Who is Convicted Felon and Pro Se Michael Bitgood aka Michael Easton aka Michael Joseph Bitgood Easton?

Randy Wilson, Justice

Do not publish – Tex.R.App.P. 47.2(b).

On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Cause No. 22-DCR-101126

Panel consists of Justices Jewell, Spain, and Wilson.

MEMORANDUM OPINION

Randy Wilson, Justice

Appellant, the State of Texas, appeals the trial court’s judgment granting appellee Michael J. Bitgood’s requested habeas-corpus relief, dismissing without prejudice the State’s indictment.

Tex. Code. Crim. Proc. art. 44.01(a)(1).

The State did not file a response in the trial court and has not provided a copy of the reporter’s record for the hearings on these matters.

We affirm.

I. Factual and Procedural Background

On October 3, 2022, Bitgood was indicted on two counts of felony stalking on charges tracking the language of sections 42.07(a)(7) and 42.072(a)(3)(D) of the Texas Penal Code.

The first count is premised on events occurring “May 21, 2018 through January 30, 2019.” The second count is premised on events occurring “November 1, 2021 through September 14, 2022,” and alleges that Bitgood

. . .pursuant to the same scheme and course of conduct directed specifically at Marianna Sullivan knowingly engage in conduct that constituted an offense under Section 42.07 of the Texas Penal Code, namely send messages to Marianna Sullivan despite her representation by counsel and request to direct communication to counsel, and refer to Marianna Sullivan as a madam, and accuse Marianna Sullivan of mental illness, and accuse Marianna Sullivan of being a sex worker, and the defendant’s conduct would cause a reasonable person to, and did cause Marianna Sullivan to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.

The following month Bitgood filed his original application for habeas corpus and motion to quash the indictment, which days later was followed by an amended version, which is the live pleading in this case.

The live pleadings for purposes of this appeal consist of appellee’s

“Application for Writ of Habeas Corpus (First Amended) and Motion to Quash Indictment for Lack of Probable Cause and Challenge to the Statute as Applied to this Individual and the Litigation Privilege to the Texas Rules of Civil Procedure”

(Amended Application and Motion),

and Bitgood’s

“First Supplement to the Application for Writ of Habeas Corpus (First Amended) and Motion to Quash Indictment for Lack of Probable Cause and Challenge to the Statute as Being Facially Unconstitutional”

(“Supplemental Pleading”).

In his Amended Application and Motion, appellee begins by challenging the indictment as brought under a criminal statute which he contends is unconstitutional, void for vagueness, and that it fails to draw reasonably clear lines between lawful and unlawful conduct.

Bitgood argued that the allegations set out in Count One of his two-count indictment were facially fatal as alleging an offense outside a statute of limitations period.

Bitgood argued that both counts asserted against him were unconstitutional as applied, that they lacked probable cause, and failed to inform appellant how his conduct constituted criminal conduct under the statute.

He contends

“[t]here is no distinction between the alleged repeated misdemeanor offense message and the alleged felony offense communication on more than one occasion, other than the whim of the complainant or the prosecutor.”

Bitgood also argued the indictment failed to provide him adequate “due process notice” for lack of allegations concerning the element of “intent” and failing to describe the specific “manner” that the communications were sent such that they were “likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another”.

In the section titled “WHAT THE GRAND JURY APPARENTLY DID NOT KNOW,” Bitgood detailed his background with the complainant where he represented himself and others against complainant in a series of landlord-tenant disputes.

He argued that the complained-of communications that form the basis of the indictment were made in the course of litigation.

In a subsequent section he contended that the indictment was supported by fabricated facts.

the complainant knew she was breaking the law, defrauding the CARES act, and illegally invoking the jurisdiction of courts of Fort Bend County. To help cover up this misconduct and silence the Defendant, the complainant and her police officer employee fabricated this criminal charge, most likely if not certainly with the assistance of others as well.

