to a speedy trial has been violated is cognizable in a pre-trial application
for a writ of habeas corpus, the Courts prior precedent had held such claims are
not cognizable in pre-trial applications. If the Court has concerns as to how Mr.
Hartfields claim is unique, and justifies this Courts decision rendered in June
2014, oral argument would be appropriate and helpful in understanding the
extraordinary nature of this case which makes it appropriate for interlocutory
appeal.
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No. ________________

IN THE COURT OF CRIMINAL APPEALS
IN AUSTIN, TEXAS

Jerry Hartfield,

Petitioner,

vs.

The State of Texas,

Respondent.

_________________________________

PETITION FOR DISCRETIONARY REVIEW
_________________________________

TO THE HONORABLE JUDGES OF THIS COURT:

STATEMENT OF THE CASE
This case comes before this Court for the second time in just over one year.
Another year has therefore passed, and Jerry Hartfield remains in unlawful
custody. Mr. Hartfield has now been unlawfully held and confined in custody by
the State of Texas for thirty-four years.
Fourteen months ago, this Court clearly and unambiguously suggested that
Mr. Hartfield seek release from his unlawful custody by filing, in the trial court, a

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pre-trial application for a writ of habeas corpus. See Hartfield v. Thaler, 403
S.W.3d 234, 240 (Tex. Crim. App. 2013). At oral argument when this case was
previously before the Court, Mr. Hartfields counsel asked that this Court order his
immediate release. When this Court instead issued an opinion indicating that
Hartfield should seek such relief from the trial court, Mr. Hartfields counsel
immediately heeded the suggestion of the Court and filed such a petition (I C.R. at
7-18). Eight days following the issuance of this Courts opinion, a pre-trial writ of
habeas corpus, raising a claim under the speedy trial clause, was filed in the trial
court, in accordance with this Courts June 2013 judgment.
The case then languished in the trial court for many months, while Mr.
Hartfield remained in unlawful custody. Eventually, on April 17, 2014, Judge
John Craig Estlinbaum, of the 130th District Court, while accepting the view of
this Court that Mr. Hartfields claim was cognizable in a pre-trial writ of habeas
corpus, nevertheless entered an order denying Mr. Hartfield relief, finding that his
right to a speedy trial had not been violated (II C.R. at 369). Though finding in
favor of Mr. Hartfield on three of the four factors prescribed by the Supreme Court
in Barker v. Wingo, the trial court found Hartfield had failed to timely assert his
right to a speedy trial and that this failure weighed so heavily against him as to
support a conclusion that his right to a speedy trial under the Sixth Amendment has
not been violated (II C.R. at 360-61).

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Immediately after the trial court denied relief, Hartfield appealed his claim
to the Thirteenth Court of Appeals. Before that court, Mr. Hartfield argued that the
trial courts conclusion as to the merits of the speedy trial claim was unsound for
several reasons. To begin, as this Court determined in June 2013, he was in
custody unlawfully. See Hartfield, 403 S.W.3d at 240. It is simply not possible, as
a matter of law, to assent to an unlawful punishment. In addition, even if it were
somehow possible to make someone responsible for his own unlawful
confinement, such a conclusion would be extraordinary in the present case. The
undisputed evidence in the record before the trial court reflects that Mr. Hartfield
has an IQ of fifty-eight and reads and writes on a first-grade level (III R.R. States
Ex. 1, at 125-26). The trial courts conclusion that Mr. Hartfield was himself
responsible for the violation of the right to a speedy trial rests upon the premise
that in order to assert ones right to a speedy trial, a defendant must using the
proper form properly file a pleading in which the claim is cognizable in a court
that has jurisdiction to try the case (II CR at 345-56). That premise is unsupported
by any legal authority, and is in fact an incorrect statement of the governing law.
Yet in finding that this factor was by itself sufficient to support a conclusion
that Hartfields right to a speedy trial had not been violated, the court ignored a
large body of precedent including cases in the Thirteenth Court of Appeals, to
which appeal was taken holding that in cases similar to Hartfields (in which the

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States negligence is great and the delay in bringing a defendant to trial is long),
the burden to demonstrate a timely assertion of the right is lessened. See, e.g.,
State v. Chavez, No. 13-13-00413-CR, 2013 WL 6175232, at *4 (Tex. App.
Corpus Christi Nov. 21, 2013, no pet.) (mem. op., not designated for publication).
Astonishingly, instead of deciding whether Hartfields Sixth Amendment
right to a speedy trial was violated, the court of appeals held that Hartfields claim
is not cognizable in an article 11.08 pretrial habeas motion and dismissed his
appeals. Ex parte Hartfield, Nos. 13-14-00238-CV, 13-14-00239-CV, 13-14-
00240-CR, 13-14-00344-CR, slip op. at 21-22 (Tex. App.Corpus Christi Aug.
14, 2014, pet. filed Aug. 15, 2014) (attached as Exhibit A). That decision
manifestly conflicts with the applicable decision[] of this Court. Tex. R. App. P.
66.3(c). Specifically, on June 12, 2013, this Court held that Hartfield could raise
his speedy-trial claim in an application under Article 11.08.
Because the decision from the court below conflicts with this Courts
decision, Hartfield respectfully prays this Court grant discretionary review, once
again hold his claim is cognizable in a pre-trial habeas application, and hold that
his Sixth Amendment right to a speedy trial has been violated.

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STATEMENT OF PROCEDURAL HISTORY
Because the procedural history was described at length when this case was
previously before this Court, Mr. Hartfield here presents an abbreviated version of
that history.
Jerry Hartfield was convicted of the capital murder of Eunice Lowe and
sentenced to death in June 1977. On September 17, 1980, this Court unanimously
reversed his conviction and ordered a new trial, Hartfield v. State, 645 S.W.2d 436,
441 (Tex. Crim. App. 1980), and issued its mandate on March 4, 1983 (II C.R. at
201-02). On March 15, 1983, the governor signed a document purporting to
commute Mr. Hartfields sentence to life in prison (II C.R. at 204; III R.R. States
Ex. 2, at 4-5). However, [b]ecause there was no longer a death sentence to
commute, the governors order had no effect. Hartfield, 403 S.W.3d at 239.
An illiterate man with an IQ in the 50s, Mr. Hartfield received assistance
from fellow inmates in attempting to challenge his unlawful confinement, although
the procedural vehicles employed were identified by this Court as improper,
Hartfield, 403 S.W. 3d at 239-40.
Eventually, a federal court appointed counsel to represent Mr. Hartfield, and
the case proceeded to the U.S. Court of Appeals for the Fifth Circuit. Finding no
controlling state precedent regarding the status of Mr. Hartfields conviction and

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sentence, that court certified the question to this Court on November 28, 2012.
Hartfield v. Thaler, 498 F. Appx 440, 445 (5th Cir. 2012).
This Court heard argument on January 16, 2013 and answered the question
on June 12, 2013. According to the Court, [t]he status of the judgment of
conviction is that [Mr. Hartfield] is under no conviction or sentence. Hartfield v.
Thaler, 403 S.W.3d 234, 240 (Tex. Crim. App. 2013). Regarding whether Mr.
Hartfield had properly exhausted his speedy trial claim and, if he had not, how he
could do so this Court wrote:
When [Hartfield] filed a state application for writ of habeas corpus, he
filed it under Code of Criminal Procedure Article 11.07. Because
Article 11.07 relates only to post-conviction applications for writ of
habeas corpus and there was no judgment of conviction against
[Hartfield], this was not the proper procedure, and we denied his
application. He also filed an application for leave to file a petition for
mandamus asking us to compel a new trial. This too was the improper
procedure because our reversal of his conviction left him in the same
position as if he had never had a trial. If his motion to set aside the
indictment for failure to provide a speedy trial was sustained, then
[Hartfield] would be discharged under Article 28.061 of the Texas
Code of Criminal Procedure. Alternatively, [Hartfield] could have
filed an application under Article 11.08. Therefore, the United States
District Court for the Eastern District is correct that [Hartfield] has not
exhausted state remedies. Because our denial of [Hartfields]
applications for writs of habeas corpus and mandamus were based on
his failure to follow the proper procedure, it is not a forgone
conclusion that [Hartfields] state claims will be denied and
exhaustion of state remedies is not futile.

