### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

ON REMAND

NO. 03-14-00669- CR

Ex parte Justin River Car ter

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2013 -15 9, TH E H ONO RAB LE JACK H . RO B ISO N, JUDGE P RESIDING

O P I N I O N
Appellant J ustin River Carter stands char g ed by in d i ctment with terror istic threa t. See Tex. Penal Code § 22.07(a) (4), (5). Acc ording to th e re co rd , t h e alleg ations set forth in the indictment are based on statements alleg edly posted by appellant on the online social netwo rk i n g service Fa cebook. Appellant filed a pretrial application for writ of habeas corpus challe n gi n g the constitutionalit y of the subsections of the terror istic threa t statute under which he is char g ed. After conducting an evide ntiary hear ing, the trial court de nied re lief. Appellant raises two points of err or on appea l, asser ting that the trial court err ed by
not finding t h e s t atut ory subsections under which he is char g ed fac ially unconstitutional and unconstitutional as applied to him. On orig inal submissi on, we aff i rm ed the trial court’s order deny ing habea s relief

. We analy

zed and reje cted appellant’ s fac ial challeng e to the constitutionalit y of the statutory provisions at issue, see Ex parte Carter , No. 03-14-00669- CR, 2015 WL 5248525,at *1–6 (Tex. App.—Austin Aug

. 31, 20 1 5 ) (m em. op., not desig nated for publication), and

conclude d that appellant’ s “as ap p l i ed ” challenge was not cog nizable in a pretria l writ of habea s
corpus, see id. at 6–7.

Appellant filed a petition for discretionar y rev i ew arg uing that his “as applied” challeng e should f

all within the cate g ory of exceptions to the g ener al rule that claims asser ting “as applied” constituti onality challeng es are not cog ni z ab l e i n a pretria l habea s corpus writ. Be cause

we issued our memorandum opinion befor e the Court of Criminal Appea ls decide d Ex parte Perry , 483 S.W .3d 884, 895–98 (Tex. Crim. App. 2016) (plurality op.), which examined the cate g ories of
“as applied” challeng es that might be cog nizable in a pretria l habea s corpus writ, the court g rante d revie w, vaca

ted our judgme nt, and rema nded the case for our co u rt “t o consider the Court’s discussion in Perry and the eff ects of Perry , if any , on [our court’s] reasoning and analy sis in this

case ” conce rning appellant’ s claim that the statutory provisions at i ssue are unconstitutional as applied to him. See Ex parte Carter , No. PD-1291-15, 2016 WL 3094331, at *1 (Tex. Crim. App. May 25, 2016) (not desig nated for publication). On rema nd, we ag ain aff

irm the trial court’s order deny ing ha

beas r elief.

DISCUSSIO N As we noted in our previous opinion, the indictment in this case alleg es, in rele vant part, that a

ppellant:

PARAGRAPH I did then and there , with the intent to cause impairment or interruption of public communications, public transporta tion, public water , g as or public supply , or other

2public service , threa ten to commit any offe nse i nvolving violence to any person or

proper ty , to wit: by threa tening to “shoot up a kinderg arten , watch the blood rain down and e at the bea

ting he art out of one of them.”

PARAGRAPH I I did then and there , with the i n tent to place the public or a substantial g roup of the public in fea

r of serious bodily injury , threa ten to commit an y o ff ense involving violence to any person or proper ty , to-wit: by threa tening to “shoot up a kinderg arte n, watch the blood rain down a nd eat the be ating hear

t out of one of them.”

The recor d ref

lects t h at t h es e allega

tions are based on statements appellant alleg edly made on the online social networking service Fa cebook. Appellant claims that, when considere d in context, his 1

comments in his Fa cebook post wer e “sar castic, hy perbolic[,] and conditional” and do not constitute

a “true threa t.” Thus, acc ording to appellant, the tr i al co u rt er red by not finding Penal Code sectio ns 22.07(a) (4) and (a) (5), the subsections of the terror istic threa t statute under which he is char g ed, unconstitutional as applied to him and, there fore , err ed in deny ing his application for writ of habe as cor

pus. A claim that a statute is unconstitutional “as applied” is a cl ai m that the statute, althoug h g ener ally constitutional, opera tes u n constitutionally as to the claimant beca use of his

