Motion Granted; Order and Dissenting Opinion filed October 18, 2018.




                                        In The

                     Fourteenth Court of Appeals
                                     ____________

                               NO. 14-15-01005-CR
                               NO. 14-15-01006-CR
                                     ____________

                     NATHAN RAY FOREMAN, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

                     On Appeal from the 177th District Court
                              Harris County, Texas
                    Trial Court Cause Nos. 1374837 & 1374838


          DISSENT TO EN BANC ORDER SETTING BAIL


      I join Chief Justice Frost’s dissent to the order setting bail. I write separately
also to express my disagreement with the majority’s order setting bail at $50,000
bail per offense.
      Although appellant is entitled to bail under the statute, his motion contains no
details as to why $50,000 is a “reasonable” amount. See Montalvo v. State, 786
S.W.2d 710, 711 (Tex. Crim. App. 1989) (setting forth the factors for bail and then
noting the applicant thoroughly detailed how he satisfied them). The majority’s order
cites this court’s decision in Aviles and then discusses three primary factors. Aviles
v. State, 26 S.W.3d 696, 698–99 (Tex. App.—Houston [14th Dist.] 2000, order).
Other factors Aviles held should be considered are set forth in the order but they are
not applied and appellant’s motion wholly failed to address them. See Tex. Code
Crim. Proc. arts. 17.15, 44.04(h); Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex.
Crim. App. [Panel op.] 1981). Appellant’s motion merely references the trial court’s
order setting bail pre-trial in July 2015 at $50,000 for each offense. In Aviles, at the
behest of this court, appellant supported his motion with evidence pertaining to those
other factors and this court considered that evidence in determining the amount of
bail. See Aviles, 26 S.W.3d at 701. Thus, the majority’s order is lacking even under
Aviles.

      Furthermore, the majority sets post-trial bail at the same amount as pre-trial
after concluding that “appellant’s position now is much like his position was before
trial.” I disagree. At trial, both complainants identified appellant in court as the
person “in charge” of their torture and kidnapping. While the complainants, who
were hog-tied, were being transported they managed to escape and were shot at in
the process. The complainants’ testimony as to the latter was corroborated by
unimpeached eyewitness testimony. A vehicle was torched to destroy evidence.
None of this evidence is affected by the exclusion of the video.

      The majority concludes that the “ability to retry appellant may be limited after
exclusion of the video surveillance evidence.” Given the other evidence at trial,
which is inexplicably discounted by the majority, I disagree. The video was used as

                                           2
evidence of appellant’s participation. Assuming the complainants are still available
to testify, the lack of the video will not necessarily be dispositive.1

       Considering that the purpose of bail is to secure appellant’s presence for trial,
the nature of the offenses and the circumstances under which it was committed, the
future safety of the complainants, no evidence as to what amount of bail is
reasonable, and the fact that appellant committed an offense while on bail before
trial, I respectfully dissent to the amount of bail as set by the majority. See Tex. Code
Crim. Proc. Ann. art. 17.15.




                                     /s/     John Donovan
                                             Justice


En Banc Court consists of Chief Justice Frost and Justices Boyce, Christopher,
Jamison, Busby, Donovan, Brown, Wise, and Jewell. (Brown, J. majority) (Frost,
C.J., dissenting).
Publish — Tex. R. App. P. 47.2(b).




       1
          Appellant’s motion for bond and request for a ruling on that motion both refer to the
complainants in this case as “admitted con artists” and suggests for that reason their evidence is
insignificant. This court is routinely presented with evidence from witnesses engaged in criminal
activities and we have consistently, and rightly, held that it is for the jury to determine their
credibility.

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