Id. at 239-40 (emphasis added).

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Eight days after this Court answered the certified question, on June 20, 2013
(nearly fourteen months ago), Mr. Hartfield heeded this Courts suggestion and
filed his application for a writ of habeas corpus pursuant to article 11.08 in the
130th District Court.
Mr. Hartfields petition remained pending in the 130th Judicial District
Court for almost ten months. Eventually, on April 10, 2014, the trial judge signed
findings of fact and conclusions of law denying Mr. Hartfields speedy trial claim
(II C.R. at 362). Hartfield immediately appealed the trial courts decision and filed
appellate briefs on April 25, 2014. Because the trial court commenced trial
proceedings while the appeal lay pending, on June 24, 2014, counsel filed a
petition for a writ of prohibition and emergency motion for stay in the court of
appeals, requesting the trial court be prohibited from moving forward with trial
proceedings until the speedy trial claim was resolved on appeal. The following
day, the court of appeals granted Hartfields motion for emergency stay and stayed
proceedings in the 130th District Court. Order, In re Hartfield, No. 13-14-00344-
CR (Tex. App.Corpus Christ June 25, 2014, pet. filed Aug. 15, 2014).
The court of appeals ruled against Mr. Hartfield on August 14, 2014.
However, and surprisingly (given this Courts opinion from June 2013), instead of
reaching the merits of Hartfields speedy trial claim, the court of appeals held
Hartfields claim could not be raised in a pre-trial application and dismissed his

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appeals. The courts opinion is attached as Exhibit A. No motion for rehearing
has been filed.
GROUND FOR REVIEW
.
Whether Hartfields claim that his right to a speedy trial has been violated is
cognizable in a pre-trial habeas application (and, if so, whether that right has in
fact been violated).
ARGUMENT
I. This Court already decided that Mr. Hartfields claim is cognizable in
his application filed pursuant to Article 11.08.

Whether the Court intended to overrule precedent or merely recognized that
Mr. Hartfields case is unique, the Court clearly indicated in its June 12, 2013
opinion that filing an application under Article 11.08 was one of two means by
which Mr. Hartfield could raise his speedy trial claim. See Hartfield, 403 S.W.3d
at 240 (Alternatively, Petitioner could have filed an application under Article
11.08).
The court below correctly observed that this Courts precedent regarding
speedy trial claims is grounded in the Supreme Courts opinion in United States v.
MacDonald, 435 U.S. 850 (1978). Exhibit A at 14. But the MacDonald Courts
holding that a denial of a speedy trial motion was not immediately appealable was
based on two grounds that were present in the particular case of Mr. MacDonald:

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that it is typically difficult to determine the degree to which a defendant has been
prejudiced by the delay prior to the trial, and that allowing immediate appeal on
speedy trial issues would frustrate the purposes of the Speedy Trial Clause. United
States v. MacDonald, 435 U.S. at 859-60, 861-62 (1978). These concerns of the
MacDonald Court are present in most, perhaps nearly all, speedy trial claims, but
they are clearly not at issue in Mr. Hartfields case. Moreover, and in any event,
although the content of the federal right is ultimately rooted in federal law, the
manner in which that right can be asserted in state courts is a matter of state law.
In holding in June 2013 that Mr. Hartfield could raise his claim in a pre-trial writ
of habeas corpus, this Court was applying state law.
In any event, it is not difficult to make a pre-trial determination as to the
degree to which Hartfield has been prejudiced by the States delay in bringing him
to trial because Mr. Hatfield was already previously tried. Although it would
require speculation to assess prejudice in the case of a defendant who has not been
tried, ascertaining the prejudice in Mr. Hartfields case would not require any
speculation whatsoever. We know what evidence the State would present at trial,
because the State presented that evidence in its 1977 prosecution of Mr. Hartfield.
And, because of the proceedings in the court below on Hartfields pre-trial
application, we know the current state of that evidence: the weapon that is
believed to have killed Eunice Lowe has been lost by the Clerks office and the car

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that the State alleges Hartfield stole was returned to Ms. Lowes family. In short,
the first concern expressed by the MacDonald Court is irrelevant here.
The MacDonald Courts second concern was that allowing speedy trial
claims to be immediately appealed would threaten precisely the values manifested
in the Speedy Trial Clause. MacDonald, 435 U.S. at 862. Specifically, the Court
feared that delay caused by an interlocutory appeal would prejudice the
prosecutions ability to prove its case, increase the cost to society of maintaining
defendants subject to pre-trial detention, and prolong the period during which
defendants released on bail may commit other crimes. Id. It is, of course,
laughable to suggest that those concerns are even remotely present in Mr.
Hartfields case.
This Court ordered a new trial for Mr. Hartfield in 1980. Any prejudice that
would result to the State because of delay and any costs associated with
incarcerating Mr. Hartfield prior to trial have already long since been incurred.
Further, since the Court issued its June 12 opinion, affirming that Mr. Hartfields
incarceration in the Department of Corrections has been entirely unlawful, Mr.
Hartfield has acted with diligence and without delay in seeking relief on the basis
of his speedy trial claim. This Court ordered a new trial thirty-four years ago.
Measured in that context, the additional time required to fully litigate Mr.
Hartfields speedy trial claim through this Article 11.08 proceeding (even given the

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delay in the trial court) constitutes a tiny fraction of the delay that has occurred
solely as a result of the States wrongful detention of Mr. Hartfield.
Moreover, any delay in the prosecution of Hartfield, any fault for any
increased difficulty to the State prosecuting its case, and any costs associated with
keeping Mr. Hartfield incarcerated during the delay, would all result from the
States own wrongful conduct. This Court handed down its opinion ordering a
new trial in 1980. The order became final when the mandate issued on March 4,
1983. For the next thirty years, the State took no action toward carrying out this
dictate. The State was content to allow Mr. Hartfield to remain in prison under no
conviction or sentence and allow taxpayers to foot the bill for that incarceration for
thirty years. Had Mr. Hartfield not initiated these proceedings, the State would
have been content to keep Mr. Hartfield incarcerated indefinitely in spite of this
Courts mandate, in spite of any increasing difficulty in prosecuting him caused by
the delay, and in spite of the costs of incarcerating him.
United States v. MacDonald undergirds this Courts previous rulings that
speedy trial claims are not immediately appealable and therefore not cognizable in
petitions filed pursuant to Article 11.08. Realizing that none of the concerns that
were present in MacDonald have any applicability to Mr. Hartfields case, this
Court, in June 2013, stated unequivocally that a petition filed pursuant to Article
11.08 is one of two means by which Mr. Hartfield could exhaust his claim. The

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statement was certainly not dicta, and it borders on insulting to suggest that this
Court made this observation unthinkingly. On the contrary, the issues of whether
Mr. Hartfields claim has been exhausted and whether attempts to exhaust would
be futile were threshold issues in proceedings that were at that time pending in the
federal courts.
This Courts June opinion authoritatively identifies the state law procedural
avenues applicable in Mr. Hartfields case. One of those avenues is a habeas
petition under Article 11.08. This Court has the authority to grant relief and order
Mr. Hartfields immediate release.
II. Mr. Hartfields case is fundamentally different from the other speedy
trial cases cited by the court below.

