Ex Parte Bessie Tekila Martin v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-25-00382-CR
No. 02-25-00383-CR
___________________________

EX PARTE BESSIE TEKILA MARTIN

On Appeal from the 415th District Court
Parker County, Texas
Trial Court Nos. CR24-0849, CR24-0850

Before Sudderth, C.J.; Bassel and Walker, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION

I. Introduction

Appellant Bessie Tekila Martin appeals the denial of her application for a writ

of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.08. The application alleged

that a Tarrant County court had taken certain out-of-county unadjudicated offenses

into account when it adjudicated her guilt on an offense for which she had previously

been placed on deferred-adjudication community supervision. According to the

application, a Parker County grand jury indicted Appellant for the same offenses that

the Tarrant County court had taken into account.1 Appellant argues that because she

was “punished” when the court that adjudicated her guilt took the offenses into

account, she cannot be again placed in jeopardy for those offenses in Parker County.

In the proceedings below, Appellant simply assumed that there were facts that

supported the legal theories that she raised, but we lack a record to know whether

those facts exist. Accordingly, we will remand this matter to the trial court to permit

Appellant to develop the record necessary to determine if there is a factual basis for

her theories.

1
We would normally refer to the Appellee in this matter as the State but refer to
it as Parker County to avoid the confusion of too many references to the State.

2
II. Factual and Procedural Background

A. Relevant chronology

Appellant’s argument turns primarily on a chronology of events; thus, our

summary will follow the same path:

November 14, 2023: Appellant was placed on deferred-adjudication

community supervision for three years by the 432nd District Court of Tarrant County

in case number 1780633 for the third-degree felony offense of credit-card or debit-

card abuse against an elderly individual. See Tex. Penal Code Ann. § 32.31(b), (d).

January 11, 2024: Appellant allegedly stole a debit card and rings from an

elderly patient at the rehabilitation center where she was employed and had used the

card to purchase items in the nearby cities of Azle and Grapevine, as noted in an

offense report from the Springtown Police Department dated January 15, 2024.

February 6, 2024: A State’s petition to proceed to adjudication was filed

against Appellant in the Tarrant County case in which she had been placed on

community supervision. The petition alleged that Appellant had committed the

following offenses that violated the conditions of her community supervision:

1. [Appellant] committed the offense of CREDIT CARD OR DEBIT
CARD ABUSE ELDERLY on or about the 28th day of December,
2023 in the County of Navarro and the State of Texas.

2. [Appellant] committed the offense of CREDIT CARD OR DEBIT
CARD ABUSE ELDERLY on or about the 11th day of January, 2024 in
the County of Parker and the State of Texas.

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3. [Appellant] committed the offense of CREDIT CARD OR DEBIT
CARD ABUSE ELDERLY on or about the 11th day of January, 2024 in
the County of Parker and the State of Texas.

4. [Appellant] committed the offense of CREDIT CARD OR DEBIT
CARD ABUSE ELDERLY on or about the 11th day of January, 2024 in
the County of Parker and the State of Texas.

5. [Appellant] committed the offense of THEFT OF PROPERTY
>=$750<$2,500 – ALL OTHER LARCENY on or about the 11th day
of January, 2024 in the County of Parker and the State of Texas.

We will refer to these five allegations as the Unadjudicated Offenses.

August 22, 2024: A Parker County grand jury indicted Appellant in the 415th

District Court for two felony offenses of “Credit Card or Debit Card Abuse Elderly”

that had occurred on or about January 11 and 13, 2024, involving the use of an Austin

Telco debit card held by the cardholder named in the police report described above.

September 3, 2024: Appellant signed “Written Plea Admonishments on

Motion to Revoke Community Supervision or Petition to Proceed to Adjudication” in

the Tarrant County case for which she had been placed on community supervision.

Initially, the admonishments state that Appellant was given notice of the following:

1. A motion to revoke your community supervision or a petition to
proceed to adjudication has been filed in which you are charged with a
violation of the conditions of your community supervision.

2. The punishment agreement is: 2 days [in] Tarrant County Jail under
12.44(a) on the less[e]r[-]included offense of Debit/Credit Card Abuse.
Offense reduced to State[-]Jail Felony by waiving elderly enhancement.

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The admonishments also recite that

[Appellant] understand[s] that if I have entered a plea of true to any
allegation in a motion to revoke community supervision that the [c]ourt
may set my punishment anywhere from the minimum of the range of
punishment up to and including the amount of time of my original
sentence. I understand that if I have entered a plea of true to any
allegation in the petition to proceed to adjudication that my punishment
can be set anywhere within the range of punishment prescribed by law
for this offense.

