## I N THE COURT OF CRIMINAL APPEALS OF TEX AS

NO. PD-1102-20
E X PARTE KEVIN DALE SHEFFIELD, Appellant
ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE SEVENTH COURT OF APPEALS

JOHNSON COUNTY
W A L K E R 

### , J., delivered the opinion of the Court in w hich K E L L E R 

### , P.J., and H E R V E Y 

### , R I C H A R D S O N 

### , N E W E L L 

### , K E E L 

### , S L A U G H T E R 

### , and M C 

### C L U R E 

### , J J., joined. Y E A R Y 

### , J., concurred. O P I N I O N
Many claims are not c og n iz able in pretrial habeas corpus. F or ex ample, a claim that a statute is unconstitutional as-applied is g enerally not cog niz able. However, in Ex parte Perry , we allowed

an a s-applied challeng e in pretrial habeas, despite the g eneral rule. Ex parte Perry , 483 S.W .3d 884,
895 ( Tex

. Crim. App. 2016). Speedy trial claims are also not c og niz a ble, b u t the court of appeals in this case determined that the P erry rule applied to Appellant Kevin D a l e Sheffield’s speedy trial claim. W e hold that the Perry rule does not apply to speedy trial c laims b e c a u s e pretrial habeas
corpus litig ation w ould not v indicate the speedy trial rig ht and would effectively underm i n e t h a t rig ht instead. Vindication of the speedy trial rig ht must be had throug h a motion to dismiss followed by2

appeal after trial if the mo t i o n is wrong ly denied. I f trial and appeal are indefinitely postponed, mandamus, not pretrial habeas, is available. The judg ment of the court of appeals is reversed. I — Background
W ith bond set at $100,000, Appellant has b een i n c u s t o dy since Aug ust 5, 2019. W hile in custody , Appellant f

iled several pro se documents with the trial court even thoug h h e h ad appointed counsel. I n his first pro se letter, f iled A ug u s t 2 2 , A p pellant requested an ex amining trial and a personal recog

niz ance (PR) b ond until the ex amining trial could take place. Appellant also filed a
pro se motion, file-stamped September 19, for a speedy trial and for discharg e under article 28.061. 1 Appellant followed the motion w ith a n o t her p ro se letter, filed September 2 0, reasserting his requests for a speedy trial, a speedy ex amining trial, and a PR bond until the ex amining trial.
On September 26, the g rand jury returned a f ive-count indictment alleg ing possession, with intent to deliver, first deg ree felony amounts of methamphetamine a nd h eroin; 2 possession of a first deg ree felony amount of cocaine; 3 evading arrest in a vehicle; 4 and unlawful possession o f a firearm by a convicted felon. 5
On September 30, a brief status hearing was h eld. The trial c ourt a ppointed new counsel f

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

1 Article 28.061 p rovides that if a motion to set aside a charg ing instrum e n t f o r failure to provide a speedy trial is sustained, the court is r equired to discharg e the defendant. T E X

. C O D E C R I M

. P R O C . Ann. art. 28.061.

2 See T E X

. H E AL T H & S A F E T Y C O D E Ann. §§ 481.112(a), (d); 481.102(2), (6).

3 See T E X

. H E AL T H & S A F E T Y C O D E Ann. §§ 481.115(a), (d); 481.102(3)(D).

4 See T E X

. P E

N A L C O D E Ann. § 38.04(a), (b)(1)(B ).

5 See T E X

. P E

N A L C O D E Ann. § 46.04(a)(1).3

On that same date, the trial court entered its pre-trial scheduling order, setting jury trial for J anuary 23, 2020, which was then filed with the district clerk on October 8.
I n J anuary , althoug h represented b y counsel, Appellant sent a pro se letter, filed J anuary 7,

s e e k ing a hearing on a motion f or discovery and a motion for speedy trial. O n J anuary 9 , a s t at u s hearing was held, and Appellant testified that, after discussing his case with counsel, he no long er wished to p ursue the motion for speedy trial. On the motion for discovery , Appellant ex plained that he was simply try ing to g et whatever information he could reg arding his case. He was admonished that as the defendant he was not allowed to have copies of certain items of d iscovery , 6 and he was instructed to allow counsel to do the lawy ering for him.
On J a nuary 24, a hearing was held o n Appellant’s motion to suppress, in which the officers who encountered and arrested Appellant testified, and Appell a n t a r gued that h e was unlawfully detained and that his pickup truck was illeg ally seiz ed and s ea r c h e d

. T h e trial court denied Appellant’s motion. Proceeding s in Appellant’s c ase c ame to a halt in the spring of 2 020, as t he trial court and all trial courts in Tex a s shut d own in response to the emerg ing COVI D-19 pandemic. Nevertheless, Appellant soug ht to keep his case moving forward, and Appellant sent a pro se letter, f iled May 6, challeng ing the arrest, the indictment, and the seiz ure 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 w hich the trial court allowed Appellant
to represent himself but keep standby counsel. On Appellant’s requests for discovery , the trial court

ex p lained that discovery

would be:

6 See T E X

. C O D E C R

I M

. P R O C . Ann. art. 39.14(f).4

difficult because y ou’re g oing to — we’re g oing to have to have to bring y ou over to the Guinn b uilding at some point and y ou can sit down and look at th e file. I n an open file policy , y ou can look at i t a nd take notes, but y ou c an’t p h otocopy or take thing s home with y ou.

