                                                                                         ACCEPTED
                                                                                     03-15-00288-CR
                                                                                             6201388
                                                                          THIRD COURT OF APPEALS
                                                                                     AUSTIN, TEXAS
                                                                                7/23/2015 3:51:30 PM
                                                                                   JEFFREY D. KYLE
                                                                                              CLERK
                       No. 03-15-00288-CR

                                                               FILED IN
                                             3rd OF
IN THE COURT OF APPEALS FOR THE THIRD DISTRICT   COURT   OF APPEALS
                                                     TEXAS
                                                 AUSTIN, TEXAS
                    AT AUSTIN, TEXAS         7/23/2015 3:51:30 PM
                                                           JEFFREY D. KYLE
                                                                Clerk


                       ROBIE LEE LAWHON
                            Appellant

                                   vs.

                       THE STATE OF TEXAS
                             Appellee



  On appeal from the    Judicial District Court of Milam County, Texas
            The Honorable John Youngblood, Judge Presiding
                           Cause No. 24,713



                        APPELLANT’S BRIEF



                           Counsel ofRecord:

                            Tyler Pennington
                         State Bar No. 24076617
                         Pennington Law PLLC
                        106 S. Harris St. Suite 125
                         Round Rock, TX 78664
                           PH: (512) 255-2733
                          FAX: (866) 736-3690
                     ty1erpennington1awpl1c.net
                    ATTORNEY FOR APPELLANT
              INDENTITY OF PARTIES AND COUNSEL

PARTIES TO THE JUDGMENT:


APPELLANT:                 Robie Lee Lawhon
                           Milam County Jail
                           512 N. Jefferson Ave.
                           Cameron, TX 76520

APPELLEE:                  W.W. Torrey
                           District Attorney
                           District Attorney’s Office of Milam County, Texas
                           204 N. Central
                           Cameron, TX 76520
                           PH: (254) 697-7013
                           FAX: (254) 697-7016
                           wwtorrey@milamcounty.net

PRESIDING JUDGE:           The Honorable John Youngblood


DEFENSE TRIAL COUNSEL: Tyler Pennington
                       106 S. Harris St., Suite 125
                       Round Rock, TX 78664

TRIAL PROSECUTORS:         W.W. Torrey
                           District Attorney Milam County, Texas
                           204 N. Central
                           Cameron, TX 76520

APPELLANT COUNSEL:         Tyler Pennington
                           Pennington Law PLLC
                           106 S. Harris St., Suite 125
                           Round Rock, TX 78664
                           PH: (512) 255-2733
                           FAX: (866) 736-3690
                           tylerpenningtonlawpllc.net
                     TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL

TABLE OF CONTENTS                                            ii

INDEX OF AUTHORITIES                                      iii

STATEMENT OF CASE                                         iv

STATEMENT REGARDING ORAL ARGUMENT                            v

ISSUE PRESENTED                                              v

THE TRIAL COURT ABUSED ITS DISCRETION BY SETTING EXCESSIVE
BAIL IN VIOLATION OF THE UNITED STATES AND TEXAS
CONSTITUTION AND ARTICLE 17.15 OF THE TEXAS CODE OF
CRIMINAL PROCEDURE


STATEMENT OF FACTS                                                1

SUMMARY OF THE ARGUMENT                                       3

ARGUMENT AND AUTHORITIES                                3-11

PRAYER                                                    11

CERTIFICATE OF SERVICE                                       12

CERTIFICATE OF COMPLIANCE WITH WORD LIMIT                    12




                                                                      II
                            INDEX OF AUTHORITIES


TEXAS CASES

Ex Porte Jamell D. Brooks, 376 S.W.3d 222 (Tex.App.-Fort Worth 2012)       3, 4,

5,8,9,10

Ex Parte Richard Emil Rithac, 61! S.W.2d 84$ (Tex.Crim.App. 1981)          3,6,

7

Ex Porte Fave BuJkin, Juan Dc Ia Cnc and Richard Bowker, 553 S.W.2d 116

(Tex.Crirn.App. 1977)                                                       5, 6,

7

Montalvo v. State, 315 S.W.3d 58$, 592-93 (Tex.App.-Houston [1” Dist.] 2010, no

pet.)                                                                              10



STATUTES AND RULES

TEX. PEN. CODE § 19.04                                                             iv

TEX. PEN. CODE §22.01(a)(I)                                                        iv

U.S. CONST. AMEND VIII                                                 V, 3,4, 11

TEX. CONST. ART. I,     §   13                                         V, 3,4, 11

TEX. CODE CRIM. PROC. ANN. ART. 17.15                               V, 3, 5, 8, 11




                                                                                    Ill
TO THE HONORABLE COURT OF APPEALS:

      COMES NOW, Robie Lee Lawhon, Appellant, and respectfully submits this

brief alleging error from a Writ of Habeas Corpus Seeking Bail Reduction for a

Second Degree Felony Manslaughter.



