                                                                             ACCEPTED
                                                                        03-15-00104-CR
                                                                               4724877
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                   4/1/2015 11:23:55 AM
                                                                       JEFFREY D. KYLE
                                                                                 CLERK
                   NO. 03-15-00104-CR

                  COURT OF APPEALS                     FILED IN
                                                3rd COURT OF APPEALS
                                                    AUSTIN, TEXAS
                       FOR THE                  4/1/2015 11:23:55 AM
                                                  JEFFREY D. KYLE
       THIRD SUPREME JUDICIAL DISTRICT OF      TEXAS Clerk


                 STEVEN HERNANDEZ,
                       Appellant


                          VS.

                 THE STATE OF TEXAS,
                        Appellee


                     APPEAL FROM

          THE 421ST JUDICIAL DISTRICT COURT

                 HAYS COUNTY, TEXAS

          TRIAL COURT CAUSE NO. CR-15-0015-HC


                    STATE’S BRIEF



                         Wesley H. Mau
ORAL ARGUMENT            Hays County Criminal District Attorney
  REQUESTED
                         712 S. Stagecoach Trail, Suite 2057
                         San Marcos, Texas 78666
                         State Bar No. 00784539
                         Attorney for the State of Texas
                            NAMES OF PARTIES

Appellee:                  State of Texas

Attorneys for the State:   Wesley Mau, Hays County Criminal District Attorney
      At trial:            Katie McVaney, Assistant Criminal District Attorney
      On appeal:           Wesley Mau
                           Criminal District Attorney
                           712 S. Stagecoach Trail, Suite 2057
                           San Marcos, Texas 78666
                           State Bar No. 00784539
                           Attorney for the State of Texas

Appellant:                 Steven Hernandez

Attorney:
      At trial:            E. Chevo Pastrano

      On appeal:           E. Chevo Pastrano
                           The Pastrano Law Firm
                           202 Travis St., Ste. 307
                           Houston, Texas 77002




                                                                                 ii
                                          TABLE OF CONTENTS

NAMES OF PARTIES ............................................................................................ II
TABLE OF CONTENTS ...................................................................................... III
INDEX OF AUTHORITIES ................................................................................. IV
ISSUES PRESENTED ............................................................................................. 2
STATEMENT REGARDING ORAL ARGUMENT ............................................ 2
STATEMENT OF FACTS....................................................................................... 2
SUMMARY OF THE ARGUMENT ...................................................................... 4
ARGUMENT ............................................................................................................ 5
  STATE’S RESPONSE TO POINT OF ERROR ONE ....................................... 5
   APPELLANT HAS FAILED TO PRESERVE FOR REVIEW ANY COMPLAINT
   ABOUT THE JANUARY 7 BOND HEARING.
         1. Appellant’s brief is inadequate to preserve this issue on
            appeal. ....................................................................................................... 5
         2. Appellant has had a hearing on the bond increase. .................................... 6
  STATE’S RESPONSE TO POINT OF ERROR TWO ...................................... 8
   THE TRIAL COURT DID NOT ERR IN RELEASING APPELLANT UNDER THE
   PROVISION OF ART. 17.151, THEN LATER INCREASING BOND UNDER
   ART. 17.15 FOR GOOD AND SUFFICIENT CAUSE.

CONCLUSION ....................................................................................................... 12
PRAYER ................................................................................................................. 13
CERTIFICATE OF COMPLIANCE WITH TEX.R.APP.PROC.,
RULE 9.4 ................................................................................................................. 13
CERTIFICATE OF SERVICE ............................................................................. 14




                                                                                                                         iii
                                       INDEX OF AUTHORITIES

CASES

Busby v. State, 253 S.W.3d 661 (Tex.Crim.App. 2008) ..............................................6

Ex parte Castellano, 321 S.W.3d 760 (Tex. App.—Fort Worth

    2010, no pet.) .........................................................................................................9

Ex Parte Gill, 413 S.W.3d 425 (Tex. Crim. App. 2013) ....................................... 9, 11

Ex parte McNeil, 772 S.W.2d 488 (Tex. App.—Houston [1st

    Dist.] 1989, no pet.) ...............................................................................................9

Miller v. State, 855 S.W.2d 92 (Tex. App. 1993) ........................................................8

Roberson v. State, 16 S.W.3d 156 (Tex. App.—Austin, 2000) .................................10