. . . Or to the jail with y ou. So that’s kind of the way attorney s have to work, so —

. . . — we’ll have to make a

r rang ements. T h e Office of Court Administration say s that after J une 1st if we h ave an approved plan in place, w e can start letting people come back in the b u ilding

. O ur county health o fficial has to sig n o ff o n t h at. He’s not comfortable until J u ly 1st, but I ’m working on a plan to try to convince him that a fter J une 15th or someti m e i n e a rlier J une that he would let limited people, y ou k now, come back in here.
So if that’s the case, then y o u have to come over h ere and p ut a mask on, p ut g loves on and g o throug h the file, and [ standby counsel] can sit w ith y ou and g o throug h the file and just m a k e y o u r n otes and thing s like that. And when y o u’re d one, y ou g o back to jail. And then we can have a hearing on what y ou want. Appellant, now representing himself, mailed a pro se motion, filed May 18, seeking release under article 17.151. 7 On J u ne 4, the trial court held a te l e c o n f e r ence 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 G o v e rnor in the State of Tex as issued a disaster declaration. I b elieve that is declaration of March 13th, 2020 w h i c h states certain portions are suspended, particularly the r elease on personal r ecog niz ance 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 charg ed with a felony and who is detained in jail pending trial must be r eleased on personal bond or b y reducing the amount of bail required, if the S t a t e i s n o t re a dy for trial within 90 from the beg inning of his detention. T E X

. C O D E C R I M

. P R O C . Ann. art. 17.151 § 1(1).

8 W hile the Governor’s initial d i s a s t er d eclaration was issued on March 13, 2020, the Governor’s suspension of article 17.151’s personal bond p rovision occur r ed i n a later ex ecutive 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 o f Tex

. , Ex ec. O rd. No. G A-13, 45 Tex

. Reg

. 2368,5

COVI D-19 disaster declaration a nd other issues related to that, it’s my understanding we are not in a position to b e able to conduct a jury trial, so the State w ould oppose Mr. Sheffield’s motio n an d a s k that the Court would leave

— leave the $100,000 bond in place. The trial court denied Appellant’s article 17.151 motion, ex plaining : 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 c onduct any jury trials until they let me know. T h ey don’t think that there will be any jury t r i a l s u n til after A ug ust 15th, and that even then, there may not be any jury trials until n ex t y ear. On top of the Office of Court Administration, the Chief J ustice [ sic] o f the Court of Criminal Appeals and the Chief J ustice o f t h e T e x as Supreme Court have instructed the courts, including me, that we are not to have live, in-person hearing s u nless it’s absolutely necessary a nd 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 J ury selection hearing , so they ’ ve e x tended the previous Grand J ury six months so we don’t have to have 140 people in here to pick a n ew Grand J u ry . So, I would like to have a jury trial. I w ould be more than willing to have a jury trial, but t h e C ourt is being prevented from having any trials under direct direction a n d instruction from hig her authority

. So I am g o ing to deny

y our motion.
I f y ou w ish to appeal the motion, y ou may do so to the W aco Court of Appeals a nd let them fig ure out h ow to handle it. B ut it’s not me, it’s not [ the prosecutor] and his o f f i c e t h a t are not ready to g o forward with the trial. I t’s the Office of Court Administration and the hig her courts in Tex a s that have decided that until they can g et a handle on this virus problem that we are not to g o forward with trials, so that’s where we are.

. . . I would love to have a trial here. I would love to have a J ury in here and not have this computer prog ram, but that’s just not the reality that I ’ m in rig h t now and neither a re y ou[ .]
A w eek later, Appellant sent a pro se letter, filed J une 15, reasserting his request for a speedy trial, but “I t should be a J udg e 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 f or trial. After pre-trial motions are finished we should proceed to trial.
As soon as is possible.” Appellant’s letter also purported to withdraw h is p lea of Not Guilty and requested a visit to the courthouse for discovery purposes. On J u ne 29, Appellant, throug h standby counsel , f i l e d an application for writ of habeas
corpus, ag ain seeking release on personal bond u nder article 17.151 because more than ninety day s had passed and, because o f COVI D-19 related r estrictions, the State was not and could not be ready for trial. I n the alternative, Appellant requested that “[ i] f such request is denied, Movant is entitled under the law to a speedy trial, which he re-urg es h is request for.” Th e trial c ourt held a teleco n f e r e n c e hearing on the writ application on the nex t day , J une 30. At that hearing , standby counsel sp o k e f

o r Appellant and urg ed a speedy trial o r release u nder article 17.151, because althoug h he was r eady and w anted t o go to trial, a trial could not occur due to COVI D -19 and the
Tex as Supreme Court’s emerg ency orders; thus, arti c l e 17.151 required his release on personal bond. The prosecutor responded that the State was ready to proceed to trial, but:
I t’s emerg e ncy orders that have been h a n d e d down by the Office of Court Adminis t r a t i o n , the Court of Criminal Appeals, the Supreme Court of T e x as that have placed this roadblock in our path to — to g etting this case resolved at this point. However, with reg a

rd to Article 17.151 of the Code of Criminal Procedure, I believe Governor Abbott issued — make sure I ’m q uoting this c orrectly — I t say s, “Emerg ency order and Ex ecutive Order declaring a disaster”. O n e o f t h e relevant portions of it d eal with the suspending of Article 17.151 for the p urposes of r eleasing someone on a PR bond because of the nature of the disaster that is ong oing

