COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

NUMBERS 13-14-00238-CV

 13-14-00239-CV

 13-14-00240-CR

EX PARTE JERRY HARTFIELD

 

On appeal from the 130th District Court 

of Matagorda County, Texas.

 

NUMBER 13-14-00344-CR

IN RE JERRY HARTFIELD

 

On Petition for Writ of Prohibition.

 

OPINION

Before Justices Rodriguez, Garza, and Benavides 

Opinion by Justice Rodriguez
2

In June 1977, a jury convicted appellant Jerry Hartfield of capital murder and 

sentenced him to death. On September 17, 1980, the Texas Court of Criminal Appeals 

reversed his conviction and ordered a new trial. Hartfield v. State (Hartfield I), 645 

S.W.2d 436, 441 (Tex. Crim. App. 1980) (en banc) (reversing and remanding for a new 

trial on the basis that the State violated Hartfield’s rights under the Sixth and Fourteenth 

Amendments by striking a juror for cause because of her reservations about the death 

penalty). The court of criminal appeals issued its mandate on March 4, 1983. On March 

15, 1983, the Governor purportedly commuted Hartfield’s sentence to life in prison, and 

the Texas Department of Criminal Justice maintained custody of Hartfield.

In 2006 and 2007, Hartfield asserted his speedy-trial claims through an article 

11.07 post-conviction habeas petition.

1 See TEX. CODE CRIM. PROC. ANN. art. 11.07 

(West, Westlaw through 2013 3d C.S.) (setting out the procedure for seeking postconviction habeas relief in a noncapital felony case). When the state courts denied him 

relief, Hartfield filed a pro se federal habeas application in the United States District Court. 

The federal district court construed Hartfield’s application as a pretrial habeas application

under section 2241 and dismissed his speedy-trial claims, without prejudice, as 

unexhausted. See Hartfield v. Thaler (Hartfield II), 498 Fed. App’x. 440, 444 (5th Cir. 

2012) (per curiam) (outlining the course of Hartfield’s proceedings in federal court); see 

also 28 U.S.C.A. § 2241(c)(3) (West, Westlaw through P.L. 113–120). Both parties 

appealed that determination, and the Fifth Circuit certified the following question to the 

Texas Court of Criminal Appeals: “What was the status of the judgment of conviction 

 

1 We note that Hartfield’s attempts to compel a new trial by filing petitions for writ of mandamus in 

state and federal courts during this time were unsuccessful.
3

after these events[, the issuance of the mandate and the commutation of the sentence,] 

occurred?” Hartfield II, 498 Fed. App’x. at 445. In 2013, after the court of criminal 

appeals answered “[t]he status of the judgment of conviction is that [Hartfield] is under no 

conviction or sentence,” see Hartfield v. Thaler (Hartfield III), 403 S.W.3d 234, 240 (Tex. 

Crim. App. 2013), the Fifth Circuit affirmed the federal district court’s judgment dismissing 

Hartfield’s section 2241 application without prejudice. Hartfield v. Stephens (Hartfield 

IV), 536 Fed. App’x. 455, 456 (5th Cir. 2013).

On June 20, 2013, Hartfield again sought to enforce his constitutional right to a 

speedy trial in state court, this time by filling an article 11.08 pretrial habeas petition in 

each of three trial-court cause numbers, two civil and one criminal. See TEX. CODE CRIM.

PROC. ANN. art. 11.08 (West, Westlaw through 2013 3d C.S.) (setting out the procedures 

for post-indictment, pre-conviction habeas petitions that challenge confinement). In the 

criminal cause, Hartfield also filed a motion to dismiss the 1976 indictment on speedytrial grounds, which the trial court later denied. In April 2014, after a December 

evidentiary hearing on Hartfield’s pretrial habeas petitions, the trial court filed its findings 

of fact and conclusions of law, concluding, in sum, the following: “In the final balance, 

this [trial] court concludes that the four Barker factors weighs [sic] against finding a 

speedy[-]trial violation.” See Barker v. Wingo, 407 U.S. 514, 515 (1972) (setting out the 

following four-factor weighing and balancing test for assessing a claim that the speedytrial right of the Sixth Amendment has been violation: (1) length of the delay, (2) reason 

for the delay, (3) assertion of the right, and (4) prejudice to the accused). On April 17, 

2014, the trial court entered an order denying Hartfield’s petitions for writ of pretrial 
4

habeas corpus and his motion to set aside the indictment. Hartfield appealed from the 

trial court’s denial of his habeas petitions.

By a single issue on appeal, Hartfield contends that his constitutional right to a 

speedy trial has been violated. See id. (explaining that the right to a speedy trial is 

guaranteed by the Sixth Amendment to the United States Constitution and is applicable 

to the states through the Fourteenth Amendment). On May 14, 2014, this Court granted 

Hartfield’s unopposed motion to give preferential treatment in this Court’s scheduling. 

