                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00031-CR


WILLIAM THOMAS LEONARD                                              APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                                   OPINION

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                                I. INTRODUCTION

      The Texas Court of Criminal Appeals set bond for Appellant William

Thomas Leonard pending its disposition of the State’s petition for discretionary

review.   Subsequently, the trial court signed an order adding conditions to

Leonard’s bond. Leonard appeals from the trial court’s order, raising two issues.

We will affirm.
                          II. PROCEDURAL BACKGROUND

      Leonard pleaded guilty to committing the offense of injury to a child. He

was placed on deferred adjudication community supervision for five years and

was assessed a $750 fine. The conditions of Leonard’s community supervision

included sex offender evaluation and counseling and required that he submit to,

and show no deception on, polygraph exams.           Eventually, the State filed a

motion to proceed to an adjudication of Leonard’s guilt; the trial court held a

hearing on the motion and found that Leonard had violated the terms of his

community supervision. Leonard was adjudicated guilty and sentenced to seven

years’ confinement. He appealed. The Eastland Court of Appeals reversed the

trial court’s judgment, holding that the trial court had abused its discretion by

considering evidence of Leonard’s failed polygraph exams in determining

whether to revoke his community supervision. Leonard v. State, 315 S.W.3d

578, 581 (Tex. App.—Eastland 2010), rev’d, 2012 WL 715981 (Tex. Crim. App.

Mar. 7, 2012).1

      Following issuance of the Eastland Court of Appeals’s opinion and

judgment, the State filed a petition for discretionary review. Leonard then filed

with the court of criminal appeals a motion for bail pending appeal pursuant to

      1
        The Texas Court of Criminal Appeals disposed of the State’s petition for
discretionary review the day before Leonard filed his appellate brief in this court.
The court of criminal appeals’ opinion has not yet become final; on May 9, 2012,
the court of criminal appeals granted Leonard’s motion for rehearing.


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article 44.04(h) of the code of criminal procedure. See Tex. Code Crim. Proc.

Ann. art. 44.04 (West 2006). The State filed a response to Leonard’s motion for

bail, requesting that the court of criminal appeals impose reasonable conditions

of bond.2 The court of criminal appeals granted Leonard’s motion for bail; set his

bail at $20,000; and ordered “that the trial court order Appellant [Leonard]

released from confinement assessed in this cause upon the posting of bail. Any

sureties must be approved by the trial court.” The court of criminal appeals did

not order the imposition of any of the conditions requested by the State.

      Subsequently, the trial court—in accordance with the court of criminal

appeals’s order setting bail at $20,000—signed an order setting Leonard’s bond

at $20,000 and imposed conditions on the bond.3 Leonard filed a “Notice Of

Appeal Regarding Bail Issue,” and the trial court granted him permission to

appeal.4 Leonard argues in two points that under article 44.04(h) of the code of


      2
        The conditions of bond sought by the State included the conditions that
Leonard not have any contact with any minors under the age of eighteen; that
Leonard report to the Community Supervision and Corrections Department of
Tarrant County, Texas, on a weekly basis; that he permit the Supervision Officer
to visit him at his home or elsewhere at any time; that he remain in Tarrant
County, unless the trial court authorizes otherwise; and that he wear an ankle
monitor.
      3
        Leonard filed an objection to the trial court’s imposition of conditions on
his bond, and the trial court later signed an order amending the conditions.
Leonard does not challenge the individual conditions imposed but maintains his
position that the trial court lacked authority to impose any conditions on the bail
set by the court of criminal appeals.
      4
       Leonard states in his brief that a reporter’s record—evidently from the
hearing concerning imposition of the bond conditions—is unnecessary because

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criminal procedure, the trial court had no authority to set conditions on his bond

and that the law of the case affirmatively prohibited the trial court from doing so

because the court of criminal appeals did not.

    III. ARTICLE 44.04(H) DOES NOT PROHIBIT THE TRIAL COURT FROM SETTING
     CONDITIONS ON A BAIL AMOUNT SET BY THE COURT OF CRIMINAL APPEALS

                             A. Standard of Review

      We review issues of statutory construction de novo. Hirsch v. State, 282

S.W.3d 196, 201 (Tex. App.—Fort Worth 2009, no pet.).            When interpreting

statutes, courts must “seek to effectuate the ‘collective’ intent or purpose of the

legislators who enacted the legislation.” Mahaffey v. State, 364 S.W.3d 908, 913

(Tex. Crim. App. 2012) (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.