The State and the court below cite several cases in support of the proposition
that a pre-trial habeas application may not be used to assert a violation of the right
to a speedy trial. But every case is fundamentally and meaningfully different from
Mr. Hartfields.
For example, Ex parte Doster, 303 S.W.3d 720 (Tex. Crim. App. 2010),
Exhibit A at 5, 13, 14, 16, 19, did not even involve the same legal issue presented
in Mr. Hartfields case. The central legal issue in Doster was a failure to comply
with the Interstate Agreement on Detainers. Ex parte Doster, 303 S.W.3d 720, 721
(Tex. Crim. App. 2010). Though noting a similarity between this issue and a

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speedy trial claim, this Court expressly stated the speedy disposition of the
charges under the IAD is not an identical right to the constitutional right to a
speedy trial. Id. at 727 (emphasis added). Mr. Hartfields claim is that his
constitutional right to a speedy trial was violated. The Courts opinion on whether
pre-trial habeas is available to a claim raised under the IAD is not applicable to
Hartfield.
Similarly, the relevant issue in Ex parte Weise, 55 S.W.3d 617 (Tex. Crim.
App. 2001), Exhibit A at 13, 14, 15, 16, 19, has no relevance to Mr. Hartfields
case. The issue in Weise was whether a pretrial writ of habeas corpus may issue
on the ground that a penal statute is being unconstitutionally applied because of the
allegations in the indictment or information. Ex parte Weise, 55 S.W.3d 617, 618
(Tex. Crim. App. 2001). In the course of its discussion, this Court observed that it
had previously held that a speedy trial claim could not be raised through a pre-trial
writ of habeas corpus, but it neither amplified nor applied that holding in Weises
case. Id. at 620. Instead, the Court in Weise simply held that the issue of whether
the illegal dumping statute requires a culpable mental state is not appropriate for
interlocutory appeal; that holding is wholly inapplicable to Hartfield. Id. at 621.
Finally, Ex parte Jones, 449 S.W.2d 59 (Tex. Crim. App. 1970), Exhibit A
at 16, addresses a different procedural vehicle from the one invoked by Mr.
Hartfield. Although the Courts opinion in Jones lacks a great deal of details, it

14
seems to address whether a denial of a motion to set aside an indictment filed
pursuant to Article 27.03 can be immediately appealed. See Ex parte Jones, 449
S.W.2d. 59, 60 (Tex. Crim. App. 1970). Mr. Hartfield did not raise his speedy trial
claim in an Article 27.03 motion. Recognizing this procedural vehicle would not
allow for immediate appeal, Mr. Hartfield chose the other procedural vehicle listed
by this Court as being available to him a petition filed pursuant to Article 11.08.
1

Moreover, perhaps because of the extraordinary and unique facts in Mr.
Hartfields case, this Courts June opinion recognized specifically that a motion to
set aside the indictment in Mr. Hartfields case was not an adequate remedy at law
and that a pre-trial writ of habeas corpus was therefore an available vehicle through
which to raise his speedy trial claim. Forcing Hartfield to seek relief by raising his
claim in a pre-trial motion to set aside the indictment would add potentially two
years or more to the already thirty years that he has been wrongfully imprisoned.
A pre-trial motion is simply not an adequate remedy for Mr. Hartfield, and this
Court recognized this very fact in its June 12 opinion.

1
The court below is correct that counsel for Mr. Hartfield filed a motion to set aside the
indictment pursuant to Article 27.03 of the Texas Code of Criminal Procedure (I C.R. at 114-16).
Counsel filed the motion on the eve of the December 19 hearing (six months after filing the
application filed pursuant to Article 11.08 and three weeks after the trial court denied the States
motion to dismiss (I C.R. at 43)) because the Court had indicated it believed that should it find in
favor of Mr. Hartfield, it needed some vehicle by which to dismiss the indictment. Both the
motion and counsels testimony at the December 19, 2013 hearing make clear the motion was
filed solely for this purpose and that the vehicle by which Hartfield raised his speedy trial claim
was the application filed pursuant to Article 11.08 (I C.R. at 114; II R.R. at 1-3).

15
The court below also cites an opinion from the Waco Court of Appeals
overruling a speedy trial claim raised by Anthony Graves in a pre-trial writ of
habeas corpus. Exhibit A at 14, 16. The appellate court held that Gravess claim
was not cognizable because a pre-trial motion filed pursuant to Article 27.03 was
an adequate remedy. Ex parte Graves, 271 S.W.3d 801, 807-08 (Tex. App.
Waco 2008, pet. refd). Though Anthony Graves and Jerry Hartfield are similar in
that new trials were ordered for both, Gravess speedy trial claim is distinguishable
from Hartfields. The Fifth Circuit opinion ordering the district court to grant his
petition for a writ of habeas corpus was handed down on March 3, 2006. Graves v.
Dretke, 442 F.3d 334 (5th Cir. 2006). The Fifth Circuit did not hold that Graves
had been incarcerated in the absence of a valid conviction; indeed, it was the Fifth
Circuit itself that set aside the conviction. The same year the court of appeals
issued its judgment, Graves was released from TDCJ and transferred to the county
jail. Proceedings in what would have been Mr. Gravess second trial were initiated
soon after he was returned to the county jail and had been initiated prior to Mr.
Graves filing his pre-trial writ of habeas corpus.
Whereas Graves was transferred to the county jail a matter of months after
his conviction was vacated, Mr. Hartfield remained in the custody of the TDCJ for
more than thirty years following the opinion vacating his conviction. The Waco
courts opinion in Mr. Gravess case therefore cannot control Mr. Hartfields.

16
Ex parte Lamar, 184 S.W.3d 322 (Tex. App.Fort Worth 2005, pet. refd),
Exhibit A at 17, also differs factually from Mr. Hartfields case in an important
way. Lamar received one year of deferred adjudication in November 2003. Two
months later, in January 2004, Lamar was arrested on an unrelated matter. Id. at
323. And less than a month after that, on February 2, 2004, the State filed a
motion to adjudicate the original charge (i.e., the one to which Lamar had received
deferred adjudication). A year later, on February 22, 2005, Lamar filed a pre-trial
writ of habeas corpus raising a speedy trial claim. That same day, the trial court
was prepared to set the case for trial. Id. Lamars trial court was ready to proceed
to trial one year after the State filed its motion to adjudicate nowhere near the
thirty years Mr. Hartfield waited.
Every case relied upon or even cited by the court below is so dramatically
unlike Mr. Hartfields case as to be irrelevant and uncontrolling. None of the
applicants in any of the cases cited by the court below waited anywhere near the
thirty years for their trial that Mr. Hartfield has waited for his. As the court below
noted, Hartfields case documents what appears to be the longest gap between
indictment and trial in any speedy-trial case that has come before this Court or any
other court. Exhibit A at 20-21. Mr. Hartfields case is extraordinary and
probably unique; and its uniqueness was implicitly acknowledged by this Court

17
when it acknowledged the availability of a pre-trial writ of habeas corpus as one of
the two means by which Mr. Hartfield could raise a speedy trial claim.
And finally: This Court already decided the issue when it held, just more
than one year ago, that Mr. Hartfield could raise his speedy trial claim in a pre-trial
writ of habeas corpus. The court below was without authority to ignore or attempt
to overrule that decision. Mr. Hartfield requests that this Court say again what it
already said: that an 11.08 pre-trial writ is an appropriate vehicle to raise this
constitutional claim.
Mr. Hartfield further requests that this Court, as the highest court for matters
of criminal law in this State, finally put an end to this extraordinary injustice; hold
that his right to a speedy trial claim has been denied; and order that he be
immediately released from the unlawful custody that has now stretched in to the
middle of its fourth decade.
PRAYER FOR RELIEF
If there is another case like this in the United States, undersigned counsel is
unaware of it. Mr. Hartfield has spent sixty percent of his entire life and some
three-quarters of his adult life held in unlawful confinement. While the District
Attorneys Office still postures as if it intends to proceed with a trial, the
uncontested fact is that crucial evidence including the murder weapon has been
lost. If subjecting Mr. Hartfield to a new trial after this passage of time and under

18
these circumstances does not violate the Sixth Amendments speedy trial
guarantee, that right has no meaning.
WHEREFORE, Mr. Hartfield respectfully prays this Court grant
discretionary review, once again hold his claim is cognizable in a pre-trial habeas
application, and hold that his Sixth Amendment right to a speedy trial has been
violated.

