Opinion
NO. 03-14-00402-CR
12-16-2016
Rex Allen Nisbett, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
NO. 13-0481-K26, THE HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDINGORDER
PER CURIAM
On December 15, 2016, this Court issued its opinion concluding that there was insufficient evidence to sustain appellant's conviction for murder. Accordingly, we reversed the trial court's judgment of conviction and rendered a judgment of acquittal. Appellant has filed a motion for release on bail pending final determination on appeal. See Tex. Code Crim. Proc. art. 44.04(h) (entitling defendant to be released on reasonable bail pending final determination of appeal when conviction is reversed by court of appeals and requiring court of appeals to determine amount of bond before petition for discretionary review has been filed). We grant the motion.
The primary purpose of setting bond "is to secure the presence of the accused." Aviles v. State, 26 S.W.3d 696, 699 (Tex. App.—Houston [14th Dist.] 2000, order). When setting the amount of bail pending appeal, the Court of Criminal Appeals has determined that the "primary factors" to consider are "the length of the sentence and the nature of the offense." Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. 1981) (citations omitted); see also Tex. Code Crim Proc. art. 17.15 (providing rules for setting bail). Other factors to consider include the defendant's: "work record, family ties, . . . length of residency, ability to make the bond, prior criminal record, conformity with previous bond conditions, other outstanding bonds, and aggravating factors involved in the offense." Rubac, 611 S.W.2d at 849-50 (citations omitted). Further, after a conviction has been reversed, factors that courts of appeals have considered in setting the amount of bond include: "(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.
In his motion, appellant requests that this Court release him on a personal bond, or in the alternative, set reasonable bail in this case. He does not suggest what amount would be reasonable but states that he is now indigent because of his incarceration, is unemployed, and has no assets of consequence. He also points out that the State's ability to retry him is non-existent and argues that it is "very unlikely that the Court of Criminal Appeals will overturn the decision of this Court because the fact that there is no evidence to support the conviction has not and will not change." See id.
With regard to appellant's indigence, we observe that appellant was found to be indigent prior to trial and was appointed an attorney to represent him at trial and another to represent him throughout the appeal process. See Tex. Crim. Proc. Code art. 26.04. The record does not reflect a material change in his financial circumstances, see id. § 26.04(p) (providing that defendant determined by court to be indigent is presumed to remain indigent for remainder of proceedings in case unless material change in defendant's financial circumstances occurs), and his incarceration, both pretrial and post-conviction, can only have negatively impacted his financial ability to pay. Concerning the State's ability to retry appellant in this case, we agree with appellant's contention that the State lacks the ability to retry appellant in this case.
Finally, regarding the prospect of reversal of our decision, we, like our sister courts of appeals, are reluctant to predict the future actions of the Court of Criminal Appeals should discretionary review be sought, 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 Gomez v. State, No. 07-10-00116-CR, 2011 WL 1546861, at *2 (Tex. App.—Amarillo Apr. 25, 2011, order) ("With respect to the likelihood that the Texas Court of Criminal Appeals will reverse our decision, we are respectfully hesitant to predict the high court's disposition of a petition for discretionary review and will go only so far as to say that we remain confident that our decision employed the proper standard of review, that the evidence was insufficient to sustain a conviction for harassment of a public servant, and that our disposition of the case was correct under the law."); see also 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"); Avery v. State, No. 13-10-00339-CR, 2011 WL 1706544, at *3 (Tex. App.—Corpus Christi Apr. 29, 2011, order) (expressing same hesitation but asserting confidence that decision "employed the proper standard of review," that evidence was insufficient to sustain conviction, and that "disposition was correct under the law").
The trial court, which had the ability to convene a hearing on the factors listed in article 17.15, determined that $250,000 was an appropriate amount of bond to secure appellant's appearance pre-trial. Considering the relevant factors, we grant appellant's motion and set bond pending final determination of appeal at $250,000. See Tex. Code Crim. Proc. art. 44.04(h). Any conditions on bail must be set by the trial court, and any sureties on bail must be approved by the trial court. See id. arts. 17.40-.49 (allowing magistrate to set conditions on bail), 44.04(h) (requiring trial court to approve sureties); Leonard v. State, 376 S.W.3d 886, 890 (Tex. App.—Fort Worth 2012, pet. ref'd) (holding trial court has authority to set reasonable conditions for bail set under section 44.04(h)).
It is so ordered on December 16, 2016. Before Justices Puryear, Goodwin, and Field Do Not Publish