App. 1991)). Toward that end, “we necessarily focus our attention on the literal

text of the statute in question and attempt to discern the fair, objective meaning

of that text at the time of its enactment.” Id. However, where application of a

statute’s plain language would lead to absurd consequences, or where “the

language is not plain but rather ambiguous,” a court may consider “such

extratextual factors as executive or administrative interpretations of the statute or

legislative history.” Id. In this context, ambiguity exists when a statute may be

understood by reasonably well-informed persons in two or more different senses;

conversely, a statute is unambiguous where it reasonably permits no more than


the issue presented is one of law, that being whether the trial court possessed
authority to impose conditions on the bail set by the court of criminal appeals.


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one understanding. Id. (citing State v. Neesley, 239 S.W.3d 780, 783 (Tex. Crim.

App. 2007)). In interpreting statutes, we presume that the legislature intended for

the entire statutory scheme to be effective.          See Tex. Gov’t Code Ann.

§ 311.021(2) (West 2005); Murray v. State, 302 S.W.3d 874, 879, 881 (Tex.

Crim. App. 2009) (in construing statute, looking to other provisions within entire

“statutory scheme” rather than merely the single, discrete provision at issue).

            B.     Article 44.04 of the Code of Criminal Procedure

      Code of criminal procedure article 44.04, which is titled “Bond pending

appeal,” sets forth when a defendant is entitled to bail pending appeal—

depending on the crime committed and the punishment assessed—and sets forth

which courts have authority to set bail amounts and conditions. See generally

Tex. Code Crim. Proc. Ann. art. 44.04. The pertinent provisions are as follows:

            (b) The 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.

             (c) Pending the appeal from any felony conviction other than a
      conviction described in Subsection (b) of this section, the trial court
      may deny bail and commit the defendant to custody if there then
      exists good cause to believe that the defendant would not appear
      when his conviction became final or is likely to commit another
      offense while on bail, permit the defendant to remain at large on the
      existing bail, or, if not then on bail, admit him to reasonable bail until
      his conviction becomes final. The court may impose reasonable
      conditions on bail pending the finality of his conviction. On a finding
      by the court on a preponderance of the evidence of a violation of a
      condition, the court may revoke the bail.




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              (d) After conviction, either pending determination of any
       motion for new trial or pending final determination of the appeal, the
       court in which trial was had may increase or decrease the amount of
       bail, as it deems proper, either upon its own motion or the motion of
       the State or of the defendant.

              (e) Any bail entered into after conviction and the sureties on
       the bail must be approved by the court where trial was had. Bail is
       sufficient if it substantially meets the requirements of this code and
       may be entered into and given at any term of court.

              ....

              (h) 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. If the defendant
       requests bail before a petition for discretionary review has been filed,
       the Court of Appeals shall determine the amount of bail. If the
       defendant requests bail after a petition for discretionary review has
       been filed, the Court of Criminal Appeals shall determine the amount
       of bail. The sureties on the bail must be approved by the court
       where the trial was had. The defendant’s right to release under this
       subsection attaches immediately on the issuance of the Court of
       Appeals’ final ruling as defined by Tex. Cr. App. R. 209(c).

Id. art. 44.04(b)–(e), (h).

                                    C. Analysis

       Article 44.04(h) requires that, upon a motion requesting bail, a defendant

who is in custody and whose conviction is reversed by a court of appeals is

entitled to release on reasonable bail. Id. art. 44.04(h). The plain language of

article 44.04(h) grants the court of criminal appeals the power to set the amount

of bail pending appeal when an incarcerated defendant files a motion for bail

after a petition for discretionary review has been filed. See id. (providing that “the



                                          6
Court of Criminal Appeals shall determine the amount of bail”). But as pointed

out by the State, article 44.04(h) does not authorize the court of criminal appeals

to set any other aspect of the reasonable bail to which an incarcerated defendant

whose conviction is reversed by a court of appeals is entitled. Indeed, the court

of criminal appeals, as an appellate court, is ill-equipped to conduct the type of

hearing often necessary to determine reasonable conditions of bail.          Accord

Yates v. State, 679 S.W.2d 538–41 (Tex. App.—Tyler 1984, pet. ref’d)

(discussing issues, evidence, and conditions of bail pending appeal). The plain

language of article 44.04(h) mandates that the trial court is to approve the

sureties on the bail amount set by the court of criminal appeals via subsection

(h). Tex. Code Crim. Proc. Ann. art. 44.04(h) (providing that “[t]he sureties on

the bail must be approved by the court where the trial was had”). And subsection

(c) authorizes the trial court to “impose reasonable conditions on bail pending the

finality of [a defendant’s] conviction”). Id. art. 44.04(c). Thus, after the court of

criminal appeals sets the amount of bail pursuant to 44.04(h), the details of a

defendant’s release, including approval of sureties and setting reasonable

conditions of bail, proceed in the trial court where the trial was had. See id.