Respectfully Submitted,

s/ David R. Dow
___________________________
David R. Dow
100 Law Center
Tel. (713) 743-2171
Fax (713) 743-2131

s/ Jeffrey R. Newberry
__________________________
Jeffrey R. Newberry
100 Law Center
Tel. (713) 743-6843
Fax (713) 743-2131

Counsel for Jerry Hartfield

19
CERTIFICATE OF SERVICE

I certify that on the 15th day of August 2014, a true and correct copy of the
above legal document was delivered to the following:

The Honorable Steven Reis
Criminal District Attorney
Bay City, Texas 77414-5094
Tel. (979) 244-7657
Fax (979) 245-9409
Email SREIS@co.matagorda.tx.us

The State Prosecuting Attorney
209 W. 14th Street
Austin, Texas 78701
Email information@spa.texas.gov

_________________________
Jeffrey R. Newberry

CERTIFICATE OF COMPLIANCE

This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e)
because it has been prepared in a conventional typeface using MS Word in Times
New Roman 14-point font for body text. The petition contains 4,215 words,
excluding the parts exempted by Tex. R. App. P. 9.4(i)(1)

_________________________
Jeffrey R. Newberry

20
APPENDIX

Exhibit A Ex parte Hartfield, Nos. 13-14-00238-CV, 13-14-00239-CV,
13-14-00240-CR, 13-14-00344-CR, (Tex. App.Corpus Christi
Aug. 14, 2014, pet. filed Aug. 15, 2014)

Exhibit A

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

NUMBERS 13-14-00238-CV
13-14-00239-CV
13-14-00240-CR

EX PARTE JERRY HARTFIELD

On appeal from the 130th District Court
of Matagorda County, Texas.

NUMBER 13-14-00344-CR

IN RE JERRY HARTFIELD

On Petition for Writ of Prohibition.

OPINION

Before Justices Rodriguez, Garza, and Benavides
Opinion by Justice Rodriguez

2

In June 1977, a jury convicted appellant Jerry Hartfield of capital murder and
sentenced him to death. On September 17, 1980, the Texas Court of Criminal Appeals
reversed his conviction and ordered a new trial. Hartfield v. State (Hartfield I), 645
S.W.2d 436, 441 (Tex. Crim. App. 1980) (en banc) (reversing and remanding for a new
trial on the basis that the State violated Hartfields rights under the Sixth and Fourteenth
Amendments by striking a juror for cause because of her reservations about the death
penalty). The court of criminal appeals issued its mandate on March 4, 1983. On March
15, 1983, the Governor purportedly commuted Hartfields sentence to life in prison, and
the Texas Department of Criminal Justice maintained custody of Hartfield.
In 2006 and 2007, Hartfield asserted his speedy-trial claims through an article
11.07 post-conviction habeas petition.
1
See TEX. CODE CRIM. PROC. ANN. art. 11.07
(West, Westlaw through 2013 3d C.S.) (setting out the procedure for seeking post-
conviction habeas relief in a noncapital felony case). When the state courts denied him
relief, Hartfield filed a pro se federal habeas application in the United States District Court.
The federal district court construed Hartfields application as a pretrial habeas application
under section 2241 and dismissed his speedy-trial claims, without prejudice, as
unexhausted. See Hartfield v. Thaler (Hartfield II), 498 Fed. Appx. 440, 444 (5th Cir.
2012) (per curiam) (outlining the course of Hartfields proceedings in federal court); see
also 28 U.S.C.A. 2241(c)(3) (West, Westlaw through P.L. 113120). Both parties
appealed that determination, and the Fifth Circuit certified the following question to the
Texas Court of Criminal Appeals: What was the status of the judgment of conviction

1
We note that Hartfields attempts to compel a new trial by filing petitions for writ of mandamus in
state and federal courts during this time were unsuccessful.
3

after these events[, the issuance of the mandate and the commutation of the sentence,]
occurred? Hartfield II, 498 Fed. Appx. at 445. In 2013, after the court of criminal
appeals answered [t]he status of the judgment of conviction is that [Hartfield] is under no
conviction or sentence, see Hartfield v. Thaler (Hartfield III), 403 S.W.3d 234, 240 (Tex.
Crim. App. 2013), the Fifth Circuit affirmed the federal district courts judgment dismissing
Hartfields section 2241 application without prejudice. Hartfield v. Stephens (Hartfield
IV), 536 Fed. Appx. 455, 456 (5th Cir. 2013).
On June 20, 2013, Hartfield again sought to enforce his constitutional right to a
speedy trial in state court, this time by filling an article 11.08 pretrial habeas petition in
each of three trial-court cause numbers, two civil and one criminal. See TEX. CODE CRIM.
PROC. ANN. art. 11.08 (West, Westlaw through 2013 3d C.S.) (setting out the procedures
for post-indictment, pre-conviction habeas petitions that challenge confinement). In the
criminal cause, Hartfield also filed a motion to dismiss the 1976 indictment on speedy-
trial grounds, which the trial court later denied. In April 2014, after a December
evidentiary hearing on Hartfields pretrial habeas petitions, the trial court filed its findings
of fact and conclusions of law, concluding, in sum, the following: In the final balance,
this [trial] court concludes that the four Barker factors weighs [sic] against finding a
speedy[-]trial violation. See Barker v. Wingo, 407 U.S. 514, 515 (1972) (setting out the
following four-factor weighing and balancing test for assessing a claim that the speedy-
trial right of the Sixth Amendment has been violation: (1) length of the delay, (2) reason
for the delay, (3) assertion of the right, and (4) prejudice to the accused). On April 17,
2014, the trial court entered an order denying Hartfields petitions for writ of pretrial
4

habeas corpus and his motion to set aside the indictment. Hartfield appealed from the
trial courts denial of his habeas petitions.
By a single issue on appeal, Hartfield contends that his constitutional right to a
speedy trial has been violated. See id. (explaining that the right to a speedy trial is
guaranteed by the Sixth Amendment to the United States Constitution and is applicable
to the states through the Fourteenth Amendment). On May 14, 2014, this Court granted
Hartfields unopposed motion to give preferential treatment in this Courts scheduling.
See TEX. R. APP. P. 43.6 (The court of appeals may make any other appropriate order
that the law and the nature of the case require.). With the issuance of this opinion, we
have handled the cases expeditiously because of the significant issue involved. See id.;
see also TEX. GOVT CODE ANN. 21.001(b) (West, Westlaw through 2013 3d C.S.) (A
court shall require that proceedings be conducted with dignity and in an orderly and
expeditious manner and control the proceedings so that justice is done.).
The trial court then set a trial on this matter for September 22, 2014. Hartfield
responded by filing, in this Court, a petition for writ of prohibition and motion for
emergency stay of the September trial setting, pending our resolution of this appeal. On
June 25, 2014, we entered an order staying the trial courts proceedings.
Even though this case documents what appears to be the longest gap between
indictment and trial in any speedy-trial case that has come before this Court or any other
court, the uniqueness and fundamental differences that underlie Hartfields speedy-trial
claim, no matter how extraordinary, cannot establish its independent pretrial appealability.
See United States v. MacDonald, 435 U.S. 850, 857 n.6 (1978). Because a pretrial
5

