NO. 06

- 13

- 00206

- CR

IN THE

COURT OF APPEALS

FOR THE

SIXTH APPELLATE DISTRICT

OF

TEXAS

AT TEXARKANA

EX PARTE: CINQUE ROSS

Appealed from the 188 th District Court of Gregg County , Texas

Trial Cause No. 43,104

- A

BRIEF FOR APPELLANT CINQUE ROSS

Appellant does not request oral argument Hough

- Lewis ( “ Lew ” ) Dunn

Attorney at Law

201 E. Methvin, Suite 102

P.O. Box 2226

Longview, Texas 75606

903

- 757

- 6711

FAX 903

- 757

- 6712

Texas State Bar No. 06244600

ATTORNEY FOR

APPELLANT ACCEPTED

06-14-00206-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

12/19/2014 5:21:49 PM

DEBBIE AUTREY

CLERKii NAMES OF ALL PARTIES AND THEIR COUNSEL

In order that the members of the court may determine whether they are

disqualified to serve or should recuse themselves, Appellant certifies pursuant to Rule

38.1(a), TEX. R. APP. P., that the following is a complete list of the names of all

parties to the trial court's judgment appealed from and the names and addresses of all

trial and appellate counsel:

(a) Cinque Ross

Defendant/Appellant

(b) H o ugh

- Lewis ( “ Lew ” ) Dunn, Attorne y at Law

P. O. Box 2226

Longview, TX 75606

(Appellant’s Counsel at Bond Hearing and on Appeal)

( c ) Rick Hagan, Attorney at Law

222 N. Fredonia

Longview, TX 75601 (Appellant’s Trial Counsel)

(d) Carl Dorrough, Criminal District Attorney

Gregg County Courtho use

101 E. Methvin

Longview, TX 75601

(e) Debbie Garrett

, Assistant District

Attorney Gregg County Courthouse

101 E. Methvin

Longview, TX 75601

(State’s Counsel at Trial and at Bond Hearing)

(f) Zan Colson Brown Assistant District Attorney

Gregg County Courtho use

101 E. Methvin

Longview, TX 75601

(State’s Counsel on Appeal)TABLE OF CONTENTS

PAGE

NAMES OF ALL PARTIES AND THEIR COUNSEL

.......................... ii

TABLE OF CONTENTS

........................................................................ ii i

INDEX OF AUTHORITIES

................................................................... iv

STATEMENT OF THE CASE

................................ ................................ ........ v

SOLE ISSUE PRESE N TED.................................

............................. v i

STATEMENT OF FACTS

.......................................... ....... ....................... 1

Testimony of Cinque Ross

............................................................... 2

SUMMARY OF THE ARGUMENT........................

.............................. 3

ARGUMENT AND AUTHORITIES.........................

.......... .................... 3

SOLE ISSUE, RESTATED

..................................... .............................. 3

THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO

REDUCE THE BOND ON APPEAL

PRAYER FOR RELIEF

........... ... ........................... ....... ....................... 6

CERTIFICATE OF DELIVERY

........................... .............................. 7

CERTIFICATE OF COMPLIANCE

....................... .............................. 8

iiiiv INDEX OF AUTHORITIES

CASES PAGE

Clemons v. State

, 220 S.W.3d 176

.................... .............................. 5

(Tex. App

– Eastland 2007, no pet.)

Ex parte Beard

, 92 S.W.3d 566

..................................................... 4

(Tex. App.

– Austin 2002, pet. ref’d)

Ex parte Davis

, 147 S.W.3d 546

..................... .............................. 4

(Tex. App.

– Waco 2004, no pet.)

Ex parte Emery

, 970 S.W.2d 144

..................... .............................. 5

(Tex. App.

– Waco 1998, no pet.)

Ex parte Henson, 131 S.W.3d 645

................. .............................. 4

(Tex. App.

– Texarkana 2004, no pet.)

