                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-15-00353-CR


EX PARTE VINCENT PAUL
MARTINEZ


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           FROM THE 271ST DISTRICT COURT OF WISE COUNTY
                     TRIAL COURT NO. CR-18171

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                          MEMORANDUM OPINION 1

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      Appellant Vincent Paul Martinez appeals the trial court’s order denying

relief on his pretrial petition for writ of habeas corpus. We affirm.

                                Background Facts

      In December 2014, a Wise County grand jury indicted appellant with

indecency with a child by contact. 2 Appellant posted bail and was released from


      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 21.11(a)(1) (West 2011).
confinement. The trial court imposed several conditions on appellant’s bond,

including that he was to

      have no contact with minor children under 17 years of age in any
      form including, but not limited to written, personal, phone,
      [F]acebook, text, or social network contact and/or any contact
      through third parties. Defendant shall not pass by premises where
      children commonly gather, including schools, day-care facilities,
      play-grounds, public or private youth centers, public swimming
      pools, parks, and/or areas of recreation for children. Any such
      contact must be approved by the . . . Adult Probation Officer.

On December 16, 2014, appellant signed the order that imposed this condition. 3

He did not object to the condition at that time.

      In August 2015, the State filed a motion to hold appellant’s bond

insufficient. The State alleged that he had violated the condition quoted above

by sitting near a minor who was in a waiting area of a community supervision

office. 4 Also, the State alleged that appellant had previously been informed that

“if a minor was present at Community Supervision[, he] needed to remove

himself from the area.” 5   The trial court held appellant’s bond insufficient on

August 24, 2015 and issued a capias; the police arrested appellant.



      3
        It appears that appellant’s then-counsel also signed the order. In April
2015, appellant retained new counsel, and it is this counsel who represents him
in this appeal.
      4
       Appellant was on community supervision for an unrelated misdemeanor
offense.
      5
        The record contains a letter from appellant’s community supervision
officer to the district attorney that states,


                                          2
      A few days after his arrest, appellant filed a petition for writ of habeas

corpus, 6 contending that he was being unlawfully restrained without a hearing

concerning whether he violated the bond condition, that the condition quoted

above is unconstitutionally vague, and that the condition allowed law

enforcement authorities to have too much discretion in interpreting and applying

it. As relief, appellant asked the court to reinstate his bond and release him from

confinement.

      A few days later, appellant filed another petition for writ of habeas corpus.

This petition was similar to the first petition; appellant alleged that the trial court

had erred by revoking his bond without conducting a hearing, that the no-contact

provision was unconstitutionally vague, and that the trial court had exceeded its

discretion by revoking the bond because he sat close to a minor in the waiting

area of the community supervision office. Appellant also again argued that the

vagueness of the language in the condition allowed law enforcement to have too

much discretion in enforcing it. Once again, he asked the court to reinstate the

bond and order his release from confinement.




      The Defendant had been advised prior to August 18th[,] 2015 that if
      there is a minor in the lobby[,] the Defendant needs to exit the
      building until the minor leaves. The no contact with minor condition
      has been discussed at length with the Defendant at intake and on
      several other occasions . . . .
      6
       See Tex. Code Crim. Proc. Ann. art. 11.08 (West 2015).


                                          3
      The trial court held a hearing on appellant’s second habeas corpus

petition. Appellant, who had been confined for approximately three weeks, asked

for reinstatement of his bond. He testified, however, that he had understood the

no-contact condition when he had signed the order that imposed it. The State

called a probation officer who had supervised appellant during the time he was

released on bond. The probation officer testified that he had explained the no-

contact provision to appellant as meaning that if appellant was ever in a location

where a minor was present, appellant needed to leave. The probation officer

also testified that when he asked appellant why he had sat close to a minor in the

community supervision office, appellant stated that he had “[forgotten] about that

condition of supervision.”