                        STATEMENT OF THE CASE

      Robie Lee Lawhon was indicted under TEX. PEN. CODE § 19.04 for two

second-degree felony manslaughter offenses. (CR1: 3). The Writ of Habeas Corpus

Seeking Bail Reduction also sought to reduce the bond on a second-degree felony

assault causing serious bodily injury in violation of TEX. PEN. CODE   §
22.02(a)(I). Mr. Lawhon has not been indicted on the assault causing serious

bodily injury Robie Lee Lawhon’s bond was set at $250,000 for each count of

manslaughter and $100,00 for the assault causing serious bodily injury. (CR1: 8).

      Mr. Lawhon, through undersigned counsel, filed a Writ of Habeas Corpus

Seeking Bail Reduction on all three cases. A hearing on all three motions was

conducted in front of the Honorable John Youngblood on April 30, 2015. At the

conclusion of the hearing the judge reduced Mr. Lawhon’s bond to S150,00 for

each manslaughter case and $20,000 for the assault causing serious bodily injury,

totaling $320,000.00. (CR1: 12; RRI: 25). A Notice of Appeal on each case was

timely filed on May 8,2015. (CR1: 15). The briefs for this cause, 03-15-00277-


                                                                                    iv
CR, and the briefs in cause numbers 03-15-00265-CR and 03-15-00288-CR are

being submitted separately, however they are substantively the same since all cases

involve the same issues of fact and law.



                 STATEMENT REGARDING ORAL ARGUMENT

      Oral argument :‘ill not aid the court’s decisional process in this appeal



                               ISSUE PRESENTED

    THE TRIAL COURT ABUSED ITS DISCRETION BY SEEPING
EXCESSIVE BAIL IN VIOLATION OF THE UNITED STATES AND TEXAS
CONSTITUTION AND ARTICLE 17.15 OF THE TEXAS CODE OF
CRIMINAL PROCEDURE




                                                                                      V
                            STATEMENT OF THE FACTS

      The State indicted Robie Lee Lawhon on two counts of second-degree

felony manslaughter on March 19, 2015. (CR1: 3). Upon his arrest on April 14,

2015, his bond was set at $250,000 for each ease. On the same date a $l00,00.00

bond was also set on a second-degree felony assault causing serious bodily injury.

(CR1: 8). To date, Mr. Lawhon has not been indicted on the second-degree felony

assault causing serious bodily injury.

      On April 23, 2015, Mr. Lawhon, through undersigned counsel filed three

Application for Habeas Corpus Bail Reduction Motions. (CR1: 9). On April 30,
                                                      20th
2015, the hearing on those motions was heard by the          District Court of Milam

County, the Honorable Judge Youngblood presiding. At the hearing, the trial court

heard testimony from Catherine Jean Martinez, Mr. Lawhon’s mother; Linda

Matysek, a long time family friend of Mr. Lawhon and Mr. Lawhon’s friend’s

mother; and Lisa Roden from Rockin R and Pistol Bail Bonds. Mr. Lawhon did

not testilS’. (RRI: 1-23)

       Catherine Martinez testified at the hearing that Mr. Lawhon has resided at

either her house or his grandmother’s house in Milam County, Texas, for the last

twenty-two years. She further testified that Mr. Lawhon graduated from Rockdale

High School (located in Milam County, Texas) in 2010 and has consistently

maintained successful employment since his high school graduation. Ms. Martinez



                                                                                       1
stated that she would allow Mr. Lawhon to reside at her house if released on bond.

She also stated that Mr. Lawhon had cooperated with the Texas Department of

Public Safety (DPS) during their nearly year long investigation before he was

taken into custody and that he never missed one appointment with DPS in regard to

their investigation. (RRI: 8-15).

      There was evidence presented that Mr. Lawhon had previously been on

deferred adjudication for possession of a controlled substance and that he

successfully completed deferred adjudication with no violations. Mr. Lawhon has

no other criminal history outside of the deferred adjudication. Mr. Lawhon never

missed a court appearance for that case and never failed to make a meeting with

probation. (RR1: 11, 13).

       Catherine Martinez testified that their family has been unable to secure the

funds necessary to pay for the bonds. She further testified that they have been

unable to secure a loan or sell property in a sufficient amount to pay the bonds. Ms.

