ACCEPTED03-15-00265-CR6629169THIRD COURT OF APPEALSAUSTIN, TEXAS8/24/2015 4:54:18 PMJEFFREY D. KYLECLERKNO.03-15-00265-CR,03-15-00277-CR,03-15-00288-CRINTHECOURTOFAPPEALSOFTHETHIRDSUPREMEJUDICIALDISTRICTROBIELEELAWHONAppellantv.THESTATEOFTEXASAppelleeAPPELLEE'SBRIEFAppealfromthe201hJudicialDistrictCourtofMilamCounty,TexasTheHonorableJohnYoungblood,JudgePresidingTrialCourtCauseNo.CR24,713,CR24,712,CR36,868MilamCountyDistrictAttorney'sOffice204N.CentralCameron,Texas76520(254)697-7013(254)697-7016-Facsimilejjolmson@.milamcounty.netStateBarNo.24092587ORALARGUMENTWAIVEDNAMES OF THE PARTIES TO THE FINAL JUDGMENT 

### Appellant Robie Lee Lawhon Milam County Jail 512 N. Jefferson Ave. Cameron, TX 76520 

### Appellant's Counsel Tyler Pennington 106 S. Harris St., Ste 125 Round Rock, Texas 78664 

### Appellee

- State ofTexas Joseph P. Johnson Milam County Ass't County and District Attorney 204 N . Central Cameron, Texas 76520



### Trial Court Judge The Honorable John Youngblood 20'h District Court Judge 102 S . Fannin Ave., 2nd Floor Cameron, Texas 76520TABLE OF CONTENTS NAMES OF THE PARTIES TO THE FINAL JUDGMENT... .. .... . ....... ........

### .i TABLE OF CONTENTS....................................................................ii INDEX OF AUTHORITIES ...............................................................

### iii REQUEST FOR ORAL ARGUMENT......... ..... .....................................

### .iv STATEMENT OF THE CASE...................................... . . . ..................

### .iv ISSUES PRESENTED...... ...... .............. ... .......................................... v STATEMENT OF FACTS ..................................................................I**S~R~** OF THE**ARCJ~NT** . ............................................... . .....S ARCJUMENT................................ .. ... . . . ................ . .. . ................. . ....6 ISSUE ONE: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION................................... ..... ................. .. ...................... 6



## ....

li

### INDEX OF AUTHORITIES 

### United States Constitution U.S. Const. amend. VIII . .. .. ... ... . .... . ... .. .. . ... . . . ....... .. ... . ..... . . . ... . . . .. . ... .. . .6 

### Texas Court ofCriminal Appeals 

### Ex Parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. [Panel Op.] 1980).......................... . ..................... . ................ . .. ... . . .................7 

### Ex Parte Faye Bzifkin, Juan De Ia Cruz and RichardBowker, 553 S.W.2d 116 (Tex. Crim. App. 1977)........................... . . . . . ... . ........ ....... . . ............... 13 

### Exparte Rubac, 611 S.W.2d 848,849 (Tex. Crim. App. 1981) ..............6, 7, 13 

### Montgomery v. State, 810 S.W.2d 372,380 (Tex. Crim. App. 1990) ...............6 

### Texas Appellate Court Cases 

### Eggleston v. State, 917 S.W.2d 100 (Tex. App. San Antonio 1996) ...............12 

### Ex Parte Chavfu/1, 945 S.W.2d 183 (Tex. App . San Antonio 1997)................ 11 

### Exparte Jozwiak, 2005 Tex. App. LEXIS 402, * 1 (Tex. App. Dallas Jan. 20, 2005).... . ... . . . ............... ... ........ . ............ .. ... . ....... . ............. . ........7, 11 

