In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-19-00339-CR

___________________________

On Appeal from the 415th District Court

Parker County, Texas

Trial Court No. CR13-0619

Before Gabriel, Kerr, and Birdwell, JJ.

Memorandum Opinion by Justice Gabriel

Ex parte Charles Cody Lyon
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MEMORANDUM OPINION

Applicant Charles Cody Lyon seeks habeas corpus relief from the trial court’s 

order setting Lyon’s cash-bond amount at $70,000. After applying the relevant 

factors, we conclude under the facts of this case that the ordered amount is not 

excessive.

I. BACKGROUND

Lyon was convicted by a jury of theft of property valued in the aggregate at 

more than $200,000, a first-degree felony at the time of the offense,

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and his 

punishment was assessed at thirty years’ confinement. See Tex. Penal Code Ann. 

§§ 31.03, 31.09. The stolen property included liquid agricultural fertilizer that Lyon 

had bought from different sellers as part of his agricultural business, an investment in 

Lyon’s company that Lyon did not return, and a fraudulent bank transfer from the 

investor’s account into Lyon’s. Lyon, 2018 WL 6816209, at *1–2. On appeal, we 

affirmed Lyon’s conviction but reversed for a new punishment trial because the 

supported aggregate value of the stolen property was less than $200,000—

$149,779.68—mandating that his conviction be classified as a second-degree felony 

 

1The legislature amended section 31.03 in 2015 to increase the value amounts

that would qualify for first- and second-degree felony thefts. See Lyon v. State, No. 02-

17-00195-CR, 2018 WL 6816209, at *15 (Tex. App.—Fort Worth Dec. 27, 2018, pet.

ref’d) (mem. op., not designated for publication). Before the 2015 amendment, a 

first-degree felony required theft of property valued in the aggregate at more than 

$200,000; a second-degree felony required theft of property valued in the aggregate at

between $100,000 and $200,000. See id. Lyon committed the thefts between

September 21, 2012, and December 20, 2013. 
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with a punishment range of two to twenty years’ confinement with a possible fine of 

up to $10,000. Tex. Penal Code Ann. § 12.33; Lyon, 2018 WL 6816209, at *15. The 

court of criminal appeals refused Lyon’s petition for discretionary review on May 1, 

2019, and denied his motion for release on reasonable bail as moot on June 28, 2019. 

Lyon v. State, No. PD-0099-19 (Tex. Crim. App. June 28, 2019) (per curiam order). 

We issued our mandate on June 11, 2019.

While awaiting retrial on punishment, Lyon filed in the trial court a motion to 

be released on reasonable bail, which he asserted would be a surety bond of $20,000. 

Cf. Tex. Code Crim. Proc. Ann. art. 44.04(h) (“If a conviction is reversed by a 

decision of a Court of Appeals, the defendant, if in custody, is entitled to release on 

reasonable bail . . . .” (emphasis added)). The trial court held a hearing and set bail at 

a $70,000 cash bond, foreclosing personal or property bonds. Lyon now seeks habeas 

corpus relief from the order, asserting that the bond was excessive. We did not 

request briefing. See Tex. R. App. P. 31.1(b).

II. FACTORS TO CONSIDER

In the trial court, Lyon asserted that under the appropriate factors and 

considering that his pretrial bail had been set at $10,000, $70,000 was excessive. The 

factors Lyon relied on in the trial court and now in his habeas corpus application

clearly apply (1) in the pretrial context, (2) if a court of appeals reverses a conviction, 

or (3) pending an appeal if the defendant was not jailed during trial. See Tex. Code 

Crim. Proc. Ann. art. 44.04; see, e.g., Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. 
4

App. [Panel Op.] 1981); Aviles v. State, 26 S.W.3d 696, 698 (Tex. App.—Houston 

[14th Dist.] 2000, order). Here, however, Lyon’s conviction for second-degree felony 

theft has been affirmed and punishment falling within the statutory range will be 

assessed under our issued mandate. Cf. Tex. Code Crim. Proc. Ann. art. 44.04 

(permitting bond pending appeal from “conviction”). In other words, Lyon is not 

presumed innocent, rendering several of the factors typically considered in bail 

proceedings inappropriate. See, e.g., Ex parte Dupuy, 498 S.W.3d 220, 230 (Tex. App.—

Houston [14th Dist.] 2016, no pet.) (recognizing in setting pretrial bail, “trial court 

must strike a balance between this presumption [of innocence] and the State’s interest 

in assuring appellant will appear for trial”).

But the general rules of fixing bail amounts “in any case” should apply. Tex. 

Code Crim. Proc. Ann. art. 17.15 (emphasis added). These rules guide a trial court’s 

discretion:

1. The bail shall be sufficiently high to give reasonable assurance 

that the undertaking will be complied with.

