                                                                                 ACCEPTED
                                                                            01-12-00688-CR
                                                                  FIRST COURT OF APPEALS
                                                                          HOUSTON, TEXAS
                                                                       1/13/2015 2:11:07 PM
                                                                       CHRISTOPHER PRINE
         No. 01-12-00688-CR                                                          CLERK



                   In the
            Court of Appeals                            FILED IN
                  For the                        1st COURT OF APPEALS
         First District of Texas                     HOUSTON, TEXAS
                At Houston                       1/13/2015 2:11:07 PM
                                                 CHRISTOPHER A. PRINE
                                              Clerk

              No. 1348372
         In the 178th District Court
          Of Harris County, Texas
         
            Raul Rodriguez
                 Appellant
                    v.
          The State of Texas
                  Appellee
         
   State’s Reply in Opposition to
Appellant’s Request for $10,000 Bond
         

                                       DEVON ANDERSON
                                       District Attorney
                                       Harris County, Texas

                                       KELLI JOHNSON
                                       DONNA LOGAN
                                       Assistant District Attorney
                                       Harris County, Texas

                                       CLINTON A. MORGAN
                                       Assistant District Attorney
                                       Harris County, Texas
                                       State Bar No. 24071454
                                       morgan_clinton@dao.hctx.net

                                       1201 Franklin, Suite 600
                                       Houston, Texas 77002
                                       Tel: (713) 755-5826
                                       FAX: (713) 755-5809

                                       Counsel for the Appellee
To the Honorable Court of Appeals:


                                  Introduction

      A jury found the appellant guilty of murder. (CR 2376, 2393). This Court

overturned that conviction because it found that the appellant was harmed by

an erroneous jury instruction regarding the law of self-defense. Rodriguez v.

State, ___ S.W.3d ___, 2014 WL 7205226 (Tex. App.—Houston [1st Dist.], no pet.

h.). The State has filed a motion for extension of time to file a petition for

discretionary review with the Court of Criminal Appeals, but has not yet filed

the petition.

      The appellant has requested that this Court, pursuant to Code of

Criminal Procedure Article 44.04(h) set his bail at $10,000. The State agrees

that the appellant is entitled to bail, but requests that this Court either set the

amount at $100,000, or briefly abate this case to the trial court to have a

hearing regarding the appropriate bail.


    The law requires this Court to set bail, but appellate courts are ill-
                   equipped to handle such matters.


      Code of Criminal Procedure Article 44.04(h) entitles a defendant to

release on “reasonable bail” if his conviction has been reversed by a court of

appeals but the State seeks discretionary review from the Court of Criminal

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Appeals. TEX. CODE CRIM. APP. art. 44.04(h). Prior to the filing of the petition, it

is the court of appeals’s responsibility to set the amount of bail. Ibid.

      Courts of appeals have struggled with determining what factors to

consider when setting bail, and with good reason: Bail determinations are

fact-intensive inquiries and appellate courts are not equipped to make such

determinations. Often, appellate courts give deference to the amount of bail

set by the trial court prior to conviction, but by the time a conviction has been

reversed by an appellate court it will have been years since the trial court

made its pre-trial bail determination, and much will have changed in the

intervening time.

      This Court has looked at numerous factors when determining what bail

to assess after a reversal: (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; (7)

aggravating circumstances alleged to have been involved in the charged

offense; (8) the nature of the offense; (9) the length of the sentence; (10) the

fact that the conviction has been overturned; (11) the State’s ability, if any, to

retry the defendant; and (12) the likelihood that the decision of the court of

appeals will be overturned. Werner v. State, 445 S.W.3d 301, 305 (Tex. App.—
                                         2
Houston [1st Dist.] 2013, orig. proceeding) (citing Aviles v. State, 26 S.W.3d

696 (Tex. App.—Houston [14th Dist.] 2000, orig. proceeding)).

       The first seven of those factors are essentially what the trial court used

to set pre-trial bail at $50,000. But that determination was made several years

ago. The appellant has alleged that some things have changed since then

because his wife divorced him and took all his money, but surely there have

been more changes in the appellant’s status than that. After two-and-a-half

years in prison, the appellant’s community ties, his work history, and his

length of residency would all be significantly different now. Now that the

appellant is divorced, this Court has little indication of where or with whom

the appellant would live.1 It would seem that regarding the first seven factors,

this Court would need to either rely on the trial court’s determinations from

when it set bond in 2010, or else abate the case for a new hearing.

