Opinion
NUMBER 13-15-00147-CR
03-17-2017
SANDRA COY BRIGGS, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 186th District Court of Bexar County, Texas.
ORDER ON MOTION FOR BOND PENDING APPEAL
Before Justices Rodriguez, Contreras, and Longoria
Order Per Curiam
On March 9, 2017, this Court issued an opinion reversing appellant Sandra Coy Briggs's conviction for intoxication manslaughter of a public servant and remanding the case to the trial court for further proceedings consistent with our opinion. See Briggs v. State, ___ S.W.2d ___, ___, No. 13-15-00147-CR, 2017 WL 930023, at *1 (Tex. App.—Corpus Christi Mar. 9, 2017, no pet. h.). On March 13, 2017, Briggs filed a motion pursuant to article 44.04(h) of the code of criminal procedure asking this Court to release her on a reasonable bail in this case. See TEX. CODE CRIM. PROC. ANN. art. 44.04(h) (West, Westlaw through 2015 R.S.). On March 14, 2017, the State responded. The State did not oppose Briggs's release on bail pending final determination of an appeal by the State on a motion for discretionary review, but it did argue that we have no evidence upon which to make a decision regarding a reasonable amount of bail. However, that same day, Briggs filed a memorandum in support of her motion for bond, in which she set out portions of the record that supported her motion.
This case is before the Court on transfer from the Fourth Court of Appeals in San Antonio pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.).
The primary purpose of setting bail, both pre-trial 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). Article 44.04(h) of the Texas Code of Criminal Procedure provides the following:
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. . . .TEX. CODE CRIM. PROC. ANN. art. 44.04(h). 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.
2. The power to require bail is not to be so used as to make it an
instrument of oppression.Id. art. 17.15 (West, Westlaw through 2015 R.S.). The court of criminal appeals has provided additional factors to consider that other courts have applied to setting bail: (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. 1981)).
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.
Typically, courts give greater weight to two considerations in setting bail: the nature of the offense and the length of the sentence. Id. at 698-99. The Fourteenth Court of Appeals has held, however, that for an article 44.04(h) request where a conviction is reversed, "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." Id. at 699.
With these several considerations in mind, we turn to Briggs's motion, her supporting memorandum, and the State's response. Briggs addresses many of the factors we are to consider in determining reasonable bail. First, the record shows she was convicted of intoxication manslaughter of a public servant on February 19, 2013 and sentenced to forty-five years' incarceration. Additionally, Briggs testified at the punishment hearing that, prior to her incarceration, she attended classes at Durham Business School and completed a program at the Paris Institute of Jewelry Technology in Paris, Texas, where she studied jewelry repair, stone setting, design, and gemology. She worked in an orthodontist's office and in sales at various stores. Briggs "moonlighted" for jewelers where she would "set stones, do waxes." Prior to their separation, Briggs and her husband owned and operated a jewelry store. Briggs also testified to the following: (1) she was 59 at the time of trial; (2) she has three sisters and one brother, of which she is a middle child; (3) she resided in San Antonio most of her life; (4) in 2007, she moved to Atascosa, Texas, when she separated from her husband; (5) she has no children; and (6) she has no other criminal history.
It is undisputed that bond was originally set on this case at $100,000 and that Briggs initially made bond. Nothing in the record indicates that Briggs failed to comply with the conditions of her bond while awaiting trial. Since the date of her sentence approximately five years ago, Briggs has been incarcerated and has apparently been unable to earn an income, although she has not claimed indigent status.
With respect to the likelihood that the Texas Court of Criminal Appeals will reverse our decision, if petitioned to do so, we are respectfully hesitant to predict the high court's disposition of such a petition. We will go only so far as to say we remain confident that our decision that Briggs's plea was involuntary is correct under the law. Nonetheless, if this case is remanded for a new trial, it is likely the State will retry the case. And nothing in our opinion suggests that the State's likelihood of conviction on retrial would be materially diminished, except to the extent that the trial court would suppress the blood-alcohol evidence. Given these considerations, Briggs's position now is much like her position was before trial, with the exception that she has been incarcerated for the past five years.
Briggs's pre-trial bail was set at $100,000. Considering the factors on which we have been provided information and endeavoring to strike a balance between ensuring Briggs's presence and avoiding oppressive bail, we GRANT Briggs's Motion for Bond Pending Appeal and set reasonable bail pending final determination of appeal at $50,000. See TEX. CODE CRIM. PROC. ANN. art. 44.04(h). The trial court must set any conditions on bail, and the trial court must approve any sureties on bail. See id. arts. 17.40-.49 (West, Westlaw through 2015 R.S.) (allowing a magistrate to set the conditions on bail), 44.04(h) (requiring the trial court to approve sureties); Leonard v. State, 376 S.W.3d 886, 890 (Tex. App.—Fort Worth 2012, pet. ref'd) (holding that the trial court has authority to set reasonable conditions for bail set under section 44.04(h)).
We direct the Bexar County District Clerk to file a copy of this order in trial court cause number 2011CR2567 in the 186th District Court of Bexar County.
IT IS SO ORDERED.
PER CURIAM Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 17th day of March, 2017.