Motion Granted; Order and Dissenting Opinion filed October 18, 2018.

In The 

Fourteenth Court of Appeals 

____________ 

NO. 14-15-01005-CR

NO. 14-15-01006-CR

____________ 

NATHAN RAY FOREMAN, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 177th District Court 

Harris County, Texas 

Trial Court Cause Nos. 1374837 & 1374838 

DISSENT TO EN BANC ORDER SETTING BAIL

 

I join Chief Justice Frost’s dissent to the order setting bail. I write separately 

also to express my disagreement with the majority’s order setting bail at $50,000 

bail per offense. 
2

Although appellant is entitled to bail under the statute, his motion contains no 

details as to why $50,000 is a “reasonable” amount. See Montalvo v. State, 786 

S.W.2d 710, 711 (Tex. Crim. App. 1989) (setting forth the factors for bail and then 

noting the applicant thoroughly detailed how he satisfied them). The majority’s order 

cites this court’s decision in Aviles and then discusses three primary factors. Aviles 

v. State, 26 S.W.3d 696, 698–99 (Tex. App.—Houston [14th Dist.] 2000, order). 

Other factors Aviles held should be considered are set forth in the order but they are 

not applied and appellant’s motion wholly failed to address them. See Tex. Code 

Crim. Proc. arts. 17.15, 44.04(h); Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex. 

Crim. App. [Panel op.] 1981). Appellant’s motion merely references the trial court’s 

order setting bail pre-trial in July 2015 at $50,000 for each offense. In Aviles, at the 

behest of this court, appellant supported his motion with evidence pertaining to those 

other factors and this court considered that evidence in determining the amount of 

bail. See Aviles, 26 S.W.3d at 701. Thus, the majority’s order is lacking even under 

Aviles. 

Furthermore, the majority sets post-trial bail at the same amount as pre-trial 

after concluding that “appellant’s position now is much like his position was before 

trial.” I disagree. At trial, both complainants identified appellant in court as the 

person “in charge” of their torture and kidnapping. While the complainants, who 

were hog-tied, were being transported they managed to escape and were shot at in 

the process. The complainants’ testimony as to the latter was corroborated by 

unimpeached eyewitness testimony. A vehicle was torched to destroy evidence.

None of this evidence is affected by the exclusion of the video.

The majority concludes that the “ability to retry appellant may be limited after 

exclusion of the video surveillance evidence.” Given the other evidence at trial, 

which is inexplicably discounted by the majority, I disagree. The video was used as 
3

evidence of appellant’s participation. Assuming the complainants are still available 

to testify, the lack of the video will not necessarily be dispositive.1 

Considering that the purpose of bail is to secure appellant’s presence for trial, 

the nature of the offenses and the circumstances under which it was committed, the 

future safety of the complainants, no evidence as to what amount of bail is 

reasonable, and the fact that appellant committed an offense while on bail before 

trial, I respectfully dissent to the amount of bail as set by the majority. See Tex. Code 

Crim. Proc. Ann. art. 17.15. 

 /s/ John Donovan 

 Justice 

En Banc Court consists of Chief Justice Frost and Justices Boyce, Christopher, 

Jamison, Busby, Donovan, Brown, Wise, and Jewell. (Brown, J. majority) (Frost, 

C.J., dissenting).

Publish — Tex. R. App. P. 47.2(b).

 

1 Appellant’s motion for bond and request for a ruling on that motion both refer to the 

complainants in this case as “admitted con artists” and suggests for that reason their evidence is 

insignificant. This court is routinely presented with evidence from witnesses engaged in criminal 

activities and we have consistently, and rightly, held that it is for the jury to determine their 

credibility.