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In The Twelfth Court Of

Appeals Tyler,Texas

No. 12-13-00357-CR

Tocarra Lockett,Appellant,

v.

The State of Texas,

Appellee.

On Appeal from the 420th District Court,

Nacogdoches County, Texas

Cause No. F1320229

APPELLANT’S MOTION FOR BOND FOLLOWING REVERSAL OF 

CONVICTION PURSUANT TO TEX. CODE CRIM. PROC. ART. 44.04(h)

Seth T. Johnson, Tex. Bar No. 24082212

Attorney forAppellant

222 North Mound St., Suite #1

Nacogdoches,Texas 75961

Telephone: (936) 205-6775

Fax: (936) 715-3022

Email:johnsondefenselaw@gmail.com

ACCEPTED

12-13-00357-CR

TWELFTH COURT OF APPEALS

TYLER, TEXAS

3/27/2015 2:38:55 PM

CATHY LUSK

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 3/27/2015 2:38:55 PM CATHY S. LUSK Clerk
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APPELLANT’S MOTION FOR BOND FOLLOWING REVERSAL OF 

CONVICTION PURSUANT TO TEX. CODE CRIM. PROC. ART. 44.04(h)

TO THE HONORABLE JUDGES OF THE TWELFTH COURT OF

APPEALS:

COMES NOW, Appellant, Tocarra Lockett, by and through his

attorney of record, Seth T. Johnson, and respectfully files this motion 

requesting the Court release him on reasonable bail, that bail be set at 

$2500.00, and that the Trial Court be ordered to bench warrant Appellant 

to Nacogdoches County forthwith for a determination concerning the 

approval of sureties on the bail.

STATEMENT OF FACTS

1. On March 25, 2015 this Court reversed the judgment of 

conviction in the Trial Court and entered a judgment of acquittal in the 

instant case.

2. The judgment of reversal was predicated upon legal 

insufficiency of the evidence and therefore the case cannot be retried.

3. At the time of filing of this motion the State has not filed a 

Petition for Discretionary Review in the Court of Criminal Appeals nor a 

Motion for Rehearing. However, the likelihood that this Court’s decision 

would be overturned is extremely low because the applicable law is well 

settled, a fact recognized in this Court’s Memorandum Opinion.
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4. Appellant has been incarcerated continuously since March 25, 

2013 in connection with this case and is indigent. Undersigned counsel 

represents Appellant as a court-appointed attorney.

5. Appellant’s common-law wife can reasonably afford a 

$2500.00 bond.

6. Appellant would reside with his wife in Lufkin, Texas; which is 

adjacent to the county of origin of this case.

7. Appellant’s wife is employed full-time as an Operations 

Supervisor for Americare EMS, an Ambulance Service in Lufkin, Texas. 

8. While on bond, and pending determination of any appeal by 

the State, Appellant will actively seek gainful employment. Appellant is 

a certified diesel mechanic. Also, various family members, employed in 

the oil and gas industry have pledged to assist Appellant with finding 

employment.

9. Appellant is a lifelong resident of East Texas.

ARGUMENT AND AUTHORITIES

1. Article 44.04(h) guarantees a defendant release from custody if 

his conviction is reversed on appeal regardless of the length of the 

sentence. Ex parte Anderer, 61 S.W.3d 398, 400 (Tex. Crim. App. 2001).
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2. Art. 44.04(h), Tex. Code Crim. Proc. states: 

“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. If the defendant requests bail 

before a petition for discretionary review has been filed, the Court 

of Appeals shall determine the amount of bail. If the defendant 

requests bail after a petition for discretionary review has been 

filed, the Court of Criminal Appeals shall determine the amount of 

bail. The sureties on the bail must be approved by the court 

where the trial was had. The defendant's right to release under 

this subsection attaches immediately on the issuance of the Court 

of Appeals' final ruling as defined by Tex.Cr.App.R. 209(c).”

3. Former Rule 209(c) of the Texas Rules of Post Trial and 

Appellate Procedure in Criminal Cases provided: 

“As used in these rules, “final ruling of the court” means (1) 

the 16th day after the date of the delivery of the court’s 

opinion or order where a motion for rehearing is permitted 

under Rule 208 but is not filed or rehearing is not granted on 

the court’s own motion, (2) the day after the date of the 

overruling of motion for rehearing where a further motion for 

rehearing is not permitted under Rule 208, or (3) if a motion 

for rehearing pursuant to Rule 208(d) is granted, the day after 

the date of the disposition of the case on rehearing, whichever 

is later.” 

4. Although 209(c) was repealed in 1986, the rule that an appellant 

becomes bailable when the time period for motions for rehearing have 

expired is still followed. In re Keeter, 134 S.W.3d 250 (Tex. App.—Waco 

2003).

5. “Once a conviction is reversed, we hold the primary factors that 
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should be considered by the court of appeals are: (1) the fact that the 

conviction has been overturned; (2) the State's ability, if any, to retry the 

appellant; and (3) the likelihood that the decision of the court of appeals will 

be overturned.” Aviles v. State, 26 S.W.3d 696 (Tex.App. Houston [14 

Dist.] 2000).

6. The nature of the offense and the length of the sentence should 

not be given great weight when the request for bail is made pursuant to 

article 44.04(h). Id.

7. Additional factors to consider include Article 17.15, Tex. Code of 

Crim. Proc. and those set out in Ex parte Rubac, 611 S.W.2d 848 

(Tex.Crim. App.[Panel Op.] 1981). Id.

8. For the reasons outlined above, it seems very unlikely that 

Appellant would ever have to appear before the trial court again in 

connection with this case after posting bond. Considering this fact, along 

with Appellant’s ties to the community, and his indigency after being 

incarcerated for two years on this case, $2500.00 bail is reasonable and 

assures that bail will not be used as an instrument of oppression to keep 

Appellant incarcerated until the mandate issues.
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PRAYER

Appellant prays the Court release him on reasonable bail, that bail 

be set at $2500.00, and that the Trial Court be ordered to bench warrant 

Appellant to Nacogdoches County forthwith for a determination 

concerning the approval of sureties on the bail.

Respectfully submitted,

Seth T. Johnson, #24082212

ATTORNEY FOR DEFENDANT

222 North Mound St. #1

Nacogdoches, TX 75961

(P) 936-205-6775

(F) 936-715-3022

johnsondefenselaw@gmail.com

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Motion

was electronically served on the Nacogdoches County District Attorney’s

Office, Texas, on March 27, 2015.

Seth T. Johnson,

#24082212