SHEFFIELD, EX PARTE KEVIN DALE v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1102-20

EX PARTE KEVIN DALE SHEFFIELD, Appellant

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

WALKER, J., delivered the opinion of the Court in which KELLER, P.J.,
and HERVEY, RICHARDSON, NEWELL, KEEL, SLAUGHTER, and MCCLURE, JJ., joined.
YEARY, J., concurred.

OPINION

Many claims are not cognizable in pretrial habeas corpus. For example, a claim that a statute

is unconstitutional as-applied is generally not cognizable. However, in Ex parte Perry, we allowed

an as-applied challenge in pretrial habeas, despite the general rule. Ex parte Perry, 483 S.W.3d 884,

895 (Tex. Crim. App. 2016). Speedy trial claims are also not cognizable, but the court of appeals in

this case determined that the Perry rule applied to Appellant Kevin Dale Sheffield’s speedy trial

claim. We hold that the Perry rule does not apply to speedy trial claims because pretrial habeas

corpus litigation would not vindicate the speedy trial right and would effectively undermine that right

instead. Vindication of the speedy trial right must be had through a motion to dismiss followed by
2

appeal after trial if the motion is wrongly denied. If trial and appeal are indefinitely postponed,

mandamus, not pretrial habeas, is available. The judgment of the court of appeals is reversed.

I — Background

With bond set at $100,000, Appellant has been in custody since August 5, 2019. While in

custody, Appellant filed several pro se documents with the trial court even though he had appointed

counsel. In his first pro se letter, filed August 22, Appellant requested an examining trial and a

personal recognizance (PR) bond until the examining trial could take place. Appellant also filed a

pro se motion, file-stamped September 19, for a speedy trial and for discharge under article 28.061.1

Appellant followed the motion with another pro se letter, filed September 20, reasserting his requests

for a speedy trial, a speedy examining trial, and a PR bond until the examining trial.

On September 26, the grand jury returned a five-count indictment alleging possession, with

intent to deliver, first degree felony amounts of methamphetamine and heroin;2 possession of a first

degree felony amount of cocaine;3 evading arrest in a vehicle;4 and unlawful possession of a firearm

by a convicted felon.5

On September 30, a brief status hearing was held. The trial court appointed new counsel for

Appellant, and, in order to work his new attorney, Appellant withdrew his motion for speedy trial.

1
Article 28.061 provides that if a motion to set aside a charging instrument for failure to
provide a speedy trial is sustained, the court is required to discharge the defendant. TEX. CODE CRIM.
PROC. Ann. art. 28.061.
2
See TEX. HEALTH & SAFETY CODE Ann. §§ 481.112(a), (d); 481.102(2), (6).
3
See TEX. HEALTH & SAFETY CODE Ann. §§ 481.115(a), (d); 481.102(3)(D).
4
See TEX. PENAL CODE Ann. § 38.04(a), (b)(1)(B).
5
See TEX. PENAL CODE Ann. § 46.04(a)(1).
3

On that same date, the trial court entered its pre-trial scheduling order, setting jury trial for January

23, 2020, which was then filed with the district clerk on October 8.

In January, although represented by counsel, Appellant sent a pro se letter, filed January 7,

seeking a hearing on a motion for discovery and a motion for speedy trial. On January 9, a status

hearing was held, and Appellant testified that, after discussing his case with counsel, he no longer

wished to pursue the motion for speedy trial. On the motion for discovery, Appellant explained that

he was simply trying to get whatever information he could regarding his case. He was admonished

that as the defendant he was not allowed to have copies of certain items of discovery,6 and he was

instructed to allow counsel to do the lawyering for him.

On January 24, a hearing was held on Appellant’s motion to suppress, in which the officers

who encountered and arrested Appellant testified, and Appellant argued that he was unlawfully

detained and that his pickup truck was illegally seized and searched. The trial court denied

Appellant’s motion.

Proceedings in Appellant’s case came to a halt in the spring of 2020, as the trial court and

all trial courts in Texas shut down in response to the emerging COVID-19 pandemic. Nevertheless,

Appellant sought to keep his case moving forward, and Appellant sent a pro se letter, filed May 6,

challenging the arrest, the indictment, and the seizure and search of his pickup truck. Appellant also

repeated his request for a PR bond.

On May 12, a hearing was held, via teleconference, in which the trial court allowed Appellant

to represent himself but keep standby counsel. On Appellant’s requests for discovery, the trial court

explained that discovery would be:

6
See TEX. CODE CRIM. PROC. Ann. art. 39.14(f).
4

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

...

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

...

