PD-0422-22 10/19/2022
“The Court of Appeals erred in concluding that a pretrial facial challenge to the constitutionality of a statute requires the requested relief to result in immediate release on all charges.”
Texas Penal Code § 34.02(a)(4) prohibits money laundering by “financ[ing] or invest[ing] or intend[ing] to finance or invest funds that the person believes are intended to further the commission of criminal activity.” Couch was indicted for four violations of § 34.02(a)(4) using the full statutory language in four separate indictments. She filed a pretrial writ of habeas corpus challenging one of the indictments because forbidding the intent to finance or invest funds “create[d] a thought crime.” She later amended her application to seek dismissal of all four indictments. The trial court denied relief.
On original submission, the court of appeals affirmed. It held the statute punishes conduct, not mere thoughts. Couch petitioned for review. The Court of Criminal Appeals refused it without prejudice but highlighted the threshold issue of cognizability. Because each of the indictments alleged both that Couch did knowingly (1) “finance or invest” or (2) “intend to finance or invest,” successfully challenging only the latter as an unconstitutional thought crime would not result in immediate release because the prosecutions could at least theoretically proceed on the other allegations. That court remanded for consideration of cognizability. The court of appeals again affirmed the denial of pretrial relief. Even if appellant were correct that part of the statute is unconstitutional, it held, the unconstitutional manner and means could be severed such that prosecution on the remainder could proceed.
Couch again petitions, this time arguing that the court of appeals did not consider “the fact that finding the challenged portion unconstitutional would result in [her] immediate release from confinement on that specific charge.” [Couch uses “specific charge” in this context to mean two of four manner and means alleged in each indictment, not distinct counts or indictments.] Refusing to allow a pretrial writ when prosecution is still possible also “provide[s] a clear path for the State to follow in insulating unconstitutional statutes from pretrial review”—include in the instrument a charge that is constitutional regardless of whether the State can (or even intends to) prove it.
