ACCEPTED

09-21-00227-CR
NINTH COURT OF APPEALS
BEAUMONT, TEXAS
10/11/2021 12:04 PM
CARLY LATIOLAIS
CLERK

NOS. 09-21-00227-CR & 09-21-00228-CR

IN THE COURT OF APPEALS FOR THE NINTH FILED IN

DISTRICT OF TEXAS AT BEAUMONT 9th COURT OF APPEALS
BEAUMONT, TEXAS
10/11/2021 12:04:01 PM
CARLY LATIOLAIS
KEVIN WARE, JR., Appellant, Clerk

v.

THE STATE OF TEXAS, Appellee.

Arising from:

Cause Nos. 21-04-05652 & 21-04-05653

IN THE 221ST DISTRICT COURT,
MONTGOMERY COUNTY, TEXAS

STATE’S APPELLATE BRIEF

BRETT W. LIGON
District Attorney
Montgomery County, Texas

DONNA BERKEY
Assistant District Attorney
Montgomery County, Texas

PHILIP S. HARRIS
Assistant District Attorney
Montgomery County, Texas
T.B.C. No. 24086583
207 W. Phillips, Second Floor
Conroe, Texas 77301
936-539-7800
936-788-8395 (FAX)
philip.harris@mctx.org

ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT

 IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.2, the State hereby supplements the

appellant’s list of parties to this appeal with the names of all trial and appellate

counsel for the State:

District Attorney: BRETT W. LIGON

District Attorney
Montgomery County, Texas
207 W. Phillips, Second Floor
Conroe, Texas 77301

Counsel for the State in the trial court: DONNA BERKEY

Assistant District Attorney
Montgomery County, Texas
207 W. Phillips, Second Floor
Conroe, Texas 77301

Counsel for the State in the appellate courts: PHILIP S. HARRIS

Assistant District Attorney
Montgomery County, Texas
207 W. Phillips, Second Floor
Conroe, Texas 77301

ii
 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ ii

TABLE OF CONTENTS ......................................................................................... iii

INDEX OF AUTHORITIES .................................................................................... iv

STATEMENT OF THE CASE...................................................................................1

STATEMENT OF FACTS .........................................................................................1

SUMMARY OF THE STATE’S ARGUMENT.........................................................2

ARGUMENT AND AUTHORITIES ........................................................................3

The trial court is not required to hold a hearing prior to

setting aside a defendant’s bond............................................................3

The appellant is not entitled to relief on his ex parte

communications claim...........................................................................6

The State did not engage in ex parte

communications with the trial court ...........................................7

Any alleged ex parte communication did not harm

the appellant ................................................................................8

The trial court properly denied the appellant’s writ of

habeas corpus and held the appellant without bail
pending trial ...........................................................................................9

CONCLUSION AND PRAYER ..............................................................................12

CERTIFICATE OF COMPLIANCE WITH RULE 9.4...........................................13

CERTIFICATE OF SERVICE .................................................................................13

iii
 INDEX OF AUTHORITIES

Cases
Abdygapparova v. State, 243 S.W.3d 191
(Tex. App.—San Antonio 2007, pet. ref’d)............................................................7

Ex parte Bernal, No. 10-16-00403-CR, 2017 WL 2192867

(Tex. App.—Waco May 17, 2017, no pet.) ............................................................4

Ex parte Davis, No. 09-16-00397-CR, 2017 WL 1433311

(Tex. App.—Beaumont April 19, 2017, no pet.)....................................................9

Ex parte Gomez, 624 S.W.3d 573 (Tex. Crim. App. 2021) ...................................1, 3
Ex parte Marcantoni, No. 14-03-00079-CR, 2003 WL 1887883
(Tex. App.—Houston [14th Dist.] Apr. 17, 2003, no pet.) ....................................5

Ex parte Shires, 508 S.W.3d 856 (Tex. App.—Fort Worth 2016, no pet.) ..........5, 10
Fernandez v. State, 597 S.W.3d 546 (Tex. App.—El Paso 2020, pet. ref’d) .............8