As we noted in o u r p re v i o u s opinion, the record contains a screenshot purportedly from 1 appellant’ s Fa cebook pa g e, which r efle cts a ser ies of thre e stateme nts attributed to appellant:
I ’m f****d in the hea d alrig ht. I think I ’ma SHOOT U P A KI NDERGARTEN
AND WATCH THE B L OOD OF THE I NNOCENT RAI

N DOWN

. . . AND EA T THE B EATI

NG HEA RT OF ON E OF THEM

3particula

r fac ts and circ umstances. State ex rel. Lykos v. Fine , 330 S.W .3d 904, 910 (T ex . C ri m. App. 2011); Gillenwaters v. State , 205 S.W .3d 534, 537 n.3 (Tex. Crim. App. 2006). Consequently ,

an “as applied” constitutional challeng e ty pically may not be resolved pretria l beca use it depends on development of t h e specific fac ts of the case showing how the statute is being applied to the defe ndant. See Lykos , 330 S.W .3d at 910 (“A n ‘as applied’ ch all eng e is broug ht during or after a trial on the merits, for it is only then that the trial judge and revie wing courts have the particula r fac ts and circ umstances of the case neede d to deter mine whether the statute or law has been applied in an unconstitutional manner .”). Rece ntly , the Court of Criminal Appea ls clar ified that while “as applied” challeng es are g ener ally not cog ni z ab l e o n pretria l habea s, cer tain car efully limit ed exceptions exis t. See Perry , 483 S.W .3d at 895–98. T h e co u rt re af fi rmed that cer

tain ty pes of claims may be raised by pretria l habea s beca use the rig hts underly

ing thos e cl ai m s wo u ld be

e f f e c ti v e ly u n d e r mi n e d if n o t v in d ic a

te d b e f o r e tr ia l. I d

. a t 8 9 5 ( c it in g E

x p a r te W e is e , 5 5 S. W. 3 d 6 1 7 , 619 (Tex. Crim. App. 2001); see, e.g. , W eise , 55 S.W

. 3 d at 619 (“[A]n applicant may use pretrial writs to asser

t his or her constitutional protec tions with respe ct to double jeopar dy .”); Ex parte Robinson , 641 S.W

. 2 d 5 52, 555 (Tex. Crim. App. 1982) (conc luding that Fifth Amendment rig ht not to be exposed to double jeopardy must be review able be fore that exposure occur s).
On orig inal submissi on, we overr uled appellant’ s claim t h at t he terror istic threa t
statute was unconstitutional as applied to him on proce dural g rounds. We did not , at t h at t i m e, analy ze t h e s u bstance of appellant’ s claim. I n doing so now (in order to deter mine if appellant’ s claim falls within the cate g ory of limit ed exceptions discussed in Perry ), it has become evident that appellant’ s claim does not actua lly raise an “as applied” challeng e to the constitutionalit y of the

4statutory

provisions under which he is char g ed. Appellant ar g ues that his statements could not be construed as a threa t beca use the evidenc e fails to demonstrate that he made the statements with the requisite criminal intent. He asser ts that “[t] here is no rational interpre tation of the statement[s] 2
that would fit [t hem] under the leg itimate swee p of the Terr oristic Threat statute.” This is an 3

I n his application for writ of habea s corpus, appellant articula ted his arg ument as follows: 2
The statement that [appellant] is al l ege d to have posted on Fa cebook was mere ly hy perbole , and do es not constitute a “true threa t[ .”] The plain lang uag e of the comment was not a thr ea t , condit ional or otherwise, but rathe r an exagg era ted statement, clearly

not intended to be take n literally

. Since [ appellant]’s statements do not constitute a “true threa t” they are protec ted by the First Amendment and Article 1 Section 8. The continued prosec ution of this ca s e v i o lates this constitutional protection. Throug hout his arg ument, appellant r epeats his contention that his comments were not a 3 “true threa t”:
[T] he conte x t is clear tha t [ appellant]’s post was sar castic not a true thre at.

. . . [ Ap pellant] asser

ts [t hat] he did not issue a true threa t. His statement was at mos t car eless talk.

. . . [Appellant] ’s s tatements were not true thre ats, as defined by the S upreme Court of the United States.

. . . The surrounding events indicate that [appellant] made a sarc astic rema rk in response to a statement acc using him of being mentally defe ctive. A rea sonable person would not i n t er p ret [appellant]’s statements to be a serious expression [of a true threa t] as stated.

