IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
TO FILE PETITION FOR WRIT OF CERTIORARI
MCLENNAN COUNTY
DISSENTING STATEMENT
Because the State has failed to meet the requirements of Texas Rules of Appellate Procedure 18.2, I dissent from the order granting a stay of the mandate. See Tex. R. App. P. 18.2. Rule 18.2 states,
A party may move to stay issuance of the mandate pending the United States Supreme Court's disposition of a petition for writ of certiorari. The motion must state the grounds for the petition and the circumstances requiring the stay. The appellate court authorized to issue the mandate may grant a stay if it finds that the grounds are substantial and that the petitioner or others would incur serious hardship from the mandate's issuance if the United States Supreme Court were later to reverse the judgment. In a criminal case, the stay will last for no more than 90 days, to permit the timely filing of a petition for writ of certiorari. After that period and others mentioned in this rule expire, the mandate will issue.
Id.
The State's motion fails to show how the State would incur serious hardship if the mandate was issued in this case. The State suggests that applicant would have "incentive to flee in the event of an adverse decision by the Supreme Court." But this argument is logically flawed in that it is highly unlikely that the Supreme Court will issue its decision, favorable or not, in the 90 days that applicant can be held under Rule 18.2, particularly in light of the fact that the State has not yet filed a petition for writ of certiorari in the Supreme Court. Furthermore, if the risk of flight is truly the concern that motivates the continued incarceration or conditional release of appellant, then no bond should be given to the appellant.
In this case, our Court has determined that the law prohibits appellant's continued incarceration for crimes for which the statute of limitations has run. See Tex. Code Crim. Proc. art. 12.01. Under our Court's judgment, he is legally absolved of these convictions. The mandate executing our judgment should have run by now, which means appellant is entitled to be released from prison for these convictions that have been reversed by us, our State's highest court for criminal appeals. See Tex. R. App. P. 65.2. For our Court to now issue an order that requires his continued incarceration unless he posts a $60,000 bond, a bond that a person currently incarcerated in the Texas penitentiary is highly unlikely to be able to make, is effectively to order confinement for someone we have determined is legally absolved of any crime. Moreover, nothing in Rule 18.2 authorizes a defendant's conditional release on bail: The rule merely authorizes delay in issuance of the mandate.
In my view, there are only two options in this case: order his unconditional release because he is legally acquitted or order his continued incarceration without bond because he is purportedly a flight risk according to the State. For us to set a bond that he perhaps could make but likely cannot make is an option that does not fit the legal and factual concerns in this case.
I also dissent because our Court has failed to specify that the mandate will issue 90 days from the date that the mandate should have issued. Rule 18.2 has time restrictions that specifically limit the delay of the mandate for only 90 days. For these reasons, I dissent from the order requiring applicant to post bail for his release.
Filed: SEPTEMBER 21, 2011
Do Not Publish