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

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

Appellant, now representing himself, mailed a pro se motion, filed May 18, seeking release under

article 17.151.7 On June 4, the trial court held a teleconference hearing on the motion. The State

indicated that it had been ready for trial since the day Appellant was indicted. The prosecutor added:

[T]he Governor in the State of Texas issued a disaster declaration. I believe that is
declaration of March 13th, 2020 which states certain portions are suspended,
particularly the release on personal recognizance bond, the automatic release on P.R.
bond because the State is not ready for trial.8 At this particular point because of the

7
Article 17.151 provides that a defendant who is charged with a felony and who is detained
in jail pending trial must be released on personal bond or by reducing the amount of bail required,
if the State is not ready for trial within 90 from the beginning of his detention. TEX. CODE CRIM.
PROC. Ann. art. 17.151 § 1(1).
8
While the Governor’s initial disaster declaration was issued on March 13, 2020, the
Governor’s suspension of article 17.151’s personal bond provision occurred in a later executive
order on March 29, 2020. The Governor of the State of Tex., Proclamation 41-3720, 45 Tex. Reg.
2094, 2094 (2020); The Governor of the State of Tex., Exec. Ord. No. GA-13, 45 Tex. Reg. 2368,
5

COVID-19 disaster declaration and other issues related to that, it’s my understanding
we are not in a position to be able to conduct a jury trial, so the State would oppose
Mr. Sheffield’s motion and ask that the Court would leave — leave the $100,000
bond in place.

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

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

So I am going to deny your motion.

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

...

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

A week later, Appellant sent a pro se letter, filed June 15, reasserting his request for a speedy trial,

but “It should be a Judge Trial” instead of a jury trial. He added: “The state said that they are ready

2369 (2020).
6

for trial I say that I am ready for trial. After pre-trial motions are finished we should proceed to trial.

As soon as is possible.” Appellant’s letter also purported to withdraw his plea of Not Guilty and

requested a visit to the courthouse for discovery purposes.

On June 29, Appellant, through standby counsel, filed an application for writ of habeas

corpus, again seeking release on personal bond under article 17.151 because more than ninety days

had passed and, because of COVID-19 related restrictions, the State was not and could not be ready

for trial. In the alternative, Appellant requested that “[i]f such request is denied, Movant is entitled

under the law to a speedy trial, which he re-urges his request for.” The trial court held a

teleconference hearing on the writ application on the next day, June 30. At that hearing, standby

counsel spoke for Appellant and urged a speedy trial or release under article 17.151, because

although he was ready and wanted to go to trial, a trial could not occur due to COVID-19 and the

Texas Supreme Court’s emergency orders; thus, article 17.151 required his release on personal bond.

The prosecutor responded that the State was ready to proceed to trial, but:

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

However, with regard to Article 17.151 of the Code of Criminal Procedure, I believe
Governor Abbott issued — make sure I’m quoting this correctly — It says,
“Emergency order and Executive Order declaring a disaster”. One of the relevant
portions of it deal with the suspending of Article 17.151 for the purposes of releasing
someone on a PR bond because of the nature of the disaster that is ongoing.

The trial court denied relief, noting that it would not entertain a personal bond for the types of

offenses that Appellant was charged with, and:

stating again that the Court is ready for trial. I understand the State to be ready for
trial and the Defense is ready for trial, but I am prohibited from calling a jury in for
a jury trial at this point by the Office of Court Administration and respectfully I must
7

follow their instructions.

Appellant appealed the trial court’s denial of habeas relief, arguing that the trial court erred in

denying either personal bond or bail reduction, which he claimed were required under article 17.151.

Ex parte Sheffield, 611 S.W.3d 630, 633 (Tex. App.—Amarillo 2020).9 He also argued that if he

could not receive personal bond or reduced bail, then he was entitled to a speedy trial, yet the

indefinite delay in jury trials caused by the COVID-19 related emergency orders violated his right

to a speedy trial. Id. at 632, 634. The court of appeals disagreed with Appellant on the “bail/bond

issues,” finding that although a jury trial could not be held, there was no dispute that, at the June 4

hearing, the State had represented it was ready for trial from the date of Appellant’s indictment,

which was within ninety days of his incarceration, and thus article 17.151 was inapplicable. Id. at

633–34.10

Regarding the speedy trial issue, the court of appeals explained that the constitutional right

to a speedy trial could not be indefinitely suspended by the state of disaster alone. Id. at 635. Because

the Texas Supreme Court’s emergency orders left pathways open to the possibility of a trial,11 the

