MEMORANDUM OPINION Appellant, Juan Valero, appeals the trial court’s denial of his pretrial habeas application. In a single issue, Appellant contends his continued detention while awaiting competency restoration treatment is unconstitutional under the Fourteenth Amendment’s Due Process Clause. We affirm. BACKGROUND The underlying facts are not in dispute. In September 2020, Appellant was indicted for two counts of aggravated assault on a public servant and one count of aggravated robbery. Appellant was arrested on August 5, 2020 and has remained in custody since. Some two months after his arrest, Appellant filed a motion requesting a competency psychiatric evaluation under chapter 46B on the Texas Code of Criminal Procedure. On December 16, 2020, following his forensic psychological evaluation of him, Dr. Jason Dunham filed a report opining Appellant was incompetent to stand trial. Thereafter, on January 12, 2021, the competency court entered an order finding Appellant was incompetent to stand trial and committing him to the “HHSC State Hospital Forensic Admissions Clearinghouse or any other appropriate facility” for a period of 120 days, to commence upon Appellant’s admission into the state facility and for the specific purpose of restoring his competency. On May 25, 2021, Appellant filed a habeas-writ application, alleging his confinement under the trial court’s commitment order had become unlawful because he had yet to be transferred to a state facility. The writ application demanded Appellant’s immediate release. At the first hearing on the writ, held on June 9, 2021, the trial court heard arguments from the parties and took judicial notice of the district clerk’s file in the underlying causes. At the time, Appellant was number twenty-two on the waitlist and was refusing the psychotropic medications being offered to him at the county jail.[1] Recognizing that state hospitals do “phenomenal” work, even “chang[ing] people,” writ counsel urged the trial court to order the state hospital to admit Appellant immediately and thus stop the “torment” of the delusions cause by his mental illness. In short, while he acknowledged the impact the pandemic surely had on wait times for detainees awaiting competency restoration treatment, writ counsel argued the waiting period for Appellant’s transfer had violated the “unnecessary delay”[2] mandate of the state’s competency statutes, such that his confinement was now unlawful. The State sympathized with Appellant’s concern over the current wait times but argued it was not a matter of unnecessary delay; rather, the delay was due to an inadequate number of available beds at the state hospitals. It further argued that Appellant, who was a danger to the community, was properly being held pursuant to the court’s commitment order under chapter 46B (which Appellant did not challenge). After expressing its own frustration with the inadequacy of available resource and the legislature’s failure to address this often-recurring issue—pandemic or not—the trial court explained it could not release Appellant unless he began taking his medication. At writ counsel’s request, the trial court deferred ruling on the writ and entertained further argument and evidence over the course of various subsequent hearings. At the next hearing, held on August 4, 2021, writ counsel reiterated his claim that Appellant was being unlawfully detained. Relevant to this appeal, writ counsel maintained that, barring his immediate transfer to a state hospital for competency restoration treatment, the Due Process Clause required the trial court to either release Appellant on his own recognizance or dismiss the indictments pending against him. Appellant was still number twenty-two on the waitlist and continued to refuse his medication at the county jail. It was undisputed, however, that due to the violent nature of the charges pending against him, as well as that of his criminal history, Appellant could only be transferred to Vernon hospital, a secure facility. There being no statutory mechanism by which to expedite Appellant’s transfer, the trial court indicated it could neither order Appellant’s release nor command that he be bumped to the front of the line for those awaiting treatment. Still, the trial court advised writ counsel he could continue to re-urge his writ claim until he made a final ruling. The following month, the trial court again heard the writ application. The trial court urged Appellant to take his medication, as he was still refusing treatment at the county jail. At that time, upon writ counsel’s request, the trial court ordered that Appellant be re-examined for competency. Dr. Cynthia Rivera found Appellant competent to stand trial, and in late October 2021, Appellant was transferred back to the referring court. But when he was later re-examined by Dr. Dunham for the purposes of pursuing an insanity defense, Appellant was once more found to be incompetent to stand trial,[3] and his case was again transferred to the competency court. On January 25, 2022, based on Dr. Dunham’s report, the competency court entered a second 120-day commitment order to the “HHSC State Hospital Forensic Admissions Clearinghouse or any other appropriate facility” for competency restoration treatment. As a result, Appellant—who had risen to number four on the waitlist before being re-examined by Dr. Rivera at writ counsel’s request— was placed at the back of the line to await transfer to Vernon. At the next two hearings, held on May 5, 2022, and August 24, 2022, respectively, writ counsel reiterated his claim that the delay in transferring Appellant to Vernon rendered his continued detention unlawful under the Due Process Clause of the Fourteenth Amendment, such that he should be immediately either transferred or released. Between May and August 2022, Appellant progressed from number forty-two on the waitlist to number thirty-nine.