The admonishments also contain the following judicial confession: “I further admit

my guilt on any [U]nadjudicated [O]ffenses set forth in the plea agreement set out

above[] and request the [c]ourt to take each into account in determining my sentence

for the instant offense.” Appellant’s counsel, State’s counsel, and the Tarrant County

District Judge signed a notation that “[w]e further agree and consent to the admission

of guilt of any unadjudicated offense under Sec. 12.45 Texas Penal Code.”

September 16, 2024: The Tarrant County court entered judgment that

adjudicated Appellant’s guilt (the Tarrant County Judgment). That judgment recites

that the sentence was imposed on September 3, 2024. As Parker County’s brief

points out, the Tarrant County Judgment bears a different cause number than does

the order for community supervision, the petition to proceed to adjudication, or the

plea admonishments. The Tarrant County Judgment also recites that Appellant

pleaded true to a motion to adjudicate and that the degree of the offense was “Felony-

State Jail Felony 12.44[(a) Penal Code].” The Tarrant County Judgment then

references an amended motion to adjudicate that is not in the record before us:

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“While on deferred[-]adjudication community supervision, [Appellant] violated the

conditions of community supervision, as set out in the State’s Amended Motion to

Adjudicate Guilt, as follows: PARA 1.” The Tarrant County Judgment goes on to

provide the following: “Terms of Plea Bargain (if any): or □Terms of Plea Bargain are

attached and incorporated herein by this reference. 2 DAYS TCJ ON LIO 12.44A.”

Finally, that judgment recites the following:

County Jail—State Jail Felony Conviction. Pursuant to § 12.44(a),
Tex. Penal Code, the [c]ourt FINDS that the ends of justice are best
served by imposing confinement permissible as punishment for a Class
A misdemeanor instead of a state jail felony. Accordingly, [Appellant]
will serve punishment in the county jail as indicated above. The [c]ourt
ORDERS [Appellant] committed to the custody of the County Sheriff
immediately or on the date the sentence commences. Upon release from
confinement, the [c]ourt ORDERS [Appellant] to proceed without
unnecessary delay to the District Clerk’s office, or any other office
designated by the [c]ourt or the [c]ourt’s designee, to pay or to make
arrangements to pay any fines, court costs, reimbursement fees, and
restitution due.

The Tarrant County Judgment imposed a sentence of two days’ confinement.

B. Habeas Application Grounds

Appellant filed an application for pretrial writ of habeas corpus seeking relief

from double jeopardy in the 415th District Court on the Parker County cause

numbers for which she had been indicted for credit-card or debit-card abuse. In

essence, the application claimed that the Tarrant County court had taken account of

the Unadjudicated Offenses—for which she was now indicted in Parker County—

when the Tarrant County court determined her sentence after adjudicating her guilt.

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Thus, Appellant argued that Section 12.45 of the Penal Code barred further

prosecution of the Unadjudicated Offenses in Parker County. The focus of the

application was set out in the following paragraphs:

When [Appellant] ple[aded] true to the allegations set forth in the State’s
[p]etition to [p]roceed to [a]djudication, she admitted her guilt in several
[U]nadjudicated [O]ffenses pursuant to Tex. Penal Code § 12.45. Those
allegations included the offenses that were indicted in Parker County
Cause Nos. CR24-0849 and CR24-0850 and remain unadjudicated.

Because the Parker County offenses were considered by the
432nd District Court of Tarrant County when it considered whether to
accept the plea agreement and sentence between the Tarrant County
Criminal District Attorney and [Appellant], prosecution is barred in
Cause Nos. CR24-0849 and CR24-0850. The 432nd District Court’s
judgment and acceptance of the plea agreement must be presumed to be
regular and lawful.

The Springtown Police Department offense report included
information that one of the transactions for which the alleged stolen
debit card was used was located in Grapevine, Texas, which is located in
Tarrant County. It is the same debit card that [Appellant] was indicted
for unlawfully using in Parker County within a very short period of two
or three days. This would indicate that [Appellant’s] conduct consisted
of two or more transactions that constituted a common scheme or plan,
or the conduct consisted of repeated commission of the same offense.
Thus, because the criminal episode was not exclusive to any single
jurisdiction but rather two jurisdictions, the 432nd District Court was
lawful in considering the conduct when it sentenced [Appellant] in
Tarrant County Cause No. 1782142.

Even if the separate debit[-]card transactions in Parker County
conferred exclusive jurisdiction upon the 415th District Court, then it
must be presumed that the Tarrant County [D]istrict [C]ourt and
[D]istrict [A]ttorney complied with the law and [that] the [judgment] and
[documents] in Tarrant County Cause No. 1782142 are binding absent
direct proof of their falsity. [Citations omitted.]

