ACCEPTED 01-12-00688-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 1/13/2015 2:11:07 PM CHRISTOPHER PRINE No. 01-12-00688-CR CLERK
In the Court of Appeals FILED IN For the 1st COURT OF APPEALS First District of Texas HOUSTON, TEXAS At Houston 1/13/2015 2:11:07 PM CHRISTOPHER A. PRINE Clerk
No. 1348372 In the 178th District Court Of Harris County, Texas Raul Rodriguez Appellant v. The State of Texas Appellee State’s Reply in Opposition to Appellant’s Request for $10,000 Bond
DEVON ANDERSON District Attorney Harris County, Texas
KELLI JOHNSON DONNA LOGAN Assistant District Attorney Harris County, Texas
CLINTON A. MORGAN Assistant District Attorney Harris County, Texas State Bar No. 24071454 morgan_clinton@dao.hctx.net
1201 Franklin, Suite 600 Houston, Texas 77002 Tel: (713) 755-5826 FAX: (713) 755-5809
Counsel for the Appellee To the Honorable Court of Appeals:
Introduction
A jury found the appellant guilty of murder. (CR 2376, 2393). This Court
overturned that conviction because it found that the appellant was harmed by
an erroneous jury instruction regarding the law of self-defense. Rodriguez v.
State, ___ S.W.3d ___, 2014 WL 7205226 (Tex. App.—Houston [1st Dist.], no pet.
h.). The State has filed a motion for extension of time to file a petition for
discretionary review with the Court of Criminal Appeals, but has not yet filed
the petition.
The appellant has requested that this Court, pursuant to Code of
Criminal Procedure Article 44.04(h) set his bail at $10,000. The State agrees
that the appellant is entitled to bail, but requests that this Court either set the
amount at $100,000, or briefly abate this case to the trial court to have a
hearing regarding the appropriate bail.
The law requires this Court to set bail, but appellate courts are ill- equipped to handle such matters.
Code of Criminal Procedure Article 44.04(h) entitles a defendant to
release on “reasonable bail” if his conviction has been reversed by a court of
appeals but the State seeks discretionary review from the Court of Criminal
1 Appeals. TEX. CODE CRIM. APP. art. 44.04(h). Prior to the filing of the petition, it
is the court of appeals’s responsibility to set the amount of bail. Ibid.
Courts of appeals have struggled with determining what factors to
consider when setting bail, and with good reason: Bail determinations are
fact-intensive inquiries and appellate courts are not equipped to make such
determinations. Often, appellate courts give deference to the amount of bail
set by the trial court prior to conviction, but by the time a conviction has been
reversed by an appellate court it will have been years since the trial court
made its pre-trial bail determination, and much will have changed in the
intervening time.
This Court has looked at numerous factors when determining what bail
to assess after a reversal: (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; (7)
aggravating circumstances alleged to have been involved in the charged
offense; (8) the nature of the offense; (9) the length of the sentence; (10) the
fact that the conviction has been overturned; (11) the State’s ability, if any, to
retry the defendant; and (12) the likelihood that the decision of the court of
appeals will be overturned. Werner v. State, 445 S.W.3d 301, 305 (Tex. App.— 2 Houston [1st Dist.] 2013, orig. proceeding) (citing Aviles v. State, 26 S.W.3d
696 (Tex. App.—Houston [14th Dist.] 2000, orig. proceeding)).
The first seven of those factors are essentially what the trial court used
to set pre-trial bail at $50,000. But that determination was made several years
ago. The appellant has alleged that some things have changed since then
because his wife divorced him and took all his money, but surely there have
been more changes in the appellant’s status than that. After two-and-a-half
years in prison, the appellant’s community ties, his work history, and his
length of residency would all be significantly different now. Now that the
appellant is divorced, this Court has little indication of where or with whom
the appellant would live.1 It would seem that regarding the first seven factors,
this Court would need to either rely on the trial court’s determinations from
when it set bond in 2010, or else abate the case for a new hearing.
The last five factors are the only ones on which this Court actually has
enough facts to make an informed determination. The offense was murder, and
the sentence was forty years’ confinement. The seriousness of the offense and
1 The appellant’s affidavit states that his mother, siblings, and adult children live in Texas, but it does not state where in Texas. Nor does it state whether any of those family members are willing or able to provide a suitable home for the appellant if he were released. The appellant’s claims to virtual indigence indicate that he would not be able to provide a home for himself. 3 the length of the sentence give the appellant a greater incentive to flee and
thus weigh in favor of a higher bail.
The fact that the case was reversed, while true, is of “no particular
significance” here because this Court’s opinion did not find the evidence
insufficient, nor did the opinion hold that any evidence should be excluded.
