*1 issue? All special issues? Just how
much error will capital we allow a defen-
dant to “invite?” The sanction here is the
harshest, the room for error nil. We can- shirk our constitutional duties hid-
ing behind the cloak of “invited error.”
Therefore, I dissent. Houston, Hennessy,
Matt for Appellant. Paul, Atty., Austin, Matthew State’s State. parte Philip ANDERER, Martin
Appellant. No. 0330-00. WOMACK, J., delivered Court, KELLER, P.J., in which Texas, Court of Criminal KEASLER, HERVEY, HOLCOMB, and En Banc. JJ., COCHRAN, joined. Nov. question is whether a condition that appellant operate a motor vehicle one the “reasonable conditions on bail pending the finality his conviction” that imposed on bail pending appeal of conviction. See Tex.Code Crim. Proc. art.
I. appellant was indicted for commit- criminally ting negligent on May homicide offense, 1998. About this the habeas- corpus that is record now before us dis- closes that the driving his commercial vehicle when he killed the victim. trial the appellant Before was re- $2,000 A jury leased cash bond. him guilty found of the criminally negli- gent a punishment homicide assessed imprisonment of six years’ on June immediately He gave appeal. notice of $50,000 The district court set his bail at imposed on the bail the condition that the appellant operate type was “not to of motor vehicle whatsoever.” *2 399 on of a condition held that the a writ of habe- appellant applied for the is “to assure pending appeal on ground the condition corpus her conviction if his or unreasonable, a article of in violation of was final,” and that becomes process.” and “due The district th[at] nothing to advance “does hearing. this case writ and held a court issued the if the said that The Court purpose.”2 the condition testified appellant to believe good cause court had district engaging him from prevented his or was not appear would appellant “driveway road selling his business offense, “the another base,” likely to commit in his truck. he delivered own which that, deny appeal an bond is to during pendency proper action He admitted to custo- the defendant criminally negligent ] and commit [sic the indictment for 3 homicide, review. “inju- dy.” granted We he was involved another operating a commercial ry accident” while court denied habeas- The district
vehicle. II. relief, notice corpus gave and the turns on the in this case The issue appeal. condi- phrase, “reasonable meaning finality [the tions on bail A panel divided conviction,” in article habeas-corpus defendant’s] court’s reversed the district State, with always, begin our consideration judgment. Anderer 7 245 As we 1999).1 It of the statute.4 language (Tex.App [14th Dist.] . —Houston felony “(c) appeal any Pending from appeal applica 1. Because this is an from an described than conviction corpus, proper conviction other tion for of habeas writ section, (b) the trial of this Subsection style parte parte See Ex is “Ex Anderer." may deny the defen- bail and commit Brashear, (Tex.Cr. court 985 S.W.2d n. custody good cause if there then exists dant to Potter, accord, App.1998); ap- the defendant would believe that (Tex.Cr.App.2000). n. or is pear became final when his conviction on another offense while to commit Anderer, 7 S.W.3d at 246. bail, large at permit the defendant remain bail, bail, or, existing not then on on if Id. at n. 2. bail until his convic- admit him to reasonable may impose final. The court tion becomes pending appeal 4. "Bond pending the fi- on bail reasonable conditions "(a) Pending any mo- the determination of finding by nality of conviction. On any appeal tion for new trial or the from the evidence of preponderance on a court conviction, is en- misdemeanor condition, may revoke the court violation of bail, to be released on reasonable and titled the bail. charged is conviction, a defendant with a misdemeanor "(d) pending deter- either After bail, convicted, appeals on is that convic- pend- any motion for new trial or mination of tion, discharged con- his bond is not until his appeal, ing final determination to a is final or in the case an viction or may increase in which trial had held, an a trial de he files prop- court where novo as deems amount of decrease the required by er, bond as this code the motion upon its own motion or either appeal from the conviction. or of the defendant. of the State "(b) "(e) not be released Any The defendant into after conviction bail entered any felony approved from the sureties on bail must equals where the trial was had. Bail the court where require- substantially meets the years confinement or where exceeds sufficient if into be entered been convicted of an offense of this code defendant has ments 42.12, 3g(a)(l), given of court. term listed under Section Article "(f) custody immediately placed event shall the defendant but shall from their be released discharged. sureties on bond and the bail Article 44.04 of the Code of Criminal prise appeals convictions in Procedure identifies seven con- classes of which the punishment is less than 10 classes, victed As to years’ defendants. four confinement. In such cases “the trial court has no discretion. trial court may”: *3 (5) classes,
