Martinez v. State

826 S.W.2d 620 (1992)

Apolonio Joseph MARTINEZ, Appellant, v. The STATE of Texas, Appellee.

No. 611-91.

Court of Criminal Appeals of Texas, En Banc.

March 25, 1992.

Michael B. Charlton (on appeal only), Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Alan Curry, Dan Rizzo and Luci Davidson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

BAIRD, Judge.

Applicant was originally charged with capital murder but subsequently indicted for murder. Applicant filed an application for a writ of habeas corpus in the trial court seeking release from jail. Tex.Code Crim.Proc.Ann. art. 17.151. The trial judge ordered applicant released on a $10,000.00 personal bond. However, before applicant was released, the State charged applicant with aggravated robbery with bail set at $30,000.00. It is undisputed that the alleged aggravated robbery arose from the same transaction as that alleged in applicant's murder indictment. Applicant filed a second application for writ of habeas corpus pursuant to art. 17.151. The trial judge denied relief and the Court of Appeals affirmed. Martinez v. State, 810 S.W.2d 428, 430 (Tex.App.Houston [14th Dist] 1991).

We granted applicant's petition for discretionary review wherein he contends the State violated art. 17.151 by charging applicant with aggravated robbery, thereby effectively preventing his release from jail. Applicant has been convicted of the underlying offense and is no longer subject to pre-trial confinement. Therefore, applicant's petition is moot and we will not address the merits of his petition. See, Danziger v. State, 786 S.W.2d 723 (Tex.Cr. App.1990). Accordingly, appellant's petition for discretionary review is dismissed.[1]

[1] Our decision today is not to be taken as constituting approval or disapproval of the Court of Appeals' opinion.