## NUMBER 13

- 15

- 00353

- CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

- EDINBURG

ANTONIO SANTOS

, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 138 th District Court

of Cameron County, Texas.



## ORDER

Before Chief Justice Valdez and Justices Rodriguez and Hinojosa

Order Per Curiam

In an unpublished memorandum opinion, we reversed appellant Antonio Santo s ’ s

conviction, and we remanded the case for a new trial. The State filed a petition for

discretionary review that was refused by the Texas Court of Criminal Appeals on

September 26, 2018. On October 16, 2018, appellant filed a motion to set bail with our2 Court requesting that we set a reasonable bail “during the pendency of this case. ”

Appellant claims that we may order bail as our mandate has not yet issued. We disagree.

Article 44.04(h) authorized a court of appeals to set bail under as follows:

If a c onviction 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.

. . .

T EX

. C ODE C RIM

. P ROC

. A NN . Art. 44.04(h) (West, Westlaw through 2017 1st C.S.).

As we read article 44.04 (h) , the Legislature intended for the appellant whose

convicti on is reversed to be released on bail before the case is final on appeal. Rojas v.

State , 830 S.W.2d 679, 680 (Tex. App.

— San Antonio 1992, no pet. ). The language

clearly states that such an appellant is “entitled to release on reasonable bail

. . . pendi ng

final determination of an appeal by the state or the defendant on a motion for discretionary

review.” Id. In addition, article 44.04(h) sets out that the appellant i s entitled to have this

Court set bail pending final disposition of the appeal so long as the request i s made prior

to a petition for discretionary revie w being filed. Id. ; T EX

. C ODE C RIM

. P ROC

. A NN . art.

44.04(h).

Here, appellant’s request for bail was not made while the case was pending in our

Court or prior to the State’s petition for d iscretionary review being filed. Once the State

filed its petition for discretionary review, it was incumbent for appellant to file a motion for

bail in the court of criminal appeals as set out in article 44.04(h). See T EX

. C ODE C RIM

.

P ROC A NN

. art. 44.0 4(h). However, appellant did not do so

. T he court of criminal appeals3 has made a final determination on the State’s petition for discretionary review. Our

mandate is now due.

T he Legislature ’s express language provides a specific time frame f or when we

may set bail following the reversal of a conviction. We conclude we may no longer set

bail in this case because the State filed a petition for discretionary review, and the cause

is no longer pending in this Court. See T EX

. C ODE C RIM

. P ROC . ar t. 44.04(h). Once our

mandate issues, “the cause shall stand as it would have stood” if the trial court had

granted a motion for new trial, and “if in custody and entitled to bail the defendant shall

be released upon giving bail.” T EX

. R. A PP

. P. 51.2(c) ; T EX

. C ODE C RIM

. P ROC

. A NN . art.

44.29(a). A ppellant should then seek bail from the trial court. Accordingly, we DENY

appellant’s motion to grant bail.

IT IS SO ORDERED.

PER CURIAM

Do not publish.

T EX

. R. A PP

. P. 47.2(b).

Delivered and fil ed the

2nd day of November , 2018

.