                                 In The
                            Court of Appeals
                   Seventh District of Texas at Amarillo

                                  No. 07-13-00383-CR


                     JAMES HOWARD TAYLOR, APPELLANT

                                          V.

                        THE STATE OF TEXAS, APPELLEE

                         On Appeal from the 355th District Court
                                 Hood County, Texas
           Trial Court No. CR12392, Honorable Ralph H. Walton, Jr., Presiding

                                September 23, 2014

                                       ORDER
                 Before CAMPBELL, and HANCOCK and PIRTLE, JJ.


      Appellant, James Howard Taylor, has filed a motion in which he requests that

this Court set reasonable bail pending final disposition of his appeal. We grant his

motion.


      Appellant appealed his conviction by jury of the offense of assault on a family

member or a person with whom he had a dating relationship, which was elevated to a

third-degree felony due to a prior conviction for the same offense. See TEX. PENAL
CODE ANN. § 22.01(a)(1), (b)(2)(A) (West Supp. 2014). The punishment for the offense

was enhanced to that of a second-degree felony by virtue of proof of a prior felony

conviction.   See id. § 12.42(a) (West Supp. 2014).       As a result of this conviction,

appellant was sentenced to imprisonment for a period of twenty years and a $10,000

fine.


        After concluding that the trial court committed reversible error in allowing the

State to introduce two prior convictions for assault on a family member during the guilt-

innocence phase of trial, we rendered judgment reversing the conviction and remanding

the cause for a new trial. See Taylor v. State, No. 07-13-00383-CR, 2014 Tex. App.

LEXIS 8750, at *12 (Tex. App.—Amarillo Aug. 8, 2014, no pet. h.).


        By his motion, appellant requests that this Court issue an order releasing

appellant on his own recognizance. The State filed a response to appellant’s motion

requesting that this Court set appellant’s bail at $10,000, and specifically impose certain

restrictions including restraining appellant from having contact with the alleged victim,

restricting appellant from being at or near certain locations associated with the alleged

victim, imposing a home curfew on appellant, and prohibiting appellant from consuming

alcoholic beverages or illegal drugs.


        We are authorized to set bail upon request by an appellant in the following

circumstances:


        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

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       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) (West 2006). So, having reversed appellant's

conviction and having been requested to set bail at a time prior to the filing of a petition

for discretionary review, we have authority to consider appellant's motion.


       While article 44.04(h) directs that the defendant be released on reasonable bail,

it does not specify the factors we are to consider when determining the appropriate

sum. Certain general rules govern the amount of bail to be required:


       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.

Id. art. 17.15 (West 2005).


       To set a bail that is sufficiently high to give reasonable assurance that appellant

will comply with the requirements that will arise in this proceeding while avoiding setting

bail so high that it might be oppressive, we must consider appellant's financial

resources. See id. In a declaration of inability to pay costs executed by appellant on

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August 21, 2014, appellant represented that he is currently incarcerated, has $0.11 in

his inmate trust account, and receives approximately $40.00 per month as gifts from

friends and relatives. However, on his pretrial bond, appellant swore that he owned

nonexempt property worth $10,000.


       The State responds citing appellant’s criminal history as a basis for setting a

higher bail.   As the State notes, appellant has been convicted of two prior family

violence offenses as well as a number of other offenses.


       With respect to the likelihood that the Texas Court of Criminal Appeals will

reverse our decision, we are respectfully hesitant to predict the high court's disposition

of a petition for discretionary review in this case and will go only so far as to say that we

remain confident that our decision employed the proper standard of review and that the

admission of evidence of two prior convictions for family violence during guilt-innocence

constituted reversible error. Consequently, we are confident that our disposition of the

case was correct under the law.


       Appellant's pretrial bail was originally set at a $10,000 personal recognizance

bond. We believe that this is a reasonable bail amount. It was sufficient assurance for

appellant to appear at the first trial and we have no reason to believe that it will not be

sufficient to ensure that appellant will comply with the requirements that will arise during

the pendency of this appeal. While the State requests the inclusion of certain terms and

conditions, we note that appellant’s pretrial bond did not include any of these terms and

conditions and, therefore, conclude that such are unnecessary to be included in bail

pending appeal. Considering the factors on which we have been provided information


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and endeavoring to strike a balance between ensuring appellant's presence and

avoiding oppressive bail, we GRANT appellant's motion for reasonable bail pending

final determination of appeal and order that appellant be released from incarceration on

his own recognizance with his bail set at $10,000.00. See TEX. CODE CRIM. PROC. ANN.

art. 44.04(h).


       It is so ordered.


                                                      Per Curiam


Do not publish.




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