Exparte Jose Isabel Martinez-Hernandez

MEMORANDUM OPINION
No. 04-11-00863-CR
EX PARTE JOSE ISABEL MARTINEZ-HERNANDEZ
From the 341st Judicial District Court, Webb County, Texas
Trial Court No. 2011-cvk-001615-D2
Honorable Elma T. Salinas-Ender, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Delivered and Filed: September 12, 2012
AFFIRMED
This is an appeal from the trial court’s denial of appellant’s application for writ of habeas
corpus. We affirm.
DISCUSSION
On October 5, 2011, appellant was arrested without a warrant and charged with
aggravated sexual assault of an elderly or disabled person. On that same date, a complaint was
filed. A few weeks later, another complaint was filed charging appellant with burglary of a
habitation, a charge arising from the same incident as the aggravated assault. On January 18,
2012, appellant was indicted on both offenses. The trial court set bail at $100,000.
04-11-00863-CR
On appeal, appellant contends he was arrested pursuant to the first complaint, which did
not allege probable cause. Therefore, appellant asserts the trial court erred in denying his
application for a writ of habeas corpus because he was entitled to bail set at an amount not to
exceed $10,000 pursuant to Texas Code of Criminal Procedure article 17.033(b), which provides,
in pertinent part, that
. . . a person who is arrested without a warrant and who is detained in jail must be
released on bond, in an amount not to exceed $10,000, not later than the 48th hour
after the person’s arrest if the person was arrested for a felony and a magistrate
has not determined whether probable cause exists to believe that the person
committed the offense. . . . .
TEX. CODE CRIM. PROC. ANN. art. 17.033(b) (West 2005).
Habeas corpus is by definition an extraordinary writ in which the restraint of one’s liberty
is challenged as illegal. See TEX. CODE CRIM. PROC. ANN. arts. 11.01 and 11.23 (West 2005);
Saucedo v. State, 795 S.W.2d 8, 9 (Tex. App.—Houston [14th Dist.] 1990, no pet.). However,
where the premise of a habeas corpus application is destroyed by subsequent developments, the
legal issues raised are rendered moot. See Ex parte Branch, 553 S.W.2d 380, 381 (Tex. Crim.
App. 1977); Saucedo, 795 S.W.2d at 9. Even if appellant was arrested pursuant to a complaint
that did not allege probable cause, he has since been indicted; therefore, his argument under
article 17.033(b) is moot. Except for his argument under article 17.033(b), appellant does not
otherwise challenge the amount of his bail. Therefore, we do not consider whether the bail
amount of $100,000 was excessive. For these reasons, we affirm the trial court’s order.
Sandee Bryan Marion, Justice
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