      After hearing the parties’ arguments at the hearing, the trial court denied

relief. Appellant filed a notice of appeal. On the same day that he filed the notice

of appeal, the trial court reinstated his bond.

                             No Entitlement to Relief

      Appellant raises six issues on appeal, one of which concerns our

jurisdiction and five of which concern the trial court’s revocation of his bond or the

constitutionality of the no-contact provision. 7 As we have explained,

             The sole purpose of an appeal from a trial court’s habeas
      corpus ruling is to “do substantial justice to the parties,” and in
      resolving such an appeal, we may “render whatever judgment . . .
      the nature of the case require[s].” Tex. R. App. P. 31.2, 31.3; see

      7
       The State has not filed a brief.


                                          4
          Ex parte Idigbe, No. 02-12-00561-CR, 2013 WL 772891, at *5 (Tex.
          App.—Fort Worth Feb. 28, 2013, pet. ref’d) (mem. op., not
          designated for publication). We review the trial court’s decision to
          deny habeas corpus relief for an abuse of discretion. Kniatt v. State,
          206 S.W.3d 657, 664 (Tex. Crim. App.), cert. denied, 549 U.S. 1052
          (2006). We will uphold the trial court’s judgment as long as it is
          correct on any theory of law applicable to the case. Ex parte Murillo,
          389 S.W.3d 922, 926 (Tex. App.—Houston [14th Dist.] 2013, no
          pet.); Ex parte Primrose, 950 S.W.2d 775, 778 (Tex. App.—Fort
          Worth 1997, pet. ref’d).

Ex parte Evans, 410 S.W.3d 481, 483–84 (Tex. App.—Fort Worth 2013, pet.

ref’d).

          The purpose of a writ of habeas corpus is to obtain a speedy and effective

adjudication of a person’s right to liberation from illegal restraint. Ex parte Kerr,

64 S.W.3d 414, 419 (Tex. Crim. App. 2002); Ex parte Matthews, 452 S.W.3d 8,

12 (Tex. App.—San Antonio 2014, no pet.). A person who is subject to the

conditions of a bond is restrained in his liberty, and that restraint must be

reasonable. Ex parte Robinson, 641 S.W.2d 552, 553 (Tex. Crim. App. [Panel

Op.] 1982); see Tex. Code Crim. Proc. Ann. art. 17.40(a) (West 2015) (“To

secure a defendant’s attendance at trial, a magistrate may impose any

reasonable condition of bond related to the safety of a victim of the alleged

offense or to the safety of the community.”); Ex parte Anunobi, 278 S.W.3d 425,

427 (Tex. App.—San Antonio 2008, no pet.) (“It is well established that courts

have the inherent power to place restrictive conditions on the granting of bail.

The trial court’s discretion to set the conditions of bail is not, however, unlimited.”

(citation omitted)). Thus, the accused may challenge the manner of his pretrial



                                            5
restraint, including conditions attached to bail. Ex parte Smith, 178 S.W.3d 797,

801 (Tex. Crim. App. 2005); Ex parte Victorick, 453 S.W.3d 5, 11–12 (Tex.

App.—Beaumont 2014, pet. ref’d) (stating that a petition for writ of habeas corpus

may be used to challenge a punitive bond condition).

      When the premise of a habeas corpus application is destroyed by

subsequent developments, however, the legal issues raised thereunder are

rendered moot. Ex parte Guerrero, 99 S.W.3d 852, 853 (Tex. App.—Houston

[14th Dist.] 2003, no pet.) (mem. op.); State v. Golding, 398 S.W.3d 745, 747

(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (mem. op. on reh’g). Thus, for

example, when a defendant challenges matters related to his pretrial

confinement but is later convicted of the offense, the challenge to the

confinement becomes moot. Martinez v. State, 826 S.W.2d 620, 620 (Tex. Crim.

