Whitney Nicole Carter v. State ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
Nos. 07-13-00207-CR, 07-13-00208-CR
WHITNEY NICOLE CARTER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
____________________________________
TONY DARELL JOHNSON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 100th District Court
Carson County, Texas
Trial Court Nos. 5052, 5053; Honorable Stuart Messer, Presiding
May 14, 2015
ON MOTION TO SET BAIL
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
By opinion dated April 27, 2015, we reversed the convictions of appellants Tony
Darell Johnson and Whitney Nicole Carter for a state jail felony violation of the money
laundering statute1 and remanded the cases to the trial court for proceedings consistent
with our opinion.2 Appellants have each filed a motion requesting that we set bail under
the provisions of article 44.04(h) of the Texas Code of Criminal Procedure. TEX. CODE
CRIM. PROC. ANN. art. 44.04(h) (West 2006). In their motions, appellants state they have
been continuously confined, either in the Carson County jail or the Texas Department of
Criminal Justice, since sentencing on June 12, 2013. Appellants request we set
reasonable bail of no more than $1,500. The State did not respond to appellants’
requests for bail. Nor did the State file a motion for rehearing of our April 27 opinion
and judgment.
Article 44.04(h) provides that on reversal of a conviction, a defendant is entitled
to release on reasonable bail, regardless of the length of term of imprisonment, pending
final determination of the appeal by the State or defendant on petition for discretionary
review. The defendant’s right to release under this statute “attaches immediately on the
issuance of the Court of Appeals’ final ruling as defined by Tex. Cr. App. R. 209(c).”
See TEX. CODE CRIM. PROC. ANN. art. 44.04(h) (W EST 2006); Thornton v. State, 420
S.W.3d 104 (Tex. App.—Amarillo 2012, per curiam order) (discussing the meaning of
“final ruling of the court” for purposes of applying former criminal appellate rule 209(c)
under article 44.04(h)); In re Keeter, 134 S.W.3d 250, 253 & 253 n.2 (Tex. App.—Waco
2003, orig. proceeding) (same).
1
TEX. PENAL CODE ANN. § 34.02(a)(1),(e)(1) (West 2011).
2
Carter and Johnson v. State, Nos. 07-13-00207-CR, 07-13-00208-CR, 2015
Tex. App. LEXIS 4271 (Tex. App.—Amarillo Apr. 27, 2015, n.p.h.) (designated for
publication).
2
Article 44.04(h) further provides that a court of appeals shall determine the
amount of bail if requested before a petition for discretionary review is filed. Guided by
the criteria of article 17.15 of the Code of Criminal Procedure,3 we set reasonable bail in
the amount of $5,000 for appellant Whitney Nicole Carter and in the amount of $5,000
for appellant Tony Darell Johnson. The amount of bail set for each appellant is
conditioned on the sureties on the bail being approved by the court where the trial was
originally had. See TEX. CODE CRIM. PROC. ANN. art. 44.04(h) (West 2006). See also
TEX. R. APP. P. 51.2(c)(1) (providing that if an appellate court reverses a judgment and
orders a new trial, the defendant, if in custody, must be released upon giving bail).
It is so ordered.
Per Curiam
Do not publish.
3
See TEX. CODE CRIM. PROC. ANN. art. 17.15 (West 2005); Thornton, 420 S.W.3d
at 106.
3