## 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 Parke r C ount

y, Texas Trial Court No. CR13

- 0619

Before Gabriel, Kerr, and Birdwell, JJ. Memorandum Opinion by Justice Gabriel 

### Ex parte Charles Cody Lyon2 MEMORANDUM OPINION Applicant Charles Cody Lyon see ks habeas corpus relief from the tri al court ’ s order set ting Lyon ’ s ca sh

- 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. BA CKGROUND Lyon was conv

icted by a jury of theft of property valued in the aggre gate at more than $200,000 , a first

- degree felony at the time of the offense , 1 and his
pu nishment wa s ass essed at thirty year s ’ confinement

. See Tex. Penal Code Ann. § § 31.03 , 31.09

. The sto len property included liquid agri cultural fertilizer tha t Lyon had bought from different sellers as part of his agricultural business , an investm en t in Lyon ’ s company th at Lyon did not ret ur n , and a fraudulent bank transfer from the
investor ’ s account into Lyon ’ s . Lyon , 2018 WL 681 6209, at * 1

– 2

. On appeal, we affirmed Lyon ’ s conviction but reverse d for a new punishment trial because the supported agg rega te value of t he stolen property was le ss than $200,000

— $ 149 , 779

. 68

— mandating that his conviction be cla ssified as a second

- degree fe lony

1 T he l egislature amended s ection 31.03 in 2015 to increase the value amou nts that would qualify for first

- and s econd

- degree felony thef ts. See Lyon v. State , No. 02

- 17

- 00195

- CR, 2018 WL 6816 209, at *15 (Tex. App.

— Fort Worth D e c. 27, 2018, pet. ref ’ d) (mem . op. , not designat ed for publication)

. Before the 2015 amendment, a first

- degr ee fe lony req uire d theft of pro perty valued in the ag gr ega te at more than $200,000; a second

- degree felony required theft of property valued in the aggreg a te at bet ween $100,00 0 and $200,000. See id. Lyon committed the thefts between S eptember 21, 2012 , and December 20, 2013.3

with a punishment range of two to twenty years ’ confinement with a possible fine of
up to $10,000

. Tex. Penal Code Ann. § 1 2.33 ; Lyon , 2018 WL 6 816209, at *15

. The court of criminal appeals refused Lyon ’ s pe tition for discretionary review on May 1 , 2019 , and denied his motion for rel ease on reasonabl e bail as moot on June 28, 2019

. Lyon v. State , No. P D

- 0099

- 19 (Tex. Crim. A pp. June 28 , 2019) (p er curiam order)

. W e issued our mandate on June 11, 2019.
W h ile awaiting retrial on punishment, Lyon f iled 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 c ustody, is entitled to rel e ase on reasonable bail . . . . ” (emphasis added) ). T h e trial court held a hearing and set bail at a $70,000 cas h b ond , forec losing personal o r property bonds. Lyon now seeks habeas corpus relief from the order , asserting that the bond was excessiv e. We did not request briefing. See Tex. R. Ap p. P. 31.1(b).

II. FACTORS TO CONSIDER
I n the trial co urt, Lyon as serted that unde r the appropriate factors and considering that his pretrial bail had been set at $10,000, $70,000 was excessive. The factors Lyon re lied on in the trial court and now in his ha beas corpus application clearly apply ( 1) in the pre trial context , (2 ) if a cou rt of appeals rev erses a conv iction ,

or (3) pending an appeal if the defendant was not jailed during trial. See Tex. Code Crim. Proc. Ann. art. 44.04; s e e, e.g. , Ex par te Rubac , 611 S.W.2d 848, 849 (Tex. Crim.4

App. [Panel Op.] 1981 ); Aviles v. S tate , 26 S .W.3d 696, 698 (T ex. App.

— Houston [14th Dist. ] 2000, order

)

. Here, however, Lyon ’ s conviction for second

- degree felony
theft has been affirmed and punishment fal ling within the statutory r ange will be
assessed under our issued mandate

. Cf. Tex. C ode Crim . Proc. Ann. a rt. 44.04 (permitting bond pending appeal from “convic tion ”). In other words , Lyon is not presumed innocent, rendering several of the factors typically considered in bail proceedings inappropria te
. Se e, e.g. , Ex parte Dupuy , 498 S .W.3d 220, 230 (Tex. App.

