                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-15-00151-CR


EX PARTE OMAR BASHIR
MOHAMMED



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      FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
                    TRIAL COURT NO. 1359991D

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                         MEMORANDUM OPINION1

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      Appellant Omar Bashir Mohammed perfected this appeal from the trial

court’s denial of his motion requesting bond pending appeal. See Tex. Code

Crim. Proc. Ann. art. 44.04(g) (West 2006); Tex. R. App. P. 31.1. In a single

point, Appellant argues that the trial court abused its discretion by refusing to set

a hearing on his motion requesting bond pending the appeal and by summarily




      1
       See Tex. R. App. P. 47.4.
denying it. Because we hold that the trial court abused its discretion by failing to

conduct a hearing, we will reverse and remand.

      In the underlying case, a jury found Appellant guilty of the felony offenses

of aggravated assault with a deadly weapon, to wit: an automobile; aggravated

assault causing serious bodily injury; recklessly causing bodily injury to an elderly

person; and failing to stop, return to, or remain at the scene of an accident

involving personal injury or death. The jury assessed Appellant’s punishment on

each of the first three counts at six years’ confinement and recommended that

the sentences be suspended and that he be placed on community supervision for

six years; the jury assessed Appellant’s punishment on count four at five years’

confinement. The trial court sentenced Appellant in accordance with the jury’s

recommendations. Appellant thereafter filed a motion requesting that a bond be

set pending appeal of his four felony convictions, and the trial court denied the

motion.

      We review a trial court’s ruling on a request for bond pending appeal under

an abuse-of-discretion standard. Ex parte Spaulding, 612 S.W.2d 509, 511 (Tex.

Crim. App. 1981). A defendant is eligible for release on bond pending the appeal

of a felony conviction when the punishment imposed is less than ten years’

confinement and when the conviction does not involve an offense listed under

section 3g(a)(1) of Texas Code of Criminal Procedure article 42.12. See Tex.

Code Crim. Proc. Ann. art. 44.04(b); see also Shockley v. State, 717 S.W.2d

922, 925 (Tex. Crim. App. 1986) (Miller, J., concurring) (stating that when


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appellant’s sentence does not exceed the maximum allowed by article 44.04(b)

and when appellant’s conviction does not involve a controlled substance,

appellant is eligible for consideration by the trial court of bond pending appeal);

see also Lebo v. State, 90 S.W.3d 324, 330 (Tex. Crim. App. 2002) (holding felon

placed on ten years’ community supervision or less to seek statutorily eligible for

bond pending appeal under 44.04). Although no language exists in article 44.04

requiring a trial court to give notice or to hold a hearing prior to denying bond

pending appeal, the Texas Court of Criminal Appeals has held that due process

imposes such a requirement when an appellant is statutorily eligible for bond

pending appeal; the trial court must give reasonable notice and hold a hearing,

providing such an appellant a meaningful opportunity to be heard prior to denying

bond pending appeal. See Shockley, 717 S.W.2d at 923, 924 n.2, 926; Cortez v.

State, 36 S.W.3d 216, 221 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d);

Cruz v. State, No. 09-96-00006-CR, 1997 WL 34390, at *2–3 (Tex. App.—

Beaumont Jan. 29, 1997, no pet.) (not designated for publication).

      Here, Appellant filed a motion requesting that a bond be set pending his

appeal of his four felony convictions for which he was sentenced on each of the

first three counts to six years’ confinement, which was suspended and for which

he was placed on community supervision for six years, and to five years’

confinement on the fourth count. Because Appellant was sentenced to less than

ten years’ confinement or to less than ten years’ community supervision on each

of his four felony convictions and because his four felony convictions did not


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involve an offense listed under section 3g(a)(1) of Texas Code of Criminal

Procedure article 42.12, he was statutorily eligible for a bond pending appeal

under article 44.04 of the Texas Code of Criminal Procedure. See Tex. Code

Crim. Proc. Ann. art. 44.04(b);2 see also Shockley, 717 S.W.2d at 925. Because

Appellant was statutorily eligible for bond pending appeal, due process required

that the trial court give reasonable notice and hold a hearing. The record reflects

that a hearing was not held on Appellant’s motion. We therefore hold that the

trial court abused its discretion by failing to conduct a hearing on Appellant’s

motion requesting bond pending appeal. Shockley, 717 S.W.2d at 923, 926;

Cruz, 1997 WL 34390, at *3. We expressly limit our holding to a determination

that the trial court abused its discretion by failing to conduct a hearing. We need

not, and do not, address Appellant’s contention that the trial court abused its

discretion by denying bond pending appeal.3

      Accordingly, we sustain Appellant’s sole point to the extent that a hearing

was not held on Appellant’s motion requesting bond pending appeal, we reverse


      2
       All four convictions contain deadly-weapon findings and consequently are
commonly termed “3g offenses” under article 42.12, section 3g(a)(2), indicating
that a deadly weapon was used or exhibited during the commission of the felony
offense. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (West Supp.
2014). But article 44.04(b) precludes bond pending appeal only for specific
offenses listed under article 42.12, section 3g(a)(1)––the offenses of murder,
capital murder, indecency with a child, aggravated kidnapping, aggravated
sexual assault, and others. Id. art. 42.12, § 3g(a)(1), art. 44.04(b).
      3
       After a hearing, the trial court may exercise its discretion to set or to not
set bond pending appeal.


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the trial court’s order denying Appellant’s request for bond pending appeal, and

we remand for the trial court to conduct a hearing on Appellant’s motion

requesting bond pending appeal.

                                                 /s/ Sue Walker
                                                 SUE WALKER
                                                 JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

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

DELIVERED: August 27, 2015




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