See TEX. R. APP. P. 43.6 (“The court of appeals may make any other appropriate order 

that the law and the nature of the case require.”). With the issuance of this opinion, we 

have handled the cases expeditiously because of the significant issue involved. See id.; 

see also TEX. GOV’T CODE ANN. § 21.001(b) (West, Westlaw through 2013 3d C.S.) (“A 

court shall require that proceedings be conducted with dignity and in an orderly and 

expeditious manner and control the proceedings so that justice is done.”).

The trial court then set a trial on this matter for September 22, 2014. Hartfield 

responded by filing, in this Court, a petition for writ of prohibition and motion for 

emergency stay of the September trial setting, pending our resolution of this appeal. On 

June 25, 2014, we entered an order staying the trial court’s proceedings.

Even though this case documents what appears to be the longest gap between 

indictment and trial in any speedy-trial case that has come before this Court or any other 

court, the uniqueness and fundamental differences that underlie Hartfield’s speedy-trial 

claim, no matter how extraordinary, cannot establish its independent pretrial appealability. 

See United States v. MacDonald, 435 U.S. 850, 857 n.6 (1978). Because a pretrial 
5

habeas proceeding is not an appropriate avenue for raising a speedy-trial claim, we 

vacate the portion of the trial court’s order denying Hartfield’s petitions for writ of habeas 

corpus, and we dismiss Hartfield’s appeals. See Ex parte Barnett, 424 S.W.3d 809, 811 

(Tex. App.—Waco 2014, no pet.) (dismissing the appeal because Barnett’s pretrial 

habeas proceeding was not an appropriate avenue for raising his penalty-range 

challenge) (citing Ex parte Doster, 303 S.W.3d 720, 727 (Tex. Crim. App. 2010) 

(dismissing Doster’s appeal after vacating the court of appeals’ opinion that affirmed the 

trial court's denial of his writ of habeas corpus)). Having resolved the appeals, we 

dismiss the writ of prohibition as moot and lift the stay in the trial court’s proceedings.

I. BACKGROUND2

A. Conviction, Appeal, and Purported Commutation of Sentence: 1977–1983

In 1977, a jury convicted Hartfield of the capital murder of Eunice Lowe and 

sentenced him to death. On direct appeal, Hartfield complained of a Witherspoon 

error—specifically that a member of the venire panel was improperly excluded from the 

jury. See Witherspoon v. Illinois, 391 U.S. 510, 522 (1968) (holding “that sentence of 

death cannot be carried out if the jury that imposed or recommended it was chosen by 

excluding veniremen for cause simply because they voiced general objections to the 

death penalty”). The court of criminal appeals agreed, and on September 17, 1980, it 

 

2 We have taken the procedural history from Hartfield v. Thaler (Hartfield II), 498 Fed. App’x. 440, 

441–45 (5th Cir. 2012) (per curiam), the Fifth Circuit’s opinion certifying the question of whether the prior 

judgment of conviction had been effectively vacated to the Texas Court of Criminal Appeals, from Hartfield 

v. Thaler (Hartfield III), 403 S.W.3d 234, 236–38 (Tex. Crim. App. 2013), the opinion by the Texas Court of 

Criminal Appeals on the certified question, and from Hartfield v. Stephens (Hartfield IV), 536 Fed. App’x. 

455, 456 (5th Cir. 2013), the Fifth Circuit’s opinion affirming the federal district court’s judgment dismissing 

Hartfield’s section 2241 application without prejudice.
6

reversed the judgment and remanded for a new trial.

On October 2, 1980, the State sought leave to file a motion for rehearing, urging 

the court of criminal appeals to reform the sentence to life imprisonment instead of 

remanding for a new trial. Alternatively, the State asked for a reasonable period of time 

to seek a commutation of Hartfield’s sentence from the Governor. On November 26, 

1980, the court of criminal appeals granted the motion for leave to file the motion for 

rehearing. However, on January 26, 1983, it denied the State’s motion for rehearing, 

refusing the State’s request to reform the sentence and holding that the fifteen-day period 

between the rendition of its decision and the date that the mandate issues was a 

reasonable time to seek commutation of Hartfield’s sentence from the Governor. On 

March 1, 1983, the court of criminal appeals denied the State’s motion for leave to file a 

second motion for rehearing. Mandate issued on March 4, 1983, and the trial court 

acknowledged receipt of the mandate on March 9, 1983.

