This is probably a very basic question with a simple answer....A DWI 2nd was guilty after jury trial. Her interlock has been on her car since before trial--original condition of bail and she has not paid any of it. Her appellate attorney filed notice of appeal the day she was supposed to serve her jail time, so she never went, nor has she communicated her whereabouts with probation because her case is on appeal.

Question: What is the process for getting a bond on her? She is out of state and we don't know that she will come back....does the original bond still apply? Is she required to pay her interlock costs while on appeal since it was in place from arrest on, or is that on hold along with the rest of the punishment while on appeal?

In the meantime, I have two other cases that are asking for new trials, so if they are appeals, do I get bonds on those? How?

I am unsure what you mean by "the notice of appeal was filed on the day she was supposed to start her jail time," since you also mention probation. I guess we are talking about 42.12 sec. 13(a)? Otherwise, presumably the court would have caused the defendant to be delivered to the jail at the time her sentence was pronounced as provided in 42.09 sec. 1. In that event, the mere filing of a notice of appeal does not secure her liberty, since that should occur only if "released on bail pending disposition of the appeal" as provided in sec. 2 of 42.09. The original bail expired at sentencing. It is less than clear whether you can impose conditions of bail on someone who already has an order in place which suspends any sentence of confinement. Probably, you must simply wait and see whether she promptly complies with the supervision order once it becomes enforceable (final).

Okay, so at this point there is no recourse for the failure to appear for the jail time (yes, it was the 3 days for a DWI 2d, and it was ordered as a condition of probation) is after the appeal is denied. Thanks, now two more questions that this has brought up: 1. She was ordered to report to jail on March 3 for 72 hours (sentenced on Feb. 21st). 2. On March 3, her appellate attorney filed a motion for new trial and she never went to turn herself in. 3. On March 18 the Notice of Appeal was filed.

So at what point are her conditions of probation on hold? If it's the day of notice of appeal, then do we put out an FTA warrant for her and make her come back and bond out while on appeal? In this case, she is out of state, and I am just worried that we will lose contact with her and never see her again. I guess eventually, if the appeal is denied then she doesn't report, we will revoke probation and go from there.

This passage from McConnell, 34 S.W.3d at 30 answers part of the question:
"A timely filed notice of appeal vests this Court with jurisdiction over the appeal. Jones v. State, 796 S.W.2d 183, 186 (Tex. Crim. App. 1990); Mims v. State, 828 S.W.2d 775, 777 (Tex. App.-Dallas 1992, pet. ref'd). When a valid appeal is taken from a criminal conviction assessing a probated sentence, the terms of community supervision do not commence until the mandate from the appellate court effecting final disposition of the appeal is issued. See Surety Corp. of America v. State, 550 S.W.2d 689, 690 (Tex. Crim. App. 1977); Cuellar v. State, 985 S.W.2d 656, 658 (Tex. App.-Houston [1st Dist.] 1999, no pet.); Easton v. Rains, 866 S.W.2d 656, 659 (Tex. App.-Houston [1st Dist.] 1993, no pet.). If there is no appeal from a conviction, the terms and conditions of community supervision commence when a motion for new trial is overruled. Rodriguez v. State 680 S.W.2d 585, 587 (Tex. App.-Corpus Christi 1984, no pet.)."

My best guess is that because notice of appeal was timely filed in your case, the failure to comply with the confinement provision as originally scheduled cannot be used to revoke. In other words, the subsequent transfer of jurisdiction negated the enforcement of the order retroactive to the date it otherwise took effect. This is a bad outcome, but Cuellar and Easton seem to compel that conclusion.

Just to add to what has been said, she will have to replace her original bond with an appeal bond. Once the appeal bond is in place, her sentence and the conditions of probation should not begin. However, a court is permitted to place reasonable conditions on an appeal bond relating to secure a defendant's appearance.

Here's a quick example of some conditions that were approved as reasonable:

Ex parte Leverett 2006 WL 279388, *1 (Tex.App.-Dallas) (Tex.App.-Dallas,2006)

After her appeal is affirmed and the mandate issues, she will be due her 3 days.

Who or what process requires the appeal bond to be filed? After all this came up this morning, I checked with the county clerk and she said she has NEVER done an appeal bond! From what I was reading, I thought it was required? 44.16 CCP says that without the bond, the notice of appeal has no effect whatsoever? Does no appeal bond change the above responses about having to wait until the appeal is over?

I know I sound like I know nothing about this....that is in fact the case--our little county has not had many trials in the past and many things are done sort of haphazardly and on an "only as needed" basis. I'm new since November, so this is my first round of appeals from trials...thanks for all your help.

The mysteries of the appeal bond are a recurring topic here. Go to "search" link above and type in "appeal bond" for other threads.

John Bradley
District Attorney
Williamson County, Texas

The bonds spoken of in art. 44.16 are those entered into under former art. 44.13 (now 45.0425). With the exception of art. 44.15, arts. 44.13 thru 44.20 concerned only "appeals from justice and corporation courts". The notice of appeal in your case was probably sufficient under Tex.R.App.P. 25.2(b) without regard to an appeal bond.

Leverett certainly seems to imply that the court can require a bail bond to be posted despite an existing order for release of the defendant (or alternatively viewed, no enforceable order for confinement). But, I still have to question: what happens if the defendant chooses not to enter into an appeal bond? What is the penalty? Even if the appeal bond were revoked, where does the court get authority to confine the appellant after the jury chose probation as the "punishment"? I cannot tell whether Cuellar or Easton involved appeal bonds, but they sure seem to say none of the conditions of supervision apply. It would be nice if the supervision order were not suspended by the appeal (at least not without the requirement of bail conditions), but I am not sure the law requires an appeal bond where the sentence has already been otherwise suspended. Your situation points out the need for clarification by the courts or the legislature.

Henderson is obviously authority for the trial court to require an appeal bond despite a suspended sentence. But, it remains unclear on what authority Henderson is being held in custody.

It does seem odd to have a defendant held in jail pending the appeal of a probation. However, the defendant is not formally convicted or sentencing, so it is as if the judge were deciding a pretrial bond with the additional factor of knowing the defendant is guilty.