NO. 07-09-00206-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
AUGUST 15, 2011
NICK LEE GRIEGO, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B17934-0902; HONORABLE EDWARD LEE SELF, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
ORDER
Appellant, Nick Lee Griego, 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 originally appealed his conviction by jury of the third-degree felony offense of evading arrest or detention using a vehicle and having been previously convicted of evading arrest or detention. See Tex. Penal Code Ann. § 38.04(b)(2)(A) (West 2011). Following a complex procedural journey, appellant’s case was remanded to this Court with directions to reconsider the issues he raises in light of Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010). We have done so. See Griego v. State, 07-09-00206-CR, 2011 Tex. App. LEXIS 5477 (Tex.App.—Amarillo July 18, 2011, no pet. h.).
In our most recent opinion, we rendered a judgment of acquittal as to the third-degree felony offense because the State, admittedly, failed to introduce evidence that appellant had, in fact, been previously convicted of evading arrest or detention. Id. at *13–14. We then found that, based on our review of the evidence, there was insufficient evidence to support a finding that appellant was guilty of the state jail felony offense of evading arrest or detention using a motor vehicle and, therefore, declined to reform the judgment to reflect such a conviction. See Tex. Penal Code Ann. § 38.04(b)(1)(B); Griego, 2011 Tex. App. LEXIS 5477, at *31. We did, however, find that the evidence was sufficient to support a conviction for evading arrest or detention, a class B misdemeanor, and remanded the cause to the trial court for a new trial on punishment. See Griego, 2011 Tex. App. LEXIS 5477, at *35.
Appellant has filed in this Court his motion for reasonable bail pending final determination of his appeal. 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 as defined by Tex.Cr.App.R. 209(c).[1]
Tex. Code Crim. Proc. Ann. art. 44.04(h) (West 2007). 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.
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. We are not without guidance, 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.
Id. art. 17.15 (West 2005). Consistent with article 17.15’s general principles, the Texas Court of Criminal Appeals outlined more specific factors to be taken into consideration when determining reasonable bail: (1) the length of the sentence, (2) the nature of the offense, (3) work history, (4) family and community ties, (5) length of residency, (6) ability to make the bond, (7) criminal history, (8) conformity with previous bond conditions, (9) existence of other outstanding bonds, and (10) aggravating factors involved in the offense. Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex.Crim.App. 1981). When, as here, the issue is reasonable bail pending final determination of an appeal following a reversal by an appellate court, the Fourteenth Court of Appeals outlined additional, perhaps even more specifically-tailored, considerations: (1) the fact that the conviction has been overturned, (2) the State’s ability (or inability) to retry the appellant, and (3) the likelihood that the decision of the court of appeals will be overturned. See Aviles v. State, 26 S.W.3d 696, 699 (Tex.App.—Houston [14th Dist.] 2000, pet. ref’d).
With these several considerations in mind, we turn to appellant’s motion. Appellant’s motion provides very little new information that would aid in our determination. He points out that he has been incarcerated since June 2009 and represents that he is in poor health and in need of medical care. The record on direct appeal provides us with additional information.
From the record, we observe that appellant’s criminal history is fairly significant. As an adult, appellant has been charged with five offenses, ranging from the Class A misdemeanor of resisting arrest to the third-degree felony offense of tampering with evidence. The other three offenses were state jail felonies.
In the instant case, appellant was originally charged with and convicted of another third-degree felony, but the State conceded that its failure to introduce evidence of a prior evading arrest or detention conviction at the guilt-innocence phase of trial rendered the evidence insufficient to sustain a conviction for the third-degree felony offense. See Tex. Penal Code Ann. § 38.04(b)(2)(A). We agreed with the State’s concession, found the evidence insufficient, and rendered a judgment of acquittal as to the third-degree felony. The State urged us to find the evidence sufficient to sustain a conviction of the state jail felony offense of evading arrest or detention using a motor vehicle. See Haynes v. State, 273 S.W.3d 183, 184 (Tex.Crim.App. 2008) (authorizing us to reform the judgment to reflect that appellant was convicted of the state jail felony if such offense was included in the jury charge and if the evidence was sufficient to support such conviction). We found, instead, that the evidence was also insufficient to support a conviction for the state jail felony. We may and do consider the fact that the State may not retry appellant for the third-degree or state jail felony offense.
