Ex parte Shockley , 683 S.W.2d 493 ( 1984 )

ALLEN, Justice.

Daniel Gaston Shockley, Sr. appeals from an order of the trial court increasing his appeal bond from $10,000 to $50,000. In two grounds of error, the petitioner contends: (1) he was denied due process because he was not given notice and a hearing on the issue of increased bond; and (2) there was no evidence to support the order increasing bond.

The petitioner was convicted on June 11, 1984, of burglary of a building. Punishment was assessed at ten years and one day in the Texas Department of Corrections. The trial court set bail pending appeal at $10,000. On August 14, 1984, the State filed a “Motion To 'Hold The Defendant Who Is On Appeal, Without Bond” pursuant to TEX.CODE CRIM.PROC. ANN. art. 44.04(c) (Vernon Supp.1984).

The hearing to revoke bail was held on August 28, 1984. The State’s sole witness was John Leathers, an investigator for the Dallas County District Attorney’s Office. Leathers testified, over vigorous hearsay objections, that he had spoken with a police officer in St. Louis, Missouri regarding pending charge in Missouri against the petitioner for attempted burglary and possession of burglary tools. Leathers also received a written investigation report pertaining to these charges. The alleged offenses in Missouri were committed on August 5, 1984. The defense called no witnesses.

At the conclusion of the evidence the State by oral motion requested that the court increase appellant’s bond to $250,-000.00 in the event the court should reject the State’s motion to hold appellant without bond. It is apparent that the hearsay testimony presented by the State would neither support its written motion nor its oral motion.

The appellant objected to a hearing on the State’s motion to increase bail because it was not in writing and no notice had been given to appellant. The court stated that it had statutory power to increase an appeal bond on its own motion and that it need not be in writing. The court then stated, “I’m going to increase the bond to $50,000.00.” We conclude that the court increased the appeal bond amount on its own motion.

We hold that the court has a statutory right to raise bond pursuant to its own motion. TEX.CODE CRIM.PROC. ANN. art. 44.04(d) (Vernon Supp.1984). Before exercising this authority granted by statute, the court is not required to give the defendant either notice or a hearing.

The court’s action in increasing appellant’s appeal bond on its own motion, by implication, overruled the State’s motion to deny appellant bond on appeal. Therefore, the nature of the evidence adduced by the State in support of its motion is immaterial for purposes of this appeal.

Further, the defendant has not been denied due process in that he is free either to file a motion to reduce bond under TEX. CODE CRIM.PROC.ANN. art. 44.04(d) (Vernon Supp.1984) or to file a writ of habeas corpus alleging excessive bail under TEX.CODE CRIM.PROC.ANN. art. 11.01 (Vernon 1977). Under either option, appellant will be granted his constitutional rights to notice and a hearing. Ex parte Williams, 630 S.W.2d 803, 804 (Tex.App.—San Antonio 1982, no writ).

The judgment entered by the trial court does not address the subject matter contained in the record before this court and, therefore, must be reformed to conform with the record. We reform the judgment to recite: (1) that the hearing was held on the State’s motion to deny bail pending appeal by the defendant Daniel Gaston Shockley, Sr.; (2) that after the hearing the State’s motion was denied; and (3) that the court, on its own motion, increased defendant Shockley’s bond pending appeal from $10,000.00 to $50,000.00.

As reformed we affirm the judgment of the trial court.