9
Regarding the Governor’s disaster declaration stating that article 17.151 was suspended,
Appellant argued that the suspension of the statute was unconstitutional.
10
The propriety of the court of appeals’s decision on the article 17.151 issue is not before
this Court, and we mention it no further.
11
Namely, the court of appeals pointed to language in the Texas Supreme Court’s Twenty-
Second Emergency Order, that trial courts forgo holding trials “except as authorized by this Order.”
Sheffield, 611 S.W.3d at 635 (quoting Twenty-Second Emergency Order Regarding the COVID-19
State of Disaster, 609 S.W.3d 129, 130 (Tex. 2020)). The court of appeals found “[o]ne such
authorization provided that the Office of Court Administration ‘in coordination with the Regional
Presiding Judges and the local administrative judges, should assist trial courts in conducting a
limited number of jury proceedings prior to October 1.’” Id. (quoting Twenty-Second Emergency
Order, 609 S.W.3d at 130). And the order included various guidelines by which trials should be
conducted, including a requirement that the trial judge request permission to conduct trials. Id.
8

trial court thus erred in indefinitely foregoing proceedings instead of seeking to accommodate the

right within the confines of the order. Id. at 635. Accordingly, the court of appeals reversed the trial

court’s denial of Appellant’s pretrial habeas application and remanded to the trial court. Id. at 636.

The State Prosecuting Attorney’s Office (SPA) filed a motion for rehearing, citing authority

that speedy trial claims are not permitted in pretrial habeas corpus because allowing such claims

would improperly make them subject to interlocutory appeal. Id. at 636 (order on mot. for reh’g).

The court of appeals distinguished the SPA’s cited authorities because the applicants in those cases

were seeking dismissal, whereas Appellant was seeking a speedy trial. Id. The court of appeals

explained that it believed Appellant’s speedy trial issue was cognizable in pretrial habeas corpus

under the rule of Ex parte Perry. Id. at 637 (discussing Perry, 483 S.W.3d 884). Accordingly, the

court of appeals denied the State’s motion for rehearing. Id.

The SPA filed its petition for discretionary review on November 20. While the petition was

pending at this Court, the heroin-related count and the cocaine-related count were waived by the

State, and Appellant’s case proceeded to trial. Representing himself, Appellant was convicted by the

jury and received sentences of sixty years for the methamphetamine-related count, five years on the

evading arrest count, and ten years for the firearm count.12

Meanwhile, on the SPA’s petition for discretionary review, we granted two of the grounds

(citing Twenty-Second Emergency Order, 609 S.W.3d at 130).
12
We note that Appellant has appealed the conviction, raising issues related to the trial
court’s denial of his motion to suppress. The appeal is currently pending at the Tenth Court of
Appeals in Waco, Cause Number 10-21-00109-CR.
9

raised:13

2. Are speedy trial claims cognizable on pretrial habeas if the applicant asks for a
speedy trial rather than a dismissal?

3. Did the court of appeals improperly reverse the trial court’s ruling for what the trial
court said instead of what she did?

Additionally, we granted the following ground on our own motion:

Did the trial court have jurisdiction to hold a trial while the State’s petition for
discretionary review was pending in this Court?

II — Cognizability in Pretrial Habeas and Ex parte Perry

We explained our general approach in Ex parte Weise:

In determining whether an issue is cognizable on habeas, we have considered a
variety of factors. We have looked at whether the alleged defect would bring into
question the trial court’s power to proceed. Along these same lines, we have found
that a pretrial writ application is not appropriate when resolution of the question
presented, even if resolved in favor of the applicant, would not result in immediate
release. We have held that an 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. . . . Pretrial habeas should be 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 Weise, 55 S.W.3d 617, 619–20 (Tex. Crim. App. 2001) (emphasis added). Thus, pretrial

habeas corpus is available “only in very limited circumstances.” Ex parte Smith, 178 S.W.3d 797,

801 (Tex. Crim. App. 2005). For example, we allow claims that prosecution would violate the right

against double jeopardy. Ex parte Robinson, 641 S.W.2d 552, 555 (Tex. Crim. App. [Panel Op.]

1982) (holding that double jeopardy claims “must be reviewable” prior to trial). Claims that statutes

13
We refused review of the SPA’s first issue, which asked:

(1) Did the court of appeals err to open a new a venue for pretrial habeas when that
claim was not raised before the habeas judge?
10

are facially unconstitutional are also cognizable. See, e.g., Ex parte Thompson, 442 S.W.3d 325, 330

(Tex. Crim. App. 2014) (reviewing facial constitutionality of the “improper photography or visual

recording” statute in pretrial habeas).