On March 14, 1983, the Board of Pardons and Paroles sent a letter to the Governor 

recommending that he commute Hartfield’s death sentence to life. The following day, 

March 15, 1983, the Governor signed proclamation number 83-04805 purportedly 

commuting Hartfield’s sentence from death to life imprisonment. On March 23, 1983, 

the trial court returned a postcard to the court of criminal appeals stating that the execution 

of the mandate had been carried out. The card read “Executed on March 16, 1983 by 

Governor Mark White,” with a notation stating, “Death Sentence commuted to Life by 

Governor.” No further action was taken, and the Texas Department of Criminal Justice 
7

maintained custody of Hartfield.3

B. Proceedings in State and Federal Courts: 2006–2013

On November 14, 2006, Hartfield filed a pro se petition for writ of habeas corpus 

in state court, seeking relief under article 11.07 of the code of criminal procedure. See

TEX. CODE CRIM. PROC. ANN. art. 11.07. On November 27, Hartfield supplemented his 

petition with a speedy-trial claim. The district court forwarded Hartfield’s petition and 

supplement to the Texas Court of Criminal Appeals. Also, on January 4, 2007, Hartfield 

filed a pro se petition for writ of mandamus in the court of criminal appeals, seeking to 

compel a new trial. On January 31, 2007, without written order, the court of criminal 

appeals denied Hartfield’s habeas petition and his petition for writ of mandamus. On 

April 22, 2007, Hartfield filed a second pro se petition for writ of habeas corpus, which the 

court of criminal appeals dismissed on May 30, 2007, as a subsequent petition under 

article 11.07, section 4(a)–(c) of the Texas Code of Criminal Procedure. See id.

Hartfield then filed a pro se application for writ of habeas corpus in the United 

States District Court for the Southern District of Texas, raising two claims: (1) that his 

right to due process had been denied by the trial court’s failure to retry him; and (2) that 

he was being detained by an illegal sentence. The district court referred the application 

to a magistrate judge, who, on October 3, 2008, appointed a federal public defender as 

counsel for Hartfield. The magistrate judge later concluded, in relevant part, that 

Hartfield was not in custody pursuant to a judgment of a state court and that his claim 

 

3 The trial court set out, among others, the following finding of fact: “Hartfield remained 

incarcerated in the Texas Department of Criminal Justice, Institutional Division, from the date the mandate 

issued until June 28, 2013, when the Matagorda County [S]heriff [D]eputies executed the bench warrant by 

the 130th [D]istrict [C]ourt.”
8

was actually a pre-conviction habeas petition. However, because Hartfield was confined 

in the Eastern District of Texas, the case was transferred there.

A magistrate judge for the Eastern District likewise construed Hartfield’s 

application as a pretrial habeas application under section 2241, recommended that 

Hartfield’s application be dismissed without prejudice, and concluded that Hartfield had 

failed to exhaust state-law remedies. The federal district court adopted the magistrate 

judge’s recommendations, holding that (1) Hartfield was not in custody pursuant to the 

judgment of a state court; and (2) Hartfield’s claims were not properly before it because, 

having taken the procedurally improper step of directly asking the court of criminal 

appeals for relief, Hartfield had yet to properly seek relief from the state trial court. The 

district court required Hartfield to proceed in state court with his claim that the indictment 

should be dismissed because a new trial would violate his Sixth Amendment right to a 

speedy trial. On April 29, 2011, the federal district court dismissed Hartfield’s application

without prejudice.

Both parties appealed to the Fifth Circuit, the State challenging the holding that 

Hartfield was not in custody pursuant to a judgment, and Hartfield appealing from the

requirement that he exhaust his speedy-trial claim. On November 28, 2012, finding no 

controlling state precedent regarding the status of Hartfield’s conviction and sentence, 

the federal court of appeals certified the following question to the Texas Court of Criminal 

Appeals: Whether the judgment of conviction had been effectively vacated prior to the 

1983 commutation.

On June 12, 2013, the court of criminal appeals answered the Fifth Circuit’s 
9

certified question, determining that no judgment of conviction existed after mandate 

issued on March 4, 1983. The court of criminal appeals reasoned that with no conviction 

and no sentence to reduce, the governor’s March 15, 1983 commutation order had no 

effect. The court of criminal appeals also agreed that Hartfield had not exhausted his 

state remedies. The Fifth Circuit then affirmed the federal district court’s order 

dismissing Hartfield’s speedy-trial claim without prejudice, as unexhausted.

C. Proceedings in State Court: 2013 to Present

On June 20, 2013, Hartfield filed three petitions for writ of habeas corpus pursuant 

to article 11.08.4 See id. art. 11.08. On September 4, 2014, the State filed a motion to

dismiss Hartfield’s petitions, arguing that his speedy-trial claim was not cognizable in such 

an article 11.08 petition. The trial court denied the State’s motion on November 27, 

2013. On December 17, 2013, Hartfield filed a motion in the trial court to set aside his 

 

4 Hartfield filed a petition for writ of habeas corpus in each of the following: (1) Civil Cause Number

13-E-0324 (appellate cause number 13-14-00238-CV) in the Matagorda County District Court; (2) Civil 

Cause Number 13-E-0325 (13-14-00239-CV) in the Matagorda County District Court; and (3) Criminal 

Cause Number 7794 in the 329th District Court of Wharton County, Texas. On July 29, 2013, Cause 

Number 7794 was transferred to Criminal Cause Number 13-0334 (13-14-00240-CR) in the Matagorda 

County District Court. 

