Nathan Ray FOREMAN, Appellant v. The STATE of Texas, Appellee

NO. 14-15-01005-CR NO. 14-15-01006-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed October 18, 2018

**ORDER**

PER CURIAM

On August 31, 2018, this court rendered its judgment reversing the trial court's judgment and remanding to the trial court for further proceedings.

On August 31, 2018, appellant, Nathan Foreman, filed a motion requesting this court to set reasonable bail. *See* Tex. Code Crim. Proc. Ann. art. 44.04(h). 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[.]

Tex. Code Crim. Proc. Ann. art. 44.04(h) (West 2018). 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. 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 (West 2015).

Appellant asks this court to set his bail at $50,000 per offense. Appellant notes *373that his original bail was set at $30,000 in 2013. The State filed motions to revoke appellant's bonds, which were granted on July 7, 2015. The trial court granted appellant's request for bail pending trial at $50,000. In support of his motion after remand appellant claims he has "attended every court proceeding through trial in these causes."

The State responded, asking this court to delay setting bail until after the time for motion for rehearing passed, which was September 17, 2018. The State has not file a motion for rehearing.

The primary purpose of setting bail, both pretrial and post-appeal, "is to secure the presence of the accused." *Aviles v. State* , 26 S.W.3d 696, 698 (Tex. App.-Houston [14th Dist.] 2000, order). In setting bail following reversal and remand in the court of appeals, "the primary factors that should be considered by the court of appeals are (1) the fact that the conviction has been overturned; (2) the State's ability, if any, to retry the appellant; and (3) the likelihood that the decision of the court of appeals will be overturned." *Id.* at 699.

With these considerations in mind, we turn to appellant's motion. Other than noting that appellant appeared at every court proceeding through trial, appellant's motion does not specifically address the factors set forth in article 17.15. Turning to the more specific factors to be considered after reversal and remand, appellant's conviction was reversed by this court, and evidence of the video surveillance was excluded as a result of our opinion. The State's ability to retry appellant may be limited after exclusion of the video surveillance evidence. Regarding the prospect of reversal of our decision, we, like our sister court of appeals, are reluctant to predict the future actions of the Court of Criminal Appeals should discretionary review be sought, but we are confident that our analysis was thorough and properly applied the correct standard of review, and that our disposition of the case is correct under the law. *See**Werner v. State* , 445 S.W.3d 301, 305 (Tex. App.-Houston [1st Dist.] 2013, order) (expressing same hesitation but indicating that "we have found no reason to conclude that the reasoning in our opinion is infirm").

Given these considerations, appellant's position now is much like his position was before trial. Accordingly, the trial court's decision on bail can guide us in considering the *Aviles* factors. *See**Werner* , 445 S.W.3d at 306 (considering the amount of bail set before trial in setting bail pursuant to article 44.04(h) ).

Before trial for aggravated kidnapping and aggravated robbery, appellant was released on $30,000 bail for each offense. While out on bail, appellant was arrested for a misdemeanor-unlawful carrying of a weapon, namely a firearm. The State filed a motion to revoke appellant's bail, which was granted. Appellant subsequently filed a motion for bail in which he requested bail in the amount of $30,000. The trial court set appellant's bail at $50,000.

The trial court, which had the ability to convene a hearing on the factors listed in article 17.15 of the Code of Criminal Procedure, determined that $50,000 was an appropriate amount of bail to secure appellant's appearance pretrial. Considering the relevant 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 and set bail pending final determination of appeal at $50,000 per offense. *See* Tex. Code Crim. Proc. art. 44.04(h). Any conditions on bail must be set by the trial court, and any sureties on bail must be approved by the trial court. *See id.* arts. 17.40-.49 (allowing *374magistrate to set conditions on bail), 44.04(h) (requiring trial court to approve sureties); *Leonard v. State* , 376 S.W.3d 886, 890 (Tex. App.-Fort Worth 2012, pet. ref'd) (holding trial court has authority to set reasonable conditions for bail set under section 44.04(h) ).

