Exparte Jose Isabel Martinez-Hernandez

Opinion

MEMORANDUM OPINION No. 04-11-00863-CR

EX PARTE JOSE ISABEL MARTINEZ-HERNANDEZ

From the 341st Judicial District Court, Webb County, Texas Trial Court No. 2011-cvk-001615-D2 Honorable Elma T. Salinas-Ender, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sandee Bryan Marion, Justice Rebecca Simmons, Justice Steven C. Hilbig, Justice

Delivered and Filed: September 12, 2012

AFFIRMED

This is an appeal from the trial court’s denial of appellant’s application for writ of habeas

corpus. We affirm.

DISCUSSION

On October 5, 2011, appellant was arrested without a warrant and charged with

aggravated sexual assault of an elderly or disabled person. On that same date, a complaint was

filed. A few weeks later, another complaint was filed charging appellant with burglary of a

habitation, a charge arising from the same incident as the aggravated assault. On January 18,

2012, appellant was indicted on both offenses. The trial court set bail at $100,000. 04-11-00863-CR

On appeal, appellant contends he was arrested pursuant to the first complaint, which did

not allege probable cause. Therefore, appellant asserts the trial court erred in denying his

application for a writ of habeas corpus because he was entitled to bail set at an amount not to

exceed $10,000 pursuant to Texas Code of Criminal Procedure article 17.033(b), which provides,

in pertinent part, that

. . . a person who is arrested without a warrant and who is detained in jail must be released on bond, in an amount not to exceed $10,000, not later than the 48th hour after the person’s arrest if the person was arrested for a felony and a magistrate has not determined whether probable cause exists to believe that the person committed the offense. . . . .

TEX. CODE CRIM. PROC. ANN. art. 17.033(b) (West 2005).

Habeas corpus is by definition an extraordinary writ in which the restraint of one’s liberty

is challenged as illegal. See TEX. CODE CRIM. PROC. ANN. arts. 11.01 and 11.23 (West 2005);

Saucedo v. State, 795 S.W.2d 8, 9 (Tex. App.—Houston [14th Dist.] 1990, no pet.). However,

where the premise of a habeas corpus application is destroyed by subsequent developments, the

legal issues raised are rendered moot. See Ex parte Branch, 553 S.W.2d 380, 381 (Tex. Crim.

App. 1977); Saucedo, 795 S.W.2d at 9. Even if appellant was arrested pursuant to a complaint

that did not allege probable cause, he has since been indicted; therefore, his argument under

article 17.033(b) is moot. Except for his argument under article 17.033(b), appellant does not

otherwise challenge the amount of his bail. Therefore, we do not consider whether the bail

amount of $100,000 was excessive. For these reasons, we affirm the trial court’s order.

Sandee Bryan Marion, Justice

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