Opinion by: Sandee Bryan Marion, Chief Justice

MEMORANDUM OPINION

From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2017-CR-12773C
The Honorable Andrew Wyatt Carruthers, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice AFFIRMED

Emmanuel Herrera appeals the trial court's order increasing the amount of his pre-trial bond based on the State's motion to revoke and denying his application for writ of habeas corpus requesting a reduction in the amount of his bond. We dismiss Herrera's complaint regarding the trial court's order increasing the amount of his pre-trial bond for lack of jurisdiction, and we affirm the trial court's order denying his habeas application.

BACKGROUND

Herrera was initially charged with the offense of murder. Herrera was arrested but was released after posting a $100,000 bond.

After the case was presented to the grand jury, the grand jury returned a true bill of indictment for the offense of capital murder, and the State filed a motion to revoke Herrera's bond, asserting Herrera should be held without bond because he had been indicted for capital murder. The trial court signed an order granting the State's motion by increasing the bond to $500,000. The following is the complete text of the reporter's record from the December 15, 2017 hearing on the State's motion:

(Open court, defendants not present defense counsel not present)

THE COURT: Okay, let me get on record. The Court has received referral orders from the 399th District Court on motions to raise bond in the following cases:
2017-CR-12773A, the State of Texas versus Michael Aguilar. In that case I will raise the bond to $500,000 and order a warrant to be issued for the defendant's arrest on that bond.
In 2017-CR12773C, the State of Texas versus Emmanuel Herrera, I set the bond at $500,000 and order a bond — I'm sorry. Order that a warrant be issued for the arrest of Emmanuel Herrera under the $500,000 bond. Thank you.

MS. FLADER [representing the State]: Thank you, Judge.

After Herrera was arrested on the $500,000 bond, he filed an application for writ of habeas corpus on December 18, 2017, asserting the $500,000 bond was excessive and seeking a reduction in his bail. At the December 18, 2017 hearing on Herrera's habeas application, Herrera's attorney provided the trial court with a "timeline of the case." Herrera's attorney stated the offense occurred on October 16, 2017, and Herrera was arrested on October 20, 2017 and charged with murder. The magistrate set bond at $100,000, and Herrera was released from jail on October 26, 2017. The conditions of bond set by the magistrate included GPS and full house arrest monitoring. Herrera's attorney noted Herrera had not committed any violation of his bond conditions during the five or six weeks he was free on bond until the grand jury indicted him for capital murder on November 29, 2017. Herrera's attorney further noted no evidence was introduced at the hearing at which the trial court increased the bond from $100,000 to $500,000 and commented the hearing was supposed to be on a motion to remand Herrera without bond not a motion to increase bond. Because no evidence was considered, Herrera's attorney requested that the original bond be reinstated.

The prosecutor responded the motion to revoke was filed based on the dangerous nature of a capital murder defendant and a concern for the defendant fleeing. The State's concern was based on the increase in the punishment range for a capital murder to either the death penalty or life without possibility of parole. The State again requested the trial court to remand Herrera without bond or to keep the bond at $500,000.

At the conclusion of the hearing, the trial court denied the State's request to remand Herrera without bond and also denied Herrera's habeas application leaving the bond set at $500,000. Herrera appeals.

MOTION TO REVOKE

In his first two issues Herrera challenges the trial court's order increasing his bond from $100,000 to $500,000, asserting the trial court violated his due process rights by conducting the hearing ex parte and increasing his bond without any evidence submitted by the State. The State responds that this court does not have jurisdiction to review the order. We agree with the State.

"This court's jurisdiction is derived from the Constitution of the State of Texas, which provides that the courts of appeals have appellate jurisdiction 'under such restrictions and regulations as may be prescribed by law.'" Sanchez v. State, 340 S.W.3d 848, 849 (Tex. App.—San Antonio 2011, no pet.) (quoting TEX. CONST. art. V, § 6(a)). "'It is axiomatic that a party may appeal only that which the Legislature has authorized.'" Id. (quoting Olowosuko v. State, 826 S.W.2d 940, 941 (Tex. Crim. App. 1992)). Accordingly, we "'do not have jurisdiction to review interlocutory orders unless that jurisdiction has been expressly granted by law.'" Id. (quoting Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991)).