. The trial court denied relief, noting that it would not entertain a personal bond for the ty pes of offenses that Appellant was charg e d with, and: stating ag ain that the Court is ready for trial. I under s t and the State to b e 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 p oint b y the Office of Court Administration a nd respectfully I must7

follow their instructions. Appellant appealed the trial court’s denial of h abeas relief, arg u i n g t h at t he trial c ourt erred in denying either p ersonal bond or bail reduction, w hich he claimed were required under article 17.151.
Ex parte S

heffield , 611 S.W .3d 630, 633 (Tex

. App.—Amarillo 2020). 9 He also arg ued that if he could n ot r eceive personal bond or reduced bail, then he w a s e n t i t l e d to a speedy trial, y et the indefinite delay

in jury trials caused by

the COVI D-19 related emerg e ncy orders violated his rig ht
to a speedy trial. Id. at 632, 6 34. The court of appeals d i s a g r e ed w ith Appellant on the “bail/bond issues,” f inding that althoug h a jury trial could not be held, there was no dispute that, at the J une 4 hearing , the State had represented it was ready for trial from the d a t e o f A p p e l lant’s indictment, which w as within ninety day s of his incarceration, and thus article 17.151 was inapplicable. Id. at 633–34. 1 0 Reg arding the speedy trial issue, the c ourt of appeals ex plained that the constitutional rig ht
to a speedy trial could n o t be indefinitely suspended b y the state of disaster alone. Id. a t 6 35. B ecause the T ex a s Supreme Court’s emerg ency orders left p athway s open to the poss ibility of a trial, 1 1 the

9 Reg arding the Governor’s disaster declaration stating that article 17.151 was suspended, Appellant arg

ued that the suspension of the statute was unconstitutional.

1 0 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.

1 1 Namely , the c o urt of a

ppeals pointed to lang uag e in the Tex as Supreme Court’s Twenty

Second Emerg e ncy Order, that trial c ourts forg o holding trials “ex cept as authoriz ed by this Order.” Sheffield , 6 11 S.W .3d at 6 35 (quoting Twenty -Second Emerg ency Order Reg arding the COVI D-19 State of Disaster, 609 S.W .3d 1 29, 130 (Tex

. 2020)). The court of appeals f ound “[ o] ne such authoriz ation provided that the Office of Court Administration ‘in coordination with the Reg ional Presiding J udg es and the local administrative judg es, should assist trial court s i n c o n d u c ting a limited number of j u r y proceeding s prior to October 1.’” Id. (quoting Twenty -Second Emerg ency Order, 609 S.W .3d at 130). And the order included v arious g uideline s b y w h ich trials should be conducted, including a requirement that the trial judg e request permission to c o n d u c t t r i als. Id.8

trial court thus erred in indefinitely foreg oing p roceeding s instead o f seeking to accommodate the rig ht within the confines of the order. Id. a t 635. According ly , 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 f or rehearing , citing authority that speedy trial claims are not p e r mitted in p r etrial habeas corpus b ecause allowing such claims would improperly make them subject to interlocutory a ppeal. Id. at 6 36 (or d e r o n mot. for reh’g ). The c ourt of appeals disting uished the SPA’s cited authorities because the applicants in those cases

were seeking dismissal, whereas Appellant was seeking a speedy t r i a l

. I d

. The court of appeals

ex p lained that it believed Appellant’s speedy trial issue was cog niz a b l e i n p r e t rial habeas corpus under the rule of Ex p arte Perry

. I d. at 637 ( discussing Perry , 483 S.W .3d 884). According ly , the court of appeals denied the State’s motion for rehearing

. Id. The SPA filed its petition for discretionary review on November 20. W h ile the p etition was pending at this Court, th e h eroin-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 six ty y ears for the methamphetamine-related count, five y ears on the evading arrest count, and ten y ears for the firearm count. 1 2 Meanwhile, on the SPA’s petition for discretionary review, we g

ranted two of the g rounds

(citing Twenty -Second Emerg ency Order, 609 S.W .3d at 130).

