dissenting on order setting bail.
The primary goal in setting bail on appeal is to ensure that the defendant will be available for incarceration should the conviction be affirmed. See Ex parte Rubac, 611 S.W.2d 848, 849 (Tex.Crim.App. [Panel Op.] 1981). Therefore, any determination of the “reasonableness” of bail must be made in light of this purpose. See Valenciano v. State, 720 S.W.2d 523, 524 (Tex.Crim.App.1986). The Court of Criminal Appeals has devised certain factors to determine reasonable bail during a post-conviction appeal. See Ex parte Rubac, 611 S.W.2d at 849. The two primary factors are the (1) length of the sentence and (2) *702nature of the offense. See id. Additionally, the court has noted that the petitioner’s work history, ties to the community, ability to make bail, criminal record, and other bond or bail experiences may be considered. See id. at 849-50. There is little, if any, case law that specifically addresses the factors to be considered in setting bail during the period after an intermediate appellate court has reversed a conviction while the State is pursuing review in the Court of Criminal Appeals. Having concluded that the considerations after the intermediate court has overturned a conviction must be different from those relevant to determining bail pretrial or during the initial appeal, the majority today pronounces three new “primary factors” an intermediate court should consider in setting bail in addition to the well established Rubac factors and the rules of article 17.15 of the Texas Code of Criminal Procedure. These new “primary factors,” however, utterly fail to recognize that the chief purpose of bail following reversal of a conviction remains the same: to assure the presence of the defendant and his availability for incarceration if his sentence is ultimately upheld.
The first new “primary factor” the majority identifies — the fact that the conviction has been overturned — goes to eligibility for bail, not to the reasonableness of bail. The Texas Code of Criminal Procedure requires a court of appeals to grant reasonable bail upon a reversal of a conviction if bail is allowed for such a charge and the defendant requests bail before a petition for discretionary review is filed. See Tex.Code CrimProcAnn. art. 44.04(h) (Vernon Supp.2000). The State does not challenge appellant’s eligibility for bail under this provision. More importantly, reversal and remand of the conviction is not a valid consideration in determining the amount of bail; a reversal is a prerequisite to bail following a ruling by an intermediate appellate court. See id. Indeed, the only time a defendant is eligible for bail under article 44.04(h) is when his conviction has been overturned. Thus, elevating this statutory prerequisite to a “primary factor” to be considered in determining the amount of bail serves no purpose other than to weight the outcome in favor of the movanVdefendant. Simply stated, under the new standards the majority announces today, the defendant, if eligible for relief under article 44.04(h), will always satisfy one of the three “primary factors” the court is to consider in setting reasonable bail.
The second factor — the State’s ability to retry appellant — assumes that there is only one possible outcome in the Court of Criminal Appeals (affirmance) and totally ignores the fact that this court’s holding could be reversed and appellant’s lengthy sentence reinstated. Furthermore, an order effectively granting appellant’s motion to suppress evidence does not necessarily and automatically terminate the prosecution. In such a case, the defendant remains under indictment, the purpose of bail remains the same, and the defendant’s bail status is unchanged.
The third factor — -the likelihood that the decision will be overturned — focuses on the merits of the underlying case and not on the intended role of bail on appeal, which is to ensure the defendant’s availability for incarceration should his sentence be reinstated. It serves no purpose for an intermediate appellate court to handicap its chances of affirmance or reversal on subsequent review by a higher court. Engaging in an analysis based on appellate probabilities of affirmance or reversal is fraught with uncertainty and 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 majority perceives that setting bail in the same amount set pretrial and on appeal evinces a “lack of confidence in our original decision;” however, this perception is neither an accurate reflection of reality nor a cogent consideration in determining *703reasonable bail. First, the court is presumed to stand by its decision. It goes without saying that the result this court reached in the underlying case is, in this court’s view, the correct and most likely outcome in the higher court. Second, and more importantly, this court’s focus in setting bail should be on fulfilling the primary purpose of bail (to ensure the defendant’s availability for incarceration in the event his sentence is reinstated) and not on bolstering the soundness or logic of its decision in the underlying case. Third, setting a high bail amount in a case that the court has reversed and remanded for a new trial does not bespeak a lack of confidence in the holding but rather evinces a recognition of the realities of the appellate process, a process that is not yet complete and which could ultimately yield a reinstatement of appellant’s very lengthy prison sentence.