App. 1992); Bennet v. State, 818 S.W.2d 199, 200 (Tex. App.—Houston [14th

Dist.] 1991, no pet.) (explaining that because the appellant had been convicted,

there was “no action [the] court [could then] make regarding the trial court’s

decision on the amount of bail that [would] cause any effect”).       We cannot

overlook mootness in such an appeal because as we have explained, “Habeas

corpus proceedings are extraordinary remedies premised on equity; they are not

premised on error correction, as are direct appeals. As an extraordinary remedy,

habeas corpus relief should be reserved for those cases in which no other

remedy is available.”    Ex parte Armstrong, No. 02-15-00180-CR, 2015 WL

5722821, at *3 (Tex. App.—Fort Worth Aug. 26, 2015, no pet.) (mem. op., not


                                        6
designated for publication) (citation omitted) (concluding that a challenge to a

bond amount was moot because the appellant later bonded out, and any opinion

about the validity of the amount of the bond would therefore be advisory).

      Here, the trial court’s reinstatement of appellant’s bond 8—a development

occurring after the trial court denied his petition for writ of habeas corpus—has

destroyed the premise of most of his appellate arguments. Specifically, in light of

the reinstatement of appellant’s bond and his release from confinement, we

conclude that the arguments in his second issue (that the trial court erred by

revoking his bond without conducting an evidentiary hearing), 9 his third issue

(which likewise relates to the trial court’s alleged error of not conducting a

hearing before revoking his bond), and his sixth issue (that the trial court

exceeded its discretion by imposing the bond condition to the extent that the

provision forbade appellant from sitting close to a minor in the community

supervision office) are moot because they depend on circumstances that do not

lead to any current restraint on his liberty. Any opinion from this court about the

circumstances that led to the prior revocation of appellant’s bond, as raised in

those issues, would not have the effect of releasing appellant from any such


      8
        Appellant concedes on appeal that he is “presently at-large, and his
pretrial bond has been reinstated.” Nothing in the record or in appellant’s briefing
establishes that appellant is in threat of any imminent revocation of the reinstated
bond.
      9
        Appellant contends that such a hearing is required under article 17.40(b)
of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 17.40(b).


                                         7
restraint, and the opinion would therefore be advisory only. See Guerrero, 99

S.W.3d 852, 853; see also Armstrong, 2015 WL 5722821, at *3.             Thus, we

overrule appellant’s second, third, and sixth issues as moot. 10

      To the extent that appellant complains of the still-effective no-contact bond

condition itself—as opposed to the use of that condition in the past to revoke his

bond—his arguments are not moot and are cognizable because the condition

acts as a present restraint on his liberty. 11 See Tex. Code Crim. Proc. Ann. art.

11.01 (West 2015) (“The writ of habeas corpus is the remedy to be used when

any person is restrained in his liberty.”); Robinson, 641 S.W.2d at 553 (“A person

who is subject to the conditions of a bond is restrained in his liberty within the

meaning of Article 11.01.”).

      Appellant contends in his fourth and fifth issues that the no-contact

provision is unconstitutionally vague under the Due Process Clause of the

Fourteenth Amendment.          See U.S. Const. amend. XIV, § 1.       In Ex parte

Thompson, the appellant, who had been charged with injury to a child and who

likewise had a no-contact bond condition, similarly complained on appeal that the

condition was unreasonable, vague, and constitutionally excessive. No. 14-04-

      10
         These issues are contained in appellant’s original brief. He also filed a
supplemental brief in which he presented further arguments concerning whether
the trial court erred by not conducting a hearing before revoking his bond. We
likewise overrule those arguments as moot.
      11
          To that extent, we agree with appellant’s argument in his first issue
concerning mootness, but for the reasons stated below, we nonetheless affirm
the trial court’s judgment, and we therefore overrule appellant’s first issue.