1 2 W e note that Appellant h as appealed the conviction, raisin g i s s u es related to the trial c o u rt ’s denial of his motion to suppress. The appeal is c urrently pending at the Tenth Court o f Appeals in W aco, Cause Number 10-21-00109-CR.9

raised: 1 3
2. Are speedy trial claims c o g niz able on p retrial habeas if the appli c ant 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 g ranted the following g round on our own motion: Did t he trial court have jurisdiction to hold a trial while the State’s petition for discretionary

review was pending

in this Court? II — Cognizability in P retrial Habeas and Ex parte Perry
W e ex p lained our g eneral approach in Ex parte W e ise : I n determining whether an issue is cog niz able on habea s , we have considered a variety o f f

actors. W e h ave looked at whether the al l e ge d d efect would bring into question the trial court’s power to proceed. Along these same lines, we have found that a pretrial writ ap p l i c a t i on is not appropriate when resolution of the question presented, even if resolved in favor of the applicant, would not result in immediate release. W e have held that an applicant may u se pretrial w rits to assert his or her constitutional protections with respect to d ouble jeopardy a nd bail. W e reasoned that these p rotections would be effectively undermined if thes e issues were not cognizable.

. . . Pretrial habeas should b e reserved for situations in which the p r o t e c t ion of the a

p plicant’s substantive rig hts or the c onservation of judicial resources would be better served by interlocutory

review. Ex parte W

eise , 55 S.W .3d 617, 619–20 (Tex

. Crim. App. 2001) (emphasis a dded). Thus, pretrial habeas corpus is available “only in very limited circumstances.” E x parte Smith , 178 S.W .3d 797,
801 ( Tex

. Crim. App. 2005). F or ex ample, w e a llow claims that prosecution would v iolate the rig ht
ag ainst double jeopardy

. Ex par t e R o b i n son , 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

1 3 W e refused review of the SPA’s first issue, which asked: (1) Did the court of appeals e rr to o pen a new a venue for pretrial habeas when that claim was not raised before the habeas judg e?10

are facially unconstitutional are also cog niz able. See, e .g. , Ex parte Thompson , 442 S.W .3d 325, 330 (Tex

. Crim. App. 2014) ( reviewing f acial constitutionality of the “improper p hotog r a phy or visual recording ” statute in pretrial habeas). Other issues, like as-applied challen g es , a r e g enerally not cog niz able. E x parte Ellis , 309
S.W

. 3d 71, 7 9 (Tex

. Crim. App. 2010) ( “Pretrial habeas

. . . may n ot be used to ad v a n c e a n ‘asapplied’ challeng e.”); see e.g. , W eise , 55 S.W .3d at 620–21 ( findin g a p p licant’s claim not cog niz able in pretrial hab e as b e ca use the claim was actually an as-applied, not facial, constitutionality challeng e). B ut the categ orical ex clusion of as-applied claims is not absolute.
I n Perry , t h e d e fendant (former G overnor Rick Perry ) was charg ed with abuse of official capacity by misusing funds appropriated by the L eg islature to fund the Public I n teg rity Unit of the Travis County District Attorney ’ s O ffice (specifically by v etoing the funds), with the intent to harm the Travis County

District Attorney and the Public I nteg rity Unit. Perry , 483 S.W

. 3d at 889–91. 1 4
The defendant filed a p retrial application for habeas corpus, claiming that t h e ab use of official capacity prosecution was unconstitutional as applied to his veto because the prosecution violated the Separation of Powers Provision of the Tex as Constitution. Id. at 890.
To address the question of w hether Separation of Powers was violated, we f irst had to answer whether the as-applied c halleng e could be raised in a p retrial habeas application followed by interlocutory appeal. Id. a t 888. The plurality opinion by Presiding J udg e Keller and joined by two judg es pointed to W

eise and acknowledg ed that: Althoug h we h ave said that as-applied challeng es are not c og niz a ble before trial, we

1 4 I n a separate count, he w as charg ed with coercion of a public servant, by threate n i ng to veto the funding for the Public I nteg rity Unit u n less the T r avis County District Attorney resig ned from office. Perry , 483 S.W .3d at 889–90.11

allow certain ty

pes o f claims to be raised by pretria l h a beas b ecause the rig hts underlying t h o s e claims would be effectively undermined if not vindicated before trial. W ithin this catego ry of rig hts that would be effectively undermined if not vindicated pretrial, w e have, so f a r, recog n iz ed the constitutional p rotections involving double jeopardy and bail.

. . . [ C] ertain ty pes o f as-applied c laims may be raised by pretrial h abeas because the particular constitutional rig ht a t issue in the asapplied challeng e is the ty p e that would be e ffectively undermined if not vindicated prior to trial. Id. at 8 95–96 (plurality op.) (citing W eise , 55 S.W .3d at 6 19). After r eviewing how the “effectively

u ndermined if not vindicated p rior to trial rationale” applied to double jeopardy , the Speech a n d Debate Clause, and even separation of powers ca ses at the federal circuit court level, the plurality concluded that the defendant’s as-applied separation o f powers claim was cog niz able in pretrial habeas. Id. a t 896–898 (discussing Abney v. United States , 431 U.S. 651 (1977), Helstoski v. Meanor , 4 42 U.S. 500 (1979), a nd United States v. M

ye r s , 635 F .2d 932 (2d Cir. 1980)) (internal quotation marks omitted).
I n a concurring opinion joined by two other judg es, J udg e Newell ag reed that the defendant’s as-applied separation of powers claim was cog niz able in pretrial habeas, but h e would h ave found
cog niz ability 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 f ace o f the pleading s. Id. at 923 & n.1 (Newell, J

