Opinion issued September 3, 2020

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-19-00509-CR

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EX PARTE JAN HEILBUT, Appellant

On Appeal from the County Criminal Court at Law No. 6

Harris County, Texas

Trial Court Case No. 2254068

MEMORANDUM OPINION

The State appeals the trial court’s order that granted habeas relief and 

ordered a new trial. In three issues, the State argues that the trial court erred in 

granting habeas relief because (1) the applicant failed to plead sufficient facts to 

invoke the trial court’s habeas jurisdiction and (2) the applicant’s claims of judicial 
2

bias and violations of article 38.05 were not cognizable on writ of habeas corpus 

and should have been raised on direct appeal. 

We reverse.

Background

In 2015, the State charged Heilbut by information with interfering with a 

police service animal. A jury found Heilbut guilty of the offense, and the trial 

court assessed punishment at confinement for three days and a $3,000 fine. 

Heilbut appealed to this Court, raising two points of error: (1) the trial court erred 

in denying Heilbut’s motion to quash and (2) the trial court erred in admitting 

photographs. This Court affirmed the conviction on October 12, 2017. See 

Heilbut v. State, No. 01-16-00652-CR, 2017 WL 4545878, at *4 (Tex. App.—

Houston [1st Dist.] Oct. 12, 2017, pet. ref’d) (mem. op., not designated for 

publication). We issued our mandate on February 16, 2018.

On February 19, 2019, Heilbut filed an application for writ of habeas corpus

in the trial court,

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arguing in two issues that: (1) his rights to a fair trial were 

abrogated by the conduct of the trial court and (2) the trial court’s comments 

during trial violated article 38.05 of the Texas Code of Criminal Procedure.2 The 

1 See TEX. CODE CRIM. PROC. art. 11.09.

2 Article 38.05 provides, “In ruling upon the admissibility of evidence, the judge 

shall not discuss or comment upon the weight of the same or its bearing in the 

case, but shall simply decide whether or not it is admissible; nor shall he, at any 
3

State answered, arguing that the trial court lacked jurisdiction because Heilbut was 

not actually confined and that his claim of right to fair trial and alleged violations 

of article 38.05 should have been raised on direct appeal. Even if Heilbut’s claims 

were considered, the State argued that they were meritless. 

Heilbut responded to the State’s answer, admitting that he was not confined 

but nevertheless was restrained because his “conviction constitutes a restraint and 

he has absolute right to challenge the validity of that conviction.”

On June 11, 2019, the trial court granted habeas relief and ordered that the 

August 9, 2016 judgment be vacated and that a new trial be granted. The State 

filed its notice of appeal pursuant to article 44.01 on June 25, 2019.

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Collateral Consequences

In its first issue, the State argues that Heilbut failed to plead sufficient facts 

to invoke the trial court’s jurisdiction. Specifically, the State argues that Heilbut 

neither alleged, nor proved that he suffered collateral legal consequences as a result 

of his misdemeanor conviction. 

stage of the proceeding previous to the return of the verdict, make any remark 

calculated to convey to the jury his opinion of the case.” See TEX. CODE CRIM.

PROC. art. 38.05.

3 Article 44.01 provides that the State may appeal an order that “dismisses an 

indictment, information, or complaint or any portion of an indictment, 

information, or complaint.” See TEX. CODE CRIM. PROC. art. 44.01(a)(1).
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A. Standard of Review

An applicant seeking misdemeanor post-conviction habeas corpus relief 

must establish entitlement to such relief by a preponderance of the evidence. Ex 

parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002); Ex parte Pinnock, 

No. 14-17-00591-CR, 2018 WL 2106615, at *1 (Tex. App.—Houston [14th Dist.]

May 8, 2018, no pet.) (mem. op., not designated for publication). Appellate courts

review a trial court’s ruling on an application for writ of habeas corpus under an 

abuse-of-discretion standard of review. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. 

Crim. App. 2006). “A trial court abuses its discretion when its ruling is arbitrary 

or unreasonable.” Gaytan v. State, 331 S.W.3d 218, 223 (Tex. App.—Austin 

2011, pet. ref’d). But a trial court does not abuse its discretion if its ruling lies 

“within the zone of reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 

367 (Tex. Crim. App. 2008); see Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. 

App. 2002). Under that standard, appellate courts “review the record evidence in 

the light most favorable to the trial court’s ruling.” Kniatt, 206 S.W.3d at 664.