STATUTES

U.S. CONST.

amend. VIII

................................ ................................ .................. 4

TEX. CONST.

art. 1, § 13

............................................... .............................. 4

TEX. CODE CRIM. P.

art. 17.15

............... ............................................. ................ 4 1

1 Note: Statutes refer to latest edition of Vernon’s statutes, annotated.v STATEMENT OF THE CASE

This is an appeal of the denial of the trial court of Appellant’s request

to reduce the bond for appeal from $100,000.00 to a lesser amount that would

be within his fin ancial abilities, having been heretofore found guilty of the

offense of unlawful possession of a firearm and sentenced to eight years,

TDCJ. The appeal of the conviction has been perfected and filed in this

Honorable Court under Cause No. 06

- 14

- 00157

- CR.vi SOLE ISSUE PRESENTED

THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO REDUCE

THE BOND ON APPEAL1 NO. 06

- 14

- 00206

- CR

IN THE COURT OF APPEALS

FOR THE

SIXTH APPELLATE DISTRICT OF TEXAS

AT TEXARKANA

EX PARTE: CINQUE ROSS

Appealed from the 124th District Court of Gregg County, Texas

Trial Cause No. 40,573

- B

BRIEF FOR APPELLANT

CINQUE ROSS

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

COMES NOW CINQUE ROSS, Appellant herein, and makes his appeal

from the denial of the Trial Court to reduce his appeal bond from the amount of

$100,000, and would sho w as follows:

STATEMENT OF FACTS

On July 9, 2014, there was a bench trial and at its conclusion, the Trial

Court found Appellant guilty of felon in possession of a firearm. At the sentencing

phase on August 4, 2014, the trial court sentenced him to eight years confinement

in TDCJ (Bond CR 6). Appellant indicated his desire to appeal, and the Trial

Court set the appeal bond at $100,000.00 (Bond CR 5: entry on docket sheet).2 Appellant filed an “Motion to Reduce Bond Appeal” on October 8, 2014. A

hearing was set for October 30, 2014. At the hearing Appellant presented testimony

of one witness.

Testimony of Cinque Ross

Appellant testified (RR 5). He was born in Longview, Texas, and sent most of his

adult life there (RR 6). He then gave the names of his famil y members that reside in the

Longview area: mother, father, brothers and extended family.

While the case was pending for trial, Appellant had made and honored a bond in the

amount of $30,000, making all of his court appointments and hearings (RR 7).

Befor e his troubles in the present case, Appellant had worked and held steady

employment for a well service company about 70 hours a week (RR 7). He believed that if he

were released on bond, he would be able to return to that job (RR 8).

Appellant went on to state that, if the court were to impose restrictions and terms on the

bond, that he would be able to comply with those, like wearing an ankle monitor, reporting to a

probation officer, and drug testing (RR 8).

Appellant was concerned about his teen age so n, and believed it would be beneficial for

that young man to have him out of jail in order to help him (RR 8

- 9).

Appellant also was relied upon by his mother for assistance in her everyday chores

around the house (RR 9).3 Appellant was indigent and had no cash for making a bond in the amount of

$100,000 (RR 9

- 10). However, he thought his family could put together $2500 as a

bond premium toward an appeal bond (RR 10).

Finally, Appellant again stated that if he were allowed to make a reduced

bond, he would c omply with any reasonable terms and conditions that the Court

might require (RR 10).

After concluding with his testimony, Appellant rested (RR 12). The State

presented no evidence (RR 12). Argument followed (RR 12

- 14). The Trial

Court then ruled that the a ppeal bond would remain at $100,000 and denied

any reduction (RR 14; Bond CR 15).

SUMMARY OF THE ARGUMENT

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING A REDUCTION

IN APPEAL BOND, FOR THE FOLLOWING REASONS, AMONG OTHERS:

APPELLANT IS INDIGENT AND DOES NOT HAVE THE FINANCIAL

RESOURCES TO POST THE BOND AS SET BY THE TRIAL COURT;

APPELLANT’S OFFENSE IS A LOWER TYPE OF FELONY GRADE

OFFENSE AND HIS SENTENCE IS MINIMAL COMPARED TO OTHER

FELONIES; HE HAS TIES TO THE COMMUNITY; HE IS NOT A FLIGHT

RISK

ARGUM ENT AND AUTHORITIES

SOLE ISSUE, RESTATED: THE TRIAL COURT ABUSED ITS

DISCRETION IN FAILING TO REDUCE THE BOND ON APPEAL4 It has been held that the burden is on the defendant to prove that bail is

excessive. Ex parte Henson, 131 S.W.3d 645 (Tex. App.

– Texarkana 2004, no pet.);

Ex parte Beard

, 92 S.W.3d 566 (Tex. App.

