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Criminal Law Click here for the full text of this decision The petitioner argues that, in light of the fact the trial court erred so grievously by delaying a hearing on his First Application for more than two months, and then by releasing him only on a bond rather than granting unconditional release as demanded by law, this was an unconstitutional infringement on individual liberty that cannot be rendered acceptable by an untimely governor’s warrant. The court does not agree that a later, properly issued governor’s warrant should be disregarded. FACTS:In this appeal, the court considers whether the untimely handling of one application for writ of habeas corpus requires that a subsequent application for writ of habeas corpus be granted. HOLDING:Affirmed. Werne appeals the trial court’s denial of his Second Application. Werne’s four points of error on appeal assert the trial court erred by: 1. refusing to release Werne unconditionally on his First Application; 2. not conducting a timely hearing on his First Application; 3. denying Werne’s Second Application in light of his prior illegal detention; and 4. by denying Werne’s right to counsel at the time he filed his First Application. In his third point of error, Werne contends the trial court erred by denying his Second Application. In this Second Application, Werne sought to challenge his pretrial incarceration based on the Texas governor’s warrant. Werne argues on appeal that the trial court’s failure to grant relief on his First Application deprived him of his constitutional right to liberty and that this deprivation cannot be cured by subsequent issuance and service of a valid governor’s warrant. The court agrees with the trial court’s subsequent acknowledgment that, in failing to release Werne unconditionally after the first habeas corpus hearing, it erred. The existence of error on the First Application does not, however, resolve the issue presented in the case now before this court �- whether the trial court erred in denying Werne’s Second Application. Werne does not contest the propriety of the warrant issued by the governor. Instead, Werne argues that, in light of the fact the trial court erred so grievously by delaying a hearing on his First Application for over two months, and then by releasing him only on a bond rather than granting unconditional release as demanded by law, this constituted an unconstitutional infringement on individual liberty that cannot be rendered acceptable by an untimely governor’s warrant. The court cannot agree that a later, properly issued governor’s warrant should be disregarded. Werne takes the position that his second incarceration constitutes a form of constitutional error because he was unlawfully jailed while the trial court disregarded his efforts to obtain the freedom to which he was entitled. It is true that, if a liberty interest is created by a statute, due process concerning that liberty interest requires notice and a meaningful opportunity to be heard. In this case, Werne’s liberty interests were denied in connection with the First Application. Werne asks this court to recognize those errors in its review of the Second Application and to penalize the trial court for its previous failures by directing that the state be prohibited from enforcing the current governor’s warrant. The state suggests that the court might instead merely treat these as two separate proceedings and not consider one in reviewing the other. The court declines both invitations. The court will not declare that there is no instance in which such an error might be so great as to fatally corrupt a later proceeding. In this case, however, it does not so conclude. The error was ultimately rectified, although at the cost of six unnecessary weeks in jail for Werne. That error, however, has not contaminated the present proceeding, which involves a proper governor’s warrant and arrest pursuant to that warrant. Even were the court to find it proper to fully merge these two proceedings and apply the rule controlling its review of harm resulting from error of constitutional magnitude, it would not find reversible error. In such a review, the court must reverse the judgment of the trial court unless it determines beyond a reasonable doubt the error did not contribute to the conviction. When performing this analysis, the Texas Court of Criminal Appeals has held that the following factors are to be considered: 1. the source of the error; 2. the nature of the error; 3. whether the error was emphasized and its probable collateral implications; 4. the weight a juror would probably place on the error; and 5. whether declaring the error harmless would encourage the state to repeat it with impunity. Orona v. State, 791 S.W.2d 125 (Tex. Crim. App. 1990). No single factor is dispositive. Instead, the existence and severity of these factors are indicative of the harm caused by the improper conduct. In this case, only the first and fifth factors are implicated by this analysis. The source of the error was evidently the court itself. That alone is of substantial importance. The fifth factor is whether declaring this behavior harmless would encourage the court to repeat it, confident that it could do so with impunity. This court is not convinced the trial court would choose to act in such a fashion. The judicial system rests on the trial courts’ timely and correct application of the law, and in the absence of any indication that the error by this trial court was intentional, as opposed to accidental or inadvertent, this court is unwilling to assume the trial court would willfully ignore the law. It therefore finds no harm. OPINION:Morriss, C.J.; Morriss, C.J., Ross and Carter, JJ.

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