Kniatt v. State, 206 S.W.3d 657 (Tex. Crim. App. 2006) ...........................................9
Martin v. State, 176 S.W.3d 887 (Tex. App.—Fort Worth 2005, pet. ref’d)..............4
Miller v. State, 855 S.W.2d 92
(Tex. App.—Houston [14th Dist.] 1993, pet. ref’d)...............................................4

Westbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) ......................................8

Statutes
Tex. Code Crim. Proc. Ann. art. 17.09 (West 2015) ..................................................3

Tex. Code Crim. Proc. Ann. art. 17.40 (West 2015) ..................................................6
Tex. Code Crim. Proc. Ann. art. 17.44 (West Supp. 2020) ........................................4

Constitutional Provisions
Tex. Const. art. 1, § 11b ...........................................................................................10

iv
Rules
Tex. Discp. R. Prof. Cond. 3.05 .................................................................................7

v
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

STATEMENT OF THE CASE

The appellant is charged by indictment with possession of a controlled

substance and unlawful possession of a firearm by a felon (227 C.R. 63; 228 C.R.

70).1 The State filed a motion to hold the appellant without bail 2 in both cause

numbers (227 C.R. 17–18; 228 C.R. 20–21), and the trial court granted those

motions (227 C.R. 20; 228 C.R. 23). The appellant filed applications for writs of

habeas corpus in both cause numbers asking the trial court to release the appellant

and set bonds (227 C.R. 28–40; 228 C.R. 31–43). The trial court denied both

applications (227 C.R. 53; 228 C.R. 56).

STATEMENT OF FACTS
While the appellant was on bond for two felony offenses, prosecutor Kevin

Bratcher with the Montgomery County District Attorney’s Office notified

probation officer Jennifer Turner that the appellant had potentially violated

conditions of his bond by committing new offenses in Harris County (R.R. 33).

After learning of the potential new law violations, Turner conducted her own

investigation and learned that the appellant had failed to report to probation or

1
This brief identifies the clerk’s record for cause number 09-21-00227 as
“227 C.R.” and the clerk’s record for cause number 09-21-00228 as “228 C.R.”
2
This brief uses the terms “bail” and “bond” interchangeably. See Ex parte
Gomez, 624 S.W.3d 573, 577 (Tex. Crim. App. 2021) (finding that Chapter 17 of
the Code of Criminal Procedure uses the terms interchangeably).

1
submit to urinalysis testing (R.R. 32). Turner then notified the trial court of all of

the appellant’s bond violations, and the trial court signed an order of arrest for the

appellant, setting aside his bond (227 C.R. 14; 228 C.R. 15; R.R. 18).

At a subsequent hearing, the State moved the trial court to hold the appellant

without bail because he violated conditions of bond related to the safety of the

community. Specialist Justin Burk with the Montgomery County Sheriff’s Office

testified that when he arrested the appellant on the court’s order setting aside bond,

the appellant had a hand gun in his possession (R.R. 46–47).

SUMMARY OF THE STATE’S ARGUMENT

Reply to Point of Error One: The Code of Criminal Procedure authorizes a

trial court to revoke a defendant’s bond and order his arrest for any good and

sufficient cause. Because the trial court is not required to hold a hearing prior to

that revocation, the trial court properly revoked the appellant’s bond after learning

that he had violated multiple conditions of his pretrial release.

Reply to Point of Error Two: Though ex parte communications between the

State and the trial court are generally barred, the appellant has failed to show that

the State engaged in such communications in this case. But even if an improper ex

parte communication occurred, the appellant has failed to demonstrate prejudice

from the alleged communication.

2
 Reply to Point of Error Three: The Texas Constitution authorizes a trial

court to hold a defendant without bail if he violates a bond condition related to

community or victim safety. Because the trial court heard testimony that the

appellant possessed a firearm while on bond, the court properly granted the State’s

motion to hold the appellant without a bond.

ARGUMENT AND AUTHORITIES

In three points of error, the appellant argues that the trial court violated the

appellant’s due process rights by revoking his bond without a hearing and by

engaging in improper ex parte communications with the State. Thus, the appellant

concludes, the trial court’s bond revocation was improper, and the trial court

lacked the authority to hold the appellant without bond pursuant to article 11b of

the Texas Constitution.

