JASON GOMEZ APPELLANT v. THE STATE OF TEXAS APPELLEE

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Court of Appeals of Texas, Amarillo.

JASON GOMEZ, APPELLANT v. THE STATE OF TEXAS, APPELLEE

NO. 07–10–00116–CR

Decided: April 25, 2011

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ORDER

Appellant, Jason Gomez, has filed a motion in which he requests this Court set a reasonable bail pending final disposition of his appeal.   We grant his motion.

On January 19, 2011, this Court issued its opinion concluding that there was insufficient evidence to sustain appellant's conviction for harassment of a public servant.1  Consequently, we rendered a judgment of acquittal.   See Gomez v. State, 331 S.W.3d 832, 2011 Tex.App. LEXIS 378, at *12 (Tex.App.—Amarillo 2011, no pet. h.).   We overruled the State's motion for rehearing on March 1. Appellant filed his motion for reasonable bail pending final determination of his appeal with this Court on March 21.   On April 4, the State filed, and the Texas Court of Criminal Appeals granted, its motion for extension of time in which to file its petition for discretionary review.

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 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).2

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.

Though article 44.04(h) directs that the defendant be released on reasonable bail under these circumstances, it does not specify the factors we are to consider when determining the appropriate sum.   However, 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.

Tex.Code Crim. Proc. Ann. art. 17.15 (West 2005).   Consistent with article 17.15's general rules, the Texas Court of Criminal Appeals outlined more specific factors to be taken into consideration when determining reasonable bail:  (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 the bond;  (7) criminal history;  (8) conformity with previous bond conditions;  (9) existence of other outstanding bonds;  and (10) aggravating factors involved in the offense.   Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex.Crim.App.1981).   When, as here, the issue is reasonable bail pending final determination of an appeal following a reversal by an appellate court, the Fourteenth Court of Appeals outlined additional, perhaps even more specifically-tailored, considerations:  (1) the fact that the conviction has been overturned;  (2) the State's ability (or inability) to retry the appellant;  and (3) the likelihood that the decision of the court of appeals will be overturned.   See Aviles v. State, 26 S.W.3d 696, 699 (Tex.App.—Houston [14th Dist.] 2000, pet. ref'd).

With these several considerations in mind, we turn to appellant's motion.   Appellant's motion specifically addresses many of the factors we are to consider in determining a reasonable bail.   He points out that he has been incarcerated since January 20, 2010, when he was sentenced to 60 years incarceration for his conviction for harassment of a public servant by causing contact with the blood of the appellant.   Additionally, appellant represents that he has maintained employment in Plainview, Texas for a number of years prior to his incarceration;  has significant family and community ties to Plainview;  has resided in Plainview throughout his life except for periods when detained by penal authorities;  is indigent, but can rely on the largesse of his family to make the bond;  has been convicted of two prior felony convictions;  has complied with previous bond conditions;  is currently on bond for resisting arrest arising from the current incident;  and there are no particular aggravating factors relating to the instant offense relevant to setting bail.   Appellant also indicates that this Court has reversed the judgment of the trial court and has rendered a judgment of acquittal.   As such, the State will not be able to retry the case if the judgment of this Court is sustained.

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 and will go only so far as to say that we remain confident that our decision employed the proper standard of review, that the evidence was insufficient to sustain a conviction for harassment of a public servant, and that our disposition of the case was correct under the law.

Appellant's pretrial bail was originally set at $10,000.00, but it was subsequently increased to $50,000.00.3  In his motion, appellant requests this Court set bail at $2,500.00.   Considering the factors on which we have been provided information 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 set bail pending final determination of appeal at $2,500.00.   See Tex.Code Crim. Proc. Ann. art. 44.04(h).

It is so ordered.

.

Do not publish.

FOOTNOTES

1.  FN1. See Tex. Penal Code Ann. § 22.11(a)(2) (West Supp.2010).

2.  FN2. As the Waco Court explained, the former Rule 209(c) of the Texas Rules of Post Trial and Appellate Procedure in Criminal Cases provided:As used in these rules, ‘final ruling of the court’ means (1) the 16th day after the date of the delivery of the court's opinion or order where a motion for rehearing is permitted under Rule 208 but is not filed or rehearing is not granted on the court's own motion, (2) the day after the date of the overruling of a motion for rehearing where a further motion for rehearing is not permitted under Rule 208, or (3) if a motion for rehearing pursuant to Rule 208(d) is granted, the day after the date of the disposition of the case on rehearing, whichever is later.In re Keeter, 134 S.W.3d 250, 253 (Tex.App.—Waco 2003, orig. proceeding).

3.  FN3. Nothing in the record reflects any explanation as to why the trial court increased appellant's pretrial bail.   In his motion, appellant simply indicates that the bond “was later raise[d] sua sponte by the trial court to $50,000.00.”

Per Curiam

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