Bobby Carl Lennox AKA Bobby Carl Leanox v. State ( 2020 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-19-00164-CR
BOBBY CARL LENNOX AKA BOBBY CARL LEANOX, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court
Lamar County, Texas
Trial Court No. 28256
Before Morriss, C.J., Burgess and Stevens, JJ.
ORDER
Bobby Carl Lennox was convicted of three counts of forgery of a financial instrument
and was sentenced to seventeen years’ imprisonment on each count, with the sentences to run
concurrently. In an opinion issued February 20, 2020, we reversed the portion of the judgments
imposing punishment and remanded the causes to the trial court for new punishment hearings.
On March 9, 2020, the State filed a motion for rehearing. That motion remains pending
with this Court.
On March 31, 2020, Lennox filed a motion pursuant to Article 44.04(h) of the Texas
Code of Criminal Procedure asking this Court to set bail pending final determination of his
appeal. See TEX. CODE CRIM. PROC. ANN. art. 44.04(h).
We deny Lennox’s motion as prematurely filed. Article 44.04(h) states:
(h) 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).
TEX. CODE CRIM. PROC. ANN. art. 44.04(h). Under Article 44.04(h), Lennox’s right to release
does not attach until such time as this Court issues its final ruling. Because the State’s motion
for rehearing remains pending, the final ruling of this Court has yet to issue. See Tissier v.
Kegans, 789 S.W.2d 680 (Tex. App.—Houston [1st Dist.] 1990, no pet.) (court of appeals
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decision reversing defendant’s conviction was not final, as state’s motion for rehearing was still
pending); In re Keeter, 134 S.W.3d 250, 253 (Tex. App.—Waco 2003, orig. proceeding); see
Gomez v. State, No. 07-10-00116-CR, 2011 WL 1546861, at *1 (Tex. App.—Amarillo Apr. 25,
2011, order) (per curiam).
We, therefore, deny Lennox’s motion for bail as premature.
IT IS SO ORDERED.
BY THE COURT
Date: April 7, 2020
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