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C. The Parker County Court’s order denying the habeas application

The Parker County court conducted a non-evidentiary hearing on Appellant’s

habeas application. The court signed an order denying the writ (the Parker County

Order), which contained the following recitations:

WHEREAS the State’s Petition to Proceed to Adjudication filed
February 6, 2024[,] in Cause No. 1780633, 432nd District Court of
Tarrant County, Texas[,] against the above-referenced defendant and
referenced in exhibit 4 attached to [Appellant’s] Application failed to
name any victim of the three alleged Parker County offenses;

WHEREAS [Appellant] was indicted by a Parker County Grand
Jury for . . . the Third[-]Degree Felony offense of Credit / Debit Card
Abuse from Elderly, to-wit: Joann Putnam, in Cause No. CR24-0849
and CR24-0850 on August 22, 2024;

WHEREAS [Appellant’s] September 3, 2024 plea of true to the
State’s Petition fails to identify who any of the three alleged victims of
January 11, 2024 offenses alleged in paragraphs 2–4 are, or even if they
are one or more than one individual;

WHEREAS the indictment by a Parker County Grand Jury in
Cause No. CR24-0849 and CR24-0850 on August 22, 2024[,] gives
exclusive jurisdiction of these offenses to the Parker County District
Courts, prior to [Appellant’s] plea of true in the Tarrant County Petition
to Proceed to Adjudication September 3, 2024.

WHEREAS the Tarrant County waivers and stipulations portion
of the plea packet includes general language admitting to unadjudicated
offenses under Section 12.45, Texas Penal Code and the Tarrant County
Judge took judicial notice of said admission, nowhere in the waivers,
stipulations, court approval[,] or judgment does the [c]ourt indicate it is
taking into account[] the admitted offense(s) in assessing punishment;

WHEREAS the Tarrant County Judgment Adjudicating Guilt
indicates a sentence of two (2) days in the Tarrant County Jail under
§ 12.44(a), reducing the punishment of a [s]tate[-j]ail [f]elony offense to
that of a Class A misdemeanor in consideration of the gravity of the
offense, [Appellant’s] character, and [Appellant’s] history, which

8
indicates that the [c]ourt did not take into consideration the commission
of three additional felony offense[s] committed while on probation when
assessing the revocation sentence; and

WHEREAS there is no evidence that permission was sought or
obtained from the Parker County District Attorney’s Office to allow the
offenses [that are] the subject of Parker County Cause No[.] CR24-0849
or CR24-0850 to be considered as punishment in the Tarrant County
Petition to Proceed to Adjudication in accordance with Texas Penal
Code § 12.45[.]

The Parker County court certified Appellant’s right to appeal, and she filed a

notice of appeal. We requested briefing from the parties, and both Appellant and

Parker County filed briefs.

III. Analysis

A. We set forth why Appellant’s habeas claim is cognizable, the
applicable standard of review, and the statutory basis for
Appellant’s habeas application.

“[T]he writ of habeas corpus is an extraordinary remedy that is available only in

the absence of an adequate remedy at law.” Ex parte Beck, 541 S.W.3d 846, 852 (Tex.

Crim. App. 2017). Thus, a claim raised by a habeas application must be cognizable

because “[t]his remedy is reserved ‘for situations in which the protection of the

applicant’s substantive rights or the conservation of judicial resources would be better

served by interlocutory review.’” Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim.

App. 2016) (quoting Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001)).

There is no issue of cognizability in this matter because the Court of Criminal Appeals

permits double-jeopardy claims to be raised by pretrial habeas. See id.

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We review a trial court’s ruling on a pretrial application for habeas relief for an

abuse of discretion. Ex parte Todman, Nos. 02-23-00061-CR through 02-23-00064-CR,

2023 WL 4942026, at *4 (Tex. App.—Fort Worth Aug. 3, 2023, no pet.) (mem. op.,

not designated for publication) (citing Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.

Crim. App. 2006)). The trial court abuses its discretion when it acts arbitrarily or

unreasonably, without reference to guiding rules and principles. Montgomery v. State,

810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

A habeas applicant has “the obligation to provide a sufficient record that

supports his factual allegations with proof by a preponderance of the evidence.”

Ex parte Darnell, Nos. 02-19-00390-CR, 02-19-00391-CR, 2020 WL 5949928, at *7

(Tex. App.—Fort Worth Oct. 8, 2020, pet. ref’d) (mem. op., not designated for

publication) (citing Ex parte Chandler, 182 S.W.3d 350, 353 n.2 (Tex. Crim. App.

2005)). “In conducting our review, we view the evidence in the light most favorable

to the trial court’s ruling and defer to the trial court’s fact findings supported by the

record.” Todman, 2023 WL 4942026, at *4. On review, we must give deference to the

trial court’s resolution of historical facts supported by the record, as well as to the

application of law to fact questions that turn on credibility and demeanor. Alford v.