. . . 5arg um en t t hat the terror istic threa t statutory provisions do not apply to his conduct; it is not

an arg ument that the provisions are unconstitutional when applied to his conduct. Ap p el l ant’s claim advanc es an evidenti ar y s ufficie ncy challeng e under the g uise of an “as applied” constitutional challeng e.

That appella n t ’s arg ument is a veiled sufficie ncy challeng e is most evident in his contention that the statements themselves de monstrate that he la cked the requisite criminal intent:
Among the many g rounds for reve rsing the indictment, of particula r signific ance is the inten t re q u i rement the prosec ution failed to develop. When [appellant]’s [st atements] a

re rea d objectively or subjectively , the g ener al intent to place either a public service , a g roup, or the public in f ear of imminent harm is lacking

. Appellant repe atedly asser ts that the evidenc e prese nted at t h e writ hear ing does not, and cannot, establish the statutory

element of

intent:

The context of his state ment and approa ch prec ludes any intention to elicit fea r in a person or g roup, let alone a spec ific one.

. . . To prosec ute the statute, the ac cused must desire to bring actua l fea r or elicit a rea ction of fea

r to a person or the public. The actua l appre hension of being afr aid is irrele vant, only

the offe nder’ s desire to c rea te fe ar of injury . (Citation omit ted).

Moreove r, it cannot be ignor ed that the alleg ed threa tening statement is initially qualified by

the words. “ I think I [’] ma. . .” which indicates that the s peake r i s only contemplating such an act even if the statement is to be taken seriously

. There is no law in [ this] county that criminalizes thinking of a crime and no re asonable person could consider

a thoug ht a true thre at. 6At no time did [appellant] spec ify as a targ et a person, a g roup, or the public of any

particula r community

. . . . [Appellant] cannot h av e [ the] intent to car ry out a terror istic threa t as descr ibed in Tex. Penal Code § 22.07(a) (4) or (a) (5) as there was no communication t o any one even remotely aff i l i at ed with any school much l ess a kinderg arte n in his reg ion. (Citation to reporter’ s rec ord omitted).

. . . [Appellant] had the purposef ul intent to be inflam m at o ry ; to utiliz e his First Amendment rig hts in a heate d conver sation.

. . . [Appellant] utiliz ed his fre e speec h rig ht to inflict a sarc astic rema rk. He did not purposef

ully or knowing ly intend to cre ate a threa t of imminent bodil y harm to any

person or proper ty

.

. . . [I ]f [appellant]’s statements are construed out of context as a threa t, the statement[s] [do] not meet the ele ments to constitute a threa t outside Const itutional protection. 4

. . . There is no rea listi c way that a jury could find [t hat appellant] h el d t h e s ubjective intent to threaten a

ny one.

The crux of appellant’ s arg ument is that he did not thre aten to c ommit an act of unlawful violence beca use he was making sarc astic hy perbolic comments, and thus he lacke d the requisite intent under the statute. This arg ument asser ts that the statute does not apply to his conduct (bec ause the evidenc e does not demonstrate the requisite statutory element of intent) and raises an evidentiar y sufficie ncy

Presumably by “a threa t outside Constit utional protec tion” appellant is ref err ing to a “true 4 threa t,” which is a threa t to commit a crime involving violence to persons or proper ty

. On orig inal submissi on, we deter

mined that the terror istic threa t statute is limit ed to such threa ts of violence and thus its provisions fall outside the p ro tections of the First Amendment. Ex parte Carter , No. 03-14-00669- CR, 2015 WL 5248525, at *3 (Tex. App.—Austin Aug

. 31, 2015) (mem. op., not desig nated for publication). Thus, appellant’ s asser tion that his statements do not constitute a threa t “outside Constit utional protec tion” rea sserts his arg ument that his statements are not “true threa ts” and do not fa ll within t he purvie w of the te rror istic threat statute. 7challeng e. An “as applied” constitutional challeng e would arg ue that making the statements at issue

did violate the statute—t h at is, his posted comments wer e threa ts to commit unlawful acts of violence with the intent to cause impairment to public se rvice s or to place others in f ear of serious bodily injury (or “true threa ts”)—but he was constitutionally entitled to make these threa ts. Appellant makes no such arg ument. He does not arg ue that the ter m “t h rea tens” as used in the
statut e i s u n constitutionally vag ue as it rela tes to his conduct of posting comments on an online forum. Nor does he arg ue that the particula r circ umstances under which he made his comments

s o me h o w e xe mp t th e s ta

te me n ts f r o m the leg itimate prohibition ag ainst uttering “true threa ts,” wh ic h

are not protec ted under the First Amendment. Appellant fails to explain how the statutory provisions
opera te aga inst him in an unconstit utional manner . He simply arg ues that his comments wer e not “true threa ts” and thus his conduct doe s not violate the statute as a lleg ed.