In the last substantive section of his Amended Application, entitled “VI. THE RECUSAL OF THE DISTRICT ATTORNEY,” Bitgood makes various allegations regarding the Fort Bend District Attorney and the complainant: he alleges that the Fort Bend District Attorney became critical of complainant in some fashion after discovering apparently undisclosed facts about the charges originally filed against appellee and that the complainant brought an “all out smear campaign against” the Fort Bend District Attorney, whose recusal he contends was procured by a contrived “call for service” and fraud by omission of certain facts.

The Fort Bend District Attorney was recused and an attorney pro tem was appointed to prosecute the case. Bitgood then noted:

It is a separate issue that the attorney pro tem had no authority to present an alleged felony offense to a grand jury or act as a pro tem in a felony matter in a district court after being appointed by a county court at law judge, because county courts at law, and their judges, lack jurisdiction over felony indictments, and matters that by Penal Code definition constitute felony offenses.

Bitgood also filed his Supplemental Pleading which asserted his facial challenge to the statutory provisions; he argued that “the statute in question for which he was indicted is unconstitutional on its face and suffers from over-breadth, making it unconstitutional as presented in the indictment.”

The State filed no response to the Amended Application and Motion or Supplemental Pleading.

The State only responded to the arguments concerning the pro tem’s authority and the county court at law’s appointment-jurisdiction.

A hearing was held on the Amended Application and Motion, which the court’s order recites was “sworn and uncontroverted.”

On appeal Bitgood contends that both “lay and expert testimony” were presented to the court; the State has not disputed this assertion.

The trial court’s order states:

The application for writ of habeas corpus is granted on the grounds as stated in the sworn and uncontroverted application and the arguments made to the court.

To that extent, the Defendant is discharged and ordered released forthwith from all manner of restraint.

With regards to the motion to quash the indictment, that motion is GRANTED, and the indictment is quashed without prejudice as to the State’s ability to represent if the State desires to proceed again.

Should the State refile any charges against this Defendant, the State is ordered to issue a summons to him to appear, as the Court finds from personal observation that the Defendant is a disabled senior citizen and poses no risk of flight, and has made all of his court appearances.

The hearing was recorded, but the State has chosen not to request the reporter’s record to be included as a part of our record.

II. Issues and Analysis

In its three issues on appeal, the State challenges some, but not all, grounds raised by appellee in his Amended Application and Motion and upon which the trial court based its order dismissing the indictment.

Relevant Standards of Review

In general, we review a trial court’s ruling on an application for writ of habeas corpus using an abuse-of-discretion standard, and we view any evidence in the light most favorable to that ruling and defer to implied factual findings supported by the record.

Phuong Anh Thi Le v. State, 300 S.W.3d 324, 327 (Tex. App.-Houston [14th Dist.] 2009, no pet.); Ex parte Fusselman, 621 S.W.3d 112, 116 (Tex. App.-Houston [14th Dist.] 2021, pet. ref’d).

Appellate courts review a trial judge’s rulings on a motion to dismiss or quash a charging instrument de novo.

State v. Barbernell, 257 S.W.3d 248, 251-52 (Tex. Crim. App. 2008).

The trial court’s ruling should be upheld if it is correct under any theory of law applicable to the case.

State v. Rhinehart, 333 S.W.3d 154, 161 (Tex. Crim. App. 2011)

(applying ordinary rules of procedural default to a  State’s appeal of a trial court’s order quashing the indictment).

Analysis

For the sake of efficiency, we first look to the grounds upon which the trial court judgment could be based which the State has not addressed.

Bitgood’s statute of limitations argument presented to the trial court stands among those grounds not addressed by the State.

Application for writ of habeas corpus is an available vehicle to invoke statute of limitations “if the pleading, on its face, shows that the offense charged is barred by limitations” and is not reparable by resort to an exception.

See Ex parte Edwards, 663 S.W.3d 614, 618 (Tex. Crim. App. 2022).

The first count of the indictment, based on Bitgood’s alleged conduct (of sending messages) occurring “May 21, 2018 through January 30, 2019,” describes an offense for felony stalking.

See Tex. Penal Code § 42.072(a).

Charges must be presented three years from the date of the commission of the offense.

Tex. Code Crim. Proc. art. 12.01(9).

Thus, in this case notwithstanding any applicable exception, the State was required to present the felony stalking charge no later than January 30, 2022.

