Karl Dean Stahmann v. State

ACCEPTED 03-14-00811-CR 3948120 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/29/2015 12:57:01 PM JEFFREY D. KYLE CLERK NO. 03-14-00811-CR

KARL DEAN STAHMANN § IN THE THIRD FILED IN 3rd COURT OF APPEALS § AUSTIN, TEXAS v. § DISTRICT COURT 1/29/2015 12:57:01OF PM § JEFFREY D. KYLE STATE OF TEXAS § APPEALS OFClerkTEXAS

STATE’S RESPONSE TO APPELLANT’S MOTIONS TO EXPEDITE APPEAL

TO THE HONORABLE JUSTICES OF SAID COURT:

COMES NOW THE STATE OF TEXAS, by and through its Assistant District Attorney, and files this its Response to Appellant’s Motions to Expedite the Appeal in the above-captioned cause. The State asks that the Court deny Appellant’s Motions at least in part, and would show the following:

I. Even if the Court Finds an Abuse of Discretion, the Appropriate Remedy is an Order Remanding the Case to the Trial Court

Appellant contends he was entitled to bail following his adjudication for the state jail felony offense of Credit Card Abuse. Motion to Expedite at 1. The State contests Appellant’s assertions and is prepared to brief this case if the Court desires briefs. Motion to Expedite at 2, Second Motion to Expedite at 2, RR vol. 1 at 5-6; Tex. R. App. P. 31.1. However, even if after its review the Court decides it was an abuse of discretion to deny bail, as Appellant alleges, the State respectfully submits that the Court lacks the statutory authority to set bail as Appellant requests.

In his first motion, Appellant moves the Court to expedite its review of the appeal and “set reasonable bail pending the appeal of the merits of the case.” Motion to Expedite Appeal at 3. In his second motion, Appellant requests “that this Court set bail in each count of the indictment at $5,000.00 for a total of $10,000.00.” Second Motion to Expedite Appeal at 4.

Article 44.04(h) of the Code of Criminal Procedure only gives intermediate appellate courts authority to set bail after the conviction is reversed, and before a petition for discretionary review is filed. See Tex. Crim. Proc. Code Ann. art. 44.04 (West, Westlaw through 2013 Sess.); see also Rojas v. State, 830 S.W.2d 679, 680 (Tex. App.—San Antonio 1992, no pet.) (citing Tex. Code Crim. Proc. art. 44.04(h) (“We may set bail after the opinion issues, if requested before a petition for discretionary review is filed and before mandate issues.”)) (emphasis added).

Therefore, in the event the Court finds an abuse of discretion in denying bail, the appropriate remedy is remanding the case to the trial court to either set bail or hold another hearing to determine whether good cause exists to deny bail. See Burroughs v. State, 611 S.W.2d 106, 108 (Tex. Crim. App. 1981), (citing Ex parte Hebert, 579 S.W.2d 486, 487 (Tex. Crim. App. 1979) (in which the Court of Criminal Appeals remanded the case to the trial court)).

II. PRAYER

WHEREFORE, PREMISES CONSIDERED, the State respectfully prays that the request in Appellant’s Motions that the Court set bail, in any amount, be DENIED. Further, the State prays for all relief, both special and general, in law and in equity, to which it may be entitled.

Respectfully submitted,

/s/ Joshua D. Presley Joshua D. Presley SBN: 24088254 preslj@co.comal.tx.us Comal Criminal District Attorney’s Office 150 N. Seguin Avenue, Suite 307 New Braunfels, Texas 78130 Ph: (830) 221-1300 / Fax: (830) 608-2008

CERTIFICATE OF SERVICE

I, Joshua D. Presley, Assistant District Attorney for the State of Texas, Appellee, hereby certify that a true and correct copy of this State’s Response to Appellant’s Motions to Expedite Appeal has been delivered to Appellant KARL DEAN STAHMANN’s attorney of record in this matter:

Charles F. Baird jcfbaird@gmail.law Baird Farrelly, PLLC 2312 Western Trails Blvd, Suite 102-A Austin, TX 78745 Counsel for Appellant on Appeal

by electronic mail service to the above email address through efile.txcourts.gov, this 29th day of January, 2015.

/s/ Joshua D. Presley Joshua D. Presley