                                        In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                              ____________________

                               NO. 09-18-00258-CR
                              ____________________

                  EX PARTE JOSE ANTONIO RODRIGUEZ
_______________________________________________________                  ______________

                     On Appeal from the 221st District Court
                          Montgomery County, Texas
                        Trial Cause No. 15-09-09821-CR
________________________________________________________                 _____________

                           MEMORANDUM OPINION

      Jose Antonio Rodriguez challenges the trial court’s order denying his motion

to set bail pending the resolution of his appeal. 1 Because it was reasonable for the

trial court to deny Rodriguez bail, we affirm the trial court’s order.

                                     Background

      In 2016, and based on the terms of a plea agreement, Rodriguez pleaded guilty

to driving while intoxicated, third offense. 2 In carrying out the agreement, the trial


          1
         See Tex. Code Crim. Proc. Ann. art. 44.04(g) (West 2018) (permitting an
accelerated appeal from an order denying bail pending an appeal).
      2
        Rodriguez’s indictment alleged he had two prior convictions for driving
while intoxicated. See Tex. Penal Code Ann. § 49.04(a) (West Supp. 2018) (defining
the elements of the offense of driving while intoxicated), § 49.09(b) (West Supp.
2018) (providing that a driving while intoxicated offense is a third-degree felony if
                                           1
court sentenced Rodriguez to ten years in prison, ordered the execution of the

sentence suspended, and placed Rodriguez on community supervision for a period

of four years. 3

       Almost two years later, the State moved to revoke the trial court’s community

supervision order. According to the State, Rodriguez committed eleven violations of

the community supervision order. Rodriguez pleaded “not true” to the allegations.

After a hearing, the trial court found all the violations alleged in the State’s motion

to be true. The trial court revoked the community supervision order and sentenced

Rodriguez to five years in prison.4

       Rodriguez timely filed notice of his intent to appeal the trial court’s revocation

of his community supervision. He also filed a motion to set bail pending the

resolution of his appeal. After a hearing, the trial court denied the motion.




the person has two prior convictions related to the operation of a motor vehicle while
intoxicated).
       3
       See id. § 12.34(a) (West 2011) (making a third-degree felony punishable by
imprisonment for two to ten years).
       4
        See Tex. Code Crim. Proc. Ann. art. 42A.755(a)(2) (West 2018) (If the trial
court revokes the defendant’s community supervision, it may reduce the sentence
that was suspended at the punishment hearing if it determines that to do so would
serve the best interests of society and the defendant.).

                                           2
                                Standard of Review

      We review a trial court’s decision to deny bail pending appeal for an abuse of

discretion. 5 When reviewing matters committed to the trial court’s discretion, we do

not substitute our own judgment for that of the trial court. 6 Instead, we ask whether

the trial court’s decision was made without reference to any guiding rules or

principles of law, or in other words, whether it was arbitrary or unreasonable.7 We

uphold the trial court’s decision as along as it falls within the zone of reasonable

disagreement.8

                                      Analysis

      There is no federal or state constitutional right to bail pending appeal.9

However, the Texas Code of Criminal Procedure permits defendants to seek

reasonable bail pending appeal under certain circumstances. Pursuant to article 44.04



      5
          Ex parte Spaulding, 612 S.W.2d 509, 511 (Tex. Crim. App. 1981).
      6
       See Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018) (citing
Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)).
      7
          See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
      8
          See id. at 391.
      9
        See Dallas v. State, 983 S.W.2d 276, 278 n.1 (Tex. Crim. App. 1998) (citing
Stack v. Boyle, 342 U.S. 1 (1951)); see also Ex parte Lowe, 573 S.W.2d 245, 247
(Tex. Crim. App. 1978); Cortez v. State, 36 S.W.3d 216, 221 (Tex. App.—Houston
[14th Dist.] 2001, pet. ref’d).

                                          3
of the Texas Code of Criminal Procedure, if the defendant’s punishment is less than

ten years and the conviction is for an offense not listed under article 42A.054(a), the

trial court may set a reasonable bail pending the resolution of the defendant’s

appeal. 10 Since Rodriguez’s sentence is less than ten years, and his conviction does

not involve an offense listed in article 42A.054(a), he was eligible for bail pending

appeal. Nevertheless, article 44.04 provided the trial court with discretion to deny

Rodriguez bail if good cause existed to believe he would not appear when his

conviction became final or he would likely commit another offense while on bail.11

      Here, the trial court accepted Rodriguez’s guilty plea for the underlying

offense of driving while intoxicated and gave Rodriguez several opportunities to

serve out his sentence on community supervision. The trial court found Rodriguez

committed multiple violations of the community supervision order. Those violations

included testing positive for alcohol during a random urinalysis and breaching the

terms of an agreement to wear an alcohol monitoring device. Given the nature of the

underlying offense, along with the nature of the community supervision violations,

the trial court could have reasonably found that Rodriguez would likely commit an




      10
         See Tex. Code Crim. Proc. Ann. art. 44.04(b), (c) (West 2018); see also id.
art. 42A.054(a) (West 2018).
      11
           See id. art. 44.04(c).
                                          4
alcohol-related offense while on bail pending the resolution of his appeal.12

Therefore, we find no abuse of discretion. The trial court’s order denying

Rodriguez’s request for bail pending the outcome of his appeal is affirmed.

      AFFIRMED.




                                                      _________________________
                                                           HOLLIS HORTON
                                                                Justice


Submitted on November 2, 2018
Opinion Delivered January 9, 2019
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




      12
         See e.g., Ex parte Jeanmard, No. 09-08-298 CR, 2008 Tex. App. LEXIS
8724, at *3-4 (Tex. App.—Beaumont Nov. 12, 2008, no pet.) (mem. op., not
designated for publication) (relying on the trial court’s statement that “‘[t]he failure
to follow such rules which are directly related to [the defendant’s] underlying
offense places others in jeopardy of [his] potential to commit other offenses if placed
on bail’” in affirming the trial court’s order denying the defendant’s application for
bond pending the outcome of his appeal).
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