“The trial court sits as the fact finder in a habeas proceeding brought under 

article 11.09.” Ex parte Pinnock, 2018 WL 2106615, at *2. “In such cases, the 

habeas court is the sole judge of witness credibility, and we will not disturb its 

ruling absent a clear abuse of discretion.” Id. “The habeas court may accept or 

reject any or all of any witness’s testimony, even if that testimony is 
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uncontroverted.” Id. Similarly, a trial court is “free to believe” or “free to 

disbelieve” an affidavit attached to a habeas application. See Ex parte Scott, 541 

S.W.3d 104, 117 n.13 (Tex. Crim. App. 2017). Appellate courts “imply all 

findings of fact that are necessary to support the habeas court’s ruling” and “defer 

to the habeas court’s implied . . . findings of fact that are supported by the record.” 

Ex parte Pinnock, 2018 WL 2106615, at *2.

“For a county court at law to have habeas jurisdiction under the Texas 

Constitution, an applicant’s liberty must be restrained.” Ex parte Wolf, 296 

S.W.3d 160, 166 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). “A 

defendant convicted of a misdemeanor offense may attack the validity of the 

conviction by way of habeas corpus if he is either (i) confined or restrained as a

result of a misdemeanor charge or conviction or (ii) is no longer confined, but is 

subject to collateral legal consequences resulting from the conviction.” Ex parte 

Rinkevich, 222 S.W.3d 900, 902 (Tex. App.—Dallas 2007, no pet.); see also Ex 

parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim. App. 2010) (explaining that 

showing of collateral consequences establishes “confinement”); Phuong Anh Thi 

Le v. State, 300 S.W.3d 324, 326 (Tex. App.—Houston [14th Dist.] 2009, no pet.) 

(noting that habeas applicant must establish that collateral legal consequences 

resulted from her Texas misdemeanor convictions); State v. Collazzo, 264 S.W.3d 

121, 125–26 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (stating that 
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defendant may attack misdemeanor conviction provided he is confined, restrained,

or subject to collateral legal consequences resulting from conviction he attacks).

The word “confined” refers not only to the “actual, corporeal and forcible 

detention of a person,” but also to “any coercive measures by threats, menaces or 

the fear of injury, whereby one person exercises a control over the person of 

another, and detains him within certain limits.” TEX. CODE CRIM. PROC. art. 11.21. 

The statute uses the word “restraint” to mean “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.” 

TEX. CODE CRIM. PROC. art. 11.22. A person who is not confined but is suffering 

some collateral consequence as a result of his conviction may seek habeas corpus 

relief. See Ex parte Harrington, 310 S.W.3d at 457–58 (holding that adverse 

consequences to applicant’s present and future employment opportunities 

constitute confinement); Collazo, 264 S.W.3d at 126–27 (holding that denial of 

opportunity to obtain Texas peace officer license constitutes confinement); Ex 

parte Davis, 748 S.W.2d 555, 557 (Tex. App.—Houston [1st Dist.] 1988, pet. 

ref’d) (holding that denial of entry into military constitutes confinement or 

restraint).
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B. Analysis

The record reflects that at the time Heilbut filed his application for writ of 

habeas corpus, Heilbut was not confined.

4

 Thus, Helibut had to establish that he 

was subject to collateral legal consequences. See Ex parte Rinkevich, 222 S.W.3d

at 902. In his application, Heilbut made no mention of being subjected to 

collateral legal consequences. The State’s answer to Heilbut’s habeas application

raised the issue that Heilbut was neither confined, nor restrained. The State further 

argued that the trial court lacked jurisdiction to consider the application for writ of 

habeas corpus because Heilbut had neither alleged, nor proved that he suffered

collateral legal consequences as a result of his misdemeanor conviction. 

After the trial court gave Heilbut an opportunity to respond to the State’s 

jurisdictional argument, Heilbut responded that he was neither confined nor 

restrained, and “[t]he fallacy of the State’s argument reflects it’s cavalier review of 

the trial judge’s comments and conduct to suggest that they did not impact the 

jury’s consideration of the evidence and the resulting conviction.” Heilbut also 

argued that restraint has been construed broadly, and “[t]his is a case where the 

trial court harassed and belittled trial counsel in front of the jury. The State wants 

this court to sanction that conduct. Clearly, the fact of Applicant’s conviction

4 Heilbut’s response to the State admitted that he was not confined as defined by the 

statute but he has been restrained by virtue of his conviction. 
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constitutes a restraint and he has [the] absolute right to challenge the validity of 

that conviction.” 

