Opinion issued September 3 , 2 0 20

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 1 9
- 0 0509
- CR

——————————— EX PARTE JAN HEILBUT , Appella nt

On Appeal from th e Co unty Crim inal C ou r t at Law No . 6

H arris County, Texas Trial Court Ca se No. 2254068

MEMORANDUM OPINION The State appeals the trial court ’ s order that granted habeas relief and ord ered a new trial . In three issues , th e State argues that the t r i a l c ourt erred in granting habeas relief because (1) the applicant fa iled to p lea d sufficient facts to invoke the tria l court ’ s habeas jurisd iction and (2) the applicant ’ s claims of judicial2

bias and violations of artic le 38.05 were not cognizable on writ of habeas corpus and should have b een raised on di rect appeal

. We r everse. B ackground In 2015 , t he State charged Heilbu t by information with inte r f er ing wit h a police service animal

. A jury found Hei lbut guilty of the offense , and the trial court assessed puni s hment at confinement for three days and a $ 3,000 fine. Heilbut appe al ed to thi s Court, raising two points of error : (1 ) the tr i a l court err ed in denying Heilbut ’ s motion to quash and (2) the trial c ourt erred in admitting photographs. Th i s Court affirme d the conviction on October 12, 2017

. See
H eilbut v. State , No. 01

- 1 6

- 00652

- CR, 2017 WL 4545878 , at * 4 (Tex. App.

— Hous ton [1st Dist.] O c t. 12, 2017 , pet. ref ’ d) (mem. op. , not des i g nated for publication). We issued our manda te on February 16, 2018.
On F e bruary 19, 2019 , Heilbu t filed an applicatio n for writ of habeas corp u s in the trial court , 1 arguing in two issue s that : (1) his ri ghts to a fair tr i a l were abrogated by the conduct of the trial court and (2) t he trial court ’ s comments during trial violated a r t icle 38.05 of the Texas Code of Cri m inal Pro cedure. 2 The

1 See T EX
. C ODE C RIM
. P ROC
. art

. 11.09

.
2 Article 38.05 provides, “ In ruling upon the admissibility of evidenc e, the judge shall not discuss or comment upon the wei ght of the sam e or i ts bearing in the case, but shall simply decide whether or not it is a dmissible; nor shall he, at any3

State an swered , arguing t hat the tri al court lacked j urisdiction because Heilbut was not actually confi ned and that his claim of rig ht to fair trial a nd alleged violations of article 38.05 s h ould have been raised on direct appeal

. Eve n if He ilbut ’ s clai ms

were co nsider ed, the S t ate argued that they were merit less

. Heilbut respon ded to the State ’ s answer, admitting t hat he was not confined but nevertheless was restrained b e c ause his “ conviction constitutes a restraint and he has absolute right to chal lenge the va lidity of that convic t ion. ”
O n June 11, 2019, the trial court granted habeas relief and ordere d that th e August 9, 2016 judgment be vacated and that a new tri a l be granted. T he State filed its notice of appeal pursuant to articl e 44.01 on June 25, 2019

. 3
Collateral Cons equence s I n its first issue , the State argue s that Hei lbut failed t o p lea d sufficient facts to invoke the trial cou r t ’ s jurisdiction. Specifically, the State argues that Heilbut neither alleged , nor pr oved that he suffered collateral le gal consequences as a result of his misdemeanor conviction.

stage of the proceeding previous to t he return of the verdict, make any remark c al culated to convey to the jury his opinion of the cas e. ” See T EX
. C ODE C RIM
. P ROC
. art. 38.05.

3 A rticle 44.01 provide s that the Sta te may a ppeal an o rder th at “ dismi sses a n indictment, i nformation, or com plaint or any portion of an indic tm ent, informa ti on, o r complaint. ” See T EX
. C ODE C RIM
. P ROC . art. 4 4.01(a)(1).4

A. Standard of Review An applicant seeking misdemeanor post

- convictio n habeas corpus relief must establish entitle men t to such relief by a preponder ance of the evidence. Ex parte Richards on , 70 S.W.3d 865, 870 (Tex. Crim. App

. 2002); Ex parte Pinnock , No. 14

- 17

- 0059 1

- CR, 2018 WL 2106615, at *1 (Tex. App.

— Houston [14th Dist

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

r eview a trial court ’ s r uling on a n application for wri t of habeas corpus unde r an abuse

- of

- discretion standard of review. Kniatt v. State , 206 S.W.3d 657, 664 (Tex.
Cr i m . App. 2006). “A trial court abuses its discretion when its ruling is arbit rary

or unre asonable.” Gaytan v. State , 33 1 S.W.3d 218, 223 (Te x. App.

