No. 07-15 -00091 -CR; 07-15-00106-CR; 07- 15 -00107
- CR

__________________________________________________________________

IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO, TEXAS

__________________________________________________________________ DANIEL LEE AINSWORTH , APPELLANT

VS.
THE STATE OF TEXAS , APPELLEE

__________________________________________________________________ On Appeal From The County Court At Law No. 1 of Potter County, Texas Honorable W. F. “CORKY” ROBERTS, Presiding Trial Court Cause No. 141,066 -1; 141,094-1; 141,118-1

BRIEF FOR THE STATE OF TEXAS

C. SCOTT BRUMLEY POTTER COUNTY ATTORNEY State Bar No. 00783738

J

. WILLIAM RICHMOND Assistant County Attorney State Bar No. 24085552 500 South Fillmore, Room 303 Amarillo, Texas 79101 Telephone: (806) 379 -2255 Fax: (806) 379-2215 Email: williamrichmond@co.potter.tx.us ATTORNEYS FOR THE STATE ORAL ARGUMENT WAIVED ACCEPTED 07-15-0091-CR SEVENTH COURT OF APPEALS

AMARILLO, TEXAS 10/26/2015 5:35:07 PM Vivian Long, Clerki IDENTITY OF PARTIES AND COUNSEL

Appellant........................................... Daniel Lee Ainsworth TDCJ #00615301 Telford Unit 3899 Hwy 98 New Boston, TX 75570

Appellant’s Appellate Counsel................ W. Brooks Barfield Jr. P .O. Box 308 Amarillo, TX 79105

Appellee
............................................. THE STATE OF TEXAS
C. SCOTT BRUMLEY COUNTY ATTORNEY
J. William Richmond Trial and Appellate Counsel 500 S. Fillmore, Room 303 Amarillo, Texa s 79101ii TABLE OF CONTENTS

IDENTITY OF PARIES..........................................

. ...................i
INDEX OF AUTHORITIES

............................................ ... . ......... i ii
STATEMENT OF THE CASE

.......................................... . ... . . ...... 2
STATEMENT OF THE FACTS

........................................ .............2
SUMMARY OF THE STATE’S ARGU MENTS

..................... . ... . . .......3
ARGUMENT........................................................................ ....3
STATE’S RESPONSE TO ISSUE ONE : a. The alleged harm that Applicant suffered has been rendered moot. b. The trial court did not have the authority to grant or deny Applicant’s writ.
c. Even if the trial c ourt did have the authority over the writ, it did not abuse its discretion in denying the writ.
CON CLUSION....................................... ...................................10
PRAYER ..................................................................................10
CERTIFICATE OF COMPLIANCE..................................................11
CERTIFICATE OF SERVICE

..................... ...................................11iii INDEX OF AUTHORITIES
CASES
Bennet v. State , 818 S.W.2d 199, 199

- 200 (Tex.Crim.App. 1991)................5 Board of Pardons and Parolex ex. Rel. Keene v/ court of Appeals for the Eight Dist., 910 S.W.2d 481, 483 (Tex.Crim.App. 1995)...... ................................5,6 Ex parte Elliot , 746 S.W.2d 762 (Tex.Crim.App. 1988)........................ .....6 Ex parte Hoang , 872 S.W.2d 694 (Tex.Crim.App. 1993)..................

.. ........5 Ex parte Layton , 928 S.W.2d 781 , 781

- 82 (Tex.Crim.App

. - Amarillo 1996)...7 Ex parte Okere , 56 S.W.3d 846, 854 (Tex.Crim.App. 2001).......................7 Ex parte Schmidt , Tex.Crim.App. 109 S.W.3d 480, 483 (2003)............

. ......5 Ex parte White , 400 S.W.3d 92, 93 (Tex.Crim.App. 2013).........................6
In re Vincent Friemel , No. 07

- 08

- 0216

- CV, 2008 WL 2346396 (Tex.Crim.App. 1995 )......