       The last five factors are the only ones on which this Court actually has

enough facts to make an informed determination. The offense was murder, and

the sentence was forty years’ confinement. The seriousness of the offense and




1 The appellant’s affidavit states that his mother, siblings, and adult children live in Texas,
but it does not state where in Texas. Nor does it state whether any of those family members
are willing or able to provide a suitable home for the appellant if he were released. The
appellant’s claims to virtual indigence indicate that he would not be able to provide a home
for himself.
                                              3
the length of the sentence give the appellant a greater incentive to flee and

thus weigh in favor of a higher bail.

      The fact that the case was reversed, while true, is of “no particular

significance” here because this Court’s opinion did not find the evidence

insufficient, nor did the opinion hold that any evidence should be excluded.

See Werner, 445 S.W.3d at 305-06.

      Nothing in the record shows that the State will not be able to try the

appellant again. If it does so, moreover, based on the evidence in the record

conviction is a near certainty. On appeal, both parties agreed that the jury

charge in this case incorrectly stated the law of self-defense, but the State

argued that this was harmless error because, based on the evidence at trial,

the appellant’s use of force was not self-defense as a matter of law and self-

defense should not have been admitted to the jury at all. This Court did not

dispute the State’s observation. If this case were tried again on the exact same facts

and with a correct jury charge (which would not include a self-defense instruction),

there could be little doubt of the outcome.

      The last factor regards the likelihood that this Court’s decision will be

reversed. The State believes that this factor is inappropriate and, instead, this Court

should look at the likelihood that the Court of Criminal Appeals will grant review.

Obviously this Court would not purposefully issue an opinion that it believed

                                          4
would be reversed. Moreover, the State does not wish to use the appellant’s bond

request as an opportunity to needle this Court about its opinion. This Court ought

not be assessing the likelihood of reversal, as neither it nor the parties are fair

arbiters of that question, and this is not an appropriate setting for arguing such a

matter.

      However, this Court is certainly qualified to look at its opinion and make an

objective determination of the likelihood of review being granted. The opinion in

this case was a 39-page published opinion reversing a murder conviction. Some of

the issues involved (namely self-defense law and concealed handgun laws) are

high-profile issues that attract a lot of attention. The Court’s ultimate holding in

this case was that the State could be estopped from making, and an appellate court

could refuse to consider, a harm argument that was inconsistent with the State’s

actions at trial; the State believes that, regardless of its correctness, this is a novel

holding with wide-ranging implications that the Court of Criminal Appeals will be

interested in reviewing. In the event that review is granted, this appeal will drag on

for at least another year without resolution.

      In Werner, this Court set post-reversal bail at the same amount as the trial

court had set pre-trial bail. Werner, 445 S.W.3d at 306. It did so because it

determined that the post-trial factors did not significantly alter the appellant’s

position. Ibid.

                                           5
      In this case, the appellant’s pre-trial bail was set at $50,000, but all of the

post-trial factors weigh in favor of a higher bail. If this Court wishes to rely on the

trial court’s pre-trial determination of bail as a baseline for what bail should be

now — which seems to be the standard practice, even if it is questionable that

those old findings have much relevance to the present situation— the State would

ask that this Court double the appellant’s pre-trial bail and set bond at $100,000.

      In the alternative, the State requests that this Court briefly remand the case

to the trial court for fact-findings and non-binding recommendations so that this

Court can make an informed decision based on current facts.




                                          6
                                  Conclusion

      The State requests that this Court set the appellant’s bail at $100,000. In

the alternative, this Court should remand the case to the trial court in order

for the parties to hold a hearing and establish facts from which this Court

could set a reasonable bail.

                                                 DEVON ANDERSON
                                                 District Attorney
                                                 Harris County, Texas


                                                 /s/ C.A. Morgan
                                                 CLINTON A. MORGAN
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin, Suite 600
                                                 Houston, Texas 77002-1923
                                                 (713) 755-5826
                                                 Texas Bar No. 24071454




                                       7
                              Certificate Service

      I certify that I have requested that efile.txcourts.gov electronically serve

a copy of this brief to:

      Neal Davis
      NDavis@SDRFirm.com




                                                  /s/ C.A. Morgan
                                                  CLINTON A. MORGAN
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin, Suite 600
                                                  Houston, Texas 77002-1923
                                                  (713) 755-5826
                                                  Texas Bar No. 24071454


Date: January 13, 2015




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