Affirmed and Memorandum Opinion filed March 30 , 2023

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00581

- CR

EX PARTE ANDREW PETE , Appellant

On Appeal from the 179th District Court

Harris County, Texas Trial Court Cause No. 1724931

MEMORANDUM OPI NION

In two issues, pro se appellant Andrew Pete challenges the trial court ’ s order denying his request for pretrial habeas corpus relief. In his first issue, Appellant argues that the trial judge violated Canons 2(A) and 3(B)(9) of the Texas Code of
Ju dicial Conduct , and in his second issue, he asserts that the trial court abused its discretion in denying his pretrial application for a writ of habe as corpus . We
affirm.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND On March 9, 2018, appellant was indicted by a Ha rris County grand jury for2

the first

- degree felony offense of continuous sexual abuse of a young child, committed on or about May 1, 2014 through Apr il 19, 2015, under cause number
1535047. On May 28, 2021, the State made a re

- presenment of the case to a H arris County grand jury under cause number 1724931. The grand jury re

- indicted appellant for the first

- degree felony offense of continuous sexual abuse of a young child, committed on or about May 1, 2014 through April 1, 2015. On June 1, 2021,
the State mo ved to dismiss the previous charge against Appellant
, ci ting “Case
refiled as Case No. 1724931. The trial court signed the dismissal order.
Appellant filed several pretrial motions, including a pretrial application for a writ of habeas corpus which chall enged the validity of the two indictment s. In his
habeas corpus application , appellant argued that the 2016 probable cause affidavit used by the State to secure both indictments was fatally deficient based on his allegation that the oath in the probable ca use affidavit indicates that it was made to an “Assistan t District Attorney of Harris County” but was either not signed by the assistant district attorney who accepted the charges or another assistant district attorney in Harris County. Consequently, appe llant contended, that document is
fraudulent.
On July 1 3, 2021, the trial court held a pretrial hearing and considered, in addition to Appellant ’ s other motions, Appellant ’ s habeas corpus application. At the conclusion of the hearing, the trial court ann ounced that it lacked jurisdiction to rule with respect to the prior indictment because it had been dismissed and stated that it denied the habeas relief requested in the pending case. The trial court certified appellant ’ s right to appeal.

II. I SSUES AN D A NALYSIS Liberally construing appellant ’ s second issue against a finding of waiver, appellant contends that the trial court abused its discretion in denying his habeas3

corpus application, specifically alleging that the State ’ s indictment is not founded

o n probable cause beca use it was secured from the grand jury based on a “false statement” in a probable cause affidavit . Appellant argues he has been prevented from perfecting an appeal on this allegation because he alleges that in an abuse of official capa city, the State ’ s pro secutor presented a re

- indictment of the same charge to by

- pass an obligation to show good cause. (“ Appellant is challenged to perfect this appeal, partly due to prosecutor Edward Applebaum, re

- indictment of
the State ’ s alleged offense (s) without showing g ood cause.”)
Standard of Review and Applicable Law

We review the trial court ’ s ruling on a pretrial application for a writ of habeas corpus for abuse of discretion, viewing the facts in the light most favorable to the ruling. Kniatt v. State , 206 S.W.3d 65 7, 664 (Tex. Crim. App. 2006); Ex parte Gonzalez , 525 S.W.3d 342, 346 (Tex. App.

— Houston [14th Dist.] 2017, no pet.). However, when the resolution of the ultimate issue turns on an application of purely legal standards, our review is d e novo. See Ex parte Martin , 6 S.W.3d 524, 526 (Tex. Crim. App. 1999); cf. Ex parte Jones , 410 S.W.3d 349, 350 (Tex. App.

— Houston [14th Dist.] 2013) (explaining trial court has no discretion to analyze the law incorrectly), aff ’ d , 440 S.W.3d 628 (Tex. Crim . App. 2014). We
will uphold the trial court ’ s judgment if it is correct on any theory of law applicable 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.).

Anal ysis
Upon our review of the record, we acknowledge that the State reindicted appellant well after he had been detained under cause number 1535047 , and shortly
after the State was asked to show cause under the Texas Code of Criminal4

Procedure
, art icle 32.01 (a)

. 1 Contrar y to appellant ’ s suggestion, nothing in the record indicates that the State acted improperly or maliciously when it re

- indicted appellant under cause number 1724931 and subsequently dismissed cause number
1535047 . The State was not prevented from c harging appellant a second time
under a different cause number so long as it had probable cause to believe that the accused committed an offense defined by statute. See Bordenkircher v. Hayes , 434 U.S. 357, 364 (1978)

. Additionally, contrary to app ellant ’ s unsup ported contentions, when it reindicted appellant under cause number 1724931, the state was not additionally required to make a “good cause” showing under art icle 32.01(a)

. The face of the probable cause affidavit, including the of ficer ’ s oath , does not reveal any impropriety. Appellant ’ s allegation that the signature above “Assistant District Attorney of Harris County” is improper or fraudulent is unsupported by the face of the instrument. 2 Appellant presented no evidence of imp ropriety eith er by the district attorney signing the complaint or the magistrate who signed the arrest warrant. Appellant points to no law requiring that an oath in
such an affidavit must be made to the same officer who reviewed the case and accepted char ges.
O n thi s record we cannot find that the trial court violated any constitutional provision or abused its discretion in granting appellant ’ s pretrial application for a writ of habeas corpus for abuse of discretion . We therefore overrule appellant ’ s

se cond iss ue.

1 Appellant ’ s current complaint on appeal is not based on a speedy trial assertion. Additionally, Appellant has not presented on appeal any meaningful challenge to the probable cause affidavit.

