                                                                                                                    ACCEPTED
                                                                                                                01-15-00288-CR
                                                                                                     FIRST COURT OF APPEALS
                                                                                                             HOUSTON, TEXAS
                                                                                                            5/6/2015 4:44:56 PM
                                                                                                          CHRISTOPHER PRINE
                                                                                                                         CLERK

                                     IN THE COURT OF APPEALS
                            FIRST SUPREMEJUDICIAL                  DISTRICT
                                                                                          FILED IN
                                          HOUSTON,       TEXAS                     1st COURT OF APPEALS
                                                                                       HOUSTON, TEXAS
                                          NO. 01-15-00288-CR                       5/6/2015 4:44:56 PM
 KEITH W. GOODSON,                                                                 CHRISTOPHER A. PRINE
                                                                                           Clerk
 Appellant
                                                                                On Appeal from the

                                                                              184th District    Court of
 vs.
                                                                              Harris    County, Texas

                                                                                  Cause No. 1457737
 THE STATE OF TEXAS,
 Respondent


                                     MOTION FOR REHEARING
COMES NOW, Appellant, Keith W, Goodson,                 by and through his attorney of record,

Whitney C. Kubik and mes this, his Motion for Rehearing for the foHowing reasons:


       I.         THE COURT'S DECISION PLACES AN INAPPROPRIATE                    BURDEN       ON THE
                                      DEFENDANT TO TESTIFY

         Respectfully, this Court's opinion, dated April 21, 2015, places an improper burden

on the Appellant's      testimony.    Based on the decision of this Court, a defendant is required to

choose between two constitutional rights - his right to be released on reasonable bail or his
right not to testify.
        The Court correcdy cites the law regarding the non-controlling weight of the
defendant's   ability to make bond; however,       the Court    asserts that AppeHant   failed to prove

that he was unable to post the set bond, citing on Scon and Balawajder.This case is readily

distinguishable    by those cited by the Court.
        In Exparte Swtt, the defendant was charged with aggravated kidnapping, and the trial

court cited the "'personal'     nature" of the offense as a reason for setting a high bond. The

only evidence presented in Sit was the defendant's             testimony. AdditionaHy, the paragraph

cited by this Court in full states:
       At trial, Scott testified that he and his family lacked sufficient assets or financial resources to post the
       $ 100,000 bond, but he did not detail either his or his family's specific assets and financial resources,
       nor did he e       what e      :Jany, were made tofurnish the bond. See Bawa]r   v. State, 759 S.W.2d 504,
        506 (Tex. App.-'Fort Worth 1988, pet. refd) (noting that vague references to inability to make bond
       do not justify a reduction in the amount set); Mi,         631 S.W.2d at 827 (recognizing that it is
       incumbent on the accused to show that he has made an effort to furnish bond in amount set) Scott
       indicated that he believed his family could raise the bond fee if the bond were lowered to $ 25,000.
       He testified that prior to his arrest he was working as a forklift operator and he would be able to
       return to his job if he were released on bond. However, Scott presented no other witnesses or
       evidence regarding his abill~tyto make bond. Exparte Scott,122 S.W.3d 866, 870 (Tex. App.-Fort
       Worth 2003) (emphasis added).

As was the case in Scott, the defendant in Balajwader was charged with violent offenses -

aggravated rape and aggravated robbery,           In both    Swu and     Balaj"wader,
                                                                                   the courts relied on

the violent nature of the offenses charged, which is not present in this case. Additionally,

here, there were no "vague references"          to AppeHant's ability to make bond.            Ba/awder v.
State, 759 S.W.2d 504, 506 (Tex. App.-Fort             Worth, 1988, pet. ref d.).
       Here, Appellant offered the testimony of Woodley Fisher, hcensed bail bondsman,
and Misti Goodson, AppeHant's wife. Their testimony demonstrated that Appellant
attempted to post the bond and was unable to do so, which is the defendant's burden under

the law. Exparte Bogia,56 S.W.3d 835, 837 (Tex. App,-Houston                      [Ist Dist}2001, no pet').
Both Fisher and Goodson         testified that multiple family and friends supplied information                to

cosign on the bond      (R R 10). Fisher testified that he reviewed the Goodson's                 financial

information,   including assets and banking information,            and based on the information
provided, his professional opinion is that Appellant would not be able to post a bond greater

than $75,000. (R R 10-11). The evidence presented at the hearing is sufficient to meet the

Appellanr's burden of proving that he was unable to post the current bond.
       By holding that Appellant did not meet this burden                   the Court is requiring a

defendant to take the stand and prove up the specifics of his financial situation, which he is
not required to do under the law. The decision of this Court creates a situation where a

defendant is forced to choose between his Fifth Amendment                     right not to testify and his

Eighth Amendment        right to be released on reasonable bond




                                         Appellant's Motion for Rehearing
                                                    Page 2 of 5
    II.        THE COURT'S DECISION             RELIES ON A STRING OF UNPUBLISHED                       CASES TO
                                               SUPPORT ITS CONCLUSION

          This decision relies on a string of unpublished             cases that lack the proper authority to

uphold the current bail. This is incongruous               of the legal framework of precedential

authority. TRAP 47.7(a). In addition, the only published case cited, is readily distinguishable
from the present case.

