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Court of Criminal Appeals of Texas.

Ex Parte Cornelius S. SMITH, Jr., Appellant.

No. PD-0262-05.

Decided: February 01, 2006

Ladawn H. Conway, Dallas, for Appellant. Karen R. Wise, Asst. District Atty., Dallas, Matthew Paul, State's Atty., Austin, for State.

OPINION

Appellant was charged in a facially valid indictment with the felony offense of aggravated assault.   This indictment alleged that appellant “intentionally, knowingly and recklessly” caused serious bodily injury to the victim “by causing [the victim] to ingest liquid.” 1  Apparently, the victim was seriously injured when appellant and several others forced him to drink large quantities of water as part of the victim's initiation into a college fraternity in which appellant and the others were members.   The other participants in this incident were also indicted for aggravated assault.2

 Appellant claimed in a motion to quash 3 that he could be prosecuted only for the Class A misdemeanor offense of hazing 4 under an application of a rule of statutory construction known as the in pari materia doctrine.5  Appellant's pleading asserted that the “alleged injuries to the [victim] in the case, according to the government's theory of the case, arose out of a hazing incident wherein the [victim] was forced to drink water by others in the fraternity.”   One of the other defendants filed a brief in support of this claim.6  This brief asserted:

This case arises out of a widely reported incident known as the “SMU Hazing Case.” In general, the factual information has alleged that the defendant in concert with co-defendants hazed the complaining witness by forcing the complaining witness to consume water.   It is alleged that the Defendant's were members of Alpha Phi Alpha Fraternity, Inc. It is further alleged that the complaining witness consumed water in his efforts to become a member of Alpha Phi Alpha, Fraternity Inc. It is alleged that the complaining witness suffered serious bodily injury as a result of his excessive consumption of water.   It is alleged the complaining witness' was forced to by threat of injury to consume water.

To the extent, the State does not stipulate that these general factual allegations adequately represent the factual predicate of the State's case, the defendant request an in immediate hearing in order for the Court to ascertain the factual basis of the State's case.   See Tex.Code Crim. Proc. [ 7] In addition, the defendant request that the Court take judicial notice of the contents of the Court's file including the probable cause affidavit. [ 8]  The defendant has been indicted under 22.02 of the Texas Penal Code. [sic passim].

(Emphasis in bold in original).

The State's response did not address the factual claims made in these defense pleadings.   The State's response addressed the legal issue of whether appellant could be prosecuted only for a Class A misdemeanor offense of hazing under the in pari materia rule of statutory construction.

The trial court held an evidentiary hearing.   At this evidentiary hearing, appellant presented the testimony of Jones, a captain with the Criminal Investigation Division at SMU, who investigated the incident giving rise to the charge in this case.   Jones was the only witness to testify at the evidentiary hearing.

Jones testified that the victim was injured from consuming a large amount of water during a hazing activity as part of an initiation into a fraternity.

Q. [DEFENSE]:  Okay. Describe for me what was learned in the investigation of this case.

A. [JONES]:  Well, we-we learned that an individual was involved in a hazing activity at-in an off-campus apartment that resulted in an individual being taken to the-well, [the victim] being taken to the hospital for consuming a large amount of water and it ultimately caused him to go into convulsions and to go in-wind up I intensive care.

Q. Okay. And so when you use the term “hazing activities”, I understand you to mean an activity that is occurring as part of the initiation into a fraternal organization;  is that correct?

A. Yes.

Jones also testified that, to the best of his knowledge, “the acts causing bodily injury or serious bodily injury in this case all occurred as a result of hazing.”

Q. [DEFENSE]:  Okay. So the acts causing bodily injury or serious bodily injury in this case all occurred as a result of hazing to the best of your knowledge, correct?

