ACCEPTED
                                                                                      03-14-00669-CR
                                                                                            12601055
                                                                           THIRD COURT OF APPEALS
                                                                                      AUSTIN, TEXAS
                                                                                  9/8/2016 4:41:58 PM
                                                                                    JEFFREY D. KYLE
                                                                                               CLERK
                      No. 03-14-00669-CR
  __________________________________________________________

         IN THE COURT OF APPEALS FOR THE THIRD
                     DISTRICT OF TEXAS
  __________________________________________________________

                    Ex parte Justin River Carter
  __________________________________________________________
                                                                FILED IN
              On Remand from the Court of Criminal Appeals 3rd COURT OF APPEALS
                                    ***                         AUSTIN, TEXAS

Originally on Appeal from the 207 Judicial District Court of9/9/2016
                                 th
                                                              Comal12:20:00 PM
                                                                      County,
                                                              JEFFREY D. KYLE
                                   Texas                            Clerk
                          Cause No. CR2013-159
                    Honorable Jack Robison Presiding
  __________________________________________________________

      SUPPLEMENTAL BRIEF FOR THE STATE-APPELLEE
  __________________________________________________________



                                                            Jennifer Tharp
                                                  Criminal District Attorney

                                                                          By
                                                          Joshua D. Presley
                                                            SBN: 24088254
                                                 Assistant District Attorney
                                           150 N. Seguin Avenue, Suite #307
                                                             (830) 221-1300
                                                         Fax (830) 608-2008
                                                New Braunfels, Texas 78130
                                              E-mail: preslj@co.comal.tx.us
                                                      Attorney for the State


            Oral Argument Is Respectfully Requested
                                       Issue

      The Court of Criminal Appeals remanded this cause for this Court to

consider “the effect of Perry, if any, on its reasoning and analysis in this case.” Ex

parte Carter, PD-1291-15, 2016 WL 3094331, at *1 (Tex. Crim. App. May 25,

2016) (not designated for publication). This brief will address how the limited Ex

parte Perry expansion of pretrial habeas review is inapplicable to Appellant’s case,

and further discuss how “judicial economy” considerations discussed in Ex parte

Perry support rejecting review in cases such as Appellant’s.


                           Summary of the Argument

      As this Court has recognized both before and after Ex parte Perry, any

expansion of pretrial habeas review must come from the Legislature or the Court of

Criminal Appeals. Ex parte Perry’s holding was extremely limited, covering

situations involving separation of powers claims and infringing on an individual’s

power as a government official. Notably in that opinion, the Court of Criminal

Appeals itself distinguished both Ellis and DeLay on those bases. As this Court has

already recognized, the record in Appellant’s case has not yet been developed.

Contrary to Appellant’s claim that the principle of “judicial efficiency” supports

review, extending pretrial habeas appellate review to situations such as Appellant’s

would constitute a colossal waste of judicial time and resources.


                                          1
      Pretrial “As Applied” Habeas Review Is Inappropriate in
                     Appellant’s Circumstances

   a. The Third Court has recently reaffirmed – after Ex parte Perry – that it is
      inappropriate for an intermediate appellate court to judicially expand
      pretrial habeas relief.

      Although Ex parte Perry was based on the separation of powers issue and

does not impact the analysis in the instant case, notably, this Court has

acknowledged subsequent to Ex parte Perry that it is inappropriate for an

intermediate appellate court to judicially expand the availability of pretrial habeas

relief. As the Court observed in Blanchard v. State:

      [Defendant] may not bring an as-applied challenge to the statute’s
      constitutionality in a pre-trial writ of habeas corpus. See, e.g., Ex parte
      Ellis, 309 S.W.3d 71, 79 (Tex.2010) (“Pretrial habeas can be used to
      bring a facial challenge to the constitutionality of the statute that
      defines the offense but may not be used to advance an ‘as applied’
      challenge.”) (citing Ex parte Weise, 55 S.W.3d 617, 620–21 (Tex.
      Crim. App. 2001)); cf. Ex parte Perry, 483 S.W.3d 884, 898 (Tex.
      Crim. App. 2016) (pre-trial habeas is available vehicle for government
      official to advance as applied separation of powers claim that alleges
      infringement of his own power as government official).

