




02-12-031-CR





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-12-00031-CR
 
 



William Thomas Leonard


 


APPELLANT




 
V.
 




The State of Texas


 


STATE



 
 
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FROM THE 371st
District Court OF Tarrant COUNTY
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OPINION
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I.  Introduction
          The
Texas Court of Criminal Appeals set bond for Appellant William Thomas Leonard pending
its disposition of the State’s petition for discretionary review.  Subsequently,
the trial court signed an order adding conditions to Leonard’s bond.  Leonard
appeals from the trial court’s order, raising two issues.  We will affirm.
II.  Procedural Background
          Leonard
pleaded guilty to committing the offense of injury to a child.  He was placed
on deferred adjudication community supervision for five years and was assessed
a $750 fine.  The conditions of Leonard’s community supervision included sex
offender evaluation and counseling and required that he submit to, and show no
deception on, polygraph exams.  Eventually, the State filed a motion to proceed
to an adjudication of Leonard’s guilt; the trial court held a hearing on the
motion and found that Leonard had violated the terms of his community
supervision.  Leonard was adjudicated guilty and sentenced to seven years’
confinement.  He appealed.  The Eastland Court of Appeals reversed the trial
court’s judgment, holding that the trial court had abused its discretion by
considering evidence of Leonard’s failed polygraph exams in determining whether
to revoke his community supervision.  Leonard v. State, 315 S.W.3d 578,
581 (Tex. App.—Eastland 2010), rev’d, 2012 WL 715981 (Tex. Crim. App. Mar.
7, 2012).[1]
          Following
issuance of the Eastland Court of Appeals’s opinion and judgment, the State
filed a petition for discretionary review.  Leonard then filed with the court of
criminal appeals a motion for bail pending appeal pursuant to article 44.04(h)
of the code of criminal procedure.  See Tex. Code Crim. Proc. Ann. art.
44.04 (West 2006).  The State filed a response to Leonard’s motion for bail, requesting
that the court of criminal appeals impose reasonable conditions of bond.[2] 
The court of criminal appeals granted Leonard’s motion for bail; set his bail
at $20,000; and ordered “that the trial court order Appellant [Leonard]
released from confinement assessed in this cause upon the posting of bail.  Any
sureties must be approved by the trial court.”  The court of criminal appeals
did not order the imposition of any of the conditions requested by the State. 
          Subsequently,
the trial court—in accordance with the court of criminal appeals’s order
setting bail at $20,000—signed an order setting Leonard’s bond at $20,000 and
imposed conditions on the bond.[3]  Leonard filed a “Notice
Of Appeal Regarding Bail Issue,” and the trial court granted him permission to
appeal.[4]  Leonard argues in two
points that under article 44.04(h) of the code of criminal procedure, the trial
court had no authority to set conditions on his bond and that the law of the
case affirmatively prohibited the trial court from doing so because the court
of criminal appeals did not.
III. 
Article 44.04(h) Does
Not Prohibit
the Trial
Court From
Setting Conditions
on a Bail
Amount Set
by the
Court of Criminal
Appeals
 
A.  Standard of
Review
 
          We
review issues of statutory construction de novo.  Hirsch v. State, 282
S.W.3d 196, 201 (Tex. App.—Fort Worth 2009, no pet.).  When interpreting
statutes, courts must “seek to effectuate the ‘collective’ intent or purpose of
the legislators who enacted the legislation.”  Mahaffey v. State, 364
S.W.3d 908, 913 (Tex. Crim. App. 2012) (citing Boykin v. State, 818
S.W.2d 782, 785 (Tex. Crim. App. 1991)).  Toward that end, “we necessarily
focus our attention on the literal text of the statute in question and attempt
to discern the fair, objective meaning of that text at the time of its
enactment.”  Id.  However, where application of a statute’s plain
language would lead to absurd consequences, or where “the language is not plain
but rather ambiguous,” a court may consider “such extratextual factors as
executive or administrative interpretations of the statute or legislative
history.”  Id.  In this context, ambiguity exists when a statute may be
understood by reasonably well-informed persons in two or more different senses;
conversely, a statute is unambiguous where it reasonably permits no more than
one understanding.  Id. (citing State v. Neesley, 239 S.W.3d 780,
783 (Tex. Crim. App. 2007)).  In
interpreting statutes, we presume that the legislature intended for the entire
statutory scheme to be effective.  See Tex. Gov’t Code Ann. § 311.021(2)
(West 2005); Murray v. State, 302 S.W.3d 874, 879, 881 (Tex. Crim. App. 2009)
(in construing statute, looking to other provisions within entire “statutory
scheme” rather than merely the single, discrete provision at issue).
B.      Article
44.04 of the Code of Criminal Procedure
          Code
of criminal procedure article 44.04, which is titled “Bond pending appeal,” sets
forth when a defendant is entitled to bail pending appeal—depending on the
crime committed and the punishment assessed—and sets forth which courts have
authority to set bail amounts and conditions.  See generally Tex. Code
Crim. Proc. Ann. art. 44.04.  The pertinent provisions are as follows:
          (b) The
defendant may not be released on bail pending the appeal from any felony
conviction where the punishment equals or exceeds 10 years confinement or where
the defendant has been convicted of an offense listed under Section 3g(a)(1),
Article 42.12, but shall immediately be placed in custody and the bail
discharged.
 
