Motion to Set Reasonable Bail Granted and Order filed June 25, 2012.




                                        In The

                      Fourteenth Court of Appeals

                                 NO. 14-10-01222-CR
                                 NO. 14-11-00006-CR
                                 NO. 14-11-00007-CR


                           BILLY JOE WYATT, Appellant

                                           V.

                         THE STATE OF TEXAS, Appellee


                       On Appeal from the 12th District Court
                              Grimes County, Texas
                           Trial Court Cause No. 16,602


                                      ORDER

      Appellant Billy Joe Wyatt was convicted of three counts of aggravated robbery.
The trial court sentenced appellant to twenty-two years’ confinement for each count and
ordered the sentences to run concurrently. Appellant urged on appeal that the evidence
was insufficient to support his conviction based on a theory of party liability, in part,
because the record contains no evidence showing that appellant knew or should have
known a firearm would be used. On March 6, 2012, this panel unanimously agreed, and
we reversed appellant’s conviction on all three counts and rendered a judgment of
acquittal.

       Appellant subsequently filed a motion for reasonable bail pursuant to article
44.04(h) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN.
art. 44.04(h) (West 2006). Article 44.04(h) 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. If
       the defendant requests bail before a petition for discretionary review has
       been filed, the Court of Appeals shall determine the amount of bail.

TEX. CODE CRIM. PROC. ANN. art. 44.04(h).

       When a motion for reasonable bail is filed pursuant to article 44.04(h), the statute
itself provides no specific guidance as to the criteria or factors appellate courts should
consider in ruling on the motion. However, this court has found that it is logical to
consider the same criteria and factors used by courts in determining the amounts of
(1) pretrial bail under Texas Code of Criminal Procedure article 17.15, and (2) post-
conviction appeal bonds under Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim.
App. [Panel Op.] 1981). See, e.g., Aviles v. State, 26 S.W.3d 696, 698–99 (Tex. App.—
Houston [14th Dist.] 2000, order).

       In the context of determining the amount, if any, of pretrial bail, trial courts are
guided by the Texas Constitution and by the criteria listed in article 17.15 of the Texas
Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 17.15 (West 2005).
Specifically, trial courts must consider:

       1. whether bail is sufficiently high to give reasonable assurance that the
          defendant will appear;
       2. whether bail is being used as an instrument of oppression;
       3. the nature of the offense and the circumstances under which it was
          committed;
       4. the defendant’s ability to make bail; and
       5. the future safety of any victim and the community at large.
See id.     Under Ex parte Rubac, courts determine the reasonable amount of post-
conviction bail on appeal by additionally considering:

        1. the defendant’s work record, family and community ties, and length of
           residency;
        2. the defendant’s prior criminal record;
        3. the defendant’s conformity with previous bond conditions;
        4. the existence of other outstanding bonds, if any;
        5. aggravating circumstances alleged to have been involved in the charged
           offense; and
        6. the length of the defendant’s sentence.1

Ex parte Rubac, 611 S.W.2d at 849–50. In evaluating these factors, we must bear in
mind that the primary purpose of bail, whether pretrial or posttrial, is to secure the
presence of the accused. Aviles, 26 S.W.3d at 698.

        In his motion to set a reasonable bond pursuant to article 44.04(h), appellant
declined to provide any sworn facts, argument, or discussion in his motion regarding the
factors under article 17.15 or Rubac. We assume based on the record on direct appeal
that appellant’s personal circumstances as they relate to the relevant criteria have changed
little, if at all, since the trial court assessed appellant’s pretrial bail. Neither party argues
that any of the relevant factors weigh in favor of increasing or reducing the amount of
bail originally assessed by the trial court: $40,000 for each count of aggravated robbery,
or a total of $120,000.

        In addition to these factors, we also must consider (1) the fact that the appellant’s
conviction has been reversed and the possibility, if any, that the State may retry the
appellant under the conditions set by the court in its opinion reversing the conviction; and

        1
          We note that with respect to the nature of the offense and the length of sentence, this court has
cautioned that we should not give these two factors great weight when the request for reasonable bail is
made pursuant to 44.04(h) after a conviction is reversed. Aviles, 26 S.W.3d at 699. However, because
the reversal in this case depended on a conclusion that no reasonable jury could find appellant guilty as a
party to the aggravating element of aggravated robbery, and did not involve a review of the jury’s
conclusion that appellant committed each underlying element necessary to find appellant guilty of
robbery, we do not completely disregard these considerations.
(2) the likelihood that the decision reversing appellant’s conviction will be overturned.
Aviles, 26 S.W.3d at 699. These two factors weigh in appellant’s favor.

       First, in reversing appellant’s conviction, we rendered judgment of acquittal in this
case rather than remanding the case to the trial court, which forecloses the State from
retrying appellant in this cause. Additionally, we find it unlikely that our judgment
reversing appellant’s conviction will be overturned. The Court of Criminal Appeals has
refused to grant discretionary review in similar cases where courts of appeals have
reversed and rendered a judgment of acquittal in aggravated robbery cases on nearly-
identical grounds: insufficient evidence showing the appellant, as an alleged party to an
aggravated robbery, was aware that a firearm would be, was being, or had been used or
exhibited during the offense, as was necessary to establish party liability for the
aggravating element.    See, e.g., Rodriguez v. State, 129 S.W.3d 551 (Tex. App.—
Houston [1st Dist.] 2003, pet. ref’d); Wooden v. State, 101 S.W.3d 542, 547–48 (Tex.
App.—Fort Worth 2003, pet. ref’d); Anderson v. State, No. 14-00-00810-CR, 2001 WL
1426676 (Tex. App.—Houston [14th Dist.] Nov. 15, 2001, pet. ref’d) (not designated for
publication).

       Based on all the relevant considerations, we conclude that bail in the total amount
of $50,000 is reasonable. We grant appellant’s motion and order bail set in the amount of
$50,000. Any sureties on the bond must be approved by the trial court. See TEX. CODE
CRIM. PROC. ANN. art. 44.04(h).

       IT IS SO ORDERED.

                                          PER CURIAM



Order filed June 25, 2012.
Panel consists of Chief Justice Hedges and Justices Jamison and McCally.
