Order issued January 22, 2015




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas


                             NO. 01-12-00688-CR


                       RAUL RODRIGUEZ, Appellant

                                      V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 178th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1348372


                    ORDER ON MOTION TO SET BAIL

      On December 18, 2014, we issued an opinion reversing Appellant Raul

Rodriguez’s conviction and remanding for a new trial. Rodriguez v. State, 01-12-

00688-CR, 2014 WL 7205226 (Tex. App.—Houston [1st Dist.] Dec. 18, 2014, no
pet. h.). Rodriguez has filed a motion to set bail. See TEX. CODE CRIM. PROC.

ANN. art. 44.04(h) (West 2006). The State has filed a response in opposition.

      Article 44.04(h) of the Texas Code of Criminal Procedure provides:

      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 as defined by
      Tex.Cr.App.R. 209(c).

TEX. CODE CRIM. PROC. ANN. art. 44.04(h).          Thus, we must determine what

amount of bail is reasonable. Rodriguez requests that bail be set at no more than

$10,000, arguing that his material circumstances have changed for the worse since

the trial court set his pre-trial bail at $50,000. In response, the State argues that

bail should be set at $100,000, or the case should be remanded to the trial court for

a hearing regarding the appropriate bail.

      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). There are a number of factors we

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consider in making this determination.        Article 17.15 of the Texas Code of

Criminal Procedure requires courts to consider the following in making their

determinations to set bail:

       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 2005). The Court of Criminal

Appeals has provided additional factors to consider that other courts have applied

to setting bail:

       (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, if any; and (7) aggravating circumstances alleged to have been
       involved in the charged offense.

Aviles, 26 S.W.3d at 698 (citing Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex.

Crim. App. [Panel Op.] 1981)).

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      Typically, courts give greater weight to two considerations in setting bail:

the nature of the offense and the length of the sentence. Id. at 698–99. The

Fourteenth Court of Appeals has held, however, that for 44.04(h) situations, “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.

      The State has requested an extension of time to file a petition for

discretionary review, extending its deadline to February 16, 2015. As we have

previously noted, we cannot predict with certainty the Court of Criminal Appeals’s

future disposition. See, e.g., Werner v. State, 445 S.W.3d 301, 305 (Tex. App.—

Houston [1st Dist.] 2014, order). However, we have found no reason to conclude

that the reasoning in our opinion is infirm.

      For the State’s ability to retry the appellant, the State has indicated that it

intends to do so and we fully expect that it will. No evidence has been excluded as

a result of our opinion, and Rodriguez has not served more time than could be

obtained upon conviction. The difference between the last trial and any retrial is

that the trial court’s charge must properly charge the jury. See Rodriguez, 2014

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WL 7205226, at *15.

      With respect to our overturning Rodriguez’s conviction as it applies to

setting bail, we did not consider whether the evidence supporting the conviction

was insufficient. Thus, with respect to evidentiary issues, nothing in our opinion

suggests that the State’s likelihood of conviction on retrial would be materially

diminished. Cf. Werner, 445 S.W.3d at 305–06 (no particular significance in

overturning conviction where opinion found evidence sufficient, suggesting that

State’s likelihood of conviction on retrial was not materially diminished).

      Thus, in some ways, with respect to the Aviles considerations, Rodriguez’s

position now is much like his position before trial, and to the extent that this is so,

the $50,000 pre-trial bail can guide us in considering the remaining factors. See

Werner, 445 S.W.3d at 306.

      We do note some changes in Rodriguez’s condition since trial, however.

Some of these changes could support a reduction from the pre-trial bail amount of

$50,000. Since trial, Rodriguez’s wife has divorced him and he no longer receives

support from her, he has not received disability since his divorce, and the $550 per

month that he would have received from his retirement was awarded to his wife in

the divorce. He contends that he has no personal or real property that could come

close to collateralizing or paying a bondsman for a $50,000 bond.                Thus,

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Rodriguez argues that setting his bail at $50,000 “would be unreasonable and

oppressive because it displaces the presumption of innocence with a guaranteed

trial appearance assured by incarceration without trial.” He argues that “at most”

he can post a $10,000 bond.

      Rodriguez further contends that he is not a flight risk, as demonstrated by

the fact that he had no violations when he was on pre-trial bond, and will again

follow all conditions imposed. He argues that no aggravating circumstances, other

than “what would be expected in the charged offense,” are present. He further

argues that he poses no threat to the complainant, because the complainant has

died, nor to the community, as evidenced by the fact that he was “out on pre-trial

bond, without incident, for two-and-a-half years.” Rodriguez notes that he was

born and raised in Texas, has no prior criminal history, and that his mother,

siblings, and adult children from a prior marriage all reside in Texas.

      Other changes in Rodriguez’s condition since trial, however, do not support

a reduction from the pre-trial bail amount of $50,000. Chief among these is the

fact that Rodriguez has already been convicted once, and as noted above with

respect to retrial and the significance of our opinion overturning his conviction,

nothing in our opinion suggests that the evidence admitted in the first trial was

insufficient to support the conviction. The State further argues that before the last

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trial, Rodriguez lived with his wife, but now that he is divorced, there is no

indication where Rodriguez intends to live while released on bail. The State also

argues that the seriousness of the offense—murder—and the length of the sentence

imposed in the first trial give Rodriguez “a greater incentive to flee and thus weigh

in favor of a higher bail.” The State also argues that an analysis of the first trial

suggests that a second conviction is a “near certainty.” The State thus argues that

“all of the post-trial factors weigh in favor of a higher bail.”

       Our review indicates that some of the post-trial factors weigh strongly in

favor of a higher bail, and some of the post-trial factors weigh strongly in favor of

a lower bail. We note also that the presumptive bail amount for murder according

to the Harris County District Court’s Bail Schedule is $50,000. See District Court

Bail   Schedule,    available     at   http://www.justex.net/BailBondSchedule.aspx.

Accordingly, considering all of the factors relevant to setting the amount of bail,

we hold that a total bail of $50,000 is reasonable under the circumstances.

       We set Rodriguez’s bail under trial court cause number 1348372 at $50,000.

Any conditions of bail must be set by the trial court, and any sureties on bail must

be approved by the trial court. See TEX. CODE CRIM. PROC. ANN. art. 17.40–.49

(West 2005 & Supp. 2014) (allowing magistrate to set conditions on bail), 44.04(h)

(requiring trial court to approve sureties); see also Werner, 445 S.W.3d at 306

                                            7
(setting bail under article 44.04(h) and directing that any conditions of bail must be

set by trial court and any sureties approved by trial court).

      Harris County District Clerk, Chris Daniel, is directed to file a copy of this

order in trial court cause number 1348372 in the 178th District Court, Harris

County.

      It is so ORDERED.




                                               Rebeca Huddle
                                               Justice

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.




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