2 Appellant alleged that the ha ndwritten bar c ar d number wa s “2406218 1 ”, a fact appellant considered to be “unambiguous”. This appears to have led to his assumption the instrument was signed by a non

- prosecutor, and thus “falsified”.5

Did the Trial Judge Violate Canons 2(A) and 3(B)(9) of the Texas Code of
Judicial Conduct?
Appellant sets out his first issue by briefly describing the manner in which the court addressed the various matters presented at the July 13, 2021 hear ing

– with out “ being invited nor allowed to present his position in any of his pleadings.” Our review of the record conflicts with appellant ’ s view. While the trial court did give ample time to the County attorney on the County ’ s motion related to appellan t ’ s libr ary u se, the record shows the judge also took care to address appellant ’ s various motions, beginning with appellant ’ s discovery motion. In the course of that motion, the court asked the State if an arrest warrant had been provided to appellant, (“ Mr. Appe lbaum , was there an arrest warrant? I think it ’ s a capias”), and without objection the State confirmed that a copy of the arrest

warrant had been provided to appellant. The discussion continued on appellant ’ s motions, and at some point appellant in dicated a des ire for the court to “at least acknowledge” his pretrial writ of habeas corpus on file and obtain a ruling from the court so he could move forward with an appeal, at which time the court issued its summary rulings. The relevant portion of the record is as follows:
Another thing, Judge, there ’ s three motions I ’ ve been trying to get some kind of ruling on. Motion for dismiss for selective prosecution, I filed a pretrial writ of habeas corpus on this case. I want the Judge to at least acknowledg e it so if I need to move forward with an appeal, I can move forward with an appeal and all that.

. . . THE COURT: On Defendant ’ s Pro Se Motion to Dismiss Indictment for Selective Prosecution, like you said, 6/24/2021, the Court denies that motion. I will sign the orde r and we ’ ll give you a copy, Mr. Pete. And then finally, the writ of habeas corpus, Mr. Pete

-- THE DEFENDANT: Mr. Appelbaum

– you asked Mr. Appelbaum was an arrest warrant given

--6

THE COURT: Mr. Pete, I ’ m ruling on something else. Give me one

secon d, pl ease. Mr. Pete, on the prior

-- under the habeas corpus relief where you ’ re asking the Court to dismiss the prior indictment, the Court rules that the Court has no jurisdiction at thi s moment as the case has already been dismissed; so therefore, there is n othing for the Court to rule on

-

- THE DEFENDANT: You said

-- I ’ m sorry, but you said the case been dismissed? THE COURT: The prior case. THE DEFENDANT: I ’ m not asking for the prior c ase, Judge, on the habeas corpus. THE COURT: Mr. Pete, the prayer on your motion says: Applicant Andrew Pete prays the Court dismiss the prior/present indictment and case with prejudice. Therefore, as to the prior case, the Court has no jurisdiction. As to the present indictment, the Court rules that that ’ s denied and that is t he order of the Court. I will make the order in writing; so that way, you can take it up if you need to, Mr. Pete. As far as the scheduling for the trial, based on the arguments today, Mr. Pete, you are still missing evidence on your case. THE DEFENDA NT: J udge, I ’ m willing to waive all that and let ’ s go to trial.

. .. On this record, appellant contends that that the t rial court violated two Cannons of Judicial Conduct, first that “[a] judge shall comply with the law and
should act at all times in a man ner t hat promotes public confidence in the integrity and impartiality of the judiciary. Tex. Code Jud. Conduct , Canon 2 (A), reprinted in
Tex. G ov ’ t Code Ann. , tit. 2, subtit. G, app. C (West 2021) (“Code of Judicial Conduct”) , and second, that “[a] judge s hould dispose of all judicial matters promptly, efficiently and fairly. ” T ex . C ode J ud . C onduct
, Canon 3(B)(9). To

reve rse a trial court ’ s judgment on the grounds of judicial misconduct, there must be judicial impropriety, coupled with probable prejudice t o the complaining party, and rendition of an improper verdict. Fernandez v. State , 597 S.W.3d 546, 5607

(Tex. App.

— El Pa so 2020, pet. ref ’ d)

. The record must show that the trial court ruled, expressly or implicitly, on the request, objection, or motion, or the t rial court refused to rule on the request, objection, or motion, and the complaining party objected to the refusal . Tex. R. App. P. 33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011) ; see also McKeand v. State , No. 14

- 14

- 00943

- CR, 2 015 W L 5092177, at *2 (Tex. App.

— Houston [14th Dist.] Aug. 27, 2015, no pet.) ( mem. op., not designated for publication) . Appellan t did not object to the trial court ’ s refusal to hear argument on appellant ’ s position with respect to the habeas corpus application . We find appellant ’ s statements prior to the court ’ s ruling an invitation for a summary ruling without argument, e.g., “ I want the Judge to at least acknowledge it so if I need to move forward with an appeal, I can move forward with an appeal and all tha t ”.
Later when appellant referred to the prior discussion in the discovery motion

– about
the court ’ s question about the arre st warrant, appellant failed to provide sufficient specificity to make the trial court aware of any complaint in connection with the
habe as co rpus application. Assuming, arguendo, that the court committed breach in not fairly allocating time to appellant to present additional legal arguments in support of his position in his pleadings appellant has not demonstrated any harm

. See Fernan dez
, 597 S .W.3d at 560 . The court properly rejected appellant ’ s habeas applica tion and appellant has not shown any further legal argument that would
have altered the result based on the record.
We therefore overrule appellant ’ s first issue.8 III. C ON CLU SI ON

Havin g overruled appellant ’ s two issues, we affirm the trial court ’ s order denying appellant ’ s pretrial habeas corpus application.

/s/ Randy Wilson Justice

Panel consists of Justice s Wise, Poissant and W ilson

. Do not p ublish

— T EX

. R. A PP

. P. 47.2(b).