habeas proceeding is not an appropriate avenue for raising a speedy-trial claim, we
vacate the portion of the trial courts order denying Hartfields petitions for writ of habeas
corpus, and we dismiss Hartfields appeals. See Ex parte Barnett, 424 S.W.3d 809, 811
(Tex. App.Waco 2014, no pet.) (dismissing the appeal because Barnetts pretrial
habeas proceeding was not an appropriate avenue for raising his penalty-range
challenge) (citing Ex parte Doster, 303 S.W.3d 720, 727 (Tex. Crim. App. 2010)
(dismissing Dosters appeal after vacating the court of appeals opinion that affirmed the
trial court's denial of his writ of habeas corpus)). Having resolved the appeals, we
dismiss the writ of prohibition as moot and lift the stay in the trial courts proceedings.
I. BACKGROUND
2

A. Conviction, Appeal, and Purported Commutation of Sentence: 19771983

In 1977, a jury convicted Hartfield of the capital murder of Eunice Lowe and
sentenced him to death. On direct appeal, Hartfield complained of a Witherspoon
errorspecifically that a member of the venire panel was improperly excluded from the
jury. See Witherspoon v. Illinois, 391 U.S. 510, 522 (1968) (holding that sentence of
death cannot be carried out if the jury that imposed or recommended it was chosen by
excluding veniremen for cause simply because they voiced general objections to the
death penalty). The court of criminal appeals agreed, and on September 17, 1980, it

2
We have taken the procedural history from Hartfield v. Thaler (Hartfield II), 498 Fed. Appx. 440,
44145 (5th Cir. 2012) (per curiam), the Fifth Circuits opinion certifying the question of whether the prior
judgment of conviction had been effectively vacated to the Texas Court of Criminal Appeals, from Hartfield
v. Thaler (Hartfield III), 403 S.W.3d 234, 23638 (Tex. Crim. App. 2013), the opinion by the Texas Court of
Criminal Appeals on the certified question, and from Hartfield v. Stephens (Hartfield IV), 536 Fed. Appx.
455, 456 (5th Cir. 2013), the Fifth Circuits opinion affirming the federal district courts judgment dismissing
Hartfields section 2241 application without prejudice.

6

reversed the judgment and remanded for a new trial.
On October 2, 1980, the State sought leave to file a motion for rehearing, urging
the court of criminal appeals to reform the sentence to life imprisonment instead of
remanding for a new trial. Alternatively, the State asked for a reasonable period of time
to seek a commutation of Hartfields sentence from the Governor. On November 26,
1980, the court of criminal appeals granted the motion for leave to file the motion for
rehearing. However, on January 26, 1983, it denied the States motion for rehearing,
refusing the States request to reform the sentence and holding that the fifteen-day period
between the rendition of its decision and the date that the mandate issues was a
reasonable time to seek commutation of Hartfields sentence from the Governor. On
March 1, 1983, the court of criminal appeals denied the States motion for leave to file a
second motion for rehearing. Mandate issued on March 4, 1983, and the trial court
acknowledged receipt of the mandate on March 9, 1983.
On March 14, 1983, the Board of Pardons and Paroles sent a letter to the Governor
recommending that he commute Hartfields death sentence to life. The following day,
March 15, 1983, the Governor signed proclamation number 83-04805 purportedly
commuting Hartfields sentence from death to life imprisonment. On March 23, 1983,
the trial court returned a postcard to the court of criminal appeals stating that the execution
of the mandate had been carried out. The card read Executed on March 16, 1983 by
Governor Mark White, with a notation stating, Death Sentence commuted to Life by
Governor. No further action was taken, and the Texas Department of Criminal Justice
7

maintained custody of Hartfield.
3

B. Proceedings in State and Federal Courts: 20062013

On November 14, 2006, Hartfield filed a pro se petition for writ of habeas corpus
in state court, seeking relief under article 11.07 of the code of criminal procedure. See
TEX. CODE CRIM. PROC. ANN. art. 11.07. On November 27, Hartfield supplemented his
petition with a speedy-trial claim. The district court forwarded Hartfields petition and
supplement to the Texas Court of Criminal Appeals. Also, on January 4, 2007, Hartfield
filed a pro se petition for writ of mandamus in the court of criminal appeals, seeking to
compel a new trial. On January 31, 2007, without written order, the court of criminal
appeals denied Hartfields habeas petition and his petition for writ of mandamus. On
April 22, 2007, Hartfield filed a second pro se petition for writ of habeas corpus, which the
court of criminal appeals dismissed on May 30, 2007, as a subsequent petition under
article 11.07, section 4(a)(c) of the Texas Code of Criminal Procedure. See id.
Hartfield then filed a pro se application for writ of habeas corpus in the United
States District Court for the Southern District of Texas, raising two claims: (1) that his
right to due process had been denied by the trial courts failure to retry him; and (2) that
he was being detained by an illegal sentence. The district court referred the application
to a magistrate judge, who, on October 3, 2008, appointed a federal public defender as
counsel for Hartfield. The magistrate judge later concluded, in relevant part, that
Hartfield was not in custody pursuant to a judgment of a state court and that his claim

3
The trial court set out, among others, the following finding of fact: Hartfield remained
incarcerated in the Texas Department of Criminal Justice, Institutional Division, from the date the mandate
issued until June 28, 2013, when the Matagorda County [S]heriff [D]eputies executed the bench warrant by
the 130th [D]istrict [C]ourt.
8

was actually a pre-conviction habeas petition. However, because Hartfield was confined
in the Eastern District of Texas, the case was transferred there.
A magistrate judge for the Eastern District likewise construed Hartfields
application as a pretrial habeas application under section 2241, recommended that
Hartfields application be dismissed without prejudice, and concluded that Hartfield had
failed to exhaust state-law remedies. The federal district court adopted the magistrate
judges recommendations, holding that (1) Hartfield was not in custody pursuant to the
judgment of a state court; and (2) Hartfields claims were not properly before it because,
having taken the procedurally improper step of directly asking the court of criminal
appeals for relief, Hartfield had yet to properly seek relief from the state trial court. The
district court required Hartfield to proceed in state court with his claim that the indictment
should be dismissed because a new trial would violate his Sixth Amendment right to a
speedy trial. On April 29, 2011, the federal district court dismissed Hartfields application
without prejudice.
Both parties appealed to the Fifth Circuit, the State challenging the holding that
Hartfield was not in custody pursuant to a judgment, and Hartfield appealing from the
requirement that he exhaust his speedy-trial claim. On November 28, 2012, finding no
controlling state precedent regarding the status of Hartfields conviction and sentence,
the federal court of appeals certified the following question to the Texas Court of Criminal
Appeals: Whether the judgment of conviction had been effectively vacated prior to the
1983 commutation.
On June 12, 2013, the court of criminal appeals answered the Fifth Circuits
9

certified question, determining that no judgment of conviction existed after mandate
issued on March 4, 1983. The court of criminal appeals reasoned that with no conviction
and no sentence to reduce, the governors March 15, 1983 commutation order had no
effect. The court of criminal appeals also agreed that Hartfield had not exhausted his
state remedies. The Fifth Circuit then affirmed the federal district courts order
dismissing Hartfields speedy-trial claim without prejudice, as unexhausted.
C. Proceedings in State Court: 2013 to Present

On June 20, 2013, Hartfield filed three petitions for writ of habeas corpus pursuant
to article 11.08.
4
See id. art. 11.08. On September 4, 2014, the State filed a motion to
dismiss Hartfields petitions, arguing that his speedy-trial claim was not cognizable in such
an article 11.08 petition. The trial court denied the States motion on November 27,
2013. On December 17, 2013, Hartfield filed a motion in the trial court to set aside his

4
Hartfield filed a petition for writ of habeas corpus in each of the following: (1) Civil Cause Number
13-E-0324 (appellate cause number 13-14-00238-CV) in the Matagorda County District Court; (2) Civil
Cause Number 13-E-0325 (13-14-00239-CV) in the Matagorda County District Court; and (3) Criminal
Cause Number 7794 in the 329th District Court of Wharton County, Texas. On July 29, 2013, Cause
Number 7794 was transferred to Criminal Cause Number 13-0334 (13-14-00240-CR) in the Matagorda
County District Court.

