In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00383-CR
JAMES HOWARD TAYLOR, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 355th District Court
Hood County, Texas
Trial Court No. CR12392, Honorable Ralph H. Walton, Jr., Presiding
September 23, 2014
ORDER
Before CAMPBELL, and HANCOCK and PIRTLE, JJ.
Appellant, James Howard Taylor, has filed a motion in which he requests that
this Court set reasonable bail pending final disposition of his appeal. We grant his
motion.
Appellant appealed his conviction by jury of the offense of assault on a family
member or a person with whom he had a dating relationship, which was elevated to a
third-degree felony due to a prior conviction for the same offense. See TEX. PENAL
CODE ANN. § 22.01(a)(1), (b)(2)(A) (West Supp. 2014). The punishment for the offense
was enhanced to that of a second-degree felony by virtue of proof of a prior felony
conviction. See id. § 12.42(a) (West Supp. 2014). As a result of this conviction,
appellant was sentenced to imprisonment for a period of twenty years and a $10,000
fine.
After concluding that the trial court committed reversible error in allowing the
State to introduce two prior convictions for assault on a family member during the guilt-
innocence phase of trial, we rendered judgment reversing the conviction and remanding
the cause for a new trial. See Taylor v. State, No. 07-13-00383-CR, 2014 Tex. App.
LEXIS 8750, at *12 (Tex. App.—Amarillo Aug. 8, 2014, no pet. h.).
By his motion, appellant requests that this Court issue an order releasing
appellant on his own recognizance. The State filed a response to appellant’s motion
requesting that this Court set appellant’s bail at $10,000, and specifically impose certain
restrictions including restraining appellant from having contact with the alleged victim,
restricting appellant from being at or near certain locations associated with the alleged
victim, imposing a home curfew on appellant, and prohibiting appellant from consuming
alcoholic beverages or illegal drugs.
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
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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.R. 209(c).
TEX. CODE CRIM. PROC. ANN. art. 44.04(h) (West 2006). So, 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.
While article 44.04(h) directs that the defendant be released on reasonable bail,
it does not specify the factors we are to consider when determining the appropriate
sum. 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.
Id. art. 17.15 (West 2005).
To set a bail that is sufficiently high to give reasonable assurance that appellant
will comply with the requirements that will arise in this proceeding while avoiding setting
bail so high that it might be oppressive, we must consider appellant's financial
resources. See id. In a declaration of inability to pay costs executed by appellant on
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August 21, 2014, appellant represented that he is currently incarcerated, has $0.11 in
his inmate trust account, and receives approximately $40.00 per month as gifts from
friends and relatives. However, on his pretrial bond, appellant swore that he owned
nonexempt property worth $10,000.
The State responds citing appellant’s criminal history as a basis for setting a
higher bail. As the State notes, appellant has been convicted of two prior family
violence offenses as well as a number of other offenses.
With respect to 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 in this case and will go only so far as to say that we
remain confident that our decision employed the proper standard of review and that the
admission of evidence of two prior convictions for family violence during guilt-innocence
constituted reversible error. Consequently, we are confident that our disposition of the
case was correct under the law.
Appellant's pretrial bail was originally set at a $10,000 personal recognizance
bond. We believe that this is a reasonable bail amount. It was sufficient assurance for
appellant to appear at the first trial and we have no reason to believe that it will not be
sufficient to ensure that appellant will comply with the requirements that will arise during
the pendency of this appeal. While the State requests the inclusion of certain terms and
conditions, we note that appellant’s pretrial bond did not include any of these terms and
conditions and, therefore, conclude that such are unnecessary to be included in bail
pending appeal. Considering the factors on which we have been provided information
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and endeavoring to strike a balance between ensuring appellant's presence and
avoiding oppressive bail, we GRANT appellant's motion for reasonable bail pending
final determination of appeal and order that appellant be released from incarceration on
his own recognizance with his bail set at $10,000.00. See TEX. CODE CRIM. PROC. ANN.
art. 44.04(h).
It is so ordered.
Per Curiam
Do not publish.
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James Howard Taylor v. State
Combined Opinion