John Bradford Crow v. State ( 2001 )

NO. 07-00-0144-CR

IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 7, 2001

______________________________



JOHN BRADFORD CROW, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 232^ND DISTRICT COURT OF HARRIS COUNTY;

NO. 735352; HONORABLE LARRY FULLER, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

ON MOTION FOR BOND FOLLOWING REVERSAL

By opinion dated August 7, 2001, this Court reversed appellant's conviction for murder and remanded the cause for new trial. Pending before this Court is appellant's motion for bond following reversal pursuant to article 44.04(h) of the Texas Code of Criminal Procedure Annotated (Vernon Supp. 2001). Appellant certifies that the State opposes the motion and has informed appellant's counsel that instead of filing a motion for rehearing, the State intends to proceed with its petition for discretionary review. For the reasons expressed herein, appellant's motion is overruled without prejudice to the filing of a revised or amended motion.

By his motion, appellant requests that this Court set a reasonable bond in the amount of no more than $20,000, which he contends is a reasonable amount. According to the clerk's record, on January 10, 2000, appellant certified by his pauper's oath on appeal that he was too poor to employ counsel and was without funds, property, or income to pay for a record of the evidence. However, in his motion, appellant does not discuss his ability to make bail at this time. Further, article 44.04(h) does not furnish any specific guidance as to the criteria or factors which we should consider in making reasonable bail determinations following the reversal of a conviction. However, in Aviles v. State, 23 S.W.3d 74, 80 (Tex.App.--Houston [14^th Dist.] 2000, pet. ref'd), the court suggested that the factors set out in article 17.15 of the Texas Code of Criminal Procedure were relevant to setting bond under article 44.04(h). See also Ex Parte Rubac, 611 S.W.2d 848, 849-50 (Tex.Cr.App. [Panel Op.] 1981). Accordingly, we overrule appellant's motion without prejudice to presentation of a revised or amended motion.

It is so ordered.

Per Curiam

Do not publish.

ter">THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

NO. 9286-A; HONORABLE HAL MINER, JUDGE

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Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ABATEMENT AND REMAND

          Appellant, Shelby Mark Neugebauer, seeks to overturn the trial court’s decision to revoke its previous order granting him shock probation. For the reasons expressed herein, we abate and remand this cause to the trial court for appointment of new counsel.

          On May 14, 1997, Appellant was convicted of intoxication manslaughter and punishment was assessed by a jury at eight years confinement and a $10,000 fine. The execution of Appellant’s sentence began immediately. Appellant’s conviction was affirmed by this Court on June 16, 1998, in Cause Number 07-97-0213-CR. The Mandate of this Court issued on December 30, 1998. On March 26, 1999, Appellant filed a motion with the trial court seeking to suspend further imposition of his sentence pursuant to article 42.12, § 6 of the Texas Code of Criminal Procedure, under the procedure commonly referred to as “shock probation.” On June 1, 1999, the trial court heard Appellant’s motion and ordered that his sentence, but not the fine, be suspended in favor of community supervision for ten years. In 2007, the State filed a motion to revoke Appellant’s community supervision for three violations of the condition that he abstain from alcohol consumption and one violation of the requirement that he pay a supervision fee. Appellant entered a plea of not true to the allegations. Following presentation of testimony and evidence, the trial court revoked Appellant’s community supervision and sentenced him to seven and one-half years confinement.

          In presenting this appeal, counsel has filed an Anders brief in support of a motion to withdraw. The Anders brief was filed on October 24, 2007. Notwithstanding four extensions of time in which to file a pro se response, Appellant has failed to do so. Instead, on March 24, 2008, Appellant notified this Court by letter that he has requested information from the District Clerk to obtain court-appointed counsel to assist him in preparation of his response. The State has not responded to appellate counsel’s Anders brief.

          When faced with an Anders brief, an appellate court has a duty to conduct a full examination of the proceeding, and if its independent inquiry reveals a nonfrivolous or arguable ground for appeal, it must abate the proceeding and remand the case to the trial court so that new counsel can be appointed to brief the issues. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).   

          As then in effect, for purposes of suspending further imposition of sentence and placing the defendant on shock probation, the jurisdiction of the trial court continues for 180 days from the date the “execution of the sentence actually begins.” Tex. Code Crim. Proc. Ann. art. 42.12, § 6(a) (Vernon 2004) (emphasis added). Execution of sentence begins upon the defendant’s incarceration. Bailey v. State, 160 S.W.3d 11, 14, fn.2 (Tex.Crim.App. 2004). In this case, the execution of Appellant’s sentence began on May 14, 1997. The trial court’s grant of shock probation on June 1, 1999, clearly more than 180 days after execution of Appellant’s sentence actually began, was arguably done at a time when the trial court was without jurisdiction to enter that order. See State v. McDonald, 642 S.W.2d 492, 493 (Tex.Crim.App. 1982); State v. Hatten, 508 S.W.2d 625, 628 (Tex.Crim.App. 1974). Therefore, having concluded that an arguable ground for appeal exists, we grant Appellant’s counsel’s motion to withdraw, abate this proceeding, and remand this cause to the trial court for the appointment of new counsel. See Bledsoe, 178 S.W.3d at 827; Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We direct the trial court to appoint new counsel to represent Appellant on appeal by April 14, 2008. The trial court shall furnish the name, address, telephone number, and state bar number of new counsel to the clerk of this Court immediately after the appointment of counsel is ordered. Finally, the trial court shall cause its order appointing counsel to be included in a supplemental clerk’s record which shall be filed with the Clerk of this Court by April 24, 2008. Appellant’s brief shall be due forty-five days from the date of the trial court’s appointment of new counsel. All other appellate deadlines shall be in accordance with the Texas Rules of Appellate Procedure.

          It is so ordered.

                                                                           Per Curiam

Do not publish.