En Banc Court consists of Chief Justice Frost and Justices Boyce, Christopher, Jamison, Busby, Donovan, Brown, Wise, and Jewell.

**DISSENT TO EN BANC ORDER SETTING BAIL**

John Donovan, Justice

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.

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 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, *375and 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.

**DISSENT TO EN BANC ORDER SETTING BAIL**

Kem Thompson Frost, Chief Justice

Today the en banc court speaks for the first time on a topic few published opinions address: the factors to be considered in determining the amount of reasonable bail under Texas Code of Criminal Procedure article 44.04(h), a statute that applies after an intermediate court of appeals reverses a conviction.

Eighteen years ago in *Aviles v. State* , a panel of this court concluded that in making the 44.04(h) determination, courts primarily should consider three factors: (1) the fact that the conviction has been overturned; (2) the State's ability, if any, to retry the appellant; and (3) the likelihood that the decision of the court of appeals will be overturned (the " *Aviles* Factors").1 More than a decade before, the Court of Criminal Appeals, in *Montalvo v. State* , determined the amount of reasonable bail under article 44.04(h) without giving primary consideration to any of these factors.2 The legal standard the *Aviles* court created conflicts with the high court's *Montalvo* precedent. Instead of embracing the *Aviles* legal standard, today the en banc court should step away from the *Aviles* Factors and instead apply *Montalvo* 's multi-factor balancing test.3

*The Court of Criminal Appeals's Precedent in the Montalvo Case*

In *Montalvo* , the intermediate court of appeals reversed the defendant's conviction, and the defendant requested release on reasonable bail under article 44.04(h) after the State filed a petition for discretionary review by the Court of Criminal Appeals.4 Because the defendant requested release on reasonable bail after the State sought high-court review, article 44.04(h) required the Court of Criminal Appeals to determine the amount of reasonable bail.5 We stand in the same spot today, the bail-setting task having fallen to us instead of the high court because appellant filed the bail request before seeking high-court review.6

In considering reasonable bail, the *Montalvo* court listed, and the defendant thoroughly detailed, the following criteria: (1) the nature of the offense, (2) the ability to make bail, (3) defendant's prior criminal record, (4) defendant's employment record, (6) defendant's family and community ties, (7) the defendant's length of residency in the community.7 The *Montalvo* court stated that that other factors might be relevant in determining the amount of reasonable bail under article 44.04(h).8 Based on these factors, the *Montalvo* court found that $25,000 was a reasonable bail *376amount.9 In doing so, the *Montalvo* court did not state that courts should give primary consideration to any factors or that any factor was a primary factor.10

*This Court's Precedent in the Aviles Case*

The *Aviles* court, noting that it found no cases discussing how to determine the amount of reasonable bail under article 44.04(h),11 concluded that in making this determination, courts should consider the five factors listed in Code of Criminal Procedure article 17.15 (rules for fixing amount of bail),12 as well as the following factors: "(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, if any; and (7) aggravating circumstances alleged to have been involved in the charged offense."13 These parts of *Aviles* are consistent with *Montalvo* .14 But the part of *Aviles* that introduces the *Aviles* Factors15 conflicts with the *Montalvo* precedent because the Court of Criminal Appeals did not state that courts should give primary consideration to any factor.16

Significantly, the *Aviles* court did not cite, discuss, distinguish, or purport to apply the *Montalvo* opinion.17 The *Aviles* court did not even mention *Montalvo,* so *Aviles* is not an interpretation of *Montalvo* that is binding on panels of this court.18 Because *Aviles* conflicts with *Montalvo* , *Aviles* is not binding precedent in this court.19

The *Aviles* court created a new layer of factors for the 44.04(h) bail determination and then elevated those factors above all others.20 Because the *Aviles* framework is at odds with *Montalvo*21 and the *Montalvo* precedent is on point, this court should follow *Montalvo* rather than the *Aviles* -Factors holding from this court.22 And, that is not the only reason to step away from the *Aviles* model of bail-setting.