For these reasons, the majority’s pronouncement and adoption of the three new “primary factors” does not advance the legitimate ends and objectives of setting bail. A far better approach is to rely on generally accepted standards for setting reasonable bail pending appeal. According to this court’s opinion in Hughes v. State, 843 S.W.2d 236 (Tex.App.—Houston [14th Dist.] 1992, no pet.), the length of the sentence should be a primary factor considered in this analysis. 843 S.W.2d at 237. Here, appellant was sentenced to thirty-five years’ incarceration; thus, if this court’s opinion is reversed and appellant’s sentence is reinstated, he faces the certainty of spending a very long time in prison. This factor, coupled with the inherent uncertainty and risk of proceeding through the appellate process, clearly suggests a serious and compelling motivation to flee. This motivation, in turn, substantially impacts the primary goal of setting bail and supports bail in an amount that is sufficient to ensure appellant’s availability for incarceration should the higher court reverse our ruling. Nevertheless, the majority finds this factor of “decreased importance” and declines to give it “undue weight.” Citing to the language in article 44.04(h) that states a defendant must be released on reasonable bail “regardless of the length of term of imprisonment,” the majority concludes that the length of the sentence is no longer a primary consideration in determining reasonable bail. This statutory provision, however, speaks to the availability, not the amount, of reasonable bail. As noted, appellant’s eligibility for bail is not in issue. Furthermore, the majority’s refusal to recognize the length of the sentence as a primary factor in the bail analysis is inconsistent with at least one other intermediate appellate court that has considered the issue. See Dees v. State, 722 S.W.2d 209, 216 (Tex.App.-Corpus Christi 1986, pet. ref'd) (per curiam) (considering punishment assessed in setting bail after reversal of conviction).
The second factor to which great weight is generally accorded in the determination of reasonable bail is the nature of the offense. See Hughes, 843 S.W.2d at 237. We have noted “that cases involving offenses based on the illegal manufacture, transportation and sale of large quantities of drugs give rise to special considerations and often justify high pre-trial bonds.” Brown v. State, 11 S.W.3d 501, 503 (Tex.App.—Houston [14th Dist.] 2000, no pet.). This court and others have expressly noted that because drug-related activities usually require multiple transactions of a transitory nature, by the very nature of the operation, participants in the transport and sale of illegal drugs must be highly mobile. See id. at 503 (citing Ex parte Martinez-Velasco, 666 S.W.2d 613, 616 (Tex.App.—Houston [1st Dist.] 1984, no pet.)). Moreover, the large amount of cash required to effect these kinds of transactions suggests involvement of monied backers who may consider the cost of bail as a normal business expense, which they may be willing to forfeit and write off as one of the costs of operating this type of business. See id. (citing Ex Parte Willman, 695 S.W.2d 752, 753 (Tex.App.—Houston [1st Dist.] 1985, no pet.); Martinez-Velasco, 666 S.W.2d at *704616). Thus, in cases involving large quantities of illegal drugs, a high bond may be required to assure the presence of the defendant at trial. See id. (citing Ex Parte Willman, 695 S.W.2d at 753; Martinez-Velasco, 666 S.W.2d at 616). Consequently, high pre-trial bonds have been upheld on numerous occasions for offenses involving possession of large quantities of a controlled substance. See, e.g., Patterson v. State, 841 S.W.2d 534, 536 (Tex.App.—Houston [1st Dist.] 1992, pet. ref'd) (setting bond at $150,000 for one kilogram of cocaine); Ex parte Bonilla, 742 S.W.2d 743, 745 (Tex.App.—Houston [1st Dist.] 1987, no pet.) (setting bond at $250,000 for five kilograms of cocaine); Ex parte Willman, 695 S.W.2d at 754 (setting bond at $300,000 for two kilograms of cocaine); Ex parte Mudragon, 666 S.W.2d 617, 618 (Tex.App.—Houston [1st Dist.] 1984, no pet.) (setting bond at $250,000 for six kilograms of cocaine); Ex parte Martinez-Velasco, 666 S.W.2d at 617 (setting bond at $375,000 for six kilograms of cocaine).