A. [JONES]:  Yes.

Q. Okay. To your knowledge, have-to your knowledge, there were no activities that occurred outside of hazing, correct?

A. That's correct.

During the State's cross-examination, Jones testified that he and a detective with the Dallas Police department determined that “the defendants not only knowingly, intentionally or recklessly engaged in hazing, but that they also knowingly, intentionally or recklessly caused serious bodily injury.”   On redirect examination, Jones testified that the factual basis for this determination was the “same factual basis for the hazing.”

Q. [DEFENSE]:  The-the same factual basis for the statement you just made is the exact same factual basis for the hazing;  is that correct?

A. [JONES]:  Re-ask me the question.

Q. Okay. She-she-you answered yes when she asked not only did they engage in hazing, but they also intentionally, knowingly and recklessly caused serious bodily injury to [the victim].   You answered, yes, to that question, right?

A. Yes.

Q. The acts which you're referring to in answering yes, are the same acts you referenced when I discussed hazing with you, correct?

A. Yes.

Jones also testified that he sought indictments against appellant and the others based on “the victim's statement” and “statements from other witnesses.”

Q. [DEFENSE]:  Were you aware of a statement being obtained from the victim?

A. [JONES]:  I was made aware later, yes.

Q. Did the statement from the victim identify the alleged culprits who were involved in the assault?

A. He identified several individuals who were there.   I don't remember all the specifics in what his statement was at this moment.

Q. Were there defendants who were not identified in the victim's statement who are charged in the crime today?

A. I can't recall.

Q. Other than the victim's statement, did you have statements from other witnesses that caused you to seek indictments against other defendants here today?

A. Yes.

Jones also testified that he believed that the incident in this case went beyond hazing because of “what the end result was” even though the hazing statute “not only covers serious bodily injury but death as well.” 9

Q. [DEFENSE]:  When you said it went beyond hazing, are you familiar with the hazing statute?

A.[JONES]:  Yes.

Q. Are you aware of the fact that the hazing statute not only covers serious bodily injury but death as well?

A. Yes.

Q. So when you made the statement that it went beyond hazing-in-in what effect did it go beyond hazing?

A. Well, just what the end result was.

Q. Well, if the hazing statute covers death, what end result could be greater than death?

A. None, I guess.

Jones also testified that he did not interview “all the witnesses involved in the case.”   Jones testified that the Dallas police interviewed these witnesses.

Q. [DEFENSE]:  Well, you-you participated in the initial stage of the investigation;  is that correct?

A. [JONES]:  Yes.

Q. Okay. Did you interview all the witnesses involved in this case?

A. No.

Q. Okay. Was that done by Dallas police?

A. Yes.

Following the evidentiary hearing, the trial court denied appellant's motion to quash/pretrial writ of habeas corpus.

[THE COURT]:  Well, I don't know if it's as clear as the State believes it is, but I am going to deny your Motion to Quash and Your Writ.

On appellant's direct appeal from this ruling, the Court of Appeals decided that appellant's in pari materia claim is not cognizable by pretrial writ of habeas corpus.   Its opinion states:

In this case, there is a valid statute under which the aggravated assault prosecution is being brought.   Appellant does not raise a challenge that would render his prosecution void.   He does not assert the aggravated assault statute is unconstitutional on its face or that the prosecution is barred by the statute of limitations. Nor does appellant contend there was any irregularity that would render the indictment void.   Rather, appellant is challenging the State's decision as to which statute it will use to prosecute appellant.   Appellant's in pari materia claim, if successful, will not result in his immediate release.   If convicted of aggravated assault, appellant has an adequate remedy on appeal to challenge the denial of his in pari materia claim.  (Citations omitted).

We hold that appellant's in pari materia claim is not cognizable by pretrial writ of habeas corpus.   Therefore, we affirm the trial court's order.

Ex parte Smith, 152 S.W.3d 170, 172 (Tex.App.-Dallas 2004).

 We granted review.10  We decide that the claim presented in appellant's writ is not cognizable in a pretrial writ of habeas corpus.