          (c) Pending
the appeal from any felony conviction other than a conviction described in
Subsection (b) of this section, the trial court may deny bail and commit the
defendant to custody if there then exists good cause to believe that the
defendant would not appear when his conviction became final or is likely to
commit another offense while on bail, permit the defendant to remain at large
on the existing bail, or, if not then on bail, admit him to reasonable bail
until his conviction becomes final.  The court may impose reasonable conditions
on bail pending the finality of his conviction.  On a finding by the court on a
preponderance of the evidence of a violation of a condition, the court may
revoke the bail.
 
          (d) After
conviction, either pending determination of any motion for new trial or pending
final determination of the appeal, the court in which trial was had may
increase or decrease the amount of bail, as it deems proper, either upon its
own motion or the motion of the State or of the defendant.
 
          (e) Any
bail entered into after conviction and the sureties on the bail must be
approved by the court where trial was had.  Bail is sufficient if it
substantially meets the requirements of this code and may be entered into and
given at any term of court.
 
          . . . .
 
          (h) 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).
Id.
art. 44.04(b)–(e), (h).
C. 
Analysis
          Article
44.04(h) requires that, upon a motion requesting bail, a defendant who is in
custody and whose conviction is reversed by a court of appeals is entitled to
release on reasonable bail.  Id. art. 44.04(h).  The plain language of article
44.04(h) grants the court of criminal appeals the power to set the amount
of bail pending appeal when an incarcerated defendant files a motion for bail
after a petition for discretionary review has been filed.  See id. (providing
that “the Court of Criminal Appeals shall determine the amount of bail”).  But
as pointed out by the State, article 44.04(h) does not authorize the court of
criminal appeals to set any other aspect of the reasonable bail to which an
incarcerated defendant whose conviction is reversed by a court of appeals is
entitled.  Indeed, the court of criminal appeals, as an appellate court, is
ill-equipped to conduct the type of hearing often necessary to determine
reasonable conditions of bail.  Accord Yates v. State, 679 S.W.2d
538–41 (Tex. App.—Tyler 1984, pet. ref’d) (discussing issues, evidence, and
conditions of bail pending appeal).  The plain language of article 44.04(h)
mandates that the trial court is to approve the sureties on the bail amount set
by the court of criminal appeals via subsection (h).  Tex. Code Crim. Proc.
Ann. art. 44.04(h) (providing that “[t]he sureties on the bail must be approved
by the court where the trial was had”).  And subsection (c) authorizes the
trial court to “impose reasonable conditions on bail pending the finality of [a
defendant’s] conviction”).  Id. art. 44.04(c).  Thus, after the court of
criminal appeals sets the amount of bail pursuant to 44.04(h), the details
of a defendant’s release, including approval of sureties and setting reasonable
conditions of bail, proceed in the trial court where the trial was had.  See
id. (authorizing the trial court to impose reasonable conditions on bail pending
appeal).  Thus, focusing on the literal text of the statute and presuming that
the legislature intended for the entire statutory scheme to be effective, we
hold that article 44.04(c) authorizes the trial court to set reasonable
conditions of bail pending appeal, including pending disposition of a petition
for discretionary review filed by the State after an incarcerated defendant’s
conviction is reversed by a court of appeals and after the court of criminal
appeals has set the amount of bail pursuant to article 44.04(h).  See Mahaffey,
364 S.W.3d at 913.
Leonard
contends that the case of Ex parte Anderer precludes application of
subsection (c) to the present facts.  61 S.W.3d 398, 400–01 (Tex. Crim. App.
2001).  In Ex parte Anderer, the court of criminal appeals set forth the
seven classes of convicted defendants addressed in article 44.04 and explained
which categories of convicted defendants were entitled to bail, which
categories of convicted defendants were not entitled to bail, and which
categories of convicted defendants could at the trial court’s discretion be
granted bail.  Id.  The court of criminal appeals in Ex parte Anderer
then noted that when a defendant is in the sixth or seventh categories identified
in the opinion—that is, on existing bail or not on bail—the trial court may
impose reasonable conditions of bail.  Id. at 400.  Leonard argues that
because he is a defendant whose conviction was reversed by an appellate court,
he is in Ex parte Anderer’s fourth category, not its sixth or seventh
categories, so conditions could not be imposed upon his bail.
The
problem with Leonard’s interpretation of Ex parte Anderer is that the