State, 358 S.W.3d 647, 652 (Tex. Crim. App. 2012). However, when the resolution of

any ultimate question turns on an application of legal standards, we review the trial

court’s ruling de novo. Id. at 653. We will uphold the habeas court’s judgment if it is

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correct on any theory of law applicable to the case. Ex parte Taylor, 36 S.W.3d 883,

886 (Tex. Crim. App. 2001).

Appellant’s brief does not identify the nature of the writ under which she is

seeking relief. We assume that she relies on Article 11.08 of the Code of Criminal

Procedure. Article 11.08 allows an applicant indicted for a criminal offense—whose

guilt has not been formally adjudicated—to challenge her confinement by a pretrial

writ application. See Tex. Code Crim. Proc. Ann. art. 11.08; see also Ward v. State, 662

S.W.3d 415, 416 (Tex. Crim. App. 2020) (specifying use of Article 11.08 writ for

defendant confined but not yet convicted for felony offense); Ex parte Meltzer, 180

S.W.3d 252, 255 (Tex. App.—Fort Worth 2005, no pet.) (op. on reh’g) (“Under

[A]rticle 11.08, a criminal defendant who has been indicted, but not yet convicted,

may file an application for writ of habeas corpus, that is returnable to the court in

which the defendant stands indicted.”).

“If a trial court denies relief on the merits [of an Article 11.08 writ application],

the defendant may file an interlocutory appeal.” Ward, 662 S.W.3d at 416. The courts

of appeals have jurisdiction over that appeal. Id. (citing Tex. Const. art. V, § 5(b)).

B. We set forth the double-jeopardy claim that Appellant raised in her
habeas application.

Appellant’s double-jeopardy argument turns on Section 12.45 of the Penal

Code. She argues that the actions of the Tarrant County court triggered the following

provision of the statute: “A person may, with the consent of the attorney for the

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state, admit during the sentencing hearing his guilt of one or more unadjudicated

offenses and request the court to take each into account in determining sentence for

the offense or offenses of which he stands adjudged guilty.” Tex. Penal Code Ann.

§ 12.45(a). The basis for her argument is that the petition to proceed to adjudication

filed in Tarrant County alleged the Unadjudicated Offenses—for which she was also

indicted in Parker County—as grounds to proceed to adjudication, she admitted her

guilt to those offenses in Tarrant County, and thus the offenses were taken into

account by the Tarrant County court when sentencing her after her guilt was

adjudicated. Appellant argues that further prosecution of the Unadjudicated Offenses

is barred because Section 12.45 also provides that “[i]f a court lawfully takes into

account an admitted offense, prosecution is barred for that offense.” Id. § 12.45(c); see

Dooley v. State, No. 05-01-01914-CR, 2002 WL 31312502, at *1 (Tex. App.—Dallas

Oct. 16, 2002, pets. ref’d) (not designated for publication) (analyzing double-jeopardy

claim based on Section 12.45 to bar prosecution of cases indicted in another county).

C. We set forth Appellant’s argument involving Section 12.44 of the
Penal Code and why we lack an adequate record to decide the
question that Appellant presents.

Appellant argues that the plea admonishments that she signed in Tarrant

County demonstrate that the Unadjudicated Offenses alleged in the petition to

adjudicate were taken into account when she was sentenced in Tarrant County.

However, the Parker County Order concludes that the Tarrant County Judgment

indicated that the Tarrant County court did not take the Unadjudicated Offenses into

12
account when sentencing Appellant. The recitations in the Parker County Order in

this regard turn on two things. First, it relies on the absence of an indication that the

Tarrant County court actually took the Unadjudicated Offenses into account. Second,

the Parker County Order concludes that the short two-day sentence imposed on

Appellant militates against a conclusion that the Tarrant County court took the

Unadjudicated Offenses into account when it applied Section 12.44 of the Penal

Code—a code section that allows a court to exercise leniency by sentencing a

defendant charged with a state-jail felony to “the confinement permissible as

punishment for a Class A misdemeanor.” Tex. Penal Code Ann. § 12.44(a). Those

arguments aside, we do not have a record that allows us to know what the Tarrant

County court took into account.

Two recitations in the Parker County Order demonstrate why the Parker

County court concluded that the Unadjudicated Offenses were not taken into account

during the sentencing in the Tarrant County court. The Parker County Order notes

that Appellant’s plea admonishments filed in Tarrant County “include[] general

language admitting to unadjudicated offenses under Section 12.45[ of the] Texas Penal

Code[,] and the Tarrant County Judge took judicial notice of said admission.” But the

Parker County Order then concludes that “nowhere in the waivers, stipulations, court

approval[,] or judgment does the [Tarrant County court] indicate it is taking into

account[] the admitted offense(s) in assessing punishment.” [Emphasis added.] The

Parker County Order then gleans from the nature of the sentence imposed that the

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Tarrant County court did not take the Unadjudicated Offenses into account. Looking

to the Tarrant County Judgment’s statement that the court had considered “the

gravity of the offense, [Appellant’s] character, and [Appellant’s] history” and was

exercising its power under Section 12.44 to impose only a two-day sentence, the

Parker County Order concludes that this “indicates that the [Tarrant County c]ourt

did not take into consideration the commission of three additional felony offense[s]

committed while on probation when assessing the revocation sentence.”