 Our decision in Ex parte Weise succinctly summarizes our case-law on the types of claims that are cognizable in a pretrial writ of habeas corpus.   See Ex parte Weise, 55 S.W.3d 617, 619-20 (Tex.Cr.App.2001).  Weise can be read to support the general principle that a claim is cognizable in a pretrial writ of habeas corpus if, resolved in the defendant's favor, it would deprive the trial court of the power to proceed and result in the appellant's immediate release.   See Weise, 55 S.W.3d at 619.11

Our more recent decision in Ex parte Smith12 is not to the contrary.   In Smith, we stated, among other things, that a defendant may raise in a pretrial writ of habeas corpus “certain issues which, if meritorious, would bar prosecution or conviction.”   See Smith, at 801. We further stated that “[b]ecause the denial of habeas corpus relief, based on fundamental constitutional principles, permits an interlocutory appeal, appellate courts are careful to ensure that a pretrial writ is not misused ‘to secure pretrial appellate review of matters that in actual fact should not be put before appellate courts at the pretrial stage.’ ”   See Smith, at 801.

This Court has decided that a defendant has a due process right to be prosecuted under a “special” statute that is in pari materia with a broader statute when these statutes irreconcilably conflict.   See Mills v. State, 722 S.W.2d 411, 414 (Tex.Cr.App.1986).   And, it is apparent that, if meritorious, the claim presented in appellant's pretrial writ of habeas corpus “would bar prosecution” for the felony offense of aggravated assault.   See Smith, at 802 (defendant may raise in a pretrial writ of habeas corpus “certain issues which, if meritorious, would bar prosecution or conviction”).

We nevertheless decide that appellant's in pari materia claim is not cognizable in a pretrial writ of habeas.   Initially, we note that the indictment is valid on its face.   Compare Smith, at 799 (when charging instrument shows on its face that prosecution is limitations-barred and that pleading is not reparable, a defendant may seek relief from a time-barred prosecution by a pretrial writ of habeas corpus).   We also agree with the Court of Appeals that appellant can pursue his in pari materia claim on appeal if necessary.

More importantly, appellant's in pari materia claim is not yet ripe for review.   See Weise, 55 S.W.3d at 621 (deciding that defendant's claim was not cognizable in pretrial writ of habeas corpus because it was not yet ripe for review).   Though we may have a general idea of the facts of this case based on Jones' testimony at the evidentiary hearing and the representations in the defensive pleadings, which appear to be based in part on newspaper accounts of the incident, we believe it apparent from the portions of the record set out above that the State has more evidence to present about which we can only speculate at this time.   See Ex parte Cross, 69 S.W.3d 810, 814 (Tex.App.-El Paso 2002, pet. ref'd) (ripeness doctrine examines the timing of a lawsuit and its factual posture at the time of filing).

An appellate decision on the in pari materia claim would be premature before the State has had an opportunity to develop a complete factual record during a trial, and we are not aware of any authority that would require the State to prove its case before this time.   See id. (ripeness doctrine allows courts to avoid premature adjudication).   Deciding the in pari materia claim now on what would amount to a hypothetical set of facts that might be presented at appellant's trial would be merely advisory.   See id. (ripeness doctrine also serves constitutional interests in prohibiting advisory opinions).13

The judgment of the Court of Appeals is affirmed.

FOOTNOTES

1.   See Tex. Penal Code, §§ 22.01, 22.02(a)(1) (person commits offense of aggravated assault if he “intentionally, knowingly, or recklessly” commits an assault that causes serious bodily injury to another).

2.   The record contains evidence that appellant and the others were expelled from school as a result of this incident.

3.   The trial court subsequently permitted appellant to convert this motion to quash into a pretrial application for writ of habeas corpus.

4.   See Tex. Educ.Code, § 37.152(a)(1), (d) (person commits Class A misdemeanor offense of hazing if he engages in hazing that causes serious bodily injury to another).