Martinez testified that she could afford bonds in the range of $5,000 per case.

 (RR1: 10—11, 13—14)

       Linda Matysek testified that she has known Mr. Lawhon since he was fifteen

 years old and went to high school with her son. She further testified that Mr.

 Lawhon was a helpful kid and believed that his reputation in the community was




                                                                                        2
“fine”. She has never had any legal problems with Mr. Lawhon. She also indicated

that she would be willing to help him appear at court if necessary. (RRI: 16-17).

      Lisa Roden a local bail bonds owner testified that she has spoken with Mr.

Lawhon’s family about his bond. She testified that she has written a bond on a

different manslaughter case in which an out-of-state defendant had his bond

reduced to $10,000.00. She further testified that she is unable to write a bond over

$50,000.00 for each of Mr. Lawhon’s cases. Mrs. Roden testified that she did not

believe that Mr. Lawhon was a flight risk and that he would show up to court and

“do the right thing.” (RRI: 19-21).

      The State called no witnesses at the hearing, and only the evidenced the

stated introduced was a copy of the Probable Cause Affidavit.



                               Summary of the Argument

First Issue: The trial court abused its discretion by setting excessive bail in
violation of the United States and Texas Constitution and Article 17.15 of the
Texas Code of Criminal Procedure.


                            Argument and Authorities

       The trial court’s ruling is reviewed under an abuse of discretion standard. Lx Porte

Jamell D. Brooks, 376 S.W.3d 222, 225 (Tex.App.-Fort Worth 2012) (Gabriel, L.

dissenting) quoting Ex Porte Richard Emil Rubac, 611 S. IV.2d 848 (Tex. Crhn.App. 1981)

and Clemons v. State, 220 S.W.3d 176, 178 (Tex.App.-Eastland 2007, no pet.).


                                                                                       3
      To determine whether the trial court abused its discretion, the Court of Appeals

must decide whether the trial court acted without reference to any guiding principles and

if the act was arbitrary or unreasonable. The burden of proof is upon the applicant who

claims bail was excessive. Lx Pane Janiell D. Brooks, 376 S.W.3d 222, 225 (Tex.App.

Fort Worth 2012) (Gabriel, L. dissenting) quoting Exparte Hunt, 138 S.W.3d 503,505

(Tex.App.-Fort Worth 2004, pet. Rerd) (citing       Montgomery    v. State, 810 S.W.2d

372,380 (Tex.Crim.App. 1990)).

      In setting bail, the trial court must strike a balance between a defendant’s

presumption of innocence and the State’s interest in assuring the defendant appears

at trial. Ex Pane Jan,ell D. Brooks, 376 S.W.3d 222, 225 (Tex.App.-Fort Worth

2012) (Gabriel, L. dissenting) quoting Exparte Beard, 92 S.W.3d 566, 573

(Tex.App.-Austin 2002, pet. Ref d). Both the United States Constitution and the

Texas Constitution prohibit excessive bail. See U.S. Const. amend. VIII; Tex.

Const. art. I,   § 13. Bail is excessive it ifis “set in an amount greater than is
reasonably necessary to satisfS’ the government’s legitimate interests.” Id.

       The Court should consider the following criteria when establishing a

 defendant’s bond: 1) the bail shall be sufficiently high to reasonably assure

 compliance; 2) the bail shall not be used as an instrument of oppression; 3) the bail

 shall reflect the nature of the offense and the circumstances under which it was

 committed; 4) the bail shall take into account the ability of the defendant to make



                                                                                         4
the bail and the evidence proffered on this point; and 5) the bail shall assure the

future safety of the victim of the alleged offense and the community. TEX. CODE

CRIM. PROC. ANN. ART. 17.15.

      The Texas Court of Criminal Appeals, stated that in determining whether

bond set by the trial court is excessive the court should weigh: 1) the accused’s

work record; 2) the accused’s family ties; 3) the accused’s length of residence; 4)

the accused’s prior criminal record, if any; 5) the accused’s conformity with the

conditions of any previous bond; 6) the existence of any outstanding bonds, if any;

and 7) aggravating circumstances alleged to have been involved in the charged

offense. Brooks. 376 S.W.3d at 223.

       In Es Porte Foye Bit/kin, Juan De la Cnc and Richard Banker, 553 S.W.2d 116

(Tex.Crim.App. 1977), the State presented evidence at the bail reduction hearing that

each appellant had been charged with first degree felony conspiracy to commit capital

murder, punishable by five to ninety-nine years in the Texas penitentiary. Each

appellant’s bail was set at $150,000. In Bujkin, the only evidence the State introduced at

the hearing was the indictment charging the appellants with the offense. The State

presented no evidence about the facts or details of the alleged offense. Bit/kiti 553 S.W.2d

at 117.