......................................................................... .......... 5 Knight v. Estelle , 501 F.2d 963, 964 (U.S. Fifth Cir. 1974).........................8
Martinez v. State , 826 S.W.2d 620, 620 (Tex.Crim.App 1992).....................5
Saucedo v. State , 795 S.W.2d 8, 9 (Tex.App.

- Houston 1990).......................5
CODES
TEX. CODE C RIM. PROC. Art

. 4.07

................................................ ... 5
TEX. CODE CRIM. PROC. Art

. 11.01..........................................

. ......5
TEX. CODE CRIM. PROC. Art

. 11.07.................................................5,6
TEX. CODE CRIM PROC. Art. 11.09.............................................

.. ...5
TEX. GOV. CODE Art. 508.254.........................................................7
TEX. GOV. CODE Art. 508.282.........................................................8iv

TEX. PEN. C ODE Sec. 12.21

......... ...... .............................. ... .. ...... ......21 No. 07
- 15
- 00091
- CR; 07
- 15
- 00106
- CR; 07
- 15
- 00107
- CR

__________________________________________________________________

IN THE COURT OF APPEALS FOR THE S EVENTH DISTRICT OF TEXAS

AT AMARILLO, TEXAS

__________________________________________________________________ DANIEL LEE AINSWORTH , APPELLANT
VS.
THE STATE OF TEXAS ,

APPELLEE

__________________________________________________________________ On Appeal From The County Court At Law No. 1 of Potter County, Texas Honorable W. F. “CORKY” ROBERTS, Presiding Trial Court Cause No. 141,066

- 1; 141,094

- 1; 141,118

- 1

__________________________________________________

BRIEF FOR THE STATE

__________________________________________________

TO THE HONORABLE COURT OF APPEALS: Comes now the State, by and through its Assistant County Attorney, and respectfully submits its brief on Applicant’s request for an 11.09 writ , urging that this Honorable Court deny Applicant’s appeal

.2 STATEMENT OF THE CASE Applicant was charged by information in cause number s 141,066

- 1, 141,094

- 1, a nd 141,118

- 1 in the Cou nty Court at Law No. On e of Potter County, Texas, all alleged to have occurred on February 27, 2014

. R.R. vol.2. pg. 8. This
was a unified proceeding with only one Reporter’s Record, so all cites are the
same for all cause numbers. Applicant was charged wit h Terroristic Threat, Family Violence, in cause number 141,066

- 1; Assault Causes Bodily Injury, Family Violence; and Interference with an Emergency Request For Assistance in cause number 141,118

- 1. CR 141,006 pg.6; CR 141,094 pg.6; CR 141,118 pg.6.
All thr ee offenses are Class A misdemeanors, punis hable by a fine not to exceed $4 ,000; confinement in j ail for a term not to exceed 365 days; or both such fine
and confinem ent. Tex. Pen. Code Section 12.21, 2013

. On January 27, 2015 Applicant’s filed his writ f or all three charges. On February 3, 2015, the trial court held a hearing on the writ, and denied it. RR vol. 1 pg. 15. A unified bench trial was held on April 27, 2015

. The Appellant pleaded not guilty to all three charges. R.R. vol.2 pg .16. The tria l court found the
A ppellant guilty of all three charges. The trial court assessed punishment for cause number 141,066

- 1 at one year in the Potter County jail, plus a $4000.00 fine; cause number 141,094

- 1, at one year in the Potter County jail, plus a $4000 .00 fine; and in cause number 141,118

- 1, at one year in the Potter County jail, plus a $4000.00 fine. CR 141,066 pg. 66

