Ex Parte Jimmie Lee Townsend--Appeal from 102nd District Court of Red River County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00112-CR

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EX PARTE

JIMMIE LEE TOWNSEND

On Appeal from the 102nd Judicial District Court

Red River County, Texas

Trial Court No. CR00379

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Jimmie Lee Townsend, the former chief of police of the City of Clarksville, has been convicted of the felony offense of theft by a public servant of property worth over $1,500.00 but less than $20,000.00, for taking a laptop computer from the police evidence room. For the offense, Townsend was sentenced to four years' confinement and a $4,000.00 fine and then denied bail on appeal. His conviction being on appeal, Townsend urges now that denying him bail pending that appeal was error.

Trial courts are authorized to deny bail on appeal under certain circumstances:

Pending the appeal from any felony conviction other than a conviction described in Subsection (b) of this section [which does not apply here] the trial court may deny bail . . . if there then exists good cause to believe that the defendant would not appear when his conviction became final or is likely to commit another offense while on bail . . . .

Tex. Code Crim. Proc. Ann. art. 44.04(c) (Vernon Supp. 2004 2005) (emphasis added). Trial courts have discretion, under the statutory conditions, to deny bail pending appeal. Ex parte Anderer, 61 S.W.3d 398, 401 (Tex. Crim. App. 2001); Anderson v. State, 99 S.W.3d 650, 651 (Tex. App. Waco 2003, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules or principles, in other words, if its act was arbitrary or unreasonable. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Just because we might make a different decision than the trial court does not demonstrate that an abuse of discretion has occurred. Id.

At the hearing regarding bail pending appeal, the trial court took judicial notice of the evidence from the underlying trial, which included not only evidence of the theft for which Townsend was convicted but also, apparently, evidence that Townsend sexually molested a thirteen-year-old girl. Also at the bail hearing, the trial court heard evidence that (1) Townsend had sexual contact with two other girls; (2) one of the two girls had denied any such contact occurred; (3) none of the alleged sexual abuse has been prosecuted; // (4) Townsend denied the sexual abuse allegations; (5) Townsend also has indictments pending against him for tampering with a government document and theft of a firearm by a public servant; (6) Townsend has never failed to appear for a court appearance; and (7) Townsend lived with the Lorance family, which included two children, pending Townsend's trial and following his heart attack and bypass surgery, and there was never any hint of sexual impropriety by Townsend with the Lorances' minor daughter.

In announcing its denial of bail, the trial court expressed concern about the allegations of sexual misconduct and about Townsend's proposed release to the Lorance home, where Townsend would live in the same home as a fourteen-year-old girl. The trial court also stated that, though the evidence did not raise the risk of flight, the court nonetheless believed that, in light of the other pending prosecutions, a danger of flight did exist. It thus based the denial of bail on the risks that Townsend would commit another criminal offense and would flee.

While we may not have reached the same decision as the trial court were we placed in its role, on the record before us we cannot say the trial court's decision was made without reference to any guiding rules or principles. During the bail hearing, throughout the trial, and at other times, the trial court had the opportunity to observe Townsend's behavior and demeanor and that of the various other witnesses. We have had no such opportunity, and that is not our role. The trial court weighed its various concerns on the record, but ultimately decided Townsend posed a serious enough risk of committing additional crimes, and even a flight risk, to justify denial of bail pending appeal. An abuse of discretion has not been shown.

We affirm the order denying bail.

Josh R. Morriss, III

Chief Justice

Date Submitted: June 23, 2005

Date Decided: June 24, 2005

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