– Austin 2002, pet. ref’d). Courts have

also held that, although the trial court has discretion in setting bail, that discretion is

not without limits, stating that bail in a partic ular amount can be oppressive if it is

based upon the assumption that the accused cannot afford bail in that amount and for

the express purpose of forcing the accused to remain in jail pending trial. Ex parte

Davis

, 147 S.W.3d 546 (Tex. App.

– Waco 2004, n o pet.). U.S. CONST. amend. VIII

and TEX. CONST., art. 1, § 13, also provide prohibitions against excessive bail.

There are five areas that must be considered in setting bond, found in TEX.

CODE CRIM. P., art. 17.15, including such things as:

(1) reasonable as surance that the undertaking will be complied with;

(2) bail not to be used as an instrument of oppression;

(3) the nature of the offense and its circumstances;

(4) ability of the accused to make bail, and

(5) future safety of the victim and of the community.5 Cou rts have also noted that there are other considerations to be evaluated:

a. the punishment assessed

b. accused’s work record

c. ties to the community

d. length of residency

e. prior criminal record

f. conformity with prior bail bond requirements

g. ability or inability to make a bail bond, and

h. the existence of outstanding bail bonds

See, Clemons v. State

, 220 S.W.3d 176, 178 (Tex. App

– Eastland 2007, no pet.);

Ex parte Emery

, 970 S.W.2d 144 (Tex. App.

– Waco 1998, no pet.).

The record in this case is quite clear: Appellant is without the financial

resources to make the $100,000.00 appeal bond. He lacks any property but believed

that his family could come up with a bond premium of $2500. While previously on

bond, Appellant came to court when matters were set for hea rings (CR 83). He is

not a flight risk; he has ties to the community, and has been living in the

community all of his adult life, employed full time.

The criminal statute under which he was convicted is a third degree felony

.

His sentence is eight years, poles apart from a maximum of life to 99 years that6 might be assessed in a first degree felony.

There was no evidence that some other offense was outstanding or that

Appellant was under some other bond. Appellant was ready to comply with reasonable

terms and conditions of a bond.

After weighing all of the facts and circumstances of this particular case, and

after considering the precedents that delineate the parameters for setting a fair and

just bond, after considering the pros and cons, and after examini ng the interests of

Appellant as well as the interests of the community, this Court should find that there

was an abuse of discretion, that the appellate bail bond figure of $100,000.00

is excessive, and should reform the amount by setting a reasonable bon d at a

much lower figure, so that Appellant would have a reasonable possibility to make

bond pending appeal, with any reasonable conditions that this Court may deem

appropriate.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, CINQUE ROSS, Appellant,

pra ys that, upon review of the issue presented, this Honorable Court of Appeals will

find the amount of appellate bail bond of $100,000 is excessive and should be set at

an amount within the financial abilities of Appellant, in keeping with the

considerations as set by statute and as interpreted by precedent, and for such other and7 further relief to which Appellant may be justly entitled.

Respectfully submitted,

HOUGH

- LEWIS (“LEW”) DUNN

Attorney at Law

201 E. Methvin, Suite 102

P.O. Box 2226

Longview, TX 75606

Tel. 903

- 757

- 6711

Fax 903

- 757

- 6712



### Hough

- Lewis (“Lew”) Dunn

HOUGH

- LEWIS (“LEW”) DUNN

Attorney for Appellant

State Bar License # 06244600

CERTIFICATE OF DELIVERY

I hereby certify that

a true and correct copy of the above and foregoing B rief

for Appellant was sent b y first class mail and/or hand

- delivered and/or electronic

transfer to the office of Hon Zan Colson Brown, Assistant Gregg County

Criminal District Attorney, Greg g County Courthouse, 1 01 E. Methv in, Su ite 333,

Longv iew, T exas on t his 19th day of December, 2014

.



### Hough

- Lewis (“Lew”) Dunn

HOUGH

- LEWIS (“LEW”) DUNN8 CERTIFICAT E O F COMPLIANCE

I certify that the foregoing docu m ent co m plies with Rule 9, TEX. R. APP.

PROC., regarding length of do c u m ents, in that exclusive o f caption, identity of parties

a n d c ouns e l

, statemen t regardin g ora l argume n t, table of contents, index of authorities,

statement of the case, issues presented, statement of jurisdiction, statement of

procedural history, signature, proof of ser v ice

, certif ication

, ce r tificat e o f compliance,

and appendix, it consists of 1,397 words.

/s/ Hough

- Lewis (“Lew”) Dunn

Hough

- Lewis (“Lew”) Dunn