- 67, CR 141,094 pg. 68

- 69, CR 141,118 pg. 68

- 69.3

Applicant filed separate appeals on both the denial of his wri t and the
verdict at tri al. This brief only pertains to the denial of the writ. This Court abated the appellate proceedings and ordered the trial court to hold a hearing on whether to appoint counsel for the Applicant on his writ action. As a result of that hearing, appellate counsel was appointed for the Applicant. This Court then reinstated the appellate proceedings.
STATEMENT OF FACTS The Appellee st ipulates that the Statement of Facts as set forth in the Appellant’s brief are correct, save for the section entitled “Writ Hearing February 3, 2015” on page 9. The State would submit its own Statement of Facts for that section only: WRIT HEARING FEBRUARY 3, 2015 The trial court conducted a hearing on Applicant’s writ. Applicant represented himself, with assistance from coun sel. RR vol. 1 pg. 2. Applicant argued that he was being illegally detained on a blue warrant. The blue warrant stated that the charge was Aggravated Assault with a Deadly Weapon, but the
violation itself was that Office Renner with the Amarillo Police D epartment had submitted a report that the Applicant had assaulted Patricia Peek. The blue warrant was issued on July 14, 2015. The felony was dismissed on December 1, 2015. The misdemeanor charges were based on the same facts that had given rise
to the dismissed aggravated assault charge . RR vol. 1 pg. 15.4

Applicant argued that any court could issue a writ for any person unlawfully detained, regardless of where the detainment occurred or what it was based on. RR vol. 1 .pg. 11. The State was unsure w hether the trial court had that type of authority. RR vol. 1 pg. 11. The trial court denied the writ without comment. RR vol. 1 pg. 15.

SUMMARY OF THE STATE’S ARGUMENTS
Issue One , as to whether the trial court erred in denying Applicant’s relief :

a. The harm that Applicant has allegedly suffered has been rendered moot.

If the premise of a habeus corpus application has been destroyed by subsequent developments, than the issue is rendered moot. Since the denial of the writ, Applicant was found guilty on his misdemeanor charges and was revoked off of parole. Since he is no longer in the custody of the Potter County Detention Center, and the blue warrant is no longer in existence, the issue of whether it should have been retracted has been rendered moot. b. T he trial court did not have the authority to grant or deny Applicant’s writ. In a post

- conviction proceeding for a felony, the sole court with authority to hear a request for a writ is the Court of Criminal Appeals. Applicant was a parolee with a final c onviction for a felony. He was being held on a blue warrant, which alleged a violation of Applicant’s parole. This necessarily means that the only court that had the authority to hear his writ was the Court of Criminal Appeals.

c. Even if the trial court ha d the authority to rule on the writ, it was justified in doing so. The Government Code only requires the Parole Board to give a parolee a preliminary hearing within 41 days of revoking his parole if the violation is of an administrative nature. Since5 the Applicant committed a criminal violation of his parole, and the blue warrant was issued because Applicant had assaulted a person , the trial court could justifiably deny Applicant’s writ.

ARGUMENT
THE STATE’S RESPONSE TO ISSUE ONE

a. THE ISSUE HAS BEEN REN DERED MOOT
LEGAL STANDARD A habeus corpus application is an extraordinary remedy

. Bennet v. State , 818 S.W.2d 199, 199 (Tex.Crim.App.

- Houston 1991). When the premise of a habeus corpus application has been destroyed by subsequent development, the
case is rendered moot. Id at 200, ctg. Saucedo v. State , 795 S.W.2d 8, 9 (Tex.App.

- Houston) 1990. When the applicant is no longer subject to pre

- trial confinement, the habeus petition becomes moot. Martinez v. State , 826 S.W.2d 620, 620 (Tex.Crim.App 1992).
PRE SENT CASE In this case, the Applicant appealed the denial of his habeus corpus petition after he had been tried, convicted, and sentenced. He has appeals pending on his
misdemeanor convictions, but the sentence s themselves have been served. The Applican t is no longer in the custody of the Potter County Detention Center, and has since been transferred to the Texas Department of Criminal Justice. These developments have effectively rendered Applicant’s appeal of his habeus corpus
denial moot. The blue wa rrant is no longer in effect. Applicant’s requested relief6

