ACCEPTED
03-14-00811-CR
3948120
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/29/2015 12:57:01 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00811-CR
KARL DEAN STAHMANN § IN THE THIRD
FILED IN
3rd COURT OF APPEALS
§ AUSTIN, TEXAS
v. § DISTRICT COURT
1/29/2015 12:57:01OF
PM
§ JEFFREY D. KYLE
STATE OF TEXAS § APPEALS OFClerkTEXAS
STATE’S RESPONSE TO APPELLANT’S MOTIONS TO EXPEDITE
APPEAL
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW THE STATE OF TEXAS, by and through its Assistant
District Attorney, and files this its Response to Appellant’s Motions to Expedite
the Appeal in the above-captioned cause. The State asks that the Court deny
Appellant’s Motions at least in part, and would show the following:
I. Even if the Court Finds an Abuse of Discretion, the Appropriate Remedy is
an Order Remanding the Case to the Trial Court
Appellant contends he was entitled to bail following his adjudication for the
state jail felony offense of Credit Card Abuse. Motion to Expedite at 1. The State
contests Appellant’s assertions and is prepared to brief this case if the Court desires
briefs. Motion to Expedite at 2, Second Motion to Expedite at 2, RR vol. 1 at 5-6;
Tex. R. App. P. 31.1. However, even if after its review the Court decides it was an
abuse of discretion to deny bail, as Appellant alleges, the State respectfully submits
that the Court lacks the statutory authority to set bail as Appellant requests.
1
In his first motion, Appellant moves the Court to expedite its review of the
appeal and “set reasonable bail pending the appeal of the merits of the case.”
Motion to Expedite Appeal at 3. In his second motion, Appellant requests “that this
Court set bail in each count of the indictment at $5,000.00 for a total of
$10,000.00.” Second Motion to Expedite Appeal at 4.
Article 44.04(h) of the Code of Criminal Procedure only gives intermediate
appellate courts authority to set bail after the conviction is reversed, and before a
petition for discretionary review is filed. See Tex. Crim. Proc. Code Ann. art. 44.04
(West, Westlaw through 2013 Sess.); see also Rojas v. State, 830 S.W.2d 679, 680
(Tex. App.—San Antonio 1992, no pet.) (citing Tex. Code Crim. Proc. art.
44.04(h) (“We may set bail after the opinion issues, if requested before a petition
for discretionary review is filed and before mandate issues.”)) (emphasis added).
Therefore, in the event the Court finds an abuse of discretion in denying bail,
the appropriate remedy is remanding the case to the trial court to either set bail or
hold another hearing to determine whether good cause exists to deny bail. See
Burroughs v. State, 611 S.W.2d 106, 108 (Tex. Crim. App. 1981), (citing Ex parte
Hebert, 579 S.W.2d 486, 487 (Tex. Crim. App. 1979) (in which the Court of
Criminal Appeals remanded the case to the trial court)).
2
II. PRAYER
WHEREFORE, PREMISES CONSIDERED, the State respectfully prays
that the request in Appellant’s Motions that the Court set bail, in any amount, be
DENIED. Further, the State prays for all relief, both special and general, in law
and in equity, to which it may be entitled.
Respectfully submitted,
/s/ Joshua D. Presley
Joshua D. Presley
SBN: 24088254
preslj@co.comal.tx.us
Comal Criminal District Attorney’s Office
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Ph: (830) 221-1300 / Fax: (830) 608-2008
3
CERTIFICATE OF SERVICE
I, Joshua D. Presley, Assistant District Attorney for the State of Texas,
Appellee, hereby certify that a true and correct copy of this State’s Response to
Appellant’s Motions to Expedite Appeal has been delivered to Appellant KARL
DEAN STAHMANN’s attorney of record in this matter:
Charles F. Baird
jcfbaird@gmail.law
Baird Farrelly, PLLC
2312 Western Trails Blvd, Suite 102-A
Austin, TX 78745
Counsel for Appellant on Appeal
by electronic mail service to the above email address through efile.txcourts.gov,
this 29th day of January, 2015.
/s/ Joshua D. Presley
Joshua D. Presley
4