Rudy Villa v. State of Texas ( 2012 )

Order filed September 6, 2012

                                                                       In The

  Eleventh Court of Appeals

                                                                   __________

                                                         No. 11-10-00363-CR

                                                    __________

                                         RUDY VILLA, Appellant

                                                             V.

                                      STATE OF TEXAS, Appellee

                                   On Appeal from the 106th District Court

                                                            Gaines County, Texas

                                                    Trial Court Cause No. 09-4013

                                                                     O R D E R

            On May 24, 2012, this court issued its opinion and judgment reversing Rudy Villa’s conviction for aggravated sexual assault and remanding the cause to the trial court.   On July 23, 2012, appellant filed a motion for reasonable bail pending final disposition of appeal.  While that motion remained pending, the State filed its petition for discretionary review on July 26, 2012.  This court overruled the motion for reasonable bail on August 2, 2012.  Appellant has now filed a motion for reconsideration of this court’s prior order overruling the motion for reasonable bail.  We dismiss the motion for reconsideration for want of jurisdiction. 

            Tex. Code Crim. Proc. Ann. art. 44.04(h) (West 2006) provides as follows:           

            (h) If a conviction is reversed by a decision of a Court of Appeals, the defendant, if in custody, is entitled to release on reasonable bail, regardless of the length of term of imprisonment, pending final determination of an appeal by the state or the defendant on a motion for discretionary review.  If the defendant requests bail before a petition for discretionary review has been filed, the Court of Appeals shall determine the amount of bail.  If the defendant requests bail after a petition for discretionary review has been filed, the Court of Criminal Appeals shall determine the amount of bail.  The sureties on the bail must be approved by the court where the trial was had.  The defendant’s right to release under this subsection attaches immediately on the issuance of the Court of Appeals’ final ruling as defined by Tex.Cr.App.R. 209(c).

Article 44.04(h) is applicable to this proceeding because this court issued an opinion reversing appellant’s conviction and remanding for a new trial.  Under the article, the authority for determining the amount of appellant’s bail transferred to the Court of Criminal Appeals after the State filed its petition for discretionary review.  Murdock v. State, 870 S.W.2d 41, 42 (Tex. Crim. App. 1993) (“[Article 44.04(h)] provides a forum in the Court of Appeals when that court still has jurisdiction over the case—before a petition [for discretionary review] has been filed.”)  Accordingly, this court is without jurisdiction to consider appellant’s motion for reconsideration. Moreover, this court has already forwarded the appellate record to the Court of Criminal Appeals in compliance with Tex. R. App. P. 68.7.  This court is no longer able to set the amount of appellant’s bail without the appellate record. 

Appellant’s motion for reconsideration is dismissed for want of jurisdiction. 

                                                                                                            PER CURIAM

September 6, 2012

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel[1] consists of: Wright, C.J.,

McCall, J., and Hill.[2]

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                [1]Eric Kalenak, Justice, resigned effective September 3, 2012.  The justice position is vacant pending appointment of a successor by the governor or until the next general election.

                [2]John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.