OCTOBER D87 - Voice For The Defense Online

Appellate Developments:"Can I Get Out On Bond While MY CaseIs On Appeal?"by John H. Hagler, DallasPerhaps the most frequently asked questionafter a defendant is sentenced is: "CanI get out on hond while my case is on appeal?"Hopefully, this article will providesome answers to that question and will providesome useful motions that can be usedby the practitioner. It is not the purposeof this article to provide an in-depth surveyof the case law, statutes, and applicableN~S.The answer to the defendant's questionis that he will most likely be entitled to bereleased on hond pending the appeal of hisconviction if the punishment does not exceedfifteen (15) years. See 44.04(a) and(b), Texas Code of Criminal Procedure.Of course, the fifteen (15) year limit explainsthe familiar prosecution argumentasking the jury to assess punishment atfifteen years and a day. [An exceptionexists when the defendant is convicted foran offense listed under Section 4.012(b),Texas Controlled Substances Act (i.e. arepeat drug offender); also, under Article44.04(c), Texas Code of Criminal Procedure,the trial court may deny bond "ifthere then exists good cause to believe thatthe defendant would not appear when hisconviction became fmal or islikely to commitanother offense while on bail."]The second question most frequentlyasked by a defendant is whether he can stayin the county jail during the appeal or whilehe is attempting to raise the funds neededto post an appeal bond. Theanswer to thissecond question is that he must be transferredto the Texas Department of Corrections(T.D.C.) if his sentence exceeds tenJohn H. Hagler +va$ formerly an AssistantCity Attorney for Dallas and was anAssistant District Attonley in Dallas Courrtyfrom 1972 to 1983. Since that date hehas been in private practice in Dallas.(10) years. See Article 42.09, Section 4,Texas Code of Criminal Procedure. On theother hand, if the sentence is ten (10) yearsor less, the defendant can stay in the countyjail unless he requests in open court or bywritten motion to he transferred. In thisrespect it is important to advise the defendant(who has received ten years or less)that, if he requests to be transferred toT.D.C. and he is transferred, he cannotlater be released on hond pending the appeal.See Article 42.09, Section 4, supra.However, a defendant, who received fifteenyears or less but more than ten yearsand was involuntarily transferred toT.D.C., can he bench-warranted hack tothe sentencing court and an appeal bondcan he posted.Setting of the Appeal BondThe first step in securing the release ofthe defendant is to file a motion with thetrial court requesting that a reasonablebond be set. A suggested motion is asfollows:NO.THE STATE OF TFXAS ) IN THR JUDlCUL2. Under the provisions of Article44.04, Texas Code of Criminal Procedure,the Defendant is entitled to he released onreasonable bond pending the determinationof the appeal.3. In ExparteDavila, 623 S.W.2d408(Tex.Crim.App. 1981) thecourt listed therelevant factors in setting a bond pendingappeal. They are:a. the punishment assessed;b. the nature of the offense;c. the defendant's work record,family ties, and length of residency;d. ability to make the bond;e. conformity with previous bondconditions; andf. other outstanding bonds.4. In the present case (1) the Defendantwas convicted of a non-violent crime; (2)sentence was assessed at(3) the Defendant has no prior criminalconvictions and bas no pendingcases; (4) the Defendant has strong ties tohis family an*(5) the Defendanthas limited financial resources, and(6) the Defendant has had no prior hondforfeitures.5. The Defendant has limited financial\'S1 resources, hut can probably post a -I DISTRICT COURT OFbond. It is questionable if hecani counru. TEXAS post an appeal bond in a greater amount.WHEREFORE, PREMISES CONSID-MOTION TO SET BOND ERED, the Defendant respectfully requestsPENDING APPEALthat the Court conduct an evidentiary hearingand that, at the conclusion of th& bear-TO THE HONORABLE JUDGE OF ing, the Court set the appeal bond in theSAID COURT:amount ofNOW COMES, the Defendant, by andthrough his undersigned attorney, andRespectfully submitted,respectfully requests that the Court set areasonable band in the foregoing cause andwould show the following:ATTORNEYFOR1. On the Defendant was DEFENDANTconvicted of the offense ofand punishment was assessed at - ORDER. On the Defendant IT is the ORDER of this Court that anfiled a notice of appeal.evidentiary hearing will be held on the34 VOICE for the Defense I October 1987