                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00228-CR

                   EX PARTE WILLIAM JOSEPH HORTON




                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2003-77-C2A


                                     OPINION


        William Joseph Horton appeals the denial of his pretrial application for writ of

habeas corpus which he filed in connection with the State’s motion to revoke his

community supervision. Horton contends in his sole point that the court erred by

denying his habeas application because his confinement was unlawful due to the capias

for his arrest having been issued before the revocation motion was filed.       Because

Horton’s community supervision has since been revoked, we will dismiss this appeal as

moot.

        The trial court signed the order denying Horton’s habeas application on July 8,

2009, and he timely perfected this appeal. However, his community supervision was
revoked on July 27 after a contested hearing.1 Because his community supervision has

been revoked, he is no longer subject to “pre-trial” confinement under the capias. Thus,

it appears that his habeas claim is moot. See Martinez v. State, 826 S.W.2d 620, 620 (Tex.

Crim. App. 1992); In re Soliz, No. 01-08-00877-CR, 2008 WL 5392029, at *1 (Tex. App.—

Houston [1st Dist.] Dec. 19, 2008, orig. proceeding) (per curiam) (not designated for

publication); Hubbard v. State, 841 S.W.2d 33, 33 (Tex. App.—Houston [14th Dist.] 1992,

no pet.).

         The Clerk of this Court notified Horton that the appeal may be dismissed if he

did not file a response showing grounds for continuing the appeal. See TEX. R. APP. P.

44.3. By response, Horton cites Kniatt v. State, 206 S.W.3d 657 (Tex. Crim. App. 2006),

for the proposition that his appeal is not moot. We find Kniatt to be distinguishable. In

that case, Kniatt pleaded guilty and was placed on deferred adjudication community

supervision pursuant to a plea bargain. Id. at 659-60. After the State filed a motion to

adjudicate, Kniatt filed a pre-conviction habeas application claiming that his guilty plea

was involuntary. Id. at 660. The trial court granted the motion to adjudicate and later

denied the habeas application. Id. at 660-62. On appeal, this Court reversed on the

merits of Kniatt’s habeas claim. See Kniatt v. State, 157 S.W.3d 83, 87 (Tex. App.—Waco

2005).

         The State filed a petition for discretionary review, arguing first that the trial court

(and this Court) lacked jurisdiction to address the merits of Kniatt’s habeas claim. The



1
       Horton’s appeal of the revocation order has been docketed in this Court under cause no. 10-09-
00258-CR.


Ex parte Horton                                                                               Page 2
Court of Criminal Appeals held “that the jurisdiction of a court to consider an

application for writ of habeas corpus is determined at the time the application is filed.”

Kniatt, 206 S.W.3d at 663. Thus, the trial court had jurisdiction when Kniatt’s habeas

application was filed and did not lose that jurisdiction after adjudicating his guilt. Id. at

663-64.

       Here, however, no one disputes that the trial court had jurisdiction when Horton

filed his habeas application and ruled on it. Rather, the issue in this case is whether the

habeas claim was later rendered moot by the revocation of Horton’s community

supervision because, at that point, he was no longer being incarcerated under what he

claimed to be an unlawful capias. Presiding Judge Keller explained in her concurring

opinion in Kniatt why (under Martinez) Horton’s habeas application is moot:

       Martinez held that a conviction rendered moot a complaint regarding bail
       because the defendant was “no longer subject to pre-trial confinement.”
       Essentially, these types of claims apply only at certain stages of the
       prosecution, and they disappear once the prosecution progresses past the
       stage in question. By contrast, the habeas claim in the present case
       purports to undermine the validity of the conviction, and so does not
       disappear after conviction like complaints regarding probable cause or
       bail.

Id. at 665 (Keller, P.J., concurring) (footnote omitted).

       Horton’s habeas application challenges the validity of the capias under which he

was held before the revocation hearing. After his community supervision was revoked,

he was no longer being held on that capias but rather was being held on the court’s

revocation judgment.      Thus, after revocation he was “no longer subject to pretrial




Ex parte Horton                                                                        Page 3
confinement.” See Martinez, 826 S.W.2d at 620. Accordingly, we dismiss this appeal as

moot. Id.; Soliz, 2008 WL 5392029, at *1; Hubbard, 841 S.W.2d at 33.



                                                       FELIPE REYNA
                                                       Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurs in the judgment and only to the extent it dismisses
this proceeding as moot. A separate opinion will not issue.)
Appeal dismissed
Opinion delivered and filed November 10, 2009
Publish
[CR25]




Ex parte Horton                                                                 Page 4
