Motion Granted; Order and Dissenting Opinions filed October 18, 2018.




                                       In The

                     Fourteenth Court of Appeals
                                     ____________

                               NO. 14-15-01005-CR
                               NO. 14-15-01006-CR
                                     ____________

                     NATHAN RAY FOREMAN, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 177th District Court
                             Harris County, Texas
                   Trial Court Cause Nos. 1374837 & 1374838


          DISSENT TO EN BANC ORDER SETTING BAIL
      Today the en banc court speaks for the first time on a topic few published
opinions address: the factors to be considered in determining the amount of
reasonable bail under Texas Code of Criminal Procedure article 44.04(h), a statute
that applies after an intermediate court of appeals reverses a conviction.
          Eighteen years ago in Aviles v. State, a panel of this court concluded that in
making the 44.04(h) determination, courts primarily should consider three factors:
(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 (the “Aviles Factors”).1 More than a decade before, the Court of
Criminal Appeals, in Montalvo v. State, determined the amount of reasonable bail
under article 44.04(h) without giving primary consideration to any of these factors.2
The legal standard the Aviles court created conflicts with the high court’s Montalvo
precedent. Instead of embracing the Aviles legal standard, today the en banc court
should step away from the Aviles Factors and instead apply Montalvo’s multi-factor
balancing test.3

              The Court of Criminal Appeals’s Precedent in the Montalvo Case

          In Montalvo, the intermediate court of appeals reversed the defendant’s
conviction, and the defendant requested release on reasonable bail under article
44.04(h) after the State filed a petition for discretionary review by the Court of
Criminal Appeals.4 Because the defendant requested release on reasonable bail after
the State sought high-court review, article 44.04(h) required the Court of Criminal
Appeals to determine the amount of reasonable bail.5 We stand in the same spot




1
 See Aviles v. State, 26 S.W.3d 696, 698–99 (Tex. App.—Houston [14th Dist.] 2000, published
order).
2
    See Montalvo v. State, 786 S.W.2d 710, 710–11 (Tex. Crim. App. 1989).
3
    See id.
4
    See id.
5
    See Tex. Code Crim. Proc. Ann. art. 44.04(h) (West, Westlaw through 2017 1st C.S.).

                                                 2
today, the bail-setting task having fallen to us instead of the high court because
appellant filed the bail request before seeking high-court review.6

           In considering reasonable bail, the Montalvo court listed, and the defendant
thoroughly detailed, the following criteria: (1) the nature of the offense, (2) the
ability to make bail, (3) defendant’s prior criminal record, (4) defendant’s
employment record, (6) defendant’s family and community ties, (7) the defendant’s
length of residency in the community.7 The Montalvo court stated that that other
factors might be relevant in determining the amount of reasonable bail under article
44.04(h).8 Based on these factors, the Montalvo court found that $25,000 was a
reasonable bail amount.9 In doing so, the Montalvo court did not state that courts
should give primary consideration to any factors or that any factor was a primary
factor.10

                            This Court’s Precedent in the Aviles Case

           The Aviles court, noting that it found no cases discussing how to determine
the amount of reasonable bail under article 44.04(h),11 concluded that in making this
determination, courts should consider the five factors listed in Code of Criminal
Procedure article 17.15 (rules for fixing amount of bail),12 as well as the following


6
     See id.
7
    See Montalvo, 786 S.W.2d at 711.
8
    See id.
9
    See id.
10
     See id.
11
     See Aviles, 26 S.W.3d at 698.
12
   Code of Criminal Procedure article 17.15, entitled “Rules for fixing amount of bail,” recites
the following “rules” for determining the bail amount:
           1. The bail shall be sufficiently high to give reasonable assurance that the
           undertaking will be complied with.