The trial court is not required to hold a hearing prior to setting aside a
defendant’s bond.

Generally, a defendant who has posted bond may not be required to post

another bond in the same criminal action. Tex. Code Crim. Proc. Ann. art. 17.09 §

2 (West 2015); see also Gomez, 624 S.W.3d at 575. But the trial court may, for any

“good and sufficient cause” revoke the defendant’s bond, order the defendant

rearrested, and require the defendant to “give another bond in such amount” as the

court deems proper. Code Crim. Proc. art. 17.09 § 3; Gomez, 624 S.W.3d at 576.

3
Article 17.09 does not require that a trial court hold a hearing prior to setting aside

a defendant’s bond.

No precise standard exists for determining what constitutes “good and

sufficient cause” to revoke a defendant’s bond. See Miller v. State, 855 S.W.2d 92,

93–94 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d). Situations that courts

have held constitute good and sufficient cause include: a defendant committing

new law violations while on bond, see id. at 94; testing positive for drugs, see Ex

parte Bernal, No. 10-16-00403-CR, 2017 WL 2192867, at *2 (Tex. App.—Waco

May 17, 2017, no pet.) (mem. op., not designated for publication); and being late

to trial, see Martin v. State, 176 S.W.3d 887, 905 (Tex. App.—Fort Worth 2005,

pet. ref’d). Further, article 17.44 of the Code of Criminal Procedure explicitly

authorizes a trial court to revoke a defendant’s bond for refusing to submit to a

drug test. See Tex. Code Crim. Proc. Ann. art. 17.44(c)(2) (West Supp. 2020).

In the present case, the trial court set aside the appellant’s bond and ordered

his arrest after learning that he had not complied with multiple conditions of his

pretrial release, including failing to report to adult probation and submit to drug

testing. So pursuant to articles 17.09 and 17.44 of the Code of Criminal Procedure,

the trial court properly revoked the appellant’s bond.

The appellant asserts that the general due process and due course of law

requirements of the United States and Texas Constitutions require the trial court to

4
provide notice to a defendant and hold a hearing before revoking his pretrial bond.

But as a court of appeals has noted, “[t]he essential guarantee of the Due Process

Clause is that the government may not imprison or otherwise physically restrain a

person except in accordance with fair procedures.” Ex parte Shires, 508 S.W.3d

856, 861 (Tex. App.—Fort Worth 2016, no pet.). And though notice and a hearing

may be one way to satisfy the strictures of due process, they are not the exclusive

method. See id. (appellate court must determine whether sufficient procedural

safeguards are employed to assure deprivation of liberty interest is not arbitrary).

Here, though the trial court did not notify the appellant of its intent to revoke

the appellant’s bail or hold a hearing, the appellant has failed to show the bond

revocation violated his due process rights. The appellant had notice that failing to

submit to urinalysis testing constituted a violation of his bond that authorized the

court to order his arrest. See Ex parte Marcantoni, No. 14-03-00079-CR, 2003 WL

1887883, at *2 (Tex. App.—Houston [14th Dist.] Apr. 17, 2003, no pet.) (mem.

op., not designated for publication) (“Notice is given in compliance with due

process standards simply by the publication of a statute.”). Further, before

continuing to hold the appellant after bond revocation, the trial court held an

evidentiary hearing to determine whether to set a new bond or continue to hold the

appellant. So the appellant has failed to show that the trial court arbitrarily

revoked his bond in violation of his due process rights.

5
 Additionally, the appellant claims that article 17.40 of the Code of Criminal

Procedure requires the trial court to hold a hearing before revoking a defendant’s

bond, but the plain language of article 17.40 does not support that assertion:

“At a hearing limited to determining whether the defendant violated a

condition of bond imposed under Subsection (a), the magistrate may
revoke the defendant’s bond only if the magistrate finds by a
preponderance of the evidence that the violation occurred. If the
magistrate finds that the violation occurred, the magistrate shall
revoke the defendant’s bond and order that the defendant be
immediately returned to custody.”

