Nick Lee Griego v. State

Opinion

NO. 07-09-00206-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

SEPTEMBER 28, 2010

NICK LEE GRIEGO, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

 FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

NO. B17934-0902; HONORABLE EDWARD LEE SELF, JUDGE

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

ORDER

Appellant, Nick Lee Griego, has filed a motion in which he requests that this Court set reasonable bail pending final disposition of his appeal.  We grant his motion.

            On June 10, 2010, this Court issued its opinion concluding that there was legally insufficient evidence to sustain appellant’s conviction for third-degree felony evading arrest or detention using a vehicle and having been previously convicted of evading arrest or detention[1] and that there was factually insufficient evidence to sustain a state-jail felony conviction for evading arrest or detention using a vehicle.[2]  We rendered a judgment of acquittal as to the third-degree felony offense and remanded the cause for a new trial on the charges of the state-jail felony offense of evading arrest or detention using a vehicle.  See Griego v. State, 07-09-00206-CR, 2010 Tex.App. LEXIS 4430 (Tex. App.—Amarillo June 10, 2010, no pet. h.).   We overruled the State’s motion for rehearing on August 3, 2010.  Appellant filed in this Court his motion for reasonable bail pending final determination of his appeal on September 3, 2010.  On September 8, 2010, the State filed, and the Texas Court of Criminal Appeals granted, its motion for extension of time in which to file its petition for discretionary review.

            We are authorized to set bail upon request by an appellant in the following circumstances:

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. If the defendant requests bail after a petition for discretionary review has been filed, the Court of Criminal Appeals shall determine the amount of bail.  The sureties on the bail must be approved by the court where the trial was had.  The defendant's right to release under this subsection attaches immediately on the issuance of the Court of Appeals' final ruling as defined by Tex.Cr.App.R. 209(c).[3]

Tex. Code Crim. Proc. Ann. art. 44.04(h) (Vernon 2006).  So, having reversed appellant’s conviction and having been requested to set bail at a time prior to the filing of a petition for discretionary review, we have authority to consider appellant’s motion.

            Though article 44.04(h) directs that the defendant be released on reasonable bail under these circumstances, it does not specify the factors we are to consider when determining the appropriate sum.  We are not without guidance, however.  Certain general rules govern the amount of bail to be required:

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.

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.

Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon 2005).  Consistent with article 17.15’s general rules, the Texas Court of Criminal Appeals outlined more specific factors to be taken into consideration when determining reasonable bail: (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, as here, the issue is reasonable bail pending final determination of an appeal following a reversal by an appellate court, the Fourteenth Court of Appeals outlined additional, perhaps even more specifically-tailored, considerations:  (1) the fact that the conviction has been overturned; (2) the State’s ability (or inability) to retry the appellant; and (3) the likelihood that the decision of the court of appeals will be overturned.  See Aviles v. State, 26 S.W.3d 696, 699 (Tex.App.—Houston [14th Dist.] 2000, pet. ref’d).

            With these several considerations in mind, we turn to appellant’s motion.  Appellant’s motion provides very little new information that would aid in our determination.  He points out that he has been incarcerated since June 2009 and represents that he is in poor health and in need of medical care.  The record on direct appeal provides us with additional information.

            From the record, we observe that appellant’s criminal history is fairly significant.  As an adult, appellant has been charged with five offenses, ranging from the Class A misdemeanor of resisting arrest to the third-degree felony offense of tampering with evidence.  The other three offenses were state-jail felonies.

            In the instant case, appellant was originally charged with and convicted of another third-degree felony, but, on direct appeal of that conviction, the State conceded that its failure to introduce evidence of a prior evading arrest or detention conviction at the guilt-innocence phase of trial rendered the evidence legally insufficient to sustain a conviction for the third-degree felony offense.[4]  See Tex. Penal Code Ann. § 38.04(b)(2)(A).  The State urged us to find the evidence sufficient to sustain a conviction on the state-jail felony offense of evading arrest or detention using a motor vehicle.  See Haynes v. State, 273 S.W.3d 183, 184 (Tex.Crim.App. 2008) (authorizing us to reform the judgment to reflect that appellant was convicted of the state-jail felony if such offense was included in the jury charge and if the evidence was sufficient to support such conviction).  We found, instead, that the evidence was factually insufficient to support a conviction for the state-jail felony and remanded the cause for a new trial.  New trial was to be had on the state-jail felony allegations, not the third-degree felony charges.  Since the evidence was legally insufficient to sustain the conviction for the third-degree felony offense, we rendered a judgment of acquittal as to that offense.  The State may not retry appellant for the third-degree felony offense. 

