Durst, Robert v. The State of Texas--Appeal from 212th District Court of Galveston County

Motion for Rehearing Granted; Opinion of June 1, 2004, Withdrawn; Reversed and Rendered and Majority and Dissenting Opinions on Motion for Rehearing filed August 24, 2004

Motion for Rehearing Granted; Opinion of June 1, 2004, Withdrawn; Reversed and Rendered and Majority and Dissenting Opinions on Motion for Rehearing filed August 24, 2004.

In The

Fourteenth Court of Appeals

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NOS. 14-03-01421-CR

14-03-01423-CR

14-04-00194-CR

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EX PARTE ROBERT DURST

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On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause Nos. 01CR1900, 01CR2007, & 04CR0323

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D I S S E N T I N G O P I N I O N

O N M O T I O N F O R R E H E A R I N G

I disagree with the decision of the majority to set bail in this case rather than to remand the matter for a redetermination by the trial court. If our opinion fails to give the trial court adequate guidance to set a constitutional bail amount, the deficiency should be corrected. Beyond that, the trial court has the same body of law to guide it as we have and considerably more experience in setting bail than we do. Moreover, the trial court has an important capability that we lack, namely, to conduct a further evidentiary hearing to develop a better factual record to support a new bail amount and perhaps tailor the non-monetary conditions of bail accordingly. For us to nevertheless conclude that we are in a better position than the trial court to reset bail suggests either a complete lack of confidence in the trial court, considerable presumptuousness on our part, or just a desire to elevate expedience over our more proper role of reviewing trial court determinations rather than making them ourselves.

/s/ Richard H. Edelman

Justice

Judgment rendered and Majority and Dissenting Opinions on Motion for Rehearing filed August 24, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore. (Fowler, J., majority.)

Publish C Tex. R. App. P. 47.2(b).