Defendant filed for Writ of HC for lack of probable cause. Defendant arrested on misd. and felony narcotics found in subsequent search. Court ruled in our favor. I filed the misd. immediately afterward in CCL. Defendant has now appealed to court of appeals.

Am I wrong or doesn't the filing of misd. preclude the pc argument, or does the fact there is a possible felony still make it an open question?

What if grand jury indicts felony?

This whole thing feels very...premature?

It appears the appellate courts have accepted jurisdiction over such appeals. E.g., Pilkington, 494 S.W.3d 330 (Waco 2015); King, No. 04-13-00628-CR (1/18/14). This is true despite the general rule that interlocutory appeals are not permitted in criminal cases. See Smith, 178 S.W.3d 797, 801 n.13 (Cr. App. 2015)(withdrawn upon expungement).

There is probably an argument that filing of an information does not render the issue moot based on Garcia, 547 S.W.2d 271 (Cr. App. 1977) (stating that "the prosecutorial act of filing an information . . . adds nothing in the way of evidence of probable cause" and that a "petitioner is entitled to a judicial determination of the existence of probable cause [before] continued detention to answer the criminal accusation").

Still, it is plain that even if your arrestee had achieved habeas relief, that would not bar the filing of an information. So, I would argue the dicta in Garcia applies only to how probable cause is required to be proved at the habeas hearing and that the issue is now moot. Habeas simply should not be misused to challenge the sufficiency of the evidence (except as it pertains to the validity of pretrial confinement). As recently stated in Blakely, No. 02-17-00393-CR (Fort Worth 3/8/18), "To the extent his claims relate to the sufficiency of the State's evidence to prove he committed the offense, those are questions for the ultimate factfinder and are appropriately reviewed after the factfinder has rendered a verdict."

Well, I see that the appellate court held that the accused was entitled to discharge from custody. Ex parte Ruhl, No. 12-18-00045-CV.

But, it says nothing about any resulting immunity from prosecution, although in this particular case it effectively ruled that the information should be dismissed unless there is good reason to believe the apartment was "entered." Obviously, the court held the issue was not rendered moot by the filing of an information.

In any event, a question remains about the accused's guilt under the criminal attempt statute.