Opinion
NO. 01-16-01015-CR
03-07-2017
EX PARTE MATTHEW WARE
On Appeal from the 344th District Court Chambers County, Texas
Trial Court Cause No. 19024
MEMORANDUM OPINION
On December 9, 2016, appellant, Matthew Ware, through counsel, filed a pre-trial petition for a writ of habeas corpus in the county court after being confined for a Class B misdemeanor offense of theft of property valued $100-$750. Appellant contends that the trial court was required to release him on a personal bond because the State was not ready for trial within fifteen days of his being arrested for a misdemeanor on November 7, 2016. On December 30, 2016, appellant attempted to appeal from the order, signed by the Honorable Jimmy Sylvia, Chambers County Judge, on December 20, 2016, denying his habeas petition by filing an appellant's brief in this Court attaching the petition and the order. See TEX. R. APP. P. 26.2(a)(1), 31.1. Neither a letter of assignment nor a notice of appeal was filed apparently because no trial court cause number had been assigned yet.
See TEX. CODE CRIM. PROC. ANN. art. 11.05 (West Supp. 2016) (listing Court of Criminal Appeals, district and county courts, but not courts of appeals, as courts having power to issue writs of habeas corpus); id. art. 11.09 ("If a person is confined on a charge of misdemeanor, he may apply to the county judge of the county in which the misdemeanor is charged to have been committed . . . ."); TEX. PENAL CODE ANN. §§ 12.22(2), 31.03(e)(2)(A) (West Supp. 2016) (noting that theft of property between $100-$750 was Class B misdemeanor offense which is punishable up to 180 days in jail).
See TEX. CODE CRIM. PROC. ANN. art. 17.151 § 1(3)(West Supp. 2016) (stating that defendant must be released either on personal bond or by reducing bail required if State is not ready for trial within 15 days from commencement of detention if accused of misdemeanor punishable by sentence of imprisonment for 180 days or less).
On January 13, 2017, the State filed a letter requesting dismissal of the appeal as moot because the grand jury had just indicted appellant on January 12, 2017, for the state jail felony offense of theft of property of a value less than $2,500 and appellant had been previously convicted of two prior theft convictions. On January 19, 2017, this Court had ordered the State to file a formal motion to dismiss within seven days of that order. On January 31, 2017, appellant filed a motion in this Court for an order to release him because the State had failed to file its motion on time.
The State had indicated in its initial response that when appellant had been arrested, he was incorrectly charged with misdemeanor theft due to a clerical error when he should have been charged with a state-jail felony theft due to his being on community supervision and having two prior theft convictions. See TEX. PENAL CODE ANN. § 31.03(e)(4)(D).
We dismiss this appeal for lack of jurisdiction and dismiss the appellant's motion as moot.
An appeal must be dismissed if a certification showing that the defendant has the right of appeal has not been made part of the record. TEX. R. APP. P. 25.2(d); see Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). The Clerk of this Court requested, among other documents, certified copies of appellant's indictment and the trial court's certification of appellant's right of appeal from the December 20, 2016 order denying his habeas petition, if any, from the trial clerk because there was neither a clerk's record filed nor a certification attached to that order. See TEX. R. APP. P. 25.2(a)(2), (d), 31.1, 37.1.
On February 6, 2017, the district clerk filed a clerk's record in this Court attaching, among other documents, appellant's indictment, issued on January 12, 2017. A district court "docket book report" was also attached noting that appellant's case file was transferred from the county clerk on February 3, 2017, to the 344th District Court, the Honorable Randy McDonald presiding, and assigned the underlying district court cause number 19024. The district clerk also attached a certification, signed on February 6, 2017, stating that no trial court's certification of appellant's right of appeal of the order denying his habeas petition was on file, see TEX. R. APP. P. 25.2(d), due to "the defendant not accepting a plea" as of that date.
Although Rule 25.2(d) requires this Court to dismiss a criminal appeal when the appellate record does not contain a certification showing that appellant has the right to appeal, Rule 44.4 prohibits us from dismissing a criminal appeal based on the lack of a valid certification if the appellant has a right to appeal. See TEX. R. APP. P. 25.2(d), 44.4(a); see also Dears, 154 S.W.3d at 615. "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." Ex parte Guerrero, 99 S.W.3d 852, 853 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (internal quotation marks and citation omitted) (mem. op.) (granting State's motion to dismiss appeal of pre-trial habeas application seeking a bond reduction after appellant posted bond and was released).
Once appellant was indicted for a state-jail felony in the district court, his pre-conviction habeas petition, challenging his confinement on a misdemeanor charge for which the State was not ready for trial more than fifteen days after his detention, under Articles 11.09 and 17.151, Section 1(3), became moot because he was then confined under a felony charge. See Guerrero, 99 S.W.3d at 853; cf. Ex parte McNeil, 772 S.W.2d 488,489 (Tex. App.—Houston [1st Dist.] 1989, no pet.) (noting that "[w]here there is no indictment, the State cannot announce ready for trial") (citing Pate v. State, 592 S.W.2d 620 (Tex. Crim. App. 1980)). We therefore lack jurisdiction over this appeal from the county court which became moot after appellant's indictment. See Guerrero, 99 S.W.3d at 853.
Accordingly, we dismiss this appeal for want of jurisdiction as moot. See TEX. R. APP. P. 25.2(d), 43.2(f). We dismiss all pending motions as moot.
PER CURIAM Panel consists of Justices Jennings, Higley, and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).