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

mu st strike a balance between this presumption [of innocence] and the S t ate ’ s interest in assuring appellant wil l appear for trial ” ).
But t he general r ules of fixing ba il amounts “ in any case ” should apply. Tex.
Code C rim. P r oc. Ann. art. 17.15 ( emphasis added)

. Th ese rules guide a trial court ’ s discretion: 1. The bail shall be sufficiently high to g ive reasona ble assurance that the underta king will be complied with. 2. The power to require bail is not to b e so u s ed as to make it an instrument of oppressio n. 3. The nature of the offense and the circumstances under which it was committed are to be considere d. 4. The ability to make b ail is to be regarded, and proof may be taken upon this point.
5. The futur e safety of a victim of the alleged offense and the commun ity shall be considered.5

Id. We additionally recognize that federal law specif ies bail c onsiderations pending

sentenc i ng after a federal conv icti on. Under § 3143, a federal district court must de tain a person who has been found guilty and who is waiting imposition or execution
of sentence unless the court “ finds by clear and convincing evide nce that the person is
not li k ely to f

le e or pose a dange r to the safety of any other person or the communit y if released. ” 18 U.S.C.A. § 3143(a) (1 ) ( West 2015 ) ; see also United State s v. Miranda , 442 F. Supp. 786, 792 (S.D. Fla. 1977) ( “ [T]he standards g uiding [the trial court ’ s]
det ermination of bail after co nvic tion and pending appeal are more stringent than the standards applicable to the determination o f bail before the trial when the defendant is presumed innocent. ” )

. In the case at hand, such consi derations are included within
A rticle 17 .15 ’ s rules and d uly recogn ize that Lyon is no longer entitled to th e 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. ” Dup uy , 498 S.W.3d at 230.
A bail dete rminati on is comm itted to the trial court ’ s discretion ; thus, we may not find a set bail a mou nt excessive if no abuse of that discretion occurred

. Id. W e will consider the trial co urt ’ s exercise of its discretion under A rticle 17.15 ’ s and § 314 3 ’ s n arrower factors

. III. APPLICATION OF FACTORS TO TRIAL COURT ’ S DISCRETION When Lyon was originally sentenced in 2017 , a presentenc e

- investigation report noted that Lyon had very strong emotion al or personal support available from
famil y or others

. Lyo n stated in his affidavit , which he admi tted as an exhibit at th e6

trial court ’ s hearing on his motion to set bail , that this support would allow him to

“ make a bond in approximately double t he [$10,000] amount prev iously set ” even though h e had been d eclar ed indigent. He further note d that he had appeared for all
court dates and complied with all conditions whil e released on bond before his
convi ction. He has been cont inuously incarcerated since his sentencing in April 2017. Lyon averred that his mo ther, step

- f ather, and sister live in Smith County ; his aunt
live s in Palo Pinto County ; and his t wo sons attend universities in Lubbock and
McCl e nn an Counties

. Lyon ’ s long

- term frie nd, Colburn McClelland, signed an
affidavit in which he sw ore that Lyon h a s ne ver l ived outside of Te xa s and that “ Lyon is not a flight risk. ”
The State was concerned that Lyon would be a flight ris k because he “ faces the reality that there is going to be punishment, ” which is different than his position prior

to his final c onvic tion

. T he State argued that Lyon had shown no ties to Parker County and noted that there was no indication where Lyon would li ve if released on b ail

. The State a sserted t hat bail should be denied or , alternatively, that “ a cas h bond
in t he amount of the restitution fo r the victim s ”

— $149,779.68

— be set

. The S t ate did not argue that Lyon w ould be a danger to th e community, and no evidence indicates
that he would. Although Lyon complied with his pretrial bond and c onditions and appear ed
for all court d ates, Lyon is no longer presumed innocent and will be sentenced. A s the State pointed out to the trial court, L yon is in a materially different position than7

he was in 2017 and is not entitled to t he presumption of in nocence that is given due
consideratio n in pret rial bail determi n at ions. Lyon has now been fi nally convicted of
second

- degree fe lony theft , su bject t o a sentence of between two and twenty years ’ confinement, w

ith the possibility of a $10,000 fine and rest itution. See Tex. Penal
C ode Ann. § 1 2.33; Tex. Code C r i m. Proc. Ann. art. 42.037. Lyon has family ties in Texas, but none are in Parker County . And h e proffered no evidence of where he w ould live pending the punishment hearing. W e recognize that som e evidence indicated that Lyon would n ot be a flight risk , but there
was some evidence that he would be

. Based on this record, we cannot co nclude that
the t rial court abused its discretion by setting Lyon ’ s bail pending a new punishment hearing at a $70,0 00 cash bond. Se e, e.g. , Ex parte Cha rlesw orth , 600 S.W.2d 316, 317 (Tex. Crim. App. [P anel Op.] 1980) ; Ex parte W elch , 729 S.W.2d 306, 310 (Tex. App.

— Dalla s 1987, no pet.).
I V. CON CLUSION
Base d on the record bef

ore us, we cannot conclude that the bon d amount set by the trial court was ex cessi ve and, therefore, detect no abuse of di scretion. We
affirm the trial court ’ s August 29, 2019 order setting bond and conditions. See Tex. R. App. P. 31.3.8 /s/ Lee Gabriel
Lee Gabrie l Justice
Do Not Publish Tex. R. App. P. 4 7.2(b)
Delivered : Octobe r 24, 2019