Opinion issued June 8, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-00727-CR
DENNIS JOE PHARRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 1031225
CONCURRING OPINION
I concur in the judgment. I write separately to address the State’s mootness argument and to clarify this Court’s jurisdiction over this appeal. Appellant timely appealed from a habeas corpus hearing held on July 15, 2005, in which appellant’s bail was set by the trial court at $2,500,000. The State argued that the appeal should be dismissed as moot because on September 29, 2005, after the appeal was filed, the trial court consolidated the original cases against appellant, held another bond hearing, and issued an order on October 11, 2005 reducing appellant’s bail to $1,000,000.
The State argued that the trial court’s reduction in appellant’s bail from $2.5 million to $1,000,000 on October 11 acted to moot appellant’s appeal. The panel opinion fails to address this argument. I believe it is important to address the State’s mootness argument and to emphasize that the October 11 order did not moot the pending appeal. This Court had jurisdiction over the appeal prior to entry of the October 11 order, it did not lose jurisdiction because of the entry of that order, and appellant’s supplementation of the record with the October 11 order merely entitled this Court to consider that order in addition to the matters already properly before it.
The State notes that it made a similar mootness argument before the Court of Criminal Appeals and that it was rejected there. See Pharris v. State, 165 S.W.3d 681, 689 (Tex. Crim. App. 2005). The State is correct. Its mootness argument effectively asks us to contravene the Court of Criminal Appeals’ holding in Pharris that the practice about which appellant was complaining in his direct appeal—namely the State is continuing to file new charges and seek new hearings on his bail without either trying him or setting a bond he can make—does not moot a pending appeal. See id. at 688–89. The Court of Criminal Appeals not only rejected that mootness argument, it admonished the State for its “stratagem of serial charging at sixty-days intervals,” further noting that such prosecutorial strategy “may not be used as a subterfuge to imprison a citizen who, though accused of crime, is still presumed innocent under the law.” Id. at 689. Thus, to the extent the panel opinion may be construed as attributing our jurisdiction solely to the supplementation of the appellate record with the October 11 order, I wish to make clear that any such construction of our jurisdiction would be incorrect.
As the Court of Criminal Appeals stated in Pharris, a case that is moot is non-justiciable. Id. at 687. However, there is an exception for cases presenting issues that are ‘capable of repetition but evading review.’ Id. at 688. Both the Texas Court of Criminal Appeals and the United States Supreme Court have held that
[T]he “capable of repetition but evading review” doctrine [is] limited to the situation where two elements combine: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again. Id. (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 349 (1975)). In determining that the practice challenged by appellant in this case survives a mootness challenge, the Court explained:
Under the Texas Constitution, a “no bond” order filed in a non-capital felony case committed while the defendant is on bail for a prior felony for which he has been indicted is automatically set aside after sixty days unless the defendant requests a continuance. Sixty days is normally too short a time period in which to fully and fairly litigate a “no bond” order even though that “appeal shall be given preference by the Court of Criminal Appeals.” The clock begins ticking from the date of the hearing, and keeps ticking during the filing of the clerk’s and reporter’s records and the briefs by both the State and defendant, the submission of the case to this Court, and issuance of an opinion by the Court. Through no fault of the defendant, the “no bond” order in this case expired more than a month before the case was formally submitted to this Court. The delay cannot be attributed to Mr. Pharris. This case meets the first prong of the exception.
This case also meets the second prong of the exception because the prosecutor stated on the record during the most recent “no bond” hearing that “there are going to be more charges,” and “[w]e’ll file those other cases as soon as we can get them together. There are going to be many. It is going to be a lot.” Given the documented history thus far, there is a reasonable expectation that the State will continue to file additional charges against Mr. Pharris and continue to request “no bond” orders.
Id. at 688–89 (citations omitted).
After this appeal was filed, the State continued the practice complained of in Pharris. Specifically, on September 29, 2005, the State filed a combined charge against appellant and obtained an indictment, whereupon the trial court held a new bond hearing in October 2005, and, by its order of October 11, reduced appellant’s bond to $1,000,000—an amount appellant still could not meet according to the evidence in the appellate record. Appellant properly appealed from the order on the July 15, 2005 hearing setting appellant’s bail at $2,5000,000 and supplemented the record with the October 11 order. Under both the law of the case and controlling law as stated in Pharris, this appeal is not moot.
Evelyn V. Keyes
Justice
Panel consists of Justices Nuchia, Keyes, and Hanks.
Justice Keyes, concurring.