*377*The Aviles Factors*

Even if *Montalvo* did not stop this court from giving primary consideration to the *Aviles* Factors, the en banc court should not embrace the *Aviles* framework. Elevating the *Aviles* Factors above all other considerations does not yield the best legal standard in the context of a bail-amount determination under article 44.04(h).

The *Aviles* court did not cite any statutory authority or any case requiring the bail-setting court to give primary consideration to the *Aviles* Factors.23 All three factors fail in logic and application.

The first *Aviles* factor - the overturning of the conviction - goes to *eligibility* for bail, not to the *reasonableness* of bail. If a court of appeals reverses a judgment of conviction, the Texas Code of Criminal Procedure requires that, upon request, a defendant in custody must be released on reasonable bail pending final determination of an appeal by the state or the defendant on a petition for discretionary review.24 Though reversal of the conviction provides a defendant in custody with the opportunity to request release on reasonable bail, it is not a valid consideration in setting the amount of bail.25

Elevating article 44.04(h) 's statutory prerequisite for bail eligibility to a "primary factor" to be considered in fixing reasonable bail serves no purpose other than to weigh the outcome in favor of the defendant. Under the *Aviles* framework, the defendant, if eligible for relief under article 44.04(h), *always* will satisfy one of the three "primary factors" the court is to consider in setting reasonable bail. It makes no sense to make the reversal of the conviction a factor at all, let alone a primary factor.

The second primary factor under *Aviles* - the State's ability to retry appellant - assumes that affirmance is the only potential outcome in the Court of Criminal Appeals and ignores the possibility that the intermediate court's holding could be reversed and the defendant's sentence reinstated.

In setting the amount of reasonable bail at a small amount in the context of the case, the *Aviles* court pointed to no change in circumstances other than the panel's reversal of the conviction and remand for further proceedings.26 The *Aviles* court reasoned that if the panel's decision were upheld, retrial would be futile in light of the panel's finding that the evidence seized from Aviles's vehicle was illegally obtained and not admissible in any retrial for the charged offense.27 Yet, an order effectively granting a defendant's motion to suppress evidence does not necessarily and automatically terminate the prosecution. The defendant remains under indictment and the main purpose of bail - to ensure the defendant's presence at trial - remains the same. So, the defendant's bail status should not change based on the State's ability to retry the defendant. This factor invites the court to guess what might happen on retrial - to engage in the type of speculative and advisory musings the law usually condemns. Even if it were proper to consider this factor, no good reason exists to require that courts give primary consideration to it.

The third *Aviles* factor - the likelihood that the decision will be overturned - focuses on the merits of the underlying *378case and not on the intended role of bail on appeal. It serves no purpose for an intermediate appellate court to handicap its chances of affirmance or reversal upon review by a higher court. Gauging appellate probabilities places an intermediate court in the awkward position of publicly evaluating the strengths and weaknesses of its own analysis while the case is still moving through the appellate process.

The *Aviles* court reasoned that setting bail in the same amount set pretrial and on appeal evinces a "lack of confidence in [the court's] original decision,"28 a conclusion that neither accurately reflects reality nor produces a logical factor for determining reasonable bail. Today, the en banc court considers the prospect of reversal of its en banc decision and notes its reluctance "to predict the future actions of the Court of Criminal Appeals should discretionary review be sought."29 The en banc court then pronounces its confidence in its analysis, underscoring the thoroughness and correctness of its work product.30 Not surprisingly, no court applying *Aviles* ever has pronounced a lack of confidence in the court's decision or pointed out shortcomings in the court's review or analysis, though some (including today's en banc majority) have expressed reluctance to make the evaluation.31 No court - including the *Aviles* court - has explained why confidence in the court's own work should drive or even inform the determination of a reasonable bail amount.

The bench, the bar, and the public will presume that the court stands by its decision without the court saying so. And, if a court applying the third *Aviles* factor were to assess its work product as unlikely to be affirmed, that exercise would serve no purpose other than to undermine public confidence in our courts.