. , concurring ) (discussing Ex parte Boetscher , 812 S.W .2d 600,
603 (Tex

. Crim. App. 1991)). W h i l e J udg e Newell believed that “simply addressing the constitutional claim because the violation is apparent from the pleading s resolves the matter much more cleanly ,” he remarked that: Presiding J u dg e Keller correctly observes that this claim would a lso be “ cog niz able” on a p retrial writ of habeas corpus to vindicate a constitutional rig ht t h a t wo u ld be effectiv e l y undermined if a defendant could only receive relief from that constitutional violation after trial.12

Id. at 924 (emphasis added). Thus, between Presiding J udg e Keller’s three-judg e, plurality opinion, and the three-judg e, concurring opinion by J udg e Newell, a majority of the Court r eaffirmed that certain ty p es of claims
may be raised b y pretrial habeas because the rig hts underly ing those claims would be effectively undermined if not vindicated before trial and ag reed that this W eise factor lent cog niz ability to the as-applied challeng e. Id. a t 895 (plurality op.); id. at 9 24 (Newell, J ., c oncurring ). F or the purposes of our discussion today , we will refer to this W eise factor ( o r perhaps principle), 1 5 a s “the Perry rule.”
III — The Perry

Rule Does Not Apply to Speedy Trial
W e now turn to the SPA’s second g round for review, which asks whether speedy trial claims

are c og n iz a

ble in pretrial h abeas corpus when an applicant wants a trial, instead of a dismissal. “[ W ] e have held that an a

pplicant may not use a pretrial writ to assert his or her constitutional rig hts
to a speedy trial[ .] ” W

eise , 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, 1 46 (Tex

. Crim. App. [ Panel Op.] 1979); Ex parte Jones , 449 S.W .2d 59, 60 (Tex . Crim. App. 1970). However, the court of a

p p eals, in its opinion on the order denying rehearing , d isting uished 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 a t 636 (order o n mot. for reh’g ). The court of appeals

ex p lained its belief that Appellant’s claim was cog niz able under the Perry rule. I d

. at 637. As the court of appeals saw it: Unless addressed before trial, th e d e n i al of his entitlement to a speedy disposition

1 5 See id. at 922 (Alcala, J ., c oncurring ) (“I would further clarify that these are not ‘factors’ at a ll. Rather, there are certain principles that must underlie any decision to g rant pretrial h a b e a s relief[ .] ”).13

cannot be vindicated when the trial judg e indefinitely forg o es trial. His claim e ntails a substantive rig ht to a timely disposition of the charg es ag ainst him, which rig ht is being eff e c t i v e l y u n d e r m i n e d t h r o u g h a d m i n i s t r a t i v e f i at. These circumstances satisfy the very criteria used in Perry to justify d e viation f rom historical limitations imposed on the availability

of habeas relief. Id. The SPA arg ues that pretrial habeas corpus litig ation, including interlocutory ap pellate review, thwarts the p u r

p o s e o f the speedy trial rig ht. Appellant, f or his p art, copies the court of appeals’s discussion quoted above.
Even if we assume that the trial judg e was indefinitely forg o ing trial due to administrative fiat, we disag ree w ith the court of a ppeals that such circumstances satisfy the Perry rule because the speedy trial rig ht would not be e f fectively undermined if not vindicated before trial. I nstead, pretrial habeas litig ation with interlocutory appeal would have the opposite effect. I n normal circumstances, such litig a tion would inject a ppellate delay a

nd undermine the speedy trial r ig ht, and where trial is indefinitely postponed, p retrial h abeas litigation would not vindicate the speedy trial rig ht in any
event. W e take g uidance from United S t a t e s v
. M acDonald , in which the United States Supreme
Court c onsidered whether a d efendant in federal d istrict court could appeal, before trial, the denial

o f a m o t i o n t o dismiss for violation of the rig ht to speedy trial. United S tates v. MacDonald , 4 3 5 U.S. 8 50, 850 (1978). Concluding that speedy trial claims are n ot appeala b l e b ef o r e trial, the
S u p r e m e Court ex p lained its view that the speedy trial rig ht would n ot be vindicated by pretrial interlocutory

appeal: There perhaps is some superficial attraction in the arg ument that the rig ht to a speedy trial . . . must be v indicated before trial in order to insure that no nonspeedy trial is ever held. B oth doctrinally and prag matically , however, this arg ument fails. Unlike14

the protection afforded b y the Double J eopardy Clause, the Speedy Trial Clause does not, either on its f

ace or according to the decisions of this Court, encompass a “rig ht not to be tried” which must be upheld prior to trial if it is to be enjoy ed at all. I t is the delay before trial, not the trial itself, that offends ag ainst the constitutional g uarantee of a speedy trial. I f the factors outlined in Bar k er v
. W ingo