In two of “deny these “The bail and commit defendant the defen- may custody not be dant to good released on bail the there then exists ..., immediately but shall cause to believe the placed be defendant custody appear discharged”:5 would not when his the conviction or became final to commit an- (1) punishment “where the equals or bail;” other while offense on confinement,”6 years’
exceeds 10 (2) (6) “where the defendant has been “permit the defendant to remain convicted of an offense listed under large bail,”11 Sec- on the existing the 3g(a)(l), tion Article 42.12.”7 amount of which the court increase decrease,12 or In two other classes convicted defendant is entitled to on release bail: (7) “if not then on him admit
(3) misdemeanant, who reasonable bail until his conviction “is enti- be- bail,”8 tled on comes final.”13 released reasonable (4) the felon whose conviction has As for the defendant whom the trial by been reversed decision of a court of class, in the or finds sixth seventh appeals, who “is entitled to on release may impose “The court reasonable condi- bail, regardless length of the on bail pending finality of his term imprisonment.”9 by conviction. a finding On the court on a In the three remaining classes preponderance of the evidence of a viola- court has condition, discretion. These classes corn- tion of a the court revoke liability on 209(c) such bond or bonds until de- by Cr.App. as defined Tex. R. ." Tex placed custody fendant is of the sheriff. Code Crim Pro. art. 44.04. "(g) right Court 44.04(b). 5. Tex.Code Crim Proc. art. Appeals expressly of this state is accorded any judgment defendant for a review of 6. Ibid. hereunder, order made and said shall given preference by appellate court. 7. See ibid. The that are offenses listed in "(h) If a reversed a deci- 44.12, murder, 3g(a)(l) capital article sec. are defendant, Appeals, sion of Court of if in murder, contact, indecency with a child custody, is entitled release on reasonable aggravated kidnapping, aggravated sexual as- bail, regardless length of term of im- sault, assault, aggravated robbery, sexual prisonment, pending final determination of an Drug certain second offenses under the Free appeal by the state or the defendant aon Zones statute. discretionary for motion review. If the defen- requests petition dant before for discre- id., 44.04(a). 8. See art. filed, tionary review has been Court Appeals shall determine the amount of bail. id., 44.04(h). 9. See art. requests If petition bail after a filed, discretionary been review has Id., 44.04(c). art. Court of Criminal shall determine amount of bail. The sureties on bail must 11. Ibid. approved by the court where the trial was
had. The id., defendant's to release under 44.04(d). 12. See art. immediately subsection attaches Id., ruling Appeals’ issuance of the final art. was the trial court’s discretion is in appellant in this ease the bail.”14 The statute, controlling article enlarged. the sixth class. Procedure, of the Code of Criminal 44.04 deny discretion to Judicial concept of a to remove amended was conditional, arrived to make it appeal, or pending appeal.18 to bail felon’s entitlement 1907, a years Before ago. than 15 less discretion, even given court was The trial who was convicted of a defendant was less than when eligible for bail. The statutes impose reasonable years, deny bail or to appeals “Where required, on bail.19 committed felony, case of he shall be restricted amendment In 1999 another jail [appellate until the decision *4 appeal by pending for bail eligibility court].”15 in which the lowering ceiling cases by years was less than punishment pend- In 1907 a statute authorized “3g” offenses.20 eliminating case, felony gave in a ing appeal but only to amount. trial court discretion time, giv- were magistrates theAt same was convicted of a Any defendant who impose reasonable condi- authority en punishment did not ex- felony, pre-trial and whose bail. “To secure defen- tions on confinement, trial, magistrate was enti- at years’ ceed fifteen dant’s attendance of reenactment, reasonable condition impose any to bail.16 In its 1965 tled of safety of a victim read, bond related “Any who is con- statute safety or to the alleged offense misdemeanor, or who is convict- victed community.”21 and whose ed of a fine or confinement not to assessed at treat will be noted that statutes It both, fifteen shall be enti- years exceed differently pre-trial conditions on bond to bail under the rules set forth tled appeal. A pending on bail from conditions disposition his motion