Opinion
PD-0564-23
01-31-2024
WILLIAM SOLOMON LEWIS, Appellant v. THE STATE OF TEXAS
ON STATE'S MOTION FOR SUFFICIENT BAIL PENDING PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY
Keller, P.J., delivered the opinion of the Court. Newell, J., concurred.
OPINION
Keller, P.J.
Appellant's mother, who is also the alleged retaliation victim, had previously posted a cash bond of $120,000 for Appellant on appeal. This bond was revoked when Appellant violated the conditions of the bond. After the court of appeals rendered a judgment of acquittal due to a fatal variance, Appellant sought to have the cash bond reinstated, and the court of appeals agreed. After we granted its petition for discretionary review, the State filed a motion "for Sufficient Bail" in this court and asked that we set a bond of $500,000. It is obvious that Appellant's mother's cash bond does not provide an adequate incentive for Appellant to abide by his bond conditions, and the technical nature of the appellate acquittal suggests that Appellant remains a substantial danger to the victim and the community. Article 17.09 authorizes us to redetermine bond upon a finding that the current bond is "insufficient in amount." Consequently we hold the current bond insufficient.
I. BACKGROUND
Appellant was convicted of the offense of retaliation against his mother. Despite being the alleged victim, his mother posted a $120,000 cash bond for him pending appeal. That bond was subsequently revoked because Appellant failed to abide by several conditions of his bond, including repeatedly failing to abide by a curfew and repeatedly failing to call in for drug and alcohol testing.
In its brief, the State cites to portions of the record that it says shows that, while Appellant was out on appellate bond for a prior retaliation offense over a decade ago, he was found with a sawed-off shotgun in his car, $100,000 in cash, and a list of names and addresses, including that of the trial judge. The State further alleges that the appellate bond for the prior retaliation offense was $175,000.
The facts in this paragraph are all attested to in Appellant's motion for the court of appeals to reinstate the $120,000 bond.
The court of appeals delivered an opinion acquitting Appellant due to a fatal variance. The court explained that, although the evidence showed that Appellant committed retaliation, acquittal was required because the indictment alleged the incorrect statutory theory of the offense:
Lewis v. State, 672 S.W.3d 541 (Tex. Crim. App. 2023).
The State proved that appellant committed the offense of retaliation because he threatened to murder his mother on account of her service or status as a prospective witness against him in an upcoming trial. But, the State alleged in the indictment that appellant committed the offense because of his mother's status only as a 'witness,' rather than a 'prospective witness'-a distinct statutory term. This fatal variance between the State's allegation and the proof at trial requires us to reverse his
conviction and render a judgment of acquittal due to insufficient evidence.Appellant subsequently filed a motion for bond with the court of appeals. Appellant requested that the court of appeals reinstate Appellant's bond of $120,000, and he represented that "$120,000 for [his] revoked bond remains in the custody of the Harris County Sheriff's office and is available for reinstatement." The court of appeals granted Appellant's motion, ordering his release "upon his giving good and sufficient bond, signed by appellant as principal and with sureties as required by law, in the sum of $120,000, in the event bond in the amount of $120,000 is not already in the custody of the Harris County Sheriff's Office, pending final disposition." The State later asked the court of appeals to raise the amount of the bond, but that request was denied.
Id. at 544.
He also requested that his conditions be modified to require only that he have no contact with the victim. The court of appeals agreed to this modification of conditions, and the State does not appear to contest that aspect of the court of appeals's order.
Afterwards, the State filed a petition for discretionary review, which we granted. The State subsequently filed its motion for sufficient bail with us and requested a bond in the amount of $500,000. The State contends that we have authority to do so under Article 17.09.
II. ANALYSIS
Under Article 44.04(h), when a defendant's conviction is reversed by a court of appeals, the defendant is entitled to reasonable bail pending a final determination of the appeal by this Court on discretionary review. "If the defendant requests bail before a petition for discretionary review has been filed, the Court of Appeals shall determine the amount of bail." If the defendant requests bail after a PDR is filed, then this Court decides the amount of bail.