5.   This doctrine is a rule of statutory construction for determining which statutory provision controls when a general statutory provision and a more specific statutory provision deal with the same subject matter and they irreconcilably conflict.   See id.;   see also State v. Mancuso, 919 S.W.2d 86, 88 and at 91 (Tex.Cr.App.1986) (McCormick, P.J., dissenting).   It would appear that the aggravated-assault statute and the hazing statute do not deal with the same subject matter.   The aggravated-assault statute defines a result-oriented offense and is generally implicated when, for example, it is the actor's conscious desire to harm another.   See Phillips v. State, 787 S.W.2d 391, 395 (Tex.Cr.App.1990);  Alvarado v. State, 704 S.W.2d 36, 39 (Tex.Cr.App.1985);  Beggs v. State, 597 S.W.2d 375, 377 (Tex.Cr.App.1980).   The hazing statute defines a conduct-oriented offense and is generally implicated when, for example, the actor intentionally engages in conduct that harms another irrespective of whether it is the actor's conscious desire to harm another.   See Tex. Educ.Code, § 37.151(6) (defining hazing as, among other things, a person's intentional harmful act against a student for the purpose of being initiated into membership in an organization).   In other words, the hazing statute might not be implicated if the prosecution can prove that it was appellant's conscious desire to seriously injure the victim.   We did not grant discretionary review on whether the aggravated assault statute and the hazing statute deal with the same subject matter;  i.e., are in pari materia.   We, therefore, do not decide that issue in this proceeding.

6.   The record reflects that one of the other defendants filed a brief in support of the claim raised in appellant's motion to quash/pretrial writ of habeas corpus and that all of the other defendants joined appellant's motion to quash/pretrial writ of habeas corpus.

7.   This pleading does not cite any authority to support the assertion that the defense was entitled to an “immediate hearing in order for the Court to ascertain the factual basis of the State's case.”

8.   A probable cause affidavit in the record, in relevant part, states:On November 15, 2003, between 1:00 a.m. and 5 a.m. [the complainant] suffered an aggravated assault with a deadly weapon [water] while at an apartment located at 6615 Shadybrook Lane # 3280, Dallas, Dallas County, Texas.   Suspects Smith, Ibekwe, Kalu, Berhe, Perry, Harkey, Lee, and Bowie forced [the complainant] by physical violence and threat of physical violence to drink large quantities of water which caused hyponatrima Hypoxia.  [The complainant] became comatose and was in imminent danger of death.

9.   See Footnote 4;  see also Tex. Educ.Code, § 37.152(e) (person commits state jail felony if he engages in hazing that causes death of another).

10.   The sole ground upon which we granted discretionary review states:Is a claim cognizable by pretrial writ of habeas corpus where, if successful, it would result in the defendant's immediate release and deprive the trial court of all power to proceed?

11.   In Weise, 55 S.W.3d at 619, this Court stated:In determining whether an issue is cognizable on habeas, we have considered a variety of factors.   We have looked at whether the alleged defect would bring into question the trial court's power to proceed.  [Footnote omitted].   Along the same lines, we have found that a pretrial writ application is not appropriate when resolution of the question presented, even if resolved in favor of the applicant, would not result in immediate release․

12.   Ex parte Smith, 178 S.W.3d 797 (Tex.Cr.App., 2005).

13.   We also note that, even though it is possible that appellant is being prosecuted under the wrong statute, his injury might nevertheless be somewhat remote.   For example, in his aggravated assault prosecution, it is conceivable that appellant could be acquitted of the aggravated assault charge or convicted of only hazing were he to request and receive such an instruction from the trial court.   Under these circumstances, it would not even be necessary for an appellate court to address appellant's in pari materia claim.   See Cross, 69 S.W.3d at 814 (theory behind ripeness doctrine is straightforward-if plaintiff's injury is not concrete and depends on contingent, remote, or hypothetical facts, courts should avoid deciding the dispute).   We express no opinion on the Cross court's assertion that the ripeness doctrine is jurisdictional.   See id.

HERVEY, J., delivered the opinion for a unanimous Court.

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