Opinion
No. 04-06-00595-CR
Delivered and Filed: April 11, 2007. DO NOT PUBLISH.
Appeal from the 341st Judicial District Court, Webb County, Texas Trial Court No. 2006-CV-60001348-D3 Honorable Elma T. Salinas, Judge Presiding.
Sitting: SANDEE BRYAN. MARION, Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
DISMISSED On February 21, 2007, we issued an opinion reversing the trial court's order on the bond reduction and denying Melendez's motion for personal recognizance release pursuant to article 17.151. We withdraw our opinion and judgment of February 21, 2007, and substitute this opinion and judgment in their stead. Appellant Alfonso Melendez was arrested on April 25, 2006 and charged with robbery and engaging in organized criminal activity in Webb County, Texas. His bail was set in the amount of $100,000.00 on each count. On August 14, 2006, one hundred and eleven days after his arrest, Melendez petitioned for a writ of habeas corpus, complaining of excessive bail based on his detention for more than ninety days without presentment of an indictment. The writ issued, and after a hearing on August 24, 2006, the trial court granted the writ and reduced the aggregate bond to $100,000.00 ($50,000.00 on each count). Melendez asserted that his bail was still unduly excessive and requested that this court reverse the trial court's order. On September 21, 2006, Melendez and his co-defendant were indicted by a Webb County grand jury and on February 5, 2007, Melendez entered a plea of guilty and was sentenced by the trial court to serve 281 days in the Webb County jail with credit for time served. On February 21, 2007, we issued an opinion reversing the trial court's order on the writ and denying Melendez's motion for personal recognizance release pursuant to article 17.151. Tex. Code Crim. Proc. Ann. art. 17.151 (Vernon Supp. 2006). The longstanding rule in Texas regarding habeas corpus is that "where the premise of a habeas corpus application is destroyed by subsequent developments, the legal issues raised thereunder are moot." Bennet v. State, 818 S.W.2d 199, 200 (Tex.App.-Houston [14th Dist.] 1991, no pet.) (quoting Saucedo v. State, 795 S.W.2d 8, 9 (Tex.App.-Houston [14th Dist.] 1990, no pet.)). Melendez was indicted on September 21, 2006 and entered a plea of guilty on February 5, 2007. The writ of habeas corpus is thus rendered moot by the return of the indictment and subsequent plea. See Bennet v. State, 818 S.W.2d 199, 200 (Tex.App.-Houston [14th Dist.] 1991, no pet.) (holding the issue on lowering bail was moot because appellant was now legally confined pursuant to a guilty verdict in the underlying case). See also Acevedo v. State, 18 S.W.3d 775, 777 (Tex.App.-San Antonio 2000, pet. ref'd) (holding that an application for writ of habeas corpus complaining about a delayed indictment is rendered moot by the return of the indictment). Accordingly, we dismiss appellant's appeal as moot. The Clerk of the Court is ordered to issue the mandate of the Court immediately.
On September 21, 2006, Melendez and a co-defendant were indicted by a Webb County grand jury for the offense of Aggravated Robbery. On October 12, 2006, Melendez's trial counsel appeared with Melendez and entered a plea of not guilty to the charged offense. Accordingly, we strongly question Melendez's counsel's decision to file a brief on October 30, 2006, challenging the trial court's bond order when the record clearly establishes that Melendez had been indicted and a new bond was set more than three weeks before the brief was filed. Moreover, on November 17, 2006, the Webb County District Attorney's office filed a motion for extension of time to file its brief. This court granted the motion, as well as a second request received on December 4, 2006. After subsequent attempts by the clerk of this court to reach the District Attorney's office were unsuccessful, this case was set before the court on January 7, 2007. At no time did either defense counsel or the District Attorney's office notify this court of the changes made at the trial court affecting the pending habeas appeal.