Opinion
No. 04-12-00430-CR
11-05-2013
Charles ARRINGTON, Appellant v. THE STATE OF TEXAS, Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2011CR1663
Honorable Sharon MacRae, Judge Presiding
Sitting: Sandee Bryan Marion, Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
ORDER
Appellant, Charles Arrington, requests this court set a reasonable bail pending final disposition of his appeal. We grant his motion.
On August 14, 2013, this court issued its opinion concluding appellant was deprived of his constitutional right to a fair trial by the trial court's failure to include a unanimity instruction. As a result, we reversed and remanded for further proceedings. Arrington v. State, No. 04-12-00430-CR, 2013 WL 4082305 (Tex. App.—San Antonio Aug. 14, 2013, pet. filed). Prior to the State's filing of a petition for discretionary review, appellant filed his motion for reasonable bail pending final determination of appeal with this court on September 13, 2013. The relevant portion of the applicable statute provides:
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 the 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.TEX. CODE CRIM. PROC. ANN. art. 44.04(h) (West 2006). Because we have reversed appellant's conviction and appellant has requested bail prior to the State filing of a petition for discretionary review, we are required to determine the amount.
When determining the proper bail amount, we consider the following rules:
(1) The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.Id. art. 17.15. In conjunction with these rules, the Court of Criminal Appeals has outlined additional factors to be considered when determining a reasonable bail amount: (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 a request for bail pending final determination of an appeal follows reversal by an appellate court, we further 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. Aviles v. State, 26 S.W.3d 696, 699 (Tex. App.—Houston [14th Dist.] 2000, order).
(2) The power to require bail is not to be 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.
Appellant has been incarcerated since July 13, 2012. He was convicted of five counts of aggravated sexual assault of a child and one count of indecency with a child. Appellant was serving concurrent sixty-year sentences for the aggravated sexual assault of a child counts and a concurrent twenty year sentence for the indecency with a child count. Appellant has filed an affidavit from his former employer indicating he maintained employment in Schertz, Texas, working as a farm hand for six to seven years prior to his confinement and will continue to do so should he be released on bail. Appellant also represents he maintains strong family and community ties; has lived in Texas all of his life, and in Bexar County for the last ten years; is indigent, having spent approximately the last year in prison; has only one prior misdemeanor assault arrest that resulted in deferred adjudication; surrendered himself to authorities and posted a pretrial bond of $75,000; and has no other outstanding bonds. Appellant acknowledges the victim was younger than fourteen years of age which was the aggravating factor that escalated his offenses from sexual assault to aggravated sexual assault. He also points out this court has reversed and remanded the trial court's judgment and the State's ability to retry this case will be unaffected.
With respect to the likelihood that the decision of this court will be overturned, we remain confident our decision applied the proper standard of review, that appellant's constitutionally protected right to a fair trial was violated, and that our disposition was correct under the law.
Appellant's pre-trial bail was set at $75,000. In his motion, appellant requests his bail again be set at $75,000. Considering the factors and attempting 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 the amount of bail at $250,000. We remand this matter to the trial court to (1) enter an order setting appellant's bail at $250,000, (2) impose all reasonable conditions of bail, if any, and (3) allow appellant and the State an opportunity to present additional evidence or argument the trial court deems appropriate to assist in determining reasonable conditions of bail, if any.
The State does not request appellant's bail be set at a specific amount. Instead, the State asks this court to impose bail of a "substantial amount with appropriate conditions to ensure appellant's appearance at trial and the safety of the victim and the community."
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Sandee Bryan Marion, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 5th day of November, 2013.
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Keith E. Hottle
Clerk of Court