                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo
                              ________________________

                                   No. 07-18-00028-CR
                              ________________________

                      JEREMY DAVID SPIELBAUER, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE



                          On Appeal from the 251st District Court
                                   Randall County, Texas
                 Trial Court No. 26,626-C; Honorable Ana Estevez, Presiding


                                     February 24, 2020

             ORDER ON MOTION TO SET REASONABLE BAIL
                    Before QUINN, C.J., and PIRTLE and PARKER, JJ.


       On January 22, 2020, this court reversed the murder conviction of Jeremy David

Spielbauer and remanded the cause to the trial court for a new trial. See Spielbauer v.

State, __ S.W.3d __, No. 07-18-00028-CR, 2020 Tex. App. LEXIS 591, at *1 (Tex. App.—

Amarillo Jan. 22, 2020, no pet. h.). Pending before this court is Appellant’s motion to set

reasonable bail pursuant to article 44.04(h) of the Texas Code of Criminal Procedure.
The State filed a response. We grant the motion and hereby set bail in the amount of

$500,000.


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

reversal of a conviction, a defendant is entitled to release on reasonable bail, regardless

of the length of term of imprisonment, pending final determination of the appeal by the

State or defendant on petition for discretionary review. If a defendant requests bail before

a petition for discretionary review has been filed, the court of appeals determines the

amount of bail. TEX. CODE CRIM. PROC. ANN. art. 44.04(h) (West 2018).


       Because Appellant has filed his motion requesting bail prior to the filing of a petition

for discretionary review in the Texas Court of Criminal Appeals, this court is tasked with

setting the amount of bail. Id. Article 17.15 of the Code sets factors for guiding this court

in setting a reasonable bail. Those factors are as follows:


       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 2015).

       The Texas Court of Criminal Appeals, in weighing the primary objective of bail as

security to apprehend an appellant if his conviction is subsequently affirmed, added more

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factors to consider in setting reasonable bail. See Ex parte Rubac, 611 S.W.2d 848, 849-

50 (Tex. Crim. App. 1981). Those factors include (1) the length of the sentence; (2) the

nature of the offense; (3) work history; (4) family and community ties; (5) length of

residency; (6) ability to make bond; (7) criminal history; (8) conformity with previous bond

conditions; (9) existence of other outstanding bonds; and (10) aggravating factors

involved in the offense. See id. See also Montalvo v. State, 786 S.W.2d 710, 711 (Tex.

Crim. App. 1989) (per curiam). In Aviles v. State, 26 S.W.3d 696, 698 (Tex. App.—

Houston [14th Dist.] 2000, order), the court of appeals noted other factors to consider

which include (1) the fact that the conviction was 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.


       By his motion, Appellant references evidence from a pretrial hearing on a writ of

habeas corpus in which the trial court reduced his bond from $500,000 to $400,000. See

Spielbauer v. State, No. 07-18-00028-CR, 2016 Tex. App. LEXIS 9106, at *5 (Tex. App.—

Amarillo Aug. 19, 2016, order) (affirming the trial court’s reduction of bail from $500,000

to $400,000). The testimony at the pretrial hearing, however, established he could only

make a $130,000 to $140,000 bond. Appellant was unable to make bond and has been

in continuous custody since his arrest in 2016.


       Appellant suggests that a bond of $150,000 and any conditions set by the trial

court would satisfy the article 17.15 factors and those additional factors expressed by the

Texas Court of Criminal Appeals. He suggests that based on the amount of bail set by

the trial court, any amount in excess of $400,000 may be oppressive. To support his

position for a reduction in the amount of bail, Appellant submits he has no prior criminal

                                              3
history. He has ties to the community and contends he is not a flight risk. He also notes

that he voluntarily assisted law enforcement during the murder investigation, to his

detriment. Appellant concedes that based on this court’s reasoning for reversing his

conviction, he will more than likely be retried by the State. He cannot, however, predict

how the Texas Court of Criminal Appeals will review this court’s decision.


       In its response, the State concedes Appellant has ties to the community. However,

the State takes issue with Appellant’s suggestion that he assisted law enforcement during

the investigation. The State posits that Appellant’s “voluntary assistance” was “a ploy” to

mislead law enforcement and that his lies resulted in an innocent person’s incarceration

for over a year. The State asserts that the evidence presented at Appellant’s pretrial

hearing on his writ of habeas corpus did not establish his ability to make bond.


       The State notes that it cannot predict how the Texas Court of Criminal Appeals will

dispose of its impending petition for discretionary review now that its motion for rehearing

has been denied. However, it anticipates a reversal of this court’s decision to reverse

Appellant’s conviction.


       We give great weight to the trial court’s judgment in setting pretrial bail. That being

said, because we are setting bail following a prior conviction that has been reversed,

certain factors are before this court that were not before the trial court. Accordingly, we

grant Appellant’s motion for reasonable bail and hereby set bail in the amount of $500,000

pending final determination of his appeal. We order that Appellant be released from

incarceration upon his posting of bail subject to the same terms and conditions as

previously imposed. See TEX. R. APP. P. 51.2(c)(1) (providing for release of the accused


                                              4
upon the giving of bail when an appellate court has reversed the trial court’s judgment

and ordered a new trial).


      It is so ordered.


                                                     Per Curiam


Do not publish.




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