                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                   No. 07-13-00180-CR


                      ANTHONY G. HEREFORD, JR., APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                         On Appeal from the 140th District Court
                                  Lubbock County, Texas
            Trial Court No. 2007-416,291, Honorable Jim Bob Darnell, Presiding

                                    November 3, 2014

                       ORDER ON MOTION TO SET BAIL
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Appellant, Anthony G. Hereford, Jr., has filed a motion in which he requests that

this Court set reasonable bail pending final disposition of his appeal. We grant his

motion.

      Appellant appealed his conviction by jury of the offense of possession with intent

to deliver a controlled substance. As a result of this conviction and the finding that two

enhancements were true, appellant was sentenced to imprisonment for a period of

seventy-five years.
      After concluding that the trial court committed reversible error in allowing the

State to introduce impermissible hearsay statements in violation of the confrontation

clause, we rendered judgment reversing the conviction and remanding the cause to the

trial court. See Hereford v. State, No. 07-13-00180-CR, 2014 Tex. App. LEXIS 10073,

at *22 (Tex. App.—Amarillo September 8, 2014, no pet.)

      By his motion, appellant requests that this Court set bail at $50,000. The State

filed a response to appellant's motion requesting that this Court set appellant's bail at a

minimum of $50,000.

      We are authorized to set bail upon request by an appellant in the following

circumstances:

      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. If the defendant requests bail before a petition for
      discretionary review has been filed, the Court of Appeals shall determine
      the amount of bail. If the defendant requests bail after a petition for
      discretionary review has been filed, the Court of Criminal Appeals shall
      determine the amount of bail. The sureties on the bail must be approved
      by the court where the trial was had. The defendant's right to release
      under this subsection attaches immediately on the issuance of the Court
      of Appeals' final ruling as defined by Tex. Cr. App. R. 209(c).

TEX. CODE CRIM. PROC. ANN. art. 44.04(h) (West 2006).

      So, having reversed appellant's conviction and having been requested to set bail

at a time prior to the filing of a petition for discretionary review, we have authority to

consider appellant's motion. While article 44.04(h) directs that the defendant be

released on reasonable bail, it does not specify the factors we are to consider when

determining the appropriate sum. Certain general rules govern the amount of bail to be

required, which are as follows:

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       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, and proof may be taken
          upon this point.

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

Id. art. 17.15 (West 2005).

       To set a bail that is sufficiently high to give reasonable assurance that appellant

will comply with the requirements that will arise in this proceeding, while avoiding setting

bail so high that it might be oppressive, we must consider appellant's financial

resources. See id. In his motion, appellant represents that he is currently incarcerated,

is indigent but has help from family members to obtain money for bail and will be able to

obtain employment once he is released. However, appellant admits that he did receive

a settlement with the city regarding a prior lawsuit. He does not state the amount of that

settlement and represents that it has already been spent.

       Because the State has elected to not file a petition for discretionary review with

the Texas Court of Criminal Appeals, our mandate will issue on November 24, 2014.

Appellant's pretrial bail was originally set at $25,000 but later was increased to $50,000

due to violations of the conditions on his bond. We believe that $50,000 is a reasonable

bail amount. Considering the factors on which we have been provided information and

endeavoring to strike a balance between ensuring appellant's presence and avoiding

oppressive bail, we GRANT appellant's motion for reasonable bail pending final

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determination of appeal and order that appellant be released from incarceration upon

his posting bail of $50,000. See TEX. CODE CRIM. PROC. ANN. art. 44.04(h).

      It is so ordered.



                                                            Per Curiam


Do not publish.




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