Tex. Code Crim. Proc. Ann. art. 17.40(b) (West 2015). Nothing in the wording of

article 17.40 requires the trial court to hold a hearing. Further, article 17.40 deals

specifically with a trial court’s authority to impose conditions of bond related to

the safety of the community or of a victim. See id. art. 17.40(a). Other provisions

of the code that permit a trial court to revoke a defendant’s bond, including article

17.44, make no mention of a hearing. So the trial court did not violate the Code of

Criminal Procedure by failing to hold a hearing before revoking the appellant’s

bond.

This Court should overrule the appellant’s first point of error.

The appellant is not entitled to relief on his ex parte communications

claim.

In his point of error, the appellant asserts that the State’s alleged improper ex

parte communication with the trial court caused the court’s later revocation of the

appellant’s bond to violate his due process rights.

6
 The State did not engage in ex parte communications with
the trial court.

Due process requires a neutral and detached magistrate. Abdygapparova v.

State, 243 S.W.3d 191, 208 (Tex. App.—San Antonio 2007, pet. ref’d). Ex parte

communications, generally barred to achieve that neutrality, involve fewer than all

of the parties who are legally entitled to be present. See id. at 207.

There is no evidence in the record that the State intended to communicate

with the trial court in an ex parte manner. At the hearing on the State’s motion to

hold the appellant without a bond, prosecutor Kevin Bratcher testified that he

forwarded information he received about possible bond violations to Jennifer

Turner, the probation officer assigned to the trial court in this case (R.R. 54).3

Turner then used that information, and information she learned in an independent

investigation, to request that the trial court set aside the appellant’s bond. But

Bratcher testified repeatedly that it was not his intention to communicate

information about the appellant’s bond violations to the court by way of Turner

(R.R. 57, 69). So no improper ex parte communication occurred between the State

and the trial court. See Tex. Discp. R. Prof. Cond. 3.05 (attorney may not cause

another to communicate ex parte with a tribunal).

3
In his brief the appellant refers to Turner as a “District Court CLO” and the
“CLO of the Court.” Turner testified at the hearing that she works for the
Montgomery County probation department and is assigned to be the court liaison
officer for the 221st District Court (R.R. 26).
7
 Undeterred by a complete lack of evidence, the appellant persists in his

scurrilous accusation that “the State . . . gave information to the [probation officer]

of the Court, with an expectation or understanding that the information would be

passed on to the Court and used to revoke Ware’s bonds” (appellant’s brief at 15).

The appellant does not cite to the record for this claim because no record support

exists. Such a baseless charge of impropriety does not entitle the appellant to

relief.

But even if this Court were to assume, without deciding, that some form of

improper ex parte communication took place, the appellant would not be entitled to

relief on that basis.

Any alleged ex parte communication did not harm the

appellant.

Establishing that an improper ex parte communication occurred does not end

the inquiry into whether the appellant is entitled to release on bond because mere

violations of the Code of Judicial Conduct alone do not constitute reversible error.

See Fernandez v. State, 597 S.W.3d 546, 559 (Tex. App.—El Paso 2020, pet. ref’d)

(citing Westbrook v. State, 29 S.W.3d 103, 121 (Tex. Crim. App. 2000)). Before an

appellate court may reverse a lower court’s ruling on judicial impropriety grounds,

the appellant must show prejudice resulting from the impropriety, as well as the

rendition of an improper ruling. See id. at 560. Further, a prejudice showing

8
requires record support that the communications influenced the court’s decision-

making. Id.

The appellant fails to make the required showing of prejudice. The Court’s

decision to revoke the appellant’s bond was based on violations of his bond

conditions, including failing to report to probation or submit to drug testing. The

appellant does not explain how his presence at the time of any allegedly improper

communications would have affected the trial court’s decision to revoke the

appellant’s bond. Nor does the appellant attempt to dispute the claim that he

violated his bond conditions. So the appellant has failed to show prejudice from

any allegedly improper communications between the trial court and the State.

This Court should overrule the appellant’s second point of error.

The trial court properly denied the appellant’s writ of habeas corpus
and held the appellant without bail pending trial.

A reviewing court assesses a trial court’s denial of a writ of habeas corpus

application for an abuse of discretion. Ex parte Davis, No. 09-16-00397-CR, 2017

WL 1433311, at *3 (Tex. App.—Beaumont April 19, 2017, no pet.) (citing Kniatt v.

