Aviles v. State

ORDER SETTING BAIL

ANDERSON, Justice.

On May 18, 2000, this court issued an opinion reversing appellant’s conviction for possession with intent to deliver a controlled substance, namely cocaine. After we reversed his conviction, appellant filed a motion pursuant to article 44.04(h) of the Code of Criminal Procedure asking this court to set bail in the amount of $10,-000.00. The State filed a response to appellant’s motion arguing that we should set bail at $1,000,000.00, essentially the same amount set by the trial court for appellant’s appeal bond. We grant appellant’s motion and set bail at $10,000.00.

Appellant was convicted of possession with intent to deliver more than four hundred (400) grams of cocaine. After the trial court denied appellant’s pretrial motion to suppress, it sentenced him to thirty-five years confinement in the Texas Department of Criminal Justice — Institutional Division. On May 18, 2000, this court unanimously overturned appellant’s conviction holding that the trial court erred in denying appellant’s motion to suppress the cocaine seized during the search of his vehicle because the officer lacked reasonable suspicion to justify appellant’s detention. See Aviles v. State, 23 S.W.3d 74, 78-81 (Tex.App.—Houston [14th Dist.] 2000, no pet. h.). Based on our decision to reverse his conviction, appellant filed his motion for bail under article 44.04(h) of the Texas Code of Criminal Procedure. See Tex.Code Crim.Proc.Ann. art. 44.04(h) (Vernon Pamph.2000). Appellant’s motion was filed before the State filed its petition for discretionary review. Accordingly, this court is charged with determining the amount of bail. See id.

Article 44.04(h) of the Texas Code of Criminal Procedure states, in pertinent part:

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.

Id.

The question that arises in the context of appellant’s motion is what factors should the appellate court consider in determining “reasonable bail” under article 44.04(h). We have found no cases discussing this issue.

When determining the proper amount of pretrial and appeal bonds, the courts have held that the primary goal is to secure the presence of the accused. See Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex.Crim.App. [Panel Op.] 1980); Maldonado v. State, 999 S.W.2d 91, 93 (Tex.App.—Houston [14th Dist.] 1999, pet. ref'd). Article 17.15 of the Code of Criminal Procedure states that in determining the amount of bail in any case, courts are to be guided by certain rules:

1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.

2. The power to require bail is not to be so used as to make it an instrument of oppression.

3. The nature of the offense and the circumstances under which it was committed are to be considered.

4. The ability to make bail is to be regarded.

5. The future safety of a victim of the alleged offense and the community shall be considered.

Tex.Code CRIm.Proc.Ann. art. 17.15 (Vernon Supp.2000).

In addition to considering the rules contained in article 17.15, the courts have held there are seven additional factors to be considered in determining the amount of bond: (1) the defendant’s work record; (2) the defendant’s family and community ties; (3) the defendant’s length of residency; (4) the defendant’s prior criminal record; (5) the defendant’s conformity with previous bond conditions; (6) the existence of other outstanding bonds, if any; and (7) aggravating circumstances alleged to have been involved in the charged offense. See Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex.Crim.App. [Panel Op.] 1981).¹

Of all the factors listed in article 17.15 and in Rubac, the Court of Criminal Appeals and this court have recognized that two factors should be given great weight when determining the amount of bail: the nature of the offense and the length of the sentence. See Rubac, 611 S.W.2d at 849; Hughes v. State, 843 S.W.2d 236, 237 (Tex.App.—Houston [14th Dist.] 1992, no pet.).

After reviewing article 17.15, article 44.04(h), and bail cases in the context of pretrial bail and post-conviction bail, we hold that we should consider those factors contained in article 17.15 of the Code of Criminal Procedure and those set out in Ex parte Rubac, 611 S.W.2d 848, 849 (Tex.Crim.App. [Panel Op.] 1981). However, we reject the notion that the nature of the offense and the length of sentence should be given great weight when the request for reasonable bail is made pursuant to article 44.04(h). Once a conviction is reversed, we hold the primary factors that should be considered by the court of appeals are: (1) the fact that the conviction has been overturned; (2) the State’s ability, if any, to retry the appellant; and (3) the likelihood that the decision of the court of appeals will be overturned.