Chapter pending must meet pre-trial bond trial, disposi- any, pending for new if “rea- only Not must it be three standards: sonable,” any, and until be to “secure a appeal, tion of his but also must trial,” also defendant’s attendance conviction becomes final.”17 1965, Act of 17. Code of Criminal Procedure 14. Ibid. 722, 44.04(a), R.S., 1,§ Leg., ch. art. 59th 2, 317, Laws, p. 15. Article 721 of Code of Criminal Pro- vol. 1965 Tex. Gen. said, 25, added), May (emphasis of 1856 “Where the defendant Act of cedure amended ., 234, 1977, felony, Leg., he be 1977 Tex. appeals in case of shall R.S ch. 65th committed Jail until decision Laws 636. Gen. Supreme can made." Article 841 1879, 25, 1977, R.S., May Leg., of the 65th of the Code of and article 876 18. See Act 234, said, 1895, (amending Laws 636 "Where the defendant ch. 1977 Tex. Gen. Code of 44.04). felony, he appeals any case of shall be TexCode Crim. Proc. art. jail until the decision committed 19. Ibid. Court of Criminal can made received.” 18, 1999, R.S., Leg., 76th See Act of June 20. 546, For a Gen. Laws 3042. defendants was ch. 1999 Tex. 16. The to bail for such 1907, offenses, 5, "3g” supra n. 7. 30th see the Act of March list of the created R.S., 19, 3,§ Leg., Tex. Gen. Laws ch. R.S., 18, 1999, 31, Leg., 76th ch. Act of June the Codes of Criminal and reenacted in 17.40(a), (art. (art. 901) § Gen. Laws art. 1999 Tex. and 1925 of 1911 Procedure 815). safety related to alleged crime, heroin: to commit no report victim or community. monthly officer, latter two the probation report imposed standards were not on status, the trial changes job of address or to remain court’s of bail pending appeal, work, conditions within county, to submit urine only which must clinic, be “reasonable.” samples permit to a the clinic to report urinalysis court, results to the We have not significance considered the counseling attend at the clinic’s recom- legislature’s decision to impose Judge Douglas mendation. announced the pre-trial three standards on judgment of panel and filed an leaving only bonds while one standard for joined; which no other judge the other conditions on appeal. two members of the panel concurred in the result. III. In Judge Douglas’s opinion, the 1977 previous
Our decisions have assumed statute was constitutional for this reason: legislature standard the chose fountainhead pre-trial constitutionality for conditions on bonds in 1999 bail conditions applied also be “based to conditions on *5 upon standards to appeal under 1977 relevant The statute. dif- (the) presence ference defen- between the statutes now demon- Boyle, dant.” Stack v. 342 72 strates that the U.S. standards differ- (1951). ent, S.Ct. 96 L.Ed. at least Such condi- are expressed by the impinge unreasonably legislature. Judicial decisions also show a guaranteed rights by the difference between bail Constitu- before trial and See, tion. g., [Footnote bail e. United pending appeal. 2:] Solem, States ex rel. Means v. question The first the validity (U.S.DistCt. F.Supp. for Dist. of of a condition bail pending appeal, S.D.,1977), where court a pro- found by statute, which was authorized the 1977 vision that participate Means could not was Estrada v. State S.W.2d in the activities of the American Indian Cr.App.1980). Estrada appealed from Movement be an im- unreasonable conditions on pending appeal his bail pingement upon his first amendment him required to leave urine weekly sam rights. [End footnote] ples tested and the reported results We hold the term “reasonable” in court, drug counseling seek if by relation to conditions authorized Arti- need, urine-test results indicated the tests, cle encompasses these report probation officer, to a remain in power impose of the court to jurisdiction except by ex on appeal reasonable conditions bonds is press permission, and to obtain suitable repugnant to the Constitution of the employment. question was whether United States or of Texas.22 the conditions were reasonable and did not an constitute abuse of ap discretion. The interpreting incorpo- “reasonable” to peal was a panel decided of three rate the test that a Stack condition be judges this The panel’s judg Court. relevant decision, trial,
ment trial affirmed the court’s Judge defendant for Douglas’s opin- upholding eight conditions of ion did not take note of fundamental differ- for possession conviction ences between before trial and bail Estrada, Eighth pose is “excessive” under conviction. “Once the defendant’s after Amendment.24 and he has been convict- completed trial is release, respect to ed, with his situation considerations many of the Court’s How changes an appeal, if he to take plans even relevant to Estrada’s were Stack significantly.”23 pending appeal? (cid:127) for a “a arrested person Stack of bail before involved the amount Stack was a Estrada offense.” non-capital Supreme charges.
