EX PARTE McLENDON
356 S.W.3d 541
Tex. App.2011Background
- McLendon was convicted of possession of methamphetamine less than one gram, a state jail felony, and sentenced to two years' confinement.
- She, being indigent, moved for reasonable bail pending appeal seeking either release on existing bail or no more than $2,500 until conviction becomes final.
- The trial court set bond at $50,000 with weekly drug testing as a condition of bond.
- McLendon appealed, arguing the bond amount was unreasonable and that weekly drug testing was beyond the court's authority; she did not preserve the testing issue by objection in the trial court.
- The court applied Article 44.04 and Article 17.15 to review the bond, considering offense nature, circumstances, ability to make bail, and risk/future safety, among other factors.
- The court held the bond amount reasonable and affirmed the judgment; a dissent criticized the bond as unreasonable and urged a lower amount.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McLendon's complaint about testing was preserved | McLendon argued for appeal on testing condition. | State contends error not preserved due to lack of trial objection. | Error not preserved; testing issue overruled. |
| Whether the bond amount was reasonable pending appeal | Bond set at $50,000 is excessive given circumstances. | Bond amount within court's discretion under Tex. Code Crim. Proc. Art. 17.15, guided by offense nature and defendant's ties/abailability. | Bond amount reasonable; affirmed. |
Key Cases Cited
- Ex parte Rubac, 611 S.W.2d 848 (Tex.Crim.App. [Panel Op.] 1981) (considered factors for bail appeals including work record and community ties)
- Ex parte Kimes, 872 S.W.2d 700 (Tex.Crim.App.1993) (burden on writ applicant to prove facts entitling relief)
- Ex parte Charlesworth, 600 S.W.2d 316 (Tex.Crim.App. [Panel Op.] 1980) (preservation of error in bail matters)
- Ex parte Davila, 623 S.W.2d 408 (Tex.Crim. App. [Panel Op.] 1981) (nature of offense and circumstances critical to bail)
- Montgomery v. State, 810 S.W.2d 372 (Tex. Crim.App.1990) (abuse of discretion standard in bail review)