HAMMONS, EX PARTE GLENDA v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0422-22

EX PARTE TONYA COUCH, Appellant

ON APPELLANT=S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY

NO. PD-0322-22

EX PARTE GLENDA HAMMONS, Appellant

ON APPELLANT=S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS
MCLENNAN COUNTY
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KEEL, J., delivered the opinion of the Court in which KELLER, P.J., and
HERVEY, RICHARDSON, NEWELL, WALKER, SLAUGHTER, and MCCLURE, JJ., joined.
YEARY, J., concurred.

OPINION

The Appellants in these consolidated cases filed pretrial writs of habeas corpus

challenging the facial constitutionality of portions of the statutes they were charged

under. We granted review to decide the cognizability of their pretrial claims and the

meaning of “immediate release”—release from what? We hold that facial challenges are

cognizable in a pretrial writ of habeas corpus if a grant of relief would result in

immediate release from prosecution for an alleged offense. Release from prosecution for

every alleged offense is not required.

Our holding yields different results in these cases.

On the one hand, Couch’s claim is not cognizable. Although she maintains that

her indictment charges four offenses, she did not make that claim in the courts below, so

we do not address that issue. If her indictments allege one offense committed via four

different, alternative, statutory manner and means, she challenged the constitutionality of

two of those purported manner and means in her habeas application, leaving two

unchallenged. If she were granted relief, her single-count indictment would still stand,

and trial on it could still proceed. A grant of relief on her claim would not result in her

release from prosecution for the offense alleged in her indictment.
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On the other hand, Hammons’s claim is cognizable because she challenges the

constitutionality of the statute defining two counts of her three-count indictment. If she

were granted relief, she would be released from prosecution for two alleged offenses, and

trial on those counts could not proceed though trial on the third one could.

I. The Pretrial Writ of Habeas Corpus

“The writ of habeas corpus is the remedy to be used when any person is restrained

in his liberty.” Tex. Code Crim. P. art. 11.01. “Restraint” is “the kind of control which

one person exercises over another, not to confine him within certain limits, but to subject

him to the general authority and power of the person claiming such right.” Id. art. 11.22.

The remedy may be sought after indictment on a felony charge: pretrial. Id. art. 11.08.

Pretrial habeas is an extraordinary remedy. Weise v. State, 55 S.W.3d 617, 619

(Tex. Crim. App. 2001). It is available “only in very limited circumstances.” Ex parte

Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005) (per curiam). It “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 Ingram,

533 S.W.3d 887, 891-92 (Tex. Crim. App. 2017) (quoting Weise, 55 S.W.3d at 620).

It is generally unavailable to test the sufficiency of a charging instrument. Ex

parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010). But facial constitutional

challenges to the statute defining the charged offense are allowed. Ingram, 533 S.W.3d

at 892. Such claims challenge the trial court’s power to proceed; if the statute is

unconstitutional on its face, there is no valid statute, and the indictment is void. Weise,
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55 S.W.3d at 620. In other words, certain claims that, “if meritorious, would bar

prosecution or conviction” are cognizable in pretrial habeas. Smith, 178 S.W.3d at 801.

But pretrial habeas is generally unavailable “when resolution of the question presented,

even if resolved in favor of the applicant, would not result in immediate release.” Weise,

55 S.W.3d at 619.

II. Facial Challenges and Immediate Release

We have considered pretrial facial constitutional challenges to statutes defining

offenses without conditioning their cognizability on “immediate release.” E.g., Ex parte

Heartsill, 118 Tex. Crim. 157, 159 (1931) (holding that an amendment to the desertion

statute was unconstitutional, but Heartsill was not discharged because he was still

constrained under the law in effect before the unconstitutional amendment); Ex parte

Meyer, 357 S.W.2d 754, 755-56 (Tex. Crim. App. 1962) (holding that the penal provision

in a section of the Election Code was void, but Meyer was not released because he could

still be prosecuted for perjury); Ex parte Crisp, 661 S.W.2d 944, 948 (Tex. Crim. App.

1983) (holding that an amendment to the Controlled Substances Act was unconstitutional

and invalid, but the appellants were not released because the original Controlled

Substances Act remained in effect, and their indictments alleged acts that were offenses

under that version).