The dissent contends that just as in pretrial and appeal bond cases, the overriding considerations after a conviction is reversed should still be the length of appellant’s sentence and the nature of the offense. We respectfully, but strongly, disagree. The situation following a reversal of a conviction is much different from that of pretrial or post-conviction bail; especially, as in this case, where the State admits that a retrial is “precluded.” Moreover, article 44.04(h) states that the court of appeals must set bail regardless of the length of imprisonment. See Tex.Code CRIM.PROC.Ann. art. 44.04(h) (Vernon Pamph.2000). Thus, we conclude that the primary considerations after a conviction has been overturned regarding bail under article 44.04(h) must be different from those relevant to determining bail pretrial or during the initial appeal.

The dissent’s contention that a bond of $999,999.00, the same amount set by the trial court for the appeal bond, is a reasonable bail pending disposition of the State’s petition for discretionary review is unpersuasive because it is based in large part on two faulty assumptions: (1) that the State may actually retry appellant; and (2) that our decision in the underlying appeal may likely be reversed. Based on these two assumptions, the dissent contends that bail must be set at almost one million dollars ($1,000,000.00) because appellant has “a serious and compelling motivation to flee.” We find these premises and the resulting conclusion unsound.

First, the State will not retry appellant when the case is remanded. The dissent states that the State has “essentially” conceded that “a retrial would be unlikely.” The dissent understates the position asserted by the State in its response to appellant’s motion for baü. The State admitted in its response that if our decision is upheld, a retrial would be “precluded,” not just “unlikely.” The dissent also claims that “regardless of whether this court’s ruling is upheld, appellant will still be subject to further prosecution.” While technically this is correct because the case has been remanded for further proceedings based on our decision of May 18, 2000, in actuality this contention is false because the State has conceded that any retrial would be precluded.

Second, we find it unlikely that our judgment reversing appellant’s conviction will be overturned. Our confidence in our decision stems from a relatively recent decision of the Court of Criminal Appeals in which the court refused a State’s petition for discretionary review in a case decided on similar facts. See Hernandez v. State, 983 S.W.2d 867, 869 (Tex.App.—Austin 1998, pet. ref'd). This court relied heavily on the Hernandez decision in the underlying appeal.

In Hernandez, the defendant’s truck veered into an adjacent lane. Id. at 868. The defendant was stopped by a police officer. See id. The officer conducted a field sobriety test and determined appellant was intoxicated. See id. Appellant was charged with driving while intoxicated. See id. at 867. At trial, the defendant filed a motion to suppress alleging the initial stop was not justified and, therefore, all evidence of his intoxication should be excluded. See id. at 868. To support its contention that the stop made by the officer was justified, the State called the officer to testify at the suppression hearing. See id. The officer testified he stopped the defendant because he had committed a ticketable traffic offense, i.e., failure to maintain a single-marked lane of traffic in violation of section 545 .060(a) of the Texas Transportation Code. See id. Only after he properly stopped the defendant did he detect signs of intoxication. See id.

After his conviction, the defendant sought review by the Third Court of Appeals. In its decision, the court held that because the State produced no evidence that the defendant’s movement into the adjacent lane was unsafe or dangerous, the officer did not have a reasonable basis for believing the defendant had committed a ticketable traffic offense. See id. at 871-72. Accordingly, the court held the evidence of the defendant’s intoxication should have been suppressed and it reversed appellant’s conviction. See id. at 872. The State filed a petition for discretionary review which was refused by the Texas Court of Criminal Appeals.

In deciding the underlying appeal in this case, we relied on Hernandez. As in Hernandez, the State in this case produced no evidence that appellant’s multiple lane change was unsafe or dangerous, and therefore, a violation of section 545.060 of the Texas Transportation Code. Moreover, in our opinion we noted that “making a deliberate move across two lanes of freeway traffic is arguably a safer maneuver than weaving or drifting into adjacent lanes.” In other words, the situation before us was even clearer than that in Hernandez. Accordingly, we found the trial court erred in denying appellant’s motion to suppress. Given the similarity between the facts and the legal issues in the two cases, we believe it is extremely unlikely that the Court of Criminal Appeals would refuse to grant review in Hernandez, yet grant in this case and ultimately reverse our judgment. But beyond our reliance on the decision to refuse petition in Hernandez, is our belief that our decision in the underlying appeal is legally correct. The dissent’s contention that bail should be set at almost one million dollars ($1,000,-000.00) is puzzling because it seems to evince a lack of confidence in our original decision. We do not share this lack of confidence.