. . . combine to deprive an accused of his rig h t to a speedy trial, that loss, by

definition, occurs before trial. Proceeding wi t h the trial does not cause or compound the deprivation already suffered. Id. at 8 60–61. We ag r ee, and affording speedy trial claims cog niz a bility in pretrial habeas would not vindicate, under Perry , the speedy trial rig ht.
F urthermore, the Perry rule was concerned with whether reg ular appeal—in o t h e r w ords, postponing relief u

n t i l a f t e r t r i a l

— w o u l d e f f e c t i v e ly undermine the rig ht, such that vindication would have to come before trial. P erry , 483 S.W .3d a t 895–96. F or ex ample, with the r ig ht ag ainst double j e o p ardy , if appellate review were postponed until a fter the second trial, the d efendant w o u l d

n e c es s arily have to suffer throug h that trial, a nd his rig h t ag a inst being tried twice would be irrevocably violated. Id. a t 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 rig ht the leg al a n d practical value of which would be destroy ed if it were not vindicated b efore trial.”). Even if he were
to prevail on appeal, his ex posure to double jeopardy could n o t b e u n d o n e —the rig h t would be undermined.
B u t with the rig ht to a speedy trial, postponing appellate review u n til a fter trial would actually serve the speedy trial i n t e r e st because it bring s the d efendant 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 M

acDonald , the Supreme Court’s opinion was clear that p retrial interlocutory15

appeal would h ave the unintended conseque n c e o f u n d e rmining the r ig ht to a speedy trial. The Supreme Court n oted that “[ f] ulfillment of [ the Six th Amendment g uarantee to a speedy trial] would be impossible if every pretrial o rder were appealable

. ” M a c D o n a l d , 435 U.S. a t 861. I nstead, “[ a] llowing an ex ception to the rule ag ainst pretrial appeals in criminal cases for speedy trial claims would threaten precisely the values manifested in the Speedy T r ial Clause.” Id. at 862. “And some assertions of delay -caused prejudice would become self-fulfil l i n g prophecies d uring the period
necessary for appeal.” Id. The Supreme Court concluded that pretrial delay woul d b e ex acerbated by allowing a defendant to obtain interlocutory appeal. Id. at 863.
W e ag ree. Allowing a defendant to litig ate a speedy trial claim in pretrial habeas corpus would inject pretrial appellate d elay , and “pretrial a ppellate delay can become especially long if the case is bounced back and forth between this Court and a court of appeals.” D oster , 303 S.W .3d at 726. “[ B ] eing stuck in ‘appellate o rbit’”, id. at 727, would not ho n o r t h e s p e edy trial rig ht. Cog niz ability in p retrial habeas effectively u n d e r m i n e s t he rig ht to a speedy trial, and, instead of vindicating the rig ht, pretrial habeas would frustrate the rig ht.
W h at would v indicate the speedy t r i a l r ig ht? Barker v. W ingo was unequivocal: “the only possible remedy” for a violation of the speedy trial ri ght is the “unsatisfactorily severe remedy of dismissal.” Barker v. W

ingo , 407 U.S. 514, 522 ( 1972). I f a defendant b elieves his rig h t to a speedy trial has b een violated, he should file a motion to dismiss for that very reason, 1 6 followed by appeal after trial if that motion is wrong ly denied. However, if the trial c ourt w ere to indefinitely foreg o trial, there would n ever be a judg ment

1 6 As recounted in Part I of our opinion, the record shows that Appellant f iled seve r a l p ro se d ocuments and motions asserting his rig ht to a speedy trial and seeking dismissal for the failure to provide one.16

of c onviction, and the trial court’s ruling on the motion to d ismiss would n ever see appellate review.
A defendant in such a c ase would have no remedy by a ppeal after trial. W ould pretrial habeas be an appropriate remedy to vindicate the speedy trial rig ht then? S ee Ex parte Groves , 5 71 S.W .2d 888,
890 (Tex

. Crim. App. 1978) (habeas i s a n ex t r ao r d i n ary writ a nd is not available if there is an adequate remedy

at law); E

x parte Beck

, 541 S.W .3d 846, 852 (Tex . Crim. App. 2017). No, because mandamus—not habeas—is available to compel a trial. I n Chapman v. Evans , the defendant sough t a writ of mandamus to compel the trial court to either set the case for trial or dismiss the indictment for violation of his rig ht to a speedy t r i a l

. C h a p man v. E

v ans , 744 S.W .2d 133, 135 ( Tex

. Crim. App. 1 988). Despite his a ssertion of the r ig ht t o a s p e e d y t r i al, nothing had been done to honor that rig ht. Id. at 137–38. Aft e r w ei gh i n g the Barker v. W ingo factors, w e conditionally g ranted mandamus relief, assuming that within thirty day s 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

. I n Smith v. Hooey , the defendant, who w as incarcerated in federal prison in K ansas, had Tex as state charg es pending ag ainst him for over six y ears, y et the State took

no steps to bring him to trial d espite h is repeated requests for a speedy trial. Smith v. Hooey , 393 U.S. 374, 375 (1969). W hen h e finally filed a motion to dismiss for want of prosecution, no action was taken on the motion e ither. Id. He filed a petition for writ of mandamus, w hich was denied by the
Tex as Supreme Court, believing that because he was confined in a federal prison, the State’s duty
to a fford him a speedy trial w as absolved. Id. at 376–77. The United States Supreme Court disag reed

an d s e t a s i d e t he Tex as Supreme Court’s denial o f mandamus, holding that upon h is demand, the
state had a constitutional duty to make a dilig ent, g ood-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, b ecause trial and appeal

were available, “Smith ha[ d] an adequate remedy at law; therefore he [ was] n ot elig ible f or mandamus relief.” Smith v. Gohmert , 962 S.W .2d 590, 5 93 (Tex