       The appellants in Bujkin introduced undisputed evidence that appellant

Bowker was gainfully employed and had stable housing. There was also evidence



                                                                                      5
introduced that fifteen years prior to the current offense, Bowker had been placed

on a five-year probation, which he successfulLy completed. Bowker had not been

in any trouble since successfully completing probation. Id.

      Similarly, the undisputed evidence presented by appellants Buficin and De Ia

Cruz showed they had no criminal history, stable housing and employment. De Ia

Cruz also presented evidence that his efforts to make the $200,000 bail had been

unsuccessful and that the highest bail he could make would be $15,000 or $20,000.

The record in Bujkin contained no evidence by the State that the appellants would

not appear for court. Id.

      Taking into consideration all of the above, the Court of Criminal Appeals in

Bujkin found that the $150,000 bail set by the trial court was excessive and reduced

the bail set for each appellant at $15,000. Id at 118.

       In Lx Pane Richard Emil Rubac, 611 S.W.2d 848 (Tex.Crim.App. 1981), Rubac

was appealing a ten-year sentence on the following convictions: possession with intent to

distribute methamphetamine, possession with intent to deliver methamphetamine, and

possession of LSD. The trial court set the appeal bond for Rubac at $100,000. Ruhac, 611

S.W.2d at 849.

       At the hearing to reduce the $100,000, Rubac presented evidence that he had

complied with the conditions of his previous bonds and that he had made all court

appearances required of him. The record also contained evidence that appellant had



                                                                                     6
no prior criminal history and had a significant amount of education. The only

evidence introduced by the State was on cross-examination in an attempt to show

that the bail would only cost Rubac $7,500. Appellant presented evidence that he

only had about $3,000 to use for appeal bond on the case. Id.

      Based on the above facts in Rubac, the Court of Criminal Appeals found that

there were no aggravating factors surrounding the offense, that Rzthac had no prior

criminal history, that Rubac had a limited ability to make bail, that Rubac was

educated and had the ability to pursue gainful employment, that Rubac had

previously conformed to the conditions of his prior bond, and that Rubac had

familial ties to the area. Therefore, they found the trial court abused its discretion

in setting the bail at $100,000 and reduced the bail to $25,000. Idat 850.

      Similar to BuJkin and Rubac, the evidence presented in Mr. Lawhon’s bond

reduction hearing showed that he has been a twenty-two year resident of Milam

County and that he was gainfully employed in the past and at the time of the

current offense. The records further showed his relatively little criminal history,

which included only one prior deferred adjudication, which he successfully

completed without incident. (RRI: 8-9, 11, 13).

       Also like the testimony’ in Rubac, testimony from Mr. Lawhon’s mother

indicated there efforts to make the current bond amounts had been unsuccessful.

Testimony by bail bond company owner, Lisa Roden, indicated she had been



                                                                                         7
working with Mr. Lawhon’s family regarding the bond. Ms. Roden further

testified she would be willing to write the bond because she didn’t believe Mr.

Lawhon was a “flight risk” and that she has no doubt “that he’s going to show up

to court and do the right thing.” Furthermore, Ms. Roden testified that she was

unable to write anything over a $50,000 bond. (RRI: 0-11, 13-14, 19-21).

      The State presented no evidence disputing the above facts. The State did not

dispute that Mr. Lawhon cooperated with DPS during their investigation of the

offense and never missed any appointments at DPS’ request. Mr. Lawhon even

turned himself in at the request ofDPS. (RR: 10-12).

       Although the trial court reduced Mr. Lawhon’s bond at the bond reduction

hearing, it still set the bond outside the realm of attainability for Mr. Lawhon and

his family. Considering all the factors Linder TEX. CODE CRIM. PROC. ANN.

ART. 17.15, in its ruling, the only factor the trial court held against bond reduction

to an affordable amount for Mr. Lawhon was the nature of the alleged offense.

When a court reviews the appropriate bail for a particular offense, appellate courts

often compare bail amounts in other cases of the same degree. This is relevant

because offenses of the same degree carry the same punishment range, which is a

proper consideration in determining the nature of the offense charged. Brooks, 376

S.W.3d at 227. In Mr. Lawhon’s case, the bail bond company owner, Lisa Roden.

testified that she has written a $10,000 bond out of the same court for a previous



                                                                                         8
manslaughter case. (RRI: 20). The evidence in that case indicated that the

defendant lived out of state, which would make him a higher [light risk than Mr.

