Ex parte Anderer

• Decision Date: 14 November 2001
• Docket Number: No. 0330-00,0330-00
• Citation: 61 S.W.3d 398
• Parties: (Tex.Crim.App. 2001) EX PARTE PHILIP MARTIN ANDERER, Appellant
• Court: Texas Court of Criminal Appeals

Page 398

61 S.W.3d 398 (Tex.Crim.App. 2001)

EX PARTE PHILIP MARTIN ANDERER, Appellant

No. 0330-00

Court of Criminal Appeals of Texas, En Banc.

November 14, 2001.

ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY

Matt Hennessy, Houston, for Appellant.

Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

Womack, J., delivered the opinion of the Court, in which Keller, P.J., Keasler, Hervey, Holcomb , and Cochran, JJ., joined.

The question is whether a condition that the appellant not operate a motor vehicle is one of the "reasonable conditions on bail pending the finality of his conviction" that may be imposed on bail pending appeal of his felony conviction. See Tex. Code Crim. Proc. art. 44.04(c).

I.

The appellant was indicted for committing criminally negligent homicide on May 8, 1998. About this offense, the habeas-corpus record that is now before us discloses only that the appellant was driving his commercial vehicle when he killed the victim. Before trial the appellant was released on a $2,000 cash bond. A jury found him guilty of the criminally negligent homicide and assessed a punishment of six years' imprisonment on June 8, 1999. He immediately gave notice of appeal. The district court set his bail at $50,000 and imposed on the bail the condition that the appellant was "not to operate any type of motor vehicle whatsoever."

The appellant applied for a writ of habeas corpus on the ground that the condition was unreasonable, in violation of article 44.04(c) and "due process." The district court issued the writ and held a hearing. The appellant testified that the condition of his bail prevented him from engaging in his business of selling "driveway road base," which he delivered in his own truck. He admitted that, during the pendency of the indictment for criminally negligent homicide, he was involved in another "injury accident" while operating a commercial vehicle. The district court denied habeas-corpus relief, and the appellant gave notice of appeal.

A divided panel of the Court of Appeals reversed the district court's habeas-corpus judgment. Anderer v. State, 7 S.W.3d 245 (Tex. App. -- Houston [14th Dist.] 1999).¹ It held that the purpose of a condition on bail pending appeal is "to assure the presence of a defendant if his or her conviction becomes final," and that the condition in this case "does nothing to advance th[at] purpose."² The Court said that if the district court had good cause to believe that the appellant would not appear or was likely to commit another offense, "the proper action is to deny an appeal bond [sic] and commit the defendant to custody."³ We granted review.

II.

The issue in this case turns on the meaning of the phrase, "reasonable conditions on bail pending the finality of [the defendant's] conviction," in article 44.04(c). As always, we begin our consideration with the language of the statute.⁴

Article 44.04 of the Code of Criminal Procedure identifies seven classes of convicted defendants. As to four classes, the trial court has no discretion.

In two of these classes, "The defendant may not be released on bail pending the appeal , but shall immediately be placed in custody and the bail discharged":⁵

(1) "where the punishment equals or exceeds 10 years' confinement,"⁶ and

(2) "where the defendant has been convicted of an offense listed under Section 3g(a)(1), Article 42.12."⁷

In two other classes a convicted defendant is entitled to release on bail:

(3) the misdemeanant, who "is entitled to be released on reasonable bail,"⁸

(4) the felon whose conviction has been reversed by a decision of a court of appeals, who "is entitled to release on reasonable bail, regardless of the length of the term of imprisonment."⁹

In the three remaining classes the trial court has discretion. These classes comprise appeals from felony convictions in which the punishment is less than 10 years confinement. In such cases "the trial court may":

(5) "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;"¹⁰

(6) "permit the defendant to remain at large on the existing bail,"¹¹ the amount of which the court may increase or decrease,¹²

(7) "if not then on bail, admit him to reasonable bail until his conviction becomes final."¹³

As for the defendant whom the trial court finds in the sixth or seventh class, "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."¹⁴ The appellant in this case is in the sixth class.

