                                                                                                 ACCEPTED
                                                                                            03-14-00811-CR
                                                                                                   3948120
                                                                                  THIRD COURT OF APPEALS
                                                                                             AUSTIN, TEXAS
                                                                                      1/29/2015 12:57:01 PM
                                                                                           JEFFREY D. KYLE
                                                                                                     CLERK
                                NO. 03-14-00811-CR

KARL DEAN STAHMANN                      §                   IN THE THIRD
                                                                     FILED IN
                                                                3rd COURT OF APPEALS
                                        §                            AUSTIN, TEXAS
v.                                      §                   DISTRICT   COURT
                                                                1/29/2015 12:57:01OF
                                                                                  PM
                                        §                           JEFFREY D. KYLE
STATE OF TEXAS                          §                   APPEALS OFClerkTEXAS


     STATE’S RESPONSE TO APPELLANT’S MOTIONS TO EXPEDITE
                            APPEAL

TO THE HONORABLE JUSTICES OF SAID COURT:

       COMES NOW THE STATE OF TEXAS, by and through its Assistant

District Attorney, and files this its Response to Appellant’s Motions to Expedite

the Appeal in the above-captioned cause. The State asks that the Court deny

Appellant’s Motions at least in part, and would show the following:



I. Even if the Court Finds an Abuse of Discretion, the Appropriate Remedy is
               an Order Remanding the Case to the Trial Court

       Appellant contends he was entitled to bail following his adjudication for the

state jail felony offense of Credit Card Abuse. Motion to Expedite at 1. The State

contests Appellant’s assertions and is prepared to brief this case if the Court desires

briefs. Motion to Expedite at 2, Second Motion to Expedite at 2, RR vol. 1 at 5-6;

Tex. R. App. P. 31.1. However, even if after its review the Court decides it was an

abuse of discretion to deny bail, as Appellant alleges, the State respectfully submits

that the Court lacks the statutory authority to set bail as Appellant requests.
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      In his first motion, Appellant moves the Court to expedite its review of the

appeal and “set reasonable bail pending the appeal of the merits of the case.”

Motion to Expedite Appeal at 3. In his second motion, Appellant requests “that this

Court set bail in each count of the indictment at $5,000.00 for a total of

$10,000.00.” Second Motion to Expedite Appeal at 4.

      Article 44.04(h) of the Code of Criminal Procedure only gives intermediate

appellate courts authority to set bail after the conviction is reversed, and before a

petition for discretionary review is filed. See Tex. Crim. Proc. Code Ann. art. 44.04

(West, Westlaw through 2013 Sess.); see also Rojas v. State, 830 S.W.2d 679, 680

(Tex. App.—San Antonio 1992, no pet.) (citing Tex. Code Crim. Proc. art.

44.04(h) (“We may set bail after the opinion issues, if requested before a petition

for discretionary review is filed and before mandate issues.”)) (emphasis added).

      Therefore, in the event the Court finds an abuse of discretion in denying bail,

the appropriate remedy is remanding the case to the trial court to either set bail or

hold another hearing to determine whether good cause exists to deny bail. See

Burroughs v. State, 611 S.W.2d 106, 108 (Tex. Crim. App. 1981), (citing Ex parte

Hebert, 579 S.W.2d 486, 487 (Tex. Crim. App. 1979) (in which the Court of

Criminal Appeals remanded the case to the trial court)).




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                                  II.    PRAYER

      WHEREFORE, PREMISES CONSIDERED, the State respectfully prays

that the request in Appellant’s Motions that the Court set bail, in any amount, be

DENIED. Further, the State prays for all relief, both special and general, in law

and in equity, to which it may be entitled.


                                        Respectfully submitted,

                                        /s/ Joshua D. Presley
                                        Joshua D. Presley
                                        SBN: 24088254
                                        preslj@co.comal.tx.us
                                        Comal Criminal District Attorney’s Office
                                        150 N. Seguin Avenue, Suite 307
                                        New Braunfels, Texas 78130
                                        Ph: (830) 221-1300 / Fax: (830) 608-2008




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                         CERTIFICATE OF SERVICE

      I, Joshua D. Presley, Assistant District Attorney for the State of Texas,

Appellee, hereby certify that a true and correct copy of this State’s Response to

Appellant’s Motions to Expedite Appeal has been delivered to Appellant KARL

DEAN STAHMANN’s attorney of record in this matter:

Charles F. Baird
jcfbaird@gmail.law
Baird Farrelly, PLLC
2312 Western Trails Blvd, Suite 102-A
Austin, TX 78745
Counsel for Appellant on Appeal

by electronic mail service to the above email address through efile.txcourts.gov,
this 29th day of January, 2015.


                                            /s/ Joshua D. Presley
                                             Joshua D. Presley




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