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                                 MEMORANDUM OPINION

                                        No. 04-08-00533-CR

                                    EX PARTE Mark REASOR

                     From the 144th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 1996-CR-2415
                         Honorable Catherine Torres Stahl, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: January 7, 2009

AFFIRMED

           This is an appeal from a trial court’s order denying bail pending the appeal of an order

revoking community supervision. We affirm the trial court’s order.

                                            BACKGROUND

           Mark Reasor pleaded guilty to the offense of possession of cocaine between 200 and 400

grams and received a ten-year term of community supervision on May 1, 1997. During early 2007,

the trial court held a hearing and revoked Reasor’s community supervision based on an application

filed by the State. The trial court sentenced Reasor to six years imprisonment, and Reasor gave

notice of his intent to appeal the court’s revocation order. Reasor also requested bail pending his

appeal of the trial court’s revocation order.
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         At the hearing on Reasor’s motion to set bail, Reasor urged the trial court to grant his request

for an appeal bond. Reasor testified that he has strong family and community ties. He stated that

he and his family are life long residents of San Antonio, and noted that he has two minor children

to support. Reasor testified he performed construction work prior to the revocation of his

community supervision and stated his family and friends are willing to help him find gainful

employment if granted bail pending appeal. He also informed the court that he has complied with

the conditions of his previously set bonds.

         The State argued that Reasor was not eligible for bail because no statutory provision allows

for bail pending the appeal of an order revoking community supervision. Alternatively, the State

argued that Reasor was not suitable for bail given the substantial likelihood that he would commit

another offense while on bail. The State elicited testimony that while Reasor was on bond pending

his appeal of the trial court’s original decision to place him on community supervision, he violated

federal drug law by possessing more than 500 grams of cocaine.1 The State also elicited testimony

that Reasor had violated state law while serving his term of community supervision by committing

the offense of theft.

         The trial court ultimately denied Reasor’s request for bail pending appeal. The court denied

Reasor’s request based upon its belief that it was “[w]ithout any statutory authority to give him an

appeal bond.” Reasor brought this appeal following the trial court’s denial of his request for bail

pending appeal.




         1
          … Reasor was placed on probation for his federal drug offense. The record indicates that Reasor subsequently
violated the terms of his federal probation by testing positive for a controlled substance.




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                                      STANDARD OF REVIEW

       We will not disturb a trial court’s decision to deny bail pending appeal absent an abuse of

discretion by the trial court. Ex parte Spaulding, 612 S.W.2d 509, 511 (Tex. Crim. App. 1981). “In

other words, as long as the trial court’s decision was within the zone of reasonable disagreement and

was correct under any theory of law applicable to the case, it must be upheld.” Winegarner v. State,

235 S.W.3d 787, 790 (Tex. Crim. App. 2007); see also Montgomery v. State, 810 S.W.2d 372, 391

(Tex. Crim. App. 1990); Calloway v. State, 743 S.W.2d 645, 651-52 (Tex. Crim. App. 1988).

                                            DISCUSSION

       Reasor argues the trial court committed reversible error when it denied his request for bail

pending appeal based upon an erroneous assumption that it had no authority to grant bail to a

defendant appealing an order revoking community supervision. While we agree with Reasor that

the trial court incorrectly concluded that it had no authority to grant bail to a defendant pending the

appeal of an order revoking community supervision, we cannot say such error constituted reversible

error under the circumstances presented.

       In Texas, the Legislature has made provision for defendants, like Reasor, to seek reasonable

bail pending appeal. Article 44.04(b) of the Texas Code of Criminal Procedure provides that a

“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.” TEX . CODE CRIM . PROC. ANN . art. 44.04(b) (Vernon 2006). Here, it is

undisputed that Reasor’s sentence does not equal or exceed 10 years confinement. His conviction

also did not involve a Section 3g(a)(1) offense. Given these circumstances, Reasor was eligible to



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have the trial court consider him for bail pending appeal. See id.; see generally Shockley v. State,

717 S.W.2d 922, 923-25 (Tex. Crim. App. 1986) (Miller, J., concurring) (referencing the original

text of Hunter v. State, No. 770-85 (Tex. Crim. App. Oct. 23, 1985), an opinion withdrawn on the

State’s motion for rehearing, which acknowledged that a defendant pursuing an appeal of an order

revoking probation is eligible for bail pending appeal if he does not fall within the categories of

individuals who may be denied bail under article 44.04(b)).

        Although we believe the trial court was mistaken in its belief that it had no authority to grant

Reasor bail pending the appeal of the order revoking his community supervision, we nonetheless

uphold the court’s decision to deny Reasor bail because the decision is correct under the law

applicable to the case. Article 44.04(c), which applies to the case at bar, provides that a “trial court

may deny bail and commit the defendant to custody if there then exists good cause to believe that

the defendant . . . is likely to commit another offense while on bail.” TEX . CODE CRIM . PROC. ANN .

art. 44.04(c). The record shows that not only did the trial court hear evidence at the bail hearing that

Reasor was prosecuted for committing a federal drug offense while on his previously set appeal

bond, it also heard evidence that he committed the offense of theft after his state supervisory period

had commenced. These additional criminal acts committed by Reasor undoubtedly establish good

cause to believe that he would commit a new offense while on bail. See Ex parte Nycum, 614

S.W.2d 140, 141 (Tex. Crim. App. 1981) (holding no abuse of discretion in denying bail pending

appeal where appellant committed another offense while on bail); Ex parte Turner, 612 S.W.2d 611,

612 (Tex. Crim. App. 1981) (holding no abuse of discretion in denying bail pending appeal where

appellant engaged in criminal conduct while serving his term of community supervision). Because

the trial court’s decision to deny Reasor bail is correct under the law applicable to his case, we may



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not disturb the court’s decision on appeal. See Calloway, 743 S.W.2d at 651-52 (“Further, it is well

established that the mere fact that a correct ruling is given for the wrong reason will not result in a

reversal. If the decision is correct on any theory of law applicable to the case it will not be

disturbed.”). Appellant’s sole issue on appeal is therefore overruled.

                                            CONCLUSION

       Based on the foregoing, the trial court’s order denying Reasor bail pending appeal is

affirmed.

                                                        Catherine Stone, Chief Justice

Publish




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