                                                    3
factors: “(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.”13 These parts of Aviles are
consistent with Montalvo.14 But the part of Aviles that introduces the Aviles Factors15
conflicts with the Montalvo precedent because the Court of Criminal Appeals did
not state that courts should give primary consideration to any factor.16

          Significantly, the Aviles court did not cite, discuss, distinguish, or purport to
apply the Montalvo opinion.17 The Aviles court did not even mention Montalvo, so
Aviles is not an interpretation of Montalvo that is binding on panels of this court.18
Because Aviles conflicts with Montalvo, Aviles is not binding precedent in this
court.19


          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, Westlaw through 2017 1st C.S.).
13
     Aviles, 26 S.W.3d at 698.
14
     See Montalvo, 786 S.W.2d at 711.
15
     See Aviles, 26 S.W.3d at 699.
16
     See Montalvo, 786 S.W.2d at 711.
17
     See Aviles, 26 S.W.3d at 698–701.
18
     See id.
19
  See Glassman v. Goodfriend, 347 S.W.3d 772, 781 (Tex. App.—Houston [14th Dist.] 2011, pet.
denied) (en banc).

                                                   4
          The Aviles court created a new layer of factors for the 44.04(h) bail
determination and then elevated those factors above all others.20 Because the Aviles
framework is at odds with Montalvo21 and the Montalvo precedent is on point, this
court should follow Montalvo rather than the Aviles-Factors holding from this
court.22 And, that is not the only reason to step away from the Aviles model of bail-
setting.

                                        The Aviles Factors

          Even if Montalvo did not stop this court from giving primary consideration to
the Aviles Factors, the en banc court should not embrace the Aviles framework.
Elevating the Aviles Factors above all other considerations does not yield the best
legal standard in the context of a bail-amount determination under article 44.04(h).

          The Aviles court did not cite any statutory authority or any case requiring the
bail-setting court to give primary consideration to the Aviles Factors.23 All three
factors fail in logic and application.

          The first Aviles factor — the overturning of the conviction — goes to
eligibility for bail, not to the reasonableness of bail. If a court of appeals reverses a
judgment of conviction, the Texas Code of Criminal Procedure requires that, upon
request, a defendant in custody must be released on reasonable bail pending final
determination of an appeal by the state or the defendant on a petition for
discretionary review.24 Though reversal of the conviction provides a defendant in

20
     See Aviles, 26 S.W.3d at 698–99.
21
     See Montalvo, 786 S.W.2d at 711; Aviles, 26 S.W.3d at 698–99.
22
   See Glassman, 347 S.W.3d at 781 (explaining that this court is not bound by a prior holding of
this court if the prior holding conflicts with a decision from a higher court that is on point).
23
     See Aviles, 26 S.W.3d at 698–99.
24
     See Tex. Code Crim. Proc. Ann. art. 44.04(h).

                                                 5
custody with the opportunity to request release on reasonable bail, it is not a valid
consideration in setting the amount of bail.25

          Elevating article 44.04(h)’s statutory prerequisite for bail eligibility to a
“primary factor” to be considered in fixing reasonable bail serves no purpose other
than to weigh the outcome in favor of the defendant. Under the Aviles framework,
the defendant, if eligible for relief under article 44.04(h), always will satisfy one of
the three “primary factors” the court is to consider in setting reasonable bail. It
makes no sense to make the reversal of the conviction a factor at all, let alone a
primary factor.

          The second primary factor under Aviles — the State’s ability to retry appellant
— assumes that affirmance is the only potential outcome in the Court of Criminal
Appeals and ignores the possibility that the intermediate court’s holding could be
reversed and the defendant’s sentence reinstated.

          In setting the amount of reasonable bail at a small amount in the context of
the case, the Aviles court pointed to no change in circumstances other than the
panel’s reversal of the conviction and remand for further proceedings.26 The Aviles
court reasoned that if the panel’s decision were upheld, retrial would be futile in light
of the panel’s finding that the evidence seized from Aviles’s vehicle was illegally
obtained and not admissible in any retrial for the charged offense.27 Yet, an order
effectively granting a defendant’s motion to suppress evidence does not necessarily
and automatically terminate the prosecution. The defendant remains under
indictment and the main purpose of bail — to ensure the defendant’s presence at trial
— remains the same. So, the defendant’s bail status should not change based on the

25
     See id.
26
     See Aviles, 26 S.W.3d at 698–99.
27
     See id. at 699.

                                             6
State’s ability to retry the defendant. This factor invites the court to guess what
might happen on retrial — to engage in the type of speculative and advisory musings
the law usually condemns. Even if it were proper to consider this factor, no good
reason exists to require that courts give primary consideration to it.