### Exparte Leonides, 2002 Tex. App. LEXIS 944, *I (Tex. App. Austin Feb. 7, 

### 2002)...................................... ....... . . . . . .. . ...... ...... .. . . .. .................. II 

### Exparte Ochoa, 2004 Tex. App . LEXIS 5817, *3 (Tex. App. Houston 1st Dist. July 1, 2004)... . ....... . ................................ . ............................. . ..6, 13 

### Ex Parte Pequeno-Flores, 2003 Tex. App. 9673, 2003 WL 22682520 (2003). ... . .... . ... . .. ... ... ... . .. .... ... .. ... . .. ... . ... .. ......... . ..... .. ....... . ..... ... . . 13 

### Exparte Ruiz, 129 S.W.3d 751 (Tex. App . Houston 1st Dist. 2004)................6 

### Ex Parte Welch. 729 S.W.2d 306 (Tex. App.

- Dallas 1987, no pet.)...............7 

### Texas Constitution Tex. Const. art. I,§ 13 . ...... .... .......... .. .... .... .............. .. .. .. .. .. ...............6 

### Texas Code ofCriminal Procedure TEX. CODE CRIM. PROC . ANN. ART. 17.15 ........................ . . ... . . .................7REQUESTFORORALARGUMrnNT Appellee waives oral argument. STATEMENT OF THE CASE This case involves Appellant's appeal from a hearing on a Writ ofHabeas Corpus Seeking Bail Reduction. Appellant was indicted for two counts of seconddegree felony manslaughter under TEX. PEN. CODE§ 19.04. 1 Bond was originally at two hundred and fifty thousand ($250,000.00) for each count. 2 Appellant was also indicted for second-degree assault causing serious bodily injury under TEX. PEN. CODE§ 22.02(a)(l). Bond on this charge was originally set at one hundred thousand ($1 00,000.00) dollars.3 Appellant sought to challenge the amount ofbail on all three cases by filing a Writ ofHabeas Corpus Seeking Bail Reduction. 4 The Honorable John Youngblood heard the case in Milam County on April30, 2015. 5 Appellant's bond on each count ofmanslaughter was reduced to one hundred and fifty thousand ($150,000.00) dollars. Additionally, Appellant's bond on the assault causing

I I C.R. 3 2 I C.R. 8 3 /d. 4 Cite to CR for filing of Writ 5 Cite to CR for setting for hearing ivserious bodily injury charge was reduced to twenty thousand ($20,000.00) dollars. Appellant timely filed a Notice ofAppeal in each case on May 8, 2015. ISSUES PRESENTED I. Whether the trial court's reduction ofAppellant's bail was an abuse of discretion.

vSTATEMENT OF THE FACTS Robie Lee Lawhon (hereafter Appellant) was arrested following a car wreck on March 29,2015 resulting in the deaths oftwo individuals and grievous injury to a third person. 6 Appellant was indicted for two counts offelony manslaughter as well as one count of aggravated assault.7 On April 23, 2015, Appellant filed an Application for Habeas Corpus Bail Reduction Motion on all three pending cases. 8 The hearing was held on at the 20th District Court in Milam County before the Honorable John Youngblood. 9 Appellant called a number ofwitnesses in support ofhis motion. 10 Appellant called his mother, Catherine Jean Martinez; a family friend, Linda Matysek; the owner ofRocking Rand Twin Pistol Bail Bonds, Lisa Roden. 11 The State did not call any witnesses. First, Appellant called Catherine Jean Martinez. Ms. Martinez testified that she lives in Rockdale, Texas. 12 She further testified that Appellant has primarily resided at either her or her mother's (Appellant's grandmother's) residences in

6 l C.R. 3 7 l C.R. 3, 4 8 l C.R. 9 9 l R.R. 4 10 /d. at I-23. II fd. 12 /d. at 8. 1Rockdale throughout his life. 13 Ms . Martinez testified that Appellant completed high school in Rockdale, participated in higher education in Waco, and has steadily maintained employment in Rockdale and Milano since then. 14 She testified that although appellant was living with his grandmother at the time ofthe car wreck, Appellant would live with her (Appellant's mother) ifreleased on bond. 15 She testified that she would ensure that Appellant had the necessary transportation to make any necessary appearance at court. 16 Ms. Martinez acknowledged that Appellant was previously on deferred adjudication in the past and that Appellant did not miss 