The face of the indictment which contains a file-stamp for “October 3, 2022” demonstrates the felony stalking charge was presented over eight months late.

Next, to the question whether the count was reparable by resort to an exception, the State made no argument that any exception applied to repair the infirmity of the indictment.

Moreover, the record in this case does not fulfill the requisites presented in Ex parte Edwards for rejecting a statute-of-limitation claim in a pretrial habeas as not cognizable.

See Ex parte Edwards, 663 S.W.3d 614, 618 (Tex. Crim. App. 2022)

(“An indictment returned outside a general statute of limitation may be reparable by resort to an exception. If so, then a statute-of-limitation claim is not cognizable on pretrial habeas.”).

The State made no attempt  to respond in the trial court; to establish any statute-of-limitations exception that could actually or even potentially, i.e., with evidence at trial, repair the indictment.

Upon the record before us and under the applicable standard of review, the trial court properly disposed of count one of the indictment on the basis that it was barred by the statute of limitations.

If we were to presume that the second count of the indictment lacked any defect that would independently support a cognizable habeas claim, Bitgood’s habeas claim under the two-count indictment was independently cognizable.

Ex parte Couch, 678 S.W.3d 1, 7-8 (Tex. Crim. App. 2023)

(holding that a habeas claim can stand for merits review even if it is cognizable to less than all counts of the multi-count indictment).

The second count, alleging conduct between November 1, 2021 through September 14, 2022, was timely filed.

However, the State’s defense of the second count was woefully deficient.

Just as an accused, who has a right to be charged by an instrument that is free of defects, errors, and omissions, must object to any error in the charging instrument in a timely and specific manner, it also incumbent on the State, if it wishes to preserve a challenge to any order sustaining the accused’s objection, to take action necessary to avoid application of “ordinary rules of procedural default.”

See State v. Rhinehart, 333 S.W.3d 154, 162 (Tex. Crim. App. 2011)

(applying ordinary rules of procedural default to decide that the State, as the losing party in the trial court, could not raise for the first time on appeal a claim that there was no valid basis for the trial court to have quashed the indictment.)

Bitgood has argued that the State, by failing to respond, waived its objections to the (entire contents) of the trial court’s judgment based upon his Amended Application and Motion.

Indeed, other than presenting written  arguments about its authority to prosecute the case, the State offered no response or objection announcing its opposition to Bitgood’s Amended Application and Motion.

A record was made of the hearing, after which the court recited that the application was “uncontroverted.”

Bitgood’s argument raises references to two distinct but related waiver/preservation concepts:

first, that in order to present a complaint for appellate review a party must present a record showing the complaint was made to the trial court and was ruled on expressly or implicitly, Tex.R.App.P. 33.1;

and then,

when presenting the complaint to the court of appeals in its brief, the appellant’s argument must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.

Tex.R.App.P. 38.1(i).

We conclude the State has waived its opportunity to challenge the trial court’s judgment.

On appeal the State has not shown that it presented any complaint in the record to Bitgood’s Amended Application and Motion that it now seeks as a basis for reversing the judgment, and in the absence of a reporter’s record, we presume any evidence provided to the court at the hearing supports the court’s order quashing both counts.

Tex.R.App.P. 33.1, 38.1(i); see also State v. Rhinehart, 333 S.W.3d at 162.

III. Conclusion

We affirm the trial court’s habeas-corpus judgment.

OPINION

ANDELL, Justice.

This is an appeal from punishment assessed after remand from an earlier appeal. Appellant, Michael Joseph Bitgood Easton, was convicted by a jury of third degree felony theft.

The trial court originally assessed punishment at 10-years confinement, probated for 10 years, and a fine of $1,000.

The Eastland Court of Appeals, in an unpublished opinion, affirmed appellant’s conviction, but remanded for a new punishment hearing.

Easton v. State, No. 11-90-062-CR (Tex.App. — Eastland, Nov. 27, 1991, pet. ref’d)

(not designated for publication).

On remand, the trial judge assessed the same punishment: 10-years confinement, probated for 10 years, and a fine of $1,000.

This appeal follows the second punishment hearing.