During a preliminary hearing below, Hartfield informed the trial court that, to avoid redundancy, he 

would pursue his petition only in Criminal Cause Number 13-0334. However, the petitions in Civil Cause 

Numbers 13-E-0324 and 13-E-0325 were neither withdrawn nor dismissed, and the trial court’s order 

denied Hartfield’s petitions for writ of habeas corpus filed in those cause numbers as well as in Criminal 

Cause Number 13-0334.

On appeal, Hartfield has advised this Court that, out of an abundance of caution, he filed three 

notices of appeal, two civil and one criminal. Upon receipt, we docketed the three notices separately, two 

as civil appeals and one as a criminal appeal. Now, the State respectfully suggests that we have not 

properly docketed the two civil appeals because our decision will ultimately be appealable to the Texas 

Court of Criminal Appeals for an article 11.08 determination. We share each party’s concern. Yet this 

Court does not have the ability to re-characterize an appeal filed from a trial-court cause number that an 

appellant prudently specifies. Following this appeal, we propose that the trial court and the parties take 

any necessary action to resolve this matter.
10

indictment in the criminal case, Cause Number 13-0334.

On December 19, 2013, the trial court heard Hartfield’s habeas petitions and, on 

December 27, 2013, ordered additional briefing. Both parties complied. Because no 

order was forthcoming, on April 7, 2014, Hartfield filed a petition for writ of mandamus in 

this Court. We dismissed the petition as moot when the trial court entered its order on 

Hartfield’s petitions for writ of habeas corpus as discussed below. In re Hartfield, No. 

13-14-00210-CR, 2014 WL 1514171, at *1 (Tex. App.—Corpus Christi April 15, 2014, 

orig. proceeding) (per curiam) (mem. op., not designated for publication).

On April 17, 2014, the trial court entered an order denying Hartfield relief on his 

three pretrial habeas petitions. In its April 17, 2014 order, the trial court also denied 

Hartfield’s motion to set aside the indictment. The trial court later filed thirty-five pages 

of findings of fact and conclusions of law addressing Hartfield’s speedy-trial claim and 

concluding that the Barker factors weighed against a speedy-trial violation.5

On April 25, 2014, Hartfield appealed the trial court’s order denying his pretrial 

 

5 As part of its conclusions of law, the trial court provided the following chart summarizing its 

analysis of the Barker factors.

Barker v. Wingo Factor Finding Weighs Against the Degree

Length of the Delay

Over 30 years from 

mandate to instant 

motion

State Triggers Barker review

 

Reason for Delay State’s Negligence State Not as heavily as bad 

faith or intentional delay

Defendant’s assertion 

of the right to speedy 

trial

Acquiescence for over 

23 years; no filings 

directly in the trial court

Hartfield Heavily

Prejudice to the 

Accused

Over 30 years pre-trial 

incarceration; 

presumed prejudice, 

extenuated

State Slight
11

habeas petitions. Hartfield did not appeal the trial court’s order denying his motion to set 

aside the indictment, as that avenue of appeal, as will be discussed later in this opinion, 

is available only post-conviction.

On June 24, 2014, Hartfield filed a petition for writ of prohibition and motion for 

emergency stay in this Court. In his petition, Hartfield informed us that the trial court had 

scheduled the trial in this matter for September 22, 2014. He alleged that the trial court

had done so in an attempt to “circumvent this Court’s ability to determine whether 

Hartfield’s right to a speedy trial was violated.” See Gano v. Villarreal, 745 S.W.2d 586, 

587 (Tex. App.—Corpus Christi 1988, orig. proceeding) (setting out that a writ of 

prohibition may issue to prevent, among other things, a lower court from interfering with 

a higher court’s determination of a case pending on appeal). Hartfield argued that he 

was entitled to have the trial stayed. We granted an emergency stay and requested a 

response, which the State filed on June 19, 2014. We then stayed the trial court 

proceedings, pending resolution of the appeals.