More recently, Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014), and

Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013), reviewed pretrial habeas claims

raising First Amendment challenges to the statutes that defined the charged offenses, but
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the opinions did not mention “immediate release.” Thompson said a “facial challenge to

the constitutionality of a statute that defines the offense charged may be raised by means

of a pre-trial application for a writ of habeas corpus.” Thompson, 442 S.W.3d at 333

(citing Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010)). In another recent

example, Ex parte Perry mentioned immediate release but without requiring it for pretrial

habeas cognizability; the nature of the constitutional right at issue entitled Perry to raise

his claims by pretrial habeas. Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App.

2016) (citing Doster, 303 S.W.3d at 724).

Still, a facial challenge to a statute underlying an alleged offense is not a guarantee

of cognizability. E.g., Ingram, 533 S.W.3d at 892. Ingram was charged with online

solicitation of a minor and raised a facial challenge to the part of the statute that said that

certain facts were not a defense to prosecution. Id. at 890. We called these “anti-

defensive issues”—issues that benefit the State but that the indictment does not require

the State “to prove from the outset.” Id. at 892. They were “freestanding” in that they

were “not attached to a defensive issue.” Id. at 893. Ingram’s facial constitutional

challenge to the freestanding, anti-defensive issues was not cognizable because, if the

challenge were meritorious, then the provisions could be severed from the rest of the

statute, “and applying that remedy at the pretrial habeas stage would not terminate the

prosecution.” Id. at 894. Ingram’s challenges to the rest of the statute defining the

offense, however, were cognizable. Id.
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If the relief sought would not prevent prosecution, pretrial habeas is unavailable.

Headrick raised a collateral estoppel claim based on an administrative finding of

no probable cause to suspend her driver’s license in connection with a driving-while-

intoxicated charge. Headrick v. State, 988 S.W.2d 226, 227 (Tex. Crim. App. 1999).

Her claim was “not properly raised in an application for pretrial writ of habeas corpus”

for two reasons, the second of which is pertinent here: Even if she were entitled to the

relief she sought—a ruling granting her motion to suppress—“the State would not be

prevented from pursuing the pending prosecution for” DWI. Id. at 228. The relief

sought underscored the inappropriateness of entertaining her claim in pretrial habeas. Id.

III. Application

A. Couch

Couch challenged by pretrial habeas her four indictments for money laundering

alleged to have occurred around December 3, 2015. 1 As charged here, a person commits

money laundering if she knowingly “finances or invests or intends to finance or invest

1
The four indictments largely overlap, and two of them are worded identically. The two
identical indictments charge that Couch “did then and there knowingly finance or invest or
intend to finance or invest funds of $30,000 or more but less than $150,000, that the defendant
believed were intended to further the commission of criminal activity, to-wit: hindering
apprehension[.]” One of the other two indictments adds an allegation that Appellant believed
the funds were intended to further the commission of hindering apprehension “of Ethan Couch,
an individual having engaged in delinquent conduct that violated a penal law of a grade of
felony[.]” The last indictment says Couch “did then and there knowingly finance or intend to
finance funds of $30,000 or more but less than $150,000 that defendant believed were intended
to further the commission of criminal activity, to-wit: hindering apprehension of Ethan Couch,
by withdrawing funds in cash in the amount of $30,000 from JPMorgan Chase Bank to finance
the travel of defendant and Ethan Couch to Mexico[.]”
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funds that the person believes are intended to further the commission of criminal

activity.” Tex. Penal Code § 34.02(a)(4). Couch sought pretrial habeas relief on

grounds that the money-laundering statute is facially unconstitutional because it

criminalizes thought—the intent to finance or invest. The trial court denied relief. The

court of appeals upheld the trial court’s ruling, concluding that § 34.02(a)(4) is not

facially unconstitutional. Ex parte Couch, 629 S.W.3d 509, 517 (Tex. App.—Fort

Worth 2021). Couch filed a PDR challenging the court of appeals’ construction of the

statute. We vacated the judgment of the court of appeals and remanded for the court of

appeals to address the cognizability of Couch’s claim.

