Edgar Munoz v. State ( 2020 )

Order issued April 23, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00882-CR
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EDGAR MUNOZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Case No. 1556775
ORDER ON MOTION TO SET BAIL
FOLLOWING REVERSAL OF CONVICTION
Appellant, Edgar Munoz, has filed a motion to set bail following this Court’s
reversal of his conviction and remand for a new trial.1 See TEX. CODE CRIM. PROC.
art. 44.04(h).
Texas Code of Criminal Procedure article 44.04(h) provides that, following
the reversal of a conviction, 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.” See id. The State has filed a response stating that it acknowledges that
appellant is entitled to reasonable bail.
In his motion, appellant notes that the trial court originally set his pre-trial bail
at $300,000 and then reduced it to $175,000. He requests that “this Court set his
bond at $50,000 but no higher than $175,000.” The State contends that, “at a
minimum, appellant’s bail should be set at $175,000.”
With respect to determining the appropriate sum,2 the primary purpose, both
pretrial and post-appeal, “is to secure the presence of the accused.” Werner v. State,
445 S.W.3d 301, 305 (Tex. App.—Houston [1st Dist.] 2013, order). We consider
the following factors:
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Munoz v. State, No. 01-18-00882-CR, 2020 WL 1584480 (Tex. App.—Houston [1st
Dist.] Apr. 2, 2020, no pet. h.) (mem. op.).
2
Because appellant filed his motion prior to the filing of a petition for review, this
Court is charged with determining the amount of bail. See TEX. CODE CRIM. PROC.
art. 44.04(h).
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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.
TEX. CODE CRIM. PROC. art. 17.15.
We further consider: (1) the defendant’s work record; (2) the defendant’s
family and community ties; (3) the defendant’s length of residency; (4) the
defendant’s prior criminal record; (5) the defendant’s conformity with previous bond
conditions; (6) the existence of any other outstanding bonds; and (7) any aggravating
factors involved in the charged offense. Werner, 445 S.W.3d at 305; see also Ex
parte Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim. App. [Panel Op.] 1981).
Here, the record shows that appellant was apprehended while in possession of
5,349 pounds of marijuana, with a street value of approximately $3,000,000. He
was indicted for the first-degree-felony offense of possession of marijuana in an
amount in excess of 2000 pounds. The record shows that appellant admitted to law
enforcement authorities that he was receiving payment in exchange for storing large
amounts of narcotics being shipped into the United States from Mexico. The State
argues that, based on his ties in facilitating the international transport of large
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amounts of narcotics, and because he is not a citizen of the United States, appellant
presents an elevated flight risk. The State notes that its case against appellant is
“incredibly strong” and that his conviction was reversed, not for lack of evidence of
his guilt, but based on ineffective assistance of counsel related to immigration
consequences. Thus, it asserts, when appellant is retried, there is a high likelihood
that he will be convicted, and he faces up to 99 years in prison. Appellant, in his
motion for bail, does not address this flight-risk concern. We otherwise note that
appellant has just one year of work history in the record. However, the record shows
that he has family ties in Harris County.
The trial court initially set appellant’s pre-trial bail at $300,000. After a
hearing, the trial court lowered appellant’s bail to $175,000, and he was able to post
a bond at this amount. The trial court, which had the ability to convene a hearing on
the article 17.15 factors, determined that $175,000 was an appropriate amount to
secure appellant’s appearance. See Werner, 445 S.W.3d at 306 (considering amount
of bail set before trial in setting bail under article 44.04(h)). Nothing in the record
suggests that appellant did not comply with any conditions imposed. See id.
Nothing presented in the motion or response suggests that appellant’s circumstances,
bearing on the above factors, have changed. Cf. id.
After considering appellant’s motion, the State’s response, and the applicable
law, we grant appellant’s motion.
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It is ORDERED that appellant’s bail is set in the amount of $175,000. Article
44.04(h) requires that the trial court approve any sureties on a bond. See TEX. CODE
CRIM. PROC. art. 44.04(h). In addition, the trial court may set reasonable terms and
conditions as appropriate. See id. art. 17.40; Werner, 445 S.W.3d at 306; Leonard
v. State, 376 S.W.3d 886, 890 (Tex. App.—Fort Worth 2012, pet. ref’d) (holding
that trial court has authority to set reasonable conditions on bail set under article
44.04(h)).
Harris County District Clerk, Marilyn Burgess, is directed to file a copy of
this order in trial court cause number 1556775 in the 176th District Court, Harris
County.
It is so ORDERED.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).
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