### any court setting or probation meetings. 17 During Ms. Martinez's cross examination, the State asked Ms. Martinez about her efforts to make the bond as it was currently set. 18 Ms. Martinez testified that she was having trouble getting a loan. 19 Ms. Martinez maintained that her present employment with a Joan company presented a significant barrier to her ability to get a loan

- she testified that other loan companies will not loan to

13 /d . 14 /d . at 8-9 . 15 /d. at 9. 16 /d. 17 /d . 18 Id. at 13. 19 /d. 2employees oftheir competition.20 Ms. Martinez also testified that she owns a 1.3 acre piece ofproperty with a trailer on it. 21 She testified that she is not able to use it as collateral for a loan due to the cost ofobtaining a land survey. Finally, Ms. Martinez testified that her extended family lacks the resources necessary to secure Appellant's bond. 22 Next, Appellant called Linda Matysek. 23 Ms. Matysek testified that she has known Appellant for a long time and that she believes that his reputation in the community is "fine." 24 Ms. Matysek also testified that she would be willing to transport Appellant to court and that it is her beliefthat he would in fact show up. 25 Finally, Appellant called Lisa Roden. 26 She testified primarily that any bond over $50,000 is a great financial liability for her, and, as such, she is unable to write a bond for Appellant at this time. 27 Ms . Roden testified that it would "put [her] out ofbusiness" should anything go wrong on a bond over $50,000. 28 She

20 !d. 21 !d. at 14. 22 /d. 23 /d. at 15. 24 /d . at 16, I7. 25 /d . 26 /d . at 19. 27 /d. at 20. 28 /d . 3further testified that it is her beliefthat a bond of$5,000 would be appropriate to secure Appellant's appearance in court. At oral argument, the State discussed the maximum range ofpunishment for the indicted offenses and also mentioned that the sentences could be stacked.29 After argument, the trial court granted Appellant partial reliefin the form ofa reduction ofbond from a total of$600,000 to a final total of$320,000. 30 The trial court mentioned, when making the reduction, that it wanted to give Appellant some ''credit" for Appellant's lack of"extensive criminal history," appearances in this matter and in the past, and Appellant's cooperation with law enforcement. 31 However, the trial court observed that there are "competing interests" in making a ruling in a bond hearing. As such, the trial court stated that it could not go any lower from the reduction to $320,000 due to the fact that "two people lost their lives and others were seriously injured." 32

29 !d. at 24. 30 /d . at 25. 31 /d . at 24, 25. 32 /d . at 25. 4

### SUMMARY OF THE ARGUMENT The trial court's conclusion is supported by the record when taken as a whole. It shows that the trial court balanced the competing interests in the case pursuant to the necessary criteria. This fact shows that the trial court's ruling was neither arbitrary nor unreasonable, and, thus, not an abuse ofdiscretion. Case law shows that Appellant is not entitled to relief for a number of reasons. Appellant's mother's testimony concerning Appellant's finances and ability to make bail is inconclusive as a matter oflaw. Appellant's failure to testify and introduce evidence concerning personal financial resources and ability to make bail makes any reliefby this Court unwarranted.