In three points of error, appellant asserts the State suppressed exculpatory material during the guilt-innocence phase of his trial, and he was denied the right to a trial by jury.

We affirm.

TEX.PENAL CODE ANN. § 31.03(e)(4) (Vernon Supp. 1996).

The appeal was transferred from this Court to the Eastland Court of Appeals pursuant to TEX.GOV’T CODE ANN. § 73.001 (Vernon Supp. 1996).

Facts And Procedural Posture

On the morning of March 6, 1986, appellant entered a Gordon’s Jewelry store located in Westwood Mall in Houston.

Due to the early hour, appellant was the only customer in the store.

After some browsing, appellant tried on a man’s three carat diamond ring that had a retail value of $4,500.

Appellant informed the sales clerk he wished to purchase the ring and asked to fill out a credit application.

While waiting on his credit to be approved, appellant went from counter to counter with the ring to see how it looked with several different watches.

After looking at the third watch, appellant left the store.

Appellant said he was going to get a soft drink while he was waiting for approval of his credit application.

After appellant left the store, Ellen Hosey, the salesperson who had been helping him, realized the ring was missing.

She “tore the store apart” looking for the missing ring, but did not find it.

There had been no other customers in the store that morning.

A jeweler from another store testified appellant brought a ring to him to appraise on March 31, 1986, and that this ring looked very much like the missing Gordon’s ring.

Appellant was charged with theft of the ring.

The jury found appellant guilty.

Appellant elected not to have the jury sentence him when the judge told him he could not receive community service from a jury because he had already received deferred adjudication for a prior felony.

Punishment was assessed by the trial court.

After sentencing, appellant filed a motion for new trial based upon the State’s alleged suppression of exculpatory evidence.

The trial court refused the motion.

On original appeal, the points of error raised by appellant germane to this second appeal were:

(1) the trial court erred by overruling his motion for new trial

and

(2) the trial court erred in ruling that appellant was not eligible to receive community service from a jury.

As to his argument the State suppressed exculpatory evidence, the Eastland Court held the evidence about which appellant complained of was not exculpatory.

However, the court also held appellant was eligible to  receive community service from a jury in spite of having already been placed on deferred adjudication.

In accordance with TEX.CODE CRIM.P.ANN. art. 44.29(b) (Vernon Supp. 1996), the court affirmed appellant’s conviction, but reversed and remanded the cause as to punishment.

On remand, however, appellant did not file an election to have a jury assess his punishment.

Instead, he proceeded without objection to allow the trial court to again impose his sentence.

After sentencing, appellant filed a motion for new trial alleging he should be granted a new trial as to both guilt-innocence and punishment.

The trial court denied the motion, and this appeal followed.

Suppression Of Exculpatory Evidence

In this direct appeal from the retrial of the punishment phase of his trial, appellant alleges in points of error one and two that his rights to due process and effective assistance of counsel were violated because the State suppressed “exculpatory and material information which was in its possession” during the guilt-innocence phase of his trial.

Appellant argues he was unable to effectively prepare for trial because the State suppressed evidence consisting of allegedly inconsistent statements made by Hosey to Gordon’s internal investigators, and the State used Hosey’s perjured testimony to obtain appellant’s conviction.

He contends, had this information been available to him during the guilt-innocence phase of his trial, he would have been able to impeach Hosey’s trial testimony.

The two points of error bear verbatim repeating here:

(1) “Appellant is illegally confined and restrained of his liberty because his right to due process was violated by the State’s suppression of exculpatory and material information which was in its possession. U.S. Const. amend. XIV; Tex. Const. art. I, § 10;”

and

(2) “Appellant is illegally confined and restrained of his liberty because his right to effective assistance of counsel was violated by the State’s suppression of exculpatory and material information which was in its possession.

U.S. Const. amend. VI; Tex. Const. art. I, § 10.”

As noted above, appellant’s conviction has already been appealed and affirmed.

Easton, No. 11-90-062-CR.

The remand from the Eastland Court of Appeals involved punishment only.

This being so, the trial court was only empowered to proceed to a new determination as to punishment; it had no power to grant appellant a new trial on guilt-innocence.

