Court reverses judge's decision

Appellate justices say bail needs to be lowered for murder defendants

An appellate court's ruling Wednesday on the issue of bail for two jailed Bowie County murder defendants could mean the men will soon be set free.

The 6th District Court of Appeals in Texarkana handed down rulings in the cases of Brandon Eric Brown, 22, and Marquell Deonte Smith, 21, which reversed 202nd District Judge Leon Pesek Jr.'s recent decision to deny the men lower bail.

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Chief Public Defender Rick Shumaker, who represents Marquell Smith, and Texarkana lawyer Al Smith, who represents Brown, argued at a hearing Dec. 7 that Texas law requires the court to reduce the men's bails to amounts they can afford or release them on a personal bond because the state was not ready for trial within 90 days of their arrests.

At the end of the bail hearings in December, Pesek said he found the law unreasonable and refused to lower the defendants' bails. In early January, Shumaker and Al Smith filed briefs with the higher court. The state responded Jan. 25.

Brown and Marquell Smith were arrested March 5, 2015, while driving Christopher Guilbeau's pickup in Tulsa, Okla. Guilbeau's body was discovered in a Texarkana, Texas, alleyway the next day. Guilbeau, 24, died of gunshots investigators believe he sustained Feb. 23, 2015, according to a probable cause affidavit.

The men were extradited to Texarkana from Oklahoma to face murder charges July 30. Brown's bail was set at $750,000, and Smith's bail was set at $1 million. The men and a third defendant, Shamari Newton, were indicted for murder by a Bowie County grand jury Nov. 18, 111 days after their incarceration in Texas and 256 days after a warrant was issued for their arrests.

"A trial court must release a defendant from custody on personal bond or by reducing the amount of bail where he has been continuously incarcerated for more than 90 days and the state is not ready for trial," states the 6th District's opinion, penned by Associate Justice Ralph Burgess.

On Wednesday, the 6th District reversed Pesek's decision to leave the high bails intact and remanded the case back to his court to address the issue. In light of the higher court's ruling, Pesek may have no choice but to lower the bails or grant personal bonds. Pesek can set strict conditions for release, including electronic monitoring, house arrest and daily reporting to pretrial officials. If a defendant violates conditions of pretrial release, the court can order a return to custody and establish a higher bail.

According to the opinion, Pesek abused his discretion in denying the defense lawyers' motions for bail reduction. The opinion points out the state can't possibly be ready for trial when it has not indicted a defendant.

The higher court also referred to the testimony of a Texarkana, Texas, police detective offered at the Dec. 7 hearing.

Detective Matt Cashatt testified he had not turned a complete case file over to prosecutors, that the investigation was ongoing, that he was still attempting to locate a person who may be a suspect or a witness, and that he had recently developed new information in the case.

The 6th District's opinion states that the state was not ready for trial in 90 days and the defense proved the defendants could not make bond on the bail amounts as initially set in July.

"The case law is very clear and the appellate court ruled appropriately," Shumaker said. "The legislature has established what judges have to do in these circumstances."

Al Smith agreed.

"I understand Judge Pesek's reasoning and respect him," Smith said. "But the court of appeals has made it clear on what he has to do."

Pesek has not yet scheduled the cases for a hearing in light of the appellate opinion, though the judge does have a regular criminal docket set on Friday.

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