J udg e Cochran rec og nized a simil ar att em p t t o raise a sufficie ncy revie w in a challeng e to the constitutionality of the ha rassment statute in her

concur renc e in Karenev v . State :

Was this then an “as applied” attack upon the constitutionalit y of the hara ssment statute? No. Appellant does not contend that the statutory word “re peat ed” is inhere ntly vag ue in ref

ere nce to appellant’ s conduct, he mere ly asser ts that he had a leg itimate rea son for sending the emails that he sent on five differe nt occa sions. I t is an underg round attack upon the sufficie ncy of the evidenc e in this particula r case to prove that appellant sent “re peate d” hara ssing emails. Appellant’s defe nses wer e that (1) he did send the emails, but he had a leg i t i m ate rea son for doing so; and (2) th es e em ai l s wer e not of the sort to cause alar m, embar rassment, etc., to his estrang ed wife. His was a g ood jury arg ument, but the jury disag ree d with his fac tual p o s i t i o n , as it was entitled to do. Appellant may put on new clothing and call a sufficie ncy

sheep a constitutional wolf, but that does not make it so.
I think that the court of appea ls was mistaken in tran s fo rm i ng appellant’ s subterra nean sufficie ncy of evidenc e arg ument into a full-fledg ed First Amendment attack upon the fac ial constitutionalit y of the ha rassment statute.
8Karenev v. State , 281 S.W .3d 428, 441 (Tex. Crim. App. 2009) (Cochra n, J ., concur

ring ). L ike the appellant in Karenev , appellant here maintains that he had a leg itimate rea son for making the alleg ed
Fa cebook comments—“[Appellant] wrote a sarc astic statement; a hy perbolic response to the insult he ostensibly rec eived” in an online forum—and thus the statements he made wer e not “true threa ts.” His arg ument that his statements “ar e constitutionally protec ted” is premised upon his contention that the statements do not fall within the conduct proscr ibed by the statute. This does not challeng e the constitutionalit y of the statute as applied to his conduct ; i t challeng es the application of the
statute to his conduct. Maintaining that the statute cannot be applied to his conduct beca use the evidenc e does not establish the requi s i t e s t atut ory element of intent is, in rea lity , an assertion that the evidenc e is insuff

icient. Thus, appe llant’s second point of e rror does not raise an “a s applied” constitutional challeng e.

I n the alterna tive, to the extent that appellant’ s claim might possibly be construed as

an “as applied” chall en ge t o the terror istic threa t statutory provisions under which is char g ed, we conclude that his claim does not fall within the ca teg ory of limited ex ceptions discussed in Perry

. Pretrial habea s, followed by an interlocutory appeal , i s an extraordinary reme dy

. Perry , 483 S.W .3d at 895; Ex parte Paxton , 493 S.W .3d 292, 297 (Tex. App

. — Dallas 2016, pet. ref ’d). “This reme dy is rese rved ‘for situations in which the protec tion of the applicant’ s substantive rig hts or the conser

vation of judicial resour ces would be better ser v ed b y interlocutory revie w.’” Perry , 483 S.W .3d at 895 (quoting W eise , 55 S.W .3d at 620); Paxton , 493 S.W .3d at 2 9 7

. When deter mining whether an issue is cog nizable by pretria l habea s, we consider a v ar i ety of fac tors, including whether the rig hts underly ing the claims would be eff ec ti vely undermined if not vindicated

