IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 330-00

 

PHILIP MARTIN ANDERER, Appellant


v.



THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY


Price, J., filed a dissent, in which Meyers and Johnson, J.J., joined.





We often pay lip service to stare decisis. In our opinions, we say "Often it is better to be consistent than right." Malik v. State, 953 S.W.2d 234, 236 (Tex. Crim. App. 1997). In this case, the majority overrules our prior caselaw and achieves a result that is neither consistent nor right.

Texas Code of Criminal Procedure Article 44.04(c) states:

Pending the appeal from any felony conviction . . ., the trial court may deny bail and commit the defendant to custody if there then exists good cause to believe that the defendant would not appear when his conviction became final or is likely to commit another offense while on bail, permit the defendant to remain at large on the existing bail, or, if not then on bail, admit him to reasonable bail until his conviction becomes final. The court may impose reasonable conditions on bail pending the finality of his conviction . . . .

Tex. Code Crim. Proc. art. 44.04(c) (emphasis added). In Estrada v. State, 594 S.W.2d 445 (Tex. Crim. App. 1980), we held that the term reasonable as used in article 44.04(c) encompassed conditions "based upon standards relevant to the purpose of assuring the presence of the defendant." Id. at 447 (citing Stack v. Boyle, 342 U.S. 1 (1951)). We reaffirmed Estrada's holding in Valenciano v. State, 720 S.W.2d 523 (Tex. Crim. App. 1986), when we held that the conditions must strike a balance between society's interest in assuring that the defendant will appear if and when his conviction becomes final and the defendant's interest in remaining free pending appeal. Id. at 525. Most recently in Dallas v. State, 983 S.W.2d 276 (Tex. Crim. App. 1998), we relied on Estrada when we stated "the law is that absent legislative intent to the contrary the trial court has inherent power in misdemeanor and felony appeals to impose conditions on bail that directly or indirectly relate to the purpose of assuring the defendant's continued appearance." Id. at 277.

In its second ground for review the State urges us to hold an appellate bond condition rationally related to protecting the safety of a victim or community is reasonable within the meaning of article 44.04(c). The State argues that the policy rationale for Estrada no longer exists and that the trial court should be permitted to consider the safety of the victim or community when it assesses the conditions for an appeal bond. The State relies on the United States Supreme Court's opinion in Hilton v. Braunskill, 481 U.S. 770 (1987), as support for this proposition.

At this point, we should decline to re-examine Estrada. "The doctrine of stare decisis should generally be followed, because it promotes judicial efficiency and consistency, it fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Proctor v. State, 967 S.W.2d 840, 844-45 (Tex. Crim. App. 1998). This Court and other appellate courts have relied on the Estrada in opinions concerning the reasonableness of bail conditions. See Dallas, 983 S.W.2d at 277; Valenciano, 720 S.W.2d at 525; Speth v. State, 939 S.W.2d 769, 772 (Tex. App.-Houston [14th Dist.] 1997, no pet.); Ex parte Sotelo, 878 S.W.2d 179, 180 (Tex. App.-Fort Worth 1993, pet. ref'd); Easton v. Rains, 866 S.W.2d 656, 659 (Tex. App.-Houston [1st Dist.] 1993, no pet.).

The interest in stare decisis is even more compelling when the rule of law involves a judicial interpretation of a legislative enactment on which parties rely for guidance. Busby v. State, 990 S.W.2d 263, 267 (Tex. Crim. App. 1999). "When the Legislature meets, after a particular statute has been judicially construed without changing the statute, we presume the legislature intended the same construction should continue to be applied to that statute." Id. (quoting Marin v. State, 891 S.W.2d 267, 271-72 (Tex. Crim. App. 1994)). The legislature has met many times since we defined the term reasonable in the context of 44.04(c). If the legislature had disapproved of our definition, it could have changed the wording of Article 44.04(c). Busby, 990 S.W.2d at 267. In fact, the legislature recently added article 17.40 to the Texas Code of Criminal Procedure so that "a magistrate may impose any reasonable condition of bond related to the safety of the victim of the alleged offense or to the safety of the community." Act of May 26, 1999, 76th Leg., R.S., ch. 768, 1, 1999 Tex. Gen. Laws 3387. If the legislature had intended to allow a court to impose a condition on bail pending appeal based on the safety of the victim or community, it could have added the same language to article 44.04(c). Since it did not, we presume that the legislature meant to leave article 44.04(c) as we have interpreted it in the past.