State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006)). Appellate courts review a

trial court’s decision by considering the entire record and viewing the facts in the

light most favorable to the trial court’s ruling. Kniatt, 206 S.W.3d at 664. A

reviewing court should afford almost total deference to the trial court’s

9
determinations of historical facts, including implied determinations in the absence

of express findings. See Shires, 508 S.W.3d at 860.

The Texas Constitution authorizes a trial court to hold a defendant without

bail if the court determines by a preponderance of the evidence that “the person

violated a condition of release related to the safety . . . of the community.” Tex.

Const. art. 1, § 11b. In full, section 11b provides:

Any person who is accused in this state of a felony or an offense

involving family violence, who is released on bail pending trial, and
whose bail is subsequently revoked or forfeited for a violation of a
condition of release may be denied bail pending trial if a judge or
magistrate in this state determines by a preponderance of the evidence
at a subsequent hearing that the person violated a condition of release
related to the safety of a victim of the alleged offense or to the safety
of the community.

Id. (emphasis added).

Here, the appellant is charged with the felony offenses of possession with

intent to deliver a controlled substance and possession of a firearm by a felon, and

the trial court heard testimony that while on bond, the appellant was again found in

possession of a firearm, in direct violation of his bond conditions (227 C.R. 5; 228

C.R. 7). So the trial court did not abuse its discretion by concluding—at a hearing

subsequent to the appellant’s bond revocation—that possessing a firearm violated a

bond condition related to the safety of the community. See, e.g., Tex. Penal Code

1.07(a)(17) (defining a firearm as a deadly weapon per se).

10
 The appellant does not directly dispute that he violated a bond condition

related to the safety of the community, but rather asserts that he cannot be held at

no bond pursuant to section 11b because the trial court did not follow the proper

sequence of events. According to the appellant, section 11b requires that the trial

court first hold a hearing to revoke the appellant’s bond, then hold another hearing

to determine whether the appellant violated a bond condition related to community

or victim safety (appellant’s brief at 18). But as discussed above, the trial court

need not hold a hearing before revoking a defendant’s bond for good and sufficient

cause. And the plain language of section 11b contemplates a hearing taking place

“subsequent” to bond revocation. Because the appellant had a hearing after bond

revocation, and prior to being held at no bond pursuant to section 11b of the Texas

Constitution, the trial court’s order holding the appellant at a no bond was not an

abuse of discretion.

This Court should overrule the appellant’s final point of error.

11
 CONCLUSION AND PRAYER
The State respectfully submits that all things are regular, and this Court

should affirm the trial court’s order.

BRETT W. LIGON
District Attorney
Montgomery County, Texas

/s/ Philip S. Harris

PHILIP S. HARRIS
T.B.C. No. 24086583
Assistant District Attorney
Montgomery County, Texas
207 W. Phillips, Second Floor
Conroe, Texas 77301
936-539-7800
936-788-8395 (FAX)
philip.harris@mctx.org

12
 CERTIFICATE OF COMPLIANCE WITH RULE 9.4
I hereby certify that this document complies with the requirements of Tex. R.

App. P. 9.4(i)(2)(B) because there are 2,520 words in this document, excluding the

portions of the document excepted from the word count under Rule 9.4(i)(1), as

calculated by the Microsoft Word computer program used to prepare it.

/s/ Philip S. Harris

PHILIP S. HARRIS
Assistant District Attorney
Montgomery County, Texas

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was

served via efile.txcourts.gov to Bryan W.L. Garris, counsel for the appellant, at

bryan@txdefense.net on the date of the submission of the original to the Clerk of

this Court.

/s/ Philip S. Harris

PHILIP S. HARRIS
Assistant District Attorney
Montgomery County, Texas

13
 Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Philip Harris
Bar No. 24086583
philip.harris@mctx.org
Envelope ID: 58060174
Status as of 10/11/2021 12:11 PM CST

Associated Case Party: Kevin Ware

Name BarNumber Email TimestampSubmitted Status

Bryan W.L.Garris bryan@txdefense.net 10/11/2021 12:04:01 PM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Coby DuBose coby@dubosedefense.com 10/11/2021 12:04:01 PM SENT