STATUTES

TEX. CODE CRIM. PROC., art 38.43 .....................................................................10

TEX. CODE CRIM. PROC., art. 17.09 .............................................................passim

TEX. CODE CRIM. PROC., art. 17.15 .................................................................. 3, 8

TEX. CODE CRIM. PROC., art. 17.151 ...........................................................passim

TEX.R.APP.PROC. Rule 38.2 ....................................................................................2

TEX.R.APP.PROC., Rule 38.1 ...................................................................................6




                                                                                                                          iv
                              NO. 03-15-00104-CR

                             COURT OF APPEALS

                                    FOR THE

             THIRD SUPREME JUDICIAL DISTRICT OF TEXAS


                            STEVEN HERNANDEZ,
                                  Appellant

                                       VS.

                            THE STATE OF TEXAS,
                                   Appellee


                                 APPEAL FROM

                   THE 421ST JUDICIAL DISTRICT COURT

                            HAYS COUNTY, TEXAS

                 TRIAL COURT CAUSE NO. CR-15-0015-HC


                                STATE’S BRIEF


TO THE HONORABLE JUSTICE OF THE COURT OF APPEALS:

      COMES NOW the State of Texas, by and through her Criminal District

Attorney, Wesley H. Mau, and files this Brief in Opposition to Appellant’s Brief

pursuant to Tex. R. App. Proc., Rule 38.2 and would show the Court the following:


                                                                            Page 1
                                  ISSUES PRESENTED

       Having once reduced a defendant’s bond under Tex. Code Crim. Proc.,1 art.

17.151, is a judge prohibited ever after from finding “good and sufficient cause” to

increase the bond under article 17.09 if the court finds the bond to be insufficient in

amount?


                 STATEMENT REGARDING ORAL ARGUMENT

       The State recommends oral argument in this case.                   The case involves

interpretation of the statutory language of articles 17.09 and 17.151, which may be

harmonized in multiple ways or which may conflict in ways the Court must resolve.

A dialogue between the parties and the Court would assist the Court in answering

unanticipated questions or hypothetical situations of concern to the Court.


                                STATEMENT OF FACTS

       Appellant was arrested for Aggravated Robbery on September 25, 2014, and a

$75,000 bond was set. CR2 39.         On December 18, 2014, Appellant was granted a

personal bond under article 17.151, as Appellant’s case was unindicted and the next

grand jury would not meet until after the 90th day of his detention. CR 39.




1
  All article numbers throughout this brief represent references to articles in the Texas Code of
Criminal Procedure, except where otherwise noted.
2
  CR refers to the Clerk’s Record, Vol. 1 of 1.

                                                                                         Page 2
       Appellant was indicted on January 6, 2015. CR 7. On that date, the State filed

its Motion to Increase Bond, invoking both articles 17.15 and 17.09, §3. CR 10. That

same day, the trial court found that Appellant’s bond was “insufficient in amount”

and that “good and sufficient cause exist[ed] to increase the amount of the bond.” CR

13. Bond was reset at $75,000. CR 13.

       The next day, January 8, 2015, Appellant filed Defendant's Objection to the

State's Presentation of Her Motion to Increase Bond Ex Parte.3 CR 14. Appellant’s

counsel appeared in court the same day, and the trial court acknowledged the filing of

the Objection. 3 RR 5.4 During that hearing, Appellant also filed his Application for

Writ of Habeas Corpus Seeking Bail Reduction and/or Reinstatement of Bail Set

Pursuant to Article 17.151.5 3 RR 11, CR 33.

       During this January 8 hearing, the court learned that DNA testing unavailable

at the time of the initial bond setting had linked Appellant to a shirt seen on the

robber in a surveillance video of the crime. CR 40. The trial court denied the

application, citing the following factors:

       … the fact the case had been indicted, the allegations in the probable
       cause affidavit, the DNA evidence, the threat to the victim of the crime,


3
  Hereafter, “Objection.”
4
  Referenced to the Reporter’s Record indicate the volume number, “RR,” then the page number of
the volume referenced.
5
  Hereafter, “Application.” No further mention of the Objection was made prior to the trial court’s
overruling the Objection at the end of the hearing. 3 RR 23.

                                                                                           Page 3
      the threat to the community, the aggravating factors of the offense, and
      the likelihood of the defendant appearing for trial.

