Opinion
No. 07-03-0096-CR
June 16, 2004. DO NOT PUBLISH.
Appeal from the 140th District Court of Lubbock County, No. 2000-433,643, Hon. Jim Bob Darnell, Presiding.
Panel D: Before QUINN, REAVIS and CAMPBELL, JJ.
On Motion for Bail Pending Appeal
On May 10, 2004, this court issued its opinion and judgment reversing the conviction of Albert Cardona for manufacturing a controlled substance. Now before us is his motion for bail pending the State's appeal to the Court of Criminal Appeals. Statute provides that: "[i]f a conviction is reversed by a . . . Court of Appeals, the defendant, if in custody, is entitled to release on reasonable bail, regardless of the length of the term of imprisonment, pending final determination of an appeal . . . on a motion for discretionary review." TEX. CODE CRIM. PROC. ANN. art. 44.04(h) (Vernon Supp. 2004). Though the legislature directs that the defendant be released on reasonable bail, it does not specify the indicia to consider when determining that sum. Nonetheless, the goal of bail is to secure the presence of the accused. Aviles v. State, 26 S.W.3d 696, 698 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). And, to achieve that goal, bail has historically been set with an eye on various factors. They include such things as 1) the need to set bail at an amount sufficiently high to give reasonable assurance the applicant will honor his obligation to appear, 2) the duty to avoid oppression, 3) the nature of the offense and circumstance surrounding its commission, 4) the ability of the applicant to make bail, 5) the future safety of any victims of the offense and of the community, 6) the defendant's work record, 7) the defendant's community and family ties, 8) the defendant's length of residency, 9) the defendant's prior criminal record, 10) the defendant's conformity with prior bond conditions, 11) the existence of other outstanding bonds, 12) aggravating circumstances, if any, involved in the charge, 13) the length of sentence, 14) the fact that the conviction was overturned, 15) the State's ability to retry the applicant, and 16) the likelihood that our decision will be overturned. Id.; See TEX. CODE CRIM. PROC. ANN. art. 17.15 (Vernon Supp. 2004) (specifying various factors to consider); Ex parte Rubac, 611 S.W.2d 848 (Tex.Crim.App. 1981) (specifying factors to consider). We consider these indicia with regard to the pending application for bail. As previously mentioned, appellant received a sentence of 30 years imprisonment for manufacturing a controlled substance, namely methamphetamine, a felony of the first degree. And, though the indictment mentioned that the quantity of methamphetamine involved was from four to 200 grams, more than 1300 (or a bit less than three pounds) was actually involved. Moreover, this was not appellant's first conviction. He had previously been convicted once for possessing less than 28 grams of methamphetamine (a felony of the second degree) and twice for driving while intoxicated. According to an affidavit of his mother that accompanied the application, appellant has siblings in Texas, but only one lives in Lubbock. And, though the affiant states that her family was emotionally supportive of appellant while undergoing prosecution and during his incarceration, she did not describe the extent of the support extended or the support (moral, financial, social or otherwise) they would extend to him should he be released on bail. Regarding appellant's habitation should he make bail, the affiant does posit that her son " wants to return to [her] home and live with [her] in O'Donnell and resume life with his family." (Emphasis added). Whether she agreed to this arrangement goes unmentioned, however, as does indicia indicating whether it is economically or realistically feasible. Similarly unmentioned is whether appellant has or would have a place to live should any arrangement with his mother not come to fruition. Nor does appellant or the affiant address the likelihood of him obtaining gainful employment upon his release or having employment waiting for him. As to the matter of a bond being financially oppressive, no one describes the extent of appellant's assets or those of the people who may assist him in making bond. At most, the affiant simply states that her son complied with the terms of the $1500 bond issued prior to conviction and that bail in the sum of $1500 again would be "sufficient." Whether $1500 is a sum imposing on appellant sufficient financial inducement to appear in court is not something we can determine from the documentation before us. Yet, we are told that he has no other outstanding bonds at this time. As to any evidence of future dangerousness, appellant's mother states that he "would not be a future threat to the safety of anyone or the community at large." Yet, that statement is a mere conclusion. On the other hand, we have before us evidence of appellant's long term involvement in drugs and, most recently, the drug trade. Given that he has taken to manufacturing methamphetamine in quantities indicative of an intent to sell, that poses a threat to the community. Finally, we did overturn the conviction, but not on the basis of his innocence. Rather, the evidence establishing his actual guilt was obtained through a faulty search and seizure. Whether he can be retried if our opinion stands is not something which the State addresses in its response to the motion for bond. And, while we remain convinced that our holding is founded upon established authority and well reasoned deduction from that authority, we must also acknowledge that issues such as these are determined on a case by case basis. In short, there is seldom a clear or bright line in the realm of search and seizure. His facing a 30-year sentence if our decision is held to be wrong, the nature of his criminal conduct, the minimal evidence regarding the strength of any ties between appellant and his family and community, the quantity of methamphetamine involved, his history with drugs, the evidence of his guilt (assuming our decision is not upheld), and the lack of a bright line in the realm of search and seizure lead us to conclude that appellant may well be a flight risk. Nonetheless, statute grants him the right to bail pending consideration of the dispute by the Texas Court of Criminal Appeals. To assure his presence at any future legal proceeding, we conclude that a reasonable bail is $200,000. Consequently, we grant the motion and order appellant's release from jail upon his posting bond of $200,000 with good and sufficient sureties as provided by law.
The State informed the court of its intent to petition the Court of Criminal Appeals for discretionary review.