ACCEPTED 01-15-00288-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 5/6/2015 4:44:56 PM CHRISTOPHER PRINE CLERK
IN THE COURT OF APPEALS FIRST SUPREMEJUDICIAL DISTRICT FILED IN HOUSTON, TEXAS 1st COURT OF APPEALS HOUSTON, TEXAS NO. 01-15-00288-CR 5/6/2015 4:44:56 PM KEITH W. GOODSON, CHRISTOPHER A. PRINE Clerk Appellant On Appeal from the
184th District Court of vs. Harris County, Texas
Cause No. 1457737 THE STATE OF TEXAS, Respondent
MOTION FOR REHEARING COMES NOW, Appellant, Keith W, Goodson, by and through his attorney of record,
Whitney C. Kubik and mes this, his Motion for Rehearing for the foHowing reasons:
I. THE COURT'S DECISION PLACES AN INAPPROPRIATE BURDEN ON THE DEFENDANT TO TESTIFY
Respectfully, this Court's opinion, dated April 21, 2015, places an improper burden
on the Appellant's testimony. Based on the decision of this Court, a defendant is required to
choose between two constitutional rights - his right to be released on reasonable bail or his right not to testify. The Court correcdy cites the law regarding the non-controlling weight of the defendant's ability to make bond; however, the Court asserts that AppeHant failed to prove
that he was unable to post the set bond, citing on Scon and Balawajder.This case is readily
distinguishable by those cited by the Court. In Exparte Swtt, the defendant was charged with aggravated kidnapping, and the trial
court cited the "'personal' nature" of the offense as a reason for setting a high bond. The
only evidence presented in Sit was the defendant's testimony. AdditionaHy, the paragraph
cited by this Court in full states: At trial, Scott testified that he and his family lacked sufficient assets or financial resources to post the $ 100,000 bond, but he did not detail either his or his family's specific assets and financial resources, nor did he e what e :Jany, were made tofurnish the bond. See Bawa]r v. State, 759 S.W.2d 504, 506 (Tex. App.-'Fort Worth 1988, pet. refd) (noting that vague references to inability to make bond do not justify a reduction in the amount set); Mi, 631 S.W.2d at 827 (recognizing that it is incumbent on the accused to show that he has made an effort to furnish bond in amount set) Scott indicated that he believed his family could raise the bond fee if the bond were lowered to $ 25,000. He testified that prior to his arrest he was working as a forklift operator and he would be able to return to his job if he were released on bond. However, Scott presented no other witnesses or evidence regarding his abill~tyto make bond. Exparte Scott,122 S.W.3d 866, 870 (Tex. App.-Fort Worth 2003) (emphasis added).
As was the case in Scott, the defendant in Balajwader was charged with violent offenses -
aggravated rape and aggravated robbery, In both Swu and Balaj"wader, the courts relied on
the violent nature of the offenses charged, which is not present in this case. Additionally,
here, there were no "vague references" to AppeHant's ability to make bond. Ba/awder v. State, 759 S.W.2d 504, 506 (Tex. App.-Fort Worth, 1988, pet. ref d.). Here, Appellant offered the testimony of Woodley Fisher, hcensed bail bondsman, and Misti Goodson, AppeHant's wife. Their testimony demonstrated that Appellant attempted to post the bond and was unable to do so, which is the defendant's burden under
the law. Exparte Bogia,56 S.W.3d 835, 837 (Tex. App,-Houston [Ist Dist}2001, no pet'). Both Fisher and Goodson testified that multiple family and friends supplied information to
cosign on the bond (R R 10). Fisher testified that he reviewed the Goodson's financial
information, including assets and banking information, and based on the information provided, his professional opinion is that Appellant would not be able to post a bond greater
than $75,000. (R R 10-11). The evidence presented at the hearing is sufficient to meet the
Appellanr's burden of proving that he was unable to post the current bond. By holding that Appellant did not meet this burden the Court is requiring a
defendant to take the stand and prove up the specifics of his financial situation, which he is not required to do under the law. The decision of this Court creates a situation where a
defendant is forced to choose between his Fifth Amendment right not to testify and his
Eighth Amendment right to be released on reasonable bond
Appellant's Motion for Rehearing Page 2 of 5 II. THE COURT'S DECISION RELIES ON A STRING OF UNPUBLISHED CASES TO SUPPORT ITS CONCLUSION
This decision relies on a string of unpublished cases that lack the proper authority to
uphold the current bail. This is incongruous of the legal framework of precedential
authority. TRAP 47.7(a). In addition, the only published case cited, is readily distinguishable from the present case.