During a preliminary hearing below, Hartfield informed the trial court that, to avoid redundancy, he
would pursue his petition only in Criminal Cause Number 13-0334. However, the petitions in Civil Cause
Numbers 13-E-0324 and 13-E-0325 were neither withdrawn nor dismissed, and the trial courts order
denied Hartfields petitions for writ of habeas corpus filed in those cause numbers as well as in Criminal
Cause Number 13-0334.

On appeal, Hartfield has advised this Court that, out of an abundance of caution, he filed three
notices of appeal, two civil and one criminal. Upon receipt, we docketed the three notices separately, two
as civil appeals and one as a criminal appeal. Now, the State respectfully suggests that we have not
properly docketed the two civil appeals because our decision will ultimately be appealable to the Texas
Court of Criminal Appeals for an article 11.08 determination. We share each partys concern. Yet this
Court does not have the ability to re-characterize an appeal filed from a trial-court cause number that an
appellant prudently specifies. Following this appeal, we propose that the trial court and the parties take
any necessary action to resolve this matter.

10

indictment in the criminal case, Cause Number 13-0334.
On December 19, 2013, the trial court heard Hartfields habeas petitions and, on
December 27, 2013, ordered additional briefing. Both parties complied. Because no
order was forthcoming, on April 7, 2014, Hartfield filed a petition for writ of mandamus in
this Court. We dismissed the petition as moot when the trial court entered its order on
Hartfields petitions for writ of habeas corpus as discussed below. In re Hartfield, No.
13-14-00210-CR, 2014 WL 1514171, at *1 (Tex. App.Corpus Christi April 15, 2014,
orig. proceeding) (per curiam) (mem. op., not designated for publication).
On April 17, 2014, the trial court entered an order denying Hartfield relief on his
three pretrial habeas petitions. In its April 17, 2014 order, the trial court also denied
Hartfields motion to set aside the indictment. The trial court later filed thirty-five pages
of findings of fact and conclusions of law addressing Hartfields speedy-trial claim and
concluding that the Barker factors weighed against a speedy-trial violation.
5

On April 25, 2014, Hartfield appealed the trial courts order denying his pretrial

5
As part of its conclusions of law, the trial court provided the following chart summarizing its
analysis of the Barker factors.

Barker v. Wingo Factor Finding Weighs Against the Degree

Length of the Delay
Over 30 years from
mandate to instant
motion

State

Triggers Barker review

Reason for Delay

States Negligence State Not as heavily as bad
faith or intentional delay
Defendants assertion
of the right to speedy
trial
Acquiescence for over
23 years; no filings
directly in the trial court

Hartfield

Heavily

Prejudice to the
Accused
Over 30 years pre-trial
incarceration;
presumed prejudice,
extenuated

State

Slight

11

habeas petitions. Hartfield did not appeal the trial courts order denying his motion to set
aside the indictment, as that avenue of appeal, as will be discussed later in this opinion,
is available only post-conviction.
On June 24, 2014, Hartfield filed a petition for writ of prohibition and motion for
emergency stay in this Court. In his petition, Hartfield informed us that the trial court had
scheduled the trial in this matter for September 22, 2014. He alleged that the trial court
had done so in an attempt to circumvent this Courts ability to determine whether
Hartfields right to a speedy trial was violated. See Gano v. Villarreal, 745 S.W.2d 586,
587 (Tex. App.Corpus Christi 1988, orig. proceeding) (setting out that a writ of
prohibition may issue to prevent, among other things, a lower court from interfering with
a higher courts determination of a case pending on appeal). Hartfield argued that he
was entitled to have the trial stayed. We granted an emergency stay and requested a
response, which the State filed on June 19, 2014. We then stayed the trial court
proceedings, pending resolution of the appeals.
6

II. ISSUES PRESENTED
On appeal, Hartfield brings the following issue: Whether the Sixth Amendment
right to a speedy trial is violated when the State of Texas confines a man to the
penitentiary for more than thirty years following a decision by the States highest court to
provide that man with a new trial. By a number of sub-issues, Hartfield challenges
relevant findings of fact and conclusions of law that the trial court entered following its
denial of Hartfields petitions for a pretrial writ of habeas corpus. In sum, Hartfield claims

6
We consider Hartfields appeals and his petition for writ of prohibition in this consolidated opinion.
12

that the trial court should have found the first Barker factor weighed heavily in favor of
Hartfield, the third factor weighed slightly in his favor or slightly against him, and the fourth
factor weighed heavily in his favor, leading to the conclusion that Hartfields right to a
speedy trial has been violated. See Barker, 407 U.S. at 533; Cantu v. State, 253 S.W.3d
273, 280 (Tex. Crim. App. 2008); see also U.S. CONST. amend. VI (In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have been committed . . . .).
In response, the State asserts that Hartfields speedy-trial complaint is not
cognizable in a petition for a pretrial writ of habeas corpus. Alternatively, the State
contends that, should we conclude that Hartfields complaint is cognizable; his Barker-
factor arguments are without merit. Because the threshold determination of whether
Hartfields claim is even cognizable in a pretrial habeas petition is dispositive of all
appeals, we address it first.
7
See Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App.
2010) ([W]hether a claim is even cognizable on pretrial habeas is a threshold issue that
should be addressed before the merits of the claim may be resolved.); see also TEX. R.
APP. P. 47.1.
III. DISCUSSION

A. Applicable Law
The writ of habeas corpus is the remedy to be used when any person
is restrained in his liberty. It is an order issued by a court or judge of
competent jurisdiction, directed to any one having a person in his custody,
or under his restraint, commanding him to produce such person, at a time
and place named in the writ, and show why he is held in custody or under
restraint.

7
Because the facts and issues are the same in each case, we address them in one opinion.
13

TEX. CODE CRIM. PROC. ANN. art. 11.01 (West, Westlaw through 2013 3d C.S.). Article
11.08 provides for a pretrial writ of habeas corpus:
If a person is confined after indictment on a charge of felony, he may apply
to the judge of the court in which he is indicted; or if there be no judge within
the district, then to the judge of any district whose residence is nearest to
the court house of the county in which the applicant is held in custody.

