Marian Fraser v. State ( 2020 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-15-00267-CR
________________________
MARIAN FRASER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 19th District Court
McLennan County, Texas
Trial Court No. 2014-158-C1; Honorable Ralph T. Strother, Presiding
March 2, 2020
ORDER ON MOTION TO REMAIN ON CURRENT BOND
OR FOR REASONABLE BAIL PENDING APPEAL
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
By opinion and judgment dated December 20, 2019, this court reversed Marian
Fraser’s conviction for the offense of murder for a second time and remanded the cause
to the trial court for a new trial. See Fraser v. State, __ S.W.3d __, No. 07-15-00267-CR,
2019 Tex. App. LEXIS 11105, at *19 (Tex. App.—Amarillo Dec. 20, 2019, pet. filed). See
also Fraser v. State, 523 S.W.3d 320 (Tex. App.—Amarillo 2017), rev’d, 583 S.W.3d 564,
571 (Tex. Crim. App. 2019). On January 31, 2020, Appellant filed a motion in this court
to remain on her current bond or have reasonable bail set pending a second appeal.
While that motion was pending, on February 3, 2020, the State Prosecuting Attorney filed
a petition for discretionary review. By letter dated February 4, 2020, this court notified the
parties that Appellant’s motion to remain on current bond or for reasonable bail pending
appeal was moot. The following day, Appellant filed a motion for reconsideration.
Relying on the plain language of article 44.04(h) of the Texas Code of Criminal
Procedure and Murdock v. State, 870 S.W.2d 41, 43 (Tex. Crim. App. 1993), Appellant
maintains she made a choice to have this court rule on her motion. Remaining convinced
that Appellant’s motion to remain on bond or for reasonable bail is moot, we include these
additional comments.
Article 44.04(h) of the Texas Code of Criminal Procedure provides that upon
reversal of a conviction, a defendant is entitled to release on reasonable bail, regardless
of the length of term of imprisonment, pending final determination of the appeal by the
State or defendant on petition for discretionary review. (Emphasis added). The statute
provides in part that “[i]f the defendant requests bail before a petition for discretionary
review has been filed, the Court of Appeals shall determine the amount of bail.” TEX.
CODE CRIM. PROC. ANN. art. 44.04(h) (West 2018).
In 2017, when this court reversed Appellant’s conviction the first time, bail was set
at $50,000 by the Texas Court of Criminal Appeals. On September 11, 2019, the high
court reversed this court’s decision—a final determination of the appeal on petition for
discretionary review. However, the State never sought to revoke Appellant’s bond. See
2
Tucker v. State, 286 S.W.3d 558, 560 (Tex. App.—Corpus Christi 2009, order) (granting
State’s motion to revoke bail after a final determination of the appeal by the Texas Court
of Criminal Appeals).
Appellant indicates that her counsel has been advised that the State opposes
permitting her to remain on her current bond. However, this court has now reversed her
conviction for a second time which entitles her to remain on bond. Considering that the
Texas Court of Criminal Appeals originally set Appellant’s bail at $50,000 and that the
State never sought to timely revoke that bail, this court need not set reasonable bail
pending a second final determination on petition for discretionary review. See Murdock,
870 S.W.2d at 42 (concluding that a defendant may request bail only one time from one
court). Appellant’s motion for reasonable bail and motion for reconsideration are
rendered moot.
It is so ordered.
Per Curiam
Do not publish.
3