— Austin 2011, pe t. ref ’ d). But a trial court does no t abuse its discretion if its ruling lies “within the z o ne of reasona ble disagreement.” Bigon v. State , 252 S.W.3d 360, 367 (Tex. C rim. App. 2008 ); see Lopez v. S tat e , 86 S .W. 3d 228, 230 (Tex. Cri m. App. 2002). Under t hat standard, appellate courts “review the record evidence in the light most favorable to t h e trial court ’ s ruling.” Kniatt , 206 S.W.3d at 664. “The trial court sits as the fact finde r in a habeas pr oce eding brou ght under article 11. 09.” Ex parte Pinnock , 2018 WL 2106615, at *2. “In such cases , the habeas court is the sole judge of witness cre d i bility, and w e will not disturb its ruling absent a clear abuse of discreti on.” Id

. “The hab eas court ma y a ccept or

r eject any or all of a ny witness ’ s testimony, even if that testimony is5

uncontroverted. ” Id

. Similarly, a trial court is “free to beli e v e” or “free t o disbelieve” an affidavit attached to a habeas application. See Ex pa rte Scott , 54 1 S.W.3d 104 , 117 n.13 (Tex. Crim. App. 201 7). Appellate courts “ imply all findings of fact that are necessary to support the habeas court ’ s ruling” and “de f e r to the habe as court ’ s implied .

. . findings of fact that are supported b y the rec ord.” Ex parte P innock , 2 018 WL 210 6615, at *2. “For a c ounty court at law to have habeas jurisdicti on unde r the Texas Constitution, an app licant ’ s liberty must be restra i n ed.” Ex part e 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 eith er (i) confined or restrained as a

r esult of a mi sdemeano r charge or convict ion or (ii) is no longer confined, but is

su bject to collateral legal conse quen ces resulting from th e conviction.” Ex parte Rinkevich , 222 S.W.3d 900 , 902 (Tex. App.

— Dallas 2007, no pet.) ; see also Ex parte Harrin g t on , 310 S.W.3 d 452, 4 57 (Tex. Crim. App. 2010) (explaini ng that showing of collatera l consequences establishes “con fine ment”) ; Phuong Anh Th i Le v. State , 300 S.W.3d 324, 326 (Tex. App.

— Houston [14th Dist.] 2009, no pet.) ( noting that habeas applicant must establish t hat collatera l legal consequences

r esulted from her Texas misdemeanor convictions); State v. Collazzo , 264 S.W.3d 121, 125

– 26 (Tex. App.

— Hou ston [1st Dist.] 2007, pet. ref ’ d) ( stating that6

defendant may attack misdemeanor conviction provided he is confined, restraine d , or subject t o collateral legal co nsequences resulting from conviction he attacks)

. The wo rd “ confined” refers not only to the “actual, cor poreal and forcible detention of a person,” but also to “any coercive measures by threats, menaces or
the fear of i n

j ury, whereby one perso n exercises a control over the person of another, and detains him wi thin certain limits.” T EX
. C ODE C RIM
. P ROC
. art. 11.21

. The statute uses the word “restraint” to mean “the kind of control which one person exercises over another, n ot to confine him within certain limits, but to subject him to the general authority and p ower of the person claiming such right.”
T EX
. C OD E C RIM
. P ROC
. art. 11.22

. A person who is not confined but is suffering some collateral consequence as a r esult of h is conviction may seek habeas corpus relief. See Ex parte Harrington , 310 S.W.3d at 457

– 5 8 ( h olding 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 o b tain Texas pe ace officer license constitutes confineme nt); Ex
pa rte Davis , 748 S.W.2 d 555, 557 (Tex. App.

— Houston [1st Dist.] 1988, pet. ref ’ d) ( holding that denial of entry into military constitutes confinement or restraint).7

B. Analysis
T he record re flects tha t at the time H ei lbut filed his application for writ o f ha beas corpus, Heilbut was not confined

. 4 Thus, Helibut had to establish that he was subject to collateral le gal consequences. See Ex parte Rinkevich , 222 S.W.3d
at 902

. In his application, Heilbut m ade no mentio n of being subjected to

c ollateral le ga l co nsequences . The State ’ s answ er to Heilbut ’ s habeas a pplication raised the issue that Heilbut was nei ther confined , nor restrained. The State further argued that the trial court lacked juris diction t o consider the application for writ of habeas corpus bec ause Heilbut had neither alle ged , nor p r o ved that he suffered collateral legal cons equences as a resul t of his misdeme a n or con viction

. Afte r the trial court gave Heilbut an opportunity to r e spond to th e State ’ s jurisdictional argument, He ilbut respo nded that he was neither c onfined nor restrained , and “ [t] he fallacy o f the State ’ s argument reflects i t ’ s cavalier review of the trial judge ’ s comm ents and conduct to suggest that they did not i m p act the ju ry ’ s consideration of the evidence and the resu lt ing conviction. ” He i lbut also
argue d that restraint has been construe d broadly , and “ [t] his is a case where the trial court harassed and belittled trial counsel in front of the jury

