Opinion
NO. 07-10-0347-CR
02-09-2012
GREGORY WAYNE WILSON, APPELLANT v. THE STATE OF TEXAS, APPELLEE
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 57,774-E; HONORABLE DOUGLAS WOODBURN, JUDGE Before CAMPBELL and HANCOCK and PIRTLE, JJ.
SECOND ORDER DENYING MOTION FOR APPELLATE BOND
Appellant, Gregory Wayne Wilson, was convicted by a jury for possession of a controlled substance enhanced by two prior state jail felonies and assessed punishment at ten years confinement and a $7,500 fine. His conviction was affirmed by this Court. See Wilson v. State, No. 07-10-0347-CR, 2011 Tex.App. LEXIS 8487 (Tex.App.-Amarillo Oct. 25, 2011, no pet.).
See Tex. Health & Safety Code Ann. § 481.115(b) (West 2010). An offense under this section is a state jail felony.
See Tex. Penal Code Ann. § 12.42(a)(1) (West 2011). If it is shown on the trial of a state jail felony that a defendant has previously been convicted of two state jail felonies, on conviction the defendant shall be punished for a third-degree felony.
On December 16, 2011, Appellant, proceeding pro se, filed a request for an appeal bond. By order dated December 21, 2011, this Court denied the request for appeal bond. See Wilson v. State, No. 07-10-0347-CR, 2011 Tex.App. LEXIS 10106 (Tex.App.--Amarillo Dec. 21, 2011, no pet.). No petition for discretionary review was filed and mandate was issued on January 11, 2012.
On January 20, 2012, Appellant filed a Motion for Appellate Bond (Temporary Relief), alleging illegal confinement and restraint of liberty and again requesting that this Court grant him an appellate bond. Relying on the Eighth and Fourteenth Amendments of the United States Constitution and Rule 52.10 of the Texas Rules of Appellate Procedure (entitled "Temporary Relief"), Appellant claims that "[i]t is oppressive and unjust" to deny an appellate bond. For the reasons expressed herein, we deny Appellant's renewed request for an appellate bond.
Initially, we note that Rule 52.10 of the Texas Rules of Appellate Procedure applies to a request for temporary relief during the pendency of a court's action on a petition in an original proceeding filed in the Supreme Court or a court of appeals. Rule 52.10 does not apply to the availability of an appeal bond in an appeal from a criminal conviction. Article 44.04 of the Texas Code of Criminal Procedure, entitled "Bond Pending Appeal," specifically governs the availability of bail during the appellate process in a criminal case.
When the punishment assessed for the felony offense of possession of a controlled substance is equal to or less than 10 years confinement, a defendant may be released on bail pending determination of the appeal. Tex. Code Crim. Proc. Ann. art. 44.04(b). If a defendant's conviction is reversed by a decision of a court of appeals, the defendant is entitled to be released on reasonable bail, regardless of the length of the term of imprisonment, pending final determination of an appeal by the State or the defendant on a motion for discretionary review. Tex. Code Crim. Proc. Ann. art. 44.04(h). If a defendant's conviction is affirmed by a decision of a court of appeals, the defendant is only entitled to remain on bond pending final determination of a motion for discretionary review. See Tex. Code Crim. Proc. Ann. art. 44.04(b) and (d).
Here, Appellant is not entitled to be released on bond for several reasons. First, his conviction was affirmed, not reversed by this Court. Secondly, by failing to file a petition for discretionary review during the time allowed by Rule 68.2 of the Texas Rules of Appellate Procedure, the determination of Appellant's appeal became final and mandate has issued. Consequently, Appellant's Motion for Appellate Bond is denied.
Appellant may be able to have his allegations of illegal confinement and restraint of liberty addressed by filing a post-conviction writ of habeas corpus returnable to the Texas Court of Criminal Appeals in Austin, Texas. Tex. Code Crim. Proc. Ann. art 11.07 (West Supp. 2011). Bail pending disposition of a writ of habeas corpus is a matter under the direction and authority of the judge or court issuing the writ. See Tex. Code Crim. Proc. Ann. art 11.32 (West Supp. 2011).
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Per Curiam Do not publish.