trial on federal anof offense. person convicted said: (cid:127) from a right A to bail Judiciary passage of the Act From the in the recognized is not conviction Rules of present 1789 to the Federal United States25 Constitution Procedure, law has un- federal Criminal Stack’s in the Texas Constitution.26 provided person that a ar- equivocally federal law that case was controlled all always provided persons non-capital offense shall be has rested for non-capital shall for a offense arrested right This traditional to bail. admitted Texas statutes admitted to bail. permits before conviction to freedom all provided that convicted have never defense, unhampered preparation pend- to bail felons shall be admitted the infliction of prevent and serves ing appeal. prior to Unless conviction. (cid:127) right to enjoyed “the traditional Stack pre- bail before per- [which] freedom before served, innocence, presumption of a unhampered preparation mits the struggle, after centuries of secured defense, the in- and serves *6 meaning. its would lose to convic- punishment prior fliction of release before trial is right is not Freedom after conviction tion.” giving the accused’s conditioned traditional, necessary is and it adequate assurance that he stand will Rather of a defense.27 preparation submit to sentence if found trial and the infliction serving than guilty. practice Like the ancient se- conviction, bail punishment before curing responsible persons the oaths of delays infliction of accused, for the to stand as sureties after rehabilitation punishment and requiring modern bail bond practice conviction. subject money (cid:127) a sum of deposit Stack, before trial right For to bail
to forfeiture
as additional assur-
serves
mean-
preserving the
was essential to
Bail
presence
ance of the
of an accused.
of innocence.
presumption
ing
longer
amount
no
figure higher
presumption
applied
at a
than an
That
set
Estrada,
pur-
a convicted felon.28
reasonably calculated to fulfill this
936,
Wainwright,
So.2d
941
27. Gallie v.
23.
R.
3 Criminal
Wayne
LaFave,
al„
et
Proce-
(2d
(Fla.1978) ("the
12.4(d)
ed.2000).
presumption of innocence
§
dure
participate
preparation
3,
Stack,
342 U.S. at
S.Ct.
a fair trial are obvious-
of a defense
ensure
present
has al-
ly not
where
defendant
Hurston,
U.S.
14 S.Ct.
25. McKane v.
convicted”).
ready been tried and
Texas,
(1894); Ballard v.
ance of his in court for trial. of a bail light condition must be done in After appeal, appearance no in court of its purpose, to assure the place majority takes the vast the defendant. In each case individual cases. Rather the clerk the district where conditions are imposed, those court fulfills a ministerial duty to issue conditions must strike a balance be- a capias for the arrest of the defen- society’s tween in assuring interest dant, is which executed the sheriffs appear will defendant if and when placing jail.29 Bail his conviction becomes final and de- pending appeal only is an additional fendant’s in remaining interest free assurance that will pending appeal.30 available to be arrested. again ignored Once we be- difference None of underlay the considerations that tween in remaining defendant’s interest Stack be- Supreme Court’s trial, decision right recog- free before is a which applicable case, ing to Estrada’s give nized the Texas Constitution31 and support Judge Douglas’s conclusion which important furthers ob- constitutional that Texas pend- court’s condition jectives, and a convicted defendant’s inter- ing appeal “reasonable” it meets est in remaining during free appeal, which federal standards for bail before convic- right32 constitutional and which is tion. not necessary after conviction. later, years Thereafter,
Six
this Court elaborated on
this Court and the courts of
Estrada
by saying:
the Estrada stan-
appeals
employed
have
proper
29."RULE 51. ENFORCEMENT OF JUDG-
delivered to
as
authorities
directed
MENTS AFTER MANDATE...
the sentence.