CR40-41.


                        SUMMARY OF THE ARGUMENT

   1. Point One

      Appellant argues that the facts did not justify a bond increase, but his brief

provides no argument as to why the trial judge could not have made such a ruling ex

parte, so his first Point of Error is not preserved for review. Even if an ex parte

ruling on the State’s Motion to Increase Bond were improper, Appellant was heard

on the issue the following day, so he cannot show harm.

   2. Point Two

      Article 17.09, §3, authorizes a judge to order a defendant to be rearrested and

to post a new bond for any good and sufficient cause. Article 17.151 requires release

of a defendant if the State is not ready for trial on the charge for which he is detained

within 90 days. When the State is ready for trial, and the trial court determines good

and sufficient cause exists to increase bond under article 17.09, then article 17.151

does not prohibit the court from increasing bond to and amount deemed proper.




                                                                                 Page 4
                                   ARGUMENT


           STATE’S RESPONSE TO POINT OF ERROR ONE
      APPELLANT HAS FAILED TO PRESERVE FOR REVIEW ANY
      COMPLAINT ABOUT THE JANUARY 7 BOND HEARING.

   1. Appellant’s brief is inadequate to preserve this issue on appeal.

      Appellant’s first point of error complains in its heading that “the trial court

erred when it raised and changed the nature of Appellant’s personal bond in an ex

parte hearing attended by the state only.” App.Brf., p.8. This issue has not been

preserved for appeal, as Appellant has not adequately briefed the issue.

      Appellant filed his Objection. CR 14-16. Although the court acknowledged

the filed objection at the hearing on January 8, 2015, Appellant’s counsel

immediately filed his Application and never urged his Objection.           During the

discussions on the record, Appellant never asked the court to rescind the bond

increase as a result of it having been done ex parte. Instead, his arguments related

only to whether the court should have increased the bond.

      Likewise on appeal, Appellant’s “Point of Error Number One” (Point One) is

difficult to distinguish from his “Point of Error Two” (Point Two). In fact, every




                                                                               Page 5
sentence of Point One is duplicated word-for-word in Point Two.6                     The only

difference is that Point One contains no reference to the January 8 writ hearing.

       In Appellant’s first Point of Error, he urges this Court to hold that:

       The trial court abused its discretion by holding an ex parte hearing on
       the State’s motion to increase bond on January 7, 2015 and increasing
       Appellant’s bond based on the fact that an indictment was returned 103
       days after Appellant’s initial detention and the fact that Appellant had
       been completely compliant with all bond conditions.

App.Brf., p.10. He provides no argument or authority for the proposition that the trial

court was not permitted to render that holding ex parte, he only argues that the ruling

was incorrect based on the same arguments he makes in Point Two. Texas Rules of

Appellate Procedure, Rule 38.1(i) states, “The brief must contain a clear and concise

argument for the contentions made, with appropriate citations to authorities and to the

record.” Appellant’s brief contains no “appropriate citations to authorities and to the

record” which might justify a holding that the trial court had no authority to set bond

ex parte. See also, Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008).

    2. Appellant has had a hearing on the bond increase.

       While Appellant does not raise this issue on appeal, his Objection complains

that “Nothing in the State’s motion shows the need for an immediate, ex parte

hearing without giving the Defense the benefit to be present to object and contest the

6
 The first four paragraphs of Point One are reproduced as the first four paragraphs of Point Two.
The entire remainder of Point One is repeated verbatim in the body of Point Two starting on page
12 and continuing through page 14.

                                                                                         Page 6
State’s motion to increase bond.” CR 15. The Objection does not specify whether

this is a due process complaint or otherwise, but in any case, Appellant was heard on

the bond issue the day following the filing of the State’s Motion to Increase Bond,

which was prior to his re-arrest.7 Any dispute as to the court’s authority to raise bond

in Appellant’s absence was rendered moot by the contested hearing in Appellant’s

presence the following day prior to any action being taken to enforce the new bond.

       Appellant’s entire argument as to Point One relates to the correctness of the

trial court’s ruling, not the procedure by which the issue was heard. Since the

arguments in Point One are also entirely subsumed into Appellant’s argument as to

Point Two, Point One should be overruled as inadequately briefed, or alternatively,

because the propriety of an ex parte bond increase was rendered moot by virtue of

the contested hearing which occurred the following day.




