Ex Parte Jesse Dale Fox

Affirmed and Memorandum Opinion filed May 22, 2003 Affirmed and Memorandum Opinion filed May 22, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-02-00446-CR ____________ EX PARTE JESSE DALE FOX ___________________________________________ On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause No. 909,185 ___________________________________________ M E M O R A N D U M   O P I N I O N Appellant Jesse Dale Fox filed a petition for a writ of habeas corpus to challenge the conditions of his appeal bond. On appeal from the trial court’s denial of his petition, he contends the trial court abused its discretion when it imposed an unreasonable condition which is not authorized by the Texas Code of Criminal Procedure. In two points of error, appellant contends that the trial court: (1) abused its discretion by requiring appellant to register for and participate in sex offender treatment as a condition of the appeal bond; and (2) erred in not finding Article 62.02 of the Texas Code of Criminal Procedure unconstitutional as applied to him. We dismiss the appeal. Procedural Background Appellant was convicted by a jury of the offense of aggravated sexual assault, and this court reversed his conviction and remanded for a new trial. See Fox v. State, No. 14-00-01367-CR, 2002 WL 122056, at *1 (Tex. App.—Houston [14th Dist.] Jan. 31, 2002, pet. ref’d). As a condition of the bond pending appeal, to which appellant became entitled after the reversal, the trial court ordered appellant to participate in sex offender treatment. Appellant then filed his petition for a writ of habeas corpus challenging the conditions of the appeal bond. After the trial court had denied his petition, but before we could decide the merits of this appeal, the State’s petition for discretionary review was denied by the Court of Criminal Appeals. Mootness Appellant first contends that the trial court abused its discretion by requiring him to register for and participate in sex offender treatment as a condition of the appeal bond. However, an analysis of the procedural history of this case reveals that appellant’s first point of error has been rendered moot. Because the Court of Criminal Appeals has noted the distinction between pre-trial bail conditions and bail pending appeal, we must be especially mindful of the procedural posture of any habeas corpus petition challenging bond conditions. In Ex Parte Anderer, the Court of Criminal Appeals criticized its earlier cases for “ignor[ing] the difference between a defendant’s interest in remaining free before trial, which is a right recognized in the Texas Constitution and which furthers important constitutional objectives, and a convicted defendant’s interest in remaining free during appeal, which is not a constitutional right and which is not necessary after conviction.” 61 S.W.3d 398, 404 (Tex. Crim. App. 2001). In distinguishing these cases, the Court noted “the statutes treat conditions on pre-trial bond differently from conditions on bail pending appeal.” Id. at 401; see also Faerman v. State, 966 S.W.2d 843, 848 (Tex. App.—Houston [14th Dist.] 1998, no pet.). To secure a defendant’s attendance at trial, a magistrate setting pre-trial bail is now authorized to “impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community.” See Tex. Code Crim. Proc. Ann. Art. 17.40(a); Lee v. State, 39 S.W.3d 373 (Tex. App.—Houston [1st Dist.] 2001, no pet.). The “safety” and “attendance” standards were not imposed on the trial court’s conditions of bail pending appeal, which must only be “reasonable.” Anderer, 61 S.W.3d at 402. However, the Court of Criminal appeals did observe that “it must be reasonable for a condition on bail pending appeal to have the purpose of protecting the public safety” if the Legislature requires such an analysis of pre-trial bail conditions. Id. at 406.[1] It is important to note that appellant requested bail pending final determination of an appeal by the state on a motion for discretionary review of our reversal of appellant’s conviction. When an appellate court reverses the trial court’s judgment and grants the defendant a new trial, the procedure is governed by Code of Criminal Procedure Article 44.29. See Tex. R. App. P. 51.2(c)(1). Article 44.29 states that where the court of appeals awards a new trial to the defendant on the basis of an error in the guilt or innocence stage of the trial, “the cause shall stand as it would have stood in case the new trial had been granted by the court below.” Tex. Code Crim. Proc. Ann. Art. § 44.29(a); Acker v. State, 421 S.W.2d 398, 402 (Tex. Crim. App. 1967). “Granting a motion for new trial restores the case to its position before the former trial, including, at any party’s option, arraignment or pretrial proceedings initiated by that party.” Tex. R. App. P. 21.9; Stewart v. State, 13 S.W.3d 127, 131 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). This means no finding of guilt and no sentence exist. Ex parte Nickerson, 893 S.W.2d 546, 548 (Tex. Crim. App. 1995). No conviction remains when the case is restored to a position before the former trial, unlike the situation when a defendant has been convicted and the case is pending on appeal. Id. In the latter circumstance the conviction exists; it is simply not “final” for some purposes. Id. Thus, the effect of our reversal and remand, coupled with the refusal of the Court of Criminal Appeals to grant discretionary review, suggests that the appeal bond, having served its purpose, is of no further legal