"(3) Sheriff's Duties. The sheriff must
"51.2. Criminal Cases
promptly
capias
execute the
as
directed.
"When the trial court clerk receives the
notify
sheriff must
the trial court clerk and
mandate,
appellate
judgment
court’s
must
appellate
clerk
has
when the mandate
enforced
follows: ...
been carried
out
executed.”
Tex.R.App.
*7
P.
"(b)
Affirmance;
Judgment of
Defendant Not
51.
Custody.
in
required
A Texas court could have
Estrada
"(1) Capias
judgment
to
If the
Be Issued.
appear
appellate
to
after the
court issued its
impris-
contains a
of
sentence
confinement or
affirmance,
State,
Yarbrough
mandate of
see
v.
suspended,
onment that has not been
the trial
(Tex.Cr.App.1985),
incorporated
cate-
capital cases and
few
Except for
on bail
construing “reasonable conditions
felonies,36 every
accused
person
gories of
in Article
cannot
pending [appeal]”
bail.
pre-trial
has the
of a
above,
before
said
bail
and its As we have
as correct.34 Estrada
regarded
of a
unhampered preparation
permits the
for
guidance
valuable
progeny35 provide
defense,
inflic-
and serves
bonds,
pre-trial
conditions on
evaluating
prior
conviction.
tion of
misleading
to conditions on
but
are
as
weight in ev-
great
interests are of
These
pending appeal.
ery
setting
pre-
case. Yet
33.See,
State,
pay
void because
e.g.,
costs of court was
Dallas v.
After of right conviction the to bail is af- cases, and, ing public safety. forded in all misdemeanor sub- ject conditions, in felony in which cases In a case in which a defendant has been years’ does not exceed 10 killing by driving convicted of an individual confinement. The interest is his commercial vehicle criminal negli- with furthered a defendant’s to remain gence, and in which he was involved in during free is pro- the interest injury-accident another while driving tecting the defendant an erroneous trial, commercial vehicle before a condition judgment. The issue is whether this that he not operate a motor vehicle while of appellants class should denied the free on bail pending appeal has the pur- right to remain free on is appeal; only, pose protecting the public safety. It is while are free on appeal, what condi- not unreasonable purpose, because tions on their freedom are reasonable? and it is not unreasonable on other Against the interest of such appellants ground. must be balanced the of society interest judgment of the Fourteenth Court enforcing penal among laws. Chief of Appeals is reversed. these, in the who cases those have been felonies, pub- convicted is “to insure the (A) PRICE, J., safety
lic filed a through: dissenting the deterrent influ- (B) penalties JOHNSON, JJ., ence of the ... provided; the which MEYERS joined. rehabilitation of those convicted of viola- 37. See Tex.Code Crim. Proc. art. 17.15(5). "(C) punishment may necessaiy such prevent recurrence of criminal be- havior; id., 38. See 17.15(3). art. "(2) by grading definition and of offenses to give warning prohibited fair is what violation; id., 17.40(a). 39. See art. consequences "(3) prescribe penalties propor- that are "Objectives of Code tionate to the seriousness offenses general purposes "The of this code are to permit recognition of differences rehabili- system prohibitions, penalties, establish possibilities among tation individual offend- and correctional measures deal with con- ers; unjustifiably inexcusably duct that causes "(4) safeguard conduct that without or pub- threatens criminal; harm those individual guilt from condemnation as protection lic ap- interests for which state "(5) guide the exercise of limit offi- end, propriate. provisions To this of this law cial discretion in enforcement *9 intended, construed, code are and shall be arbitrary persons oppressive treatment of offenses; following objectives: accused, achieve the suspected, or convicted of "(1) public safety through: to insure the "(A) "(6) penalties the deterrent scope influence define of state interest in provided; against specific hereinafter law enforcement offenses and "(B) systematize the rehabilitation convicted of those the exercise state criminal code; jurisdiction." § violations of this 1.02. Code Tex. Penal
407
in
power
inherent
PRICE, J.,
dissent,
the trial court has
trary
in which
filed
JOHNSON, J.J.,
joined.
