Ex Parte Jorge Luis Berber ( 2016 )

Opinion issued June 7, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00165-CR
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EX PARTE JORGE LUIS BERBER
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Case No. 1396263
MEMORANDUM OPINION
Jorge Luis Berber appeals the denial of a pretrial application for writ of
habeas corpus seeking a bond reduction. We dismiss the appeal as moot.
Background
Berber was charged in trial court cause number 1396263 with the offense of
aggravated robbery. On August 1, 2013, the trial court set bond at $30,000. On
November 3, 2013, Berber posted a $30,000 bond through Accredited Surety &
Casualty, Inc.
On February 22, 2016, acting pro se, Berber filed an application for pretrial
writ of habeas corpus to reduce bond and “for show cause for insufficient
evidence.” According to Berber’s application, he was placed back in custody on or
about July 7, 2015, and a bond was set at $75,000.
On February 23, 2016, the trial on the aggravated robbery charge began
before a jury. The jury found Berber guilty and sentenced him to 12 years’
confinement in the Texas Department of Criminal Justice, Institutional Division.1
Discussion
A defendant may file a pretrial writ of habeas corpus seeking bail reduction
or release on personal recognizance bond. TEX. CODE CRIM. PROC. arts. 11.24,
17.151. However, “where the premise of a habeas corpus application is destroyed
by subsequent developments, the legal issues raised thereunder are rendered
moot.” Bennet v. State, 818 S.W.2d 199, 200 (Tex. App.—Houston [14th Dist.]
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The record before us on appeal includes the trial court’s oral pronouncement of
guilt and sentencing, but not the trial court’s written judgment. However, Berber’s
appeal from his conviction is pending before the Court in case number 01-16-
00223-CR, and the clerk’s record in that cause number includes the trial court’s
written judgment. We take judicial notice of the trial court’s final judgment in
appellate case number 01-16-00223-CR. TEX. R. EVID. 201(b)(2) (“The court may
judicially notice a fact that is not subject to reasonable dispute because it: . . .
(2) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.”); TEX. R. EVID. 201(d) (“The court may take judicial
notice at any stage of the proceeding.”).
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1991, no pet.) (quoting Saucedo v. State, 795 S.W.2d 8, 9 (Tex. App.—Houston
[14th Dist.] 1990, no pet.)). An appeal from the denial of a pretrial writ of habeas
corpus seeking bail reduction is rendered moot if the defendant is tried and
convicted. Ex parte Tucker, 3 S.W.3d 576, 576 (Tex. Crim. App. 1999) (“The
appellant having been tried during the pendency of this appeal, the question of his
pre-trial bond is moot.”); Martinez v. State, 826 S.W.2d 620, 620 (Tex. Crim. App.
1992) (appeal of denial of pretrial bond rendered moot by defendant’s conviction).
Since Berber filed his pretrial writ of habeas corpus seeking bail reduction,
the trial court has rendered judgment, convicting Berber of aggravated robbery and
sentencing him to 12 years’ confinement. Because Berber has been convicted of
the underlying offense and is no longer subject to pretrial confinement, his appeal
from the denial of his application for a pretrial writ of habeas corpus is moot. See
Ex parte Tucker, 3 S.W.3d at 576; Martinez, 826 S.W.2d at 620.
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Conclusion
For the foregoing reasons, Berber’s appeal from the denial of his pretrial
application for writ of habeas corpus seeking a bond reduction is dismissed as
moot.
Rebeca Huddle
Justice
Panel consists of Justices Keyes, Brown, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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