                                                                                           ACCEPTED
                                                                                       14-14-00245-CR
                                                                       FOURTEENTH COURT OF APPEALS
                                                                                    HOUSTON, TEXAS
                                                                                 4/24/2015 10:27:24 AM
                                                                                 CHRISTOPHER PRINE
                                                                                                CLERK

                        No. 14-14-00245-CR
                                 In the
                           Court of Appeals              FILED IN
                                                  14th COURT OF APPEALS
                                For the              HOUSTON, TEXAS
                     Fourteenth District of Texas 4/24/2015 10:27:24 AM
                              At Houston          CHRISTOPHER A. PRINE
                                                Clerk

                             No. 1407238
                      In the 263rd District Court
                       Of Harris County, Texas
                      
                   JEREMY DESHAWN DUGAR
                               Appellant
                                   V.
                      THE STATE OF TEXAS
                               Appellee
                      
STATE’S RESPONSE TO APPELLANT’S MOTION FOR BOND AFTER REVERSAL
                        
 TO THE HONORABLE COURT OF APPEALS:

       THE STATE OF TEXAS, in response the appellant’s request for bond after

 reversal pursuant to TEX. CODE CRIM. PROC. 44.04(h), would show the Court the

 following:

 Procedural Background

       The State charged the appellant with felony murder of Tevin Williams (CR –

 7). During the charge conference, the appellant requested an instruction for self-

 defense, which the trial court denied based on Williams being an innocent

 bystander and no evidence that he took part in any aggression towards the

 appellant (CR – 110-111; 5 RR 159-68; 6 RR 3). The jury found the appellant
guilty (CR – 121; 6 RR 22). The trial court sentenced the appellant in accordance

with the jury’s verdict to twelve years in the Texas Department of Criminal Justice,

Institutional Division (CR – 128-30; 7 RR 32-33).

      On April 9, 2015, this Court reversed the conviction, holding that the

appellant was entitled to an instruction on self-defense from multiple assailants and

an instruction to determine if Williams was an innocent bystander under Section

9.05 of the Texas Penal Code. Dugar v. State, 14-14-00245-CR, 2015 WL

1632690 (Tex. App.—Houston [14th Dist.] April 9, 2015, no pet. h.). The State has

not yet filed a motion for rehearing or a petition for discretionary review, and no

deadlines have passed.

      On April 22, 2015, the appellant filed a motion for bail with this Court

pursuant to Article 44.04(h) of the Code of Criminal Procedure. Article 44.04 (h)

provides in part that “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.” TEX.

CODE CRIM. PROC. art. 44.04 (h) (West 2006) (emphasis added).

State’s Response to the Appellant’s Request for Reasonable Bail

      Pursuant to Article 44.04(h) the appellant is entitled to a reasonable bail. In

determining reasonable bail this Court considers a range of factors: the defendant’s
work record, the defendant’s family and community ties, the length of the

defendant’s residency, the defendant’s prior criminal record, the defendant’s

conformity with previous bond conditions, aggravating circumstances of the

charge offense, the nature of the offense, the fact that the conviction has been

overturned, the State’s ability to retry the defendant and the likelihood that the

court of appeals will be overturned. See TEX. CODE CRIM. PROC. art. 17.15 (West

2005); Aviles v. State, 26 S.W.3d 696, 699 (Tex. App.—Houston [14th Dist.] 2000,

pet. ref’d) (citing Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. 1981));

Werner v. State, 445 S.W.3d 301, 305 (Tex. App.—Houston [1st Dist.] 2013, no

pet.).

         The appellant asks this Court to set a personal recognizance bond or a bond

not to exceed $50,000, the amount of his pre-trial bond. But the appellant has not

provided an affidavit, and there is no prior bond hearing testimony for this Court to

rely on in making its decision. In his motion the appellant claims he is indigent, but

does not provide information of his family’s financial situation. See Milner v.

State, 263 S.W.3d 146, 149 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (noting

that a defendant generally must show that his funds and his family's funds have

been exhausted to show that he is unable to make bail; discussing the defendant’s

mother’s retirement account); see also Richardson v. State, 181 S.W.3d 756, 760

(Tex. App.—Waco 2005, no pet.) (considering funds of appellant’s father and
brother). Furthermore, “[t]he ability or inability of an accused to make bail,

however, even indigency, does not alone control in determining the amount of

bail.”). Milner, 263 S.W.3d at 149.

      The trial court set his pre-trial bond at $50,000, but certainly some

circumstances have changed since he has been in prison. One huge change is that a

jury has not found him guilty beyond a reasonable doubt, so there is sufficient

evidence to convict. Moreover, as the appellant concedes, the State can retry the

case, and this Court’s reversal does not limit any evidence that was presented.

Therefore, the appellant is in at least the same position as he was pre-trial, if not

worse because a jury found him guilty based on his actions.

      The appellant is charged with felony murder, an aggravated offense. The

jury found the appellant guilty and sentenced him to twelve years in prison, a

sentence for which he would not be eligible for a bond pending appeal. See TEX.

CODE CRIM. PROC. art. 44.04(b). And though the appellant argues that there are

some mitigating factors, he took someone else’s life because he fired a gun into a

crowd of people. He fired a gun as he drove away from the apparent hostility and

killed a seventeen-year-old child without any evidence that the victim did anything

on his own or in combination with a group to put the appellant’s life in danger.

      Therefore, the State requests that if this Court grants a bond, it considers a

bond of at least $100,000, along with other conditions of electronic monitoring,
abstention from drug use, remaining in Harris County, and refraining from contact

with the victim’s family. See TEX. CODE CRIM. PROC. art. 44.04 (c); TEX. CODE

CRIM. PROC. art. 56.02(a)(2) (West supp. 2014) (safety of a crime victim’s family

may be taken into consideration when setting bail); Ex parte Anderer, 61 S.W.3d

398 (Tex. Crim. App. 2001) (allowing courts discretion to impose reasonable

conditions of bond on appeal).

Conclusion

      The State prays that this Court will set a bond of $100,000 with conditions

of electronic monitoring, abstention from drug use, remaining in Harris County,

and refraining from contact with the victim’s family.



                                                   Respectfully submitted,

                                                   /s/ Katie Davis
                                                   KATIE DAVIS
                                                   Assistant District Attorney
                                                   Harris County, Texas
                                                   1201 Franklin, Suite 600
                                                   Houston, Texas 77002-1923
                                                   (713) 755-5826
                                                   Davis_Katie@dao.hctx.net
                                                   TBC No. 24070242
                        CERTIFICATE OF SERVICE

    This is to certify that a copy of the foregoing instrument will be served by
efile.txcourts.gov to:

Marc C. Kratovil
Harris County Public Defender’s Office
1201 Franklin, 13th Floor
Houston, TX 77002
Mark.Kratovil@pdo.hctx.net


                                                 /s/ Katie Davis
                                                 KATIE DAVIS
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin, Suite 600
                                                 Houston, Texas 77002-1923
                                                 (713) 755-5826
                                                 Davis_Katie@dao.hctx.net
                                                 TBC No. 24070242
Date: April 24, 2015