Heilbut’s response to the trial court did not meet his burden to prove that he 

was confined or restrained or subject to any collateral consequences as a result of 

his misdemeanor conviction. Heilbut failed to include factual allegations within 

his application or response to the State’s answer regarding his confinement or 

restraint, and he did not provide evidence at the habeas hearing to establish that he 

was then confined or restrained or subject to any collateral legal consequences as a 

result of the misdemeanor conviction. See, e.g., Tarvin v. State, No. 01–08–

00449–CR, 2011 WL 3820705, at *3 (Tex. App.—Houston [1st Dist.] Aug. 25, 

2011, no pet.) (mem. op., not designated for publication) (concluding defendant 

invoked trial court’s habeas jurisdiction when prior misdemeanor conviction used 

to enhance subsequent misdemeanor offense to third-degree felony offense); Ex 

parte Wolf, 296 S.W.3d 160, 166–67 (Tex. App.—Houston [14th Dist.] 2009, pet. 

ref’d) (concluding that applicant’s inability to obtain employment in banking and 

securities industry constitutes collateral consequences); Collazo, 264 S.W.3d at

126–27 (concluding that applicant who was denied opportunity to obtain Texas 

peace officer license is confined); Ex parte Davis, 748 S.W.2d 555, 557 (Tex. 

App.—Houston [1st Dist.] 1998, pet. ref’d) (concluding that applicant who was 

denied entry into military as result of prior misdemeanor conviction was
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sufficiently confined to authorize application for writ of habeas corpus). 

Accordingly, we conclude that the trial court abused its discretion in granting 

habeas relief because Heilbut failed to present any evidence to establish that he

was subject to collateral legal consequences. 

We sustain the State’s first issue.

Direct Appeal

In its second and third issues, the State argues that Heilbut’s habeas 

complaints are not cognizable and should have been raised in his direct appeal.

Heilbut’s habeas application argued that the trial judge who presided over 

the underlying trial was biased and that the trial court violated article 38.05 of the 

Texas Code of Criminal Procedure. The State’s answer to the application pointed

out that Heilbut’s complaints were not cognizable because they were not asserted 

in his direct appeal.

Habeas corpus may not be used to bring claims that could have been brought

on direct appeal. Ex parte Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004). 

As the Texas Court of Criminal Appeals has held,

The Great Writ should not be used in matters that should have 

been raised on appeal. Even a constitutional claim is forfeited

if the applicant had the opportunity to raise the issue on appeal. 

This is because the writ of habeas corpus is an extraordinary 

remedy that is available only when there is no other adequate 

remedy at law. There was nothing to prevent the applicant from

raising this claim on direct appeal. He had an adequate remedy 
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at law. Because the applicant did not raise the issue on direct 

appeal, the applicant has forfeited his claim. 

Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004).

After the jury found him guilty of interfering with a service animal, Heilbut

appealed his conviction to this Court. In his direct appeal, Heilbut did not attempt 

to assert the complaints he now raises in his habeas application. See Heilbut, 2017 

WL 4545878, at *1. In this State’s appeal, Heilbut asserts that his habeas 

complaints, had they originally been raised on direct appeal, would have been 

“perhaps rejected” because no objections were made to the trial court’s conduct,

Heilbut did not testify at the motion for new trial hearing, and Heilbut lacked 

affidavits from himself and his counsel at trial. We cannot speculate as to how this 

issue would have been resolved on direct appeal, but we can say that Helibut’s 

habeas complaints could have been raised during trial, post-trial, and on direct 

appeal. By not raising these complaints in his direct appeal, Heilbut forfeited the 

complaints. Ex parte Townsend, 137 S.W.3d at 81. We therefore hold that the 

trial court abused its discretion in granting habeas relief. 

We sustain the State’s second and third issues.
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Conclusion

We reverse the trial court’s judgment and render judgment denying habeas 

corpus relief and ordering that the prior judgment entered on August 9, 2016, in 

cause number 2076524, County Criminal Court at Law No. 6, Harris County, 

Texas, shall remain in effect. 

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Lloyd and Countiss.

Do not publish. See TEX. R. APP. P. 47.2(b).