. Crim. App. 1998). W e ex plained that:
I n Pope v
. Ferguson

. . . the Tex as Supreme Court held that a d e fendant seeking a d i smissal of an indictment on speedy trial g rounds was not elig ible for m a n d a m u s relief, because such a defendant had an adequate remedy at law, to w it: the defendant could file a motion to set aside the indictment in the t r i a l c o u r t

. . . 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 9 50, 955–56 (Tex

. 1969)). N oting that we had previously “‘concurred

. . . with the rationale of Pope ’ ” and that we had reiterated that position in later cases, 1 7 we committed to adhering to that p osition. Id. at 592–93 (quoting Thomas v. Stevenson , 561 S.W .2d 8 45, 847 n . 1 (Tex

. Crim. App. 1978)). And, “ [ i] n any e vent, we continue[ d] to believe that a defendant seeking to compel a dismissa l o f a n indictment on speedy trial g rounds has an adequate remedy

at law[ .] ” Id. at 593. Accord i n gl y , if the trial court were indefinitely foreg oing trial, and therefore indefinitely foreclosing

the possibility

of appellate review, Appellant could seek a writ of mandamus from the
court o f appeals to compel the trial court to make a dilig ent, g ood-faith effort to try him. I f Appellant

were convicted, he could thereafter raise, as error on appeal, the d enial of his rig h t to a speedy trial,

1 7 Ordunez v. Bean , 5 79 S.W .2d 911, 9 13–14 (Tex

. Crim. App. 1979) ( “I n the instant case, it is clear that petitioner has failed to meet either of the tests [ f o r mandamus relief]

. Appeal is available to the petitioner in the event of his conviction to test any asserted d enial of his rig ht to a speedy trial[ .] ”); Hazen v
. P ickett , 5 81 S.W .2d 694, 695 (Tex

. Crim. App. 1979) (“W e 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 g etting a trial is in stark contrast to h a beas, because pretrial h a b e as corpus does n ot seek to compel an action such as setting a c ase for trial. Hab ea s c o r p u s disputes the lawfulness of c onfinement. Ex parte McGowen , 645 S.W .2d 286, 288 (Tex

. Crim. App. 1983); T E X

. C O D E C R I M

. P R O C

. Ann. art. 11.01. And pretrial h abeas results in release; that writ “‘is
not a ppropriate when resolution of the question presented, even if resolved in favor of the applicant, would not r esult in immediate release.’” Ex parte Hammons , 631 S.W .3d 715, 716 (Tex

. Crim. App. 2021) (quoting W

eise , 5 5 S.W

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

. Crim. App. 1966). The ex istence of remedies that are adequate to vindicate the speedy trial righ t —motion to di smiss and a

p peal in the normal course and mandamus when trial is indefinitely postponed—reinforces our conclusion that pretrial h abeas does not vindicate the speedy trial rig ht, and denying cog niz ability w ould n ot undermine the rig ht. Therefore, the Perry rule does not apply
to speedy trial claims. On the SPA’s second g round f or r eview, we hold that speedy trial claims are
not cog niz able in pretrial habeas corpus, even if the defendant wants a trial, y et trial is indefinitely post p o n e d

. The court of appeals erred in reaching the merits o f Appellant’s speedy trial issue, the
SPA’s second g round f

or review is sustained, a

nd we reverse the judg ment of the court of appeals.
B e cause we already d etermine that the court of appeals’s judg ment should be reversed, w e need not consider the SPA’s third g round for review, which es s en t i al ly arg ues that the court of appeals e rred on the merits of the speedy trial issue. W e dismiss the SPA’s third g r ound for review.
V — Trial While P etition Was P ending
W e now address the g round for review on this Court’s own motion, asking w hether the trial19

court had jurisdiction to conduct Appella n t’s trial after the c ourt of appeals delivered its

o p i n i o n —but not the mandate—while the SPA’s petition f or discretionary review was pending at this Court. B oth the SPA and Appellant ag ree that the trial court l a c k e d jurisdiction due to the operation of Tex as Rule of Appellate Procedure 25.2(g), which provides: (g ) Effect o

f Appeal. Once the record has been f iled in the appellate court, all f urther proceeding s in the trial court—ex cept as provided otherwise by law o r b y t hese rules—will be suspended until the trial court receives the appellate-court mandate.
Tex . R. App. P. 25.2(g )

. I f Appellant’s a

ppeal, a n d therefore the SPA’s pet i t i o n f o r discretionary review, stemmed from a judg ment of the trial court in the u n d e rly ing c riminal case, we w ould ag ree. However, the appeal and the PDR do not arise f rom the u nderly

ing criminal case. The matter b efore us arises from a pretrial application for writ of habeas corpus.
I n G reenwell , we ex plained that “[ a ] habeas corpus p roceeding has alway s been reg arded 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). According ly , we endorsed as “amply supported by our caselaw” the view that:
A habeas corpus a c tion is, in theory , a different litig ation than the criminal prosecution.