9before trial and whether the alleg ed defe ct would bring into question the trial court’s power to

proce ed. Paxton , 493 S.W .3d at 297 (citing Perry , 483 S.W .3d at 895–96; W eise , 55 S.W .3d at 619).
T h e C ourt of Criminal Appea ls rec ently clar ified in Perry that “ce rtain ty pes o f

as-a pplied claims may be raised by pretria l habea s beca use the particula

r constitutional rig ht at issue in the as-a

pplied challeng e is the ty

pe that would be eff

ectively undermined if not vindica ted prior
to trial.” Perry , 483 S.W .3d at 896. I n Perry , the court conclude d that case s involving criminal char g es arising from an e lected of ficial’s pe rfor

mance of his duties and implicating the sepa ration of power s qualify as such a cl aim beca use they involve such a rig ht. See id. at 898 (“I f a statute violates separ ation of power s by unconstitutionally infring ing on a public officia l’s own power , then the m ere prosec ution of t he publi c official i s an undue infring ement on his p o wer . And given the disruptive eff

ects of a criminal prosec ution, pr etrial resolution of this ty pe of separ ation of power s claim is nece ssary

to ensure tha t public officia ls c an eff ectively perf orm their duties.”) . The c ourt indicated that these “ef

fec tively undermined if not vindicated prior to trial” rig hts inhere ntly involve

a rig ht to avoid trial. See id. at 899 (“A s we have ex p l ained, a separ ation of power s claim that alleg es infring ement of the g overnor ’s power involves a constitutional rig ht that includes a rig ht to avoid trial by litigating the issue befor e trial.”). Appellant cites to no authority , and we have found none, indicating that the constitutional right to fr ee spe ech inc ludes the rig ht to avoid trial. Whi le the rig ht to fre e speec h is a valuable and important rig ht, w e cannot discern how it is a rig ht tha t is undermined if not vindicated befor e trial as there i s ad eq u at e rec ourse afte r trial (via appea l) to

reme dy the violation of the rig ht. I n contra st to the separ ation of power s claim advanc ed in Perry , appellant fails to show that the “disruptive eff ects” of underg oing a criminal prosecu t i on here

10interfe re with appellant’ s exercise of his rig ht to fre e speec h such that p re t ri al i nterve ntion is

war rante d to safegu ar d the right and his ability to further exercise it. Unlike Perry , the nature of 5
the consti tutional rig ht at i ssue in this case doe s not entitle appellant to raise this claim by pretria l habea s corpus. See P erry , 483 S.W .3d at 895–98.

I n analy zing his claim under Perry , appel l an t asser ts that the issue of “judicial eff iciency ” is sufficie nt to war rant pretria l consideration in his case beca u s e “[ t ]he statement’s content is undisputed” and “ [t ]here is no dispute over the statement made .” He maintains that the

rec ord “fr om the extensive [writ] hear ing” allows a deter mination that his statements “we re mere ly hy perbole and not a true threa t,” i.e., that his conduct does not fall within the terror istic threa t statute, and urg es this Court to make that deter mination. Howeve r, to support his contention that his
statem en t s wer e not “true threa ts” but wer e instead sarc astic comments, appellant relies on the
context in which the statements wer e made. He observes that “sar casm in conver sation relies on
context to indicate a meaning other than the plain meaning ” of the words alone and that “[t] he usag e

As “disruptive eff

ects” interfe ring with using his rig ht to fre e speec h, appellant cites to the 5 p u rp o rted g ag g ing eff

ect of pretria l incar cer ation and his bond condition that preve nts him fr o m acc essing the internet. Howeve r, the “disruptive eff ects” of pretria l incar cer ation and b o nd conditions are restric tions that are inhere nt in the criminal justice sy stem, imposed on all defe ndants not only appellant “for say ing something that fits within First Amendment protec tion.” Moreove r, these restric tions mere ly impact the manner in which appellant’ s fre e speec h rig ht might be exer c ise d under the curr ent circ umstances. Contrary to appellant’ s contention, t h es e restric tions, while inconvenient, do not interfe re with the exercise of his rig ht to fre e speec h to the extent that “the State has eff ectively shut [appellant] up.” Nor do they opera te in a manner simil ar to how the “disruptive effec t s ” resulting from a criminal prosec ution that violated the separ ation of power s unconstitutionally infring ed on Gover nor Perry ’s power to eff

ectively perf

orm his duties as a public serva nt. See E x parte Pe rry , 483 S.W .3d 884, 898 (Tex. Crim. App. 2016). 11of sar casm is identified by context.” Whi le insisting that “sa rca sm can be construed pe rfe ctly in words alone,” he acknow ledg es that “this approa ch require s the entire statement be considere d in
context.” I n this case, that c ontext has y et to be fully develope d by

