“In the context of a pretrial writ of habeas corpus challenging the facial constitutionality of a statute, does ‘immediate release’ apply to the charge or entirety of the prosecution?”
Hammons was charged with three counts of injury to a child under Tex. Penal Code § 22.04. Two counts were for Subsection (a)(2), causing “serious mental deficiency, impairment, or injury,” and one count was for Subsection (a)(3), causing “bodily injury.” She filed a pretrial writ challenging the constitutionality of Subsection (a)(2). She claimed the terms contained therein are vague. She did not challenge her restraint as a result of the third count. The trial court denied relief, and the court of appeals affirmed on the merits.
Hammons petitioned for review. Recognizing that cognizability is a threshold issue, the Court of Criminal Appeals granted review on its own motion, vacated the judgment of the court of appeals, and remanded for consideration of whether a pretrial writ is appropriate when the resolution of the issue presented, even if resolved in Hammons’s favor, would not result in immediate release. On remand, the court of appeals held that “immediate release” applies to the entirety of the prosecution, not merely from one or more charges. It again affirmed the trial court’s denial of pretrial relief.
Hammons argues in her second petition that she should be entitled to pretrial relief from any facially unconstitutional statute regardless of how many other charges are pending. This would include relief from a separate pretrial bond, the burden of trial on that charge, and potentially a trial that has two victims instead of one. Moreover, failure to construe “immediate release” to apply to individual charges would give the State the means to preclude any pretrial review by also filing charges on some noncontroversial offense.