Ellard v. State

Court of Criminal Appeals of Texas

Ellard v. State

490 S.W.2d 597, 1972 Tex. Crim. App. LEXIS 2533

CourtCourt of Criminal Appeals of Texas

DecidedOctober 25, 1972

DocketNo. 45996

StatusPublished

Cited by1 cases

This text of 490 S.W.2d 597 (Ellard v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ellard v. State, 490 S.W.2d 597, 1972 Tex. Crim. App. LEXIS 2533 (Tex. 1972).

Pincite

Opinions

OPINION

ROBERTS, Judge.

This is an appeal from an order denying bail on appeal in a habeas corpus proceeding.

On June 7, 1971, petitioner was found guilty of the offense of felony theft, and [598]*598punishment was ' assessed at seven years’ imprisonment. Bond was set at $10,000. Then on September 7, 1971, this same petitioner was found guilty of assault to murder a peace officer. The second sentence was to begin after the previous judgment and sentence rendered against him had ceased to operate, that is, the two sentences were to cumulate. No bond was allowed the petitioner pending the appeal on this second sentence.

The State argues that denial of bail was proper in light of Art. 44.04, Vernon’s Ann.C.C.P., which provides in part:

“(a) Any defendant who is convicted of a misdemeanor, or who is convicted of a felony and whose punishment is assessed at a fine or confinement not to exceed fifteen years or both, shall be entitled to bail under the rules set forth in this • Chapter pending disposition of his motion for new trial, if any, and pending disposition of his appeal, if any, and until his conviction becomes final.

“(h) If the punishment assessed exceeds fifteen years confinement, the defendant shall be placed in custody of the sheriff and the bail thereby considered discharged immediately upon the return into court of the verdict as to punishment, or if the minimum punishment possible under the law exceeds fifteen years, then immediately upon the return into court of the verdict of guilty.”

The State’s contention is that “where a 12-year sentence has been accumulated properly, as it was here, to a 7-year sentence, in the same court, the punishment exceeds 15 years to the knowledge of the judge of that court, and a denial of bail on appeal is correct.”

We do not agree with this interpretation of the statute. Art. 44.04(a), V.A.C.C.P., is worded in terms of a fine or confinement not to exceed fifteen years, and there are simply no provisions for denial of bail where cumulated sentences exceed 15 years (emphasis supplied).

F -citioner was entitled to bail in this case. His request is granted and the cause is remanded to the trial court in order that bail in a reasonable amount may be set.

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION

ROBERTS, Judge.

This is an appeal from an order denying bail on appeal in a habeas corpus proceeding.

On June 7, 1971, petitioner was found guilty of the offense of felony theft, and [598]*598punishment was ' assessed at seven years’ imprisonment. Bond was set at $10,000. Then on September 7, 1971, this same petitioner was found guilty of assault to murder a peace officer. The second sentence was to begin after the previous judgment and sentence rendered against him had ceased to operate, that is, the two sentences were to cumulate. No bond was allowed the petitioner pending the appeal on this second sentence.

The State argues that denial of bail was proper in light of Art. 44.04, Vernon’s Ann.C.C.P., which provides in part:

“(a) Any defendant who is convicted of a misdemeanor, or who is convicted of a felony and whose punishment is assessed at a fine or confinement not to exceed fifteen years or both, shall be entitled to bail under the rules set forth in this • Chapter pending disposition of his motion for new trial, if any, and pending disposition of his appeal, if any, and until his conviction becomes final.

“(h) If the punishment assessed exceeds fifteen years confinement, the defendant shall be placed in custody of the sheriff and the bail thereby considered discharged immediately upon the return into court of the verdict as to punishment, or if the minimum punishment possible under the law exceeds fifteen years, then immediately upon the return into court of the verdict of guilty.”

The State’s contention is that “where a 12-year sentence has been accumulated properly, as it was here, to a 7-year sentence, in the same court, the punishment exceeds 15 years to the knowledge of the judge of that court, and a denial of bail on appeal is correct.”

We do not agree with this interpretation of the statute. Art. 44.04(a), V.A.C.C.P., is worded in terms of a fine or confinement not to exceed fifteen years, and there are simply no provisions for denial of bail where cumulated sentences exceed 15 years (emphasis supplied).

F -citioner was entitled to bail in this case. His request is granted and the cause is remanded to the trial court in order that bail in a reasonable amount may be set.

Cite This Page — Counsel Stack

Bluebook (online)

490 S.W.2d 597, 1972 Tex. Crim. App. LEXIS 2533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellard-v-state-texcrimapp-1972.

Opinions

Related

Cite This Page — Counsel Stack