Ex parte Spivey , 1964 Tex. Crim. App. LEXIS 1016 ( 1964 )

DICE, Commissioner.

This is an appeal from an order entered in a habeas corpus proceeding denying appellant’s application for reduction of bail in a robbery case and remanding him to custody of the sheriff of Harris County.

The record reflects that at the time of the hearing, appellant was in custody of the sheriff of Harris County in default of bail fixed by the court in the amount of $100,000, after return of an indictment in Criminal District Court No. 3 of Harris County against him and three co-defendants for the offense of robbery with firearms, said indictment being then pending against appellant and his co-defendants in Cause No. 109,587 on the docket of Criminal District Court No. 4 of Harris County.

By supplemental transcript filed herein, it is now made known that, pending appellant’s appeal from the order remanding him to custody, the indictment upon which bail was set has been, dismissed by the court upon motion of the district attorney and a new indictment returned by the grand jury in Criminal District Court No. 2 in Cause No. 110,498, charging appellant and his co-defendants with commission of the same offense.

The dismissal of the indictment renders moot the question presented relative to the amount of appellant’s bail fixed thereon.

It follows that the appeal should be dismissed.

Appellant’s right to a hearing before the trial judge upon the question of his right to bail to answer the new indictment and the amount thereof is not before us and will not be prejudiced by the dismissal of this appeal.

The appeal is dismissed.

Opinion approved by the Court.