Opinion filed July 11, 2019




                                              In The

             Eleventh Court of Appeals
                                          ___________

                                    No. 11-19-00096-CR
                                       ___________

                         EX PARTE FELIX ARGUIJO JR.


                         On Appeal from the 39th District Court
                               Haskell County, Texas
                             Trial Court Cause No. 6938


                         MEMORANDUM OPINION
         Appellant, Felix Arguijo Jr., filed a pro se notice of appeal from an order
denying his motion for an appeal bond, motion for a bench warrant, and motion for
transfer to county jail.1 See TEX. CODE CRIM. PROC. ANN. art. 44.04(c), (g) (West
2018); see also TEX. R. APP. P. 31. In two issues, Appellant contends that the trial
court erred when it denied Appellant’s motion for an appeal bond without showing
just cause and when it denied Appellant’s request to be returned to the county jail.
We vacate a portion of the trial court’s order, and we remand the cause to the trial
court.


       We note that Appellant’s underlying appeal is currently pending in this court in Cause No. 11-18-
         1

00194-CR.
       In the underlying cause, Appellant was originally convicted of the state jail
felony offense of possession of a controlled substance and was placed on community
supervision. On July 12, 2018, the trial court revoked Appellant’s community
supervision and sentenced him to confinement for eighteen months in the State Jail
Division of the Texas Department of Criminal Justice. More than seven months after
filing a notice of appeal from the judgment revoking his community supervision,
Appellant filed three pro se motions in the trial court: a motion for appeal bond, a
motion for a bench warrant, and a motion to transfer Appellant back to the county
jail pending final disposition of his appeal. The trial court denied Appellant’s
motions without conducting a hearing, and Appellant filed this appeal.
       On appeal, Appellant presents two issues.       In his first issue, Appellant
contends that no good cause was shown to deny Appellant his right to an appeal
bond. He also asserts in his first issue that he had a right to a hearing and that the
trial court violated his right to due process when it denied his request for an appeal
bond without conducting a hearing on the matter.
       We review a determination made by the trial court under Article 44.04 for an
abuse of discretion. Ex parte Spaulding, 612 S.W.2d 509, 511 (Tex. Crim. App.
1981). Under that standard, we will not disturb a trial court’s decision as long as it
was within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d
372, 391 (Tex. Crim. App. 1991).
       Article 44.04 of the Code of Criminal Procedure contains provisions relating
to appeal bonds. See CRIM. PROC. art. 44.04. Under that statute, Appellant was
eligible to have the trial court consider him for bail pending appeal. See id.
art. 44.04(b), (c).




                                          2
      Appellant, however, had already been transferred to TDCJ at the time he filed
his motion for an appeal bond. In this regard, the Code of Criminal Procedure
provides as follows:
             If a defendant is convicted of a felony, is eligible for release on
      bail pending appeal under Article 44.04(b), and gives notice of appeal,
      he shall be transferred to the Texas Department of Criminal Justice on
      a commitment pending a mandate from the Court of Appeals or the
      Court of Criminal Appeals upon request in open court or upon written
      request to the sentencing court. Upon a valid transfer to the department
      under this section, the defendant may not thereafter be released on bail
      pending his appeal.
Id. art. 42.09, § 4 (emphasis added). The State suggests that Appellant was validly
transferred to TDCJ and that, therefore, the trial court properly denied Appellant’s
motion without conducting a hearing on the motion. See id. (which we quoted
above). However, there is nothing in the record in this cause to suggest that
Appellant requested—either in open court or in a written request to the trial court—
to be transferred to TDCJ. Nor, for that matter, is there anything in the record in the
underlying appeal (Cause No. 11-18-00194-CR) to indicate that Appellant
requested, or even consented to, a transfer to TDCJ.
      The Court of Criminal Appeals has indicated that a petitioner in Appellant’s
situation has a “due process right to a hearing on his motion for appeal bond.” Ex
parte Jackson, 602 S.W.2d 535, 537 (Tex. Crim. App. 1980); see Cappiello v. State,
No. 06-17-00124-CR, 2017 WL 3568109, at *1–2 (Tex. App.—Texarkana Aug. 18,
2017, no pet.) (mem. op., not designated for publication). Here, Appellant did not
have a hearing on his motion for appeal bond. Because nothing in the record shows
that Appellant’s transfer to TDCJ was a transfer made pursuant to Article 42.09,
section 4, and because the trial court did not conduct a hearing on Appellant’s motion
for appeal bond, we conclude that the trial court abused its discretion when it denied



                                           3
Appellant’s motion for an appeal bond without conducting a hearing on the motion.
Appellant’s first issue is sustained in part.
        However, by this opinion, we are expressing no opinion as to the merits of
Appellant’s request for bail. This opinion should not be construed to imply that
Appellant should be granted or denied bail. We further note that the hearing can be
conducted by phone and that Appellant does not have to appear in person in Haskell
County, Texas.
        In his second issue on appeal, Appellant contends that he has the right to be
returned to county jail pending the outcome of his appeal in Cause No. 11-18-00194-
CR. However, we do not have jurisdiction in this appeal to address the matter raised
in Appellant’s second issue, nor do we have jurisdiction to issue a writ of habeas
corpus to have Appellant returned to the county jail as he requests. See Ex parte
Teer, No. 11-15-00279-CR, 2016 WL 555958, at *1 (Tex. App.—Eastland Feb. 11,
2016, no pet.) (mem. op., not designated for publication).
        We vacate the trial court’s order insofar as it denied Appellant’s motion for
an appeal bond, and we remand the cause to the trial court to reconsider that motion.




                                                           KEITH STRETCHER
                                                           JUSTICE


July 11, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2
Willson, J., not participating.

        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
                                                      4
