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

          No. 02-19-00426-CR
     ___________________________

        Ex parte Quincy Blakely


  On Appeal from the 16th District Court
          Denton County, Texas
      Trial Court No. F17-2106-211


    Before Kerr, Birdwell, and Bassel, JJ.
   Memorandum Opinion by Justice Kerr
                           MEMORANDUM OPINION

      Pro se appellant Quincy Blakely is trying to appeal the trial court’s November

14, 2019 order denying what he called a “Pre-Trial Writ of Habeas Corpus.” An order

denying a pretrial writ of habeas corpus is appealable—even if the claims raised within

the writ are not cognizable for habeas relief. See Ex parte McCullough, 966 S.W.2d 529,

531 (Tex. Crim. App. 1998).

      But the trial court’s appellate-right certificate provides that Blakely cannot

appeal the order. We agree. Blakely is not appealing an order denying a pretrial writ of

habeas corpus; he is trying to appeal an interlocutory order denying a pretrial motion.

We dismiss for want of jurisdiction.

                                       Background

      Blakely filed an original and an amended “Pre-Trial Writ of Habeas Corpus.”

Our record review shows that Blakely argued and the trial court denied the amended

“Pre-Trial Writ.” The document we describe below is thus Blakely’s amended “Pre-

Trial Writ.”

      In his amended “Writ,” Blakely complained about

   • the State’s inability to prove its case under the applicable law (under three
     incarnations—a section analyzing the penal code statute, a section entitled
     “Non-Applicable Statute,” and a third captioned “Non-Applicability”);

   • the officer’s arresting him without probable cause;

   • the invalidity of the arrest warrant’s affidavit;



                                            2
   • lack of jurisdiction because the indictment failed to specify where in the county
     the offense had allegedly occurred;

   • an allegedly defective indictment—again because the indictment did not
     identify where in the county the offense allegedly occurred;

   • double jeopardy—not because the State had already tried and convicted him of
     the charged offense but because the indictment—he asserted—was so
     ambiguous that the State could prospectively force him to trial and potentially
     convict him using the same ambiguous language;1

   • witness tampering; and

   • false imprisonment because the police arrested him without a warrant (but not
     because his current liberty was restrained in any capacity).2

         Despite the nomenclature, the record shows that the trial court did not

consider Blakely’s “Pre-Trial Writ” to be a pretrial writ; rather, the trial court referred

repeatedly to it as a pretrial motion. In the same vein, the trial court repeatedly called

the hearing a “pretrial hearing” and not a hearing on a pretrial writ. Not once during

the entire hearing are the words “habeas corpus” mentioned. And after ruling against

Blakely, the trial court specifically told him that he could not appeal an interlocutory

order.




       At the hearing, Blakely explained, “The indictment is fundamentally defective
         1

because it doesn’t state the place. That puts me at risk of double jeopardy. The State
could, at a later time, charge me for the same offense in a different location. So it has
to specify the place.”

       The police arrested Blakely on an outstanding arrest warrant for criminal
         2

trespass.


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       On the same date as the hearing and ruling, November 14, 2019, the trial court

signed the “Trial Court’s Certification of Defendant’s Right of Appeal” but did not

check any of the available options on the form. Designed primarily for postconviction

appeals, the form has no option addressing interlocutory orders.

       Despite the trial court’s admonition that Blakely was not entitled to an

interlocutory appeal, on the very next day, Blakely filed a notice of appeal.

       And on November 18, 2019, Blakely filed in our court a file-marked copy of his

notice of appeal along with a copy of the trial court’s November 14, 2019 order, but

he did not file the trial court’s appellate-right certification. So, on November 19, 2019,

we requested one. See Tex. R. App. P. 25.2(a)(2) (“The trial court shall enter a

certification of the defendant’s right of appeal each time it enters a judgment of guilt

or other appealable order . . . .”).

       Back in the trial court, on November 25, 2019, Blakely filed a “Notice to the

Court” requesting the certification. He argued that he had the right to appeal under

McCullough, 966 S.W.2d at 531, and Waldie v. State, 923 S.W.2d 152, 157 (Tex. App.—

Beaumont 1996, no pet.). In McCullough, the court wrote,

       Certain claims may not be cognizable on habeas corpus, i.e., they may
       not be proper grounds for habeas corpus relief. However, if the district
       court denies relief, regardless of the underlying claims for the relief
       sought, the applicant may appeal. In the present case, the district court
       denied the relief sought. Appellant properly appealed. The Court of
       Appeals had jurisdiction. Whether Appellant’s grounds for relief are
       cognizable is another matter.