Lawbon, who has consistently lived in the Milam County area for twenty-two

years.

         Furthermore, there was undisputed evidence that Mr. Lawhon had a good

work history (having stable employment since high school and at the time of the

incident), strong ties to the community and lengthy residence in Milam County

(having family in the Milam County area and himself being a Milam County

resident for twenty-two years), minimal criminal history (one prior possession of

controlled substance in which he successfully completed deferred adjudication),

and compliance with previous bond and probation conditions (evidence that he

never missed previous court dates, probation meetings, and fully cooperated with

DPS during their investigation of this case). (RRI: 8-18). There was no evidence

presented about aggravating factors in the present offense. See Brooks, 376 S.W.3d

at 223.

          There was no evidence presented that the excessively high bonds in Mr.

Lawhon’s three cases are necessary to assure his appearance in court or necessary

to protect the safety of the victim or the community, nor was there any evidence of

the specific circumstances or aggravated circumstances surrounding the event. The

State only presented specifics regarding the offense through the Probable Cause



                                                                                     9
Affidavit introduced into evidence. Based on the facts from the hearing and the

applicable law, Mr. Lawhon’s bail is “greater than reasonably necessary to satisfy

the government’s legitimate interests.” See Brooks, 376 S.W.3d at 225.

       An abuse of discretion review requires more than the appellate court simply

deciding that the trial court did not act arbitrarily or capriciously. The appellate

court must measure the trial court’s ruling against the relevant criteria by which the

ruling was made. Montalvo v. State, 315 S.W.3d 588, 592-93 (Tex.App.-Houston

[1’ Dist.] 2010, no pet.).

       Although the trial court in this case lowered Mr. Lawhon’s bonds from

$250,000.00 to $150,000.00 for each manslaughter case and from $lOO,00.00 to

$20,000.00 for the assault causing serious bodily injury case (RR: 1 25, CR1: 12),

there ruling was both arbitrary and without guiding principles. No evidence was

presented by the State that the bail amount set was necessary to ensure Mr.

Lawhon’s compliance. The Court’s ruling even stated that Mr. Lawhon has

cooperated with the investigation and shown up when requested, along with

appearing in the past when required to do so. (RR: 24). This evidence alone shows

that he has complied with previous bond conditions. See Brooks, 376 S.W.3d at

223.

       Mr. Lawhon’s family testified that they were unable to make the current bail

amounts and that they could only afford a bond in the area of $5,000.00 for each



                                                                                       10
case. (RRI: 11). Lisa Roden testified that she is unable to write a bond that

exceeds $50,000.00. (RRI: 20-21). Additionally, the court set one bond (second

degree assault) $130,000.00 higher than the bond on the other two cases (second

degree manslaughter). (RR: 1 25, CR1: 12). However, the Court did not make any

mention of the ability of Mr. Lawhon to make the current bail or the ability of a

bond company that could write the bail amounts set in its ruling. (RRI: 24-25).

      One can only presume from the court’s ruling that the court used the bail as

an instrument of oppression. The court’s only reference to any of the legal criteria

was to the seriousness of the offense, making it clear that they court only took into

account this factor while ignoring the other relevant factors under TEX. CODE

CRIM. PROC. ANN. ART. 17.15.

       Applying the above facts against the relevant criteria considered in the bond

reduction ruling, Mr. Lawhon has sufficiently met his burden in showing the trial

court abused their discretion by setting excessive bail in violation of the United

States and Texas Constitution and Article 17.15 of the Texas Code of Criminal

Procedure.

                                      PRAYER

       WHEREFORE, PREMISIS CONSIDERED, Appellant Robie Lee Lawhon,

asks the court to: reduce the bond in Cause numbers 03-15-00277-CR, 03-15-

00265-CR and 03-15-00288-CR.



                                                                                     11
                         CERTIFICATE OF SERVICE

       The undersigned counsel hereby certifies that a true and correct copy of this
brief was served by mail to counsel for the State, W.W. Torrey, District Attorney,
Milam County District Attorney’s Office 204 N. Central Cameron, TX 76520, PH:
(254) 697-7013, FAX: (254) 697-7016 on July 22, 2015 via facsimile transmission.



                   Tyler Pennington
                   Attorney for Appellant



          CERTIFICATE OF COMPLIANCE WITH WORD LIMIT


       The undersigned counsel represents that they have relied on the word count
tool in the Word document and that this brief is a   1 of 2595 words.



                   Tyler Pennington
                   Attorney for Appellant




                                                                                    12
