Affirmed and Memorandum Opinion filed April 20, 2021
.

In The 

## Fourteenth Court of Appeals

NO. 14

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EX PARTE ROBBIE GAIL CHARETTE , Appellant
V.
THE STATE OF TEXAS , Appellee
On Appeal from the 21st District Court Washington County, Texas T r ial Court Cause No. 18,34 5 , 18,34 6 , 18 ,347 & 18,348

MEMORANDUM OPINION Appellant , Robbie Gail Charette , a ppeals from the trial court ’ s order denying h er “ application for pretrial writ of habeas c orpus and/or fir st motion t o quash and d ismiss t he indictment as prosecution improperly brought ” in four misdemeanor

c ases in which she w as charged under the Texas Election Code and Texas2

Government Code

. In t wo is sues, appellant contends that the trial court erred in denyi ng her r e lief. We affirm the trial court ’ s order.
I. B ACKGROUND Appellant, a candi date for county court

- at

- law judge in Washington County in the March 2018 primary, was indicted for fo ur misdemeanor c harges arising out of alleged viol ations of the Texas Election Cod e and Texas Government Code. A special prosecutor , Austin County District Attorn ey Travis Keohn, presented the case to a Washington County Grand Jury , which i n June 2018 indicted appell ant as follows : failure to disclose true sour ce of commu nication in v i olation of Section 255.004 of the Texas Election Code ; 1 Misleading Use of Office Title in violation of Section 255.006 of the Texas Ele ction Code ; 2 Failure to Timely File Personal Financial State ment in vi olation of Section s 159.052, 159.056 , and 572.027 of the Texas Gove r

n ment Code; 3 and Record keeping Required

– P olitical Ca mpai gn in violat ion of Section 254.001 of the Texas Election Code. 4 A ppellant was released after posting cash bond s
. In April 201 9 , appellant filed a “ pretrial application for a writ of habeas corpus and/or first m otion to quash and dismiss the i ndictment as prosecution improperly brought , ” ch allenging the validity of the prosecutio n by Koehn in seeking and obtaini ng the four indic tments. A ppellant asserted th at the indictment s

were v oid “ due to the St ate ’ s complete failure to comply with applicable Texas

1 A Class A misdeme anor i n trial cour t cause number 18, 345 is being appeal ed as 14

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2 A Class A misdemeanor in tr ial court cause number 18,34 6 is being appeal ed as 14

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3 A C lass B misdemeanor in tr ial court cause number 18,34 7 is bein g appeal ed a s 14

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4 A Class B misdemeanor in trial court caus e number 18,34 8 is being appeal ed as 14

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cons ti tutional and stat ut ory procedure requir ing the Texas [Ethics] Commission ’ s

. . . oversight of the alleged violations of the Electio n Co de and Chapter 572, Go vernm e nt Code. ” The State filed it s re sponse to appellant ’ s application for a pretrial w rit , arguing , in r ele van t part, that it should be dismissed for failing to allege a d ue p ro cess violation which would en title her t o file an application f or pre trial habeas relief and, a lternat ively, that it should be denied on the m erits, as the Texas Ethic s Commission ( “ TE C ” ) ha s no jurisdiction, discretion, or authority over a prosecutor ’ s d ecisi on to investigate and prosecute crimes. On Ap ril 25, 2019, the tr ial c ourt held a hearing on app ellant ’ s pretrial application

. Duri ng the hearing , the tr ial cour t ad mitted an exhibit offered by the State , a news article entitled “ Update

– Charette Campaign Answers Questions

. ” Additionally, the trial cou rt admitted a n exhibit offered by appel lant

– a letter from the Texas Ethic s Commission dated Apr il 22, 201 9 , confirming no sworn

co mplaint had been filed

. After the hear ing, a ppellant filed a post

- hearing b rief in
supp ort of her application for a pr etrial writ , arguing that the special prosec uto r ’ s

“ leapfrogging ”

– failing to file a compla int with the T EC

– violated appellant ’ s right to du e process
. Ap pellan t also argued that the speci al prosecutor does not have “ unfettered discretion ” and that it “ may be limited by Const itu tion and statute, a s w e ll as caselaw. ” A ppellant distinguished cases raised by the St ate during the hearing