          In Maldonado, the defendant's bond was set at $2.5 million based on the same formula

at issue here. However, the evidence presented on the behalf of Maldanado established that

he had lived in Texas for less than a year, had no family in Texas, and the witnesses who

testified in his defense could not afflrmatively state that he would not flee the jurisdiction if

released on bond. Maldonadov. State, 999 S.W.2d 91, 94 (Tex. App.-                      Houston [l4th Dist.]
1999, pet. ref d). This case is more similar to the distinctions provided in Ma/danado than the

facts of Maldanado. Maldonado rehed on                    dwigv. State, 812 S.W.2d 323 (Tex. Crim. App.

1991) to support the reduction of bail. Ludwig stood charged of capital murder, and the
Court rejected Maldonado's argument stating:


          Specifically, the courts noted the defendant: (1) was a long--time resident of Texas (2) owned real
          property in the State; (3) held a license to practice veterinary medicine in Texas and had such a
          practice in the Katy, Texas; (4) had several close relatives, also long-time Texas citizens, willing to
          sign an appearance bond; (5) was currently involved in a child custody proceeding in Harris County
          that would require his presence; and (6) had his assets frozen by a temporary court order issued in
          connection with his divorce. See id at 324. The court concluded that both the trial court and the
          court of appeals had placed too much emphasis on the future safety of other potential victims in light
          of the evidence relevant the other factors listed in article 17.15. See id at 325.


          Clearly, the facts relied on by the court in I.ndw are distinguishable from those presented in this
          case. As we have already noted, appellant, unlike the defendant in       d    has no significant ties to
          the county or even to the State. The only commonality we see between the two cases is that both
          defendants were charged with serious offenses. If anything,        d   actuaUy supports the trial court's
          decision to set a high bail considering the little assurance presented that appellant would remain in
          Harris County if his bail were reduced, given his lack of ties to the community and the nature of his
          alleged offense. Ma/donado, 999 S.W.2d at 95-6.


Here, Appellant is not charged with a violent offense and provided evidence that Appellant

has lived in the Houston area for over ten years, owned property in Houston for over ten
years, has been married and has three children who attend schools in the Houston area, has
close relatives who live in the Houston area, multiple relatives were willing to cosign to post


                                           AppeHant's   Motion for Rehearing
                                                        Page 3 of 5
his bond, and the Appellant was willing to be subject to ankle monitoring                    and surrender his

passport.   Therefore, the Court incorrecdy rehed on Ma/donado to support upholding such a
high bond.
        The Court rejected the published cases cited in Appellant's Brief, which are much
more similar to the present facts and relied on a string of unpubhshed cases that have no
authority and one pubhshed case, which is supports the reduction of bail in this particular




     III.    THE COURT ERRONEOUSLY RELIES ON APPELLANTS PREVIOUS FELONY
                       CONVICTION IN SUPPORT OF ITS CONCLUSION

        Respectfully, this decision erroneously rehes on Appellant's previous felony
conviction and successful completion of deferred adjudication as reason to uphold the bond.

This Court states that "no evidence was presented at the hearing regarding the issue" of

future safety of complainants     and the community. The Court further asserts the previous
felony conviction was only addressed by the State when prompted by the trial court.

However, evidence of the conviction was offered by the Appellant through the testimony of

Fisher, who testified the successful completion of the deferred adjudication led him to

conclude Appellant was not a flight risk. (R.R 10). While a defendant's                    criminal history is a

factor, the fact that Appellant had successfully completed a previous deferred adjudication is

a factor in favor of a bond reduction.


                                                CONCLUSION


        In conclusion,   this decision    places an undue burden           of testifying   on the Appellant,

which forces him to choose whether he wants to exercisehis right to be released on
reasonable bond or exercise his Fifth Amendment                right not to testify. Furthermore,       the

Court relied on unpublished     cases that lack authority and rejected the precedential authority

from this Court presented in Bogia. Finally, the Court relied on the Appellant's previous

felony conviction, when his successful completion of deferred adjudication is a factor that
suggests the Appellant has a history of complying with obligations imposed by the Court.



                                         .ppeUant,s   Motion for Reh   g
                                                      Page 4 of 5
FOR THESE REASONS,          the Apphcant respectfuHy prays that this Honorable     Court grant
this Motion for Rehearing in the above styled and numbered           cause.



Respectfully submitted,




SBOT Number: 24090219
PO Box 310173
Houston, Texas 77231
Phone: 832.767.0794
Fax: 832.572.3961



                              CERTIFICATE OF SERVICE
       I hereby certify that a true and correct copy of the foregoing instrument   has been
dehvered to counsel for the State via certified mail, return receipt requested on this the 6th

day of May, 2015.




                                   Appellans   Motion for Rebe   g
                                               Page 5 of 5