Other issues, like as-applied challenges, are generally not cognizable. Ex parte Ellis, 309

S.W.3d 71, 79 (Tex. Crim. App. 2010) (“Pretrial habeas . . . may not be used to advance an ‘as-

applied’ challenge.”); see e.g., Weise, 55 S.W.3d at 620–21 (finding applicant’s claim not cognizable

in pretrial habeas because the claim was actually an as-applied, not facial, constitutionality

challenge). But the categorical exclusion of as-applied claims is not absolute.

In Perry, the defendant (former Governor Rick Perry) was charged with abuse of official

capacity by misusing funds appropriated by the Legislature to fund the Public Integrity Unit of the

Travis County District Attorney’s Office (specifically by vetoing the funds), with the intent to harm

the Travis County District Attorney and the Public Integrity Unit. Perry, 483 S.W.3d at 889–91.14

The defendant filed a pretrial application for habeas corpus, claiming that the abuse of official

capacity prosecution was unconstitutional as applied to his veto because the prosecution violated the

Separation of Powers Provision of the Texas Constitution. Id. at 890.

To address the question of whether Separation of Powers was violated, we first had to answer

whether the as-applied challenge could be raised in a pretrial habeas application followed by

interlocutory appeal. Id. at 888. The plurality opinion by Presiding Judge Keller and joined by two

judges pointed to Weise and acknowledged that:

Although we have said that as-applied challenges are not cognizable before trial, we

14
In a separate count, he was charged with coercion of a public servant, by threatening to
veto the funding for the Public Integrity Unit unless the Travis County District Attorney resigned
from office. Perry, 483 S.W.3d at 889–90.
11

allow certain types of claims to be raised by pretrial habeas because the rights
underlying those claims would be effectively undermined if not vindicated before
trial. Within this category of rights that would be effectively undermined if not
vindicated pretrial, we have, so far, recognized the constitutional protections
involving double jeopardy and bail. . . . [C]ertain types of as-applied claims may be
raised by pretrial habeas because the particular constitutional right at issue in the as-
applied challenge is the type that would be effectively undermined if not vindicated
prior to trial.

Id. at 895–96 (plurality op.) (citing Weise, 55 S.W.3d at 619). After reviewing how the “effectively

undermined if not vindicated prior to trial rationale” applied to double jeopardy, the Speech and

Debate Clause, and even separation of powers cases at the federal circuit court level, the plurality

concluded that the defendant’s as-applied separation of powers claim was cognizable in pretrial

habeas. Id. at 896–898 (discussing Abney v. United States, 431 U.S. 651 (1977), Helstoski v.

Meanor, 442 U.S. 500 (1979), and United States v. Myers, 635 F.2d 932 (2d Cir. 1980)) (internal

quotation marks omitted).

In a concurring opinion joined by two other judges, Judge Newell agreed that the defendant’s

as-applied separation of powers claim was cognizable in pretrial habeas, but he would have found

cognizability under the reasoning of Ex parte Boetscher, which had allowed an equal protection

claim in pretrial habeas because the constitutional violation was apparent from the face of the

pleadings. Id. at 923 & n.1 (Newell, J., concurring) (discussing Ex parte Boetscher, 812 S.W.2d 600,

603 (Tex. Crim. App. 1991)). While Judge Newell believed that “simply addressing the

constitutional claim because the violation is apparent from the pleadings resolves the matter much

more cleanly,” he remarked that:

Presiding Judge Keller correctly observes that this claim would also be “cognizable”
on a pretrial writ of habeas corpus to vindicate a constitutional right that would be
effectively undermined if a defendant could only receive relief from that
constitutional violation after trial.
12

Id. at 924 (emphasis added).

Thus, between Presiding Judge Keller’s three-judge, plurality opinion, and the three-judge,

concurring opinion by Judge Newell, a majority of the Court reaffirmed that certain types of claims

may be raised by pretrial habeas because the rights underlying those claims would be effectively

undermined if not vindicated before trial and agreed that this Weise factor lent cognizability to the

as-applied challenge. Id. at 895 (plurality op.); id. at 924 (Newell, J., concurring). For the purposes

of our discussion today, we will refer to this Weise factor (or perhaps principle),15 as “the Perry rule.”

III — The Perry Rule Does Not Apply to Speedy Trial

We now turn to the SPA’s second ground for review, which asks whether speedy trial claims

are cognizable in pretrial habeas corpus when an applicant wants a trial, instead of a dismissal.

“[W]e have held that an applicant may not use a pretrial writ to assert his or her constitutional rights

to a speedy trial[.]” Weise, 55 S.W.3d at 620; see Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim.

