APPELLANT v. << (2010)

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

The State of Texas

STATE

MEMORANDUM OPINION1

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

Pursuant to rule of appellate procedure 50, we have reconsidered our previous opinion upon reviewing Appellant Eligah Darnell's petition for discretionary review.   See Tex.R.App. P. 50.   We withdraw our August 19, 2010 opinion and judgment and substitute the following.

Appellant Eligah Darnell filed a pretrial application for writ of habeas corpus in cause number 1197285 on the basis of selective and vindictive prosecution and double jeopardy.   The trial court denied the requested the relief, and Darnell filed his notice of this appeal.   On May 28, 2010, the trial court granted the State's motion to dismiss cause number 1197285 on the ground that Darnell had been convicted in a separate cause.  “Where the premise of a habeas corpus application is destroyed by subsequent developments, the legal issues raised thereunder are rendered moot.”  Hubbard v. State, 841 S.W.2d 33, 33 (Tex.App.-Houston [14th Dist.] 1992, no pet.).   Just as an appeal challenging the denial of a pretrial application for writ of habeas corpus is rendered moot when the appellant is convicted of the underlying offense before the appellate court rules on the writ, see Martinez v. State, 826 S.W.2d 620, 620 (Tex.Crim.App.1992), the trial court's dismissal of the very same cause from which Darnell seeks habeas relief rendered moot the issues he raised in the application.   See Hubbard, 841 S.W.2d at 33-34 (dismissing appeal because appellant's conviction rendered issue raised in appeal from denial of pretrial application for writ of habeas corpus moot);  Ex parte Hodges, No. 02-02-00429-CR, 2003 WL 21359331, at *1 (Tex.App.-Fort Worth June 12, 2003, no pet.) (mem. op., not designated for publication) (same).   Because the issues Darnell raised in his application are moot-the underlying cause has been dismissed-we dismiss this appeal.   See Tex.R.App. P. 43.2(f);  Martinez, 826 S.W.2d at 620 (dismissing appeal).

PANEL:  MEIER, J.;   LIVINGSTON, C.J.;   and DAUPHINOT, J.

Tex.R. App. P. 47.2(b)

DELIVERED:  December 9, 2010

FOOTNOTES

FN1. See Tex.R.App. P. 47.4..  FN1. See Tex.R.App. P. 47.4.