Section 12.44(a) of the Penal Code provides that

[a] court may punish a defendant who is convicted of a state[-]jail felony
by imposing the confinement permissible as punishment for a Class A
misdemeanor if, after considering the gravity and circumstances of the
felony committed and the history, character, and rehabilitative needs of
the defendant, the court finds that such punishment would best serve
the ends of justice.

Id. Appellant argues in essence that the inference that the Parker County court drew

from the short sentence—that the Tarrant County court did not take into account the

Unadjudicated Offenses—is unsupportable. Initially, she argues that the sentence was

not “illegal” and cites a case holding that the failure of a court to make a specific

finding on an enhancement paragraph does not mean that a sentence within the

unenhanced penalty range is “illegal.” See Baines v. State, 418 S.W.3d 663, 674 (Tex.

App.—Texarkana 2010, pet. ref’d). Further, Appellant argues that the fact that the

Tarrant County Judgment recited that she was punished under Section 12.44(a) “is

14
more evidence that the court did take all relevant information, including the

[U]nadjudicated [O]ffenses[,] into consideration.”

But there is a hole in the proof of Appellant’s theory because we do not know

what was alleged in the specific motion to adjudicate that is referenced in the Tarrant

County Judgment. The original petition to proceed to adjudication was filed in

February 2024. Appellant’s plea admonishments were not filed until seven months

later in September 2024—on the same day that the Tarrant County Judgment was

rendered. And the Tarrant County Judgment recites that Appellant had “violated the

conditions of community supervision as set out in [Paragraph 1 of] the State’s

Amended Motion to Adjudicate Guilt.” Thus, there is apparently an amended

motion that was on file when Appellant signed her admonishments and that was the

basis of the Tarrant County Judgment. But we do not have the amended motion in

our record. Thus, we have no idea what it alleges. Specifically, we do not know if

Appellant was admitting guilt to the Unadjudicated Offenses because we do not know

what was alleged in the amended motion to adjudicate guilt to which Appellant’s plea

was apparently directed. Because of this failing, we do not know if the Unadjudicated

Offenses were a part of what the Tarrant County court allegedly took into

consideration under Section 12.44.2

2
Parker County’s brief also argues that Appellant did not admit guilt to the
Unadjudicated Offenses. This argument turns on the fact that the judicial-confession
section in the plea admonishments recites, “I further admit my guilt on any
unadjudicated offenses set forth in the plea agreement set out above[] and request the

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D. We set forth Appellant’s argument under Section 12.45 of the Penal
Code and why we again lack an adequate record to decide the
question that she presents.

But even if we accept Appellant’s argument that the Tarrant County court

considered the Unadjudicated Offenses indicted in Parker County, we must address

the subsection of Section 12.45 that prohibits the sentencing court (under certain

circumstances) from taking account of an unadjudicated offense without permission

from another county. Again, we lack a record adequate to review Appellant’s claims.

Specifically, Section 12.45(b) requires that “[b]efore a court may take into

account an admitted offense over which exclusive venue lies in another county or

district, the court must obtain permission from the prosecuting attorney with

jurisdiction over the offense.” Tex. Penal Code Ann. § 12.45(b); see Ex parte Butler,

No. 10-13-00362-CR, 2014 WL 2466564, at *4 (Tex. App.—Waco May 29, 2014, pet.

ref’d) (mem. op., not designated for publication) (“[S]ection 12.45(b) requires the

[c]ourt to take each into account in determining my sentence for the instant offense.”
According to Parker County, this statement does not “reflect that the signatories
admitted Appellant’s guilt of any such offenses or requested the trial court take such
offenses under consideration.” But as we have noted, Appellant did state the
following in her plea admonishments: “I understand that if I have entered a plea of
true to any allegation in a motion to revoke community supervision,” then the court
could use that in setting punishment. [Emphasis added.] Whether that is an adequate
reference to Unadjudicated Offenses is another argument that we will not reach until
we have an adequate record. The highlighted hole in the proof also renders us unable
to address Parker County’s argument that the Tarrant County Judgment only found
true an allegation in the amended motion to adjudicate relating to an offense
committed in Navarro County. Without knowing what the referenced amended
motion to adjudicate said, we have no means to test Parker County’s argument. The
same holds true of Parker County’s contention that the petition to adjudicate did not
adequately describe the Parker County offenses.