Article 44.04(c) currently provides for the safety of the victim or the community. It specifically allows for the trial court to deny bail if it has good cause to believe that the defendant would likely commit another offense. From this language, the State queries why is the trial court not able to choose the less intrusive and onerous alternative of freeing the defendant from incarceration. The State contends that the trial court should be able to subject the defendant to the conditions rationally related to preventing the appellant from committing more crimes while on bail since the court may deny bail to prevent the commission of additional offenses.

I see a laudable goal but no merit in this argument. It is not our place to set legislative policy; we must honor the words in the statute unless their application produces absurd results. If the defendant were to commit another offense, the safety of the victim or the community would be compromised. According to the statute, the trial court should simply deny bail altogether, rather than impose conditions attempting to protect the victim or the community. Tex. Code Crim. Proc. art. 44.04(c); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) ("[we should] focus our attention on the literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment"). Denying bail altogether is more onerous than imposing a condition designed to prevent the defendant from committing more crimes while on bail. But this result is not absurd, and therefore, we should presume that the legislature intended this result.

I would reaffirm Estrada and overrule the State's second ground for review.

In its first ground for review, the State argues that bond conditions deterring the defendant from committing crimes while on bail pending appeal are rationally related to assuring the appearance of the defendant if and when the conviction becomes final. Such conditions, it claims, are therefore reasonable under article 44.04(c). (1) The State contends a condition that deters additional crimes indirectly relates to assuring the defendant's presence, and is therefore, reasonable pursuant to article 44.04(c).

An appropriate analysis should begin with a summary of our prior cases interpreting the reasonableness of bail conditions pending appeal. In Estrada, the defendant was convicted of possession of heroin. We concluded that the following conditions were reasonable, in other words, rationally related to assuring the defendant's appearance: (1) requiring that the defendant not commit any crimes; (2) requiring the defendant to report to a probation officer; (3) requiring the defendant to report any change of job or address; (4) requiring the defendant to remain within the county unless given permission to leave; (5) requiring the defendant to work faithfully; (6) requiring the defendant to provide urine samples to make sure he was not using illegal drugs and allowing the clinic to report the result to a probation officer; and (7) requiring the defendant to attend drug counseling once a month if he began to backslide. Estrada, 594 S.W.2d 447-48.

In Valenciano, the defendant was convicted of indecency with a child who lived in his neighborhood. The trial judge imposed a condition that the defendant stay away from his family residence. We held that "[t]he condition unreasonably impinges on [the defendant's] freedom without forwarding society's interest in assuring his presence in any way." Valenciano, 720 S.W.2d at 525.

In Dallas, the defendant was convicted of cruelty to animals, and as a condition of bail, the trial judge prohibited his training or kenneling dogs. We explained that the condition was not relevant to securing the defendant's presence in court. Dallas, 983 S.W.2d at 280.

The appellant in this case was convicted of criminally negligent homicide. The trial judge imposed a bail condition that he not operate a motor vehicle pending appeal. This condition is not similar to those permitted in Estrada; rather, the condition imposed in this case actually diminishes the appellant's ability to work. Like the conditions imposed in Dallas and Valenciano, I fail to see how this condition helps to secure the appellant's presence if and when his conviction becomes final. Cf. Speth, 939 S.W.2d at 770 (stating that it was unreasonable to prohibit the defendant from working as a chiropractor pending appeal of his conviction for aggravated assault on a police officer). I understand and sympathize with the trial court's effort to prevent future crimes by the appellant and to protect potential victims of the appellant. But this can be accomplished by denying bail completely. As I explained earlier, we should presume that this is what the legislature intended.

I would hold that Estrada and its progeny are still controlling case law. The condition imposed on the appellant was not reasonable to secure the defendant's return: it could do little to assure the appellant's presence should his conviction become final. I would affirm the judgment of the Court of Appeals. Because the majority does not, I dissent.



Delivered: November 14, 2001.

Publish.

1. It would seem feasible and possibly recommended by the State and the majority that any defendant convicted of a sexual offense be required to attend counseling as a bond condition in order to prevent his committing the same or similar crime while awaiting appeal.