Zaratti, C. Tom

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 74,865

C. TOM ZARATTI, Appellant

vs.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM THE 180^TH DISTRICT COURT,

HARRIS COUNTY, TEXAS

Per Curiam.

OPINION

This is an appeal from an order denying bail pursuant to Article I, § 11a, of the Texas Constitution.⁽¹⁾ Appellant was arrested on December 24, 2003, and charged with possession of child pornography in cause number 972,226 in the 180^th District Court in Harris County. On December 29, 2003, the State filed a motion to hold appellant without bail alleging that appellant committed the present offense while on bail in cause number 952,417. On January 8, 2004, appellant filed an application for a writ of habeas corpus to request the trial court to set reasonable bail pending trial. The trial court conducted a hearing on the State's motion on January 9, 2004. At the conclusion of the hearing, the trial court denied appellant's request for bail and entered an order holding appellant without bail for sixty days. Appellant filed a notice of appeal on January 9, 2004. The trial court certified appellant's right to appeal the denial of bail on January 12, 2004. On February 24, 2004, the trial court set bail. Pending before this Court is the State's motion to dismiss the present appeal, filed on April 6, 2004.

Article I, § 11a, of the Texas Constitution provides that a defendant is entitled to a trial within sixty days if a trial judge enters an order denying bail under Article I, § 11a. If a defendant is not brought to trial within sixty days of the date the trial judge entered the order denying bail, the order is automatically set aside.⁽²⁾ The Texas Constitution provides a defendant with a direct appeal to this Court when the trial judge enters an order denying bail.⁽³⁾ This appeal "shall be given preference by the Court of Criminal Appeals."⁽⁴⁾

In Criner v. State,⁽⁵⁾ we stated:

If the aforementioned sixty day period expires during the pendency of the appeal, we consider the issue moot and dismiss the appeal, Holloway v. State, 781 S.W.2d at 606; and, Taylor v. State, 676 S.W.2d 135 (Tex.Cr.App.1984), because we assume that either the accused has been brought to trial, Armendarez v. State, 798 S.W.2d 291 (Tex.Crim.App.1990), or the order denying bail was automatically set aside and reasonable bail was set as required by the Constitution. Taylor, 676 S.W.2d at 136. In either event, the issue of whether bail was properly denied is moot.⁽⁶⁾

We then concluded that because more than sixty days had passed, the appeal had been properly dismissed as moot.

Here, more than sixty days have passed since the trial judge's order denying appellant bail, and the trial court has since set bail.⁽⁷⁾ We therefore assume that the court's order denying bail has been set aside and reasonable bail has been set in accordance with the Texas Constitution. The issue of whether the original denial of bail was proper is now moot and the State's motion to dismiss this appeal is granted.

It is so ordered.

Delivered: May 5, 2004.

Do Not Publish

1. Article I, § 11a permits a trial court to deny bond if,

inter alia, any person is "accused of a felony less than capital in this State, committed while on bail for a prior felony for which he has been indicted." Tex. Const. art. I, § 11a(a).

2. Tex. Const. art. I, § 11a.

Id.

5. 878 S.W.2d 162 (Tex. Crim. App. 1994).

Criner v. State, 878 S.W.2d 162, 164 (Tex. Crim. App. 1994).

7. We do not know if appellant has actually been released on bond. We do, however, know that bail has been set and that the trial court has entered additional conditions for appellant's release on bond.

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