Andy DeWayne Posey v. The State of Texas--Appeal from 181st District Court of Randall County
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NO. 07-04-0569-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JULY 11, 2005
______________________________
ANDY DEWAYNE POSEY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
NO. 15,058-B; HON. JOHN B. BOARD, PRESIDING
_______________________________
Order on Application for Bail
_______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
By opinion dated May 25, 2005, we reversed the conviction of appellant Andy
DeWayne Posey and remanded the cause to the trial court for further proceedings.
Pending before us is appellant’s application for bail.
When a conviction is reversed and the appellant is in custody, article 44.04(h) of the
Texas Code of Criminal Procedure requires that he be “entitled to release on reasonable
bail, regardless of the length of 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) (Vernon Supp. 2004-2005). If the defendant requests bail
before a petition for discretionary review has been filed, the Court of Appeals shall
determine the amount of bail. Id.
We previously asked that appellant provide us with certain information we are
required to consider in determining the amount of bail. It includes 1) “the length of the
sentence and the nature of the offense,” 2) the applicant’s “work record, family ties, . . .
length of residency, ability to make the bond, prior criminal record, and conformity with
previous bond conditions,” 3) other outstanding bonds, and 4) the aggravating factors, if
any, involved in the offense. Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex. Crim. App.
1981). Appellant seeks bail in the amount of $5,000 which was the amount set by the trial
court. However, the State has requested that bail be set in the amount of $100,000 due
to appellant’s multiple prior convictions, his sentence of 36 years, the fact that the basis for
reversal did not relate to the sufficiency of the evidence, and the State’s representation that
it has the ability to cure (on retrial of the cause) the defect which resulted in the reversal.
The information before the court indicates that appellant does have ties to the
community. Yet, it also indicates that he is a convicted felon and has a long history of
engaging in criminal activity. So too must we acknowledge that the sentence levied in this
cause was far from de mininis and that appellant may well face a long term of incarceration
should he again be convicted. This certainly is a consideration when determining whether
appellant will appear when the cause is retried. Accordingly, we grant appellant’s request
for bail and condition his release on his posting bail in the amount of $50,000.
Per Curiam
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