COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-022-CR
EX PARTE DAVEY REGENE KINNETT
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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION 1
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Appellant Davey Regene Kinnett appeals the trial court’s revocation of his
appeal bond. Because we hold that the evidence was sufficient to prove that
appellant violated a condition of the appeal bond, and because we further hold
that the trial court did not abuse its discretion by revoking the bond, we affirm.
On November 9, 2006, appellant was convicted of indecency with a child
and sentenced to ten years’ confinement. In accordance with the jury’s
recommendation, the trial court suspended the sentence and placed appellant
1
See T EX. R. A PP. P. 47.4.
on ten years’ community supervision. Appellant was required under the
conditions of community supervision to submit to 180 days’ confinement in the
county jail. On April 26, 2007, the trial court granted appellant’s motion for
bail pending appeal, and it set the appeal bond at $25,000. One of the
conditions of the appeal bond was that appellant “shall have no visitation with
his child(ren) without supervision by Yvonne Kinnett or Dewayne Kinnett and
in no event shall any approved visitation exceed 3 hours duration at a frequency
no[t] to exceed three (3) times per month.” 2 The State filed a motion to revoke
the appeal bond on October 18, 2007, asserting that appellant had violated this
condition by visiting his child without either Yvonne or Dewayne present.
The trial court heard the State’s motion on December 20, 2007.
Appellant’s trial and appellate counsel3 testified that he met with appellant after
appellant bonded out of jail and told appellant that the condition on visitation
contained in the appeal bond was the same as the condition on visitation
2
Yvonne Kinnett is appellant’s ex-wife, and Dewayne Kinnett is
appellant’s brother.
3
Appellant was appointed new counsel for the purpose of this hearing on
the State’s motion to revoke so that he could call his original counsel to appear
as a witness at the hearing.
2
contained in the order imposing conditions of community supervision.4
Furthermore, appellant’s probation officer testified that he met with appellant
on May 2, 2007, and went over the conditions of the appeal bond with
appellant, including the condition on visitation.
Yvonne testified that on two separate occasions, appellant had been
accompanied by Dewayne’s wife, but not by Dewayne himself, when appellant
picked up their six-year-old daughter and took her to Dewayne’s house for his
period of visitation. Dewayne agreed that he had not been present on those
two occasions when appellant picked up the child, but he explained that he had
arrived home only about fifteen to thirty minutes after his wife, appellant, and
the child had gotten there. Dewayne also testified that he never was told that
the visitation was to be supervised by him personally and that he could not
substitute someone in his place; he thought that either he or his wife could
supervise the visitation. Dewayne stated that on the two occasions that his
wife accompanied appellant to pick up appellant’s daughter, that arrangement
4
The visitation condition in the order imposing conditions of community
supervision provided, “No visitation shall be approved without supervision by
Yvonne Kinnett or Dewayne Kinnett and in no event shall any approved
visitation exceed 3 hours duration at a frequency not to exceed three (3) times
per calendar month.” Appellant was specifically made aware of this condition
by the trial court judge at appellant’s November 9, 2006 sentencing hearing.
3
was made by Dewayne for his own convenience, and not at the suggestion or
urging of appellant.
A trial court may admit a defendant who has been convicted of a crime
to reasonable bail pending appeal of the conviction, until the conviction
becomes final. T EX. C ODE C RIM. P ROC. A NN. art. 44.04(c) (Vernon 2006). The
court may impose reasonable conditions on bail pending the finality of the
conviction. Id. On a finding by the court on a preponderance of the evidence
of a violation of a condition, the court may revoke the bail. Id.
Appellant argued at the revocation hearing that the two times he was
accompanied by Dewayne’s wife to pick up the child did not constitute a
violation of the appeal bond visitation condition because it was an “inadvertent,
trivial matter” and was “certainly not any type of violation that would have
occurred in bad faith.” Appellant also argued that it would have been
impractical for him to refuse visitation with his daughter based on the mere fact
that Dewayne’s wife, and not Dewayne himself, would accompany him to pick
up his daughter. Finally, appellant pointed out that the State had presented no
evidence of any problems arising from Dewayne’s wife’s accompanying him on
the two occasions. Nevertheless, the trial court found that appellant had
violated the visitation condition and revoked appellant’s bail.
4
After reviewing the record, we hold that the evidence before the trial
court was amply sufficient to show by a preponderance of the evidence that
appellant violated the condition of the appeal bond requiring all visitation with
his child to be supervised by either Yvonne or Dewayne. Accordingly, the trial
court had discretion to revoke appellant’s bail. See id. A trial court’s ruling
abuses its discretion only when it is made without reference to any guiding
rules or principles, so as to render the conclusion ultimately reached so arbitrary
and unreasonable that it falls outside the zone within which reasonable minds
may differ. See Montgomery v. State, 810 S.W.2d 372, 380, 391 (Tex. Crim.
App. 1990) (op. on reh’g). The trial court explained its ruling as follows:
. . . [W]hat concerns me and what -- the one thing I try to stay
focused on throughout this is the little girl.
And the order that I had entered and ordered to protect this
little girl from what appeared to have been certainly a problem
throughout, but anyway, the Court’s order has to be clear and
specific.
I don’t know how it could have been any more clear than it
was in this instance. The Court’s order is not going to have any
honor or dignity or enforceability if it’s left up to others to interpret.
It’s not going to have any honor or respectability or enforceability
if it’s not followed to a T.
....
It was very clear who was to be present and who was to do
the monitoring. This is not a matter that can be delegated by any
individual involved in -- and reordered.
Accordingly, we cannot say that the trial court’s decision to revoke
appellant’s bail was made without reference to any guiding rules or principles
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or was so arbitrary and unreasonable that it falls outside the zone within which
reasonable minds may differ. See id. at 380, 391. We hold that the trial court
did not abuse its discretion and affirm the trial court’s order cancelling
appellant’s appeal bond.
PER CURIAM
PANEL F: MCCOY, HOLMAN, and GARDNER, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: March 6, 2008
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