16
sentencing court to have permission from the prosecutor with jurisdiction; it does not

permit reliance upon the oral representations of defendant’s counsel or the prosecutor

from the court’s own jurisdiction.”); Swinnie v. State, No. 05-08-01076-CR, 2009 WL

1981849, at *4 (Tex. App.—Dallas July 10, 2009, pet. ref’d) (“Section 12.45 requires

that the trial court, not a prosecuting attorney, obtain permission from the prosecuting

attorney with jurisdiction over the offense. . . . That was not done here.”); Escobedo v.

State, 643 S.W.2d 243, 246 (Tex. App.—Austin 1982, no pet.) ([“Section 12.45] also

clearly requires that the sentencing court have permission from the prosecutor with jurisdiction

over the unadjudicated offense[] and does not permit reliance upon the mere oral

representations of either counsel for the accused or the prosecuting attorney of the

court’s own jurisdiction.”).

Here, as our chronology reveals, Parker County indicted the Unadjudicated

Offenses before the Tarrant County court sentenced Appellant. Nothing in the

record shows that the Tarrant County court obtained permission from the Parker

County prosecuting attorney before it allegedly took the Unadjudicated Offenses into

account when sentencing Appellant.

To sidestep the need to prove permission was obtained, Appellant first argues

that we may rely on a presumption of regularity to show that the required permission

was obtained:

The habeas court’s order states that “there is no evidence that
permission was sought or obtained from the Parker County District
Attorney’s Office to allow the offenses . . . to be considered as

17
punishment in the Tarrant County Petition to Proceed to Adjudication
in accordance with Texas Penal Code § 12.45.” Because the Tarrant
County court records must be presumed to be lawful absent evidence of
their falsity, then the habeas court should have presumed by the
documents which were signed by both a Tarrant County prosecutor and
a Tarrant County judge to have been done in a lawful manner to include
abiding by Tex. Penal Code § 12.45. The State proffered no evidence to
the contrary, and only incidentally mentioned during its arguments about
“jurisdiction” that Parker County would have had to waive the right to
prosecute. This is insufficient to be considered evidence that a
prosecutor and judge in Tarrant County did not seek permission from
the Parker County District Attorney. Parker County could have
provided myriad evidence in attempts to prove otherwise but failed to
do so. [Record reference omitted.]

In other words, Appellant argues that Parker County had a burden to prove a

negative by showing permission was not obtained. But the burden of proof was on

Appellant, not Parker County. Further, there is no recitation in the judgment that

permission was obtained. “Recitals in a judgment create a ‘presumption of regularity

and truthfulness,’ and these recitals are binding unless there is direct proof of their

falsity.” Smith v. State, 620 S.W.3d 445, 457 (Tex. App.—Dallas 2020, no pet.) (first

citing Lincoln v. State, 307 S.W.3d 921, 922 (Tex. App.—Dallas 2010, no pet.); and then

quoting Breazeale v. State, 683 S.W.2d 446, 450–51 (Tex. Crim. App. 1984)); see also

Harvey v. State, 605 S.W.3d 812, 816 (Tex. App.—Houston [1st Dist.] 2020, no pet.).

Here, there is no recitation that would trigger the presumption.

In addition, “[t]he presumption of regularity is a judicial construct that requires

a reviewing court, ‘absent evidence of impropriety,’ to indulge every presumption in

favor of the regularity of the trial court’s judgment.” Murphy v. State, 95 S.W.3d 317,

18
320 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (op. on reh’g) (quoting Light v.

State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000)). Section 12.45(b) provides that the

trial court must obtain permission. See Tex. Penal Code Ann. § 12.45(b). At the

informal hearing of this matter, counsel for Parker County (just as counsel for

Appellant) made statements about what had occurred. Counsel for Parker County

stated on the record that “Tarrant County never indicted this charge, so the State

would argue that under [Section] 12.45, the only proper channel would be [Section]

12.45(b) where we would have had to waive our right to prosecute these charges for

that plea.” See Vaccaro v. Raymond James & Assocs., 655 S.W.3d 485, 491–92 (Tex.

App.—Fort Worth 2022, no pet.) (“[A]n attorney’s unsworn statements may be

considered evidence . . . ‘when the circumstances clearly indicate that the attorney is

tendering evidence on the record based on personal knowledge and the opposing

party fails to object.’”). The statement’s implication is that Parker County did not give

its permission to take the Unadjudicated Offenses into account.