[4] Ultimately, because Appellant did not qualify for outpatient competency restoration treatment , and because writ counsel (despite being offered the opportunity to do so) did not otherwise present to the trial court a plan suitable for ensuring Appellant’s compliance with psychiatric treatment if released on his own recognizance (thus helping to ensure his and the community’s safety), the trial court denied the writ application. This appeal followed. DISCUSSION Standard of review and applicable law We generally review a trial court’s pretrial habeas ruling for an abuse of discretion. Ex parte Wheeler, 203 S.W.3d 317, 326 (Tex. Crim. App. 2006). However, when the question is one of application of law to the facts, we review the trial court’s ruling de novo. See Ex parte Martin, 6 S.W.3d 524, 526 (Tex. Crim. App. 1999) (en banc). It is well settled that due process does not allow an incompetent defendant to be put to trial. See Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (“We have repeatedly and consistently recognized that ‘the criminal trial of an incompetent defendant violates due process.’” (quoting Medina v. California, 505 U.S. 437, 453 (1992))); Turner v. State, 422 S.W.3d 676, 688-89 (Tex. Crim. App. 2013). “The Legislature has codified this due-process requirement by setting forth a substantive and procedural framework for making competency determinations to ensure that legally incompetent criminal defendants do not stand trial.” Boyett. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018) (citing TEX. CODE CRIM PROC. arts. 46B.003-005). Once found incompetent to stand trial, a defendant may be either committed to a mental-health facility for examination and competency restoration treatment or, if eligible, released on bail for participation in such treatment on an outpatient basis. See TEX. CODE CRIM PROC. art. 46B.071. But when, as here, the defendant is charged with a “violent” felony, the court must commit him to a facility designated by the Health and Human Services Commission for a period not to exceed 120 days. See id. arts. 17.032(11); 46B.001(2); 46B.073(b)(2), (c). The court must then place the defendant in the custody of the sheriff for transportation to the competency restoration facility. Id. art. 46B.075. Appellant’s pretrial writ claim is not cognizable In his sole issue, Appellant contends the trial court erred in denying his habeas application because the continued delay in transferring him to a state hospital violates his due-process rights. The State argues, inter alia, that Appellant’s claim is not cognizable as presented in a pretrial writ. We agree. When a litigant’s success on a pretrial writ claim would not deprive the trial court of jurisdiction or require his immediate release, the claim is not cognizable in a habeas writ. Ex parte Ingram, 533 S.W.3d 887, 892 (Tex. Crim. App. 2017) (“Except when double jeopardy is involved, pretrial habeas is not available when the question presented, even if resolved in the defendant’s favor, would not result in immediate release.”); Ex parte Thompson, No. 10-22-00162-CR, 2022 WL 5239730, at *3 (Tex. App.—Waco Oct. 5, 2022, no pet.) (mem. op., not designated for publication); Ex parte McVade, Nos. 03-17-00207-CR, 03-17-00208-CR, 03-17-00209-CR, 2017 WL 4348151, at *3 (Tex. App.—Austin Sept. 28, 2017, no pet.) (mem. op., not designated for publication). “Applying judicial restraint, a substantive due process analysis begins with a careful description of the asserted right[,] as the courts are required to exercise the utmost care whenever asked to ‘break new ground in this field.’” Ex parte Thompson, 2022 WL 5239730 at *3 (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)). And while Appellant contends he is entitled to immediate release because his due-process rights have been violated, “[no] section of Chapter 46B, create[s] a substantive right that impacts [Appellant's] liberty interests.” See id. at *4; see also TEX.CODE CRIM PROC. art. 46B.012 (providing that non-compliance with chapter does not entitle defendant to dismissal of the charges). In essence, Appellant attempts to assert a fundamental right to immediate or speedy transfer to a mental-health facility. Alternatively, what he seeks is the enforcement and implementation of the trial court’s commitment order, albeit a speedier one. But “[n]o such fundamental right exists in the United States Constitution, nor has the United States