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 138th 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In an unpublished memorandum opinion, we reversed appellant Antonio Santos’s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 our
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 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. . . .
TEX. CODE CRIM. PROC. ANN. 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
conviction 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 . . . pending
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 is entitled to have this
Court set bail pending final disposition of the appeal so long as the request is made prior
to a petition for discretionary review being filed. Id.; TEX. CODE CRIM. PROC. ANN. 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 discretionary 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 TEX. CODE CRIM.
PROC ANN. art. 44.04(h). However, appellant did not do so. The court of criminal appeals
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has made a final determination on the State’s petition for discretionary review. Our
mandate is now due.
The Legislature’s express language provides a specific time frame for 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 TEX. CODE CRIM. PROC. art. 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.” TEX. R. APP. P. 51.2(c); TEX. CODE CRIM. PROC. ANN. art.
44.29(a). Appellant 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.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
2nd day of November, 2018.
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