6

II. ISSUES PRESENTED

On appeal, Hartfield brings the following issue: “Whether the Sixth Amendment 

right to a speedy trial is violated when the State of Texas confines a man to the 

penitentiary for more than thirty years following a decision by the State’s highest court to 

provide that man with a new trial.” By a number of sub-issues, Hartfield challenges 

relevant findings of fact and conclusions of law that the trial court entered following its 

denial of Hartfield’s petitions for a pretrial writ of habeas corpus. In sum, Hartfield claims 

 

6 We consider Hartfield’s appeals and his petition for writ of prohibition in this consolidated opinion.
12

that the trial court should have found the first Barker factor weighed heavily in favor of 

Hartfield, the third factor weighed slightly in his favor or slightly against him, and the fourth 

factor weighed heavily in his favor, leading to the conclusion that Hartfield’s right to a 

speedy trial has been violated. See Barker, 407 U.S. at 533; Cantu v. State, 253 S.W.3d 

273, 280 (Tex. Crim. App. 2008); see also U.S. CONST. amend. VI (“In all criminal 

prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial 

jury of the State and district wherein the crime shall have been committed . . . .”).

In response, the State asserts that Hartfield’s speedy-trial complaint is not 

cognizable in a petition for a pretrial writ of habeas corpus. Alternatively, the State 

contends that, should we conclude that Hartfield’s complaint is cognizable; his Barkerfactor arguments are without merit. Because the threshold determination of whether 

Hartfield’s claim is even cognizable in a pretrial habeas petition is dispositive of all 

appeals, we address it first.7 See Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App.

2010) (“[W]hether a claim is even cognizable on pretrial habeas is a threshold issue that 

should be addressed before the merits of the claim may be resolved.”); see also TEX. R.

APP. P. 47.1.

III. DISCUSSION

A. Applicable Law

The writ of habeas corpus is the remedy to be used when any person 

is restrained in his liberty. It is an order issued by a court or judge of 

competent jurisdiction, directed to any one having a person in his custody, 

or under his restraint, commanding him to produce such person, at a time 

and place named in the writ, and show why he is held in custody or under 

restraint.

 

7 Because the facts and issues are the same in each case, we address them in one opinion.
13

TEX. CODE CRIM. PROC. ANN. art. 11.01 (West, Westlaw through 2013 3d C.S.). Article 

11.08 provides for a pretrial writ of habeas corpus:

If a person is confined after indictment on a charge of felony, he may apply 

to the judge of the court in which he is indicted; or if there be no judge within 

the district, then to the judge of any district whose residence is nearest to 

the court house of the county in which the applicant is held in custody.

Id. art. 11.08; see id art. 11.07 (providing for a post-conviction writ of habeas corpus).

A pretrial habeas, followed by an interlocutory appeal, is an “extraordinary 

remedy.” Ex parte Ellis, 309 S.W.3d at 79. Because it is an extraordinary remedy,

“appellate courts have been careful to ensure that a pretrial writ is not misused to secure 

pretrial appellate review of matters that should not be put before appellate courts at the 

pretrial stage.” Ex parte Ragston, 402 S.W.3d 472, 475 (Tex. App.—Houston [14th Dist.] 

2013), aff'd sub nom. Ragston v. State, 424 S.W.3d 49 (Tex. Crim. App. 2014) (citing Ex 

parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010)). Neither a trial court nor an 

appellate court should entertain a petition for writ of habeas corpus when there is an 

adequate remedy by appeal. Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App.

2001). “If a non-cognizable claim is resolved on the merits in a pretrial habeas appeal, 

then the pretrial writ has been misused, and the State can appropriately petition [the court 

of criminal appeals] to correct such misuse.” Ex parte Ellis, 309 S.W.3d at 79.

In Ex parte Weise, the Texas Court of Criminal Appeals succinctly summarized its 

holdings on the types of claims that are cognizable in a pretrial writ of habeas corpus:

[A]n applicant may use pretrial writs to assert his or her constitutional 

protections with respect to double jeopardy and bail. We reasoned that 

these protections would be effectively undermined if these issues were not 

cognizable. Conversely, we have held that an applicant may not use a 

pretrial writ to assert his or her constitutional rights to a speedy trial, 
14

challenge a denial of a pretrial motion to suppress, or make a collateral 

estoppel claim that does not allege a double jeopardy violation. These 

issues are better addressed by a post-conviction appeal.

55 S.W.3d at 619–20 (footnotes omitted). In other words, an alleged violation of a 

defendant’s Sixth Amendment right to a speedy trial cannot be raised by pretrial habeas 

because a ruling on such an issue is not entitled to interlocutory review. MacDonald, 

435 U.S. at 863; Ex parte Doster, 303 S.W.3d at 724; Ex parte Weise, 55 S.W.3d at 620;

Ex parte Graves, 271 S.W.3d 801, 807 (Tex. App.—Waco 2008, pet. ref'd) (denying 

appellant’s pretrial writ of habeas corpus speedy-trial claim that “his due process rights 

[would be] violated [if he were] re-tried fourteen years after the original trial, when the 

delay was a result of intentional prosecutorial misconduct,” on the basis that his claim 

was not cognizable). As the United States Supreme Court observed:

There perhaps is some superficial attraction in the argument that the right 

to a speedy trial . . . must be vindicated before trial in order to insure that no 

nonspeedy trial is ever held. Both doctrinally and pragmatically, however, 

this argument fails. Unlike the protection afforded by the Double Jeopardy 

Clause, the Speedy Trial Clause does not, either on its face or according to 

the decisions of this Court, encompass a “right not to be tried” which must 

be upheld prior to trial if it is to be enjoyed at all. It is the delay before trial, 

not the trial itself, that offends the constitutional guarantee of a speedy trial. 