. On October 16, 201 9, the trial court signed it s Memorandum Ruling and Order denying app ellant ’s “ application for pr etrial writ of habeas corpus and/or first mo tio n to quash and dismiss the indictment as prosecution impr operly brought

. ” The trial court noted in its order that it found no legislative language granting the TE C exclusive autho rity to enforce th e violation s of the laws of which appell ant is charged. A ddi tionally, the trial court obser ved that there was n o4

requir ement for the district atto rney to present the results of an investigation in

conne ction with an election or campaign finance law to the TE C prior to the
commencement of a criminal prosecution. Appellant timely filed a notice of appeal o f the tr ial court ’ s denial and the case s were consol idated in th is appeal

. II. A NALYSIS On appe al, appellant raises t w o issues : “ Does a Special Prosecutor have authority, without a referral by the Texas Ethic s Commi ssion (TE C), to prosecut e violations of Electi on Code, title 15, and Government Code , chapter 572, where the Texas Con stitution and Gove rnment code sp ecifically provide the TEC ‘ shall administer and enforce ’ the statutes alleged to have been violated? ” ; an d “ Did the trial court e rr in denying Appellant ’s pre trial wr it of habeas corpu s be cause the failure to afford Appellant the due proce ss p rovided by statute and/or Art . I, sec. 19 due course of law violated her substantive righ ts in that as a subject of pr osecution for alleged vi olations of statutes wholly w ithin th e jurisdiction of TE C, she was not able to first raise defenses in an adm in istrate he aring, obtain formal and informal rulings by the TEC or have an op portunity to cu re? ”
A. P RETRIAL H ABEAS R ELIEF A ND S TANDARD OF R EVIEW
We review the trial court ’ s ruli ng on a pretrial application f or a writ of habe as corpus f

or abuse of discretion , viewing the facts in the light m ost favorable to the ruling. Kniatt v. State , 206 S.W.3d 65 7, 6 64 (Tex. Crim. App. 2006 ) ; E x parte Gonzalez , 52 5 S.W.3d 342, 346 (Tex. App.

— H ouston [ 14th Dist.] 2017, no p et. ). However, w hen the resolutio n of the ultimat e issue turns on an application of purely legal standards , as here, our review is de novo

. Se e Ex parte Martin , 6 S.W.3d 524, 526 (Tex. Crim. App

. 1999); cf. Ex parte Jones , 4 10 S.W.3 d 349, 350 (Tex. App.

—

Houston [14th Dist.] 2013) ( explaining trial court has no discretion to

an alyze the law in correctly) , aff ’ d , 440 S.W.3d 628 (Tex. Crim. App. 2014)

. W e5

will uphold the tria l court ’ s judgment if it is correct on any theory of law
app licable to the case. Ex parte Taylor , 36 S.W.3d 883, 886 (Tex. Crim. App. 2001) ; Ex parte Walsh , 530 S.W.3d 774, 778 (Tex. App.

— Fort Worth 2017, no pet.).
B. G OVERNING L AW ON C OGNIZABILITY “Pretrial habeas, followed by an interlocutory appeal, is an extraord inary

re medy.” E

x parte Ingram , 533 S.W.3d 887, 891 (Tex. Crim. App. 2017 ). As such, a defendant may only seek p retrial habeas relief in limited circumstances. Ex parte Sm ith , 178 S.W.3d 797, 8 01 (Tex. Crim. App. 2005 )

. “ Those limited circumstances are (1) to c hallenge the Sta te’s power to restrain the defendant; (2) to chall enge the manner of pretrial restraint, i .e ., the denial of bail or conditions of bail; and (3) to ra ise certain issues th at would bar prosecution or conviction. ” Ex parte Gonzalez , 525 S.W. 3d at 346 (citin g E x Parte Smith , 178 S.W.3d at 8 01)

. A threshold issue is “whether a claim is even cogni zable on pretrial habeas

. ” Ex parte Ellis , 309 S.W.3d 71, 7 9 (Tex. Crim. App. 20 10). A ppellate courts mu st be careful “ to ensure that a pret rial wri t is not misused to secure pret rial appellate review of matters th at in actual fact should not be put befo re appellate courts at the pretrial stage.” Id

. (internal q uotation marks and ci tation omitted)