opinion does not hold that conditions of bail may be imposed only on defendants
in categories six and seven.  Leonard’s interpretation of Ex parte Anderer
does not take into account that subsection (h), by its terms, is applicable
only to incarcerated defendants whose convictions have been reversed by
a court of appeals.  See Tex. Code Crim. Proc. Ann. art. 44.04(h)
(providing that “[i]f a conviction is reversed by a decision of a Court of
Appeals, the defendant, if in custody, is entitled to release on
reasonable bail”) (emphasis added); accord Abbott v. State, 245 S.W.3d
23, 26 (Tex. App.—Waco, 2007, pet. dism’d) (applying article 44.04(h) to
incarcerated defendant when appellate court reversed trial court’s order denying
defendant’s motion for time credit).  If a defendant whose conviction has been
reversed by a court of appeals is already out on bail at the time of the
appellate court’s decision, subsection (h) does not apply.  Instead, in that
situation, subsection (c) authorizes a trial court to permit the defendant to
remain at large on his existing bail and to impose reasonable conditions on
bail pending the finality of his conviction.  See Tex. Code Crim. Proc.
Ann. art. 44.04(c); accord Ex parte Anderer, 61 S.W.3d at 399, 404
(upholding trial court’s imposition of bail condition prohibiting appellant
from driving motor vehicle during pendency of appeal).  To construe article
44.04 as Leonard urges us to would mean that so long as an incarcerated
defendant whose conviction was reversed by a court of appeals waited until after
a petition for discretionary review was filed to seek bail pursuant to
subsection (h), no conditions could ever be imposed on his bail or bond.  But a
defendant who was already out on bail and was not incarcerated when a court of
appeals decision reversing his conviction was issued could be subjected to
existing or additional conditions of bail pursuant to subsection (c).  We
decline to construe article 44.04 in this disparate manner that refuses to give
effect to the statutory authority granted to a trial court in subsection (c) to
impose reasonable conditions of bail when a defendant is admitted to bail
pending appeal.
We
overrule Leonard’s second point.
IV.  Law
of the Case Doctrine is Not Applicable
In
his first point, Leonard argues that the law of the case doctrine prevents the
trial court from imposing conditions of bail because the court of criminal
appeals refused to impose any.  The legal principle or doctrine of law of the
case provides that an appellate court’s resolution of a question of law in a
previous appeal of the same case will govern the disposition of the same issue
should there be another appeal.  Ware v. State, 736 S.W.2d 700, 701
(Tex. Crim. App. 1987).  Here, the court of criminal appeals determined only
the amount of Leonard’s bail; it did not either grant or deny the State’s
request that conditions of bail be imposed.  Because the court of criminal
appeals did not rule one way or the other on the issue of whether conditions
should be imposed on Leonard’s bail, no resolution of that issue exists to bind
the trial court.  We therefore hold that the law of the case doctrine does not
apply.  We overrule Leonard’s first point.
V.  Conclusion
          Having
overruled both of Leonard’s points, we affirm the trial court’s order imposing
conditions on his bail.
 
SUE WALKER
JUSTICE
 
PANEL: 
DAUPHINOT,
GARDNER, and WALKER, JJ.
 
DAUPHINOT,
J., concurs without opinion.
 
PUBLISH
 
DELIVERED: 
August 2, 2012




[1]The Texas Court of
Criminal Appeals disposed of the State’s petition for discretionary review the
day before Leonard filed his appellate brief in this court.  The court of
criminal appeals’ opinion has not yet become final; on May 9, 2012, the court
of criminal appeals granted Leonard’s motion for rehearing.


[2]The conditions of bond
sought by the State included the conditions that Leonard not have any contact
with any minors under the age of eighteen; that Leonard report to the Community
Supervision and Corrections Department of Tarrant County, Texas, on a weekly
basis; that he permit the Supervision Officer to visit him at his home or
elsewhere at any time; that he remain in Tarrant County, unless the trial court
authorizes otherwise; and that he wear an ankle monitor.


[3]Leonard filed an objection
to the trial court’s imposition of conditions on his bond, and the trial court
later signed an order amending the conditions.  Leonard does not challenge the
individual conditions imposed but maintains his position that the trial court
lacked authority to impose any conditions on the bail set by the court of
criminal appeals.


[4]Leonard states in his
brief that a reporter’s record—evidently from the hearing concerning imposition
of the bond conditions—is unnecessary because the issue presented is one of
law, that being whether the trial court possessed authority to impose
conditions on the bail set by the court of criminal appeals.


