No. 05-06-01366-CR.
Filed December 21, 2006. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 15th Judicial District Court Grayson County, Texas Trial Court Cause No. 054957-15
Before Justices Whittington, Moseley, and O'Neill Opinion By Justice O'Neill
MICHAEL J. O'NEILL, JUSTICE.
Sylvester Arredondo was arrested for indecency with a child, sexual contact. Appellant filed a pretrial application for writ of habeas corpus seeking reduction in the $100,000 pretrial bond. The trial judge denied appellant the relief he sought. In two issues, appellant contends his bail is excessive and the trial judge erred in not reducing the bond amount. We affirm the trial judge's order.
Background
The trial judge set a $100,000 pretrial bond. On September 12, 2006, appellant filed an application for writ of habeas corpus seeking a reduction in the pretrial bond amount. Appellant challenged the bond amount as excessive and in violation of the U.S. Constitution and section 13, article 1 of the Texas Constitution. On October 6, 2006, the trial court held a habeas corpus hearing, and after the hearing denied appellant's application for writ of habeas corpus. On direct examination, appellant's grandmother, Ida Nipper, testified appellant has lived in Grayson County for the last fifteen years. Nipper testified appellant does not have any money or assets such as a car, a residence, or other property he could liquidate to satisfy the $10,000 bond surety. Nipper testified no one will lend appellant money. Nipper testified appellant is a laborer who lays grass and performs maintenance. Nipper testified appellant is married with one child in common, and his wife has two other children. Nipper testified appellant's wife may be living with her mother, makes no money, has no assets, and owns no property. Nipper testified appellant's criminal history includes some non-felony criminal violations. Nipper testified she was aware of appellant's pending charges and could provide $1500 for appellant's bond. Nipper testified appellant has not failed to appear in the past, and she was sure appellant would comply with future court appearance dates. On cross-examination, Nipper testified appellant's past criminal history includes unlawful carrying of a weapon, possession of marijuana, and similar violations. Nipper testified HH is a six-year old female and is appellant's stepchild. Nipper testified she thought appellant, his wife, her two children and their child in common all lived together at the time of the alleged offense. Nipper testified she was not present during the time of the alleged offense. On direct examination, Willet Daniels, appellant's employer, testified she has known appellant approximately three years. Daniels testified appellant lays sod, loads trucks, and performs yard care at her office at $9 per hour. Daniels testified appellant's clothes are his only property. Daniels testified she is holding appellant's job at Kelly's Sod Sales, 4708 Texoma Parkaway, Denison, open for him. Daniels testified appellant would be working Monday through Friday from 8:00 a.m. to 5:00 p.m. Daniels testified children are not present at Kelly's very often, but are accompanied by their parents when at the retail business. Daniels testified appellant would live in a one bedroom apartment at Kelly's, and no one else lives there. On cross-examination, Daniels testified appellant is a valued employee, is very respectable, and the customers enjoy his presence at the business. Daniels testified she is aware of the charges against appellant but does not know about the evidence in the case or whether he committed the alleged offense. At the conclusion of the hearing, the trial court denied the relief sought in the application for writ of habeas corpus. Applicable Law
In reviewing the trial court's decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial court's ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003) (per curiam). We will uphold the ruling absent an abuse of discretion. Id. We afford almost total deference to the court's determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. Id. We afford the same amount of deference to the trial court's application of the law to the facts if the resolution of the ultimate questions turns on an evaluation of credibility and demeanor. Id. If the resolution of the ultimate questions turns on an application of legal standards, we review the determination de novo. Id. It is within the trial judge's discretion to determine the proper amount of bail. See Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon 2005). In determining the amount of bail to set, the judge shall be guided by the following rules: (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, and (5) the future safety of a victim of the alleged offense and the community shall be considered. See id.; Ex parte Welch, 729 S.W.2d 306, 309 (Tex.App.-Dallas 1987, no pet.). Circumstances to be considered in determining the amount of bond include the accused's work record, family and community ties, length of residency, prior criminal record, and conformity with the conditions of any previous bond, as well as the existence of any outstanding bonds and aggravating circumstances involved in the charged offense. See Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex.Crim.App. [Panel Op.] 1981); Ex parte Welch, 729 S.W.2d at 309. The trial court may also consider the range of punishment for the charged offense. See Ex parte Rubac, 611 S.W.2d at 849. The person seeking the reduction has the burden of demonstrating the bail is excessive. See Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex.Crim.App. [Panel Op.] 1980). Although the ability or inability of the accused to make bail is a factor to be considered, that factor alone does not control in determining the amount of bail. See Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex.Crim.App. [Panel Op.] 1980). Analysis
Bond Amount Appellant contends his bail amount is excessive in that it is set in an amount appellant could never meet. The State responds the judge did not abuse his discretion in setting the bond amount. Appellant's employer testified she will allow him to reside in a one-bedroom apartment at the business. The evidence indicates appellant's family will be residing elsewhere. Appellant's prospective employment if released is an hourly labor position at a retail establishment. Although appellant's grandmother testified he lived in Grayson County for fifteen years, he has no assets. These factors indicate appellant's lack of ties to family and to the community. Appellant's past criminal history includes firearm and controlled substance violations. The trial judge indicated the bond amount was proper in light of the offense charged. Appellant's alleged offense involves sexual contact with his stepdaughter. The supplemental report indicates an adult witness stated she saw appellant touching complainant in the area of her genitals while complainant was in her bed, and complainant told a forensic interviewer appellant had previously touched her genitals with his finger. Indecency with a child, sexual contact, is a second degree felony. Tex. Penal Code Ann. § 21.11(a)(1), (d) (Vernon 2003). Appellant faces two to twenty years imprisonment if convicted. Tex. Penal Code Ann. § 12.33(a) (Vernon 2003). The pretrial bond should be sufficiently high to secure appellant's presence at trial because his reaction to the possibility of a lengthy prison sentence may be to fail to appear. See Compian v. State, 7 S.W.3d 199, 201 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Viewing the evidence under the appropriate standards, we conclude the bond amount is not excessive and resolve appellant's first issue against him. Denial of Bond Reduction Appellant contends the trial judge erred in not reducing the bond amount. The State responds the judge did not err in denying reduction of the bond amount. The evidence presented at the habeas hearing indicates appellant's assets consist solely of his clothes, and his grandmother is his only source of funds for bail. Appellant's prospective employment if released is a $9 per hour labor position at a retail business. Appellant's grandmother testified she could provide $1500 cash for bond. Appellant's ability to afford a bond in a specific amount does not justify reducing the bond to that amount. See Ex parte Beard, 92 S.W.3d 566, 573 (Tex.App.-Austin 2002, pet. ref'd). Because appellant has not met the burden of demonstrating the bail should be reduced, we resolve his second issue against him. We affirm the trial judge's order denying appellant the relief sought by his application for writ of habeas corpus.