Id. art. 11.08; see id art. 11.07 (providing for a post-conviction writ of habeas corpus).
A pretrial habeas, followed by an interlocutory appeal, is an extraordinary
remedy. Ex parte Ellis, 309 S.W.3d at 79. Because it is an extraordinary remedy,
appellate courts have been careful to ensure that a pretrial writ is not misused to secure
pretrial appellate review of matters that should not be put before appellate courts at the
pretrial stage. Ex parte Ragston, 402 S.W.3d 472, 475 (Tex. App.Houston [14th Dist.]
2013), aff'd sub nom. Ragston v. State, 424 S.W.3d 49 (Tex. Crim. App. 2014) (citing Ex
parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010)). Neither a trial court nor an
appellate court should entertain a petition for writ of habeas corpus when there is an
adequate remedy by appeal. Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App.
2001). If a non-cognizable claim is resolved on the merits in a pretrial habeas appeal,
then the pretrial writ has been misused, and the State can appropriately petition [the court
of criminal appeals] to correct such misuse. Ex parte Ellis, 309 S.W.3d at 79.
In Ex parte Weise, the Texas Court of Criminal Appeals succinctly summarized its
holdings on the types of claims that are cognizable in a pretrial writ of habeas corpus:
[A]n applicant may use pretrial writs to assert his or her constitutional
protections with respect to double jeopardy and bail. We reasoned that
these protections would be effectively undermined if these issues were not
cognizable. Conversely, we have held that an applicant may not use a
pretrial writ to assert his or her constitutional rights to a speedy trial,
14

challenge a denial of a pretrial motion to suppress, or make a collateral
estoppel claim that does not allege a double jeopardy violation. These
issues are better addressed by a post-conviction appeal.

55 S.W.3d at 61920 (footnotes omitted). In other words, an alleged violation of a
defendants Sixth Amendment right to a speedy trial cannot be raised by pretrial habeas
because a ruling on such an issue is not entitled to interlocutory review. MacDonald,
435 U.S. at 863; Ex parte Doster, 303 S.W.3d at 724; Ex parte Weise, 55 S.W.3d at 620;
Ex parte Graves, 271 S.W.3d 801, 807 (Tex. App.Waco 2008, pet. ref'd) (denying
appellants pretrial writ of habeas corpus speedy-trial claim that his due process rights
[would be] violated [if he were] re-tried fourteen years after the original trial, when the
delay was a result of intentional prosecutorial misconduct, on the basis that his claim
was not cognizable). As the United States Supreme Court observed:
There perhaps is some superficial attraction in the argument that the right
to a speedy trial . . . must be vindicated before trial in order to insure that no
nonspeedy trial is ever held. Both doctrinally and pragmatically, however,
this argument fails. Unlike the protection afforded by the Double Jeopardy
Clause, the Speedy Trial Clause does not, either on its face or according to
the decisions of this Court, encompass a right not to be tried which must
be upheld prior to trial if it is to be enjoyed at all. It is the delay before trial,
not the trial itself, that offends the constitutional guarantee of a speedy trial.
If . . . an accused [is deprived] of his right to a speedy trial, that loss, by
definition, occurs before trial. Proceeding with the trial does not cause or
compound the deprivation already suffered.

MacDonald, 435 U.S. at 86061.
Instead, the remedy [for an alleged violation of ones constitutional right to a
speedy trial] is a pretrial motion to set aside the charging instrument on speedy-trial
grounds. Ex parte Graves, 271 S.W.3d at 807. And while the denial of relief on a
pretrial writ of habeas corpus in certain instances may be appealed immediately, Ex parte
15

Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005) (per curiam); see Ex parte Weise, 55
S.W.3d at 61920, the denial of a speedy-trial pretrial motion to quash an indictment may
be appealed only after conviction and sentencing. See Ex parte Smith, 178 S.W.3d at
801; see also MacDonald, 435 U.S. at 86061. Finally, in MacDonald, the United States
Supreme Court stated that [a]ppeal rights cannot depend on the facts of a particular
case. The factual circumstances that underlie a speedy trial claim, however
extraordinary, cannot establish its independent appealability prior to trial. 435 U.S. at
857 n.6 (quoting Carroll v. United States, 354 U.S. 394, 405 (1957)).
B. Standard of Review
We review a trial court's decision to grant or deny a writ of habeas corpus for abuse
of discretion. See Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006); see
also Ex parte Cedillo, No. 13-09-00219-CR, 2010 WL 2136607, *2 (Tex. App.Corpus
Christi May 27, 2010, no pet.) (mem. op., not designated for publication). However, if
the resolution turns on an application of legal standards, we review the determination de
novo. See Sandifer v. State, 233 S.W.3d 1, 2 (Tex. App.Houston [1st Dist.] 2007, no
pet.) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc)).
Here, the State asserts that the trial court misapplied the law when, in this pretrial habeas
proceeding, it reviewed the merits of Hartfields non-cognizable speedy-trial claim. So,
in this case, we review the trial court's denial of Hartfields pretrial habeas petitions de
novo. See id.
C. Discussion
1. Motion to Dismiss the Indictment
16

In the present case, Hartfield filed a pretrial motion to dismiss his indictment, which
the trial court denied. Based on the case law set out above, over which we lack that
authority to overturn, see State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.Austin 2006)
(As an intermediate court, we lack the authority to overturn the court of criminal
appeals.), aff'd sub nom. State v. Colyandro, 233 S.W.3d 870, 885 (Tex. Crim. App.
2007), because this issue is better addressed by a post-trial appeal, see MacDonald, 435
U.S. at 863; Ex parte Weise, 55 S.W.3d at 620, Hartfield has an adequate remedy at law
by raising his speedy-trial claim on direct appeal of an underlying murder conviction, if
any, on the retrial of his case. See Ex parte Graves, 271 S.W.3d at 807; see also TEX.
CODE CRIM. PROC. ANN. art. 27.03 (West, Westlaw through 2013 3d C.S.) (governing the
grounds on which a motion to set aside an indictment may be sought); id. art. 28.061
(West, Westlaw through 2013 3d C.S.) (If a motion to set aside an indictment,
information, or complaint for failure to provide a speedy trial is sustained, the court shall
discharge the defendant.); id. art. 44.01(a)(1) (West, Westlaw through 2013 3d C.S.)
(providing that the State may appeal when the trial court grants a motion to dismiss an
indictment). In other words, Hartfields post-conviction appeal of the trial courts denial
of his motion to dismiss his indictment is his avenue to assert his speedy-trial claim, not
the drastic remedy of pretrial habeas relief. See Ex parte Doster, 303 S.W.3d at 724; Ex
parte Weise, 55 S.W.3d at 620; Ex parte Jones, 449 S.W.2d 59, 60 (Tex. Crim. App.
1970). Were we to entertain Hartfields petitions and resolve his speedy-trial claim on
the merits in this pretrial habeas appeal, we would be misusing the pretrial writ. See Ex
parte Ellis, 309 S.W.3d at 79; see also Ex parte Weise, 55 S.W.3d at 619. For if it is
17

determined on direct appeal that Hartfield has been deprived of his right to a speedy trial,
that loss, by definition, occurred before trial and proceeding with trial would not have
caused or compounded any deprivation which had already been suffered. See
MacDonald, 435 U.S. at 86061; Ex parte Lamar, 184 S.W.3d 322, 323 (Tex. App.Fort
Worth 2005, pet. ref'd) (op. on rehg).
2. Is a Speedy-Trial Claim Cognizable Through an Article 11.08
Pretrial Habeas Petition?

Nevertheless, Hartfield argues that [w]hether it intended to overrule precedent or
merely recognized that Mr. Hartfields case is unique, the [Texas] Court of Criminal
Appeals clearly indicated in its June 12, 2013 opinion that filing [a petition] under [a]rticle
11.08 was one of the two means by which Mr. Hartfield could raise his speedy[-]trial
claim. See Hartfield III, 403 S.W.3d at 240.
a. Did the Court of Criminal Appeals Overturn Precedent?