03-16-00014-CR, 2016 WL 3144142, at *2 n.2 (Tex. App.—Austin June 2, 2016,

no pet.) (not designated for publication) (emphasis added). The Court further

observed that as an intermediate appellate court, “[w]e must, in short, follow the

existing law rather than change it, and we have adhered to that basic limiting

principle in a variety of contexts.” Anderson v. Archer, 490 S.W.3d 175, 177 (Tex.

App.—Austin 2016, pet. filed) (citing, among other cases, Ex parte Perry, 483

                                          2
S.W.3d 884, 898 (Tex. Crim. App. 2016)). Because Ex parte Perry was clearly

based on the separation of powers issue, the Court should continue to follow the

existing law rather than change it. See id.; see also Ex parte Paxton, 05-16-00004-

CR, 2016 WL 3086093, at *6 (Tex. App.—Dallas June 1, 2016, no pet.) (“Perry

reaffirms that ‘as applied’ challenges are not cognizable on pretrial habeas except

for certain carefully limited exceptions. See Perry, 483 S.W.3d at 895–98. The

court concluded that cases involving criminal charges arising from an elected

official’s performance of his duties and implicating the separation of powers

qualify as such an exception”) (emphasis added).


   b. Ex parte Perry’s holding was limited to situations involving separation of
      powers issues infringing on an elected official’s exercise of his power.
      The Court of Criminal Appeals’ holding in Ex parte Perry was extremely

limited; the Court observed the general prohibition on pretrial habeas for as-

applied challenges before carving a narrow exception based on the separation of

powers principle. See Ex parte Perry, 483 S.W.3d 884, 898 (Tex. Crim. App.

2016); Ex parte Paxton, 2016 WL 3086093 at *6; cf. Blanchard v. State, 2016 WL

3144142 at *2 n.2. Ex parte Perry observed that:

      We have also said that pretrial habeas is generally not available to test
      the sufficiency of the charging instrument or to construe the meaning
      and application of the statute defining the offense charged ….we have
      stated that pretrial habeas cannot be used to advance an as-applied
      constitutional challenge to a statute. And we have said that pretrial


                                         3
      habeas is unavailable “when the resolution of a claim may be aided by
      the development of a record at trial.”

483 S.W.3d at 895. The Court then went through an examination of interlocutory

habeas appeal exceptions in other jurisdictions related to the exercise of

government power. See id. at 896 (citing, e.g., Helstoski v. Meanor, 442 U.S. 500,

506-07 (1979) (involving claims arising out of the United States Constitution’s

Speech and Debate Clause); Nixon v. Fitzgerald, 457 U.S. 731, 742-43 (1982)

(involving “threatened breach of essential Presidential prerogatives under the

separation of powers”). Quoting Helstoski, the Court noted that “[p]articularly for a

member of Congress, however” the issuance of an indictment can be devastating.

Ex parte Perry, 483 S.W.3d at 897. After reviewing cases involving government

actors, the Court determined that:

      in light of our more aggressive enforcement of separation of powers in
      Texas, we hold that the type of separation of powers claim in this case
      may be resolved prior to trial. If a statute violates separation of
      powers by unconstitutionally infringing on a public official’s own
      power, then the mere prosecution of the public official is an undue
      infringement on his power …. pretrial resolution of this type of
      separation of powers claim is necessary to ensure that public officials
      can effectively perform their duties. We conclude pretrial habeas is an
      available vehicle for a government official to advance an as-applied
      separation of powers claim that alleges the infringement of his own
      power as a government official.