. . . W hen habeas corpus is used as a vehicle for r aising matters pretrial i n a p ending criminal prosecution, the difference b e tween the pending prosecution and the habeas corpus proceeding is both more subtle and more sig nificant. An order d e n y ing relief on the merits is a final judg ment in the h abeas corpus proc e e d i n g . Therefore, it is immediately appealable by

the unsuccessful petitioner. Id. 649–50 (quoting D i x a n d Dawson, Tex as Practice: Criminal Practice A nd Procedure, 2nd ed., Vol. 43B , § 47.51, 2 19–220 (2001) (ellipsis inserted; emphasis in orig inal)). W e further noted that “there are n o statutes that specifically g rant a rig ht to immediately appeal the denial of relief in a20

pre-conviction h abeas corpus p roceeding .” Id. at 650. I nstead, “[ t] he rig ht of appeal o ccurs because the habeas proceeding is in fact considered a separate ‘criminal action[ .] ’ ” I d

. Be cause what authoriz es the h abeas 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 stag e of that criminal action a nd the commencement of the timetable for appeal.”). As a consequence of being the appeal of a separate action, in the absence of a stay , 1 8 the habeas appeal has no effect on the underly ing criminal prosecution.
W e further n ote that Appellant’s arg ument rely ing on Rule 25.2(g ) is similar to the arg ument raised in Trimboli v. MacLean , 735 S.W .2d 953 (Tex

. App.—F ort 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. I

d

. a t 9 5 4

. T r imboli appealed the trial court’s judg ment, but at the same time he also
soug h t a writ of prohibition from the court of appeals to prevent the trial from g oing f orward during the p endency of the habeas appeal. Id. at 9 53–54. He asserted that he w as entitled to an absolute stay of p roceeding s, and he urg ed 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 proceeding s in his case. Id.

1 8 Our c a s e s h av e r e f

e rred to the use of stay s in pretrial habeas proceeding s, including to times when a stay was g ranted and w hen it was d enied. See, e.g. , W ard 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 a pplicant’s request f

or a stay ), vacating Ex parte Doster , 282 S.W .3d 110, 1 12 (Tex

. App.—W aco 2009) (trial court denied the habeas application b ut ag r eed to a stay pending appeal); Fant v. S tate , 931 S.W .2d 299, 301(Tex

. Crim. App. 1996) (trial court denied the habeas application but ag reed to a stay

pending appeal). References to stay s in pretrial p roceeding s, and to a stay being g ranted, denied, or lifted, have also appeared in decisions of the courts of appeals. See, e.g. , Ex parte V ictorick, 453 S.W .3d 5, 8 & n.1 (Tex

. App.—B e a

umont 2014, pet. ref’d) (trial court and court o f a p p ea l s d enied stay pending appeal); Ex parte Hartfield , 4 42 S.W .3d 8 05, 8 08 ( Tex

. App.—Corpus Christi–Edinburg 2014, no pet.) (court of appeals stay e d the trial proceeding s but later lifted the stay ).21

at 954 (citing former Tex

. R. App. P. 40(b)(2)). The court of appeals dis a gr e e d because Trimboli appealed only the denial of his application for writ of habeas corpus; it was n ot an appeal of the cases in which he stood indicte d

. Id

. Th e effect of the rule, automatically stay ing p roceeding s when the record is filed, was to stay only the proceeding s in connection with the a pplication for writ of habeas
corpus. Id.
W e reaffirm that a habeas proceeding is a separate proceeding from a criminal prosecution.
A pending appeal in a habeas proceeding does n ot by itself bar a trial court from g oing forward on the u nderlying c riminal prosecution; the appeal only bars the trial court from acting on the habeas proceeding

. I f a defendant wishes to prevent the trial c ourt from proceeding to trial during pending pretrial habeas litig ation, the defendant should seek a stay

. W h ether a criminal prosecution oug ht 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 g rant a stay

. Appellant did not obtain a stay of the criminal prosecution. The trial court had jurisdiction to proceed to trial. According ly , the answer to the Court’s own g round for review is: “Yes.”
V I — Conclusion
W e reaffirm that speedy trial claims are not cog n iz able in p retrial habeas corpus, and the rule of Ex parte Perry d o es not provide an ex ception if trial is indefinitely postponed. The remedy for a violation of a defendant’s constitutional rig ht to a speedy trial is dismissal a n d , i f d i s m issal is
wrong ly denied, appellate r e v i e w a f ter trial and conviction. I f trial and appellate review are indefinitely postponed, v indication of the speedy trial rig ht should be had via petition for writ of mandamus, not by pretrial writ of h abeas corpus. The judg ment of the court of appeals is reversed. Reg arding Appellant’s trial while the SPA’s petition for discretionary review was pending22

before this Court, the SPA’s petition is part of independent litig ation from the u nderly ing criminal prosecution. B ecause Appellant did not obtain a stay of the underly ing criminal prosecution, the trial court was within its authority to proceed to trial.

Delivered: J une 21, 2023 Publish