Ex Parte: Donnie Reed Davis ( 2020 )

NO. 12-20-00141-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEAL FROM THE 87TH
EX PARTE:
§ JUDICIAL DISTRICT COURT
DONNIE REED DAVIS
§ ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Donnie Reed Davis was arrested for possession of marijuana and aggravated assault with
a deadly weapon. On April 29, 2020, he filed an application for writ of habeas corpus, in which
he requested release, a personal bond, or reasonable bond under Article 17.151 of the code of
criminal procedure. 1 The habeas proceeding was assigned trial court cause number DCCV20-
1729-87. Appellant alleged that he had been continuously detained in jail since his arrest on
February 2, over ninety days had passed since his arrest and confinement, and the State was not
ready for trial within the time specified by Article 17.151. In its order denying habeas relief, the
trial court stated the following:
Defendant meets the requirements for release on a reduced or a personal bond pursuant to Article
17.151 of the Texas Code of Criminal Procedure. On March 29, 2020, however, the Governor of
the State of Texas issued Executive Order GA-13, which suspends Article 17.151. Accordingly,
because Article 17.151 is suspended, Defendant’s Application for a Writ of Habeas Corpus is
DENIED. 2
1
A defendant who is detained in jail pending trial of an accusation against him must be released either on
personal bond or by reducing the amount of bail required, if the state is not ready for trial of the criminal action for
which he is being detained within 90 days from the commencement of his detention if he is accused of a felony.
TEX. CODE CRIM. PROC. ANN. art 17.151 §1(1) (West 2015).
2
On March 29, 2020, Texas Governor Greg Abbott signed Executive Order GA-13, which states in
pertinent part, “Article 17.151 of the Texas Code of Criminal Procedure is hereby suspended to the extent necessary
Davis then filed this original proceeding to argue that the trial court erred by relying on GA-13,
which Davis contends is unconstitutional, in refusing to comply with Article 17.151.
Subsequently, Appellant filed a motion for examining trial, which was assigned trial
court cause number DCCV20-1752-369. The trial court signed an order finding no probable
cause to hold Appellant for the aggravated assault charge and stating that the charge should be
dismissed without prejudice. Appellant’s jail report reflects that he was released on June 26.
Because of these subsequent events, the State filed a motion to dismiss this appeal as moot. In
response, Appellant argues that the appeal should not be dismissed as moot because the issue
presented is capable of repetition and evades review. 3
When subsequent developments destroy the premise of a habeas corpus application, the
legal issues raised thereunder become moot. McGuire v. State, 493 S.W.3d 177, 207-08 (Tex.
App.—Houston [1st Dist.] 2016, pet. ref’d). A moot case is generally not justiciable. Pharris v.
State, 165 S.W.3d 681, 687 (Tex. Crim. App. 2005). An exception to that general rule is when a
claim is “capable of repetition, yet evading review,” which is limited to a situation that includes
two elements: (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. at 687-88. Here, Appellant has been
released from jail. Thus, any failure to comply with Article 17.151 is now a moot issue. See Ex
parte Zhang, No. 01-18-00484-CR, 2019 WL 1119607, at *1 (Tex. App.—Houston [1st Dist.]
Mar. 12, 2019, no pet.) (mem. op., not designated for publication) (per curiam) (appeal from
denial of habeas application filed pursuant to Article 17.151 was rendered moot upon appellant’s
posting of bond and release from custody); see also Ex parte Huerta, 582 S.W.3d 407, 410-11
to prevent any person’s automatic release on personal bond because the State is not ready for trial.”
https://gov.texas.gov/uploads/files/press/EO-GA-13_jails_and_bail_for_COVID-19_IMAGE_03-29-2020.pdf.