felony appeals
impose
misdemeanor and
MEYERS
directly or indirect-
conditions on bail that
lip
stare
pay
We often
service to
decisis.
assuring
ly
purpose
to the
relate
saywe
it
opinions,
In our
“Often
is better
Id. at
appearance.”
continued
defendant’s
right.”
v.
to be consistent
than
Malik
State,
234,
(Tex.Crim.App.
953 S.W.2d
236
for review the
ground
In its second
1997).
case, majority
In this
overrules
an
bond
urges
appellate
us to hold
State
result
prior
our
caselaw and achieves a
protecting
rationally related to
right.
nor
that
neither consistent
community is
of a victim or
safety
of Criminal Procedure Arti-
Texas Code
meaning
article
reasonable within
cle
states:
argues
policy
State
any felony
con-
Pending
longer
no
exists
rationale for Estrada
...,
may deny
the trial court
viction
court should be
permitted
commit
to custo-
bail and
or com-
safety of the victim
consider the
dy
good
there
cause to
then exists
if
it
munity when
assesses
not ap-
believe
would
an
bond.
State relies on
pear when his conviction became final
Supreme
States
in
United
Court’s
or is
to commit another offense
Braunskill,
770, 107
Hilton v.
481 U.S.
bail, permit
while on
the defendant to
(1987),
2113,
sup-
as
S.Ct.
An
should
actually
in
case
diminishes
imposed
inter-
this
summary
prior
of our
cases
with a
Like the
ability to work.
condi-
the appellant’s
preting
reasonableness
Estrada,
the de-
Dallas and Valenci-
appeal.
imposed
In
ano,
possession
helps
how
condition
was convicted of
I fail to
this
fendant
see
if
following
presence
appellant’s
We concluded that the
heroin.
secure
reasonable,
in other
final.
conditions were
when his conviction becomes
Cf.
words,
rationally related to
that it
(stating
at 770
Speth, 939 S.W.2d
(1)
appearance:
requiring
defendant’s
the defen-
prohibit
was unreasonable
crimes; (2)
any
not commit
chiropractor pend-
defendant
working as a
dant from
pro-
to a
requiring
report
the defendant to
for aggravated
ing
his
(3)
officer;
requiring
officer).
the defendant
bation
I understand
a police
assault on
address;
change
job
report any
or
trial court’s effort
with the
sympathize
(4)
the defendant
to remain
requiring
appellant
crimes
future
county
given permission
within the
unless
the ap-
victims of
protect potential
and to
(5)
leave;
requiring
accomplished by
But
can
pellant.
this
(6)
defen-
faithfully;
requiring
work
explained
I
denying
completely. As
provide
samples
urine
to make
dant
earlier,
presume
this is
we should
illegal
using
drugs
sure he was not
legislature intended.
what the
allowing
report
the clinic to
the result
proge-
I
and its
would hold that Estrada
(7)
officer;
probation
requiring
controlling
The con-
ny
case law.
are still
counseling
drug
defendant to attend
once
was not
imposed
appellant
dition
on the
Estra-
began
a month
he
to backslide.
re-
to secure the defendant’s
da,
out interest assur- Valenciano,
ing way.” at 525. S.W.2d Dallas, the defendant was convicted Tirey SMITH, Appellant, Glen animals, cruelty condition of judge prohibited training the trial kenneling dogs. explained that the We of Texas. The STATE securing condition was relevant No. 1856-00. Dallas, presence in court. defendant’s of Texas. Criminal case was convicted 28, 2001. Nov. criminally negligent homicide. he not imposed a bail condition that judge appeal. vehicle
operate motor per- is not similar to those
This condition