7
  While the record is not crystal clear on what happened between the court’s granting the bond
increase on January 7 and the hearing on January 8, Appellant’s counsel represented at the writ
hearing that “you have every reason in the world to believe…that he’s gonna show up to court, like
he did today with less than 24-hours notice.” 3 RR 16. If Appellant showed up on his own, he was
clearly not in custody prior to the hearing.

                                                                                          Page 7
           STATE’S RESPONSE TO POINT OF ERROR TWO
      THE TRIAL COURT DID NOT ERR IN RELEASING APPELLANT
      UNDER THE PROVISION OF ART. 17.151, THEN LATER
      INCREASING BOND UNDER ART. 17.15 FOR GOOD AND
      SUFFICIENT CAUSE.
      Appellant urges this Court to hold that a defendant’s bond may not be

modified or increased under art. 17.09 if the defendant has previously received a

bond reduction pursuant to art. 17.151.

      Generally, once bond is set in a felony case, it is within the trial court’s

discretion to increase the bail set if the court “finds that the bond is defective,

excessive or insufficient in amount, or that the sureties, if any, are not acceptable, or

for any other good and sufficient cause.” art. 17.09; Miller v. State, 855 S.W.2d 92,

93 (Tex. App.—Houston [14th Dist.] 1993). Each case must be reviewed on a fact-

by-fact basis, as no precise standard exists for determining what constitutes “good

and sufficient cause” under Article 17.09. Id., at 94.

      In most felony cases, a defendant who is in jail on pending charges for more

than 90 days is entitled to be released on personal bond or by reducing the bail

amount if the state is not ready for trial. Art. 17.151, §1(1).             Under such

circumstances, the Court of Criminal Appeals has stated that “[c]onditioning release

under article 17.151 on matters such as victim-or community-safety concerns

deprives the statute of any meaning apart from article 17.15 and potentially frustrates



                                                                                  Page 8
article 17.151’s clear intent.” Ex Parte Gill, 413 S.W.3d 425, 430 (Tex. Crim. App.

2013).

         The State cannot announce ready for trial when there is no indictment. Ex

parte McNeil, 772 S.W.2d 488, 489 (Tex. App.—Houston [1st Dist.] 1989, no pet.).

The Fort Worth Court of Appeals has further found that Article 17.151 “does not

permit the State to obtain an indictment, rearrest [a defendant,] and begin the ninety

day period anew from the date of the indictment or rearrest.” Ex parte Castellano,

321 S.W.3d 760, 764 (Tex. App.—Fort Worth 2010, no pet.)

         But the Castellano court disagreed with the notion that a trial court may never

revoke a bond after having released the defendant pursuant to article 17.151. Id., at

764. Instead, the court noted that even in the context of a 17.151 release,

         Code of Criminal Procedure article 17.09, section 3 permits a judge or
         magistrate who “finds that the bond is defective, excessive or
         insufficient in amount, or that the sureties, if any, are not acceptable, or
         for any other good and sufficient cause” to “order the accused to be
         rearrested, and require the accused to give another bond in such amount
         as the judge or magistrate may deem proper.”
Id. In Castellano, art 17.09, §3, was not invoked, leaving open the question of

“whether the return of the felony indictment [in the case] was an event constituting

‘good and sufficient cause’ under article 17.09, section 3 (and thus possibly

supporting the trial court’s denial of relief on that ground).” Id.




                                                                                    Page 9
      Here, the State explicitly invoked art. 17.09, §3, in its Motion to Increase

Bond. CR 10. The State pointed out to not only that an indictment had been filed, but

that after the initial bond setting, the State obtained DNA results corroborating

Appellant’s guilt.

      Appellant’s brief supposes that obtaining DNA results and an indictment are

not significant factors warranting a bond increase. App.Brf., p.15. His opinion

denigrating the significance of DNA evidence is not shared by the Legislature. See

art. 38.43 (requiring DNA testing on all biological evidence before a death penalty

case may proceed to trial); and art. 64.03 (recognizing that DNA results may be

enough to exculpate even defendants found guilty beyond a reasonable doubt). This

Court, too, has recognized that

      “no other technique has been as potentially valuable to the criminal
      justice system.” … DNA evidence has been called the “single greatest
      advance in the ‘search for the truth’ ... since the advent of cross-
      examination.”
Roberson v. State, 16 S.W.3d 156, 165 (Tex. App.—Austin, 2000)(citations omitted).