The State and the dissent also urge that a high bail is appropriate in this case because of the amount of drugs (60 kilograms) appellant was convicted of possessing. In other words, the State and the dissent place great emphasis on the nature of the offense. While we find this is a proper, if not overriding, consideration for setting a high bail in the pretrial and appeal bond contexts, as we stated before, we find it of much less importance when the conviction has been overturned and the State cannot retry the defendant. We agree that, prior to conviction and after conviction, “monied backers” may consider the cost of bail a normal business expense. See Maldonado, 999 S.W.2d at 96. This consideration, however, is of less concern when the defendant’s conviction has been reversed and the State admits it cannot retry him.

The dissent also contends that the length of sentence, thirty-five years, is a consideration to be given heavy weight in the bail determination. Again, we agree that this is a primary consideration in the setting of pretrial and appeal bonds; however, we find it of decreased importance when the conviction has been reversed and a retrial is precluded. Appellant is only facing a lengthy sentence in this case if our judgment is reversed (given that the State has admitted he will not be retried). We decline to give this factor undue weight under these circumstances. Additionally, article 44.04(h) states the defendant must be released on reasonable bail “regardless of the length of term of imprisonment.” Tex.Code Crim.ProCAnn. art. 44.04(h) (Vernon Pamph.2000). Based on this language, we find that once a conviction is reversed, the length of sentence is no longer a primary consideration in determining reasonable bail.

We must determine a reasonable amount of bail taking into account the rules of article 17.15, the Rubac factors, and the three primary factors we have announced today that are relevant to article 44.04(h). In support of his motion requesting bond in the amount of $10,-000.00, appellant’s counsel, at this court’s request, provided information concerning appellant’s work history, family and community ties, length of residence, prior criminal record, conformance with previous bond conditions, and existence of outstanding bonds.

Appellant moved to Houston with his family in 1974. Twelve years ago he moved to Florida where he met and married his wife. They moved to Houston and have lived here continuously since 1991. Appellant has strong family ties to Houston. Appellant and his wife have four children ages eleven, eight, six, and two. All of the children were born in Texas. The three oldest children attend school in Houston. Appellant’s parents, sisters, brother, and numerous nieces and nephews reside in Houston.

Appellant has worked at various local companies in Houston since 1991: V.H. Max Trucking (1996-1998); Bronco Tires (1994-1996); Raneo Mats and Matting (1991-1994). Upon release, appellant contends he will work for Lopez & Sons Tire Service, another Houston company. He also owns a dump truck and will return to using it as an independent contractor of demolition services for V.H. Max Trucking.

Appellant does have a prior criminal record. He is on 10 years probation for possession of marijuana in Kleberg County, Texas. Appellant has never violated a condition of bond and currently has no outstanding bonds.

Appellant has been incarcerated since August of 1998. His family will attempt to raise money for bail, but does not have the capacity to make bail of more than $10,-000.00.

Based on this information, the fact that appellant’s conviction has been reversed, the State’s admission that appellant will not be retried, and our confidence that this court’s judgment will not be overturned, we find bail in the amount of $10,000.00 to be reasonable.

Under the circumstances of this case, to require bail in the amount suggested by the State and the dissent would transform bail into an instrument of oppression in violation of article 17.15 of the Code of Criminal Procedure. See Tex.Code Crim. ProcAnn. art. 17.15(2) (Vernon Supp. 2000). Accordingly, we grant appellant’s motion and order bail set in the amount of $10,000.00. Any sureties on the bail must be approved by the trial court. See Tex. Code Crim.Proc.Ann. art. 44.04(h) (Vernon Pamph.2000).

FROST, J., dissenting.

1 . Although Rubac involved the setting of an appeal bond rather than pretrial bond, several courts have applied these factors in reviewing pretrial bond. See, e.g., Maldonado v. State, 999 S.W.2d 91, 93-94 (Tex.App.—Houston [14th Dist.] 1999, pet. ref'd); Ex parte Emery, 970 S.W.2d 144, 145 (Tex.App.—Waco 1998, no pet.); Smith v. State, 829 S.W.2d 885, 887 (Tex.App.—Houston [1st Dist.] 1992, pet. ref'd).