App. 2010); Ex parte Delbert, 582 S.W.2d 145, 146 (Tex. Crim. App. [Panel Op.] 1979); Ex parte

Jones, 449 S.W.2d 59, 60 (Tex. Crim. App. 1970).

However, the court of appeals, in its opinion on the order denying rehearing, distinguished

that prior case law because unlike Appellant, the defendants in those cases were seeking dismissal

and not a speedy trial. Sheffield, 611 S.W.3d at 636 (order on mot. for reh’g). The court of appeals

explained its belief that Appellant’s claim was cognizable under the Perry rule. Id. at 637. As the

court of appeals saw it:

Unless addressed before trial, the denial of his entitlement to a speedy disposition

15
See id. at 922 (Alcala, J., concurring) (“I would further clarify that these are not ‘factors’
at all. Rather, there are certain principles that must underlie any decision to grant pretrial habeas
relief[.]”).
13

cannot be vindicated when the trial judge indefinitely forgoes trial. His claim entails
a substantive right to a timely disposition of the charges against him, which right is
being effectively undermined through administrative fiat. These circumstances satisfy
the very criteria used in Perry to justify deviation from historical limitations imposed
on the availability of habeas relief.

Id.

The SPA argues that pretrial habeas corpus litigation, including interlocutory appellate

review, thwarts the purpose of the speedy trial right. Appellant, for his part, copies the court of

appeals’s discussion quoted above.

Even if we assume that the trial judge was indefinitely forgoing trial due to administrative

fiat, we disagree with the court of appeals that such circumstances satisfy the Perry rule because the

speedy trial right would not be effectively undermined if not vindicated before trial. Instead, pretrial

habeas litigation with interlocutory appeal would have the opposite effect. In normal circumstances,

such litigation would inject appellate delay and undermine the speedy trial right, and where trial is

indefinitely postponed, pretrial habeas litigation would not vindicate the speedy trial right in any

event.

We take guidance from United States v. MacDonald, in which the United States Supreme

Court considered whether a defendant in federal district court could appeal, before trial, the denial

of a motion to dismiss for violation of the right to speedy trial. United States v. MacDonald, 435

U.S. 850, 850 (1978). Concluding that speedy trial claims are not appealable before trial, the

Supreme Court explained its view that the speedy trial right would not be vindicated by pretrial

interlocutory appeal:

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
14

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 against the constitutional guarantee
of a speedy trial. If the factors outlined in Barker v. Wingo . . . combine to deprive
an accused 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.

Id. at 860–61. We agree, and affording speedy trial claims cognizability in pretrial habeas would not

vindicate, under Perry, the speedy trial right.

Furthermore, the Perry rule was concerned with whether regular appeal—in other words,

postponing relief until after trial—would effectively undermine the right, such that vindication would

have to come before trial. Perry, 483 S.W.3d at 895–96. For example, with the right against double

jeopardy, if appellate review were postponed until after the second trial, the defendant would

necessarily have to suffer through that trial, and his right against being tried twice would be

irrevocably violated. Id. at 896 (discussing Abney, 431 U.S. at 660–62); see also MacDonald, 435

U.S. at 860 (“The double jeopardy claim in Abney . . . involved an asserted right the legal and

practical value of which would be destroyed if it were not vindicated before trial.”). Even if he were

to prevail on appeal, his exposure to double jeopardy could not be undone—the right would be

undermined.

But with the right to a speedy trial, postponing appellate review until after trial would

actually serve the speedy trial interest because it brings the defendant to trial sooner than pretrial

habeas and interlocutory appeal would. This is especially so if the State and the trial court become

ready for trial while the case is on appeal.

Returning to MacDonald, the Supreme Court’s opinion was clear that pretrial interlocutory
15

appeal would have the unintended consequence of undermining the right to a speedy trial. The

Supreme Court noted that “[f]ulfillment of [the Sixth Amendment guarantee to a speedy trial] would

be impossible if every pretrial order were appealable.” MacDonald, 435 U.S. at 861. Instead,

“[a]llowing an exception to the rule against pretrial appeals in criminal cases for speedy trial claims

would threaten precisely the values manifested in the Speedy Trial Clause.” Id. at 862. “And some

assertions of delay-caused prejudice would become self-fulfilling prophecies during the period

necessary for appeal.” Id. The Supreme Court concluded that pretrial delay would be exacerbated

by allowing a defendant to obtain interlocutory appeal. Id. at 863.