See Werner, 445 S.W.3d at 305-06.
Nothing in the record shows that the State will not be able to try the
appellant again. If it does so, moreover, based on the evidence in the record
conviction is a near certainty. On appeal, both parties agreed that the jury
charge in this case incorrectly stated the law of self-defense, but the State
argued that this was harmless error because, based on the evidence at trial,
the appellant’s use of force was not self-defense as a matter of law and self-
defense should not have been admitted to the jury at all. This Court did not
dispute the State’s observation. If this case were tried again on the exact same facts
and with a correct jury charge (which would not include a self-defense instruction),
there could be little doubt of the outcome.
The last factor regards the likelihood that this Court’s decision will be
reversed. The State believes that this factor is inappropriate and, instead, this Court
should look at the likelihood that the Court of Criminal Appeals will grant review.
Obviously this Court would not purposefully issue an opinion that it believed
4 would be reversed. Moreover, the State does not wish to use the appellant’s bond
request as an opportunity to needle this Court about its opinion. This Court ought
not be assessing the likelihood of reversal, as neither it nor the parties are fair
arbiters of that question, and this is not an appropriate setting for arguing such a
matter.
However, this Court is certainly qualified to look at its opinion and make an
objective determination of the likelihood of review being granted. The opinion in
this case was a 39-page published opinion reversing a murder conviction. Some of
the issues involved (namely self-defense law and concealed handgun laws) are
Free access — add to your briefcase to read the full text and ask questions with AI
ACCEPTED 01-12-00688-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 1/13/2015 2:11:07 PM CHRISTOPHER PRINE No. 01-12-00688-CR CLERK
In the Court of Appeals FILED IN For the 1st COURT OF APPEALS First District of Texas HOUSTON, TEXAS At Houston 1/13/2015 2:11:07 PM CHRISTOPHER A. PRINE Clerk
No. 1348372 In the 178th District Court Of Harris County, Texas Raul Rodriguez Appellant v. The State of Texas Appellee State’s Reply in Opposition to Appellant’s Request for $10,000 Bond
DEVON ANDERSON District Attorney Harris County, Texas
KELLI JOHNSON DONNA LOGAN Assistant District Attorney Harris County, Texas
CLINTON A. MORGAN Assistant District Attorney Harris County, Texas State Bar No. 24071454 morgan_clinton@dao.hctx.net
1201 Franklin, Suite 600 Houston, Texas 77002 Tel: (713) 755-5826 FAX: (713) 755-5809
Counsel for the Appellee To the Honorable Court of Appeals:
Introduction
A jury found the appellant guilty of murder. (CR 2376, 2393). This Court
overturned that conviction because it found that the appellant was harmed by
an erroneous jury instruction regarding the law of self-defense. Rodriguez v.
State, ___ S.W.3d ___, 2014 WL 7205226 (Tex. App.—Houston [1st Dist.], no pet.
h.). The State has filed a motion for extension of time to file a petition for
discretionary review with the Court of Criminal Appeals, but has not yet filed
the petition.
The appellant has requested that this Court, pursuant to Code of
Criminal Procedure Article 44.04(h) set his bail at $10,000. The State agrees
that the appellant is entitled to bail, but requests that this Court either set the
amount at $100,000, or briefly abate this case to the trial court to have a
hearing regarding the appropriate bail.
The law requires this Court to set bail, but appellate courts are ill- equipped to handle such matters.
Code of Criminal Procedure Article 44.04(h) entitles a defendant to
release on “reasonable bail” if his conviction has been reversed by a court of
appeals but the State seeks discretionary review from the Court of Criminal
1 Appeals. TEX. CODE CRIM. APP. art. 44.04(h). Prior to the filing of the petition, it
is the court of appeals’s responsibility to set the amount of bail. Ibid.
Courts of appeals have struggled with determining what factors to
consider when setting bail, and with good reason: Bail determinations are
fact-intensive inquiries and appellate courts are not equipped to make such
determinations. Often, appellate courts give deference to the amount of bail
set by the trial court prior to conviction, but by the time a conviction has been
reversed by an appellate court it will have been years since the trial court
made its pre-trial bail determination, and much will have changed in the
intervening time.
This Court has looked at numerous factors when determining what bail
to assess after a reversal: (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; (7)
aggravating circumstances alleged to have been involved in the charged
offense; (8) the nature of the offense; (9) the length of the sentence; (10) the
fact that the conviction has been overturned; (11) the State’s ability, if any, to
retry the defendant; and (12) the likelihood that the decision of the court of
appeals will be overturned. Werner v. State, 445 S.W.3d 301, 305 (Tex. App.— 2 Houston [1st Dist.] 2013, orig. proceeding) (citing Aviles v. State, 26 S.W.3d
696 (Tex. App.—Houston [14th Dist.] 2000, orig. proceeding)).