In this case, appellant was convicted of possession with intent to deliver approximately sixty kilograms of cocaine with a street value of nearly $6,000,000, which is at least ten times the amount of controlled substance in each of the cited cases. Under these circumstances, there is great incentive for this court to set bail in an amount sufficiently high to ensure that appellant will be available to serve his sentence should it be reinstated in the future. However, the majority sets bail at $10,000, an amount which is nominal in a case charging such a serious drug offense. Indeed, in cases involving less serious offenses, bail is generally set at several times that amount. See, e.g., Kline v. State, 710 S.W.2d 717, 719 (Tex.App.—Houston [1st Dist.] 1986, pet. ref'd) (refusing to reduce a $500,000 appeal bond for the offense of misappropriating fiduciary property over the value of $10,000); Cuellar v. State, 985 S.W.2d 656, 657 (Tex.App.—Houston [1st Dist.] 1999, no pet.) (enforcing an appeal bond of $100,000 for theft of an amount greater than $200,000); Perez v. State, 897 S.W.2d 893, 898 (Tex.App.—San Antonio 1995, no pet.) (enforcing a $25,000 appeal bond for driving while intoxicated). Bail in the $10,000 range is more appropriate for crimes carrying much less severe penalties. See, e.g., Grady v. State, 962 S.W.2d 128, 132 (Tex.App.—Houston [1st Dist.] 1997, pet. ref'd) (enforcing a $10,000 appeal bond for driving while intoxicated); Read v. State, 959 S.W.2d 228, 230 (Tex.App.—Fort Worth 1998, no pet.) (setting appeal bond at $10,000 for driving while intoxicated); Dallas v. State, 945 S.W.2d 328, 329 (Tex.App.—Houston [1st Dist.] 1997), vacated on other grounds, 983 S.W.2d 276 (Tex.Crim.App.1998) (setting appeal bond at $10,000 for cruelty to animals). Setting bail in a nominal amount for a very serious drug offense involving millions of dollars of illegal narcotics does not further the goal of ensuring appellant’s availability for incarceration should his sentence be reinstated and is nearly tantamount to setting no bad at all.
While appellant shows ties to the community and a record of sustained employment, these factors are considered mere “supportive data” and, by traditional standards, do not weigh as heavily as the length of the sentence and the nature of the offense in determining the amount of bail. See Hughes, 843 S.W.2d at 237; see also Mudragon, 666 S.W.2d at 617 (finding that strong ties to the community would be insufficient to reduce bond below $250,-000). Appellant also relies on his assertion that he would not be able make bail above $10,000. However, this court has specifically noted that “the ability of an accused to post bail is a factor to be considered, but the inability to make the bail ... does not automatically render the bail excessive.” Maldonado v. State, 999 S.W.2d 91, 96 (Tex.App.—Houston [14th Dist.] 1999, pet. ref'd). Thus, ties to the community and inability to make a high bail are insufficient on their face to preclude setting a high bail amount.
*705Notably, this is the third time appellant has sought bail in connection with this offense. Both previous requests were made in the trial court, which is presumed to have considered these same factors in setting reasonable bail pretrial and pending appellant’s appeal to this court at $999,999. In setting bail in the nominal sum of $10,000, the majority points to no change in circumstances other than this court’s reversal and remand of appellant’s conviction. The majority reasons that if this court’s decision is upheld, retrial would be futile in light of this court’s finding that the evidence seized from appellant’s vehicle was illegally obtained and not admissible in any retrial for the charged offense. While the State essentially concedes that, as a practical matter under these circumstances, a retrial would be unlikely, the fact remains that appellant was not acquitted and the State has sought further review from a higher court. The appellate process is not over. Furthermore, assuming this court’s ruling is upheld, appellant will remain under indictment and will still be subject to further prosecution. For this reason, this court’s reversal and remand of appellant’s conviction when the State has sought further review does not impact the primary goal of setting bail in any significant way.
Considering the two generally accepted primary factors of the length of the sentence and the nature of the offense, coupled with the certainty of appellant’s lengthy incarceration should this court’s ruling be reversed, there is a strong motivation for appellant to flee pending further appeal. Although appellant has shown some ties to the community and alleges an inability to post a bond over $10,000, he has not provided any significant facts that outweigh the primary factors as established by existing case law or made any other showing to support reasonable bail in an amount that is less than the amount set on the two prior occasions. Therefore, the primary objective of setting bail is served by setting bail at or near the amount originally set in the trial court.