Motion Granted; Order and Dissenting Opinions 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

                                     ORDER

      On August 31, 2018, this court rendered its judgment reversing the trial
court’s judgment and remanding to the trial court for further proceedings.

      On August 31, 2018, appellant, Nathan Foreman, filed a motion requesting
this court to set reasonable bail. See Tex. Code Crim. Proc. Ann. art. 44.04(h). 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[.]
Tex. Code Crim. Proc. Ann. art. 44.04(h) (West 2018). 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.

      Though article 44.04(h) directs that the defendant be released on reasonable
bail under these circumstances, it does not specify the factors we are to consider
when determining the appropriate sum. However, certain general rules govern the
amount of bail to be required:

      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.

Tex. Code Crim. Proc. Ann. art. 17.15 (West 2015).

      Appellant asks this court to set his bail at $50,000 per offense. Appellant notes

                                          2
that his original bail was set at $30,000 in 2013. The State filed motions to revoke
appellant’s bonds, which were granted on July 7, 2015. The trial court granted
appellant’s request for bail pending trial at $50,000. In support of his motion after
remand appellant claims he has “attended every court proceeding through trial in
these causes.”

      The State responded, asking this court to delay setting bail until after the time
for motion for rehearing passed, which was September 17, 2018. The State has not
file a motion for rehearing.

      The primary purpose of setting bail, both pretrial and post-appeal, “is to secure
the presence of the accused.” Aviles v. State, 26 S.W.3d 696, 698 (Tex. App.—
Houston [14th Dist.] 2000, order). In setting bail following reversal and remand in
the court of appeals, “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.” Id. at 699.

      With these considerations in mind, we turn to appellant’s motion. Other than
noting that appellant appeared at every court proceeding through trial, appellant’s
motion does not specifically address the factors set forth in article 17.15. Turning to
the more specific factors to be considered after reversal and remand, appellant’s
conviction was reversed by this court, and evidence of the video surveillance was
excluded as a result of our opinion. The State’s ability to retry appellant may be
limited after exclusion of the video surveillance evidence. Regarding the prospect of
reversal of our decision, we, like our sister court of appeals, are reluctant to predict
the future actions of the Court of Criminal Appeals should discretionary review be
sought, but we are confident that our analysis was thorough and properly applied the
correct standard of review, and that our disposition of the case is correct under the

                                            3
law. See Werner v. State, 445 S.W.3d 301, 305 (Tex. App.—Houston [1st Dist.]
2013, order) (expressing same hesitation but indicating that “we have found no
reason to conclude that the reasoning in our opinion is infirm”).

      Given these considerations, appellant’s position now is much like his position
was before trial. Accordingly, the trial court’s decision on bail can guide us in
considering the Aviles factors. See Werner, 445 S.W.3d at 306 (considering the
amount of bail set before trial in setting bail pursuant to article 44.04(h)).

      Before trial for aggravated kidnapping and aggravated robbery, appellant was
released on $30,000 bail for each offense. While out on bail, appellant was arrested
for a misdemeanor–unlawful carrying of a weapon, namely a firearm. The State filed
a motion to revoke appellant’s bail, which was granted. Appellant subsequently filed
a motion for bail in which he requested bail in the amount of $30,000. The trial court
set appellant’s bail at $50,000.

      The trial court, which had the ability to convene a hearing on the factors listed
in article 17.15 of the Code of Criminal Procedure, determined that $50,000 was an
appropriate amount of bail to secure appellant’s appearance pretrial. Considering the
relevant 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 and set bail pending final determination of appeal at
$50,000 per offense. See Tex. Code Crim. Proc. art. 44.04(h). Any conditions on bail
must be set by the trial court, and any sureties on bail must be approved by the trial
court. See id. arts. 17.40–.49 (allowing magistrate to set conditions on bail), 44.04(h)
(requiring trial court to approve sureties); Leonard v. State, 376 S.W.3d 886, 890
(Tex. App.–Fort Worth 2012, pet. ref’d) (holding trial court has authority to set
reasonable conditions for bail set under section 44.04(h)).


                                           4
                                 PER CURIAM
En Banc Court consists of Chief Justice Frost and Justices Boyce, Christopher,
Jamison, Busby, Donovan, Brown, Wise, and Jewell.

Publish — Tex. R. App. P. 47.2(b).




                                      5
