PD-0935-21 & PD-0936-21 thru PD-0940-21 02/09/2022
When two indictments are consolidated for trial under Texas Penal Code § 3.02 and the first indictment is based on a statute that has been challenged via a pretrial habeas application, but the statute underlying the second indictment is not challenged, does consolidation impact the cognizability of the habeas challenge to the first indictment?
Bishai was indicted in multiple cases—some involving only Occupations Code violations, others only Health & Safety Code violations. The State gave notice it would consolidate a subset of these cases. Bishai filed a pretrial writ challenging the constitutionality of the Occupations Code sections he was charged with. The trial court denied relief on the merits.
Bishai appealed. The court of appeals held that his constitutional challenge was not cognizable on a pretrial writ. It relied on the general rule that cognizable claims, if resolved in the applicant’s favor, deprive the trial court of the power to proceed and result in the applicant’s immediate release. That would not occur here since the cases he challenged were consolidated for trial with other charges he had not challenged—the alleged Health & Safety Code violations.
Bishai argues the court of appeals should have considered each indictment as a separate (and potentially illegal) restraint, as they are in the bail context. He contends that the court of appeals’s reliance on consolidation is factually unsupported and legally immaterial since the defense has an absolute right to sever before the cases are tried, the State could (and did in this case) exercise its option not to try the cases together, and one of the Occupations Code indictments was never consolidated in the first place. Further, unlike the cases the court of appeals relied on (which involved counts or manners), no portion of Bishai’s Occupation Code indictments would remain intact for a prosecution if his claim was resolved in his favor. Regardless of how many other indictments alleging different code violations are pending against him, the restraint from those indictments would cease to exist.