If . . . an accused [is deprived] of his right to a speedy trial, that loss, by 

definition, occurs before trial. Proceeding with the trial does not cause or 

compound the deprivation already suffered.

MacDonald, 435 U.S. at 860–61.

Instead, the “remedy [for an alleged violation of one’s constitutional right to a 

speedy trial] is a pretrial motion to set aside the charging instrument on speedy-trial 

grounds.” Ex parte Graves, 271 S.W.3d at 807. And while the denial of relief on a 

pretrial writ of habeas corpus in certain instances may be appealed immediately, Ex parte 
15

Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005) (per curiam); see Ex parte Weise, 55 

S.W.3d at 619–20, the denial of a speedy-trial pretrial motion to quash an indictment may 

be appealed only after conviction and sentencing. See Ex parte Smith, 178 S.W.3d at 

801; see also MacDonald, 435 U.S. at 860–61. Finally, in MacDonald, the United States 

Supreme Court stated that “‘[a]ppeal rights cannot depend on the facts of a particular 

case.’ The factual circumstances that underlie a speedy trial claim, however 

‘extraordinary,’ cannot establish its independent appealability prior to trial.” 435 U.S. at 

857 n.6 (quoting Carroll v. United States, 354 U.S. 394, 405 (1957)).

B. Standard of Review

We review a trial court's decision to grant or deny a writ of habeas corpus for abuse 

of discretion. See Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006); see 

also Ex parte Cedillo, No. 13-09-00219-CR, 2010 WL 2136607, *2 (Tex. App.—Corpus 

Christi May 27, 2010, no pet.) (mem. op., not designated for publication). However, if 

the resolution turns on an application of legal standards, we review the determination de 

novo. See Sandifer v. State, 233 S.W.3d 1, 2 (Tex. App.—Houston [1st Dist.] 2007, no 

pet.) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc)). 

Here, the State asserts that the trial court misapplied the law when, in this pretrial habeas 

proceeding, it reviewed the merits of Hartfield’s non-cognizable speedy-trial claim. So, 

in this case, we review the trial court's denial of Hartfield’s pretrial habeas petitions de 

novo. See id.

C. Discussion

1. Motion to Dismiss the Indictment
16

In the present case, Hartfield filed a pretrial motion to dismiss his indictment, which 

the trial court denied. Based on the case law set out above, over which we lack that 

authority to overturn, see State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.—Austin 2006) 

(“As an intermediate court, we lack the authority to overturn the court of criminal 

appeals.”), aff'd sub nom. State v. Colyandro, 233 S.W.3d 870, 885 (Tex. Crim. App.

2007), because this issue is better addressed by a post-trial appeal, see MacDonald, 435 

U.S. at 863; Ex parte Weise, 55 S.W.3d at 620, Hartfield has an adequate remedy at law 

by raising his speedy-trial claim on direct appeal of an underlying murder conviction, if 

any, on the retrial of his case. See Ex parte Graves, 271 S.W.3d at 807; see also TEX.

CODE CRIM. PROC. ANN. art. 27.03 (West, Westlaw through 2013 3d C.S.) (governing the 

grounds on which a motion to set aside an indictment may be sought); id. art. 28.061

(West, Westlaw through 2013 3d C.S.) (“If a motion to set aside an indictment, 

information, or complaint for failure to provide a speedy trial is sustained, the court shall 

discharge the defendant.”); id. art. 44.01(a)(1) (West, Westlaw through 2013 3d C.S.)

(providing that the State may appeal when the trial court grants a motion to dismiss an 

indictment). In other words, Hartfield’s post-conviction appeal of the trial court’s denial 

of his motion to dismiss his indictment is his avenue to assert his speedy-trial claim, not 

the drastic remedy of pretrial habeas relief. See Ex parte Doster, 303 S.W.3d at 724; Ex 

parte Weise, 55 S.W.3d at 620; Ex parte Jones, 449 S.W.2d 59, 60 (Tex. Crim. App. 