On remand, the court of appeals noted that a challenge to a statute on overbreadth

grounds usually can be raised in a pretrial habeas application. Ex parte Couch, 651

S.W.3d 523, 526 (Tex. App.—Fort Worth 2022). “But if the remedy for a successful

challenge would be severance of the unconstitutional provision from the rest of the

statute—resulting in charges remaining pending under the surviving part of the severed

statute—then the overbreadth challenge is not cognizable in a pretrial habeas

application.” Id. If any unconstitutional part of the statute “could be severed in a way

that Couch would still be subject to confinement, she would not be entitled to immediate

release and, therefore, would not be entitled to raise her claim in a pretrial habeas

application.” Id. at 527. It held that, even if her claim were meritorious, she would not

be immediately released, so her pretrial writ was not cognizable. Id. at 530.
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The court of appeals described financing or investing or intending to finance or

invest as different manner and means of committing money laundering and held that they

could be severed from one another. Couch, 651 S.W.3d at 527-28. “Even if we were to

agree with her on the merits, our remedy would be to sever the invalid manner and means

from subsection (a)(4), leaving her subject to prosecution under the rest of the subsection

and therefore ineligible for immediate release.” Id. at 529-30.

According to Couch, however, intending to finance, intending to invest, financing,

and investing are not manner and means but elements of money laundering and separate

offenses. If so, she argues, then granting her pretrial writ would result in her immediate

release from two of the charged offenses. And, if they are separate offenses, the jury

must be unanimous about the conduct she engaged in: financing, investing, intending to

finance, or intending to invest. She says these are the only acts listed in § 34.02(a)(4),

and the State must allege and prove at least one of them, making them elements of the

offense rather than manner and means that describe a criminal act. If the challenged

portion of the statute creates a distinct offense, and that portion is unconstitutional, Couch

questions whether the unconstitutional portion could be severed or if the entire statute is

an unconstitutional offense.

But Couch did not make this separate-offenses argument until she was before this

Court. She made it to neither the trial court nor the court of appeals. Since the court of

appeals had no chance to address this issue, we will not address it, either. See Stringer v.

State, 241 S.W.3d 52, 59 (Tex. Crim. App. 2007) (on discretionary review we do not
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address issues that have not been decided in the court of appeals). If, as the court of

appeals assumed, Couch is charged with one count of money laundering by four different

manner and means, removing the “intends” allegations would not invalidate a whole

charge against her; it would only invalidate two of four supposed manner and means.

Because she attacks only part of the charge against her, and she would not be released

from that charge even if relief were granted, her claim is not cognizable on pretrial

habeas.

Couch points out that a general verdict of guilty would not show which purported

manner and means the jury found. She is right. But if these are different offenses and

not manner and means, then her indictment must be quashed. See Tex. Code Crim. P.

art. 21.24(b) (“A count may contain as many separate paragraphs charging the same

offense as necessary, but no paragraph may charge more than one offense.”); Martinez v.

State, 225 S.W.3d 550, 554 (Tex. Crim. App. 2007) (“When the State wishes to charge

multiple offenses in a single indictment, it is required by statute to set out each separate

offense in a separate ‘count.’”) (citing Tex. Code Crim. P. art. 21.24(a)); Callins v. State,

780 S.W.2d 176, 183 (Tex. Crim. App. 1986) (explaining ways a defendant should avail

himself of the pleading limitations in article 21.24, including by filing a pretrial motion to

quash the indictment). An adverse ruling on a motion to quash would preserve her claim

for review on appeal, even if she were convicted with a general verdict.

A grant of relief on Couch’s claim would not release her from prosecution for the

offense alleged in her indictment. Her single-count indictment would still stand, and
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trial on it could still proceed. Consequently, her claim is not cognizable in pretrial

habeas.

B. Hammons

Hammons was indicted for three counts of injury to a child. Count 2 charged her

under § 22.04(a)(3) with causing bodily injury to a child. Her writ did not address that

count, but only Counts 1 and 3. Counts 1 and 3 charged her under § 22.04(a)(2) with

causing serious mental deficiency, impairment, or injury to two children. Hammons

filed a pretrial writ challenging § 22.04(a)(2) as unconstitutionally vague for its failure to

define “serious mental deficiency, impairment, or injury.” The trial court denied her

claim.

The court of appeals affirmed the trial court’s ruling. Ex parte Hammons, 628

S.W.3d 335, 338 (Tex. App.—Waco 2021). It said ordinary citizens understand the

meaning of “serious mental deficiency, impairment or injury,” and these terms are not

impermissibly vague. Id. We refused Hammons’s PDR without prejudice but granted

review on our motion, vacated the judgment of the court of appeals, and remanded for the

court of appeals to consider whether her claim was cognizable on pretrial habeas. Ex

parte Hammons, 631 S.W.3d 715, 716 (Tex. Crim. App. 2021).