We agree. Allowing a defendant to litigate a speedy trial claim in pretrial habeas corpus

would inject pretrial appellate delay, and “pretrial appellate delay can become especially long if the

case is bounced back and forth between this Court and a court of appeals.” Doster, 303 S.W.3d at

726. “[B]eing stuck in ‘appellate orbit’”, id. at 727, would not honor the speedy trial right.

Cognizability in pretrial habeas effectively undermines the right to a speedy trial, and, instead of

vindicating the right, pretrial habeas would frustrate the right.

What would vindicate the speedy trial right? Barker v. Wingo was unequivocal: “the only

possible remedy” for a violation of the speedy trial right is the “unsatisfactorily severe remedy of

dismissal.” Barker v. Wingo, 407 U.S. 514, 522 (1972). If a defendant believes his right to a speedy

trial has been violated, he should file a motion to dismiss for that very reason,16 followed by appeal

after trial if that motion is wrongly denied.

However, if the trial court were to indefinitely forego trial, there would never be a judgment

16
As recounted in Part I of our opinion, the record shows that Appellant filed several pro
se documents and motions asserting his right to a speedy trial and seeking dismissal for the failure
to provide one.
16

of conviction, and the trial court’s ruling on the motion to dismiss would never see appellate review.

A defendant in such a case would have no remedy by appeal after trial. Would pretrial habeas be an

appropriate remedy to vindicate the speedy trial right then? See Ex parte Groves, 571 S.W.2d 888,

890 (Tex. Crim. App. 1978) (habeas is an extraordinary writ and is not available if there is an

adequate remedy at law); Ex parte Beck, 541 S.W.3d 846, 852 (Tex. Crim. App. 2017).

No, because mandamus—not habeas—is available to compel a trial. In Chapman v. Evans,

the defendant sought a writ of mandamus to compel the trial court to either set the case for trial or

dismiss the indictment for violation of his right to a speedy trial. Chapman v. Evans, 744 S.W.2d

133, 135 (Tex. Crim. App. 1988). Despite his assertion of the right to a speedy trial, nothing had

been done to honor that right. Id. at 137–38. After weighing the Barker v. Wingo factors, we

conditionally granted mandamus relief, assuming that within thirty days of our opinion the trial court

would set the case for trial. Id. at 138.

Similarly, the United States Supreme Court has indicated the appropriateness of mandamus

in the face of interminable delay. In Smith v. Hooey, the defendant, who was incarcerated in federal

prison in Kansas, had Texas state charges pending against him for over six years, yet the State took

no steps to bring him to trial despite his repeated requests for a speedy trial. Smith v. Hooey, 393 U.S.

374, 375 (1969). When he finally filed a motion to dismiss for want of prosecution, no action was

taken on the motion either. Id. He filed a petition for writ of mandamus, which was denied by the

Texas Supreme Court, believing that because he was confined in a federal prison, the State’s duty

to afford him a speedy trial was absolved. Id. at 376–77. The United States Supreme Court disagreed

and set aside the Texas Supreme Court’s denial of mandamus, holding that upon his demand, the

state had a constitutional duty to make a diligent, good-faith effort to bring him to court for trial. Id.
17

at 383.

To further illustrate by contrast, in Smith v. Gohmert, we held that, because trial and appeal

were available, “Smith ha[d] an adequate remedy at law; therefore he [was] not eligible for

mandamus relief.” Smith v. Gohmert, 962 S.W.2d 590, 593 (Tex. Crim. App. 1998). We explained

that:

In Pope v. Ferguson . . . the Texas Supreme Court held that a defendant seeking a
dismissal of an indictment on speedy trial grounds was not eligible for mandamus
relief, because such a defendant had an adequate remedy at law, to wit: the defendant
could file a motion to set aside the indictment in the trial court . . . and if the trial
court erroneously denied the motion, the defendant could appeal from any conviction
that resulted from the continued prosecution.

Id. at 592 (discussing Pope v. Ferguson, 445 S.W.2d 950, 955–56 (Tex. 1969)). Noting that we had

previously “‘concurred . . . with the rationale of Pope’” and that we had reiterated that position in

later cases,17 we committed to adhering to that position. Id. at 592–93 (quoting Thomas v. Stevenson,

561 S.W.2d 845, 847 n.1 (Tex. Crim. App. 1978)). And, “[i]n any event, we continue[d] to believe

that a defendant seeking to compel a dismissal of an indictment on speedy trial grounds has an

adequate remedy at law[.]” Id. at 593.

