Avery v. State

Full title: BILLIE JEAN AVERY, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Thirteenth District, Corpus Christi — Edinburg

Date published: Apr 29, 2011

No. 13-10-00339-CR (Tex. App. Apr. 29, 2011)

Opinion

No. 13-10-00339-CR

Opinion delivered and filed April 29, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).

On Appeal from the 156th District Court of Bee County, Texas.

Before Chief Justice VALDEZ and Justices RODRIGUEZ and PERKES.

ORDER SETTING BAIL

Order PER CURIAM.

On March 31, 2011, this Court issued an opinion reversing Avery's conviction for knowingly attempting to obtain a controlled substance, namely Lortab, through use of a fraudulent prescription form. See Avery v. State, No. 13-10-00339-CR, 2011 Tex. App. LEXIS 2347, at *36 (Tex. App.-Corpus Christi Mar. 31, 2011, no pet. h.); see also TEX. HEALTH SAFETY CODE ANN. § 481.129(a)(5)(B) (West 2010). After we reversed her conviction, Avery filed a motion pursuant to article 44.04(h) of the code of criminal procedure asking this Court to set bail while the State determines whether it intends to appeal our decision. See TEX. CODE CRIM. PROC. ANN. art. 44.04(h) (West 2006). In her motion, Avery states that bail should be set at a maximum of $3,000. The State filed a response to Avery's motion arguing that we should set bail at $3,000, the amount of the bond set by the trial court. The State also noted that it intends to file a petition for discretionary review with the Texas Court of Criminal Appeals but has not done so yet. We GRANT Avery's motion and set bail at $3,000.

I. APPLICABLE LAW

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. P. 209(c).

Id. Therefore, because we have reversed Avery's conviction and because she requested to set bail at a time prior to the filing of a petition for discretionary review, we have authority to consider her motion. Though article 44.04(h) directs that Avery be released on reasonable bail under the circumstances in this case, it does not specify the factors we are to consider when determining the appropriate sum. Article 17.15 of the code of criminal procedure provides the following general rules regarding the amount of 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.

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.

Id. at art. 17.15 (West 2005). In addition to the factors mentioned in article 17.15, the court of criminal appeals has articulated the following factors to be considered: (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). The Fourteenth Court of Appeals has noted additional factors to consider: (1) the fact that the conviction has been overturned; (2) the State's ability (or inability) to retry 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) (order setting bail) (noting also that the primary goal when determining the proper amount of pre-trial and appeal bonds is to secure the presence of the accused).

II. ANALYSIS

With the above-mentioned considerations in mind, we turn to Avery's motion. In her motion, Avery notes that the trial court set her bond at $3,000; that she was convicted of the charged offense, a third-degree felony that was enhanced to first-degree-felony status under section 12.42(b) of the penal code, and that she was sentenced to twenty-five years' imprisonment. See TEX. PENAL CODE ANN. § 12.42(b) (West Supp. 2010). She also references her affidavit of indigency executed on November 10, 2009, in which she stated that: (1) she does not work; (2) she has no spouse; (3) she does not receive social security benefits; (4) the total amount of salary and benefits she receives from "AFDC, retirement, unemployment or food stamps" per month is $674; (5) she does not have any savings or checking accounts at a financial institution; (6) she does not own a home; (7) the cumulative value of her personal property is $160; and (8) she owes over $2,000 to various lending institutions. She also argues that her incarceration has worsened her financial situation. Thus, Avery does not appear to have the financial wherewithal to post a significant bond. Nevertheless, she did mention in her affidavit of indigency that she paid $300 on her bond and that she did not owe the bondsman any more money. Therefore, there is some evidence in the record demonstrating conformity with previous bond conditions. Avery asserts that the crime she was charged with is a non-violent, victimless crime. In addition, the record did not reflect that Avery intended to distribute the increased quantity of Lortab to others. We recognize that Avery has a criminal record, which includes several felony convictions — none of which were violent in nature. However, in light of those convictions, the trial court determined that only a $3,000 bond was necessary. In addition, regarding her ties to the community of Beeville, we learn very little from the record. With respect to the factors articulated in Aviles, we recognize that we have reversed Avery's conviction for knowingly obtaining an increased quantity of Lortab through use of a fraudulent prescription pad on sufficiency grounds, thus barring the State from retrying Avery for the alleged offense. Regarding 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, but the majority in the underlying Avery opinion is confident that their decision employed the proper standard of review, that the evidence was insufficient to sustain Avery's conviction under section 481.129(a)(5)(B) of the penal code, and that their disposition was correct under the law.¹ See TEX. HEALTH SAFETY CODE ANN. § 481.129(a)(5)(B); Aviles, 26 S.W.3d at 699; see also Griego v. State, No. 07-09-00206-CR, 2010 Tex. App. LEXIS 7874, at *9 (Tex. App.-Amarillo Sept. 28, 2010, no pet.) (mem. op., not designated for publication). Though we do not have information about each of the articulated factors in article 44.04(h) or Ex parte Rubac, we believe that sufficient evidence exists to determine a reasonable bond for Avery. See Montalvo v. State, 786 S.W.2d 710, 711 (Tex. Crim. App. 1989) ("While consideration of each of these itemized factors is not required, nor is the list necessarily exhaustive of factors that might be germain (sic) in a particular case under 44.04(h), we find that under the facts of this case[,] the allegations in his motion support a setting of bail as requested."); Watson v. State, 158 S.W.3d 647, 649 (Tex. App.-Waco 2005, order) ("The trial court determined that $10,000 was an appropriate amount of bail to secure Watson's presence at his first trial. Because little has changed since that time, we conclude that $10,000 remains an appropriate amount of bail."); Dees v. State, 722 S.W.2d 209, 216 (Tex. App.-Corpus Christi 1987, order) (per curiam) (considering only the nature of the crime and the punishment assessed in setting bail); see also Stephens v. State, No. 06-08-00022-CR, 2008 Tex. App. LEXIS 8306, at *1 (Tex. App.-Texarkana Nov. 5, 2008, order) (mem. op., not designated for publication) (considering only the nature of the crime, the level of bond set as a pre-trial bond by the trial court, and other unspecified circumstances in setting bond). Considering the factors on which we have been provided information and endeavoring to strike a balance between ensuring Avery's presence and avoiding oppressive bail, we GRANT Avery's motion and set bail pending final determination of appeal at $3,000. See TEX. CODE CRIM. PROC. ANN. arts. 17.15, 44.04(h); see also Ex parte Rubac, 611 S.W.2d at 849-50; Aviles, 26 S.W.3d at 698-99.