966 S.W.2d at 531 (citations omitted). And in Waldie, the court wrote,

                                            4
      Double jeopardy may be raised either by a pretrial special plea pursuant
      to Tex. Code Crim. Proc. Ann. art. 27.05 (Vernon 1989) or by a pretrial
      writ of habeas corpus. The special plea protects only against
      reconviction, not retrial. A defendant who seeks protection from retrial
      must file a writ of habeas corpus. If the court grants the writ and
      thereafter denies the relief requested, the defendant may take an
      immediate appeal.

923 S.W.2d at 157. As noted earlier, Blakely raised prospective double-jeopardy

concerns in his “Pre-Trial Writ.”

      On December 2, 2019, the trial court signed a certificate indicating that Blakely

did not have the right to appeal. When doing so, the trial court modified the form so

that it now provided, “I, judge of the trial court, certify this criminal case: X is not a

plea-bargain case, and the defendant has NO right of appeal.”

      After reviewing the certification, we sent the following clerk’s letter,

      The court has jurisdictional concerns. Although appellant is attempting
      to appeal the order denying what he styled a “Pre-Trial Writ of Habeas
      Corpus,” the court is concerned that his “writ” is a pleading that may be
      a writ in caption only. Substantively, that is, appellant appears to have
      filed an omnibus pretrial motion. Because the title of a document is not
      controlling, See State v. Evans, 843 S.W.2d 576, 577–78 (Tex. Crim. App.
      1992), the court is concerned that appellant is attempting to appeal an
      interlocutory order disposing of nonappealable matters. See Ex parte
      Walsh, 530 S.W.3d 774, 778 (Tex. App.—Fort Worth 2017, no pet.);
      Ahmad v. State, 158 S.W.3d 525, 526 (Tex. App.—Fort Worth 2004, pet.
      ref’d).

             Unless appellant or any party desiring to continue the appeal files
      with the court, on or before Friday, January 3, 2020, a response showing
      grounds for continuing the appeal, the appeal may be dismissed. See Tex.
      R. App. P. 25.2(d), 44.3. [Cleaned up.]




                                            5
       Our concern was not whether Blakely had filed a pretrial writ of habeas corpus

with non-cognizable claims, although that was certainly one argument. Rather, our

concern was whether Blakely had filed a document not cognizable as a pretrial writ of

habeas corpus.

       Blakely filed no timely response.

                                         Discussion

       The Texas Code of Criminal Procedure’s Chapter 11 addresses habeas corpus

proceedings. See Tex. Code Crim. Proc. Ann. arts. 11.01–.65. In his “Pre-Trial Writ,”

Blakely never cited to any Chapter 11 provision.

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

restrained in his liberty.” Id. art. 11.01. A habeas corpus requisite is a petition stating

that the applicant is “illegally restrained in his liberty.” Id. art. 11.14(1). Although

Blakely asserted many things in his document, he did not assert that he was being

“illegally restrained in his liberty.”

       And although Blakely cited much caselaw, he did not cite any addressing

pretrial writs of habeas corpus.3

       An applicant may seek pretrial habeas corpus relief only in very limited

circumstances. Ex parte Walsh, 530 S.W.3d 774, 778 (Tex. App.—Fort Worth 2017, no

pet.). Pretrial habeas relief is an extraordinary remedy reserved for cases in which


       He cited one postconviction habeas case: Ex parte Patterson, 969 S.W.2d 16,
       3

18 (Tex. Crim. App. 1998).

                                             6
resolving a legal issue in the applicant’s favor results in the applicant’s immediate

release from an illegal restraint on the applicant’s liberty. Id.; see Ex parte Flores,

483 S.W.3d 632, 638 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (“A claim is

cognizable in a pretrial writ of habeas corpus if, resolved in the defendant’s favor, it

would deprive the trial court of the power to proceed and result in the appellant’s

immediate release.”); Green v. State, 999 S.W.2d 474, 477 (Tex. App.—Fort Worth

1999, pet. ref’d) (“[T]he purpose of a pretrial habeas corpus application is not to

facilitate trial, but to stop trial and secure immediate release from confinement.”); see

also Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010) (explaining that

pretrial habeas relief is unavailable for asserting the constitutional right to a speedy

trial or, generally, to test the sufficiency of a charging instrument); Ex parte Smith,

178 S.W.3d 797, 801 (Tex. Crim. App. 2005) (explaining that a pretrial habeas

applicant may challenge the State’s power to restrain him at all; the manner of his

pretrial restraint (such as challenging conditions attached to bail); or other issues

which, if meritorious, would bar prosecution or conviction). Generally, due-process

claims are not cognizable for pretrial habeas relief. Walsh, 530 S.W.3d at 778.