On remand, the court of appeals considered whether the alleged defect in the

indictment would cast doubt on the trial court’s power to proceed and whether resolution

of the question in Hammons’s favor would result in her immediate release. Ex parte

Hammons, 646 S.W.3d 929, 930 (Tex. App.—Waco 2022) (citing Weise, 55 S.W.3d at
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619). The court of appeals disagreed with Hammons that “immediate release” in pretrial

habeas jurisprudence refers to the charge and not the entire prosecution. Hammons, 646

S.W.3d at 930.

The court concluded that even if § 22.04(a)(2) were found to be facially

unconstitutional, only Counts 1 and 3 of the indictment would need to be struck, and the

prosecution could proceed on Count 2. Hammons, 646 S.W.3d at 930. Because

Hammons would not be “immediately released” from the restraint of the charge in Count

2, the court of appeals said her claim about the facial unconstitutionality of § 22.04(a)(2)

is not cognizable in a pretrial writ of habeas corpus. Hammons, 646 S.W.3d at 930-31.

We hold otherwise because if Hammons’s facial challenges were meritorious,

Counts 1 and 3 would be void. See Weise, 55 S.W.3d at 620. Her prosecution or

conviction would be barred. See Smith, 178 S.W.3d at 801 (“the accused may raise

certain issues which, if meritorious, would bar prosecution or conviction”). The trial

court would be deprived of the power to proceed on those counts, and Hammons would

be immediately released. See Ex parte Smith, 185 S.W.3d 887, 892 (Tex. Crim. App.

2006); Weise, 55 S.W.3d at 619.

The State argues that Hammons’s claim is not cognizable because even if it were

resolved in her favor, she would still face prosecution for Count 2, so part of her

indictment would still stand, and she would not be immediately released. But she would

be released from prosecution for two counts, and she would be no less released than if the

State had charged her in separate indictments.
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The State says Hammons has other adequate remedies that foreclose cognizability

in pretrial habeas and cites Rosseau and Long as examples. State v. Rosseau, 396

S.W.3d 550, 552 (Tex. Crim. App. 2013) (considering a facial challenge litigated through

a motion to quash); Long v. Texas, 931 S.W.2d 285, 287 (Tex. Crim. App. 1996)

(addressing facial vagueness challenges on direct appeal). But the existence of such

remedies did not foreclose facial constitutional challenges in other cases. For example,

Perry’s facial constitutional challenge was cognizable even though he had filed both a

pretrial application for writ of habeas corpus and a motion to quash and dismiss the

indictment. Perry, 483 S.W.3d at 890-91. And in State v. Stephens we considered the

merits of a pretrial writ challenging the constitutionality of a Texas Election Code statute

even though Stephens had filed both a motion to quash her indictment and a pretrial

application for writ of habeas corpus. State v. Stephens, 663 S.W.3d 45, 47 (Tex. Crim.

App. 2021).

The State points out that Hammons’s three-count indictment is based on a single

incident, so the facts and presentation of evidence will be the same even if the challenged

counts are removed. Even so, Hammons would face trial for only one count, not three,

under one statute, not two, with one complainant, not two.

The State argues that facial challenges should not turn on the specific facts of the

case, and if facts must be developed, then the claim should not be cognizable on pretrial

habeas. We agree, but Hammons’s claim does not depend on factual development; her

claim is a legal one that asserts that “serious mental deficiency, impairment, or injury” is
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unconstitutionally vague. Such claims are cognizable in pretrial habeas. E.g., Ex parte

Nuncio, 662 S.W.3d 903, 923-27 (Tex. Crim. App. 2022).

IV. Conclusion

We affirm the judgment of the court of appeals in Couch’s case and remand the

case to the trial court. We reverse the judgment of the court of appeals in Hammons’s

case and remand to the court of appeals for further proceedings consistent with this

opinion. 2

Delivered: October 25, 2023

Publish

2 The court of appeals may reconsider the merits of Hammons’s claim or reissue its opinion on
the merits that we previously vacated. Hammons will then have the opportunity to file a PDR
addressing the court of appeals opinion about the merits of her claim.