bears out the mootness argument. He has asked for a new trial or to reverse his convictions. Applicant’s trial, conviction, and sentence had nothing to do with his habeus corpus petition, which was based on whether the Parole Board should have recalled its warrant. The misdemeanors that Applicant was on trial for were
irrelevant as to whether the blue warrant was still valid.
b. THE TRIAL COURT DID NOT HAVE AUTHORITY TO RULE
ON APPLICANT’S WRIT
. LEGAL STANDARD County courts at law have original jurisdiction over misdemeanors over which exclusive jurisdiction is not given to the justice courts, and when the fine to be imposed is over 500 dollars. Tex. Code Crim. Proc. Art. 4.07 (2013). A person

c harged with a misdemeanor may apply for a writ of habeus corpus to the county judge in the county where the misdemeanor is alleged to have been committed.
Tex . Code Crim. Proc. Art 11.09 (2013). A writ for habeus corpus is the remedy given to a person who is unlawfully restrained in their liberty. Tex. Code C rim. Proc. Art 11.01 (2013). A county court at law can only have jurisdiction over the
writ when the restraint is based on a conviction or accusation of a misdemeanor. Ex parte Schmidt , Tex.Crim.App. 10 9 S.W.3d 480, 483 ( 2003). The Court of Criminal Appeals has the exclusive jurisdiction over a post

conviction writ of habeus corpus in felony cases. In re Vincent Friemel , No. 07

- 08

- 0216

- CV, 2008 WL 2346396 (Tex.Crim.App

- Amarillo June 4, 2008), ctg.
Boa rd of Pardons and Paroles ex. Rel. Keene v. Court of Appeals for the Eight7

Dist., 910 S.W.2d 481, 483 (Tex.Crim.App. 1995); Tex. Code Crim. Proc. Art. 11.07(3) (Verson Supp. 2007); see also Ex parte Hoang 872 S.W.2d 694 (Tex.Crim.App 1993)

. Parole is a for m of restraint which allows the applicant to pursue remedies under the Texas Code of Criminal Procedure 11.07. Board of
Pardons and Paroles ex Rel. Keene 910 S.W.2d at 483, ctg. Ex Parte Elliot , 746 S.W.2d 762 (Tex.Crim.App. 1988). If the parole has been u nlawfully revoked, the applicant must first b ring it to the attention of the court where the applicant
received his final conviction

. Board of Pardons and Paroles ex Rel. Keene 910 S.W.2d at 483. The convicting court must then review the writ, and if the a pplicant has not shown any facts that would question the underlying validity of the conviction, the court clerk must then transmit a copy of the writ to the Court of Criminal Appeals within 20 days

. Id , citing Tex. Code Crim. Proc. Art. 11.07(3).
PRESENT C ASE In the present case, the Applicant was being held on a parole revocation, not a misdemeanor. The Applicant has argued that the blue warrant should have been lifted once the felony charge was dismissed . A blue warrant is a n arrest

warrant issued by th e Parole Board for a parolee who is suspected of violating their parole . See Ex part White , 400 S.W.3d 92, 93 (Tex.Crim.App. 2013). Applicant was not challenging the misdemeanors that he had been accused of, but
the Parole Board’s continuing custody over h im. Applicant was a parolee who necessarily must have had a final felony
conviction. Therefore, t he proper court, and indeed the only court with authority8

to hear Applicant’s writ, was the Court of Criminal Appeals. The Applicant
should have sent the wr it to the court that convicted him of the felony for which he was on parole for, and which would have then forwarded on to the Court of Criminal Appeals. County courts do not have jurisdiction to hear issues related to parole revocations.
Even if this Co urt wanted to grant Applicant the relief he requests, it could not. Court of appeals can only grant writs in cases where the applicant has been
committed in a civil court proceeding

. Ex Parte Layton , 928 S.W.2d 781 (Tex.Crim.App.

