Ex Parte Alex Jeanmard

In The

Court of Appeals

Ninth District of Texas at Beaumont

______________________ NO. 09-08-298 CR

______________________

EX PARTE ALEX JEANMARD

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On Appeal from the Criminal District Court Jefferson County, Texas Trial Court No. 81077

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   MEMORANDUM OPINION

Alex Jeanmard appeals and filed a pro se brief concerning the trial court's order denying an application for writ of habeas corpus requesting bail pending appeal. Tex. Code Crim. Proc. Ann. art. 44.04(g) (Vernon 2006). In the appeal of the underlying conviction, appellant's counsel filed an Anders brief. ⁽¹⁾ The State filed a brief in this appeal suggesting no error.

Pursuant to a plea bargain, Jeanmard pled guilty to Indecency with a Child by Exposure pursuant to section 21.11(a)(2) of the Texas Penal Code and received five years deferred adjudication community supervision. See Tex. Pen. Code Ann. § 21.11(a)(2) (Vernon 2003). The State subsequently filed a motion to revoke. Jeanmard pled true to two violations of the deferred adjudication community supervision. The trial court adjudicated him guilty of Indecency with a Child by Exposure, and sentenced him to four years' confinement in the Texas Department of Criminal Justice - Institutional Division.

Pursuant to Article 44.04(c) of the Texas Code of Criminal Procedure, the trial court denied an appeal bond because (1) Jeanmard "is considered high risk of being non-compliant due to the seriousness and nature of the underlying offense[;]" and (2) Jeanmard's "failure to follow [Sex Offender Treatment Program Guidelines and Rules] . . . places others in jeopardy of [Jeanmard]'s potential to commit other offenses if placed on bail." See Tex. Code Crim. Proc. Ann. art. 44.04(c) (Vernon 2006). We review the trial court's decision regarding appeal bonds under an abuse of discretion. Ex parte Spaulding, 612 S.W.2d 509, 511 (Tex. Crim. App. 1981). An appellate court does not substitute its judgment for that of the trial court, but decides whether the trial court's decision was made without reference to any guiding rules or principles of law, or in other words, whether it was arbitrary or unreasonable. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

Convicted felons are not guaranteed the right to bail under the Texas Constitution. See Ex parte Lowe, 573 S.W.2d 245, 247 (Tex. Crim. App. 1978); see also Tex. Const. art. I, § 11. However, the Legislature has created a statutory right to bail pending appeal in certain circumstances. Tex. Code Crim. Proc. Ann. art. 44.04. If the defendant's punishment is less than ten years and the conviction is for an offense not listed under article 42.12 of the Texas Code of Criminal Procedure section 3g(a)(1), the trial court has discretion to set bail; or the court may deny it for good cause upon belief (1) that the defendant would not appear when the conviction became final, or (2) that he would be likely to commit another offense while on bail. Tex. Code Crim. Proc. Ann. art. 44.04(c).

The trial court had discretion to deny bail if the trial court believed Jeanmard would not appear when the conviction became final or Jeanmard would be likely to commit another offense while on bail. See Tex. Pen. Code Ann. § 21.11(a)(2); Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(1) (Vernon Supp. 2008). Jeanmard pled guilty to the underlying offense, and at the hearing on the State's motion to revoke he pled true to violating community supervision by failing to comply with the program guidelines and rules of sex offender treatment. In denying bail on appeal, the trial court noted the seriousness and nature of the underlying offense. The trial court stated its concern regarding Jeanmard's non-compliance with sex offender program guidelines and rules. The Court found "[t]he failure to follow such rules which are directly related to his underlying offense places others in jeopardy of Defendant's potential to commit other offenses if placed on bail." On this record, it does not appear that the trial court acted unreasonably in denying an appeal bond in this case or without regard to guiding rules or principles of law. We affirm the trial court's order.

AFFIRMED.

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DAVID GAULTNEY

Justice

Submitted on October 30, 2008

Opinion Delivered November 12, 2008

Do Not Publish

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

1. The record for this appeal contains the trial court's order denying Jeanmard's application for writ of habeas corpus for bail pending appeal, Jeanmard's notice of appeal and motions, and the clerk's certificate. We take judicial notice of the record from Jeanmard's pending appeal of the revocation of his probation. Tex. R. Evid. 201(f).