Without a recital in the judgment that the Tarrant County court obtained the

required statutory permission and in consideration of the implication of Parker

County’s counsel’s statement, we will not presume based on the otherwise silent

record that permission was obtained by the Tarrant County court. And there is no

reason to determine this matter based on a shaky presumption when we are

19
remanding this case for a fuller hearing during which Parker County may present

testimony that it did not give the permission referenced in Section 12.45(b). 3

Next, Appellant offers a statutory-interpretation argument: Section 12.45(b)

does not apply because both Tarrant and Parker Counties were venues to prosecute

the Unadjudicated Offenses. Thus, Appellant argues that Parker County ignores a

precondition to the application of Section 12.45(b)—permission must be sought only

if the other county has exclusive venue, i.e., “[b]efore a court may take into account

an admitted offense over which exclusive venue lies in another county or district,” it

must obtain permission from the prosecuting attorney. Tex. Penal Code Ann.

§ 12.45(b) (emphasis added). Appellant makes this argument in response to Parker

County’s argument in the trial court that it had jurisdiction over the Unadjudicated

Offenses because when two counties have concurrent jurisdiction, the first county to

indict the offense “retains” jurisdiction. See Tex. Code Crim. Proc. Ann. art. 4.16

(“When two or more courts have concurrent jurisdiction of any criminal offense, the

court in which an indictment or a complaint shall first be filed shall retain jurisdiction

except as provided in Article 4.12.”).4 Thus, Parker County argued that it had won

the race to indict and that Tarrant County needed its permission to take the

Unadjudicated Offenses into account because Section 12.45(b) provides that “the

3
At this point, we will not reach Parker County’s arguments about irregularities
in the Tarrant County Judgment.
4
Article 4.12 deals with misdemeanor offenses and has no application to these
cases before us. See Tex. Code Crim. Proc. Ann. art. 4.12.

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court [taking account of the unadjudicated offense] must obtain permission from the

prosecuting attorney with jurisdiction over the offense.” See Tex. Penal Code Ann.

§ 12.45(b).

Parker County’s brief augments its argument in the trial court by citing a 1938

opinion from the Court of Criminal Appeals that interpreted the predecessor statute

to Article 4.16 to mean that the county that indicted first had control of the case, no

matter whether other counties shared venue. See Ringer v. State, 121 S.W.2d 364, 366

(Tex. Crim. App. 1938). Parker County argues that Ringer’s holding means that

“[o]nce Appellant was indicted in Parker County, no district court in Tarrant County

had any authority or jurisdiction to hear a prosecution against Appellant for the

Parker County offenses.” In other words, no matter the reference to exclusive venue

in Section 12.45(c), we should interpret that section to mean that Parker County’s

permission had to be obtained before the Tarrant County court could consider the

Unadjudicated Offenses now indicted in Parker County.

We will not reach these legal arguments because the record before us is

inadequate to prove Appellant’s premise that both Tarrant County and Parker County

had venue. Appellant’s argument that both counties had venue turns on provisions

governing the offense of credit-card or debit-card abuse and unique—but as of yet

unproven—issues of geography.

Appellant was indicted in Parker County for the offense of “Credit Card or

Debit Card Abuse Elderly” by “then and there [in Parker County, Texas, on or about

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the 11th day of January, 2024], with intent to fraudulently obtain a benefit,

present[ing] or us[ing] a debit or credit card.” This offense is defined by Penal Code

Section 32.31 in the following way:

(b) A person commits an offense if:

(1) with intent to obtain a benefit fraudulently, he presents or uses
a credit card or debit card with knowledge that:

(A) the card, whether or not expired, has not been issued to
him and is not used with the effective consent of the cardholder;
or

(B) the card has expired or has been revoked or cancelled[.]

Tex. Penal Code Ann. § 32.31(b)(1). In turn, the Code of Criminal Procedure places

venue for this offense in the following places: “An offense under Section 32.31,

Penal Code, may be prosecuted in any county in which: (1) the offense was

committed; or (2) any person whose credit card or debit card was unlawfully

possessed or used resides.” Tex. Code Crim. Proc. Ann. art. 13A.255.

Here, Appellant contends that the debit card was stolen from a person residing

in Parker County and that makes Parker County a county with venue to prosecute the

offense. But according to Appellant, other facts also gave Tarrant County venue

because that is where the card was fraudulently presented: Appellant apparently relies

on the assertion in the offense report that the stolen card was used in Grapevine and

in Azle. Specifically, Appellant’s counsel argued before the trial court:

The offensive conduct that was alleged happened in Tarrant County
within 400 yards of Parker County, so it’s within Tarrant County. This

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offense also carries a statutory venue -- there’s a venue statute for this
offense that states that it can -- the proper venue is anywhere where the
offense happened, like physically happened, or where the individual
whose credit card or debit card was abused resides, which in this case is,
I believe, Springtown. Within -- well within Parker County. So either
county would be a proper venue. And so as long as a court of
competent jurisdiction within either venue took it up, there’s no problem
with that.