Supreme Court identified such a fundamental right.” See Ex parte Thompson, 2022 WL 5239730 at *4. Appellant points us to no legal authority to support this attempted assertion of a fundamental right, and he otherwise presents no challenge to the trial court’s commitment order, the trial court’s compliance with the applicable statutory procedures, or the statutory provisions under which he was detained for competency restoration in the first place. See id. at *1, 4 (where, as here, appellant did not challenge validity of competency commitment order, instead asserting a due-process violation from the delay in commencement of competency restoration treatment, appellant’s pretrial writ claim is not cognizable because he does not have a fundamental due-process right to being transferred to a mental-health facility within a “reasonable” time); see also Ex parte McVade, 2017 WL 4348151 at *3-5 (appellant’s pretrial writ claim was not cognizable where he did not challenge the validity of the court’s commitment order or the statutory procedures for competency restoration commitment and treatment, in effect seeking enforcement of the commitment order by requesting immediate transfer to Vernon hospital or else be immediately released). Thus, because Appellant fails to identify a substantive due-process right that has been violated by his continued detention or show he is entitled to immediate release, he does not present a cognizable pretrial writ claim. Even if cognizable, Appellant fails to show his due-process rights have been violated Even if Appellant’s pretrial writ claim were cognizable, he has failed to demonstrate a violation of his due-process rights. Appellant specifically contends chapter 46B is unconstitutional as it applies to him because it allows the State to hold him “indefinitely.” But any assertion that Appellant is being held “indefinitely” is not supported by this record, which shows that between the time of the first writ hearing in June 2021 and Appellant’s transfer back to the referring court in October 2021, Appellant progressed from number twenty-two to number four on the waitlist. As noted by the trial court, further delay in Appellant’s progression on the waitlist was caused by the intervening finding of competency, which resulted from writ counsel’s request for a second evaluation. When Appellant was again found incompetent to stand trial in January 2022, he had to be returned to the back of the line. Nonetheless, it is undisputed that between the final two hearings in May and August of 2022, Appellant had gone from number forty-two to number thirty-nine on the waitlist.[5] Nor do the cases cited in Appellant’s brief advance his claim. Appellant generally cites to Trueblood v. Washington State Dept. of Social and Health Servs., 822 F.3d 1037 (9th Cir. 2016), but he does so only to state that “[i]n Washington State, time limits are set to have the Defendant evaluated for competency.” Appellant does not explain how this statement supports his claim that the post-evaluation waiting period for transfer to a state facility for competency restoration services in this case is unconstitutional.[6] See Wells v. State, No. 08-09-00110-CR, 2010 WL 3009306, at *3 (Tex. App.—El Paso July 30, 2010, pet. ref’d) (not designated for publication) (“Merely setting out a general legal principle with supporting case law is not sufficient to adequately brief a point of error. Rather, Appellant bears the burden of providing a supporting argument, analyzing the cases cited[,] and applying those cases to the facts at hand.”). Appellant then cites to Harris v. Clay County, 47 F.4th 271, 272 (5th Cir. 2022), for the proposition that the state must either civilly commit an incompetent defendant or otherwise release him. Appellant’s reliance on Harris‘s commit-or-release rule is misplaced. Citing to Jackson v. Indiana 406 U.S. 715, 738 (1972), the Harris Court held that the defendant’s six-year-long, continued detention violated due process where there was no reasonable expectation of restored competency. See Harris, 47 F.4th at 279. Such is not the case before us. Appellant does not dispute Dr. Dunham’s opinion that, with the proper competency treatment, he will regain his competency; indeed, the impetus for the writ application was writ counsel’s desire to get Appellant treated and his competency restored. Appellant provides no “analysis, discussion, or argument in support of the cases he cites, explaining how they apply to the facts [of this] case,” Wells, 2010 WL 3009306 at *3, nor does he otherwise explain how the legal authority provided supports a finding of a due-process violation. Thus, even if Appellant’s claim were cognizable in a pretrial writ, Appellant has failed to demonstrate on appeal that the trial court’s denial of the requested relief violated Appellant’s due- process rights. For this additional reason, we overrule Appellant’s sole issue on appeal. CONCLUSION Having overruled Appellant’s sole point of error, we affirm.[7] YVONNE T. RODRIGUEZ, Chief Justice February 13, 2023 Before Rodriguez, C.J., Soto, J., and Marion, C.J. (Ret.) Marion, C.J. (Ret.) (Sitting by Assignment) (Do Not Publish)
