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Delgado v. State

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DISSENT TO ORDER SETTING BAIL

We reversed Delgado’s second-degree-felony conviction for indecency with a child by sexual contact and remanded to the trial court. See TEX. PENAL CODE ANN. § 21.11(a)(1), (c)(1), (d) (Vernon 2003); Delgado v. State, No. 10-07-00077-CR, 2008 Tex. App. LEXIS 2827 (Tex. App.–Waco Apr. 16, 2008) (not designated for publication) (mem. op.). Delgado has filed a Motion for Reasonable Bail Pending Final Determination of Appeal. See TEX. CODE CRIM. PROC. ANN. art. 44.04(h) (Vernon 2006). The majority sets bail at $10,000, noting only, “The record shows that bail in the trial court was $10,000.” In limiting its consideration to what “bail in the trial court was,” the majority ignores what I believe to be the controlling constitutional provisions governing bail and the statutory provisions implementing them, as well as the case law interpreting those provisions. I dissent.

Delgado seeks bail under Texas Code of Criminal Procedure Article 44.04(h), which provides, “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 . . . pending final determination of an appeal . . . on a motion for discretionary review.” TEX. CODE CRIM. PROC. ANN. art. 44.04(h).

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