Whitney Nicole Carter v. State

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

Nos. 07-13-00207-CR, 07-13-00208-CR

WHITNEY NICOLE CARTER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE ____________________________________

TONY DARELL JOHNSON, APPELLANT

THE STATE OF TEXAS, APPELLEE

On Appeal from the 100th District Court Carson County, Texas Trial Court Nos. 5052, 5053; Honorable Stuart Messer, Presiding

May 14, 2015

ON MOTION TO SET BAIL

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

By opinion dated April 27, 2015, we reversed the convictions of appellants Tony

Darell Johnson and Whitney Nicole Carter for a state jail felony violation of the money laundering statute1 and remanded the cases to the trial court for proceedings consistent

with our opinion.2 Appellants have each filed a motion requesting that we set bail under

the provisions of article 44.04(h) of the Texas Code of Criminal Procedure. TEX. CODE

CRIM. PROC. ANN. art. 44.04(h) (West 2006). In their motions, appellants state they have

been continuously confined, either in the Carson County jail or the Texas Department of

Criminal Justice, since sentencing on June 12, 2013. Appellants request we set

reasonable bail of no more than $1,500. The State did not respond to appellants’

requests for bail. Nor did the State file a motion for rehearing of our April 27 opinion

and judgment.

Article 44.04(h) provides that on reversal of a conviction, a defendant is entitled

to release on reasonable bail, regardless of the length of term of imprisonment, pending

final determination of the appeal by the State or defendant on petition for discretionary

review. The defendant’s right to release under this statute “attaches immediately on the

issuance of the Court of Appeals’ final ruling as defined by Tex. Cr. App. R. 209(c).”

See TEX. CODE CRIM. PROC. ANN. art. 44.04(h) (W EST 2006); Thornton v. State, 420

S.W.3d 104 (Tex. App.—Amarillo 2012, per curiam order) (discussing the meaning of

“final ruling of the court” for purposes of applying former criminal appellate rule 209(c)

under article 44.04(h)); In re Keeter, 134 S.W.3d 250, 253 & 253 n.2 (Tex. App.—Waco

2003, orig. proceeding) (same).

1 TEX. PENAL CODE ANN. § 34.02(a)(1),(e)(1) (West 2011). 2 Carter and Johnson v. State, Nos. 07-13-00207-CR, 07-13-00208-CR, 2015 Tex. App. LEXIS 4271 (Tex. App.—Amarillo Apr. 27, 2015, n.p.h.) (designated for publication).

2 Article 44.04(h) further provides that a court of appeals shall determine the

amount of bail if requested before a petition for discretionary review is filed. Guided by

the criteria of article 17.15 of the Code of Criminal Procedure,3 we set reasonable bail in

the amount of $5,000 for appellant Whitney Nicole Carter and in the amount of $5,000

for appellant Tony Darell Johnson. The amount of bail set for each appellant is

conditioned on the sureties on the bail being approved by the court where the trial was

originally had. See TEX. CODE CRIM. PROC. ANN. art. 44.04(h) (West 2006). See also

TEX. R. APP. P. 51.2(c)(1) (providing that if an appellate court reverses a judgment and

orders a new trial, the defendant, if in custody, must be released upon giving bail).

It is so ordered.

Per Curiam

Do not publish.

3 See TEX. CODE CRIM. PROC. ANN. art. 17.15 (West 2005); Thornton, 420 S.W.3d at 106.