Motion Granted in Part; Order filed February 5, 2015




                                      In The

                     Fourteenth Court of Appeals
                                   ____________

                              NO. 14-13-00101-CR
                                   ____________

                        JORGE GUERRERO, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 338th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1354948

                                     ORDER

      On December 23, 2014, this Court rendered its judgment vacating the trial
court’s judgment and remanding to the juvenile court for further proceedings.

      On January 12, 2015, appellant, Jorge Guerrero, filed a motion requesting
this Court to set reasonable bail. See Tex. Code Crim. Proc. Ann. art. 44.04(h). On
January 26, 2015, the State filed a response to appellant’s motion.
        Appellant asks this Court to set his bond at $10,000. In support of his motion
appellant claims he (1) has no history of fleeing or failing to appear in court; (2) is
indigent; (3) was charged as a party to the offense of aggravated robbery though he
was only the driver for the adult gang member who committed the robbery; and (4)
did not pose a threat to the community because his victim was apparently selected
at random. Appellant also points out that he has significant family ties, has lived in
Houston his entire life, and his record consists of minor juvenile offenses.

        In its response the State asks this Court to set appellant’s bond at $60,000,
which is the amount set by the trial court. The State points out that the trial court
initially set appellant’s pretrial bond at $30,000, but that bond was revoked and a
higher bond of $60,000 was set.

        The State did not file a motion for rehearing or petition for discretionary
review. Accordingly, this court is charged with determining the amount of bail. See
Tex. Code Crim. Proc. Ann. art. 44.04(h).

        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.

        In determining the proper amount of bail after reversal of a conviction, this
Court has held that the factors listed in article 17.15 of the Code of Criminal
Procedure, and those listed in Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex.
Crim. App. 1981), should be considered. Aviles v. State, 26 S.W.3d 696, 699 (Tex.
App.—Houston [14th Dist.] 2000, pet ref’d). This Court also held that the primary
factors that should be considered 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.

      Considering the factors set out in Aviles, we note that although we vacated
the trial court’s judgment, our opinion was not based on the sufficiency of the
evidence to support appellant’s conviction, or any error that occurred in his trial.
Because the State did not file a motion for rehearing or petition for discretionary
review, it is unlikely our decision will be overturned. The State has the ability to
retry appellant.

      Accordingly, we grant appellant’s motion for bond, and ORDER the
appellant, Jorge Guerrero, released on bail upon his giving good and sufficient
bond, signed by appellant as principal and with sureties as required by law, in the
sum of $60,000.00, pending final disposition on remand.



                                   PER CURIAM


Panel consists of Justices Boyce, Busby, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).
