In Re Duncan , 2001 Tex. App. LEXIS 8090 ( 2001 )

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 reason. 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.

1 . Respondent is the Honorable Brian Rains, judge of the 176th District Court, Harris County, Texas. The underlying case is The State of Texas v. John Mark Duncan, cause number 821433 in the district court.

2 . See State ex rel. Hill v. Court of Appeals for the Fifth District, 34 S.W.3d 924, 927-29 (Tex.Crim.App.2001).