Ex parte Lowery

204 S.W.2d 519, 151 Tex. Crim. 45, 1947 Tex. Crim. App. LEXIS 1021

• Court: Court of Criminal Appeals of Texas
• Decided: May 28, 1947
• Docket: No. 23741
• Status: Published

Opinions

BEAUCHAMP, Judge.

This is an appeal from the County Court of Nacogdoches County from an order of the county judge remanding relator to the custody of the sheriff until he makes bond in the sum of $300.00, conditioned as required by law.

Capias was issued in this cause on the 28th day of April, 1947. On the same date the sheriff made his return, showing that he executed the same at four-twenty P. M. by arresting appellant, “* * * and taking bond, which is herewith returned.” On the 30th day of April appellant filed his petition saying that he was illegally restrained of his liberty.

The application for writ of habeas corpus referred to the capias as a basis for the writ, saying that he was unable to attach a copy because it was in the hands of the sheriff. In answer to the writ the sheriff attached a copy of the capias, showing the foregoing facts, as to the arrest and the making of bond. This answer is as much a part of the record as the application itself, and it is shown by the completed pleadings in the case that the applicant was not in the custody of the sheriff. The procedure that took place thereafter was immaterial. The question appears in the record as moot. For this reason the appeal is dismissed.