- Amarillo 1996). Furthermor e, the applicant must be physically located in the same district as the appellate court. Id . Since this is not a civil case, and the Applicant is located in a county served outside of the 7 th Court of Appeals jurisdiction, relief cannot be granted to the A pplicant.

c. EVEN IF THE TRIAL COURT HAD JURISDICTION OVER THE WRIT, IT WAS JUSTIFIED IN DENYING IT
LEGAL STANDARD
An appellate court reviews the denial of a writ for habeus corpus de novo, if the resolution of the writ turns on an application of legal standa rds. Ex parte Okere, 56 S.W.3d 846, 854 (Tex.Crim.App 2001). Texas Government Code Section 508.282(a)(1)(a) states that charges against a parolee must be resolved
before the 41 st day after the warrant is executed, if the parolee has only been charged with an administrative violation and no charges for an offense involving anything other than a Class C misdemeanor have been filed. (2013). An9

administrative violation is defined as a technical violation of parole which does not allege criminal conduct. 2014 Tx . Reg. Text 359502 (NS) (2014). A parolee who is the subject of a warrant may be held in custody pending a determination of the facts around the alleged offense, violation of a rule, or condition of release. Tex. Gov. Code Art 508.254(2) (2015).
PRESENT CA SE
The blue warrant was valid because it was not based on an administrative offense. Applicant argues that because the blue warrant was not released after 41 days, it should have been released. However, the Parole Board was only required
to release the w arrant if the Applicant had only committed a technical violation and no charges were brought after the warrant was executed. Here, the Parole Board was not alleging a technical violation but a criminal one: that he had assaulted another person. Appl icant has further argued that because the title of the violation was for Aggravated Assault with a Deadly Weapon, the blue warrant should have been
withdrawn once the felony charge was dismissed. The Parole Board is not automatically prohibited from revok ing a parolee’s parole simply because the charges against the parolee have resulted in something other than a conviction. See Knight v. Estelle , 501 F.2d 963, 964 ( U.S. Fifth. Cir. 1974) (“a parole revocation hearing is not a criminal proceeding. Its purp ose is not to assess guilt or to assign blameworthy acts to the various discrete pigeonholes of the criminal laws. Rather10

it is held to determine whether the attempt by parole to restore the parolee to the
ranks of the carriers and remove him from those o f the carried has failed .”) Furthermore, Applicant’s argument ignores the substance of the violation.
The summary of the violation report stated that the Applicant had assaulted Patricia Peek, as corroborated by an incident report filed by Office Renner of the
Amarillo Police Department. Exhibit 1

. To the Parole D ivision , the actual criminal charge was not so important as the Applicant’s actual conduct. It was issued in good faith by the Parole Board. To give the Applicant his asked

- for relief would
result in a windfall based on how the Parole D ivision chose to title a violation of a parolee, and which would result in a gross perversion of the law.
CONCLUSION Appellant’s contentions are without merit. The trial court did not have the authority to rule on his writ, and even if it had, Applicant’s writ was rightly
denied.
PRAYER Wherefore, the State of Texas prays that the Court denies Applicant’s appeal.

Respectfully submitted,
C. SCOTT BRUMLEY Potter County Attorney

/S/ J. William Ri chmond J. WILLIAM RICHMOND11 Assistant County Attorney 500 S. Fillmore, Room 303 Amarillo, TX 79101 State Bar No. 24085552 Phone: (806) 379

- 2255 Fax : (806) 379

- 2215 Email: william richmond@co.potter.tx.us

C ERTIFICATE OF COMPLIANCE I certify that this document brief was prepared with Microsoft Word 2010 , and that, according to that program’s word

- count function, the sections covered by TRAP 9.4 (i)(1) contain 2,222 words.
/S/ J. William Richmond Assistant County Attorney
CERTIFICATE OF SERVICE A true copy of the State’s brief was delivered to counsel for Appellant, Brooks Barfield Jr. , on this 26 th day of October, 2015.
/S/ J. William Richmond Assista nt County Attorney