3
Collateral consequences is another exception to the mootness doctrine. See Ex parte Sewell, 495 S.W.3d
54, 56 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“collateral-consequences exception is often applied by
federal courts in criminal cases in which the adverse collateral consequences of a criminal conviction are viewed as
preserving the existence of the dispute even though the convicted person has completely served the sentence
imposed”). Davis does not mention this exception or assert any collateral consequence stemming from the denial of
his application for writ of habeas corpus when there is an order finding a lack of probable cause to hold him for
aggravated assault and he has been released from jail. See id. (exception did not apply where appellant had not
been convicted and he did not identify any adverse collateral consequence that he would suffer if his issues on
appeal were not addressed).
2
(Tex. App.—Amarillo 2018, pet. ref’d) (Huerta alleged he was confined and restrained in
violation of constitutional rights, but his subsequent release from jail rendered moot his
challenges to the legality of his confinement). Nevertheless, Appellant urges that the “capable
of repetition, yet evading review” exception is met for the following reasons: (1) “GA-13 has
inflicted harm in the margin between pretrial incarceration and appellate review;” and (2) should
the State indict him, “he will again suffer unlawful pretrial incarceration instead of being
released on his own recognizance.”
However, regarding the first requirement for invoking the exception, Davis cannot show
that the challenged action is always so short as to evade review. See Spencer v. Kemna, 523
U.S. 1, 18, 118 S. Ct. 978, 988, 140 L. Ed. 2d 43 (1998). “An issue does not evade appellate
review if it has been addressed on the merits by appellate courts.” Jasper v. State, No. 04-05-
00907-CR, 2006 WL 2871334, at *1 (Tex. App.—San Antonio Oct. 11, 2006, pet. withdrawn)
(mem. op., not designated for publication); see Meeker v. Tarrant Cty. Coll. Dist., 317 S.W.3d
754, 762 (Tex. App.–Fort Worth 2010, pet. denied). Appellate courts, including this Court, have
addressed Article 17.151 challenges on multiple occasions. See Harrison v. State, No. 12-18-
00110-CR, 2018 WL 3866227 (Tex. App.—Tyler Aug. 15, 2018, pet. ref’d) (mem. op., not
designated for publication); Ex parte Lopez, No. 01-17-00586-CR, 2018 WL 3384636 (Tex.
App.—Houston [1st Dist.] July 12, 2018, no pet.) (mem. op., not designated for publication); Ex
parte Jackson, No. 03-17-00301-CR, 2018 WL 1598919 (Tex. App.—Austin Apr. 3, 2018, no
pet.) (mem. op., not designated for publication); Ex parte Vanorman, 460 S.W.3d 700 (Tex.
App.—Beaumont 2015, no pet.); Ex parte Craft, 301 S.W.3d 447 (Tex. App.—Fort Worth 2009,
no pet.) (per curiam). And we fail to see how any argument regarding GA-13 could not also be
addressed as part of such a challenge. Accordingly, the capable of repetition yet evading review
exception does not apply to this case. See Meeker, 317 S.W.3d at 762 (exception did not apply
to challenge regarding adequacy of public meeting-agenda notices where Texas courts had
addressed adequacy of public meeting-agenda notices on numerous occasions); see also Jasper,
2006 WL 2871334, at *1 (issues regarding failure to admonish on self-representation and
violation of Article 43.03 of code of criminal procedure did not evade review where both had
been addressed on merits in numerous cases).
3
DISPOSITION
For the reasons discussed above, we conclude that there is no longer a justiciable
controversy before this Court. Therefore, we grant the State’s motion to dismiss and we dismiss
the appeal as moot.
Opinion delivered October 21, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
4
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 21, 2020
NO. 12-20-00141-CR
EX PARTE: DONNIE REED DAVIS
Appeal from the 87th District Court
of Anderson County, Texas (Tr.Ct.No. DCCV20-1729-87)
THIS CAUSE came to be heard on the appellate record; and the same being
considered, it is the opinion of this Court that this appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that
this appeal be, and the same is, hereby dismissed as moot; and that this decision be certified to
the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.