                                         8
00731-CR, 2005 WL 363971, at *1 (Tex. App.—Houston [14th Dist.] Feb. 17,

2005, no pet.) (not designated for publication).      But the appellant had not

objected when the condition was imposed, and our sister intermediate appellate

court held that by failing to object at that time, the appellant failed to preserve

error. Id. Like in Thompson, Texas courts, including this court, have consistently

held that a defendant forfeits an argument that a condition of a bond is erroneous

or unconstitutional by not objecting when the condition is imposed. 12        See

Ex parte Vazquez, Nos. 05-13-00165-CR, 05-13-00166-CR, 2013 WL 1760614,

at *3 (Tex. App.—Dallas Apr. 24, 2013, no pet.) (mem. op., not designated for

publication) (“Appellant’s failure to object to the condition at the time it was

imposed precludes his collateral attack on the condition now that his bond has

been revoked.”); Smith v. State, 993 S.W.2d 408, 411 (Tex. App.—Houston [14th

Dist.] 1999, pet. ref’d) (en banc op. on reh’g) (“Smith failed to object to the

constitutionality of the bond conditions when the conditions were imposed;

therefore, he may not now get a second bite at the apple through a habeas

corpus appeal.”); Ex parte Lambridia, No. 14-96-00256-CR, 1996 WL 413982, at

      12
         We apply a similar rule with regard to conditions of community
supervision. See Speth v. State, 6 S.W.3d 530, 534–35 (Tex. Crim. App. 1999),
cert. denied, 529 U.S. 1058 (2000); Little v. State, 376 S.W.3d 217, 221 (Tex.
App.—Fort Worth 2012, pet. ref’d). Appellant relies on the lower court’s opinion
in Speth, which analyzed the validity of a no-contact provision, to contend that
the no-contact provision in this case is unconstitutional, but appellant does not
recognize the court of criminal appeals’s holding that the defendant in Speth
forfeited his argument by not objecting to the condition when it was imposed.
See Speth v. State, 965 S.W.2d 13, 17–18 (Tex. App.—Houston [14th Dist.]
1998), rev’d, 6 S.W.3d at 535.


                                        9
*1–2 (Tex. App.—Houston [14th Dist.] July 25, 1996, no pet.) (not designated for

publication) (overruling an appellant’s challenge to a no-contact condition

because he had signed the order creating the condition and the record did not

“contain evidence that [he] objected when the condition was imposed”); Ex parte

Sotelo, 878 S.W.2d 179, 181 (Tex. App.—Fort Worth 1993, pet. ref’d) (“We hold

that Sotelo waived any error in the original imposition of the condition by his

failure to object.”), disapproved of on other grounds by Ex parte Anderer, 61

S.W.3d 398, 404–05 & n.33 (Tex. Crim. App. 2001).

         Here, the trial court imposed the no-contact condition in December 2014.

Appellant signed the order imposing the condition, establishing that he had notice

of it. He has conceded that he understood the condition when he signed the

order.        And he waited more than nine months, until the court enforced the

condition by revoking his bond, before he complained about it. Under these

circumstances, we conclude that appellant has forfeited his objections to the no-

contact condition. 13 See Smith, 993 S.W.2d at 411; Lambridia, 1996 WL 413982,

at *1–2. We conclude that the trial court did not abuse its discretion by denying

appellant’s petition for writ of habeas corpus, and we overrule his fourth and fifth

issues. See Evans, 410 S.W.3d at 483–84.

         13
         We express no opinion, however, concerning the factual circumstances
in which the no-contact provision may be validly applied in the future. Cf.
Ex parte Cross, 69 S.W.3d 810, 814 (Tex. App.—El Paso 2002, no pet.)
(declining to rule on a habeas-corpus applicant’s claim that a statute was
unconstitutional as applied to him because any injury that the applicant could
suffer under the statute was contingent and remote).


                                         10
                                  Conclusion

      Having overruled all of appellant’s issues, we affirm the trial court’s order

denying habeas corpus relief.


                                                  /s/ Terrie Livingston

                                                  TERRIE LIVINGSTON
                                                  CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 31, 2015




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