Locket

- Mtn	Bond 1 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 420 th 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 for Appellant 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 CLERKLocket

- Mtn	Bond 2 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 warr ant 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, t he 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.Locket

- Mtn	Bond 3 4. Appellant has been incar cerated 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 an y appeal by

the State

, Appellant will actively seek gainful employment. Appellant is

a certified diesel mechanic. Also, various family members, em ployed 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 re versed on appeal regardless of the length of the

sentence. Ex parte Anderer , 61 S.W.3d 398, 400 (Tex. Crim. Ap p. 2001).Locket

- Mtn	Bond 4 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 fi nal 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 def endant 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 releas e 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 t hese 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 thatLocket

- Mtn	Bond 5 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 Appella nt’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.Locket

- Mtn	Bond 6 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 electronica lly s erved on the Nacogdoches County District Attorney’s Office, Texas, on March 27, 2015

.

Seth T. Johnson, #24082212