5ARGUMENT ISSUE ONE: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION The standard ofreview for reviewing bail settings is whether the trial court abused its discretion. 33 The test for an abuse ofdiscretion is "whether the court acted without reference to any guiding rules and principles [and] whether the act was arbitrary or unreasonable." 34 The burden ofproofis on the defendant who claims bail is excessive.35 The United States Constitution and the Texas Constitution prohibit excessive bail. 36 In exercising its discretion in setting bail, the trial court is guided by the following rules: I) 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 ofoppression. 3) The nature ofthe offense and the circumstances under which it was committed are to be considered. 4) The ability to make bail is to be regarded, and proofmay be taken on this point. 5) The future safety of a victim ofthe alleged offense and the community shall be considered.37

33 Ex parte Ruiz, 129 S. W.3d 751, 753 (Tex. App. Houston Ist Dist. 2004), quoting Expart e Rubac, 61 I S.W.2d 848,849 (Tex. Crim. App. 1981). 3 4 M ontgomery v. State, 810 S .W .2d 372, 380 (Tex . Crim. App. 1990) . 35 Ex parte Ochoa, 2004 Tex. App. LEXIS 5817, *3 (Tex . App. Houston 1st Dist. July I, 2004). 36 U.S . Const. amend. VIII ; Tex . Const. art . I , § 13. 6Furthermore, the "circumstances to be considered in determining the amount of bond include the accused's work record, family and community ties, length of residency, prior criminal record, and conformity with the conditions ofany previous bond, as well as the existence ofany outstanding bonds and aggravating circumstances involved in the charged offense. 38 The trial court may also consider "the range ofpunishment for the charged offense[.]" 39 Finally, the ability or inability ofthe accused to make bail is a factor to be considered, but that factor alone does not control in determining the amount ofbail. 40 Here, there is no evidence on the record that the trial court abused its discretion in granting partial reliefto Appellant. There is nothing to suggest that the trial court acted arbitrarily, unreasonably, or without reference to proper guidelines. The trial court heard testimony from three people who established most ofthe criteria that guide the trial court's exercise ofdiscretion. The record as a

37 Exparte Jozwiak, 2005 Tex. App. LEXIS 402, *7 (Tex. App . Dallas Jan. 20, 2005), citing Ex Parte Welch, 129 S.W.2d 306, 309 (Tex. App.

- Dallas 1987, no pet.) ; TE X. CODECRIM. PROC . ANN . ART. 17.15. 38 /d . , citing £t Parte Rubac, 611 S.W.2d 848 , 849-50 (Tex. Crim. App. [Panel Op.] 1981 ). 39 /d.

" 0 See £t Parte Charlesworth, 600 S .W.2d 316,317 (Tex . Crim. App. [Panel Op.] 1980). 7whole supports the trial court's conclusion and shows that the trial court properly balanced the all the "competing interests" in this matter. 41 Ms. Martinez's testimony established much ofthe necessary information for the trial court. Ms. Martinez showed Appellant's 'family and community ties' and 'length ofresidency' through her testimony regarding where Appellant was from and his history there. 42 Her testimony also established Appellant's 'work record' when she mentioned that Appellant's work history in Rockdale and Milano. 43 Ms. Martinez also discussed Appellant's 'prior criminal record' and 'conditions ofany previous bond' when she discussed Appellant's prior charge and performance during deferred adjudication.44 On cross examination, the State questioned Ms. Martinez concerning finances and property ownership. 45 Ms. Martinez testified that she is currently employed at a loan company. Due to her employment, she stated it is difficult to obtain a loan from other loan companies. Ms. Martinez also testified that she cannot obtain a loan from the bank using her property as collateral because the cost ofobtaining a survey ofthe land, which she maintains is necessary to get the loan,

41 1R.R.24 -12 /d. at 8-10. 43 /d. 44 /d. at II. 45 lei. at 13-4. 8exceeds the amount she would be able to get on the loan. 46 Finally, Ms. Martinez was questioned regarding her family's ability to pay- she testified that they were unable to contribute. 47 Appellant's next witness, Linda Matysek, corroborated some ofMs. Martinez's testimony. Ms. Matysek testified that she has known Appellant for a great deal oftime and that it is her beliefthat Appellant's reputation in the community is "fine." 48 This supports Ms. Martinez's testimony regarding Appellant's 'family and community ties.' On cross examination, the State questioned Ms. Matysek about the nature ofthe offense.49 Ms. Matysek testified that she understood that there was a "car accident" and she acknowledged that two people were killed.50 Finally, Appellant called Lisa Roden from RR Bail Bonds and Twin Pistol Bail Bonds. Ms. Roden testified that it is a liability for her to write a bond for any amount over $50,000. 51 Ms . Roden also testified that it is her beliefthat a lower

