First Court of Appeals - Texas Courts

Case Number: 01-14-00361-CR

Judge: Memorandum Opinion Per Curiam Justice Keyes Justice Brown Justice Lloyd

Court: First Court of Appeals - Texas Courts

Plaintiff's Attorney: Daniel C. McCrory
The Honorable Kim K Ogg
Jessica Akins  

Defendant's Attorney: Melissa Martin – Harris County Public Defender's Office

Description: Appellant, Blake Anthony Monakino, pleaded guilty to the second-degree
felony offense of aggravated assault without an agreed punishment recommendation
from the State, and the trial court assessed his punishment at six years’ confinement.1
Appellant timely filed a pro se notice of appeal, but because the trial court did not
believe that appellant had the right to appeal, it did not appoint appellate counsel
until several months had passed. Appellate counsel did not have the opportunity to
file a motion for new trial. On appellant’s request, this Court abated the appeal,
remanded the case to the trial court, and restarted the appellate timetable to allow
appellant the opportunity to file an out-of-time motion for new trial. See Monakino
v. State, — S.W.3d —, No. 01-14-00361-CR, 2016 WL 6087683, at *7–8 (Tex.
App.—Houston [1st Dist.] Oct. 18, 2016, order).
Appellant subsequently filed a motion for new trial with the trial court. On
December 27, 2016, the trial court granted appellant’s motion and ordered a new
trial. Appellant again pleaded guilty to the offense, and, this time, the State
recommended that the trial court assess appellant’s punishment at three years’
confinement. The trial court accepted appellant’s guilty plea, found appellant guilty
of the charged offense, and assessed his punishment at three years’ confinement on
April 28, 2017. The judgment stated that appellant had been incarcerated from
August 6, 2013, through April 28, 2017. The trial court certified that this was a plea
bargain case and that appellant did not have the right to appeal.

1 See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011).
3

On May 1, 2017, defense counsel filed an emergency motion with the trial
court seeking the immediate release of appellant from custody. Defense counsel
stated that the trial court had sentenced appellant to three years’ confinement, but
appellant had received credit “for almost four years of time served.” Counsel argued
that appellant had been incarcerated in the Harris County Jail since August 6, 2013,
that he “has served more than three years, day for day,” and that he was therefore
entitled to immediate release from custody because he had discharged his sentence.
The trial court granted appellant’s motion, ruling that appellant was “being
held illegally because he has discharged more than his full sentence, day for day,”
and ordered the Harris County Sheriff’s Office to release appellant from custody
immediately. See TEX. CODE CRIM. PROC. ANN. art. 42.03, § 3 (West Supp. 2017)
(“If a defendant appeals his conviction, is not released on bail, and is retained in a
jail . . . pending his appeal, the judge of the court in which the defendant was
convicted shall give the defendant credit on his sentence for the time that the
defendant has spent in jail pending disposition of his appeal.”); Watson v. State, 942
S.W.2d 723, 725 (Tex. App.—Houston [14th Dist.] 1997, no pet.).
Appellant initially raised two issues on appeal. He argued that the trial court
erred by failing to appoint appellate counsel within the thirty-day window for filing
a motion for new trial, and, as a result, he was entitled to an abatement of his appeal
to allow him to file an out-of-time motion for new trial. He also argued that he was
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entitled to a new trial because his trial counsel had rendered constitutionally
ineffective assistance.
After this Court abated his appeal, the trial court granted appellant’s motion
for new trial. Appellant pleaded guilty to the offense of aggravated assault with an
agreed recommendation on punishment from the State, and the trial court assessed
his punishment at three years’ confinement, in accordance with the State’s
recommendation. Because appellant had already served over three years in jail while
his appeal was pending, the trial court ordered appellant released from custody
because he had discharged his sentence. Appellant has therefore been granted all of
the relief that he sought in his appeal, and his appeal has thus become moot. See
Roberts v. State, 508 S.W.3d 310, 311 (Tex. App.—Fort Worth 2013, no pet.) (“An
issue may become moot when a party seeks a ruling on some matter that, when
rendered, would not have any practical legal effect on a then-existing controversy.”).
The mootness doctrine limits courts to deciding cases in which an actual
controversy exists between the parties. Ex parte Flores, 130 S.W.3d 100, 104–05
(Tex. App.—El Paso 2003, pet. ref’d). “A case that is moot is normally not
justiciable.” Pharris v. State, 165 S.W.3d 681, 687 (Tex. Crim. App. 2005); Ex parte
Sewell, 495 S.W.3d 54, 55 (Tex. App.—Houston [14th Dist.] 2016, no pet.); see
Flores, 130 S.W.3d at 105 (“When there has ceased to be a controversy between the
litigating parties which is due to events occurring after judgment has been rendered
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by the trial court, the decision of an appellate court would be a mere academic
exercise and the court may not decide the appeal.”).

Outcome: Because appellant’s appeal has been rendered moot, we lack jurisdiction over it. We therefore reinstate the appeal and order the appeal dismissed as moot.

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