In Re Duncan

Court of Appeals of Texas

In Re Duncan

62 S.W.3d 333, 2001 Tex. App. LEXIS 8090, 2001 WL 1551124

CourtCourt of Appeals of Texas

DecidedDecember 5, 2001

Docket01-01-00997-CV

StatusPublished

Cited by25 cases

This text of 62 S.W.3d 333 (In Re Duncan) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In Re Duncan, 62 S.W.3d 333, 2001 Tex. App. LEXIS 8090, 2001 WL 1551124 (Tex. Ct. App. 2001).

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OPINION

PER CURIAM.

The relator, John Mark Duncan, filed in this Court a petition for writ of mandamus, complaining that respondent¹ issued an alias capias arrest warrant without valid [334]*334reason. Relator was convicted by a jury of aggravated sexual assault. In accordance with the jury’s punishment recommendation, respondent sentenced relator to five years confinement, and placed him on community supervision for 10 years. Confinement was not ordered as a condition of community supervision. Relator filed a timely notice of appeal and motion for new trial. Respondent set bond pending appeal at $10,000. Three days later, respondent issued an alias capias for relator’s arrest because relator was ineligible for an appeal bond. See Tex.Code CRiM. PROC. Ann. art. 42.12 § 3g(a)(l)(E) (Vernon Supp.2002), art. 44.04(b) (Vernon Pamph. 2002). The petition for writ of mandamus followed.

On October 30, 2001, we granted temporary relief, stayed the order of the trial court, and ordered that relator be released on $10,000 bond pending further ruling on relator’s petition. We further requested a reply from respondent.

Respondent’s reply was filed on November 7, 2001. Respondent argues that mandamus is not a proper remedy because he had no ministerial duty to disregard the plain language of article 44.04(b) of the Code of Criminal Procedure, or to hold that statute unconstitutional.² Respondent further argues that the mandamus is moot. The reply includes an order issued by respondent on November 5, 2001, withdrawing his order issuing the alias capias arrest warrant and commitment order in cause number 821433, and ordering relator released on $10,000 bond.

Accordingly, we do not reach the merits of the issues raised. The petition for writ of mandamus is dismissed as moot.

Justice COHEN concurring in a separate opinion.

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OPINION

PER CURIAM.

The relator, John Mark Duncan, filed in this Court a petition for writ of mandamus, complaining that respondent¹ issued an alias capias arrest warrant without valid [334]*334reason. Relator was convicted by a jury of aggravated sexual assault. In accordance with the jury’s punishment recommendation, respondent sentenced relator to five years confinement, and placed him on community supervision for 10 years. Confinement was not ordered as a condition of community supervision. Relator filed a timely notice of appeal and motion for new trial. Respondent set bond pending appeal at $10,000. Three days later, respondent issued an alias capias for relator’s arrest because relator was ineligible for an appeal bond. See Tex.Code CRiM. PROC. Ann. art. 42.12 § 3g(a)(l)(E) (Vernon Supp.2002), art. 44.04(b) (Vernon Pamph. 2002). The petition for writ of mandamus followed.

On October 30, 2001, we granted temporary relief, stayed the order of the trial court, and ordered that relator be released on $10,000 bond pending further ruling on relator’s petition. We further requested a reply from respondent.

Respondent’s reply was filed on November 7, 2001. Respondent argues that mandamus is not a proper remedy because he had no ministerial duty to disregard the plain language of article 44.04(b) of the Code of Criminal Procedure, or to hold that statute unconstitutional.² Respondent further argues that the mandamus is moot. The reply includes an order issued by respondent on November 5, 2001, withdrawing his order issuing the alias capias arrest warrant and commitment order in cause number 821433, and ordering relator released on $10,000 bond.

Accordingly, we do not reach the merits of the issues raised. The petition for writ of mandamus is dismissed as moot.

Justice COHEN concurring in a separate opinion.

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Bluebook (online)

62 S.W.3d 333, 2001 Tex. App. LEXIS 8090, 2001 WL 1551124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-duncan-texapp-2001.

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