Opinion
NO. 14-16-00583-CR
11-20-2018
DARON TAYLOR, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court Harris County, Texas
Trial Court Cause No. 1400163
ORDER
On May 22, 2018, this court rendered its judgment vacating the trial court's judgment and remanding to the juvenile court for further proceedings. We denied appellant's second motion for en banc reconsideration on July 24, 2018. As of the date of this order, a petition for discretionary review is pending in the Court of Criminal Appeals.
On May 31, 2018, appellant, Daron Taylor, filed a motion asking this Court to set reasonable bail. See Tex. Code Crim. Proc. Ann. art. 44.04(h). Article 44.04(h) of the Texas Code of Criminal Procedure states, in pertinent part:
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. The defendant's right to release under this subsection attaches immediately on the issuance of the Court of Appeals' final ruling . . . .
We conclude that appellant is entitled to release on reasonable bail. See Tissier v. Kegans, 789 S.W.2d 680, 681 (Tex. App.—Houston [1st Dist.] 1990, no writ) (holding right to release matures when motion for rehearing is denied). We further conclude this Court is required to determine the amount of appellant's bail.
Our dissenting colleague contends that Article 44.04(h) does not apply because we "vacated"—rather than "reversed"—appellant's conviction. We disagree. This Court vacated appellant's conviction for the simple reason that the district court did not properly acquire jurisdiction due to deficiencies in the juvenile court transfer order. See Taylor v. State, 533 S.W.3d 94, 99 (Tex. App.—Houston [14th Dist.] 2018, pet. filed). That technical distinction has no relevance for purposes of setting a bond under Article 44.04(h). Regardless of whether our disposition is best described as a reversal or a vacatur, the judgment of conviction under which appellant has been confined will disappear if this Court's ruling stands, so a bond is necessary. Finally, the Court of Criminal Appeals has described the disposition in cases like this one as a "reversal of the juvenile court's transfer order," and this Court has described it as a "remand to the juvenile court for further proceedings." In light of this reversal, appellant is entitled to release on reasonable bail.
Moon v. State, 451 S.W.3d 28, 52 n.90 (Tex. Crim. App. 2014).
Guerrero v. State, 471 S.W.3d 1, 4 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
We therefore turn to the amount of appellant's bail. The primary purpose of setting bail, both pretrial and post-appeal, "is to secure the presence of the accused." Aviles v. State, 26 S.W.3d 696, 698 (Tex. App.—Houston [14th Dist.] 2000, order). There are a number of factors we consider in making this determination. Article 17.15 of the Texas Code of Criminal Procedure requires courts to consider the following in making their determinations to set bail:
1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.Tex. Code Crim. Proc. Ann. art. 17.15 (West 2015). The Court of Criminal Appeals has provided additional factors to consider that other courts have applied to setting bail:
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.
(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.Aviles, 26 S.W.3d at 698 (citing Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex. Crim. App. [Panel Op.] 1981)).
Appellant asks this court to set his bond at $10,000. In support of his motion appellant claims he (1) has no history of fleeing or failing to appear in court; (2) is indigent; (3) was charged as a party to the offense of capital murder; and (4) does not pose a threat to the community. Appellant also points out that he was a juvenile at the time of the offense, and has a close family friend who maintains contact. Since appellant's arrest, his mother has returned to prison and his father has died. Appellant has lived in Houston his entire life, has no criminal record other than the pending charge, and has been in custody without bond since his arrest and conviction. Appellant argues that due to his youth and lack of sophistication he is not a flight risk.
In its response the State asks this court to set appellant's bond at $500,000. The State argues that a high bail amount is necessary due to the egregious circumstances of the offense, appellant's history of failing to follow court directives, appellant's lack of family support and community ties, and a prior bond forfeiture in a juvenile case.
The State argues that appellant presents a "clear danger" to the safety of the community. Specifically, the State references appellant's criminal history, which resulted in multiple murder charges while appellant was on probation for a weapons charge. The State highlights appellant's admission that he repeatedly fired a weapon while participating with fellow gang members in the murders.
The State also highlighted a previous failure to appear on a juvenile bond. The record reflects that appellant was scheduled to appear in criminal district court on May 21, 2013, on a burglary of a habitation charge. The charge was filed May 3, 2013, and appellant was released on a $10,000 bond. Appellant failed to appear, bond was revoked, and an alias capias was issued.
In setting bail following reversal and remand in the court of appeals, "the primary factors that should be considered by the court of appeals are (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." Aviles, 26 S.W.3d at 699.
Appellant's conviction was vacated, not reversed, by this court. As to the State's ability to seek a proper waiver of juvenile court jurisdiction and retry appellant, we fully expect the State will seek to do so. It is somewhat likely that, were the case to be retried in district court, the jury verdict would be the same. In addition, appellant has not served more time than could be obtained upon conviction. Regarding the prospect of reversal of our decision, we, like our sister court of appeals, are reluctant to predict the future actions of the Court of Criminal Appeals, but we are confident that our analysis was thorough and properly applied the correct standard of review, and that our disposition of the case is correct under the law. See Werner v. State, 445 S.W.3d 301, 305 (Tex. App.—Houston [1st Dist.] 2013, order) (expressing same hesitation but indicating that "we have found no reason to conclude that the reasoning in our opinion is infirm").
Given these considerations, appellant's position now is much like his position was before his first trial. See Aviles, 266 S.W.3d at 306 Accordingly, the trial court's decision on bail can guide us in considering the Aviles factors. See Werner, 445 S.W.3d at 306 (considering the amount of bail set before trial in setting bail pursuant to article 44.04(h)).
Before appellant's trial for capital murder, the State filed a motion for denial of bail. In its motion the State argued that appellant was charged with capital murder, murder, and burglary. Appellant was alleged to have committed the offense with a deadly weapon and was accused of a violent offense while under the supervision of a criminal justice agency of the State. The trial court, "[u]pon a hearing and after considering the evidence presented," granted the State's motion for denial of bail for sixty days. On April 23, 2014, however, the trial court set appellant's bond at $250,000.
The record indicates that appellant's previous $10,000 bail amount when facing a burglary of a habitation charge was not sufficient to compel appellant to appear in court. Although the trial court initially denied bail, it later set a bond of $250,000. Article 44.04(h) states that appellant "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." See Tex. Code Crim. Proc. Ann. art. 44.04(h).
Considering the factors set out in Aviles, we set appellant's bail at $250,000. 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. 17.40 & 44.04(h). We grant appellant's motion for bail, and order appellant, Daron Taylor, released on bail upon his giving good and sufficient bond, signed by appellant as principal and with sureties as required by law, in the sum of $250,000 pending final disposition on remand.
PER CURIAM Panel consists of Chief Justice Frost and Justices Jamison and Busby (Frost, C.J., dissenting). Publish — Tex. R. App. P. 47.2(b).