authority or effect. Compare Cantrell v. State, 127 S.W.2d 471, 472 (Tex. Crim. App. 1939) (noting that upon reversal of conviction by the Court of Criminal Appeals “an appeal bond given by the appellant to abide the judgment in this court becomes functus officio”); Faerman, 966 S.W.2d at 848. An appeal bond is of benefit to a criminal defendant only during the pendency of his appeal. Faerman, 966 S.W.2d at 848 (noting that appeal bond issues “should be resolved at the inception of the appeal when the defendant can still derive some benefit from a bond.”) (emphasis in original). Here, appellant was convicted by a jury of the offense of aggravated sexual assault. Once convicted, a defendant’s situation with respect to his release, even assuming an appeal, changes significantly. Anderer, 61 S.W.3d at 403 (relying on Wayne R. LaFave, et. al., 3 Criminal Procedure § 12.4(d) (2d ed. 2000)).[2] Because of the nature of the offense for which he was convicted, appellant was not entitled to bail pending appeal. See Tex. Code Crim. Proc. Ann. Art. 44.04(b). However, in overturning appellant’s conviction, we found that “the trial court reversibly erred by excluding appellant’s offer of evidence of similar sexual-abuse allegations made against him by the complainant’s young sisters and by preventing cross-examination that would have shown bias of the outcry witness.” Fox, 2002 WL 122056, at *1. Upon our reversal and remand for a new trial, appellant became entitled to reasonable bail “pending final determination of an appeal by the state or the defendant on a motion for discretionary review.” See Tex. Code Crim. Proc. Ann. Art. 44.04(h) (emphasis added); see also Shockley v. State, 717 S.W.2d 922, 923 (Tex. Crim. App. 1986) (explaining that the court of appeals sets bail before a petition for discretionary review is filed while the Court of Criminal Appeals sets bail after a petition for discretionary review is filed). Accordingly, appellant filed a motion for bail pending appeal under 44.04(h), which entitles him to release on reasonable bail “regardless of the length of term of imprisonment, pending final determination of an appeal by the state or the defendant on a motion for discretionary review.” See Tex. Code Crim. Proc. Ann. Art. 44.04(h). We set bond at $20,000. As a condition of the bond pending appeal, the trial court ordered the appellant to participate in sex offender treatment. When the State did not file a motion for rehearing by its due date, the reversal of the conviction became final for the purposes of article 44.04(h). Cf. Tissier v. Kegans, 789 S.W.2d 680, 681 (Tex. App.—Houston [1st Dist.] 1990, no writ). When the Court of Criminal Appeals refused the State’s petition for discretionary review, it rendered this court’s judgment final. Cf. Keith v. State, 782 S.W.2d 861, 864 (Tex. Crim. App. 1989). The subsequent refusal of the Court of Criminal Appeals to review the case renders a review of the appeal bond conditions moot. See Bennet v. State, 818 S.W.2d 199, 200 (Tex. App.—Houston [14th Dist.] 1991, no writ) (noting the “longstanding rule in Texas regarding habeas corpus is that where the premise of a habeas corpus application is destroyed by subsequent developments, the legal issues raised thereunder are rendered moot.”); see also Ex parte Guerrero, 99 S.W.3d 852, 853 (Tex. App.—Houston [14th Dist.] 2003, no pet. h.) (per curiam). We find support for this conclusion in the case of Watkins v. State, 883 S.W.2d 377 (Tex. App.—Tyler 1994, no pet.). In that case, the defendant was convicted of capital murder. Like Fox, Watkins was ineligible for bail pending appeal. Id. at 378. However, he became entitled to bail pending appeal when the Tyler Court of Appeals reformed his capital murder conviction and ordered re-sentencing for the offense of non-capital murder. Id. Thereupon, he petitioned the trial court to set reasonable bail pending appeal of his murder conviction. Id. In reviewing his petition for a writ of habeas corpus, the court noted that Watkins had already perfected his appeal of the conviction, the court of appeals had overruled his motion for rehearing, and the Texas Court of Criminal Appeals had refused his petition for discretionary review. Id. Watkins’s complaint that he was entitled to bail pending appeal was moot, since his conviction was no longer on appeal. Id. We see no reason why this logic would not apply in a case in which the Court of Criminal Appeals has refused a petition for discretionary review after a defendant’s conviction has been reversed and remanded by a court of appeals. As the issues raised by appellant’s post-conviction application for writ of habeas corpus have been rendered moot by the Court of Criminal Appeals’ refusal to review the case, we hold that any determination that we might make on the merits of the first point of error would be advisory only. See Sims v. State, 792 S.W.2d 81, 82 (Tex. Crim. App. 1990). Thus, we dismiss appellant’s first point of error as moot. “Constructive Custody” In his second point of error, appellant contends the trial court abused its discretion by failing to consider and find that Article 62.02 of the Code of Criminal Procedure was unconstitutional as applied to him. In setting the conditions of the appeal bond, the trial court required that appellant attend sex offender treatment classes but did not require that he register with the Sex Offender Registration Program. In his petition, appellant sought a declaratory judgment directing the State to refrain from arresting him for