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Click here for the full text of this decision FACTS:Appellant was charged in a facially valid indictment with the felony offense of aggravated assault. This indictment alleged that appellant “intentionally, knowingly and recklessly” caused serious bodily injury to the victim “by causing [the victim] to ingest liquid.” Apparently, the victim was seriously injured when appellant and several others forced him to drink large quantities of water as part of the victim’s initiation into a college fraternity in which appellant and the others were members. The other participants in this incident were also indicted for aggravated assault. Appellant claimed in a motion to quash that he could be prosecuted only for the Class A misdemeanor offense of hazing under an application of the in pari materia doctrine. Following an evidentiary hearing, the trial court denied appellant’s motion to quash/pretrial writ of habeas corpus. On appellant’s direct appeal from this ruling, the court of appeals decided that appellant’s in pari materia claim is not cognizable by pretrial writ of habeas corpus. HOLDING:Affirmed. Ex parte Weise can be read to support the general principle that a claim is cognizable in a pretrial writ of habeas corpus if, resolved in the defendant’s favor, it would deprive the trial court of the power to proceed and result in the appellant’s immediate release. Ex parte Weise, 55 S.W.3d 617 (Tex.Cr.App. 2001). In Ex parte Smith, No. PD-0616-04 (Tex.Cr.App., delivered Oct. 19, 2005), the court stated that “[b]ecause the denial of habeas corpus relief, based on fundamental constitutional principles, permits an interlocutory appeal, appellate courts are careful to ensure that a pretrial writ is not misused”to secure pretrial appellate review of matters that in actual fact should not be put before appellate courts at the pretrial stage.’” This court has decided that a defendant has a due process right to be prosecuted under a special statute that is in pari materia with a broader statute when these statutes irreconcilably conflict. If meritorious, the claim presented in appellant’s pretrial writ of habeas corpus “would bar prosecution” for the felony offense of aggravated assault. Nevertheless, the court decides that appellant’s in pari materia claim is not cognizable in a pretrial writ of habeas. The court notes that the indictment is valid on its face. Appellant can pursue his in pari materia claim on appeal if necessary. Appellant’s in pari materia claim is not yet ripe for review. “[W]e believe it apparent from the portions of the record set out above that the State has more evidence to present about which we can only speculate at this time.” An appellate decision on the in pari materia claim would be premature before the state has had an opportunity to develop a complete factual record during a trial. Deciding the in pari materia claim now on what would amount to a hypothetical set of facts that might be presented at appellant’s trial would be merely advisory. OPINION:Hervey, J., delivered the court’s opinion.

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