                                                                                                  ACCEPTED
                                                                                             12-13-00357-CR
                                                                                 TWELFTH COURT OF APPEALS
                                                                                              TYLER, TEXAS
                                                                                        3/27/2015 2:38:55 PM
                                                                                                CATHY LUSK
                                                                                                      CLERK




                                                                             FILED IN
                                   In The Twelfth Court Of            12th COURT OF APPEALS
                                    Appeals Tyler, Texas                   TYLER, TEXAS
                                                                      3/27/2015 2:38:55 PM
                                                                           CATHY S. LUSK
                                                                               Clerk
                                    No. 12-13-00357-CR

                                Tocarra Lockett, Appellant,
                                           v.
                                   The State of Texas,
                                        Appellee.


                           On Appeal from the 420th District Court,
                               Nacogdoches County, Texas
                                  Cause No. F1320229


      APPELLANT’S MOTION FOR BOND FOLLOWING REVERSAL OF
    CONVICTION PURSUANT TO TEX. CODE CRIM. PROC. ART. 44.04(h)



Seth T. Johnson, Tex. Bar No. 24082212
Attorney for Appellant
222 North Mound St., Suite #1
Nacogdoches, Texas 75961
Telephone: (936) 205-6775
Fax: (936) 715-3022
Email:johnsondefenselaw@gmail.com




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   APPELLANT’S MOTION FOR BOND FOLLOWING REVERSAL OF
  CONVICTION PURSUANT TO TEX. CODE CRIM. PROC. ART. 44.04(h)

TO THE HONORABLE JUDGES OF THE TWELFTH COURT OF
APPEALS:

          COMES NOW, Appellant, Tocarra Lockett, by and through his

attorney of record, Seth T. Johnson, and respectfully files this motion

requesting the Court release him on reasonable bail, that bail be set at

$2500.00, and that the Trial Court be ordered to bench warrant Appellant

to Nacogdoches County forthwith for a determination concerning the

approval of sureties on the bail.

                                 STATEMENT OF FACTS

         1.     On March 25, 2015 this Court reversed the judgment of

conviction in the Trial Court and entered a judgment of acquittal in the

instant case.

         2.     The judgment of reversal was predicated upon legal

insufficiency of the evidence and therefore the case cannot be retried.

         3.     At the time of filing of this motion the State has not filed a

Petition for Discretionary Review in the Court of Criminal Appeals nor a

Motion for Rehearing. However, the likelihood that this Court’s decision

would be overturned is extremely low because the applicable law is well

settled, a fact recognized in this Court’s Memorandum Opinion.



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         4.     Appellant has been incarcerated continuously since March 25,

2013 in connection with this case and is indigent. Undersigned counsel

represents Appellant as a court-appointed attorney.

         5.     Appellant’s common-law wife can reasonably afford a

$2500.00 bond.

         6.     Appellant would reside with his wife in Lufkin, Texas; which is

adjacent to the county of origin of this case.

         7.     Appellant’s wife is employed full-time as an Operations

Supervisor for Americare EMS, an Ambulance Service in Lufkin, Texas.

         8.     While on bond, and pending determination of any appeal by

the State, Appellant will actively seek gainful employment. Appellant is

a certified diesel mechanic. Also, various family members, employed in

the oil and gas industry have pledged to assist Appellant with finding

employment.

         9.     Appellant is a lifelong resident of East Texas.



                           ARGUMENT AND AUTHORITIES

              1. Article 44.04(h) guarantees a defendant release from custody if

his conviction is reversed on appeal regardless of the length of the

sentence. Ex parte Anderer, 61 S.W.3d 398, 400 (Tex. Crim. App. 2001).



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            2. Art. 44.04(h), Tex. Code Crim. Proc. states:

                 “If a conviction is reversed by a decision of a Court of Appeals,
                 the defendant, if in custody, is entitled to release on reasonable
                 bail, regardless of the length of term of imprisonment, pending
                 final determination of an appeal by the state or the defendant on a
                 motion for discretionary review. If the defendant requests bail
                 before a petition for discretionary review has been filed, the Court
                 of Appeals shall determine the amount of bail. If the defendant
                 requests bail after a petition for discretionary review has been
                 filed, the Court of Criminal Appeals shall determine the amount of
                 bail. The sureties on the bail must be approved by the court
                 where the trial was had. The defendant's right to release under
                 this subsection attaches immediately on the issuance of the Court
                 of Appeals' final ruling as defined by Tex.Cr.App.R. 209(c).”

            3. Former Rule 209(c) of the Texas Rules of Post Trial and

Appellate Procedure in Criminal Cases provided:

                 “As used in these rules, “final ruling of the court” means (1)
                 the 16th day after the date of the delivery of the court’s
                 opinion or order where a motion for rehearing is permitted
                 under Rule 208 but is not filed or rehearing is not granted on
                 the court’s own motion, (2) the day after the date of the
                 overruling of motion for rehearing where a further motion for
                 rehearing is not permitted under Rule 208, or (3) if a motion
                 for rehearing pursuant to Rule 208(d) is granted, the day after
                 the date of the disposition of the case on rehearing, whichever
                 is later.”

          4. Although 209(c) was repealed in 1986, the rule that an appellant

becomes bailable when the time period for motions for rehearing have

expired is still followed. In re Keeter, 134 S.W.3d 250 (Tex. App.—Waco

2003).

          5. “Once a conviction is reversed, we hold the primary factors that

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should be considered by the court of appeals are: (1) the fact that the

conviction has been overturned; (2) the State's ability, if any, to retry the

appellant; and (3) the likelihood that the decision of the court of appeals will

be overturned.” Aviles v. State, 26 S.W.3d 696 (Tex.App. Houston [14

Dist.] 2000).

          6. The nature of the offense and the length of the sentence should

not be given great weight when the request for bail is made pursuant to

article 44.04(h). Id.

          7. Additional factors to consider include Article 17.15, Tex. Code of

Crim. Proc. and those set out in Ex parte Rubac, 611 S.W.2d 848

(Tex.Crim. App.[Panel Op.] 1981). Id.

          8. For the reasons outlined above, it seems very unlikely that

Appellant would ever have to appear before the trial court again in

connection with this case after posting bond. Considering this fact, along

with Appellant’s ties to the community, and his indigency after being

incarcerated for two years on this case, $2500.00 bail is reasonable and

assures that bail will not be used as an instrument of oppression to keep

Appellant incarcerated until the mandate issues.




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                                       PRAYER

             Appellant prays the Court release him on reasonable bail, that bail

  be set at $2500.00, and that the Trial Court be ordered to bench warrant

  Appellant to Nacogdoches County forthwith for a determination

  concerning the approval of sureties on the bail.

                                                     Respectfully submitted,




                                                     Seth T. Johnson, #24082212
                                                     ATTORNEY FOR DEFENDANT
                                                     222 North Mound St. #1
                                                     Nacogdoches, TX 75961
                                                     (P) 936-205-6775
                                                     (F) 936-715-3022
                                                     johnsondefenselaw@gmail.com



                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing Motion
 was electronically served on the Nacogdoches County District Attorney’s
 Office, Texas, on March 27, 2015.




                                                     Seth T. Johnson,
                                                     #24082212




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