Id. at 898. Notably, although the Third Court “suggested that some of the same

concerns behind allowing pretrial resolution of Governor Perry’s claims were also

present in the Ellis and DeLay cases,” the Court of Criminal Appeals actually

                                         4
distinguished both: “neither of those cases involved a separation of powers claim,

and the charges were based upon election activities and not upon the public

official’s performance of his duties.” Id. n.78 (emphasis added).

      The Court’s holding in Ex parte Perry was extremely narrow and based

upon cases involving similar separation of powers claims for government officials.

Id. Ex parte Perry’s expansion of pretrial habeas review has no effect upon the

instant case; Appellant 1) is not a government official, 2) does not allege an as-

applied separation of powers claim, and obviously 3) does not allege any

infringement of his power as a government official. See id. at 898; see also Ex

parte Paxton, 2016 WL 3086093 at *6; cf. Blanchard, 2016 WL 3144142 at *2 n.2


   c. Policy considerations – including the “judicial efficiency” mentioned in
      Ex parte Perry – warrant rejecting interlocutory appeals in “as applied”
      situations like Appellant’s.

      An as-applied challenge should be brought “during or after a trial on the

merits, because it is only then that the trial judge and reviewing courts have the

particular facts and circumstances of the case needed to determine whether the

statute or law has been applied in an unconstitutional manner.” Ex parte Justice,

14-14-00951-CR, 2015 WL 5770811, at *2 (Tex. App.—Houston [14th Dist.] Oct.

1, 2015, no pet.) (not designated for publication). In Ex parte Perry, this concern

was largely alleviated by a bill of particulars: “[a] key unresolved fact, according

to the State, is whether the act constituting ‘misuse’ of the funds for the public

                                         5
integrity unit is the Governor’s veto…. We will hold the State to its allegation in

the bill of particulars that the veto is the sole act of misuse on which the State

relies.” 483 S.W.3d at 899-900.

      In the instant case, there was no “bill of particulars,” nor has the State put on

its case against Appellant – though he essentially wanted to hold a ‘mini trial’ prior

to his trial on the merits. Although Appellant speculates that “[t]he only further

evidence that the State may possibly wish to pursue is a smear campaign based

upon statements to a childhood school counsel and alleged statement made to an

ex-girlfriend some years before” (Supplemental Brief of Appellant at 7-8), such

speculation is outside the record and is precisely the reason claims such as

Appellant’s should not be pursued pretrial. Notably, the record before the Court

does not even include “State’s Exhibit 8” (III R.R. at 58), Appellant’s letter

admitted into evidence in which the Appellant admitted to thinking of the then-

recent Sandy Hook school shooting atrocity before he threatened to “SHOOT UP

A KINDERGARTEN AND WATCH THE BLOOD OF THE INNOCENT RAIN

DOWN … AND EAT THE BEATING HEART OF ONE OF THEM.” See Ex

parte Carter, 03-14-00669-CR, 2015 WL 5248525, at *6 n.5 (Tex. App.—Austin

Aug. 31, 2015), petition for discretionary review granted, judgment vacated, PD-

1291-15, 2016 WL 3094331 (Tex. Crim. App. May 25, 2016).




                                          6
      The Court correctly observed in its opinion that an “‘as applied’

constitutional challenge may not be resolved pretrial because it depends on

development of the specific facts of the case showing how the statute is being

applied to the defendant. Id. at *7. Appellate courts “are careful to ensure that a

pretrial writ is not misused ‘to secure a pretrial appellate review of matters that in

actual fact should not be put before appellate courts at the pretrial stage.’” Ex parte

Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005). As the court determined in

Ex parte Paxton:

   we conclude appellant’s first issue is not cognizable on appeal of a pretrial writ
   because resolving it would require that we construe the statute under which
   appellant is charged, it would require us to resolve disputed factual
   controversies, and it would require us to apply the statute to appellant’s
   particular circumstances notwithstanding the existence of an adequate remedy
   by appeal after trial. See Perry, 483 S.W.3d at 895; Weise, 55 S.W.3d at 619.