      Appellant’s suggestion that the State “sat on” the DNA evidence until after the

indictment mischaracterizes the situation. Appellant’s bond was originally set after

his arrest on September 25, 2014. The DNA results were unavailable until November

6, 2014. 1 CR 40. At that time, the State could have requested a bond increase under

art. 17.09, §3, but Appellant was then in custody so there was no reason to increase


                                                                             Page 10
bond. The DNA results were irrelevant to the trial court’s December 18 decision to

grant a personal bond, because no indictment had been filed and the only issue at that

time was whether the State could then announce ready for trial. It was not until

January 8, 2015, that the State could represent to the court that the DNA results had

come in and an indictment had been filed. The trial court found that this change in

circumstances—not merely as to the State’s readiness for trial, but the potential

consequences of the charges for the defendant—invoked art. 17.09, §3. CR 40.

         Appellant’s concern that art. 17.151 and Ex parte Gill8 are somehow rendered

“useless and pointless” by the trial court’s action here is likewise contrary to the

facts. Article 17.151 was concerned with “the indefinite detention of an uncharged

accused on an offense the State is not ready to bring to trial.” Id., at 432. Nothing

about the trial court’s action here would permit an accused to be kept in custody

beyond 90 days without the State’s being ready for trial. Only if the State files an

indictment, is ready for trial, and the trial court further finds good cause to believe the

existing bond is insufficient can a defendant be rearrested.

         The Legislature clearly intended to permit judges to review and revise bonds

when “good and sufficient cause” exists to do so. The Legislature likewise intended

that a defendant be released from custody after 90 days from his arrest if the State is

not ready for trial at that time. Permitting a trial court to revise a bond based on

8
    413 S.W.3d 425 (Tex. Crim. App. 2013)

                                                                                  Page 11
“good and sufficient cause” after a defendant has previously been released under

17.151, does not make 17.151 “useless” so long as the State is then ready for trial and

17.09 applies.

      Appellant would have the Court instead hold that, once released under art.

17.151, the defendant’s bond may never be reviewed again. If true, then once a

ruling has been made to reduce bond under art. 17.151, a trial court could never

reconsider bond under art. 17.09, even if the defendant were to violate a condition of

his bond—he could not be rearrested unless he committed or was sentenced for a

separate crime, became incompetent, or violated a condition of his bond relating

specifically to the safety of the victim or the community. Art. 17.151, §2.       That

holding would be contrary to Castellano and not sensible public policy.

      Appellant’s Point of Error Two should be overruled.


                                  CONCLUSION

      Nothing in Article 17.151, Code of Criminal Procedure, suggests that once

released after 90 days of detention, no judge may thereafter determine that the bond

is insufficient once the State becomes ready for trial and other circumstances

demonstrate that the amount or type of bond is no longer appropriate. Permitting

judges to exercise their authority under article 17.09 to impose a new bond will not

make article 17.151 meaningless. The trial court recognized this logic and properly


                                                                              Page 12
increased Appellant’s bond in this case for “good and sufficient cause” only after the

State announced ready for trial and the circumstances of Appellant’s case had

changed from the time of his initial bonding.


                                      PRAYER

      The State prays this Court affirm the decision of the trial court.

                                        Respectfully submitted,



                                        Wesley H. Mau
                                        Hays County Criminal District Attorney
                                        Attorney for the State of Texas


  CERTIFICATE OF COMPLIANCE WITH TEX.R.APP.PROC., RULE 9.4

      I certify that this brief contains 2,351 words, exclusive of the caption, identity

of parties and counsel, statement regarding oral argument, table of contents, index of

authorities, statement of issues presented, signature, proof of service, certification,

and certificate of compliance.




                                        Wesley H. Mau
                                        Assistant Attorney General /
                                        Asst. Criminal District Attorney




                                                                               Page 13
                        CERTIFICATE OF SERVICE

      I certify that a true copy of the foregoing brief has been e-delivered to E.

Chevo Pastrano, Appellant’s Attorney, at chevo@pastranolaw.com on this the 1st

day of April, 2015.




                                     Wesley H. Mau
                                     Criminal District Attorney




                                                                          Page 14
