Ex parte Harold Leo LeBLANC
No. 66468
Court of Criminal Appeals of Texas, Panel No. 3
April 22, 1981
Rehearing Denied May 27, 1981
615 S.W.2d 724
I respectfully dissent.
Before the court en banc.
CLINTON, Judge, concurring on Overruling Without Written Opinion Appellant‘s Motion for Leave to File Motion for Rehearing.
I cоncur in the action of the Court only because it is uncontroverted that upon being stopped for speeding appellant failed to produce a valid driver‘s license and thereby gave cаuse for a custodial arrest.
Joe B. Goodwin, Beaumont, for appellant.
James S. McGrath, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, Robert Huttash, State‘s Atty., Austin, for the State.
Before TOM G. DAVIS, McCORMICK and TEAGUE, JJ.
OPINION
TOM G. DAVIS, Judge.
Appeal is taken from an order entered in a habeas corpus proceeding in the Criminal Distriсt Court of Jefferson County denying appellant bail pending appeal.
The record reflects that on June 6, 1980, appellant received a ten year sentence as a result of his convictiоn for burglary of a building. Notice of appeal was given and the court set bail pending appeal at $15,000.00. On September 26, 1980, the court held a hearing and rescinded its previous order allowing bail pending appeal. The court‘s action was based upon its finding that if appellant were released on bail pending appeal, he would be likely to commit another offense while on bail. See
At thе hearing, Twalla LeBlanc testified that she was the wife of Hal Leo LeBlanc. She related that she was testifying voluntarily against her husband. LeBlanc stated that on August 31, 1980, her husband tried to stick the sharp end of a brokеn mop handle in her throat. She further related that he hit her in the face, chest and head with his fists. LeBlanc testified that she was in agreement with the State in trying to get “Hal” moved on to Huntsville “because he‘s bad.”
Barbara LeBlanc testified that she was the aunt of Twalla LeBlanc. She related that Twalla came to her home on the night of August 31, 1980, and had a black eye, knot on her back and bloody ear. LeBlanc stаted that while Twalla was at her home,
Initially, appellant contends the court was without authority tо rescind its previous order allowing bond because “no conditions were placed on the defendant at the time of making bond.” Without such conditions having been previously set, appellant maintains the court had no authority to vacate the previous order allowing bond pending appeal.
“Pending the appeal from any felony conviction where the punishment does not exceed 15 yеars confinement, 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 becаme 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. Thе 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 conditiоn, the court may revoke the bail.”
In Estrada v. State, Tex.Cr.App., 594 S.W.2d 445, the defendant complained of conditions the court had placed on his bond pending appeal under the provisions of
We thus reject appellant‘s contention that a court may rescind an earlier order allowing bail pending appeal only if conditions were set on that bail and one of the cоnditions was shown to have been violated. The plain wording of the statute empowers a court to deny bail during the pendency of an appeal when there is good cause to believe that а defendant would not appear when his conviction becomes final or is likely to commit another offense while on bail. Thus, in Putnam v. State, supra, the action of the court in rescinding an earlier order allowing bond was аffirmed by this Court although no conditions had been placed on the appeal bond.
Appellant next contends the court erred in permitting his wife to testify against him. He maintains that she was disqualified as a witness undеr
The instant proceeding was a hearing before the court without the intervention of a jury. In such a proceeding, it is presumed that the court disregarded any inadmissible evidence which was admitted. Hernandez v. State, Tex.Cr.App., 556 S.W.2d 337; Kimithi v. State, Tex.Cr.App., 546 S.W.2d 323. Thus, assuming arguеndo that the testimony of Twalla LeBlanc was inadmissible under
Finally, appellant contends that the evidence is insufficient to show that he was the рerson who assaulted LeBlanc. This contention is based upon the fact that appellant was never specifically identified as the husband of Twalla LeBlanc.
The record reflects that this heаring was held before the same judge who presided over appellant‘s trial for burglary. Appellant was the only party tried for the burglary and the only party to have bail pending appeal denied. This Court recently considered a similar issue in Rohlfing v. State, 612 S.W.2d 598 (1981) and stated:
“The record bears out that appellant and no other was on trial in this cause. No objection was made by appellant to the employed identification procedure. If it be appellant‘s contention that another person, and not he, was identified by the State‘s witnesses, and he does not so claim in his brief, we believe it was incumbent upon him, by objection to the identification procedure employed or by an offer of a bill of exception detailing the circumstances which would reflect any possible confusion or misidentification in the in-court identification process, to preserve the issue by making same part of the record. Appellant‘s contention is, therefore, overruled.”
We conclude the evidence is sufficient to shоw that appellant is LeBlanc‘s husband. This contention is without merit.
Under the foregoing evidence we conclude that the trial court did not abuse its discretion in concluding that appellant is likely to commit another offense while on bail and rescinding the earlier order allowing appeal bond. No error is shown in the court‘s denial of bail for appellant pending appeal.
The judgment is affirmed.
Because I do not choose to read
I do not read this statute to allow a trial court to grant an appeal bond and then, at some later date, to rescind or revoke a posted bail bоnd for the reasons given here. I believe that what the statute provides for is that if a defendant is eligible for bail, but before he posts bail, the trial court determines there 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, then it may deny bail, ab initio, subject to its decision being reviewed by this Court. If the dеfendant is eligible for bail, and bail is set, prior to the posting of bail the trial court may impose reasonable conditions pending the finality of his conviction, subject also to its decision in this regard being reviеwed by this Court.
However, I do not read this statute to mean that once bail is set and posted then, at a later date, the trial court may rescind or revoke the posted bail bond. If conditions are set on an appeal bond and it is shown the defendant violated one or more of those conditions, then, of course, the trial court could rescind and revoke the posted bail bond, subject also to its decision in this regard being reviewed by this Court. However, in my interpretation of the statute, the court has the inherent power to order the accused to be rearrested, and require the defendant to give another bond in such amount as the trial court may deem proper if it finds from sufficient evidence, after a hearing, that the bail bond is defective, insufficient in amount, or that the sureties, if any, are no longer acceptable. However, I find no authority in the statute, in law, or under the facts here for the trial court to rescind its previous order allowing bail pending appeal and revoking appellant‘s posted bail.
I, therefore, respectfully dissent.