(authorizing the trial court to impose reasonable conditions on bail pending

appeal). Thus, focusing on the literal text of the statute and presuming that the

legislature intended for the entire statutory scheme to be effective, we hold that

article 44.04(c) authorizes the trial court to set reasonable conditions of bail

pending appeal, including pending disposition of a petition for discretionary


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review filed by the State after an incarcerated defendant’s conviction is reversed

by a court of appeals and after the court of criminal appeals has set the amount

of bail pursuant to article 44.04(h). See Mahaffey, 364 S.W.3d at 913.

      Leonard contends that the case of Ex parte Anderer precludes application

of subsection (c) to the present facts. 61 S.W.3d 398, 400–01 (Tex. Crim. App.

2001). In Ex parte Anderer, the court of criminal appeals set forth the seven

classes of convicted defendants addressed in article 44.04 and explained which

categories of convicted defendants were entitled to bail, which categories of

convicted defendants were not entitled to bail, and which categories of convicted

defendants could at the trial court’s discretion be granted bail. Id. The court of

criminal appeals in Ex parte Anderer then noted that when a defendant is in the

sixth or seventh categories identified in the opinion—that is, on existing bail or

not on bail—the trial court may impose reasonable conditions of bail. Id. at 400.

Leonard argues that because he is a defendant whose conviction was reversed

by an appellate court, he is in Ex parte Anderer’s fourth category, not its sixth or

seventh categories, so conditions could not be imposed upon his bail.

      The problem with Leonard’s interpretation of Ex parte Anderer is that the

opinion does not hold that conditions of bail may be imposed only on defendants

in categories six and seven. Leonard’s interpretation of Ex parte Anderer does

not take into account that subsection (h), by its terms, is applicable only to

incarcerated defendants whose convictions have been reversed by a court of

appeals. See Tex. Code Crim. Proc. Ann. art. 44.04(h) (providing that “[i]f a


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conviction is reversed by a decision of a Court of Appeals, the defendant, if in

custody, is entitled to release on reasonable bail”) (emphasis added); accord

Abbott v. State, 245 S.W.3d 23, 26 (Tex. App.—Waco, 2007, pet. dism’d)

(applying article 44.04(h) to incarcerated defendant when appellate court

reversed trial court’s order denying defendant’s motion for time credit).       If a

defendant whose conviction has been reversed by a court of appeals is already

out on bail at the time of the appellate court’s decision, subsection (h) does not

apply. Instead, in that situation, subsection (c) authorizes a trial court to permit

the defendant to remain at large on his existing bail and to impose reasonable

conditions on bail pending the finality of his conviction. See Tex. Code Crim.

Proc. Ann. art. 44.04(c); accord Ex parte Anderer, 61 S.W.3d at 399, 404

(upholding trial court’s imposition of bail condition prohibiting appellant from

driving motor vehicle during pendency of appeal). To construe article 44.04 as

Leonard urges us to would mean that so long as an incarcerated defendant

whose conviction was reversed by a court of appeals waited until after a petition

for discretionary review was filed to seek bail pursuant to subsection (h), no

conditions could ever be imposed on his bail or bond. But a defendant who was

already out on bail and was not incarcerated when a court of appeals decision

reversing his conviction was issued could be subjected to existing or additional

conditions of bail pursuant to subsection (c). We decline to construe article 44.04

in this disparate manner that refuses to give effect to the statutory authority




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granted to a trial court in subsection (c) to impose reasonable conditions of bail

when a defendant is admitted to bail pending appeal.

         We overrule Leonard’s second point.

                  IV. LAW OF THE CASE DOCTRINE IS NOT APPLICABLE

         In his first point, Leonard argues that the law of the case doctrine prevents

the trial court from imposing conditions of bail because the court of criminal

appeals refused to impose any. The legal principle or doctrine of law of the case

provides that an appellate court’s resolution of a question of law in a previous

appeal of the same case will govern the disposition of the same issue should

there be another appeal. Ware v. State, 736 S.W.2d 700, 701 (Tex. Crim. App.

1987).     Here, the court of criminal appeals determined only the amount of

Leonard’s bail; it did not either grant or deny the State’s request that conditions of

bail be imposed. Because the court of criminal appeals did not rule one way or

the other on the issue of whether conditions should be imposed on Leonard’s

bail, no resolution of that issue exists to bind the trial court. We therefore hold

that the law of the case doctrine does not apply. We overrule Leonard’s first

point.

                                    V. CONCLUSION

         Having overruled both of Leonard’s points, we affirm the trial court’s order

imposing conditions on his bail.


                                                     SUE WALKER
                                                     JUSTICE


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PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DAUPHINOT, J., concurs without opinion.

PUBLISH

DELIVERED: August 2, 2012




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