Our argument is that the Tarrant County court had proper venue.
It was a felony court, a district court, the 432nd, so they had jurisdiction
as well to consider any offensive conduct within its territorial jurisdiction
regardless of when an indictment [was presented.][5]

And Appellant’s habeas application also claimed that the offense report from the

Springtown Police Department alleged that the stolen card had been used in

Grapevine, Texas, which the application claimed is in Tarrant County. The offense

report does mention use of the stolen debit card at Walmart in Grapevine without

providing anything further about the location of the Walmart within Grapevine.

Appellant’s brief expands on the argument by contending, “These offenses took place

5
The 400-yard reference to the Code of Criminal Procedure stems from its
venue provision that provides that “[a]n offense committed on or within 400 yards of
the boundaries of two or more counties may be prosecuted in any one of those
counties.” Tex. Code Crim. Proc. Ann. art. 13A.053(a); see Parr v. State, 299 S.W.2d
940, 941 (Tex. Crim. App. 1957) (discussing predecessor to Article 13A.053(a) and
stating that it provides that “when an offense is committed within 400 yards of the
boundary of any two counties, the prosecution may be conducted in either county.
That statute is purely a venue statute”). Here, we are unsure why the statute would
apply as Appellant argues that the card stolen in Parker County was used in Tarrant
County, which we assume would give both counties venue. Indeed, at another point
in the record apart from the statement we quote above, Appellant’s counsel stated,
“Ordinarily, I would say Parker County -- they couldn’t consider a Parker County
indictment or a case; however, what’s interesting about this case is that the two
locations for the indictments actually lie in Tarrant County. They are within 400 yards
of the Parker County line with Tarrant County . . . .”

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in a portion of the city of Azle located within the territorial limits of Tarrant County.”

And the offense report states that the stolen card was used in Azle at a “Jack in the

Box” and a “QT.”

Thus, the offense report indicates that the card was used in Grapevine and in

Azle, but other than counsel’s statements—which were mere conclusions—there is no

proof that the locations of the stores within Grapevine and Azle where the card was

used are in Tarrant County. This question is more than a theoretical one as the

boundaries of both Grapevine and Azle are within more than one county. See

Grapevine, Tex., Code of Ordinances, art. 1, § 1.02 (2025),

https://library.municode.com/tx/grapevine/codes/code_of_ordinances?nodeId=PT

IHORUCH_ART1FOGOBO_S1.02THBO (last visited Jan. 30, 2026); Azle, Tex.,

Home Rule Charter, art. 1, § 1.02 (2016),

https://www.cityofazle.org/DocumentCenter/View/4429/Home-Rule-Charter---

Amended-05-17-2016?bidId= (last visited Jan. 30, 2026).

Appellant’s theory turns on proof that the venue for the Unadjudicated

Offenses was also in Tarrant County because that is the county where the card was

used. No evidence attached to the habeas application or offered at the hearing

located those businesses or provided information about the county in which they

were located other than the bald conclusory statements of counsel. Thus, what record

we have to review Appellant’s claims is unexplained. We are again left with a theory

for which Appellant offered inadequate proof.

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IV. Conclusion

The burden of proof was on Appellant in the habeas proceeding, but as we

have documented, she left so many gaps in the proof that we do not know if there are

facts that support the theories raised in her habeas application. On the unique facts

before us, we remand this matter to give her the opportunity to close those gaps.

Usually, we may not remand a matter without concluding that the trial court

committed error. See Tex. R. App. P. 43.3. In reviewing a habeas appeal, we operate

with broader powers as the Rules of Appellate Procedure governing such appeals

provide that “[t]he appellate court will render whatever judgment and make whatever

orders the law and the nature of the case require.” Tex. R. App. P. 31.3.

Here, fundamental factual questions that underlie Appellant’s theories of relief

are unanswered: (1) what unadjudicated offenses were alleged in the State’s amended

motion to adjudicate guilt that is referenced in the Tarrant County Judgment and thus

what offenses did the Tarrant County court take into account that arguably fall under

the sway of Section 12.45; and (2) what facts are there to support Appellant’s claim

that venue for the Unadjudicated Offenses is in Tarrant County because the stolen

debit card was presented or used in Tarrant County? We are not remanding this

matter based on a present conclusion that the Parker County court committed error in

denying Appellant’s application for a writ of habeas corpus. Instead, we do so

because the record before us currently constitutes smoke rather than fire, but

Appellant presents legal arguments that, if they are supported by facts, should be

25
answered. We therefore remand to give Appellant an opportunity to create a record

that provides a factual basis for the legal theories that she presents—a record that at

this point does not exist.

/s/ Dabney Bassel

Dabney Bassel
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: February 5, 2026

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