Ex Parte: Babak Taherzadeh ( 2021 )

DISMISS and Opinion Filed March 22, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00816-CR
EX PARTE BABAK TAHERZADEH
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F16-12037-J
MEMORANDUM OPINION
Before Justices Myers, Osborne, and Carlyle
Opinion by Justice Osborne
Babak Taherzadeh appeals the trial court’s order denying his motion for bond
pending the direct appeal of his underlying conviction for stalking. Because
appellant’s requested relief is no longer available to him, we dismiss this appeal.
Appellant was indicted for stalking. He entered into a plea bargain agreement
in which he agreed to plead guilty in exchange for the State’s recommendation he
be placed on deferred adjudication probation for four years and assessed a $1000
fine, also probated. On February 9, 2017, the trial court followed the terms of the
plea bargain agreement, deferred finding appellant guilty, and placed him on
deferred adjudication probation for four years with a $1000 probated fine. Over the
following twenty months, the State filed several motions to proceed with
adjudication of guilt, including one filed in October of 2019, which resulted in a
capias issuing for appellant’s arrest. At that time, it was determined that appellant
had been arrested in Harris County, apparently on unrelated events.
On May 8, 2020, the trial court held a hearing on the State’s motion to proceed
with adjudication. At the conclusion of the hearing, the trial court found appellant
violated two conditions of community supervision, found him guilty of stalking, and
assessed punishment at six years in prison. Appellant filed a notice of appeal of his
conviction. That appeal, cause number 05-20-00587-CR, remains pending in this
Court.
On June 30, 2020, appellant filed a motion for an appeal bond. Following a
July 30, 2020 hearing, the trial court denied appellant’s application for bond, stating
there was good cause to believe appellant would not appear when the conviction
became final, particularly in light of (1) appellant’s failure “to report for several
months” while on community supervision and (2) a previous warrant that had been
out for his arrest for nearly two months. This appeal ensued.
In his brief, appellant claims the trial court abused its discretion by denying
his request for bond pending appeal because the evidence showed he is not a flight
risk and the trial court made no comment in court about whether he was likely to
commit another offense. In response, the State argues the issue is moot because
appellant requested a transfer to the Texas Department of Criminal Justice where he
–2–
is currently incarcerated. Alternatively, the State argues the trial court did not abuse
its discretion by denying appellant’s application for bond.
Article 44.04 provides that a defendant may not be released on bail pending
appeal if he was convicted of a felony listed under article 42A.054(a) of the code of
criminal procedure or where the punishment assessed “equals or exceeds 10 years
confinement.” TEX. CODE CRIM. PROC. ANN. art. 44.04(b). Furthermore, the trial
court may deny bail and commit the defendant to custody if “there then exists good
cause to believe that the defendant would not appear when his conviction became
final or is likely to commit another offense while on bail.” Id. art. 44.04(c).
Under article 42.09, a defendant who has been convicted of a felony, is
eligible for release on bail pending appeal under article 44.04, and gives notice of
appeal “shall be transferred to the Texas Department of Criminal Justice” upon the
defendant’s “request in open court or upon written request to the sentencing court.”
Id. art. 42.09, §4; Ex parte Norvell, 528 S.W.2d 129, 131 (Tex. Crim. App. 1975)
(“request” is interpreted to mean “request of the defendant”).1 “Upon a valid transfer
to the department under this section, the defendant may not thereafter be released on
bail pending his appeal.” TEX. CODE CRIM. PROC. ANN. art. 42.09, §4.
1
At the time the Texas Court of Criminal Appeals decided Ex parte Norvell, this language was found
in article 42.09, subsection 5. In 1981, the Legislature amended article 42.09 and the text was moved to
subsection 4 without significant or relevant changes. See Act of June 1, 1981, 67th Leg., R.S., ch. 291, §
117, 1981 Tex. Gen. Laws 761, 810-11 (current version at TEX. CODE CRIM. PROC. ANN. art. 42.09, §4).
–3–
Here, appellant was eligible and filed a motion for an appeal bond under
article 44.04. However, after his motion for bond was denied, he filed a document
entitled “Waiver” in which he waived his “right to remain in the Dallas County Jail
pending appeal” and requested he “immediately be transferred to the Texasꞏ
Department of Criminal Justice.” The TDCJ website shows he is currently
incarcerated at the Gist Unit in Beaumont. Because he requested to be transferred,
and in fact has been transferred to the TDCJ, he may not be released on bail pending
appeal. See TEX. CODE CRIM. PROC. ANN. art. 42.09, §4. Under these circumstances,
we conclude his appeal is moot and must be dismissed. Freeman v. State, 828
S.W.2d 179, 181–82 (Tex. App.–Houston [14th Dist.] 1992, pet. ref’d) (cause
becomes moot when appellate court’s judgment cannot have any practical legal
effect upon controversy); see Ex parte Hardy, 230 S.W.2d 527, 528 (Tex. Crim.
App. 1950).
We dismiss this appeal.
/Leslie Osborne/
LESLIE OSBORNE
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
200816F.U05
–4–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EX PARTE BABAK On Appeal from the Criminal District
TAHERZADEH Court No. 3, Dallas County, Texas
Trial Court Cause No. F16-12037-J.
No. 05-20-00816-CR Opinion delivered by Justice
Osborne. Justices Myers and Carlyle
participating.
Based on the Court’s opinion of this date, we DISMISS this appeal.
Judgment entered March 22, 2021
–5–