This observation leads to other relevant considerations: the length of sentence and the nature of the offense. See Rubac, 611 S.W.2d at 849. We determined that the evidence was sufficient to support the finding that appellant was guilty of the class B misdemeanor, the maximum punishment for which is 180 days’ confinement. See Tex. Penal Code Ann. § 12.22 (West 2011). As it stands, then, appellant has been incarcerated well beyond the unenhanced maximum sentence for the offense of a class B misdemeanor. That is not to say, however, that the State will be unable to enhance punishment for the misdemeanor offense by properly employing appellant’s prior convictions. Nonetheless, we note that enhancement of a class B misdemeanor effects not the maximum punishment, but only the minimum punishment, making it mandatory that a defendant spend at least thirty days in jail. See id. § 12.43(b) (West 2011). So, it remains that the time appellant has spent in jail has exceeded the maximum punishment for a class B misdemeanor.
Not to minimize any attempt to avoid detention by police, we also note the offense with which appellant was charged is a nonviolent one. Here, the State made no allegation that appellant used his car as a deadly weapon. Nor, as we have observed, was there any evidence of reckless or erratic driving.
We also consider appellant’s financial resources. See Rubac, 611 S.W.2d at 849. In his affidavit of financial status executed prior to trial, appellant represented that he had a gross monthly income of $1,600.00 to $2,000.00 and monthly expenses ranging from $1,095.00 to $1,195.00. Appellant was represented by appointed counsel both at trial and throughout the appeal process, suggesting that he was indigent. Considering that appellant has been incarcerated for over two years, we presume that his financial status has not improved. In an affidavit in support of his motion, appellant maintains that he is without money or property that could be sold to raise funds to post a bond on appeal in any amount, explaining that the only means he has of securing money for a bond is through assistance of his three brothers. His brothers have been able to garner $1,000.00 that they are prepared to use for appellant’s bail.
The record lends little assistance to our attempt to determine the nature and degree of appellant’s ties to the community of Plainview. From their separate affidavits, it would appear that appellant’s three brothers live in Norman, Oklahoma. The record indicates, however, that appellant has been in Hale County for a number of years.
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 under Brooks, that the evidence was insufficient to sustain a conviction for the third-degree or state jail felony, and that our disposition of the case was correct under the law. We do, however, note that the timing of this case in relation to the abrogation of factual sufficiency review in Brooks does lend a certain vulnerability to our disposition. That is, although the Brooks court noted that the standard is far from new, the application of a single evidentiary sufficiency standard in this case presents some room for interpretation and further development.
Appellant’s pretrial bail was originally set at $5,000.00 but, it having been determined that such amount was insufficient, was increased to $10,000.00. In his motion, he requests that this Court set bail at $1,000.00. Considering the 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 for Reasonable Bail Pending Final Determination of Appeal and set bail pending final determination of appeal at $1,500.00. See Tex. Code Crim. Proc. Ann. art. 44.04(h).
IT IS SO ORDERED.
Per Curiam
Do not publish.
[1] As the Waco Court explained, the former Rule 209(c) of the Texas Rules of Post Trial and Appellate Procedure in Criminal Cases provided:
As used in these rules, ‘final ruling of the court’ means (1) the 16th day after the date of the delivery of the court’s opinion or order where a motion for rehearing is permitted under Rule 208 but is not filed or rehearing is not granted on the court’s own motion, (2) the day after the date of the overruling of a motion for rehearing where a further motion for rehearing is not permitted under Rule 208, or (3) if a motion for rehearing pursuant to Rule 208(d) is granted, the day after the date of the disposition of the case on rehearing, whichever is later.
In re Keeter, 134 S.W.3d 250, 253 (Tex.App.—Waco 2003, orig. proceeding).