Both this court and several of our sister courts have recognized courts of appeal do not have jurisdiction to consider an interlocutory pretrial order involving bail, including orders granting a motion to increase bail, because that jurisdiction has not been expressly granted by statute. See Perkins v. State, No. 04-16-00046-CR, 2016 WL 2585638, at *1 (Tex. App.—San Antonio May 4, 2016, no pet.) (mem. op., not designated for publication) (holding court lacked jurisdiction to consider appeal from order granting State's motion to amend the amount and conditions of a defendant's pretrial bond); Sanchez, 340 S.W.3d at 850 (noting "five of our sister courts have concluded that because there is no express statutory authorization, there is no right to an interlocutory appeal of a pretrial order raising bail or denying a motion to reduce bail"); Keaton v. State, 294 S.W.3d 870, 873 (Tex. App.—Beaumont 2009, no pet.) (holding "Legislature did not provide appellate jurisdiction over a direct appeal from an interlocutory pretrial order involving bail"); McCarver v. State, 257 S.W.3d 512, 515 (Tex. App.—Texarkana 2008, no pet.) (same); Benford v. State, 994 S.W.2d 404, 405, 409 (Tex. App.—Waco 1999, no pet.) (holding court lacked jurisdiction to consider an appeal of an order granting the State's motion to increase the amount of pre-trial bail); Ex parte Shumake, 953 S.W.2d 842, 843 (Tex. App.—Austin 1997, no pet.) (same). Because Herrera's first and second issues seek to appeal the trial court's order increasing the amount of his pretrial bond, we do not have jurisdiction to consider those issues.

EXCESSIVE BAIL

In his third, fourth, and fifth issues, Herrera contends the trial court erred in denying his habeas application seeking a reduction in the $500,000 bail. The State responds Herrera failed to meet his burden to prove he was entitled to a lower bail and the trial court did not abuse its discretion in denying Herrera's request.

We review a trial court's denial of a habeas application seeking a reduction in bail under an abuse of discretion standard to determine if the trial court acted without reference to any guiding rules or principles, or otherwise acted in an arbitrary or unreasonable manner. See Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. 1981); Ex parte Nimnicht, 467 S.W.3d 64, 66 (Tex. App.—San Antonio 2015, no pet.). We will reverse the trial court's order only if the ruling is outside the zone of reasonable disagreement. Ex parte Nimnicht, 467 S.W.3d at 66.

"The burden of proof is on petitioner for reduction in bail to show that bail set is excessive." Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977); see also Ex parte Ninmicht, 467 S.W.3d at 66. "The primary object or purpose of an appearance bond is to secure the presence of the defendant in court upon the trial of the accusation against him." Ex parte Vasquez, 558 S.W.2d at 479; see also Ex parte Ninmicht, 467 S.W.3d at 66. To meet this objective, the Texas Code of Criminal Procedure sets forth the following rules governing the amount of bail to be required in any case:

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.

"[W]hen considering the nature of the offense in setting bail, the punishment permitted by law may be considered." Ex parte Vasquez, 558 S.W.2d at 480. In this case, the nature of the offense is capital murder which carries a punishment of life imprisonment or death. Herrera offered no evidence regarding the circumstances under which the offense was committed. In fact, Herrera did not offer any evidence but only the argument presented by his attorney that he had complied with all of the conditions of his $100,000 bond. Although it appears from his attorney's arguments that Herrera is unable to post a $500,000 bond and Herrera's "indigency is a circumstance to be considered," his indigence "is not a controlling circumstance nor the sole criterion in determining the amount of bail." Id.

In his brief, Herrera cites numerous capital murder cases in which the appellate courts reversed even lower bond amounts. Based on those cases, Herrera argues the trial court abused its discretion in refusing to lower his bond. In an effort to compare the facts in those cases to the instant case, Herrera asserts he "has never been a flight risk," "was arrested without incident," "does not have a history of violence," "has been a lifelong resident of San Antonio," "has no prior criminal history, and "never threatened to leave San Antonio." Because Herrera did not present any evidence at the hearing on his application, however, the record contains no evidence to support his assertions. Herrera further asserts the circumstances in this case are less extreme than the circumstances in the cited cases. Again, however, no evidence was presented regarding the circumstances of Herrera's capital murder offense. In response to Herrera's argument, the State cites numerous capital murder cases holding the trial court did not abuse its discretion in setting a bond in excess of $500,000. Whether the trial court abused its discretion in the cases cited by Herrera and the State turned on the evidence presented in those cases. In the absence of any evidence presented by Herrera in this case, we cannot hold the trial court abused its discretion in denying Herrera's habeas application.

CONCLUSION

The trial court's order is affirmed.

Sandee Bryan Marion, Chief Justice DO NOT PUBLISH