In setting a reasonable bail amount in a case in which this court has reversed the conviction, we must recognize the realities of the appellate process, a journey that is not yet over and that might end in reinstatement of a lengthy prison sentence. If the Court of Criminal Appeals declines to review our decision or upholds the en banc court's ruling, the appellant will remain under indictment and will be subject to further prosecution. This court should not give primary consideration to the likelihood that its decision on the merits of this appeal will be overturned. Even if it were proper to count this factor, no good reason exists to require that courts give primary consideration to it.

In sum, the *Aviles* framework has proven unworkable. It demands that courts give mere eligibility for bail primary consideration in setting the amount of bail. It invites courts to base an important decision on the court's best guess of uncertain future events. It commands courts to critique their own opinions before a case is over. And, it requires courts to give these assessments greater weight than anything else on the high court's list.

*Conclusion*

The Court of Criminal Appeals's *Montalvo* precedent is on point. This court's panel opinion holding that courts primarily *379should consider the *Aviles* Factors in setting bail under article 44.04(h) goes against *Montalvo* . The en banc court should follow *Montalvo* out of obedience to binding precedent. But, even if *Aviles* did not conflict with *Montalvo* , this court, sitting en banc, should decide today to abandon the *Aviles* framework - to stop giving primary consideration to the *Aviles* Factors in bail-amount determinations under article 44.04(h). *Montalvo* should carry the day. Because it does not, I respectfully dissent.

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.

1

*See**Aviles v. State* , 26 S.W.3d 696, 698-99 (Tex. App.-Houston [14th Dist.] 2000, published order).

2

*See**Montalvo v. State* , 786 S.W.2d 710, 710-11 (Tex. Crim. App. 1989).

3

*See**id.*

4

*See**id.*

5

*See* Tex. Code Crim. Proc. Ann. art. 44.04(h) (West, Westlaw through 2017 1st C.S.).

6

*See**id.*

7

*See**Montalvo* , 786 S.W.2d at 711.

8

*See**id.*

9

*See**id.*

10

*See**id.*

11

*See**Aviles* , 26 S.W.3d at 698.

12

Code of Criminal Procedure article 17.15, entitled "Rules for fixing amount of bail," recites the following "rules" for determining the bail amount:

> 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 (West, Westlaw through 2017 1st C.S.).

13

*Aviles* , 26 S.W.3d at 698.

14

*See**Montalvo* , 786 S.W.2d at 711.

15

*See**Aviles* , 26 S.W.3d at 699.

16

*See**Montalvo* , 786 S.W.2d at 711.

17

*See**Aviles* , 26 S.W.3d at 698-701.

18

*See**id.*

19

*See**Glassman v. Goodfriend* , 347 S.W.3d 772, 781 (Tex. App.-Houston [14th Dist.] 2011, pet. denied) (en banc).

20

*See**Aviles* , 26 S.W.3d at 698-99.

21

*See**Montalvo* , 786 S.W.2d at 711 ; *Aviles* , 26 S.W.3d at 698-99.

22

*See**Glassman* , 347 S.W.3d at 781 (explaining that this court is not bound by a prior holding of this court if the prior holding conflicts with a decision from a higher court that is on point).

23

*See**Aviles* , 26 S.W.3d at 698-99.

24

*See* Tex. Code Crim. Proc. Ann. art. 44.04(h).

25

*See id.*

26

*See**Aviles* , 26 S.W.3d at 698-99.

27

*See**id.* at 699.

28

*Id.* at 700.

29

*See**ante at* 3.

30

*See**ante at* 3-4.

31

*See**ante at* 3-4; *Werner v. State* , 445 S.W.3d 301, 305 (Tex. App.-Houston [1st Dist.] 2013, order) (citing Seventh Court of Appeals opinion and stating "[w]e share our sister courts' hesitation in predicting the Court of Criminal Appeals's future disposition. But we have found no reason to conclude that the reasoning in our opinion is infirm") (citation omitted).