I recently tried a case where the defendant was convicted of indecency with a child and given probation by the jury. Defendant immediately filed a notice of appeal. The way I read CCP 44.04, defendant's bail is discharged and he "may not be released on bail pending the appeal..." Is this correct even though he got probation? Normally this wouldn't be an issue, but the def's attorney himself said the appeal was only being filed to delay imposition of the sentence.

There is no basis for incarceration of the defendant even though he has been convicted. The amendment to 44.04 was designed to apply those 3g(a)(1) offenders who received a sentence (subject to imposition) of less than 10 years. There is no need for your defendant to secure his release on bail during the pendency of the appeal.

Martin, being one to promote literal reading of statutes, I am surprised that you say there is no basis for the incarceration. In fact, there is.

The amendment, actually, was written to put violent offenders in jail pending appeal, regardless of the sentence, so it covered all offenses under article 42.12, section 3g, CCP. I was there for the debate, and the victims who were asking for the bill were mad because the defendant who killed their daughter got probation and stayed out of jail pending the appeal.

Furthermore, at least one court of appeals has agreed with that reading of the statute. The Court of Criminal Appeals just last week granted discretionary review on that very issue: See Lebo.

My office kept a guy in jail for several months using that statute. Our district judge read the statute and agreed that's what it says.

There may well be some significant constitutional issues raised by the statute, but until a court rules it unconstitutional, we should follow it.

John Bradley
District Attorney
Williamson County, Texas

I guess I am kind of like those defense attorneys-- I favor the interpretation of a statute that supports my position at the time. I would certainly like to agree with you, your judge, and Justice Green, but I am afraid Lebo was wrongly decided. Despite the language of art. 44.04 (b), my questions are: (1)if the defendant is not seeking release on bail why does the language "shall immediately be placed in custody" apply and (2) how can the court in one breath say you are hereby released on community supervision and in the next say because you are appealing that decision forget what I just said? Plus, as you mention, putting that kind of restraint on one's right of appeal is highly questionable under the constitution.

Let me add that I do think it is unfair that a Defendant can have it both ways: i.e. claim the benefit of release under the probation order, yet not have to comply with any of its conditions during the appeal. That is what should be changed.

Martin & John:
Thanks for your input.

We had several mandamus actions over the same issue. Ultimately, the conviction was affirmed on appeal and the defendant started reporting before we ever resolved the bail thing. Plain language, baby. Plain language.

Let's see. You have a judgment which says the defendant should be incarcerated in the ID, but it also suspends the imposition of that sentence. The bail previously required has been discharged. You have a statute which "plainly" says the defendant "shall be placed in custody" (presumably of someone and held somewhere) merely because he is appealing his conviction. You obviously cannot transfer the defendant to the ID, so your local taxpayers pay to punish him for the offense in a way the jury determined was wrong. Makes perfect sense to me. Go for it Frank.

While the court implies the appellant may be required to post a bond, its now clear, plain, unmistakable-- bond cannot be denied. Lebo

As I read the case, a regular 10 year probated sentence, according to the plain language, does not prevent bail. The Court didn't directly address the 3g portion of the statute. But, the language used seems to say that a probated 3g defendant must be allowed an appeal bond or there is a constitutional problem. Right? The latter portion would seem to need a little cleanup in the next session . . .