Accordingly, if the trial court were indefinitely foregoing trial, and therefore indefinitely

foreclosing the possibility of appellate review, Appellant could seek a writ of mandamus from the

court of appeals to compel the trial court to make a diligent, good-faith effort to try him. If Appellant

were convicted, he could thereafter raise, as error on appeal, the denial of his right to a speedy trial,

17
Ordunez v. Bean, 579 S.W.2d 911, 913–14 (Tex. Crim. App. 1979) (“In the instant case,
it is clear that petitioner has failed to meet either of the tests [for mandamus relief]. Appeal is
available to the petitioner in the event of his conviction to test any asserted denial of his right to a
speedy trial[.]”); Hazen v. Pickett, 581 S.W.2d 694, 695 (Tex. Crim. App. 1979) (“We now hold that
since the petitioner has an adequate remedy by appeal if he is convicted he has not demonstrated that
he is entitled to relief by writ of mandamus[.]”).
18

preserved by a motion to dismiss.

The suitability of mandamus to getting a trial is in stark contrast to habeas, because pretrial

habeas corpus does not seek to compel an action such as setting a case for trial. Habeas corpus

disputes the lawfulness of confinement. Ex parte McGowen, 645 S.W.2d 286, 288 (Tex. Crim. App.

1983); TEX. CODE CRIM. PROC. Ann. art. 11.01. And pretrial habeas results in release; that writ “‘is

not appropriate when resolution of the question presented, even if resolved in favor of the applicant,

would not result in immediate release.’” Ex parte Hammons, 631 S.W.3d 715, 716 (Tex. Crim. App.

2021) (quoting Weise, 55 S.W.3d at 619)); see also Ex parte Ruby, 403 S.W.2d 129, 130 (Tex. Crim.

App. 1966).

The existence of remedies that are adequate to vindicate the speedy trial right—motion to

dismiss and appeal in the normal course and mandamus when trial is indefinitely

postponed—reinforces our conclusion that pretrial habeas does not vindicate the speedy trial right,

and denying cognizability would not undermine the right. Therefore, the Perry rule does not apply

to speedy trial claims. On the SPA’s second ground for review, we hold that speedy trial claims are

not cognizable in pretrial habeas corpus, even if the defendant wants a trial, yet trial is indefinitely

postponed. The court of appeals erred in reaching the merits of Appellant’s speedy trial issue, the

SPA’s second ground for review is sustained, and we reverse the judgment of the court of appeals.

Because we already determine that the court of appeals’s judgment should be reversed, we

need not consider the SPA’s third ground for review, which essentially argues that the court of

appeals erred on the merits of the speedy trial issue. We dismiss the SPA’s third ground for review.

V — Trial While Petition Was Pending

We now address the ground for review on this Court’s own motion, asking whether the trial
19

court had jurisdiction to conduct Appellant’s trial after the court of appeals delivered its

opinion—but not the mandate—while the SPA’s petition for discretionary review was pending at

this Court. Both the SPA and Appellant agree that the trial court lacked jurisdiction due to the

operation of Texas Rule of Appellate Procedure 25.2(g), which provides:

(g) Effect of Appeal. Once the record has been filed in the appellate court, all further
proceedings in the trial court—except as provided otherwise by law or by these
rules—will be suspended until the trial court receives the appellate-court mandate.

Tex. R. App. P. 25.2(g).

If Appellant’s appeal, and therefore the SPA’s petition for discretionary review, stemmed

from a judgment of the trial court in the underlying criminal case, we would agree. However, the

appeal and the PDR do not arise from the underlying criminal case. The matter before us arises from

a pretrial application for writ of habeas corpus.

In Greenwell, we explained that “[a] habeas corpus proceeding has always been regarded as

separate from the criminal prosecution[.]” Greenwell v. Court of Appeals for the Thirteenth Judicial

Dist., 159 S.W.3d 645, 649 (Tex. Crim. App. 2005). Accordingly, we endorsed as “amply supported

by our caselaw” the view that:

A habeas corpus action is, in theory, a different litigation than the criminal
prosecution. . . . When habeas corpus is used as a vehicle for raising matters pretrial
in a pending criminal prosecution, the difference between the pending prosecution
and the habeas corpus proceeding is both more subtle and more significant. An order
denying relief on the merits is a final judgment in the habeas corpus proceeding.
Therefore, it is immediately appealable by the unsuccessful petitioner.

