Opinion
08-23-00106-CR
12-16-2024
TERRENCE HARPER, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from the 186th Judicial District Court of Bexar County, Texas (TC# 2018-CR-13416)
Before Alley, C.J., Palafox and Soto, JJ.
ORDER
PER CURIAM.
On July 29, 2024, this Court reversed Appellant Terrence Harper's conviction for serious bodily injury to a child, holding that the trial court abused its discretion in refusing to allow Appellant's expert witness to testify by Zoom. Today, we deny the State's Motion for Rehearing. As a result of this now final reversal and remand for new trial, Appellant is "entitled to release on reasonable bail . . . pending final determination of an appeal by the state or the defendant on a motion for discretionary review." Tex. Code Crim. Proc. Ann. art. 44.04(h); Taylor v. State, 564 S.W.3d 501, 503 (Tex. App.-Houston [14th Dist.] 2018, no pet.). Appellant has filed a motion to reinstate his previous bond. Because no petition for discretionary review had yet been filed at the time Appellant filed his motion, the duty to determine the amount of bail falls to us. Tex. Code Crim. Proc. Ann. art 44.04(h).
Appellant requests that we set his bond at $150,000, the amount that he represents was the pre-trial bond in this case. Appellant alleges that he appeared at all his hearings in compliance with his pre-trial bond, that he would live with his parents, and that "[t]here are no safety factors or concerns with him living there." In response, the State urges us to consider the seriousness of the offense and the increased flight risk because of the possibility of a sentence as long as 99 years. In this Court, the State does not propose an amount it believes would be appropriate, but requested in the trial court that bail be set at $750,000. It also requests that, once bond is set, we remand to the trial court to set bond conditions.
The purpose of post-appeal bail, like pre-trial bail is to secure the presence of the accused at trial. Taylor, 564 S.W.3d at 503. Several factors are relevant in determining the amount of bail:
1. Bail and any conditions of bail shall be sufficient to give reasonable assurance that the undertaking will be complied with.
2. The power to require bail is not to be used to make bail and instrument of oppression.
3. The nature of the offense and the circumstances under which the offense was committed are to be considered….
4. The ability to make bail….
5. The future safety of a victim of the alleged offense, law enforcement, and the community shall be considered.
6. The criminal history record information for the defendant….
7. The citizenship status of the Defendant.Tex. Code Crim. Proc. Ann. art. 17.15(a)(1)-(7). Courts additionally consider work history, family and community ties, the defendant's length of residency, compliance with previous bond conditions, existence of other bonds, and aggravating circumstances related to the charges. Taylor, 564 S.W.3d at 504. Finally, recent legislative changes require that a public safety report be obtained and considered when making a bail determination. Tex. Code Crim. Proc. Ann. art. 17.021, 17.15(a)(6).
For bail after the reversal of a conviction, we also must consider (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 504.
Because our record was lacking to assess many of these factors, we remanded the case to the trial court and asked for its recommendations after a full hearing and consideration of the public safety report and the above factors. The trial court held such a hearing and entered its findings on November 26, 2024, the conclusion of which state:
9.After considering the Texas Code of Criminal Procedure Article 17.15 factors as well as the factors detailed in Taylor v. State, such as Appellant's family and community ties, compliance with previous bond conditions. and aggravating circumstances related to the charges, this court recommends Appellant's bail be set at an amount of$300,000. Tex. Code Crim. Proc. Ann. art. 17.15, Taylor v. State, 564 S.W.3d 50 I (Tex. App. 20 18).
10.Furthermore, this court would order the following conditions: full house arrest; no contact with any witnesses that testified at the previous trial or prospective witnesses made known to defense; no contact with any children under the age of 17; and if Appellant has a passport, he is to turn over his passport, if Appellant does not a passport, he is not allowed to apply for one.
This Court acknowledges the careful consideration demonstrated by the trial court and adopts its recommendation as its own with the exception that Appellant may have telephone or video call contact with family members under the age of 17 with the permission of the minor's guardian.
Having reviewed the record before us and the arguments of Appellant and the State, we set a cash or surety bond at $300,000.00.
Any further conditions on the bond such as reporting requirements, monitoring, or drug testing, will be set by the trial court in the exercise of its discretion, except that they should include: full house arrest; no contact with any witnesses that testified at the previous trial or prospective witnesses made known to defense; no contact with any children under the age of 17 as specified above; and if Appellant has a passport, he is to turn over his passport, if Appellant does not a passport, he is not allowed to apply for one. Any sureties on bail must be approved by the trial court as required by the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 44.04(h); Taylor, 564 S.W.3d at 505. As such, we refer all remaining bail matters to the trial court for further proceedings consistent with this order.
IT IS SO ORDERED.