See TEX.CODE CRIM.P.ANN. art. 44.29(b) (Vernon Supp. 1996); State v. Mapp, 764 S.W.2d 823, 824 (Tex.App. — Houston [14th Dist.] 1989, no pet.).

An appellant may not assert any error that occurred during the guilt-innocence phase of trial when he is appealing from the retrial of only the punishment phase.

Rische v. State, 834 S.W.2d 942, 948 (Tex.App. — Houston [1st Dist.] 1992, pet. ref’d); Sanders v. State, 832 S.W.2d 719, 723-24 (Tex.App. — Austin 1992, no pet.).

Appellant’s complaints regarding evidence allegedly suppressed by the prosecution relates to conduct that occurred during the guilt-innocence phase of appellant’s original trial.

Appellant’s motion for new trial, insofar as it related to suppressed evidence, was untimely and preserved nothing for our review.

Rische, 834 S.W.2d at 948; Sanders, 832 S.W.2d at 723-24.

Appellant contends we may rule on the merits of his claim of suppressed evidence pursuant to TEX.R.APP.P. 2(b).

Rule 2(b) provides that for good cause shown, an appellate court may suspend the requirements and provisions of any rule in a particular case.

Utilizing the authority of rule 2(b), application of the 30-day deadline for filing a motion for new trial provided by TEX.R.APP.P. 31(a)(1) has been suspended to allow an out-of-time motion for new trial under certain circumstances when good cause is shown.

See, e.g., Tuffiash v. State, 878 S.W.2d 197, 198-99 (Tex.App. — San Antonio 1994, pet. ref’d) (out-of-time motion permitted based on newly discovered evidence); Cox v. State, 797 S.W.2d 958, 959 (Tex.App. — Houston [1st Dist.] 1990, no pet.)

(appeal abated and case remanded to trial court to file out-of-time motion for new trial based on no representation by counsel).

Appellant learned of the suppressed evidence before his case was remanded to the trial court for a new punishment hearing.

Despite this knowledge, he did not ask the Eastland Court of Appeals or the Court of  Criminal Appeals to abate his appeal to allow an out-of-time motion for new trial based on the discovery of the allegedly suppressed evidence.

Instead, he waited until the Eastland Court of Appeals affirmed his conviction, the Court of Criminal Appeals refused his petition for discretionary review, and the trial court reassessed punishment after remand before raising this matter.

Appellant has not shown good cause for us to allow him to file an out-of-time motion for new trial.

Appellant’s argument regarding this Court’s authority to set aside his sentence and allow him to pursue an out-of-time motion for new trial relies on Harris v. State, 818 S.W.2d 231, 232-33 (Tex.App. — San Antonio 1991, no pet.).

In Harris, the court of appeals held it had jurisdiction over the defendant’s appeal, and therefore it was not enlarging its own jurisdiction by abating the appeal and remanding the case to the trial court to review an out-of-time motion for new trial based on newly discovered evidence.

Harris, however, is distinguishable, because in that case the defendant’s conviction had not yet been affirmed.

Here, appellant’s conviction was affirmed by the Eastland Court of Appeals and the Court of Criminal Appeals refused his petition for discretionary review.

Pursuant to TEX.CODE CRIM.P.ANN. art. 44.29(b) (Vernon Supp. 1996), only the punishment phase of appellant’s case was remanded for retrial.

Therefore, the trial court was limited to reassessing punishment, and this Court is limited to reviewing errors that allegedly occurred during the punishment retrial.

Rische, 834 S.W.2d at 948; Sanders, 832 S.W.2d at 723-24.

The determination of appellant’s guilt has become final. Hence, the proper remedy for appellant to complain of allegedly suppressed evidence is to file a postconviction writ of habeas corpus.

See, e.g., Ex parte Mitchell, 853 S.W.2d 1, 4 (Tex.Crim.App. 1993)

(habeas relief granted when State suppressed exculpatory and material information).

We overrule appellant’s first and second points of error.

Assessment Of Punishment By Trial Court

Appellant’s point of error three states:

“Appellant is illegally confined and restrained of his liberty because his right to a jury trial was violated by the court’s failure to permit him to seek probation from a jury and was therefore prevented from selecting a jury that was properly qualified to consider the full range of punishment options.”