In Maldonado, the defendant's bond was set at $2.5 million based on the same formula
at issue here. However, the evidence presented on the behalf of Maldanado established that
he had lived in Texas for less than a year, had no family in Texas, and the witnesses who
testified in his defense could not afflrmatively state that he would not flee the jurisdiction if
released on bond. Maldonadov. State, 999 S.W.2d 91, 94 (Tex. App.- Houston [l4th Dist.] 1999, pet. ref d). This case is more similar to the distinctions provided in Ma/danado than the
facts of Maldanado. Maldonado rehed on dwigv. State, 812 S.W.2d 323 (Tex. Crim. App.
1991) to support the reduction of bail. Ludwig stood charged of capital murder, and the Court rejected Maldonado's argument stating:
Specifically, the courts noted the defendant: (1) was a long--time resident of Texas (2) owned real property in the State; (3) held a license to practice veterinary medicine in Texas and had such a practice in the Katy, Texas; (4) had several close relatives, also long-time Texas citizens, willing to sign an appearance bond; (5) was currently involved in a child custody proceeding in Harris County that would require his presence; and (6) had his assets frozen by a temporary court order issued in connection with his divorce. See id at 324. The court concluded that both the trial court and the court of appeals had placed too much emphasis on the future safety of other potential victims in light of the evidence relevant the other factors listed in article 17.15. See id at 325.
Clearly, the facts relied on by the court in I.ndw are distinguishable from those presented in this case. As we have already noted, appellant, unlike the defendant in d has no significant ties to the county or even to the State. The only commonality we see between the two cases is that both defendants were charged with serious offenses. If anything, d actuaUy supports the trial court's decision to set a high bail considering the little assurance presented that appellant would remain in Harris County if his bail were reduced, given his lack of ties to the community and the nature of his alleged offense. Ma/donado, 999 S.W.2d at 95-6.
Here, Appellant is not charged with a violent offense and provided evidence that Appellant
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ACCEPTED 01-15-00288-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 5/6/2015 4:44:56 PM CHRISTOPHER PRINE CLERK
IN THE COURT OF APPEALS FIRST SUPREMEJUDICIAL DISTRICT FILED IN HOUSTON, TEXAS 1st COURT OF APPEALS HOUSTON, TEXAS NO. 01-15-00288-CR 5/6/2015 4:44:56 PM KEITH W. GOODSON, CHRISTOPHER A. PRINE Clerk Appellant On Appeal from the
184th District Court of vs. Harris County, Texas
Cause No. 1457737 THE STATE OF TEXAS, Respondent
MOTION FOR REHEARING COMES NOW, Appellant, Keith W, Goodson, by and through his attorney of record,
Whitney C. Kubik and mes this, his Motion for Rehearing for the foHowing reasons:
I. THE COURT'S DECISION PLACES AN INAPPROPRIATE BURDEN ON THE DEFENDANT TO TESTIFY
Respectfully, this Court's opinion, dated April 21, 2015, places an improper burden
on the Appellant's testimony. Based on the decision of this Court, a defendant is required to
choose between two constitutional rights - his right to be released on reasonable bail or his right not to testify. The Court correcdy cites the law regarding the non-controlling weight of the defendant's ability to make bond; however, the Court asserts that AppeHant failed to prove
that he was unable to post the set bond, citing on Scon and Balawajder.This case is readily
distinguishable by those cited by the Court. In Exparte Swtt, the defendant was charged with aggravated kidnapping, and the trial
court cited the "'personal' nature" of the offense as a reason for setting a high bond. The
