Fabian James Tankesly v. State ( 2002 )

NO. 07-02-0142-CR NO. 07-02-0143-CR NO. 07-02-0144-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 10, 2002

______________________________



FABIAN JAMES TANKESLY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 41,975-A, 41,941-A, & 41,926-A; HONORABLE DAVID GLEASON, JUDGE

_______________________________

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

ON MOTION TO REDUCE BAIL

Appellant perfected his appeal from three separate orders revoking his community supervision and assessing punishment of two years confinement and a $100 fine in each cause for theft, securing execution of documents by deception, and unauthorized use of a motor vehicle. The appellate record has been filed and the time for filing briefs has not yet lapsed.

The trial court set appellant's bail at $15,000 in each cause. By his motion to reduce bail pending appeal, appellant asserts that $45,000 is excessive in light of his convictions for non-violent crimes and notes that he has only sufficient resources to post bail in the amount of $20,000. Article 44.04 of the Texas Code of Criminal Procedure Annotated (Vernon Pamph. Supp. 2002) provides for the determination of bond pending appeal. The traditional method of challenging excessive bail is by application for writ of habeas corpus in the trial court. Green v. State, 872 S.W.2d 717 (Tex.Cr.App. 1994); see also Ex Parte Enriquez, 2 S.W.3d 362 (Tex.App.-Waco 1999, no pet.) (explaining that excessive bail may also be attacked by a statutory motion initiated in the trial court). This Court's authority to set reasonable bail is not triggered unless a conviction is reversed on appeal. See Article 44.04(h).

Accordingly, the motion to reduce bail pending appeal is overruled.

Per Curiam

Do not publish.

) (i.e., assessment of punishment, pronouncement of sentence), a review of the revocation hearing establishes that any possible complaints regarding post-adjudication proceedings were not preserved for review. See Tex. R. App. P. 33.1(a)(1)(A); see also Hardeman v. State, 1 S.W.3d 689, 690 (Tex.Cr. App. 1999) and Issa v. State, 826 S.W.2d 159, 161 (Tex.Cr.App. 1992). Thus, we grant the State's motion and dismiss this appeal.

Accordingly, the appeal is dismissed for want of jurisdiction.

Don H. Reavis

Justice

Quinn, J., dissenting.

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NO. 07-04-0008-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

MAY 24, 2004 ______________________________

DAVID RAMOS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 46,215-E; HONORABLE ABE LOPEZ, JUDGE _______________________________

Dissent _______________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J. ⁽²⁾

I respectfully dissent from the majority opinion.

In perusing the record to determine whether any basis for appeal exists, the majority is essentially conducting an Anders review sua sponte. I know of no authority permitting that. Nor does either the majority or the State provide any. Indeed, the court has not even informed the appellant of its intent to invoke Anders in a situation wherein he has not been granted counsel, counsel has not opined that the appeal is frivolous, and appellant has not been accorded the opportunity to review the record and proffer argument illustrating potentially viable issues for appellate review. Providing an indigent appellant with such opportunity is inherent in the Anders process. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Johnson v. State, 885 S.W.2d 641, 646 (Tex. App.--Waco 1994, order) (order discussing procedures for Anders appeal). Moreover, questions of due process and its denial immediately arise upon the adoption of a procedure that permits dismissal of the appeal on the merits without according the appellant a chance to review the record and comment upon potential trial court error before the appeal is resolved.

Nor do I feel that I can safely assume that the State will protect or preserve the interest of the appellant when it opines that the appeal is frivolous and, thereby, triggers implementation of this hybrid Anders procedure. In an Anders situation, authority does obligate the reviewing court to conduct an independent analysis of the record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (discussing the traditional Anders procedure). However, by the time we do that, counsel for the appellant, who has the task of zealously representing the interests of his client, has already conducted his own investigation and opined about the existence of potential error. Here, the majority is simply excising the element of a zealous advocate from the equation established by the United States Supreme Court in Anders, again without citing any authority for doing so. And, while the office of the prosecutor has counsel learned in criminal law and procedure, one can reasonably suspect that few if any would be predisposed to parsing through the record with any eye favorable to the individual whom they just convicted and in search of error that would ultimately negate that conviction. So, it is unlikely that the recommendations of a prosecutor would provide an adequate substitute for those of independent counsel appointed to represent the appellant.

In close, I recognize the need to address and dispose of frivolous appeals in an efficient manner. To this end, a procedure much like that used to assess the merits of a civil suit initiated by an indigent prisoner may have some benefit. See Tex. Civ. Prac. & Rem. Code Ann. §14.001 (Vernon 2002). But, that procedure is a creature of statute enacted by the legislature, as is the right to appeal itself. Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 1979); Ex parte Spring, 586 S.W.2d 484, 485-86 (Tex. Crim. App. 1978) (stating that the right to appeal in a criminal case is statutory). Moreover, statute directs that rules or operating procedures applicable to the review of criminal cases cannot "abridge, enlarge, or modify the substantive rights of a litigant." Tex. Gov. Code Ann. §22.108(a) (Vernon 2004). Thus, it lies within the jurisdiction of the legislature, not this court, to enact a procedure like that alluded to above. We cannot legislate for that body. And, until it acts, I stay my own hand from curtailing the legislatively created right of appellant to appeal through the means now promulgated by the majority.

I respectfully dissent and invite the Court of Criminal Appeals to address the matter.

Brian Quinn

Justice

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1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

2. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2004).