The Eastland Court of Appeals held appellant could have been given community service by a jury.

The court accordingly reversed the judgment in part and remanded appellant’s cause for assessment of punishment by jury.

Believing the Eastland Court was in error, appellant petitioned the Court of Criminal Appeals for discretionary review.

He contended he was entitled to a new trial on guilt-innocence as well as punishment because the error occurred during voir dire of the jury panel, not in the punishment stage.

The Court of Criminal Appeals refused his petition.

In this appeal, appellant’s argument under this point of error stresses he was not able to effectively voir dire the original jury panel on punishment options.

He contends the Eastland Court of Appeals and the Court of Criminal Appeals were simply in error in holding his case was to be reversed on punishment only.

Therefore, he maintains that he was denied his right to a trial by jury.

Appellant raised this complaint in the original appeal heard by the Eastland Court of Appeals and in his petition to the Court of Criminal Appeals.

To the extent appellant is asking this Court to reverse the decision of a sister appellate court, we are unable to do so.

Long v. State, 820 S.W.2d 888, 890 (Tex.App. — Houston [1st Dist.] 1991, pet. ref’d)

(holding the “law of the case” prevented disposition of questions of law resolved in an earlier appeal of the same case).

Furthermore, to the extent that appellant’s complaint concerns the failure of the trial court to empanel a jury to assess punishment after remand, appellant waived this right.

The Court of Criminal Appeals has consistently held “the constitutional right of trial by jury does not encompass the right to have a jury assess punishment.”

Martin v. State, 753 S.W.2d 384, 389 (Tex.Crim.App. 1988);  see also Bullard v. State, 548 S.W.2d 13, 16-18 (Tex.Crim.App. 1977).

Punishment by jury is a statutory right. Martin, 753 S.W.2d at 389-90.

Article 44.29(b) states if an appellate court reverses and remands for errors in the punishment stage only, the court shall commence the new trial as if a finding of guilt had been returned, and proceed to the punishment stage of the trial.

“If the defendant elects, the court shall empanel a jury for the sentencing stage of the trial in the same manner as a jury is empaneled by the court for other trials before the court.”

TEX.CODE CRIM.P.ANN. art. 44.29(b) (Vernon Supp. 1996) (emphasis added).

Therefore, under article 44.29(b), appellant had the option after remand to choose to have either the court or a jury assess punishment.

There is no constitutional or statutory right, however, to have the court empanel the same jury that determined guilt-innocence to determine punishment.

See TEX.CODE CRIM.P.ANN. art. 37.07(2)(b) (Vernon Supp. 1996)

(if jury returns finding of guilt, trial judge will assess punishment provided that if defendant so elects, the punishment shall be assessed by the same jury except as provided in article 44.29 )

and art. 44.29(b) (Vernon Supp. 1996)

(after remand for punishment only, if defendant elects, the court shall empanel jury for sentencing stage).

Although appellant seems to assert otherwise, article 44.29(b) clearly envisions a new jury will be empaneled after remand.

If appellant had chosen to have the jury assess punishment after remand, he would have had the opportunity to conduct a proper voir dire of the punishment venire.

Appellant, however, neither filed an election requesting a jury be empaneled to assess punishment, nor objected to the trial court’s receiving evidence and assessing his punishment.

Appellant, therefore, waived his right to have a jury impose sentence.

Martin, 753 S.W.2d at 390

(even when defendant filed election to have jury assess punishment, defendant waived the right when she did not object to dismissal of jury, presentation of evidence to trial court or assessment of punishment by trial court);

Hackey v. State, 500 S.W.2d 520, 521 (Tex.Crim.App. 1973)

(absent objection, court will presume defendant agreed trial judge should assess punishment);

Mangham v. State, 833 S.W.2d 705, 708 (Tex.App. — Houston [1st Dist.] 1992, no pet.)

(when defendant files election to have jury assess punishment, but trial court assesses punishment without objection, no reversible error).

We overrule appellant’s third point of error.

We affirm the trial court’s judgment.