Opinion
No. 11-15-00246-CR
02-11-2016
CURTIS WAYNE TEER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 441st District Court Midland County, Texas
Trial Court Cause No. CR42737
MEMORANDUM OPINION
Appellant, Curtis Wayne Teer, has filed an appeal from an order in which the trial court set Appellant's bail pending appeal. See TEX. CODE CRIM. PROC. ANN. art. 44.04(c), (g) (West Supp. 2015); see also TEX. R. APP. P. 31. We affirm.
We note that the underlying appeal is currently pending in this court in our Cause No. 11-15-00139-CR.
In the underlying cause, Appellant was convicted of two counts of failure to comply with sex offender registration, with each count being a third-degree felony. His punishment was assessed at confinement for four years in each count, with the sentences to run concurrently. After filing a notice of appeal with respect to his convictions, Appellant filed a motion for bail pending appeal. The trial court ultimately entered an order in which it set the amount of Appellant's appeal bond at $10,000 but required that it be a commercial/surety bond. The trial court also imposed various conditions on Appellant's bond.
On appeal, Appellant presents two issues. In the first, he complains of the trial court's failure to set "reasonable bail" on appeal. Appellant asserts that the amount of bail was excessive because he was indigent and could not afford an up-front payment of $1,000 to $1,500 as required by commercial bondsmen.
Article 44.04 of the Code of Criminal Procedure contains the provisions relating to appeal bonds. See CRIM. PROC. art. 44.04. Under that statute, Appellant was eligible to have the trial court consider him for bail pending appeal. See id. art. 44.04(b), (c). Appellant has the burden to show that the amount of the appeal bond is excessive. Ex parte August, 552 S.W.2d 169, 170 (Tex. Crim. App. 1977). We review the trial court's determination under Article 44.04 for an abuse of discretion. Ex parte Spaulding, 612 S.W.2d 509, 511 (Tex. Crim. App. 1981). Under that standard, we will not disturb a trial court's decision as long as it was within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).
Article 44.04 provides in relevant part:
(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.
The Court of Criminal Appeals has stated that the primary objective of an appeal bond "is to secure appellant's apprehension if his conviction is subsequently affirmed." Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. [Panel Op.] 1981). The primary factors to consider in determining what constitutes reasonable bail on appeal "are the length of the sentence . . . and the nature of the offense." Id. (citations omitted). Other relevant factors include the following: the appellant's work record, his family ties, the length of his residency, his ability to make the bond, his conformity with previous bond conditions, the existence of other outstanding bonds, and any aggravating factors involved in the offense. Id. at 849-50 (citing various cases from the Court of Criminal Appeals).
With respect to the above factors, we point out that Appellant received two concurrent sentences of four years. The nature of the offense involved his failure to comply with the requirements of his sex offender registration. Appellant informed the trial court that he was not "in flight" when he was found in Arizona and that he had no escapes or attempted escapes in his history. The record indicates, however, that he went to Arizona to work without notifying the appropriate authorities and, thus, failed to comply with the requirements of his sex offender registration. Appellant's criminal history includes a conviction for indecency with a child and a conviction for assault-family violence. The record does not contain much information about Appellant's work record other than that he had previously been employed as a furniture salesman and that, at the time he was arrested in Arizona, he was employed by a pipeline company. He also had experience in the oil field as a roustabout gang pusher. Appellant did not have a job waiting for him, but he stated that he would find a job if released on bond. At the hearings in this case, there was much discussion about the potential for Appellant to go into a supervised release program in the federal system and the availability of that option.
Appellant did not have any ties to the area. He had no family in the area and no residence in the area. Appellant established that he was indigent, but he did not offer any evidence as to whether he had friends or family members who would help him make bond. Appellant introduced an affidavit in which he indicated that he had attempted to obtain a commercial bond in the amount of $10,000 but that both of the companies he contacted required $1,500 up front. Appellant asked that the trial court permit him to obtain a bond through pretrial services so that he could pay out the amount in installments and so that the amount he would have to pay in cash would be a lower percentage of the bond amount. The trial court did not permit Appellant to obtain a bond through pretrial services.
Although Appellant established that he was indigent, he did not establish that he had no friends or family members who would help him obtain an appeal bond. Furthermore, Appellant has no ties to the Midland area and was located in Arizona when he was arrested by U.S. Marshals. The trial court could have determined that, in order to secure Appellant's apprehension if his conviction were subsequently affirmed, a commercial/surety bond in the amount of $10,000 was appropriate. We hold that the trial court did not abuse its discretion in so finding.
In his second issue, Appellant complains that he was improperly transferred from county jail to the Texas Department of Criminal Justice because he did not request such a transfer and, in fact, requested to remain in the custody of Midland County Jail pending the appeal of his convictions. See CRIM. PROC. art. 42.09, § 4; Ex parte Rodriguez, 597 S.W.2d 771, 772-73 (Tex. Crim. App. 1980); Ex parte Norvell, 528 S.W.2d 129, 131 (Tex. Crim. App. 1975). Although it appears that Appellant is correct, we do not have jurisdiction in this appeal to address the matter raised in Appellant's second issue, nor do we have jurisdiction to issue a writ of habeas corpus to have Appellant returned to the county jail. We note, however, that Appellant has recently filed an application for writ of habeas corpus in the Court of Criminal Appeals (Cause No. WR-83,849-02, which was filed on January 4, 2016) because he feared that we did not have jurisdiction to address the matter of his illegal transfer.
We affirm the trial court's order setting Appellant's bail pending appeal.
PER CURIAM February 11, 2016 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
CRIM. PROC. art. 44.04(b), (c) (emphasis added).