. ----------- Bernardino Hernandez Perez, Appellant v. The State of Texas, Appellee

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Court of Appeals of Texas, Houston (1st Dist.).

. ----------- Bernardino Hernandez Perez, Appellant v. The State of Texas, Appellee

NO. 01-09-00801-CR

Decided: May 27, 2010

Panel consists of Chief Justice Radack, and Justices Alcala, and Higley.

MEMORANDUM OPINION

In this writ of habeas corpus appeal, Bernardino Hernandez Perez appeals from the trial court's order denying his pre-trial application for writ of habeas corpus.   Perez contends the trial court improperly prohibited alcohol possession and consumption as a condition of his bail bond for state jail felony possession of marijuana.  Tex. Health & Safety Code Ann. § 481.121(b)(3) (Vernon 2009).   We dismiss the appeal as moot.

Background

Perez was charged with state jail felony possession of marijuana with a bond set at $30,000 dollars.   One condition on the bond required that Perez “․ not use, possess, or consume alcohol.”   Perez was released on bond, but was again confined when, 12 days later, he tested positive for the presence of alcohol.   The court revoked his bond and set it at no bond.   Two months later, Perez was released on a $40,000 bond with the same condition prohibiting alcohol.   Within a month, he was again confined for testing positive for the presence of alcohol.   Perez, for the first time, objected to the no alcohol bond condition and revocation based on violation of that condition.

Perez filed an application for pre-trial writ of habeas corpus seeking relief from confinement on the ground that his pre-trial bond condition was unlawful.   The trial court held a hearing on the bond revocation's merits.   Appellant waived any inquiry on factual issues concerning the results of the “breath tests” that tested the presence of alcohol in appellant.   Appellant, however, challenged the legal authority of the trial court to impose the no alcohol condition and the revocation based on violation of that condition.   During the evidentiary hearing on the bond revocation's merits, Perez presented the testimony of Dorri Melvin, a Harris County Pre-trial Services (HCPS) employee, who said that the bond conditions at issue here are standard bond conditions in Harris County used in many different types of cases, and not just in cases involving controlled substances.   Furthermore, she testified that HCPS uses a systematic approach to monitoring defendants, and the approach she used in this case would be applied to any defendant on bond in any judge's court.   The trial court denied habeas corpus relief.   Within days of Perez filing his appeal to this court, the court reduced Perez's bond and he was released from custody.   The State later dismissed the marijuana charge.

Mootness

The State contends that because Perez is no longer incarcerated for violating this condition, this appeal is moot.   Because no exception to the mootness doctrine applies to this case, we must dismiss this appeal.

A. Mootness Doctrine Generally

Whether a court has subject matter jurisdiction is a legal question that is reviewed de novo.  Trulock v. City of Duncanville, 277 S.W.3d 920, 923 (Tex.App.-Dallas 2009, no pet.).   The mootness doctrine implicates subject matter jurisdiction.  Id. An appellate court is prohibited from deciding a moot controversy.   See Nat'l Collegiate Athletic Ass' n v. Jones, 1 S.W.3d 83, 86 (Tex.1999).   This prohibition is rooted in the separation of powers doctrine in the Texas and United States Constitutions that prohibits courts from rendering advisory opinions.   See id.   For a party to have standing, a controversy must exist between the parties at every stage of the legal proceedings, including the appeal.  Williams v. Lara, 52 S.W.3d 171, 184 (Tex.2001).   If a case becomes moot, the parties lose their standing to maintain their claims.  Id. Generally, an appeal is moot when the court's action on the merits cannot affect the rights of the parties.  VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex.1993).   A case on appeal is moot if (1) there are no live controversies between the parties, and (2) any decision rendered by the appellate court would be an advisory opinion.   See Camarena v. Tex. Emp. Comm' n, 754 S.W.2d 149, 151 (Tex.1988).   There are two exceptions that confer jurisdiction despite mootness:  (1) the “capable of repetition, yet evading review” exception, and (2) the collateral consequences exception.   Gen. Land Office of State of Tex. v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex.1990).

1. Capable of Repetition Yet Evading Review Exception

One exception to the mootness doctrine occurs when a claim is “capable of repetition, yet evading review.”  Pharris v. State, 165 S.W.3d 681, 687-88 (Tex.Crim.App.2005).   The United States Supreme Court has said that “the ‘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. at 688.   The Court of Criminal Appeals has adopted and applied that exception.  Id.

Assuming the challenged action here was too short in duration to be fully litigated prior to the release of Perez from incarceration, Perez cannot show that he would be subjected to the same action again because the State dismissed all the criminal charges that were filed against him in this case.   Compare id. at 688-89 (holding Pharris would be likely subjected to same no bond condition again because State had filed multiple charges against him and represented that it would be filing more charges against him in that case);  see In re R.M., 234 S.W.3d 103, 104 (Tex.App. -El Paso 2007, no pet.) (holding that capable of repetition yet evading exception inapplicable because R.M.'s probation had been terminated and there is no reasonable expectation that he would again be subjected to modification of his probation).   We conclude the capable of repetition but evading review exception is inapplicable in this case.

2. The Collateral Consequences Exception

The second exception to the mootness doctrine is the collateral consequences exception.  Gen. Land Office, 789 S.W.2d at 571.   The collateral consequences exception pertains to severely prejudicial events, the effects of which continue to stigmatize helpless or hated individuals long after the unconstitutional judgment has ceased to operate.  Id. Here, Perez cannot show that the short term incarcerations resulting from his consumption of alcohol in violation of his bond conditions resulted in stigmatizing him or causing people to hate him.   See In re R.M., 234 S.W.3d at 104-05 (holding that collateral consequences exception inapplicable because R.A. did not show impact of collateral effects and legal consequences of being adjudged juvenile delinquent).   We conclude the collateral consequences exception is inapplicable in this case.

Conclusion

Because the appeal is moot and no exception applies, we dismiss the appeal.

Elsa Alcala Justice

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