only evidence presented in Sit was the defendant's testimony. AdditionaHy, the paragraph
cited by this Court in full states: At trial, Scott testified that he and his family lacked sufficient assets or financial resources to post the $ 100,000 bond, but he did not detail either his or his family's specific assets and financial resources, nor did he e what e :Jany, were made tofurnish the bond. See Bawa]r v. State, 759 S.W.2d 504, 506 (Tex. App.-'Fort Worth 1988, pet. refd) (noting that vague references to inability to make bond do not justify a reduction in the amount set); Mi, 631 S.W.2d at 827 (recognizing that it is incumbent on the accused to show that he has made an effort to furnish bond in amount set) Scott indicated that he believed his family could raise the bond fee if the bond were lowered to $ 25,000. He testified that prior to his arrest he was working as a forklift operator and he would be able to return to his job if he were released on bond. However, Scott presented no other witnesses or evidence regarding his abill~tyto make bond. Exparte Scott,122 S.W.3d 866, 870 (Tex. App.-Fort Worth 2003) (emphasis added).
As was the case in Scott, the defendant in Balajwader was charged with violent offenses -
aggravated rape and aggravated robbery, In both Swu and Balaj"wader, the courts relied on
the violent nature of the offenses charged, which is not present in this case. Additionally,
here, there were no "vague references" to AppeHant's ability to make bond. Ba/awder v. State, 759 S.W.2d 504, 506 (Tex. App.-Fort Worth, 1988, pet. ref d.). Here, Appellant offered the testimony of Woodley Fisher, hcensed bail bondsman, and Misti Goodson, AppeHant's wife. Their testimony demonstrated that Appellant attempted to post the bond and was unable to do so, which is the defendant's burden under
the law. Exparte Bogia,56 S.W.3d 835, 837 (Tex. App,-Houston [Ist Dist}2001, no pet'). Both Fisher and Goodson testified that multiple family and friends supplied information to
cosign on the bond (R R 10). Fisher testified that he reviewed the Goodson's financial
information, including assets and banking information, and based on the information provided, his professional opinion is that Appellant would not be able to post a bond greater
than $75,000. (R R 10-11). The evidence presented at the hearing is sufficient to meet the
Appellanr's burden of proving that he was unable to post the current bond. By holding that Appellant did not meet this burden the Court is requiring a
defendant to take the stand and prove up the specifics of his financial situation, which he is not required to do under the law. The decision of this Court creates a situation where a
defendant is forced to choose between his Fifth Amendment right not to testify and his
Eighth Amendment right to be released on reasonable bond
Appellant's Motion for Rehearing Page 2 of 5 II. THE COURT'S DECISION RELIES ON A STRING OF UNPUBLISHED CASES TO SUPPORT ITS CONCLUSION
This decision relies on a string of unpublished cases that lack the proper authority to
uphold the current bail. This is incongruous of the legal framework of precedential
authority. TRAP 47.7(a). In addition, the only published case cited, is readily distinguishable from the present case.
In Maldonado, the defendant's bond was set at $2.5 million based on the same formula
at issue here. However, the evidence presented on the behalf of Maldanado established that
he had lived in Texas for less than a year, had no family in Texas, and the witnesses who
testified in his defense could not afflrmatively state that he would not flee the jurisdiction if
released on bond. Maldonadov. State, 999 S.W.2d 91, 94 (Tex. App.- Houston [l4th Dist.] 1999, pet. ref d). This case is more similar to the distinctions provided in Ma/danado than the
facts of Maldanado. Maldonado rehed on dwigv. State, 812 S.W.2d 323 (Tex. Crim. App.