2016 WL 3086093 at *6 (emphasis added).

      Because the State has not had the opportunity to develop the evidence

regarding issues such as the context of the statement and Appellant’s intent,

pretrial resolution is inappropriate. See Ex parte Carter, 2015 WL 5248525, at *7.

Appellant once again claims his comments were not threatening; however, as this

Court has already recognized, the resolution of that claim “is dependent on the

facts of the case—which have yet to be developed through trial.” Id.

      Although Appellant stresses “judicial economy” in attempting to obtain

pretrial review, Ex parte Perry noted that “pretrial habeas enhances judicial

                                          7
economy only if the habeas applicant wins; it actually hinders judicial economy if

the habeas applicant loses.” 483 S.W.3d at 898 n.79 (emphasis added). If every

habeas applicant merely needs to assert his threat “fits within First Amendment

protection,”1 (Supplemental Brief for Appellant at 6) to obtain pretrial as-applied

habeas appellate review:

    1) the trial courts will necessarily be forced to conduct extensive “mini trials”
       before each trial;

    2) the intermediate appellate courts will see a deluge of appeals attempting to
       resolve the matter pretrial;

    3) the Court of Criminal Appeals will see a massive increase in petitions for
       discretionary review;

    4) the vast majority of such claims will likely fail;

    5) the matters will return to the trial courts for the full-blown trial – perhaps
       many months or years later; and

    6) following trial, defendants will start the lengthy appellate process all over
       again.

Appellant already has an adequate remedy by appeal. See Ex parte Paxton, 2016

WL 3086093 at *6. Because pretrial appellate review in situations such as

Appellant’s would “actually hinder[] judicial economy,” substantially lengthen the




1
  As this Court has already noted, “the challenged subsections of the terroristic threat statute do
not regulate First Amendment protected speech or conduct” Ex parte Carter, 2015 WL 5248525,
at *6 n.4.


                                                8
overall process and waste valuable judicial time and resources, Ex parte Perry

actually supports denying review in the instant case. See 483 S.W.3d at 898 n.79.




                                       Prayer

      Wherefore, premises considered, the State respectfully prays that this

Honorable Court of Appeals deny Appellant’s writ in all respects. The State also

prays for all other relief, in law and in equity, to which it may be entitled.


                                                                 JENNIFER THARP
                                                            Criminal District Attorney

                                                                                   By

                                                                 /s/ Joshua D. Presley
                                                                   Joshua D. Presley
                                                                       SBN: 24088254
                                                           Assistant District Attorney
                                                     150 N. Seguin Avenue, Ste. #307
                                                         New Braunfels, Texas 78130
                                                              Phone: (830) 221-1300
                                                                 Fax: (830) 608-2008
                                                       E-mail: preslj@co.comal.tx.us
                                                                Attorney for the State




                                           9
                         CERTIFICATE OF SERVICE

       I, Joshua D. Presley, Assistant District Attorney for the State of Texas,
Appellee, hereby certify that a true and correct copy of this State’s Supplemental
Brief has been delivered to Appellant JUSTIN CARTER’s attorney in this matter:

      Chad P. Van Brunt
      vanbruntlaw@live.com
      210 S. St. Mary’s Street
      Suite 1840 – Tower Life Bldg.
      San Antonio, TX 78205
      Counsel for Appellant on Appeal

By electronically sending it to his above-listed email address through
efile.txcourts.gov, this 8th day of September, 2016.

                                                         /s/ Joshua D. Presley
                                                         Joshua D. Presley

                          Certificate of Compliance

       I hereby certify, pursuant to Rule 9.4 of the Texas Rules of Appellate
Procedure that the instant brief is computer-generated using Microsoft Word and
said computer program has identified that there are 2,087 words within the portions
of this brief required to be counted by Rule 9.4 of the Texas Rules of Appellate
Procedure.
       The document was prepared in proportionally-spaced typeface using Times
New Roman 14 for text and Times New Roman 12 for footnotes.

                                                         /s/ Joshua D. Presley
                                                         Joshua D. Presley




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