Opinion
NUMBER 13-16-00023-CR
07-05-2017
DAVID JOHNSON SR., Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 52nd District Court of Coryell County, Texas.
ORDER
Before Justices Contreras, Benavides, and Longoria
Order Per Curiam
On April 6, 2017, this Court issued an opinion reversing and remanding David Johnson Sr.'s conviction for sexual assault on grounds that a significant portion of the reporter's record had been lost or destroyed, without any fault by appellant, and that the complete record was necessary to the appeal's resolution. See Johnson v. State, No. 13-16-00023-CR, 2017 WL 1281391, at *1 (Tex. App.—Corpus Christi Apr. 6, 2017, no pet. h.) (mem. op., not designated for publication). After we reversed his conviction, Johnson filed a motion pursuant to article 44.04(h) of the code of criminal procedure asking this Court to set bail. See TEX. CODE CRIM. PROC. ANN. art. 44.04(h) (West, Westlaw through Ch. 49, 2017 R.S.). In his motion, Johnson states that bail should be set at $1,000.00. This Court requested and received a response to Johnson's motion from the State of Texas. The State requests that we set Johnson's bond in the amount of $20,000.00. We GRANT Johnson's motion to set bond, but set bond in the amount requested by the State at $20,000.00.
This appeal was transferred to this Court from the Tenth Court of Appeals by order of the Texas Supreme Court. See TEX. GOV'T CODE ANN. § 22.220(a) (West, Westlaw through Ch. 49, 2017 R.S.) (delineating the jurisdiction of appellate courts); id. § 73.001 (West, Westlaw through Ch. 49, 2017 R.S.) (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is "good cause" for the transfer).
I. APPLICABLE LAW
Article 44.04(h) of the Texas Code of Criminal Procedure provides that a defendant is entitled to release on reasonable bail upon reversal of a conviction. See id. As an intermediate appellate court, 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. P. 209(c).Id. Therefore, because we have reversed Johnson's conviction and because he requested to set bail at a time prior to the filing of a petition for discretionary review, we have authority to consider his motion.
Though article 44.04(h) directs that Johnson be released on reasonable bail under the circumstances in this case, it does not specify the factors we are to consider when determining the appropriate sum. See id. Article 17.15 of the code of criminal procedure provides the following general rules regarding the amount of bail:
1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.Id. at art. 17.15 (West, Westlaw through Ch. 49, 2017 R.S.). In addition to the factors mentioned in article 17.15, the court of criminal appeals has articulated the following factors to be considered in setting the amount of the bond: (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). Typically, courts give greater weight to the first two factors—the nature of the offense and the length of the sentence. See Werner v. State, 445 S.W.3d 301, 304 (Tex. App.— Houston [1st Dist.] 2013, order). The Fourteenth Court of Appeals has noted additional factors to consider: (1) the fact that the conviction has been overturned; (2) the State's ability (or inability) to retry 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) (order setting bail) (noting also that the primary goal when determining the proper amount of pre-trial and appeal bonds is to secure the presence of the accused).
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.
II. ANALYSIS
With the foregoing factors in mind, we turn to Johnson's motion. In his motion, Johnson asserts that: he is currently incarcerated, his counsel was appointed for appeal; a bond was initially set at $20,000.00; appellant was granted a personal bond; and appellant has been in continuous custody since the date of the revocation hearing on September 16, 2015. Appellant asserts that it is a "safe assumption" that Johnson has very little financial ability to make a bond at this time, and that a bond set in the amount of $1,000.00 would satisfy the goal that the amount would be sufficiently high to give "reasonable assurance" of compliance, but not so high as to be an "instrument of oppression."
In response, the State argues that appellant has provided no evidence on any of the factors to be considered in setting bond and contends that bond should be set at $20,000.00. The State contends that appellant was charged with sexual assault of a child under seventeen years of age and the original bond for this offense was set at $20,000. On September 3, 2008, appellant received five years deferred adjudication. On April 3, 2013, the State filed its motion to adjudicate guilt and revoke community supervision. Following appellant's arrest, after the State filed its motion, appellant's bond was set at $20,000 as a personal recognizance bond. After a two-day hearing on the State's contested motion to revoke, the trial court found all allegations true, which included three new offenses while on deferred adjudication, and sentenced appellant to seven years of incarceration in the Texas Department of Criminal Justice—Institutional Division. The State thus argues that appellant's history while under deferred adjudication supervision "indicates a disregard for the conditions of his release and that he fails to follow required rules." The State further contends that appellant's "commission of new offenses while being under supervision for such a serious crime is especially troubling," and thus appellant "is, and would continue to be, a danger to the community." As for his future likelihood to appear in court, should he be released on bond, the State notes Appellant was arrested in 2008 for failing to appear in his original case and had his bond forfeited. The new cash bond at that time was set at $10,000. Finally, the State contends that this Court's decision to reverse and remand this case was due to a lost reporter's record rather than a substantive ruling on the merits of appellant's appeal.
Though we do not have information about each of the articulated factors in article 44.04(h) or Ex parte Rubac, we believe that sufficient evidence exists to determine a reasonable bond for Johnson. See Montalvo v. State, 786 S.W.2d 710, 711 (Tex. Crim. App. 1989) ("While consideration of each of these itemized factors is not required, nor is the list necessarily exhaustive of factors that might be [germane] in a particular case under 44.04(h), we find that under the facts of this case[,] the allegations in his motion support a setting of bail as requested."); Watson v. State, 158 S.W.3d 647, 649 (Tex. App.—Waco 2005, order) ("The trial court determined that $10,000 was an appropriate amount of bail to secure Watson's presence at his first trial. Because little has changed since that time, we conclude that $10,000 remains an appropriate amount of bail."); Dees v. State, 722 S.W.2d 209, 216 (Tex. App.—Corpus Christi 1987, order) (per curiam) (considering only the nature of the crime and the punishment assessed in setting bail).
Considering the factors on which we have been provided information and endeavoring to strike a balance between ensuring Johnson's presence at the trial of this matter and avoiding oppressive bail, we GRANT Johnson's motion and set bail at $20,000. Any conditions on bail must be set by the trial court, and any sureties on bail must be approved by the trial court. See TEX. CODE CRIM. PROC. ANN. art. 44.04(h); Leonard v. State, 376 S.W.3d 886, 890 (Tex. App.—Fort Worth 2012, pet. ref'd) (holding that the trial court has the authority to set reasonable conditions for bail set under section 44.04(h)).
PER CURIAM Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 5th day of July, 2017.