1991) to support the reduction of bail. Ludwig stood charged of capital murder, and the Court rejected Maldonado's argument stating:
Specifically, the courts noted the defendant: (1) was a long--time resident of Texas (2) owned real property in the State; (3) held a license to practice veterinary medicine in Texas and had such a practice in the Katy, Texas; (4) had several close relatives, also long-time Texas citizens, willing to sign an appearance bond; (5) was currently involved in a child custody proceeding in Harris County that would require his presence; and (6) had his assets frozen by a temporary court order issued in connection with his divorce. See id at 324. The court concluded that both the trial court and the court of appeals had placed too much emphasis on the future safety of other potential victims in light of the evidence relevant the other factors listed in article 17.15. See id at 325.
Clearly, the facts relied on by the court in I.ndw are distinguishable from those presented in this case. As we have already noted, appellant, unlike the defendant in d has no significant ties to the county or even to the State. The only commonality we see between the two cases is that both defendants were charged with serious offenses. If anything, d actuaUy supports the trial court's decision to set a high bail considering the little assurance presented that appellant would remain in Harris County if his bail were reduced, given his lack of ties to the community and the nature of his alleged offense. Ma/donado, 999 S.W.2d at 95-6.
Here, Appellant is not charged with a violent offense and provided evidence that Appellant
has lived in the Houston area for over ten years, owned property in Houston for over ten years, has been married and has three children who attend schools in the Houston area, has close relatives who live in the Houston area, multiple relatives were willing to cosign to post
AppeHant's Motion for Rehearing Page 3 of 5 his bond, and the Appellant was willing to be subject to ankle monitoring and surrender his
passport. Therefore, the Court incorrecdy rehed on Ma/donado to support upholding such a high bond. The Court rejected the published cases cited in Appellant's Brief, which are much more similar to the present facts and relied on a string of unpubhshed cases that have no authority and one pubhshed case, which is supports the reduction of bail in this particular
III. THE COURT ERRONEOUSLY RELIES ON APPELLANTS PREVIOUS FELONY CONVICTION IN SUPPORT OF ITS CONCLUSION
Respectfully, this decision erroneously rehes on Appellant's previous felony conviction and successful completion of deferred adjudication as reason to uphold the bond.
This Court states that "no evidence was presented at the hearing regarding the issue" of
future safety of complainants and the community. The Court further asserts the previous felony conviction was only addressed by the State when prompted by the trial court.
However, evidence of the conviction was offered by the Appellant through the testimony of
Fisher, who testified the successful completion of the deferred adjudication led him to
conclude Appellant was not a flight risk. (R.R 10). While a defendant's criminal history is a
factor, the fact that Appellant had successfully completed a previous deferred adjudication is
a factor in favor of a bond reduction.
CONCLUSION
In conclusion, this decision places an undue burden of testifying on the Appellant,
which forces him to choose whether he wants to exercisehis right to be released on reasonable bond or exercise his Fifth Amendment right not to testify. Furthermore, the
Court relied on unpublished cases that lack authority and rejected the precedential authority
from this Court presented in Bogia. Finally, the Court relied on the Appellant's previous
felony conviction, when his successful completion of deferred adjudication is a factor that suggests the Appellant has a history of complying with obligations imposed by the Court.
.ppeUant,s Motion for Reh g Page 4 of 5 FOR THESE REASONS, the Apphcant respectfuHy prays that this Honorable Court grant this Motion for Rehearing in the above styled and numbered cause.
Respectfully submitted,
SBOT Number: 24090219 PO Box 310173 Houston, Texas 77231 Phone: 832.767.0794 Fax: 832.572.3961
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been dehvered to counsel for the State via certified mail, return receipt requested on this the 6th
day of May, 2015.
Appellans Motion for Rebe g Page 5 of 5