2. The power to require bail is not to be so used as to make it an 

instrument of oppression.

3. The nature of the offense and the circumstances under which 

it was committed are to be considered.

4. The ability to make bail is to be regarded, and proof may be 

taken upon this point.

5. The future safety of a victim of the alleged offense and the 

community shall be considered.
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Id. We additionally recognize that federal law specifies bail considerations pending 

sentencing after a federal conviction. Under § 3143, a federal district court must 

detain a person who has been found guilty and who is waiting imposition or execution 

of sentence unless the court “finds by clear and convincing evidence that the person is 

not likely to flee or pose a danger to the safety of any other person or the community 

if released.” 18 U.S.C.A. § 3143(a)(1) (West 2015); see also United States v. Miranda, 

442 F. Supp. 786, 792 (S.D. Fla. 1977) (“[T]he standards guiding [the trial court’s] 

determination of bail after conviction and pending appeal are more stringent than the 

standards applicable to the determination of bail before the trial when the defendant 

is presumed innocent.”). In the case at hand, such considerations are included within 

Article 17.15’s rules and duly recognize that Lyon is no longer entitled to the 

presumption of innocence. We also acknowledge that “[t]he chief purpose of bail is 

to secure the presence of the defendant in court for trial.” Dupuy, 498 S.W.3d at 230. 

A bail determination is committed to the trial court’s discretion; thus, we may

not find a set bail amount excessive if no abuse of that discretion occurred. Id. We 

will consider the trial court’s exercise of its discretion under Article 17.15’s and 

§ 3143’s narrower factors. 

III. APPLICATION OF FACTORS TO TRIAL COURT’S DISCRETION

When Lyon was originally sentenced in 2017, a presentence-investigation 

report noted that Lyon had very strong emotional or personal support available from 

family or others. Lyon stated in his affidavit, which he admitted as an exhibit at the
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trial court’s hearing on his motion to set bail, that this support would allow him to 

“make a bond in approximately double the [$10,000] amount previously set” even 

though he had been declared indigent. He further noted that he had appeared for all 

court dates and complied with all conditions while released on bond before his 

conviction. He has been continuously incarcerated since his sentencing in April 2017. 

Lyon averred that his mother, step-father, and sister live in Smith County; his aunt 

lives in Palo Pinto County; and his two sons attend universities in Lubbock and 

McClennan Counties. Lyon’s long-term friend, Colburn McClelland, signed an 

affidavit in which he swore that Lyon has never lived outside of Texas and that “Lyon 

is not a flight risk.” 

The State was concerned that Lyon would be a flight risk because he “faces the 

reality that there is going to be punishment,” which is different than his position prior 

to his final conviction. The State argued that Lyon had shown no ties to Parker 

County and noted that there was no indication where Lyon would live if released on 

bail. The State asserted that bail should be denied or, alternatively, that “a cash bond 

in the amount of the restitution for the victims”—$149,779.68—be set. The State did 

not argue that Lyon would be a danger to the community, and no evidence indicates 

that he would.

Although Lyon complied with his pretrial bond and conditions and appeared 

for all court dates, Lyon is no longer presumed innocent and will be sentenced. As 

the State pointed out to the trial court, Lyon is in a materially different position than 
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he was in 2017 and is not entitled to the presumption of innocence that is given due 

consideration in pretrial bail determinations. Lyon has now been finally convicted of 

second-degree felony theft, subject to a sentence of between two and twenty years’

confinement, with the possibility of a $10,000 fine and restitution. See Tex. Penal 

Code Ann. § 12.33; Tex. Code Crim. Proc. Ann. art. 42.037. 

Lyon has family ties in Texas, but none are in Parker County. And he 

proffered no evidence of where he would live pending the punishment hearing. We 

recognize that some evidence indicated that Lyon would not be a flight risk, but there 

was some evidence that he would be. Based on this record, we cannot conclude that 

the trial court abused its discretion by setting Lyon’s bail pending a new punishment 

hearing at a $70,000 cash bond. See, e.g., Ex parte Charlesworth, 600 S.W.2d 316, 317 

(Tex. Crim. App. [Panel Op.] 1980); Ex parte Welch, 729 S.W.2d 306, 310 (Tex. 

App.—Dallas 1987, no pet.). 

IV. CONCLUSION

Based on the record before us, we cannot conclude that the bond amount set 

by the trial court was excessive and, therefore, detect no abuse of discretion. We 

affirm the trial court’s August 29, 2019 order setting bond and conditions. See Tex. R. 

App. P. 31.3.
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/s/ Lee Gabriel

Lee Gabriel

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: October 24, 2019