1970). Were we to entertain Hartfield’s petitions and resolve his speedy-trial claim on 

the merits in this pretrial habeas appeal, we would be misusing the pretrial writ. See Ex 

parte Ellis, 309 S.W.3d at 79; see also Ex parte Weise, 55 S.W.3d at 619. For if it is 
17

determined on direct appeal that Hartfield has been deprived of his right to a speedy trial, 

that loss, by definition, occurred before trial and proceeding with trial would not have 

caused or compounded any deprivation which had already been suffered. See 

MacDonald, 435 U.S. at 860–61; Ex parte Lamar, 184 S.W.3d 322, 323 (Tex. App.—Fort 

Worth 2005, pet. ref'd) (op. on reh’g).

2. Is a Speedy-Trial Claim Cognizable Through an Article 11.08 

Pretrial Habeas Petition?

Nevertheless, Hartfield argues that “[w]hether it intended to overrule precedent or 

merely recognized that Mr. Hartfield’s case is unique, the [Texas] Court of Criminal 

Appeals clearly indicated in its June 12, 2013 opinion that filing [a petition] under [a]rticle 

11.08 was one of the two means by which Mr. Hartfield could raise his speedy[-]trial 

claim.” See Hartfield III, 403 S.W.3d at 240.

a. Did the Court of Criminal Appeals Overturn Precedent?

By the following language from Hartfield III, “Alternatively, Petitioner could have 

filed an application under Article 11.08,” Hartfield argues that the Texas Court of Criminal 

Appeals overturned its own precedent. See id. The State characterizes this language 

as, among other things, “a single, fleeting sentence” and asserts that if this sentence is 

“placed back into context, [Hartfield’s] interpretation fails.” We are persuaded by the 

State’s arguments because, were we to follow Hartfield’s reasoning, we would have to 

conclude that the court of criminal appeals intended to overturn decades of its own 

precedent with this one sentence. And we decline to do so.

“Finding no controlling precedent under Texas law,” the Fifth Circuit certified “the 

following determinative question to the Texas Court of Criminal Appeals: What was the 
18

status of the judgment of conviction after these events occurred?” Id. at 236. The 

court of criminal appeals provided the following answer to the certified question:

The March 4, 1983 mandate issued by this Court reversed the judgment of 

conviction, and no court has entered any order thereafter to alter that 

reversal. Because some penalty must be assessed for the authority of 

commutation to be exercised and Petitioner’s death sentence was erased 

by our mandate, the governor’s proclamation of commutation was a nullity. 

The status of the judgment of conviction is that Petitioner is under no 

conviction or sentence.

Id. at 240. Beyond this answer to the certified question, the court of criminal appeals 

ended its opinion with the following section titled “State Remedies for Pretrial Claim”:

When Petitioner filed a state application for writ of habeas corpus, he filed 

it under Code of Criminal Procedure Article 11.07. Because Article 11.07 

relates only to post-conviction applications for writ of habeas corpus and 

there was no judgment of conviction against Petitioner, this was not the 

proper procedure, and we denied his application. He also filed an 

application for leave to file a petition for mandamus asking us to compel a 

new trial. This too was the improper procedure because our reversal of his 

conviction left him in the same position as if he had never had a trial. If his 

motion to set aside the indictment for failure to provide a speedy trial was 

sustained, then Petitioner would be discharged under Article 28.061 of the 

Texas Code of Criminal Procedure. Alternatively, Petitioner could have 

filed an application under Article 11.08. Therefore, the United States 

District Court for the Eastern District is correct that Petitioner has not 

exhausted state remedies. Because our denial of Petitioner's applications 

for writs of habeas corpus and mandamus were based on his failure to 

follow the proper procedure, it is not a forgone conclusion that Petitioner's 

state claims will be denied and exhaustion of state remedies is not futile.

Id. at 239–40.

Although the federal exhaustion requirement is absent from the statutory language 

of section 2241(c)(3), generally, a pretrial, federal habeas petitioner must first present a 

constitutional claim to the state courts before the federal courts can pass on it. See, e.g., 

Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 489–92 (1973) (determining 
19

that exhaustion is necessary under section 2241 as well as section 2254); compare 28

U.S.C.A. § 2241(C)(3) (West, Westlaw through P.L. 113–120) (providing for pre-trial 

habeas proceedings absent an exhaustion requirement in the statutory language) with 28 

U.S.C.A. § 2254(b)(1)(A)–(B) (West, Westlaw through P.L. 113–120) (providing that “[a]n 

application for a writ of habeas corpus on behalf of a person in custody pursuant to the 

judgment of a State court shall not be granted unless it appears that . . . the applicant has 

exhausted the remedies available in the courts of the State,” that “there is an absence of 

available State corrective process” or that “circumstances exist that render such process 

ineffective to protect the rights of the applicant”). Perhaps in an effort to ensure that the 

Fifth Circuit did not waive the federal exhaustion requirement and address Hartfield’s 

speedy-trial claim de novo, the court of criminal appeals suggested the existence of a 

pretrial remedy to inform the state courts of his speedy-trial claim, that remedy being a 

pretrial motion to set aside the indictment for failure to provide a speedy trial. See 