       We must decide whether Blakely filed a pretrial writ or a pretrial motion.

Pretrial writs and pretrial motions serve different functions, and procedurally, they are

distinct.

       Pretrial motions and pretrial hearings are conducted under Article 28.01 of the

Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 28.01. The pretrial

                                           7
hearing’s purpose is to address and resolve certain matters before trial and thus avoid

delays during trial. Green, 999 S.W.2d at 476. “Rulings on pretrial motions are

interlocutory and not subject to immediate appeal.” Id. This is true even of pretrial

motions that seek to abort trial. See id. at 475–76; Ahmad v. State, 158 S.W.3d 525,

527 (Tex. App.—Fort Worth 2004, pet. ref’d); see also Ex parte Wiley, 949 S.W.2d 3,

4 (Tex. App.—Fort Worth 1996, no pet.) (“There is no statute providing for

interlocutory appeal of denial of a motion to dismiss.”).

       In contrast, the pretrial habeas corpus application’s purpose is to stop trial and

to secure immediate release from illegal confinement or restraint, not to facilitate trial.

Green, 999 S.W.2d at 477. Unlike motions, a habeas corpus action is a separate

proceeding—distinct from the cause instituted by the State’s indictment. Id. Habeas

corpus proceedings should be docketed separately from the substantive cause and be

given a different cause number. Id. (relying on Ex parte Shumake, 953 S.W.2d 842,

846 n.8 (Tex. App.—Austin 1997, no pet.)). An appeal from an order denying habeas

relief is not an interlocutory appeal from within the substantive cause (the one that the

State is prosecuting under the indictment). Id. Rather, an appeal from an order

denying habeas relief is an appeal from a final judgment because a pretrial application

for writ of habeas corpus is its own separate proceeding. Greenwell v. Court of Appeals for

the Thirteenth Judicial Dist., 159 S.W.3d 645, 649–50 (Tex. Crim. App. 2005) (orig.

proceeding).



                                            8
      Substantively, although Blakely was trying to abort the criminal proceedings

against him, he did not package or couch his arguments in terms of procuring his

immediate release from any illegal restraint—the sine qua non of a habeas writ. See Tex.

Code Crim. Proc. Ann. arts. 11.01, 11.14(1). And procedurally, Blakely’s “Pre-Trial

Writ” was not filed under a separate cause number. It is true that a separate cause

number’s presence or absence is not the be-all and end-all; its absence might be

happenstance. See Ex parte Carter, 849 S.W.2d 410, 411 n.2 (Tex. App.—San Antonio

1993, pet. ref’d) (“Failure to docket habeas corpus proceedings separately is a

common mistake of the bench and bar and the court clerks of this State.”). But based

on the trial court’s comments during the hearing, Blakely’s document’s not having a

separate cause number was no oversight. See Ex parte Cantu, 913 S.W.2d 701,

704 (Tex. App.—San Antonio 1995, pet. ref’d) (“[T]he district courts are not limited

by the denomination of pleadings but may look to the essence of those pleadings.”)

What Blakely filed was a pretrial motion within the substantive cause. See Green,

999 S.W.2d at 477.

      In short, Blakely’s document is more accurately described as an omnibus

pretrial motion that he simply captioned as a writ. See State v. Evans, 843 S.W.2d 576,

577 (Tex. Crim. App. 1992) (“While designated as a motion to reconsider a plea,

appellant’s motion should more aptly have been called a motion for new trial.”); see

also State v. Davis, 349 S.W.3d 535, 538 (Tex. Crim. App. 2011) (looking past labels

when construing motions and orders). A caption or title helps identify a document.

                                           9
See Caption, Title-and-Headings Canon, Black’s Law Dictionary (10th ed. 2014). But

captions and titles are not controlling. See Evans, 843 S.W.2d at 577–78. We hold that

Blakely’s “Pre-Trial Writ of Habeas Corpus” was a writ in caption only; substantively

and procedurally, it was an omnibus pretrial motion, the denial of which was not

subject to an interlocutory appeal. See Ahmad, 158 S.W.3d at 526–27.

      We dismiss Blakely’s appeal for want of jurisdiction.




                                                     /s/ Elizabeth Kerr
                                                     Elizabeth Kerr
                                                     Justice

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

Delivered: February 13, 2020




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