Ex Parte John Kim Gobert ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-07-051 CR ____________________

EX PARTE JOHN KIM GOBERT

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On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 75506

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MEMORANDUM OPINION

John Kim Gobert appeals the trial court's order denying his application for writ of habeas corpus for bail pending appeal.

Article 44.04(g) of the Texas Code of Criminal Procedure expressly grants a right of appeal to the court of appeals to review the denial of bail. Tex. Code Crim. Proc. Ann. art. 44.04(g) (Vernon 2006); Ex parte Borgen, 646 S.W.2d 450, 451 (Tex. Crim. App. 1983). Gobert contends he is entitled to bail pending appeal pursuant to a prior version of Texas Code of Criminal Procedure article 44.04(b). According to Gobert, the dates of his offense, indictment, trial, and sentencing all occurred before article 44.04(b) was amended in 1999 and therefore, the version of article 44.04(b) in effect prior to the 1999 amendment applies. Prior to the 1999 amendment and at the time of Gobert's offense, indictment, trial, and the trial court's deferred adjudication sentence, article 44.04(b) provided as follows:

The defendant may not be released on bail pending the appeal from any felony conviction where the punishment exceeds 15 years confinement or where the defendant has been convicted of an offense listed under Sections 481.107(b) through (e), Health and Safety Code, but shall immediately be placed in custody and the bail discharged.

Act of May 30, 1983, 68th Leg., R.S., ch. 425, § 26, 1983 Tex. Gen. Laws 2361, 2416, amended by Act of March 21, 1991, 72nd Leg., R.S., ch. 14, § 284(50), 1991 Tex. Gen. Laws 42, 232. In 1999, the statute was amended to read as follows:

The defendant may not be released on bail pending the appeal from any felony conviction where the punishment equals or exceeds 10 years confinement or where the defendant has been convicted of an offense listed under Section 3g(a)(1), Article 42.12, but shall immediately be placed in custody and the bail discharged.

Act of May 19, 1999, 76th Leg., R.S., ch. 546, § 1(b), 1999 Tex. Gen. Laws 3042, 3042 (current version at Tex. Code Crim. Proc. Ann. art. 44.04(b) (Vernon 2006)). Section 2 of the amending legislation provided:

The change in law made by this Act applies only to a request for bail pending appeal that is made by a defendant on or after the effective date of this Act. A request for bail pending appeal that is made by a defendant before [September 1, 1999] is covered by the law in effect when the request was made, and the former law is continued in effect for that purpose.

Act of May 19, 1999, 76th Leg., R.S., ch. 546, § 2, 1999 Tex. Gen. Laws 3042, 3042. Gobert made his request for an appeal bond after September 1, 1999 -- the effective date of the 1999 amendment. His right to an appeal bond is governed by the current statute. See id. Because the trial court revoked Gobert's probation and sentenced him to 10 years' confinement, he is not eligible for bond pending appeal under the current version of article 44.04(b). See Tex. Code Crim. Proc. Ann. art. 44.04(b) (Vernon 2006).

Gobert further argues that once a state has made provision for bail pending appeal, the federal courts have stated that the Eighth and Fourteenth Amendments require that it not be denied arbitrarily or unreasonably. He maintains he was not afforded procedural due process because the trial court did not give notice and hold a hearing prior to its denial of his application. While there is an established constitutional right to pre-trial bail, "[t]here is no federal or state constitutional right to bail pending appeal." Dallas v. State, 983 S.W.2d 276, 278 n.1 (Tex. Crim. App. 1998) (citing Stack v. Boyle, 342 U.S. 1, 72 S. Ct. 1, 96 L. Ed. 3 (1951)). Furthermore, the Texas Court of Criminal Appeals has specifically held that article 44.04(b) is constitutional. Lebo v. State, 90 S.W.3d 324, 326, 330 (Tex. Crim. App. 2002). Because Gobert was not eligible for bail pending appeal as a matter of law, the trial court could not consider his application and no notice or a hearing prior to its denial of his application was required. See Faerman v. State, 966 S.W.2d 843, 847 (Tex. App.--Houston [14th Dist.] 1998, no pet.) (trial court may summarily deny a defendant's request for bail pending an appeal if he is ineligible under art. 44.04(b)).

Gobert asserts he was improperly tried and sentenced, denied his right to appeal his conviction, and denied effective assistance of counsel at trial and on appeal. We dismiss these claims because they are unrelated to the trial court's denial of his application for writ of habeas corpus for bail pending appeal for which he filed his habeas action invoking this Court's jurisdiction under article 44.04(g). Tex. Code Crim. Proc. Ann. art. 44.04(g). We affirm the trial court's order denying Gobert's application for writ of habeas corpus for bail pending appeal.

AFFIRMED.

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CHARLES KREGER

Justice

Submitted on March 28, 2007

Opinion Delivered April 11, 2007

Do not publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.