Hartfield III, 403 S.W.3d at 240. As the court of criminal appeals explained, if this pretrial 

motion were sustained, Hartfield would be discharged under article 28.061 of the Texas 

Code of Criminal Procedure. Id.; see TEX. CODE CRIM. PROC. ANN. art. 28.061. If 

denied, Hartfield would have the opportunity to challenge the ruling post-conviction on 

direct appeal. See Ex parte Doster, 303 S.W.3d at 724; Ex parte Weise, 55 S.W.3d at 

620. Identifying a second pretrial remedy, the court of criminal appeals also set out that 

Hartfield “could have filed an application under [a]rticle 11.08.” Hartfield III, 403 S.W.3d 

at 240. Importantly, its reference to article 11.08 did not set out that Hartfield could have 

filed a petition under article 11.08 to advance his speedy-trial claim. See id. The court 
20

of criminal appeals omitted that specific language, perhaps to indicate that Hartfield could 

have used article 11.08 to advance his contention that he was in prison despite the fact 

that he was under no conviction or sentence. See id. In that regard, Hartfield would not 

have exhausted his state court remedies. See id. So, as the State submits, we 

conclude that the court of criminal appeals’ article 11.08 reference is narrower than 

Hartfield contends. And we cannot conclude that the Texas Court of Criminal Appeals, 

without more, overturned precedent with a single sentence.

b. Is Hartfield’s Claim an Exception to the General Rule?

Hartfield also asserts that his claim is cognizable in a pretrial writ of habeas corpus 

because it is so unique and fundamentally different from every other speedy-trial case. 

He contends that, by its language, the court of criminal appeals recognized that the 

following concerns that ordinarily make a pretrial petition an inappropriate vehicle by 

which to raise a speedy-trial claim are not present in this case: (1) the degree to which 

a defendant’s ability to present a defense has been prejudiced by the delay prior to the 

trial is typically difficult to determine; and (2) allowing immediate appeal on speedy-trial 

issues would frustrate the purposes of the Speedy Trial Clause. See MacDonald, 435 

U.S. at 859–62; see also Barker, 407 U.S. at 530, 533. We do not agree that the court 

of criminal appeals recognized that Hartfield’s case was so “out of the ordinary,” that he 

could apply for pretrial habeas corpus relief on his speedy-trial claim.

As set out above, “[a]ppeal rights cannot depend on the facts of a particular case.” 

MacDonald, 435 U.S. at 857 n.6; Carroll, 354 U.S. at 405. And, as noted earlier, even 

though this case documents what appears to be the longest gap between indictment and 
21

trial in any speedy-trial case that has come before this Court or any other court, the 

uniqueness and fundamental differences that underlie Hartfield’s speedy-trial claim, no 

matter how extraordinary, cannot establish its independent pretrial appealability. See 

MacDonald, 435 U.S. at 857 n.6.

3. Summary

We cannot conclude that the court of criminal appeals has overruled its precedent 

or created an exception to the general rule under the facts of this case, and we are obliged 

to conform our opinions to those of the court of criminal appeals. See DeLay, 208 

S.W.3d at 607. Being bound by the court of criminal appeals precedent on this subject, 

see Moses, 590 S.W.2d at 470, we reject Hartfield’s arguments in support of his 

contention that he may raise his speedy-trial claim in a pretrial writ of habeas corpus.

Based on our de novo review, see Sandifer, 233 S.W.3d at 2 (citing Guzman, 955 

S.W.2d at 89), Hartfield’s speedy-trial claim is not cognizable by a pretrial petition for a 

writ of habeas corpus. Hartfield has an adequate remedy at law; therefore, he is not 

eligible for pretrial habeas relief. And the trial court erred in determining the merits of 

Hartfield’s speedy-trial claim in this pretrial habeas proceeding.

Having concluded that Hartfield’s speedy-trial claim is not cognizable in such an 

article 11.08 pretrial habeas petition, we do not reach Hartfield’s contentions regarding 

the Barker factors. See TEX. R. APP. P. 47.1. We overrule Hartfield’s sole issue.

IV. CONCLUSION

Accordingly, we vacate the portion of the trial court’s order that denied Hartfield’s 

petitions for writ of habeas corpus under article 11.08 in Cause Numbers 13-E-0324, 13-
22

E-0325, and 13-0334, and we dismiss Hartfield’s appeals. See Ex parte Barnett, 424 

S.W.3d at 811 (citing Ex parte Doster, 303 S.W.3d at 727; see also TEX. R. APP. P. 43.2(f).

We further dismiss Hartfield’s petition for writ of prohibition, which complains of a trial 

setting prior to the resolution of his appeals, as moot and lift the stay in the trial court.

NELDA V. RODRIGUEZ

Justice

Publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the 14th

day of August, 2014.