                                                                                               ACCEPTED
                                                                                          14-13-00101-CR
                                                                            FOURTEENTH COURT OF APPEALS
                                                                                        HOUSTON, TEXAS
                                                                                     1/12/2015 2:45:11 PM
                                                                                     CHRISTOPHER PRINE
                                                                                                   CLERK

                                 IN THE
                       FOURTEENTH COURT OF APPEALS
                                OF TEXAS                               FILED IN
                                                                14th COURT OF APPEALS
                                                                   HOUSTON, TEXAS
JORGE GUERRERO                            §                     1/12/2015 2:45:11 PM
                                          §                     14-13-00101-CR
                                                     CASE NO. CHRISTOPHER       A. PRINE
VS.                                       §          On Appeal from Harris
                                                                         ClerkCounty
                                          §          Cause 1354948, 338th District Court
THE STATE OF TEXAS                        §


           MOTION FOR BOND AFTER JUDGMENT VACATED


       Appellant Jorge Javier Guerrero moves the Court to set bond after dismissal,

pursuant to Tex. Code Crim. Proc. Ann. 44.04(h).

                                          I.

       Mr. Guerrero was convicted of aggravated robbery on February 12, 2013, and

sentenced to eight years in prison. He already has served three years of that sentence,

including his time in juvenile detention before he was certified to stand trial as an

adult, and his pretrial time in the Harris County Jail.. On December 23, 2014, in a

published opinion, this Court vacated the judgment, dismissed the case, and returned

the case to the juvenile court.

                                          II.

       The primary objective of an appeal bond is to secure appellant’s apprehension

if his conviction is subsequently affirmed. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex.

Crim. App. 1981). The power to require bail is not to be used as an instrument of

oppression. See TEX. CODE CRIM. PROC. ANN.       ART.   17.15. This Court’s sister court
has determined that the primary factors for considering the amount of bond to set

after reversal on appeal 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. Aviles v. State, 26 S.W.3d 696, 699 (Tex. App.

– Houston [14th Dist.] 2000, pet. ref’d). The court in Aviles also held that an appellate

court should consider the factors in Article 17.15 and the additional factors in Ex parte

Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. [Panel Op.] 1981).

       Article 17.15 lists five factors to consider when setting the amount of bail: 1) it

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 used to make it an instrument

of oppression; 3) the nature of the offense and the circumstances under which it was

committed; 4) the ability to make bail; and 6) the future safety of the victim and the

community. TEX. CODE CRIM. PROC. ANN. ART. 17.50.

       Other relevant data includes: 1) the defendant’s work record; 2) the defendant’s

family ties and length of residency; 3) the defendant’s length of residency: 4) his ability

to make the bond; 5) his prior criminal record; 6) the defendant’s conformity with

previous bond conditions; 7) the existence of any other outstanding bonds; and 8)

aggravating factors involved in the offense. Rubac, 661 S.W.2d at 849-850.

                                           III.

       Regarding the three key factors identified by the Aviles court, Mr. Guerrero’s

conviction has been vacated. His case has been ordered back to juvenile court, where
                                             2
the State certainly can seek again to have him certified to stand trial as an adult. It is

very unlikely that this Court’s decision will be reversed. This Court simply followed

the Court of Criminal Appeals’ recent opinion in the lead case of Cameron Moon v.

State, which vacated a similar waiver of juvenile court jurisdiction using the same

boilerplate order used by the juvenile court in Mr. Guerrero’s case. Mr. Guerrero

should be released on personal recognizance or a minimal bond.

                                            IV.

      Regarding the Article 17.50 factors:

      1)     Sufficiently high to give reasonable assurance that the undertaking will be
             complied with: Mr. Guerrero has no history of fleeing or failing to
             appear in court. A personal recognizance or nominal bond will be
             sufficient to ensure his compliance;

      2)     Not to be an instrument of oppression: Mr. Guerrero currently is
             indigent, so only a personal recognizance or a nominal bond will
             allow his release pending a petition for discretionary review, if the
             State chooses to file one;

      3)     Nature of the offense and the circumstances under which it was committed:
             Mr. Guerrero was charged as a party to the offense of aggravated
             robbery, though he was only the driver for the adult gang member
             who actually committed the robbery;

      4)     Ability to make bail: as already noted, Mr. Guerrero is indigent;

      5)     Future safety of the victim and the community: Mr. Guerrero has never
             posed a threat to the community – his prior juvenile record
             reflects only minor offenses; generally, status offenses. He poses
             no risk to the robbery victim, who apparently was selected at
             random, nor to the community generally.

      Regarding the remaining Rubac factors:


                                              3
      1)     Work record: Mr. Guerrero was a juvenile at the time of this
             offense. He previously had worked part-time with his father in the
             construction business. 2) Family ties: Mr. Guerrero was born and
             raised in Houston. His parents and siblings live here, so his family
             and community ties run deep;

       3)    Length of residency: he has lived in Houston his entire life;

      4)     Ability to make the bond: he is indigent and does not have financial
             resources to pay a high bond;

      5)     Prior criminal record: his record consists of minor juvenile offenses,
             trespassing, and possession of marijuana on school premises;

      6)     Conformity with previous bond conditions: he was unable to afford bond
             previously;

      7)     Other outstanding bonds: there are none; and

      8)     Aggravating factors in the offense: the offense for which he was
             indicted is an aggravated offense, but as a juvenile actor, he
             should not be certified to stand trial as an adult under the law of
             parties, as discussed in Issue Two of Appellant’s brief. The fact
             that the adult actor used a weapon should not be held against Mr.
             Guerrero in either the certification process or the decision on an
             appropriate bond.

      Mr. Guerrero is not a flight risk. He is young, mentally handicapped, and all of

his family live in the Houston area. Simply put, Mr. Guerrero has no place to flee and

no money with which to flee. He is unlikely to be able to obtain high-paying

employment to gain funds in order to flee, due in part to his lack of education and the

stigma of being under indictment. Because the judgment is vacated, he is entitled to a

personal recognizance bond or a minimal bond to secure his freedom.




                                             4
                                     PRAYER

      For these reasons, Mr. Guerrero prays that this Court grant this motion and set

a personal recognizance bond or a bond not to exceed $10,000 in this case.

                                              Respectfully submitted,

                                              ALEXANDER BUNIN
                                              Chief Public Defender
                                              Harris County Texas

                                              /s/ Cheri Duncan
                                              _____________________________
                                              CHERI DUNCAN
                                              Assistant Public Defender
                                              Harris County Texas
                                              SBN 06210500
                                              1201 Franklin, 13th Floor
                                              Houston Texas 77002
                                              (713) 368-0016
                                              (713) 368-9278 (Fax)

                                              Attorney for Appellant,
                                              JORGE GUERRERO



                           CERTIFICATE OF SERVICE

      I certify that a copy of Motion for Bond was electronically served to the Harris

County District Attorney’s Office.

                                       /s/Cheri Duncan
                                       ___________________________________
                                       CHERI DUNCAN




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