Ex Parte David Ybarra, Jr.

• Court: Court of Appeals of Texas
• Decided: May 16, 2019
• Docket: 07-18-00398-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-18-00398-CR

EX PARTE DAVID YBARRA, JR.

On Appeal from the 50th District Court Cottle County, Texas Trial Court No. 4531, Honorable Bobby D. Burnett, Presiding

May 16, 2019

MEMORANDUM OPINION Before CAMPBELL and PIRTLE and PARKER, JJ.

David Ybarra appeals a pretrial order revoking his bond. We will dismiss the

appeal for want of jurisdiction.

In February 2018, Ybarra was arrested on a charge of aggravated assault causing

serious bodily injury. The victim of that assault subsequently died. In March 2018, Ybarra

was released on a $100,000 bond. As one of the conditions of his bond, Ybarra was

prohibited from intimidating any witness to the offense or harassing members of the

victim’s family. The State later moved to revoke appellant's bond for failure to comply

with that condition. The trial court revoked appellant’s bond by written order on October 10, 2018

following a June 2018 hearing. The court’s order expressly found that appellant “violated

a condition of the bond imposed under CCP Art. 17.40 related to the safety of the

community.” Ybarra appeals, arguing the trial court erred by revoking his bond and by

denying his request to set a new bond.1 The State contends that the trial court’s decision

to revoke appellant’s bond is an interlocutory order over which we lack appellate

jurisdiction. We agree with the State’s position.

Section 11b of Article 1 of the Texas Constitution, adopted by voters in 2005 and

amended in 2007, provides:

Any person who is accused in this state of a felony or an offense involving family violence, who is released on bail pending trial, and whose bail is subsequently revoked or forfeited for a violation of a condition of release may be denied bail pending trial if a judge or magistrate in this state determines by a preponderance of the evidence at a subsequent hearing that the person violated a condition of release related to the safety of a victim of the alleged offense or to the safety of the community.

TEX. CONST. art. I, § 11b.

Code of Criminal Procedure article 17.40 addresses bond conditions “related to

the safety of a victim of the alleged offense or to the safety of the community.” TEX. CODE

CRIM. PROC. ANN. art. 17.40(a) (West 2017). Under article 17.40(b), if a magistrate finds

by a preponderance of the evidence that the alleged violation of such a bond condition

occurred, the magistrate “shall revoke the defendant’s bond and order that the defendant

be immediately returned to custody.” TEX. CODE CRIM. PROC. ANN. art. 17.40(b).

1 The trial court’s October 2018 order revokes appellant’s bond but does not speak to setting a new bond. The parties agree that no new bond has been set.

2 Our court, and others, have in the past noted that the “courts of appeals have split

over whether appellate jurisdiction exists in regard to direct appeals from pretrial bail

rulings…”. Vargas v. State, 109 S.W.3d 26, 29 (Tex. App.—Amarillo 2003, no pet.) (citing

Ramos v. State, 89 S.W.3d 122, 124-26 (Tex. App.—Corpus Christi 2002, no pet.);

Benford v. State, 994 S.W.2d 404, 409 (Tex. App.—Waco 1999, no pet.); Ex parte

Shumake, 953 S.W.2d 842, 846-47 (Tex. App.—Austin 1997, no pet.); Wright v. State,

969 S.W.2d 588, 589-90 (Tex. App.—Dallas 1998, no pet.)).

We noted the same in 2010. Daley v. State, No. 07-10-00200-CR, 2010 Tex. App.

LEXIS 7974, at *3-4 (Tex. App.—Amarillo Sept. 29, 2010, no pet.) (mem. op., not

designated for publication). The Court of Criminal Appeals resolved this split among the

intermediate courts in its opinion in Ragston v. State, 424 S.W.3d 49 (Tex. Crim. App.

2014).

In Ragston, the Court of Criminal Appeals rejected intermediate court opinions that

had relied on a footnote in the 1987 case of Primrose v. State2 and on Rule 31.1 of the

Rules of Appellate Procedure to find jurisdiction to review interlocutory orders regarding

excessive bail or the denial of bail. Instead the court reiterated its previous holding that

courts of appeals “do not have jurisdiction to review interlocutory orders unless that

jurisdiction has been expressly granted by law.” 424 SW.3d at 52 (quoting Apolinar v.

State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991)). The court went on to hold “[t]here

is no constitutional or statutory authority granting the courts of appeals jurisdiction to hear

interlocutory appeals regarding excessive bail or the denial of bail.” Id. See also 41

2 725 S.W.2d 254, 256, n.3 (Tex. Crim. App. 1987).

3 George E. Dix & John M. Schmolesky, TEX. PRAC., CRIMINAL PRACTICE AND PROCEDURE

§ 21:72 (3d ed. 2011) (citing Wright, 969 S.W.2d at 589-90) (order revoking bail not

appealable).

As was the case in Daley, appellant is not appealing from a denial of a pretrial

application for writ of habeas corpus. Daley, 2010 Tex. App. LEXIS 7974, at *3-4. Such

a denial is appealable. Id. (citations omitted). Rather, appellant asks us to review the

trial court’s October 2018 order revoking his bond. We have no authority to entertain

appellant’s appeal. Ragston, 424 S.W.3d at 52. See also Vargas, 109 S.W.3d at 29;

Daley, 2010 Tex. App. LEXIS 7974, at * 6.

Accordingly, finding we have no jurisdiction to consider it, we dismiss the appeal.

TEX. R. APP. P. 43.2(f).

James T. Campbell Justice

Do not publish.