           The third Aviles factor — the likelihood that the decision will be overturned
— focuses on the merits of the underlying case and not on the intended role of bail
on appeal. It serves no purpose for an intermediate appellate court to handicap its
chances of affirmance or reversal upon review by a higher court. Gauging appellate
probabilities places an intermediate court in the awkward position of publicly
evaluating the strengths and weaknesses of its own analysis while the case is still
moving through the appellate process.

           The Aviles court reasoned that setting bail in the same amount set pretrial and
on appeal evinces a “lack of confidence in [the court’s] original decision,”28 a
conclusion that neither accurately reflects reality nor produces a logical factor for
determining reasonable bail. Today, the en banc court considers the prospect of
reversal of its en banc decision and notes its reluctance “to predict the future actions
of the Court of Criminal Appeals should discretionary review be sought.” 29 The en
banc court then pronounces its confidence in its analysis, underscoring the
thoroughness and correctness of its work product.30 Not surprisingly, no court
applying Aviles ever has pronounced a lack of confidence in the court’s decision or
pointed out shortcomings in the court’s review or analysis, though some (including
today’s en banc majority) have expressed reluctance to make the evaluation.31 No

28
     Id. at 700.
29
     See ante at 3.
30
     See ante at 3–4.
31
  See ante at 3–4; Werner v. State, 445 S.W.3d 301, 305 (Tex. App.—Houston [1st Dist.] 2013,
order) (citing Seventh Court of Appeals opinion and stating “[w]e share our sister courts’ hesitation
                                                 7
court — including the Aviles court — has explained why confidence in the court’s
own work should drive or even inform the determination of a reasonable bail
amount.

       The bench, the bar, and the public will presume that the court stands by its
decision without the court saying so. And, if a court applying the third Aviles factor
were to assess its work product as unlikely to be affirmed, that exercise would serve
no purpose other than to undermine public confidence in our courts.

       In setting a reasonable bail amount in a case in which this court has reversed
the conviction, we must recognize the realities of the appellate process, a journey
that is not yet over and that might end in reinstatement of a lengthy prison sentence.
If the Court of Criminal Appeals declines to review our decision or upholds the en
banc court’s ruling, the appellant will remain under indictment and will be subject
to further prosecution. This court should not give primary consideration to the
likelihood that its decision on the merits of this appeal will be overturned. Even if
it were proper to count this factor, no good reason exists to require that courts give
primary consideration to it.

       In sum, the Aviles framework has proven unworkable. It demands that courts
give mere eligibility for bail primary consideration in setting the amount of bail. It
invites courts to base an important decision on the court’s best guess of uncertain
future events. It commands courts to critique their own opinions before a case is
over. And, it requires courts to give these assessments greater weight than anything
else on the high court’s list.



in predicting the Court of Criminal Appeals’s future disposition. But we have found no reason to
conclude that the reasoning in our opinion is infirm”) (citation omitted).


                                               8
                                       Conclusion

      The Court of Criminal Appeals’s Montalvo precedent is on point. This court’s
panel opinion holding that courts primarily should consider the Aviles Factors in
setting bail under article 44.04(h) goes against Montalvo. The en banc court should
follow Montalvo out of obedience to binding precedent. But, even if Aviles did not
conflict with Montalvo, this court, sitting en banc, should decide today to abandon
the Aviles framework — to stop giving primary consideration to the Aviles Factors
in bail-amount determinations under article 44.04(h). Montalvo should carry the
day. Because it does not, I respectfully dissent.




                                 /s/     Kem Thompson Frost
                                         Chief Justice


En Banc Court consists of Chief Justice Frost and Justices Boyce, Christopher,
Jamison, Busby, Donovan, Brown, Wise, and Jewell.
Justices Boyce, Christopher, Jamison, Busby, Brown, Wise, and Jewell join the en
banc, per curiam Order. Justice Donovan files a Dissent to En Banc Order Setting
Bail. Chief Justice Frost files a Dissent to En Banc Order Setting Bail that Justice
Donovan joins.
Publish — TEX. R. APP. P. 47.2(b).




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