. Th e State wants thi s court to sanction that conduct. Clearly, the fact o f Applicant ’ s conviction

4 Heil b ut ’ s response to the State admitted that he was not confine d as defi ne d by the statute but he has been restrained by virtue of his conviction.8

constitutes a restrain t and he has [the] absolute ri ght to challenge the validity of that conviction. ” Heilbut ’ s response to the trial court did not me e t his burden to pr ove that he was confined or restrained or subject to any coll ateral consequ e n ces as a result of
h i s misd e me a n or conviction. Heilbut failed to includ e factual a llegations within his application or response to the State ’ s answer regarding h is confinement or
rest raint , and he did not provide evidence at the habeas hea ring 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 3 82 0705, at *3 (Tex. App.

— Houston [1st Dist.] Aug. 25, 2011, no pet.) (m em. op., not designated for publication) (concluding defendant invoked trial court ’ s habeas jurisdiction when prior misdemeanor conviction used to enhance sub s e quent misdemean or offense t o third

- degree felony offense) ; Ex parte Wo lf

, 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 ban king and securities indu stry constitutes c o llateral conseq uences ) ; Collazo , 264 S.W.3d at 126

– 27 (concluding that a pp licant who was denied oppor tunit y to obtain Texas peace officer license is confined); Ex parte Davis , 748 S.W.2d 555 , 557 (Tex. App.

— Houston [1st Dis t.] 1998, pet. ref ’ d) ( concludi n g that applicant who was den ied entry into military as result of prior misd emeanor conviction was9

sufficient ly confi ned to autho rize application for writ of habeas corpus)

. Accordingly, we conclude that the trial court abus ed it s di scretion in g ranting
h a b eas relief beca use Heilbut fail ed to present any evidence to establish tha t he was subject to co llateral legal consequences . We sustain the State ’ s first issue

. Direct Appeal
I n its second and third issues , the State argue s that Heilb u t ’ s habeas compl aints are not cognizable and should have been raised in his direct appeal

. He ilbu t ’ s habeas ap plication argued that the trial judge who presided over the underlying trial was biased and that the trial c ourt violated article 38.05 of the
Te x a s Code of Criminal Procedure . The Sta te ’ s answer to the application point ed out that He ilbu t ’ s comp laints were not cognizable because they were not asserte d
in his direct appeal.
H abeas corpus may not be used to bring cl aims that cou ld have been brough t on direct appeal. Ex parte Nelson , 137 S.W.3d 666, 667 (Tex. Crim. App. 2004).
As the Texa s Co urt of Criminal Appeals has held,

The Gre at Writ should not be used in m atters that should have been raised on appeal. Even a constitution al claim is forfeit e d if the applicant had the opportunity to raise the issue on appeal. This is becaus e the writ of habeas corpus is an extraordinary remedy that is available only when the re is no other adequate remedy at law. There was noth ing to preven t the applicant fro m raising this claim on direct appeal. He had an adequate remedy10 at law. Because t he app lica nt d id not raise the issue on direct appeal, the applicant has forfeited his claim. Ex parte Town send , 137 S.W. 3d 79, 81 (Tex. Crim. App

. 20 04). After the jury f

ound him guilty of interfering with a ser vice animal, Heilbut appealed his conviction to thi s Co urt. In his direct appeal, Heilbut did not attempt
to assert the complaints he now raises in his habe a s application. See Heilbut , 2017
WL 4545878 , at *1

. I n this State ’ s appeal , Heilbut asserts that h is habeas

c o mplaint s , had they originally bee n ra ise d on direct appeal, would have been

“ perhaps reje cted ” because no objections were made to the trial court ’ s conduct, Heilbut did not testif

y at the motion for n ew trial hearing , and Heilbut lacked affidav its from himself and h is counsel at trial . W e ca nnot speculate as to how this issue would have been resolved on direct appeal , but we can say that Helibut ’ s habeas complaints could ha ve been raised d uring tria l , post

- trial, and on direct
ap peal. By not raising these complaints in h is direct a ppeal, Heilbut for feite d the complaints. Ex parte Townsend , 137 S.W.3d at 81

. We therefore hold that the trial court abused its discretion in gr anting ha b eas relie f

. We sustain the State ’ s second and third issues

.11 Conclusion
W e reverse the trial c ourt ’ 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 Radac k Chief Justice

P anel cons ists o f Chief J ustice Radack and Justices Lloyd an d Countiss.
Do no t publish. See T EX
. R. A PP . P. 47.2 (b).