The first seven of those factors are essentially what the trial court used
to set pre-trial bail at $50,000. But that determination was made several years
ago. The appellant has alleged that some things have changed since then
because his wife divorced him and took all his money, but surely there have
been more changes in the appellant’s status than that. After two-and-a-half
years in prison, the appellant’s community ties, his work history, and his
length of residency would all be significantly different now. Now that the
appellant is divorced, this Court has little indication of where or with whom
the appellant would live.1 It would seem that regarding the first seven factors,
this Court would need to either rely on the trial court’s determinations from
when it set bond in 2010, or else abate the case for a new hearing.
The last five factors are the only ones on which this Court actually has
enough facts to make an informed determination. The offense was murder, and
the sentence was forty years’ confinement. The seriousness of the offense and
1 The appellant’s affidavit states that his mother, siblings, and adult children live in Texas, but it does not state where in Texas. Nor does it state whether any of those family members are willing or able to provide a suitable home for the appellant if he were released. The appellant’s claims to virtual indigence indicate that he would not be able to provide a home for himself. 3 the length of the sentence give the appellant a greater incentive to flee and
thus weigh in favor of a higher bail.
The fact that the case was reversed, while true, is of “no particular
significance” here because this Court’s opinion did not find the evidence
insufficient, nor did the opinion hold that any evidence should be excluded.
See Werner, 445 S.W.3d at 305-06.
Nothing in the record shows that the State will not be able to try the
appellant again. If it does so, moreover, based on the evidence in the record
conviction is a near certainty. On appeal, both parties agreed that the jury
charge in this case incorrectly stated the law of self-defense, but the State
argued that this was harmless error because, based on the evidence at trial,
the appellant’s use of force was not self-defense as a matter of law and self-
defense should not have been admitted to the jury at all. This Court did not
dispute the State’s observation. If this case were tried again on the exact same facts
and with a correct jury charge (which would not include a self-defense instruction),
there could be little doubt of the outcome.
The last factor regards the likelihood that this Court’s decision will be
reversed. The State believes that this factor is inappropriate and, instead, this Court
should look at the likelihood that the Court of Criminal Appeals will grant review.
Obviously this Court would not purposefully issue an opinion that it believed
4 would be reversed. Moreover, the State does not wish to use the appellant’s bond
request as an opportunity to needle this Court about its opinion. This Court ought
not be assessing the likelihood of reversal, as neither it nor the parties are fair
arbiters of that question, and this is not an appropriate setting for arguing such a
matter.
However, this Court is certainly qualified to look at its opinion and make an
objective determination of the likelihood of review being granted. The opinion in
this case was a 39-page published opinion reversing a murder conviction. Some of
the issues involved (namely self-defense law and concealed handgun laws) are
high-profile issues that attract a lot of attention. The Court’s ultimate holding in
this case was that the State could be estopped from making, and an appellate court
could refuse to consider, a harm argument that was inconsistent with the State’s
actions at trial; the State believes that, regardless of its correctness, this is a novel
holding with wide-ranging implications that the Court of Criminal Appeals will be
interested in reviewing. In the event that review is granted, this appeal will drag on
for at least another year without resolution.
In Werner, this Court set post-reversal bail at the same amount as the trial
court had set pre-trial bail. Werner, 445 S.W.3d at 306. It did so because it
determined that the post-trial factors did not significantly alter the appellant’s
position. Ibid.
5 In this case, the appellant’s pre-trial bail was set at $50,000, but all of the
post-trial factors weigh in favor of a higher bail. If this Court wishes to rely on the
trial court’s pre-trial determination of bail as a baseline for what bail should be
now — which seems to be the standard practice, even if it is questionable that
those old findings have much relevance to the present situation— the State would
ask that this Court double the appellant’s pre-trial bail and set bond at $100,000.
In the alternative, the State requests that this Court briefly remand the case
to the trial court for fact-findings and non-binding recommendations so that this
Court can make an informed decision based on current facts.
6 Conclusion
The State requests that this Court set the appellant’s bail at $100,000. In
the alternative, this Court should remand the case to the trial court in order
for the parties to hold a hearing and establish facts from which this Court
could set a reasonable bail.
/s/ C.A. Morgan CLINTON A. MORGAN Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002-1923 (713) 755-5826 Texas Bar No. 24071454
7 Certificate Service
I certify that I have requested that efile.txcourts.gov electronically serve
a copy of this brief to:
Neal Davis NDavis@SDRFirm.com
/s/ C.A. Morgan CLINTON A. MORGAN Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002-1923 (713) 755-5826 Texas Bar No. 24071454
Date: January 13, 2015