Id.
Id.
In Murdock v. State, we held that a defendant may not have bail set by this Court under Article 44.04(h) if he applied to the court of appeals under that provision and the court of appeals set his bail. We explained that the statute was not designed "to provide the defendant with a way to apply for bail twice."
870 S.W.2d 41, 43 (Tex. Crim. App. 1993).
Id.
But Murdock does not answer the question of whether this Court can later decide that the amount of bail set by the court of appeals was insufficient. Article 17.09 provides that a bond can be increased, by the court in which the case is pending, if the bond is deemed to be "insufficient in amount":
[W]henever, during the course of the action, the judge or magistrate in whose court such action is pending finds that the bond is . . . insufficient in amount . . ., such judge or magistrate may . . . order the accused to be rearrested, and require the accused to give another bond in such amount as the judge or magistrate may deem proper.Although Article 17.09 uses singular language in referring to "the judge," it does not specifically limit its application to the trial courts. In fact, Article 17.38 provides that chapter 17 applies to all bail undertakings:
The rules in this Chapter respecting bail are applicable to all such undertakings when entered into in the course of a criminal action, whether before or after an indictment, in every case where authority is given to any court, judge, magistrate, or other officer, to require bail of a person accused of an offense, or of a witness in a criminal
action.And we have construed a predecessor to Article 17.38 as applying the chapter's provisions to "all bail bonds," including those issued by an appellate court. Moreover, once a PDR has been filed, the court of appeals loses jurisdiction over the case, including any power to address bail questions.So this Court has the power, once a PDR is pending here, to determine whether the bail on appeal is insufficient in amount.
Tex. Code Crim. Proc. art. 17.09, § 3 (ellipsis and brackets inserted).
Id. art. 17.38 (emphasis added).
Ex parte Cobb, 69 Tex. Crim. 473, 474 (1913) (discussing prior Article 322).
Vidales v. State, 471 S.W.3d 457, 458 (Tex. Crim. App. 2015) ("The Court of Appeals' plenary jurisdiction continues after a petition for review is filed in the Supreme Court, but there is no corresponding rule for continuing jurisdiction after the filing of a petition for review in this When a petition for discretionary review is filed with this Court, the appellate court loses authority to issue an opinion.") (citation omitted).
See Murdock, 870 S.W.2d at 42 (pointing out that Article 44.04(h) "provides a forum in the Court of Appeals when that court still has jurisdiction over the case - before a petition has been filed").
And it appears to be rather obvious that the amount of bail here is insufficient. That amount did not prevent Appellant from repeatedly violating his conditions when he was first granted bail on appeal. Moreover, a $120,000 cash bond supplied by the victim does not seem like a particularly strong incentive for Appellant to abide by his conditions. If he violates a bond condition, the victim, not Appellant, is the one who suffers the financial hit. And the offense for which Appellant was convicted was retaliation against the victim. Causing the victim to lose $120,000 could actually be a substantial way to retaliate against her. But part of the point of the bond is to protect the victim. It would be ironic for the victim to lose her $120,000 because Appellant violated the condition of his bond that prohibits him from contacting her. And because Appellant is prohibited from having contact with the victim-which even his appellate attorney recognizes has to happen-the victim is in no position to exert any influence over him to abide by his bond conditions.
Appellant contended in his motion before the court of appeals that he failed to call in because he did not have access to a telephone. That excuse might have been rejected since his bail was revoked. Regardless, that excuse does not explain his curfew violations.
Increasing Appellant's bond would likely require him to resort to a bail bondsman to make bail. That would inject a third party who would have an incentive to ensure that Appellant behaves, and it would impose some financial liability on Appellant that might serve as an incentive for him.
Moreover, although the court of appeals acquitted Appellant, it acknowledged that the evidence showed him guilty of retaliation, albeit under an unpled theory, and so Appellant's dangerousness to the victim cannot be discounted.
We find the current bond set by the court of appeals to be insufficient, and we set bond at $500,000.