Opinion
No. 08-15-00163-CR
02-19-2016
THOMAS LEONARD, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from the 120th District Court of El Paso County, Texas (TC# 20110D02415) OPINION
This appeal is before the Court on its own motion to determine whether this appeal from the trial court's order refusing to reduce the appeal bond should be dismissed for want of jurisdiction because Appellant has been released on an appeal bond. We dismiss the appeal for want of jurisdiction.
On May 14, 2015, Appellant filed his notice of appeal from the trial court's "denial of an oral bond reduction motion made on April 17, 2015." In a motion for extension of time to file his brief, Appellant stated that the trial court, on October 22, 2015, "released Appellant on a personal recognizance bond, albeit with the unconstitutional asset forfeiture provision still in effect." The Court sent a letter to both Appellant and the State requesting that they address whether Appellant's release on bond rendered this appeal moot. In his response, Appellant concedes that an appeal from the trial court's order refusing to reduce the appeal bond is moot, but he maintains there is a viable issue related to a bond condition.
It is well established that an appellate court does not have jurisdiction to decide moot controversies and render advisory opinions. See TEX.CONST. art. II, § 1; National Collegiate Athletic Association v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). If events occurring during the pendency of the appeal cause the matter before the court to become moot, the appellate court is prohibited from deciding it. See Heckman v. Williamson County, 369 S.W.3d 137, 162 (Tex. 2012).
Appellant has a statutory right to a separate, accelerated appeal from the trial court's order setting his bail pending appeal. See TEX.CODE CRIM.PROC.ANN. art. 44.04(g)(West Supp. 2015); Ortiz v. State, 299 S.W.3d 930, 932-33 (Tex.App.--Amarillo 2009, no pet.). "The object of bail is to permit the defendant to retain some measure of liberty until there has been a final disposition of the accusations brought against him." Faerman v. State, 966 S.W.2d 843, 848 (Tex.App.--Houston [14th Dist.] 1998, no pet.). Consequently, the separate appeal from the trial court's order setting the appeal bond is accelerated in order to provide the defendant with a meaningful review and ensure that bail issues are resolved early in the appellate process when the defendant can still benefit from a bond. Id.
During the pendency of this appeal, the trial court entered a new appeal bond order and Appellant was released on a PR bond. Thus, the interests which the Legislature sought to protect by enacting Article 44.04(g) have been fully observed. As Appellant concedes, his appeal from the trial court's original order setting his bond has become moot. See Ex parte Follis, No. 01-14-00873-CR, 2015 WL 447786, at *1 (Tex.App.--Houston [1st Dist.], Jan. 27, 2015, no pet.) (citing Ex parte Guerrero, 99 S.W.3d 852, 853 (Tex.App.--Houston [14th Dist.] 2003, no pet.)).
Appellant contends that his appeal is not entirely moot because he intends to raise an issue related to the trial court's order which includes a condition that he forfeit his personal firearm as a condition of the PR bond. More specifically, he argues that the trial court's order resulted in an unconstitutional forfeiture of his personal property because the State was excused from complying with the requirements of Chapter 59 of the Code of Criminal Procedure. See TEX.CODE CRIM.PROC.ANN. art. 59.01-59.14 (West 2006 & Supp. 2015). A trial court is authorized to impose reasonable bail conditions pending the finality of the conviction. See TEX.CODE CRIM.PROC.ANN. art. 44.04(c)(West Supp. 2015); Ex parte Valenciano v. State, 720 S.W.2d 523, 524 (Tex.Crim.App. 1986); Speth v. State, 939 S.W.2d 769, 771 (Tex.App.--Houston [14th Dist.] 1997, no pet.). Further, a defendant may challenge unreasonable bail conditions by writ of habeas, or by an appeal brought pursuant to Article 44.04(g). The only interest that is furthered by a defendant's right to remain free during appeal is the interest in protecting the defendant from an erroneous judgment. See Ex parte Anderer, 61 S.W.3d 398, 405 (Tex.Crim.App. 2001). In an appeal challenging a condition of an appeal bond, the sole issue is, while the defendant is free on appeal, what conditions on his freedom are reasonable? Id. We are required to consider the balance between the appellant's interest in being protected from an erroneous judgment against society's interest in enforcing the penal laws. Id. at 406. The Court of Criminal Appeals emphasized in Anderer that a primary interest to be considered is society's interest in insuring public safety. Id.
Both the original order setting the appeal bond and the order entered on October 22, 2015 included a condition that Appellant forfeit his personal firearm as a condition of the bond. Appellant did not file a notice of appeal from the October 22, 2015 order.
See e.g., Ex parte Anderer, 61 S.W.3d 398 (Tex.Crim.App. 2001).
See e.g., Cuellar v. State, 985 S.W.2d 656 (Tex.App.--Houston [1st Dist.] 1999, no pet.). --------
In his response to our letter asking the parties to address whether the appeal has become moot by his release on bond, Appellant has provided the Court with a 25-page brief, not including numerous exhibits, setting forth his challenge to this bail condition in considerable detail. Appellant argues that the condition is improper because (1) the property was forfeited even though the State has not complied with the requirements set forth in Chapter 59 of the Code of Criminal Procedure, (2) the trial court did not have jurisdiction to order an asset forfeiture, (3) he has been deprived of his property without adequate notice or an opportunity to be heard in violation of the Due Process Clause, and (4) the condition violated his Fourth Amendment right to be free from unreasonable searches and seizures. None of Appellant's arguments relate to the issue presented by this limited appeal, that is, whether the bail condition is a reasonable one under the test set forth in Ex parte Anderer. We conclude that Appellant's arguments related to the purportedly illegal firearm forfeiture cannot be addressed in this appeal. The appeal is dismissed for lack of jurisdiction. All pending motions are denied as moot.
STEVEN L. HUGHES, Justice February 19, 2016 Before McClure, C.J., Rodriguez, and Hughes, JJ. (Do Not Publish)