46 /d. at 14. 47 /d. 48 /d . at 17. -t9 /d. at 18. so !d . 51 /d. at 20. 9

### bond would be sufficient to show secure Appellant's appearance in court.52 It 

### is also important to note that the State mentioned the maximum range ofpunishment at closing argument.53 

### Examining the points made at the bond hearing, the record before the trial court, taken as a whole, established most ofthe criteria for the trial court listed 

### supra. Evidence regarding the 'accused's work record', 'family and community ties', 'length ofresidency', 'prior criminal record', 'confonnity with the conditions ofany previous bond', 'existence ofany outstanding bonds', 'aggravating circumstances involved in the charged offense', and 'the maximum range of punishment' were all present. The trial court even acknowledged after oral argument that there are "competing interests" in this case - which serves as an implicit acknowledgement ofthe trial court's balancing ofthe criteria that guide the trial court's setting of bond.54 

### The trial court even explicitly stated that it was giving Appellant "credit" for certain things that he did. Furthennore, the trial court granted partial reliefto Appellant. The bonds were reduced by a total of $280,000, which is almost halfofthe original total amount. However, the trial court also

52 /d . at 2 I. 53 /d. at 24.**5~** /d. 10noted the nature ofthe "extremely serious charges" against Appellant.55 All the foregoing analysis shows (1) that the record, when taken together as a whole, supports the trial court's conclusion and (2) that the trial court was indeed aware of and in fact used the guidelines necessary to exercise its discretion. Thus, the trial court's grant ofpartial reliefto Appellant could not have been an unreasonable or arbitrary abuse ofdiscretion.56 As mentioned 

### supra, Appellant introduced evidence in support ofmost of the necessary criteria that are relevant in a hearing for a bond reduction. However, Appellant failed to introduce one critical piece ofevidence: Appellant did not testify in order to establish Appellant's personal resources and ability to make bond. In 

### Ex Parte Chavfu/1, the court heard an accelerated appeal from an order denying a reduction in bail. 57 At the hearing, Chavfull's mother testified that she lacked the resources to post bond.58 She also testified that her family could perhaps come up with around $1 ,000. She also stated that Chavfull was not working and

55 /d . at 24-5; See also Ex parte Jozwiak, 2005 Tex. App. LEX IS 402, *I (Tex. App. Dallas Jan. 20, 2005) (holding that given the serious nature ofthe offense and appellant' s lack ofties to the community, the amount ofbond was warranted). 56 See Exparte Leonides, 2002 Tex . App. LEXIS 944, *I (Tex. App. Austin Feb . 7, 2002) (holding that the trial court' s grant ofpartial relief in reducing the bond from $250,000 to $175,000 and briefly detailing the reasons behind the reduction was not an abuse ofdiscretion). 57 £"1: Parte Chavfu/1, 945 S.W .2d 183 (Tex . App. San Antonio 1997). 58 /d . at I86. 11could not come up with enough money to make bond.59 Despite that testimony, the court ruled on appeal that her testimony concerning her son's financial resources was**~'inconclusive." 60**  The court went on to remark: "We don't know what his bank account is, ifhe has a bank account, ifhe owns stocks . We know nothing about the defendant's financial condition, that is his financial condition. It is not incumbent upon the family to make bond, although, in reality, they often do . He has not proven the bond is excessive as to Donte Chavfull." 61 The court finally ruled in 

### Chavfull that appellant's failure to provide such evidence, among other things and including his mother' s "inconclusive" testimony, precluded him from relief . 62 The facts in 

