Opinion
No. 10-05-00217-CR
Opinion delivered and filed October 5, 2005. DO NOT PUBLISH.
Appeal from the 272nd District Court Brazos County, Texas, Trial Court No. 05-000848-CV-272.
Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Stephen Gilbert is charged with four aggravated robbery offenses arising from a robbery of a restaurant. His bail was set at $100,000 for each offense. Gilbert filed a writ of habeas corpus asking the trial court to reduce his bail. After a hearing, the trial court denied his request. Gilbert appeals. Because the trial court did not abuse its discretion in denying Gilbert's writ, we affirm.
We review a trial court's decision to reduce a defendant's pretrial bail under an abuse of discretion standard. Ex parte McCullough, 993 S.W.2d 836, 837 (Tex.App.-Waco 1999, no pet.). A habeas applicant has the burden of proving to the trial court that his bail is excessive. Id.
The Code of Criminal Procedure provides the rules for fixing the amount of bail. TEX. CODE CRIM. PROC. ANN. art. 17.15 (Vernon 2005). Family and community ties, length of residence in the county, prior criminal record, conformity with conditions of previous bond, and aggravating circumstances of the offense should also be considered. Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex.Crim.App. [Panel Op.] 1981); McCullough, 993 S.W.2d at 837. The accused's inability to make bail, even to the point of indigence, does not control over the other factors. McCullough, 993 S.W.2d at 837.
Gilbert is charged with four aggravated robbery offenses stemming from a robbery at a restaurant in Brazos County. Gilbert testified that he moved to Bryan from Waco in 2002. He had just served a ten year sentence for a robbery committed in McLennan County. Gilbert acknowledged that he had held a job for two years but stopped working by mid-2004, approximately six months prior to the aggravated robberies. He further testified he had no assets to liquidate for cash. Regarding ties to the community, Gilbert testified that he has a wife who has a two-year-old child, and she and Gilbert are expecting another child. His wife lives in subsidized housing and her family helps her with bills and other necessities. Gilbert stated he had a brother in the community but did not know his address. Gilbert said he was scheduled to take his GED test prior to the offenses.
At the hearing, Gilbert asked the court to take judicial notice of the four charged offenses, and he introduced a probable cause statement for one of the warrants. The statement was read into the record. As revealed in the statement, Gilbert brandished a piece of metal rebar during the robbery and struck one person in the head with the rebar at least two times. His co-defendant brandished a subcompact machine gun and took a hostage.
Gilbert's ties to the community are neither strong nor well-established. He had been previously convicted of robbery and is currently charged with four aggravated robberies, where he used a piece of metal rebar as a weapon. Given these circumstances, the trial court did not abuse its discretion in denying Gilbert's writ of habeas corpus. His issue on appeal is overruled and the trial court's judgment is affirmed.