No. 14
- 14 -00245- CR In the Court of Appeals For the Fourteenth District of Texas At Houston  No. 1407238 In the 263 rd District Court Of Harris County, Texas  JEREMY DESHAWN DUGAR

Appellant V. THE STATE OF TEXAS Appellee  STA TE’S RESPONSE TO APPELLANT’S MOTION FOR BOND AFTER REVERSAL  TO THE HONORABLE COURT OF APPEALS: THE STATE OF TEXAS, in response the appellant’s request for bond after reversal pursuant to T EX
. C ODE C RIM
. P ROC
. 44.0 4(h) , would show the Court the following: Procedural Background The State charged the appellant with felony murder of Tevin Williams (CR

–7). During the charge conference, the appellant requested an instruction for selfdefense, which the trial court denied based on Williams being an innocent bystander and no evidence that he took part in any aggression towards the appellant (CR

–

110-111; 5 RR 159-68; 6 RR 3). The jury found the appellant ACCEPTED 14-14-00245-CR FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS 4/24/2015 10:27:24 AM CHRISTOPHER PRINE

CLERKguilty (CR

– 121; 6 RR 22). The trial court sentenced the appellant in accordance

with the jury’s verdict to twelve years in the Texas Department of Criminal Justice, Institutional Division (CR

– 128

- 30; 7 RR 32

- 33). On April 9, 2015, this Court reversed the conviction, holding that the appellant was entitled to an instruction on self

- defense from mul tiple assailants and an instruction to determine if Williams was an innocent bystander under Section 9.05 of the Texas Penal Code. Dugar v. State , 14

- 14

- 00245

- CR, 2015 WL 1632690 (Tex. App.

— Houston [14th Dist.] April 9, 2015, no pet. h.) . The State has not yet filed a motion f

or rehearing or a peti tion for discretionary review , and no deadlines have passed. On April 22, 2015, the appellant filed a motion for bail with this Court pursuant to Article 44.04(h) of the Code of Criminal Procedure. Article 44.04 (h) provides in part that “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, 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 .” T EX
. C ODE C RIM
. P ROC . art. 44.04 (h) (West 2006 ) (emphasis added). State’s Response to the Appellant’s Request for Reasonable Bail Pursuant to Article 44.04(h) the appellant is entitled to a reasona ble bail. In determining reasonable bail this Court considers a range of factors : the defendant’swork record, the defendant’s family and community ties, the length of the

defendant’s residency, the defendant’s prior criminal record, the defendant’s
confor mity with previous bond conditions, aggravating circumstances of the charge offense, the nature of the offense, the fact that the conviction has been overturned, the State’s ability to retry the defendant and the likelihood that the court of appeals will b e overturned. See T EX
. C ODE C RIM
. P ROC
. art. 17.15 (West 2005 ); Aviles v. State , 26 S.W.3d 696, 699 (Tex. App.

— Houston [14th Dist.] 2000, pet. ref’d) (citing Ex parte Rubac , 611 S.W.2d 848, 849 (Tex. Crim. App. 1981));
Werner v. State , 445 S.W.3d 301, 305 (Tex. App.

— Houston [1st Dist.] 2013, no pet.). The appellant asks this Court to set a personal recognizance bond or a bond not to exceed $50,000, the amount of his pre

- trial bond. But t he appellant has not provided an affidavit , and there is no prior bond hearing testimony for this Court to rely on in making its decision. In his motion the appellant claims he is indigent , but does not provide information of his family’s financial situation. See Milner v.
State , 263 S.W.3d 146, 149 (Tex. App.

— Houston [1st Dist.] 2006, no pet.) ( noting that a defendant generally must show that his funds and his family's funds have been exhausted to show that he is unable to make ba il; discussing the defendant’s mother’s retirement account); see also Richardson v. State , 181 S.W.3d 756, 760 (Tex. App.

— Waco 2005, no pet.) (considering funds of appellant’s father andbrother). Furthermore, “[t]he ability or inability of an accused to m ake bail,

however, even indigency , does not alone control in determining the amount of bail.”). Milner , 263 S.W.3d at 149. The trial court set his pre

- trial bond at $50,000, but c ertainly some circumstances have changed since he has been in priso n. One huge change is that a jury has not found him guilty beyond a reasonable doubt , so there is sufficient evidence to convict. Moreover, as the appellant concedes, the State can retry the

case, and this Court’s reversal does not limit any evid ence that was presented.
T herefore , the appellant is in at least the same position as he was pre

- trial , if not worse because a jury found him guilty based on his actions. The appellant is charged with felony murder, an aggravated offense

. The jury found the appellant guilty and sentenced him to twelve years in prison , a sentence for which he would not be eligible for a bond pending appeal

. See T EX
. C ODE C RIM
. P ROC
. art. 4 4.04(b)

. And though t he appellant argues that there are some mitigating f

actors, he took someone else’s life because he fired a gun into a crowd of people. He fired a gun as he drove away from the apparent hostility and killed a seventeen

- year - old child without any evidence that the victim did anything on his own or in combinat ion with a group to put the appellant’s life in danger. Therefore, t he State requests that if this Court grants a bond, it consider s a bond of at least $100,000 , along with other conditions of electronic monitoring,abstention from drug use, remain ing in Harris County, and refrain ing from contact

with the victim’s family. See T EX
. C ODE C RIM
. P ROC
. art. 44.04 (c); T EX
. C ODE C RIM
. P ROC
. art. 56.02(a)(2) (West supp. 2014) (safety of a crime victim’s family may be taken into consideration when setting ba il); Ex parte Anderer , 6 1 S.W.3d 398 (Tex. Crim. App. 2001) (allowing courts discretion to impose reasonable conditions of bond on appeal)

. Conclusion
T he State prays that this Court will set a bond of $100,000 with conditions of electronic monitoring, abstention from drug use, remain ing in Harris County, and refrain ing fro m contact with the victim’s family

.

Respectfully submitted,
/s/ 

### Katie Davis K ATIE D AVIS Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002

- 1923 (713) 755

- 5826 Davis_Katie @dao.hctx.net TBC No. 24070242CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing instrument will be served by efile.txcourts.gov to: Marc C. Kratovil Harris County Public Defender’s Office 1201 Franklin, 13 th Floor Houston, TX 77002 Mark.Kratovil@pdo.hctx.net

/s/ 

### Katie Davis K ATIE D AVIS Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002

- 1923 (713) 755

- 5826 Davis_Katie @dao.hctx.net TBC No. 2407024 2 Date: April 24 , 2015