### Chavfull are analogous to the instant case. Ms. Martinez testified about her resources and those ofher family. 63 She even told the trial court that Appellant is currently employed in Milano. 64 However, Appellant never personally testified in order to introduce evidence ofAppellant's personal

59 !d. 60 /d . 61 /d. 62 /d .,Seealso Eggleston v. State, 917 S.W.2d 100, 102 (Tex . App. San Antonio 1996) (discussing how mother's testimony re: appellant's finances was inconclusive). 63 I R.R . 8-15 M IR.R.9 12resources and ability to make bond. As such, Ms. Martinez's testimony should be as inconclusive here as it was in 

### Chavful/. 65 Appellant cites to 

### Ex Parte Faye Bufkin, Juan De Ia Cruz and Richard Bowker and 

### Ex Parte Rubac in his brief. 66 In those cases, appellants put on a great deal ofevidence showing why bail was excessive. There is one critical piece of evidence present in those cases that is very much lacking in the instant case - that being testimony from the accused regarding personal financial resources and ability to make baiL In 

### Bufkin, "appellants Bowker 

### andBufkin [emphasis added] and members oftheir families testified that efforts to make bond in the sum of$200,000 had been fruitless and that the highest bail each could make was $20,000.00."67 It is clear that Bufkin testified as to her financial resources ability to make bail. In 

### Rubac, Rubac testified that he had only $4,000 available to him. 68 In the instant case however, testimony by Appellant is not present and therefore nothing to prove that the bond is excessive 

### as to the accused. Thus, considering

65 See Ex Parte Pequeno-Flores, 2003 Tex. App. 9673, 2003 WL 22682520 (2003) (holding that Appellant did not carry his burden to show that bail was set higher than necessary to assure presence at trial or that it was being used as an instrument ofoppression); Exparte Ochoa, 2004 Tex. App. LEX IS 5817, *3 (Tex . App. Houston Ist Dist. July I, 2004) (holding that the serious nature ofthe offense and appellant's failure to demonstrate own lack of resources did not meet burden) 66 £r Parte Faye Bt{/kin, Juan De Ia Cruz andRichard Bowker, 553 S.W. 2d 116 (Tex. Crim . App. 1977); Exparte Rubac, 611 S.W.2d 848 (Tex. Crim. App. 1981). 67 Bufkin, 553 S.W.2d at 117. 68 Rubac. 611 S .W.2d at 849 . 13this fact and the case law discussed 

### supra, the trial court's ruling in the instant case was not an abuse ofdiscretion. In conclusion, an analysis ofthe record and case law shows that the trial court's grant ofpartial reliefto Appellant was not an abuse ofdiscretion. The record as a whole support's the trial court's conclusion and its statements show that it considered the guidelines necessary to use its discretion. As such, the ruling was neither arbitrary nor was it unreasonable. Finally, Chavfu/1, and other cases cited in support of it, shows that reduction ofbail is unwarranted where, among other things, Appellant fails to introduce testimony regarding his financial resources and ability to make bail. /s/Joseph P . Johnson Joseph P. Johnson

14PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Appellee asks the court to affirm the trial court's ruling in Cause numbers 03-15-00277-CR, 03-15-00265- CR, and 03-15-00288-CR.

CERTIFICATE OF SERVICE This is to certify that on August 21, 2015, a true and correct copy ofthe above and foregoing document was served on Tyler Pennington, counsel for the Appellant, by electronic transmission at tvler({r penningtonlawpllc.net. Electronic transmission was reported as com plete. Is/Joseph P. Johnson Joseph P. Johnson

15CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4 Certificate ofCompliance with Type-Volume Limitation, Typeface Requirements, and Type Style Requirements 

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Is/Joseph P. Johnson Signature ofFiling Party Joseph P . Johnson Printed Name Milam County District Attorney's Office Firm August 

### 21,2015 Date

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