. “Except when double jeopardy is involv ed, p retrial habeas is not av ailable when the question presented, even if resol ved in the defendant’s favor, would not result in immediate release.” Ex parte Perry , 483 S.W.3d 88 4, 895 (Tex. Crim. Ap p. 2016); see also Ex par te Weise , 55 S.W.3d 617, 619 (Te x. C rim. App . 2001). Pretri al habeas should be reserved for situations in whi ch the protection of the app licant ’ s sub stantive rights or the conservation of judicial resources wo uld be better served by interlocutory review. Ex parte Weise , 55 S.W.3d at 620.6

C onsequen tly, we must det ermine if appellant’s claims are cognizable via
pr etrial habeas before we are able to addr ess the merits. See Ex parte Ellis , 309 S.W.3d at 79.
C. A PPLI CATION Appellant main tain s that she presents a co gnizable pretr ial h abeas claim

–

“ t he prose cutor ’ s failur e to properly refer the complaints or obtain a ref erral from the TEC for matters wholly with in the juri sdiction of the TEC deprives th e tri al court from [ sic ] jurisdiction in this case. ” A ppellan t asserts the indictments lodged against he r must be dismi ssed because there was no ref erral from the TEC to the Special Prosecutor

. According to appellant, the State is statutorily required to obtain a referral from TEC in matter s sol ely within the enfor cement auth ority of the TEC. Appellant fur ther cont ends t hat the State ’ s failure to obtai n a referral from the TEC deprived her of due process , including th e informal, formal, and other complain t resolution proc edures of the TEC a nd State Office of Admini strative Hearing s
. The S tate maintains th at appell ant ha s failed to allege a due process violation that wo uld en title her to pretrial habeas relief. The S tate cont ends that appellant ’s
current a rguments , even if true, fail to de prive the Washington Coun ty Di strict Court of juri sdiction over her cases or warran t her immediate release

. See Ex parte Smith , 178 S.W.3d at 801; Ex parte Weise , 55 S.W.3d at 6 19; Ex parte Flores , 483 S.W.3d 63 2, 638 (Tex. App.

— Houston [14th Dist.] 2015 , pet. ref ’ d). We agree. The Washington C ounty Dis trict Court is vested with orig inal ju ris diction over all misdemeanors invo lving “ offi ci al misconduct

. ” See Tex. Code Crim. Pro c
. art. 4.05

. 5 “ Official mis con duc t ” is defined as an “ offense that is an

5 “ District cour ts and criminal district courts shall h ave original jurisdiction in crimi na l cases of the grade of felony, of al l misdemeanors involv in g official misconduct, and of7

i ntentional or knowing vio lation of a law co mmitted b y a public servant while acting in an official capacity as a public servant.” Tex. Code Crim. Proc. art. 3.04(1)

. Section 1.07 defines “ public servant ” to inc lude “ a candidate for nomination or election to public offi ce. ” Tex. Penal Code § 1.07 (41)( E )

. Here, appellant ’ s misdemeanor charges derive from crimes she is alleged to have knowingly committed whil e acting as a candidate for el ect io n to public office in Washington County

. Thus , jurisdiction pro perly vested in the distr ict court in Washington County

. A ppe llant has not and can not establish how a denial of any alleged civil due process rights afforded by a TEC investigation deprive s the dis trict court in Washington County of jurisdiction ov er her ind ictm ents

. In sum, in light of the cl e ar pronouncements fro m the Court of Criminal Appeals detailing the limits of pret rial habeas review, we conclude neither of appellan t ’ s issues are cognizable in a pretrial habeas corpus proceedi ng
. See Ex parte Elli s , 309 S.W.3d at 79

. We overrule appella nt ’ s first and second issues.
III. C ONCLUSION
We conclude appellant has not stated a co gnizab le claim for pretrial habeas relief

. Thus , we a f

firm the t r ial court ’ s order denying appellant ’ s pretri al application for a w rit of habeas co rpus and/ or first motion to quash and dismiss the indictment as pro secution improperly brought

.

misdemeanor cases transferred to the district court under Article 4.17 of t his code

. ” Tex. Code Crim. Pro c
. art. 4.05

.8 /s/ Margaret “ Meg ” Poissant Justice

Panel consists of Justices Bourliot , Hassan , and Poissant. Do N ot P ublish. Tex. R. App. P. 47.2.