By the following language from Hartfield III, Alternatively, Petitioner could have
filed an application under Article 11.08, Hartfield argues that the Texas Court of Criminal
Appeals overturned its own precedent. See id. The State characterizes this language
as, among other things, a single, fleeting sentence and asserts that if this sentence is
placed back into context, [Hartfields] interpretation fails. We are persuaded by the
States arguments because, were we to follow Hartfields reasoning, we would have to
conclude that the court of criminal appeals intended to overturn decades of its own
precedent with this one sentence. And we decline to do so.
Finding no controlling precedent under Texas law, the Fifth Circuit certified the
following determinative question to the Texas Court of Criminal Appeals: What was the
18

status of the judgment of conviction after these events occurred? Id. at 236. The
court of criminal appeals provided the following answer to the certified question:
The March 4, 1983 mandate issued by this Court reversed the judgment of
conviction, and no court has entered any order thereafter to alter that
reversal. Because some penalty must be assessed for the authority of
commutation to be exercised and Petitioners death sentence was erased
by our mandate, the governors proclamation of commutation was a nullity.
The status of the judgment of conviction is that Petitioner is under no
conviction or sentence.

Id. at 240. Beyond this answer to the certified question, the court of criminal appeals
ended its opinion with the following section titled State Remedies for Pretrial Claim:
When Petitioner filed a state application for writ of habeas corpus, he filed
it under Code of Criminal Procedure Article 11.07. Because Article 11.07
relates only to post-conviction applications for writ of habeas corpus and
there was no judgment of conviction against Petitioner, this was not the
proper procedure, and we denied his application. He also filed an
application for leave to file a petition for mandamus asking us to compel a
new trial. This too was the improper procedure because our reversal of his
conviction left him in the same position as if he had never had a trial. If his
motion to set aside the indictment for failure to provide a speedy trial was
sustained, then Petitioner would be discharged under Article 28.061 of the
Texas Code of Criminal Procedure. Alternatively, Petitioner could have
filed an application under Article 11.08. Therefore, the United States
District Court for the Eastern District is correct that Petitioner has not
exhausted state remedies. Because our denial of Petitioner's applications
for writs of habeas corpus and mandamus were based on his failure to
follow the proper procedure, it is not a forgone conclusion that Petitioner's
state claims will be denied and exhaustion of state remedies is not futile.

Id. at 23940.
Although the federal exhaustion requirement is absent from the statutory language
of section 2241(c)(3), generally, a pretrial, federal habeas petitioner must first present a
constitutional claim to the state courts before the federal courts can pass on it. See, e.g.,
Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 48992 (1973) (determining
19

that exhaustion is necessary under section 2241 as well as section 2254); compare 28
U.S.C.A. 2241(C)(3) (West, Westlaw through P.L. 113120) (providing for pre-trial
habeas proceedings absent an exhaustion requirement in the statutory language) with 28
U.S.C.A. 2254(b)(1)(A)(B) (West, Westlaw through P.L. 113120) (providing that [a]n
application for a writ of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted unless it appears that . . . the applicant has
exhausted the remedies available in the courts of the State, that there is an absence of
available State corrective process or that circumstances exist that render such process
ineffective to protect the rights of the applicant). Perhaps in an effort to ensure that the
Fifth Circuit did not waive the federal exhaustion requirement and address Hartfields
speedy-trial claim de novo, the court of criminal appeals suggested the existence of a
pretrial remedy to inform the state courts of his speedy-trial claim, that remedy being a
pretrial motion to set aside the indictment for failure to provide a speedy trial. See
Hartfield III, 403 S.W.3d at 240. As the court of criminal appeals explained, if this pretrial
motion were sustained, Hartfield would be discharged under article 28.061 of the Texas
Code of Criminal Procedure. Id.; see TEX. CODE CRIM. PROC. ANN. art. 28.061. If
denied, Hartfield would have the opportunity to challenge the ruling post-conviction on
direct appeal. See Ex parte Doster, 303 S.W.3d at 724; Ex parte Weise, 55 S.W.3d at
620. Identifying a second pretrial remedy, the court of criminal appeals also set out that
Hartfield could have filed an application under [a]rticle 11.08. Hartfield III, 403 S.W.3d
at 240. Importantly, its reference to article 11.08 did not set out that Hartfield could have
filed a petition under article 11.08 to advance his speedy-trial claim. See id. The court
20

of criminal appeals omitted that specific language, perhaps to indicate that Hartfield could
have used article 11.08 to advance his contention that he was in prison despite the fact
that he was under no conviction or sentence. See id. In that regard, Hartfield would not
have exhausted his state court remedies. See id. So, as the State submits, we
conclude that the court of criminal appeals article 11.08 reference is narrower than
Hartfield contends. And we cannot conclude that the Texas Court of Criminal Appeals,
without more, overturned precedent with a single sentence.
b. Is Hartfields Claim an Exception to the General Rule?
Hartfield also asserts that his claim is cognizable in a pretrial writ of habeas corpus
because it is so unique and fundamentally different from every other speedy-trial case.
He contends that, by its language, the court of criminal appeals recognized that the
following concerns that ordinarily make a pretrial petition an inappropriate vehicle by
which to raise a speedy-trial claim are not present in this case: (1) the degree to which
a defendants ability to present a defense has been prejudiced by the delay prior to the
trial is typically difficult to determine; and (2) allowing immediate appeal on speedy-trial
issues would frustrate the purposes of the Speedy Trial Clause. See MacDonald, 435
U.S. at 85962; see also Barker, 407 U.S. at 530, 533. We do not agree that the court
of criminal appeals recognized that Hartfields case was so out of the ordinary, that he
could apply for pretrial habeas corpus relief on his speedy-trial claim.
As set out above, [a]ppeal rights cannot depend on the facts of a particular case.
MacDonald, 435 U.S. at 857 n.6; Carroll, 354 U.S. at 405. And, as noted earlier, even
though this case documents what appears to be the longest gap between indictment and
21

trial in any speedy-trial case that has come before this Court or any other court, the
uniqueness and fundamental differences that underlie Hartfields speedy-trial claim, no
matter how extraordinary, cannot establish its independent pretrial appealability. See
MacDonald, 435 U.S. at 857 n.6.
3. Summary
We cannot conclude that the court of criminal appeals has overruled its precedent
or created an exception to the general rule under the facts of this case, and we are obliged
to conform our opinions to those of the court of criminal appeals. See DeLay, 208
S.W.3d at 607. Being bound by the court of criminal appeals precedent on this subject,
see Moses, 590 S.W.2d at 470, we reject Hartfields arguments in support of his
contention that he may raise his speedy-trial claim in a pretrial writ of habeas corpus.
Based on our de novo review, see Sandifer, 233 S.W.3d at 2 (citing Guzman, 955
S.W.2d at 89), Hartfields speedy-trial claim is not cognizable by a pretrial petition for a
writ of habeas corpus. Hartfield has an adequate remedy at law; therefore, he is not
eligible for pretrial habeas relief. And the trial court erred in determining the merits of
Hartfields speedy-trial claim in this pretrial habeas proceeding.
Having concluded that Hartfields speedy-trial claim is not cognizable in such an
article 11.08 pretrial habeas petition, we do not reach Hartfields contentions regarding
the Barker factors. See TEX. R. APP. P. 47.1. We overrule Hartfields sole issue.
IV. CONCLUSION
Accordingly, we vacate the portion of the trial courts order that denied Hartfields
petitions for writ of habeas corpus under article 11.08 in Cause Numbers 13-E-0324, 13-
22

E-0325, and 13-0334, and we dismiss Hartfields appeals. See Ex parte Barnett, 424
S.W.3d at 811 (citing Ex parte Doster, 303 S.W.3d at 727; see also TEX. R. APP. P. 43.2(f).
We further dismiss Hartfields petition for writ of prohibition, which complains of a trial
setting prior to the resolution of his appeals, as moot and lift the stay in the trial court.

NELDA V. RODRIGUEZ
Justice

Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 14th
day of August, 2014.

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