            This observation leads to other relevant considerations: the length of sentence and the nature of the offense.  See Rubac, 611 S.W.2d at 849.  At a new trial on remand, the maximum grade of offense for which appellant could be convicted is a state-jail felony, meaning that the maximum term of imprisonment the base offense would carry is two years in a state-jail facility.  See Tex. Penal Code Ann. § 12.35(a) (Vernon Supp. 2010).  That is not to say, however, that the State will be unable to enhance punishment for the state-jail felony by properly employing any prior convictions.  Nonetheless, we note that the appellant will be retried, if he is retried, only on charges of a state-jail felony.  Not to minimize any attempt to avoid detention by police, we also note the offense with which appellant was charged is a nonviolent one.  Here, the State made no allegation that appellant used his car as a deadly weapon.  Nor was there any evidence of reckless or erratic driving.

            We also consider appellant’s financial resources.  See Rubac, 611 S.W.2d at 849.  In his affidavit of financial status executed prior to trial, appellant represented that he had a gross monthly income of $1,600.00 to $2,000.00 and monthly expenses ranging from $1,095.00 to $1,195.00.  Appellant was represented by appointed counsel both at trial and on appeal, suggesting that he was indigent.  In his motion, appellant maintains that he “is without funds to post a significant bond.”  Considering that appellant has been incarcerated for well over a year, we presume that his financial status has not improved. 

            Regarding appellant’s ties to the community of Plainview, we learn very little from the record.  Appellant’s brother is listed in the clerk’s record as an emergency contact, and the brother’s address is in Plainview.  The record does indicate that he has been in Hale County for a number of years.

            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 factually insufficient to sustain a conviction for the state-jail felony, and that our disposition of the case was correct under the law.  We do note, however, that decisions reversing a conviction on the basis of factual sufficiency may sometimes be perceived as dwelling very closely to territory belonging to the jury.

            Appellant’s pretrial bail was originally set at $5,000.00 but, it having been determined that such amount was insufficient, was increased to $10,000.00.  In his motion, he requests that this Court set bail at $1,000.00.  Considering the factors on which we have been provided information and endeavoring 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 bail pending final determination of appeal at $2,500.00.  See Tex. Code Crim. Proc. Ann. art. 44.04(h).

            IT IS SO ORDERED.

                                                                                                Per Curiam

Do not publish.  

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[1] See Tex. Penal Code Ann. § 38.04(b)(2)(A) (Vernon Supp. 2010).

[2] See id. § 38.04(b)(1)(B).

[3] As the Waco Court explained, the former Rule 209(c) of the Texas Rules of Post Trial and Appellate Procedure in Criminal Cases provided:

As used in these rules, ‘final ruling of the court’ means (1) the 16th day after the date of the delivery of the court's opinion or order where a motion for rehearing is permitted under Rule 208 but is not filed or rehearing is not granted on the court’s own motion, (2) the day after the date of the overruling of a motion for rehearing where a further motion for rehearing is not permitted under Rule 208, or (3) if a motion for rehearing pursuant to Rule 208(d) is granted, the day after the date of the disposition of the case on rehearing, whichever is later.

In re Keeter, 134 S.W.3d 250, 253 (Tex.App.—Waco 2003, orig. proceeding).

[4] With respect to the third-degree felony offense of evading arrest or detention having previously been convicted of evading arrest or detention, we reversed the judgment and rendered a judgment of acquittal.  So, we may and do consider that the State may not retry appellant for the third-degree felony offense.