Order issued April 23, 2020




                                    In The

                              Court of Appeals
                                   For The

                        First District of Texas
                         ————————————
                              NO. 01-18-00882-CR
                         ———————————
                        EDGAR MUNOZ, Appellant
                                      V.
                    THE STATE OF TEXAS, Appellee



                  On Appeal from the 176th District Court
                          Harris County, Texas
                      Trial Court Case No. 1556775



                 ORDER ON MOTION TO SET BAIL
              FOLLOWING REVERSAL OF CONVICTION
      Appellant, Edgar Munoz, has filed a motion to set bail following this Court’s

reversal of his conviction and remand for a new trial.1 See TEX. CODE CRIM. PROC.

art. 44.04(h).

      Texas Code of Criminal Procedure article 44.04(h) provides that, following

the reversal of a conviction, 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.” See id. The State has filed a response stating that it acknowledges that

appellant is entitled to reasonable bail.

      In his motion, appellant notes that the trial court originally set his pre-trial bail

at $300,000 and then reduced it to $175,000. He requests that “this Court set his

bond at $50,000 but no higher than $175,000.”           The State contends that, “at a

minimum, appellant’s bail should be set at $175,000.”

      With respect to determining the appropriate sum,2 the primary purpose, both

pretrial and post-appeal, “is to secure the presence of the accused.” Werner v. State,

445 S.W.3d 301, 305 (Tex. App.—Houston [1st Dist.] 2013, order). We consider

the following factors:


1
      Munoz v. State, No. 01-18-00882-CR, 2020 WL 1584480 (Tex. App.—Houston [1st
      Dist.] Apr. 2, 2020, no pet. h.) (mem. op.).
2
      Because appellant filed his motion prior to the filing of a petition for review, this
      Court is charged with determining the amount of bail. See TEX. CODE CRIM. PROC.
      art. 44.04(h).
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      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. art. 17.15.

      We further consider: (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 any other outstanding bonds; and (7) any aggravating

factors involved in the charged offense. Werner, 445 S.W.3d at 305; see also Ex

parte Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim. App. [Panel Op.] 1981).

      Here, the record shows that appellant was apprehended while in possession of

5,349 pounds of marijuana, with a street value of approximately $3,000,000. He

was indicted for the first-degree-felony offense of possession of marijuana in an

amount in excess of 2000 pounds. The record shows that appellant admitted to law

enforcement authorities that he was receiving payment in exchange for storing large

amounts of narcotics being shipped into the United States from Mexico. The State

argues that, based on his ties in facilitating the international transport of large

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amounts of narcotics, and because he is not a citizen of the United States, appellant

presents an elevated flight risk. The State notes that its case against appellant is

“incredibly strong” and that his conviction was reversed, not for lack of evidence of

his guilt, but based on ineffective assistance of counsel related to immigration

consequences. Thus, it asserts, when appellant is retried, there is a high likelihood

that he will be convicted, and he faces up to 99 years in prison. Appellant, in his

motion for bail, does not address this flight-risk concern. We otherwise note that

appellant has just one year of work history in the record. However, the record shows

that he has family ties in Harris County.

      The trial court initially set appellant’s pre-trial bail at $300,000. After a

hearing, the trial court lowered appellant’s bail to $175,000, and he was able to post

a bond at this amount. The trial court, which had the ability to convene a hearing on

the article 17.15 factors, determined that $175,000 was an appropriate amount to

secure appellant’s appearance. See Werner, 445 S.W.3d at 306 (considering amount

of bail set before trial in setting bail under article 44.04(h)). Nothing in the record

suggests that appellant did not comply with any conditions imposed. See id.

Nothing presented in the motion or response suggests that appellant’s circumstances,

bearing on the above factors, have changed. Cf. id.

      After considering appellant’s motion, the State’s response, and the applicable

law, we grant appellant’s motion.

                                            4
      It is ORDERED that appellant’s bail is set in the amount of $175,000. Article

44.04(h) requires that the trial court approve any sureties on a bond. See TEX. CODE

CRIM. PROC. art. 44.04(h). In addition, the trial court may set reasonable terms and

conditions as appropriate. See id. art. 17.40; Werner, 445 S.W.3d at 306; Leonard

v. State, 376 S.W.3d 886, 890 (Tex. App.—Fort Worth 2012, pet. ref’d) (holding

that trial court has authority to set reasonable conditions on bail set under article

44.04(h)).

      Harris County District Clerk, Marilyn Burgess, is directed to file a copy of

this order in trial court cause number 1556775 in the 176th District Court, Harris

County.

      It is so ORDERED.

                                  PER CURIAM

Panel consists of Chief Justice Radack and Justices Landau and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).




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