Judicial discretion to deny bail pending appeal, or to make it conditional, arrived less than 15 years ago. Before 1907, a defendant who was convicted of a felony was not eligible for bail. The statutes required, "Where the defendant appeals in any case of felony, he shall be committed to jail until the decision of the [appellate court]."¹⁵

In 1907 a statute authorized bail pending appeal in a felony case, but it gave the trial court discretion only as to amount. Any defendant who was convicted of a felony, and whose punishment did not exceed fifteen years' confinement, was entitled to bail.¹⁶ In its 1965 reenactment, the statute read, "Any defendant who is convicted of a misdemeanor, or who is convicted of a felony and whose punishment is assessed at a fine or confinement not to exceed fifteen years or both, shall be entitled to bail under the rules set forth in this Chapter pending disposition of his motion for new trial, if any, and pending disposition of his appeal, if any, and until his conviction becomes final."¹⁷

In 1977, the trial court's discretion was enlarged. The controlling statute, article 44.04 of the Code of Criminal Procedure, was amended to remove the concept of a felon's entitlement to bail pending appeal.¹⁸ The trial court was given discretion, even when the punishment was less than 15 years, to deny bail or to impose reasonable conditions on bail.¹⁹

In 1999 another amendment restricted the eligibility for bail pending appeal by lowering the ceiling to cases in which the punishment was less than 10 years and by eliminating the "3g" offenses.²⁰

At the same time, magistrates were given authority to impose reasonable conditions on pre-trial bail. "To secure a defendant's attendance at trial, a magistrate may impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community."²¹

It will be noted that the statutes treat conditions on pre-trial bond differently from conditions on bail pending appeal. A condition of pre-trial bond must meet three standards: Not only must it be "reasonable," but it also must be to "secure a defendant's attendance at trial," and also be related to the safety of the alleged victim or the community. The latter two standards were not imposed on the trial court's conditions of bail pending appeal, which must only be "reasonable."

We have not considered the significance of the legislature's decision to impose three standards on conditions on pre-trial bonds while leaving only one standard for conditions on bail pending appeal.

III.

Our previous decisions have assumed that the standard the legislature chose for conditions on pre-trial bonds in 1999 also applied to conditions on bail pending appeal under the 1977 statute. The difference between the statutes now demonstrates that the standards may be different, at least as they are expressed by the legislature. Judicial decisions also show a difference between bail before trial and bail pending appeal.

The first appeal to question the validity of a condition on bail pending appeal, which was authorized by the 1977 statute, was Estrada v. State 594 S.W.2d 445 (Tex. Cr. App. 1980). Estrada appealed from conditions on his bail pending appeal that required him to leave weekly urine samples to be tested and the results reported to the court, to seek drug counseling if his urine-test results indicated the need, to report to a probation officer, to remain in the jurisdiction of the court except by express permission, and to obtain suitable employment. The question was whether the conditions were reasonable and did not constitute an abuse of discretion. The appeal was decided by a panel of three judges of this Court. The panel's judgment affirmed the trial court's decision, upholding eight conditions of bail pending appeal of a conviction for possession of heroin: to commit no crime, to report monthly to the probation officer, to report changes of address or job status, to remain within the county, to work, to submit urine samples to a clinic, to permit the clinic to report urinalysis results to the court, and to attend counseling at the clinic's recommendation. Judge Douglas announced the judgment of the panel and filed an opinion in which no other judge joined; the other two members of the panel concurred only in the result.

In Judge Douglas's opinion, the 1977 statute was constitutional for this reason:

The fountainhead of constitutionality of bail conditions is that they be "based upon standards relevant to the purpose of assuring the presence of (the) defendant." Stack v. Boyle, 342 U.S. 1 (1951). Such conditions may not impinge unreasonably upon rights guaranteed by the Constitution. [Footnote 2:] See, e. g., United States ex rel. Means v. Solem, 440 F. Supp. 544 (U.S. Dist. Ct. for Dist. of S.D. 1977), where the court found a provision that Means could not participate in the activities of the American Indian Movement to be an unreasonable impingement upon his first amendment rights. [End footnote]

We hold that the term "reasonable" in relation to conditions authorized by Article 44.04(c) encompasses these tests, and that the...