failure to register with the Sex Offender Registration Program, or in the alternative, to declare the program unconstitutional as applied to him. Appellant argues that any such duty, if one existed at all, terminated during the appellate process and thus the trial court should have declared that he could not be prosecuted for failure to register under the program. The trial court found that such a determination was “not relevant to this writ hearing.” On appeal, he maintains that the State’s professed intent to charge him with the offense of failure to register under the program placed him in “constructive custody,” thereby entitling him to avail himself of a habeas proceeding. Appellant’s second point is not ripe for review. The ripeness doctrine examines both the timing of a lawsuit and its factual posture at the time of its filing, and allows courts to avoid premature adjudication. Ex Parte Cross, 69 S.W.3d 810, 814 (Tex. App.—El Paso 2002, no pet.). If there is no concrete injury and any possible injury depends on contingent, remote, or hypothetical facts, the court does not have jurisdiction to address the dispute. Id. Appellate courts must look to the facts and evidence existing when the suit was filed to determine whether the claims are ripe. Id. To be entitled to relief, a habeas corpus petitioner must establish that he is either “confined” or “restrained” unlawfully at the time the writ application was filed. See Dahesh v. State, 51 S.W.3d 300, 302 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (relying on Rodriguez v. Court of Appeals, 769 S.W.2d 554, 558 (Tex. Crim. App. 1989)). “Confinement” or “confined” refers “not only to the actual, corporeal and forcible detention of a person, but likewise to any coercive measures by threats, menaces or the fear of injury, whereby one person exercises a control over the person of another, and detains him within certain limits.” Tex. Code Crim. Proc. Ann. Art. 11.21. A person is “restrained” if he or she is under “the kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right.” Id. Art. 11.22. Considering this definition, appellant’s argument was not ripe at the time of the filing of the petition because Article 62.02 had not been applied to appellant. Ex parte Tamez, 4 S.W.3d 366, 367 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (noting that habeas corpus petitioner’s claim was not ripe because the record does not show that challenged statute be applied). Appellant does not make a facial challenge to the constitutionality of the statute. Rather, like the habeas petitioners in Ex Parte Weise and Cross, he only contends that the statute is unconstitutional as applied to him. Ex Parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001); Cross, 69 S.W.3d at 814. As the Tamez court noted, an appellant “challenging a statute’s constitutionality must show the statute is unconstitutionally applied to [himself].” Tamez, 4 S.W.3d at 367 (relying on Parent v. State, 621 S.W.2d 796, 797 (Tex. Crim. App. 1981). Here, appellant cannot make any constitutionality claim against Article 62.02, as it had not been applied to him in any unconstitutional manner at the time of the filing of the petition. The proper time to argue this issue is after appellant has been charged or indicted for the future offense, however, at the time of the filing of the petition, no action had been taken against him for the future offense. Id. Appellant’s injury is contingent upon future action and thus, the court lacks jurisdiction to address the merits of the habeas claim. Conclusion For the foregoing reasons, the appeal is dismissed. See Tex. R. App. P. 43.2(f). /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed May 22, 2003. Panel consists of Justices Anderson, Seymore, and Guzman. Do Not Publish — Tex. R. App. P. 47.3(b). [1] In Anderer, the trial court set the defendant’s bail and imposed on the bail the condition that the appellant was “not to operate any type of motor vehicle whatsoever.” 61 S.W.3d at 398. The appellant applied for a writ of habeas corpus on the ground that the condition was unreasonable pending appeal to the court of appeals. Id. at 399. In the case at bar, the court of appeals set the bond and the trial court subsequently imposed the bond conditions. In support of the proposition that a trial court may impose such conditions after the court of appeals has set bond, the State relies on Dallas v. State, 983 S.W.2d 276, 277 (Tex. Crim. App. 1998) and Estrada v. State, 594 S.W.2d 445, 446 (Tex. Crim. App. 1980). Although it noted that they “provide valuable guidance for evaluating conditions on pre-trial bond,” the Court of Appeals found that Estrada and its progeny, including Dallas, were “misleading as to conditions on bail pending appeal.” As the case is moot, we need not decide whether a trial court may impose conditions on a bond set previously by the court of appeals. Anderer, 61 S.W.3d at 405. [2] The distinction between pre-trial and post-conviction bail is critical. Bail before trial permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. Anderer, 61 S.W.3d at 403. The only interest that is furthered by a defendant’s right to remain free during appeal is the interest in protecting the defendant from an erroneous judgment. Id. at 406. Thus, in an inquiry into a defendant’s bail pending appeal, “[t]he issue is not whether this class of appellants should be denied the right to remain free on appeal; it is only, while they are free on appeal, what conditions on their freedom are reasonable?” Id.