Id. 649–50 (quoting Dix and Dawson, Texas Practice: Criminal Practice And Procedure, 2nd ed.,

Vol. 43B, § 47.51, 219–220 (2001) (ellipsis inserted; emphasis in original)). We further noted that

“there are no statutes that specifically grant a right to immediately appeal the denial of relief in a
20

pre-conviction habeas corpus proceeding.” Id. at 650. Instead, “[t]he right of appeal occurs because

the habeas proceeding is in fact considered a separate ‘criminal action[.]’” Id. Because what

authorizes the habeas appeal is the fact that the habeas proceeding is a separate action from trial, the

fact that they are separate actions also dictates the pendency of a habeas appeal. Id. (“the denial of

relief marks the end of the trial stage of that criminal action and the commencement of the timetable

for appeal.”). As a consequence of being the appeal of a separate action, in the absence of a stay,18

the habeas appeal has no effect on the underlying criminal prosecution.

We further note that Appellant’s argument relying on Rule 25.2(g) is similar to the argument

raised in Trimboli v. MacLean, 735 S.W.2d 953 (Tex. App.—Fort Worth 1987, no pet.). There, the

relator Trimboli had filed a pretrial application for writ of habeas corpus which was denied by the

trial court. Id. at 954. Trimboli appealed the trial court’s judgment, but at the same time he also

sought a writ of prohibition from the court of appeals to prevent the trial from going forward during

the pendency of the habeas appeal. Id. at 953–54. He asserted that he was entitled to an absolute stay

of proceedings, and he urged that under the rules of appellate procedure, the filing of the record in

the appeal of a criminal case suspends and arrests all further trial court proceedings in his case. Id.

18
Our cases have referred to the use of stays in pretrial habeas proceedings, including to
times when a stay was granted and when it was denied. See, e.g., Ward v. State, 662 S.W.3d 415, 416
(Tex. Crim. App. 2020) (trial court denied both the applicant’s writ and his request for a stay); Ex
parte Doster, 303 S.W.3d 720, 722 (Tex. Crim. App. 2010) (referring to the applicant’s request for
a stay), vacating Ex parte Doster, 282 S.W.3d 110, 112 (Tex. App.—Waco 2009) (trial court denied
the habeas application but agreed to a stay pending appeal); Fant v. State, 931 S.W.2d 299, 301(Tex.
Crim. App. 1996) (trial court denied the habeas application but agreed to a stay pending appeal).

References to stays in pretrial proceedings, and to a stay being granted, denied, or lifted, have also
appeared in decisions of the courts of appeals. See, e.g., Ex parte Victorick, 453 S.W.3d 5, 8 & n.1
(Tex. App.—Beaumont 2014, pet. ref’d) (trial court and court of appeals denied stay pending
appeal); Ex parte Hartfield, 442 S.W.3d 805, 808 (Tex. App.—Corpus Christi–Edinburg 2014, no
pet.) (court of appeals stayed the trial proceedings but later lifted the stay).
21

at 954 (citing former Tex. R. App. P. 40(b)(2)). The court of appeals disagreed because Trimboli

appealed only the denial of his application for writ of habeas corpus; it was not an appeal of the cases

in which he stood indicted. Id. The effect of the rule, automatically staying proceedings when the

record is filed, was to stay only the proceedings in connection with the application for writ of habeas

corpus. Id.

We reaffirm that a habeas proceeding is a separate proceeding from a criminal prosecution.

A pending appeal in a habeas proceeding does not by itself bar a trial court from going forward on

the underlying criminal prosecution; the appeal only bars the trial court from acting on the habeas

proceeding. If a defendant wishes to prevent the trial court from proceeding to trial during pending

pretrial habeas litigation, the defendant should seek a stay. Whether a criminal prosecution ought to

be put on hold pending the outcome of a pretrial habeas action is a question that can be resolved in

a court’s decision whether to grant a stay.

Appellant did not obtain a stay of the criminal prosecution. The trial court had jurisdiction

to proceed to trial. Accordingly, the answer to the Court’s own ground for review is: “Yes.”

VI — Conclusion

We reaffirm that speedy trial claims are not cognizable in pretrial habeas corpus, and the rule

of Ex parte Perry does not provide an exception if trial is indefinitely postponed. The remedy for a

violation of a defendant’s constitutional right to a speedy trial is dismissal and, if dismissal is

wrongly denied, appellate review after trial and conviction. If trial and appellate review are

indefinitely postponed, vindication of the speedy trial right should be had via petition for writ of

mandamus, not by pretrial writ of habeas corpus. The judgment of the court of appeals is reversed.

Regarding Appellant’s trial while the SPA’s petition for discretionary review was pending
22

before this Court, the SPA’s petition is part of independent litigation from the underlying criminal

prosecution. Because Appellant did not obtain a stay of the underlying criminal prosecution, the trial

court was within its authority to proceed to trial.

Delivered: June 21, 2023
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