the pre sentation of evide nce. 6
Even as appe llant asserts that the he aring on the writ wa s sufficie nt to establish the

co n tent of the statements made, he conce des that the State might have other evidenc e t o o ff er i n provin g i t s ca s e. Thoug h he disparag es the quality of that evidenc e, assessing the value of such evidenc e falls within the purview of the fac t finder at trial, not this Court on an interlocutory appea l. Cf. Karenev , 281 S.W .3d at 441. Appellant seeks a pretria l deter mination about what the evidenc e establishes prior to such evidenc e being proper ly prese nted. Whil e the content of the statements themselves may be undisputed, the intent ac company ing those statements is in dispute. The S tate believes, as indicated by the alleg ations in the indictment, that appellant harbor ed t h e intent to

co m m u n icate a threa

t to commit unlawful acts of violence ag ainst persons or proper ty wh en h e posted his comments on Fa cebook. Appellant denies such an intent a nd claims that his state ments

Whil e appellant relies on evidenc e adduce d at the writ hear ing, we observe that the Court 6 of Criminal Appea ls has conclude d that the trial court does not have authority to c onduct a pretria l evidentiar y hear ing w ith reg ard to a

defe ndant’s “a s applied” c onstitut ional challeng e to a statute:
Be cause there is no basis under Texas la w to conduct a

pretria l evidentiary

hear ing to deter mine the “as applied” constitutionalit y of a state penal or criminal proce dural statute, we conclude that the trial judge does not have leg al authority to conduct any such pretrial evidentiar

y hear ing and m ake any s u ch pretria l decla ratory judgme nt. He is ac ting be y ond the scope of his lawful a uthority

. State ex rel. Lykos v. Fine , 330 S.W .3d 904, 919 (Tex. Crim. App. 2011). Nothing in the rec ord in this case su gges t s t hat the prosec utors produce d the entirety of the State’s evidenc e at the writ hear ing in o rder to prove appellant’ s g uilt bey ond a rea sonable doubt. Appellant cites to no authority , nor ar e we awa re of any , that require d them to do so.

12wer e sarcastic hy perbole and not “true threa ts.” This is a factual determination to be made by the fa ct fi nder at the appropr iate time, which is not an appellate court befor e trial. Acc ording ly , we
cannot conclude that the interests of “judicial eff iciency ” wa rrant pretria l consideration of appellant’ s claim.

CONCLUSION

We conclude tha t a

ppellant’s claim re g arding the constitutionality of the ter roristic threa t statute as applied to him does not in fac t asser t an “as applied” constitutional challeng e to the statutory provisions under which he is char g ed. I nstead, by contesting the application of the statute
to his cond u ct (base d on the lack of evidenc e demonstrating the statutory element of intent), appellant raises a challeng e to the sufficie ncy of the evidenc e. An evidentiar y sufficie ncy challeng e
may not be ra ised in a pre trial habe as cor pus writ.
Moreove r, g iven the limit s of pretria l habea s revie w, as detailed rec ently by the Court of Criminal Appea ls, we conclude that appellant’ s claim—if it is construed as raising an “as applied” constitutional challeng e—is not cog nizable in a pretria l habea s corpus wr i t b ecause resolving the claim would require resolving disputed fac tual controve rsies (appe llant’s intent w hen he made the statements) and would require deter mining whether the statute applies t o appellant’ s particula r

c ir cumstance s (by asce rtaining whether appellant’ s comments in his Fa cebook post constitute a “ tr u e threa t” and ther efor e fa ll outsi de the statute) notwithstanding the e x istence of an adequate re medy by appea l afte r trial (an evid en t iary sufficie ncy challeng e reg arding the element of intent). See

13Paxton , 493 S.W .3d at 303; see also W eise , 55 S.W .3d at 619 (“N either a trial court nor an appellate
court should enter

tain an application for writ of h ab ea s co rp us when there is an adequate reme dy by appea l.”).
For these rea sons, w e overr ule appellant’ s second point of err or and aff irm the trial
court’s or der de ny ing ha

beas r elief.

__________________________________________

Melissa Goodwin, Jus tice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field
Affir med on Remand Filed: January

6, 2017 Publis h

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