Opinion
No. 10-15-00237-CR
01-28-2016
EX PARTE RONALD ATTERBURY
From the 54th District Court McLennan County, Texas
Trial Court No. 2015-2276-2
MEMORANDUM OPINION
Ronald Atterbury filed an application for writ of habeas corpus, asserting that he was being illegally confined because the arrest-warrant affidavit under which he is being confined and restrained "is wholly insufficient to establish probable cause that Applicant has committed ANY OFFENSE WHATSOEVER."
After an evidentiary hearing, the trial court found that the affidavit established probable cause and denied habeas relief on that basis. Atterbury appeals, asserting in his sole issue that the affidavit is legally insufficient to provide any credible information that would persuade a neutral magistrate that probable cause existed for the issuance of the arrest warrant for Atterbury, an admitted member of the Cossacks Motorcycle Club. See, e.g., Ex parte Pilkington, --- S.W.3d ---, 2015 WL 4985600 (Tex. App.—Waco Aug. 20, 2015, no pet. h.) (upholding magistrate's probable-cause conclusion).
Atterbury's appeal of his habeas proceeding is dismissed as moot because he has since been indicted, which establishes probable cause as a matter of law and thus renders moot his habeas proceeding. See Ex parte Welch, 729 S.W.2d 306, 309 (Tex. App.—Dallas 1987, no pet.) (citing Ex parte Plumb, 595 S.W.2d 544, 545 (Tex. Crim. App. [Panel Op.] 1980) ("The return of an indictment establishes probable cause as a matter of law.")).
In response to an inquiry from the Clerk, Atterbury's counsel confirmed that Atterbury was indicted on the underlying offense.
Atterbury asserts that we should not find mootness because, despite the indictment, the affidavit is defective and a mootness finding after indictment "allows a prosecuting authority and/or trial court to illegally restrain a citizen pending such indictment, therefore affording no remedy to a citizen accused." Atterbury cites no supporting authority, and we have already held that, based on an identical affidavit, the magistrate had a substantial basis for a probable-cause determination. See Pilkington, --- S.W.3d at ---, 2015 WL 4985600, at *6. --------
REX D. DAVIS
Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins (Chief Justice Gray concurs with a note.)*
Dismissed
Opinion delivered and filed January 28, 2016
Do not publish
[CR25]
*(Chief Justice Gray concurs without a separate opinion. He notes, however, that he expressly dissented to the Pilkington case cited in footnote 2 and the holding therein is of questionable precedential value because it too became moot by an indictment before a motion for rehearing could be addressed on its merits or reviewed by the Court of Criminal Appeals on a petition for discretionary review.)