No. 05-04-00640-CR
Opinion Filed July 22, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 86th Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 64311. Affirmed.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
Jimmy Dale Gunter filed a pretrial application for writ of habeas corpus seeking a bond reduction. Following a hearing, the trial court denied appellant the relief he sought and this appeal followed. In his sole issue, appellant claims the trial court abused its discretion in denying the bond reduction. We affirm.
Facts
Appellant is charged with possession with intent to deliver methamphetamine in an amount of 400 grams or more. The indictment also contains two enhancement paragraphs. Bond was set at $1,000,000. Appellant filed an application for writ of habeas corpus seeking to have his bail reduced. At the bond reduction hearing, Kaufman County Sheriff's deputy Robert Ramsey testified that, based on information received from a confidential informant, he obtained a search warrant for appellant's residence. Appellant was in the house at the time the warrant was executed. During the search, officers found about 1500 grams of methamphetamine in plain view on a counter in the kitchen area. Appellant denied all knowledge of the methamphetamine, but several others who were in the residence claimed that it was theirs. In addition to the methamphetamine, officers found more than $65,000 in cash, firearms, and digital scales in the house. Both the scales and a spoon found next to the scales contained drug residue. Brenda Ditto, appellant's mother, testified that appellant has lived in Kaufman all of his life. He has a mechanics and auto repair shop on the property near his house. Appellant is also a "professional" gambler, who has made a great deal of money gambling. Ditto testified that she believes appellant keeps his gambling winnings in a safe at his house. Ditto testified that they could make a bond of about ten or fifteen thousand dollars, and that appellant has sisters and friends in the "general vicinity" with whom he could live. Ditto also testified that although appellant has other pending cases, he has always appeared for his court hearings. On rebuttal, Ramsey testified that while the officers were conducting the search of appellant's residence, the telephone rang continuously. One of the callers threatened that the officers "weren't going to make it out of the driveway." Ramsey identified the voice of the caller as being Ditto's. He further testified that when he questioned Ditto about the call, she denied making it. At the conclusion of the hearing, the trial court denied appellant's request for a bond reduction. This appeal followed. Applicable Law
The primary object of an appearance bond is to secure the accused's presence at trial on the offense charged. Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex.Crim.App. [Panel Op.] 1980). 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 Supp. 2004). We review the trial court's ruling under an abuse of discretion standard. See Ex parte Spaulding, 612 S.W.2d 509, 511 (Tex.Crim.App. 1981). The person seeking the reduction has the burden of demonstrating the bail is excessive. Ex parte Rodriguez, 595 S.W.2d at 550. 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 used so 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.
Tex. Code Crim. Proc. Ann. art. 17.15; 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. Ex parte Rubac, 611 S.W.2d at 849; Ex parte Rodriguez, 595 S.W.2d at 550. Analysis
Appellant is charged with possession with intent to deliver methamphetamine in an amount of 400 grams or more. Fifteen hundred grams of methamphetamine were seized during the search of the residence, as well as several weapons and more than $65,000 cash. Although appellant denied knowledge of the methamphetamine, it was found in plain view in the kitchen area of appellant's house." Offenses based on the illegal manufacture, transportation, and sale of large quantities of drugs give rise to special considerations and often justify high pretrial bonds." Brown v. State, 11 S.W.3d 501, 503 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (per curiam). Drug related activities usually require multiple transactions of a transitory nature, requiring participants to be highly mobile. See id. Moreover, the large amount of cash necessary to effect such transactions suggests the involvement of monied backers who may consider the cost of a forfeited bond a normal business expense. See id. Courts have routinely upheld large pretrial bonds in cases involving the possession, manufacture, and distribution of large quantities of drugs. See, e.g., Young v. State, 773 S.W.2d 566, 568 (Tex.Crim.App. 1989) (affirming denial of bail in case where defendant charged with aggravated manufacture and possession of phenylacetone); Ex parte Ruiz, 129 S.W.3d 751, 755 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (affirming $600,000 bail where defendant charged with possessing 400 grams or more of cocaine); Brown, 11 S.W.3d at 504 (affirming $500,000 bond where defendant charged with possession with intent to distribute 4.5 kilograms of cocaine); Ex parte Reyes, 4 S.W.3d 353, 356 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (affirming $3 million bond where defendant charged with possession with intent to deliver 721 kilograms of cocaine); Maldonado v. State, 999 S.W.2d 91, 98 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd) (affirming $2.5 million bond where defendant charged with possession with intent to deliver 400 or more grams of cocaine); Patterson v. State, 841 S.W.2d 534, 536 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd) (affirming $150,000 bail where defendant charged with possession with intent to deliver 1262.6 grams of cocaine); Ex parte Penagos, 810 S.W.2d 796, 799 (Tex.App.-Houston [1st Dist.] 1991, no pet.) (affirming $100,000 bail where defendant charged with possessing 400 grams or more of cocaine); Ex parte Willman, 695 S.W.2d 752, 754 (Tex.App.-Houston [1st Dist.] 1985, no pet.) (affirming $300,000 bond where defendant charged with delivery of 2000 grams of cocaine). But see Ex parte Emery, 970 S.W.2d 144, 146 (Tex.App.-Waco 1998, no pet.) (reducing $100,000 bond to $35,000 where defendant charged with delivery of a controlled substance within 1000 feet of a school); Ex parte Bonilla, 742 S.W.2d 743, 745 (Tex.App.-Houston [1st Dist.] 1987, no pet.) (reducing $1 million bond to $250,000 where defendant charged with delivery of 5000 grams of cocaine); Ex parte Mudragon, 666 S.W.2d 617, 618 (Tex.App.-Houston [1st Dist.] 1984, no pet.) (per curiam) (reducing $500,000 bond to $250,000 where defendant charged with delivery of 6000 grams of cocaine); Ex parte Martinez-Velasco, 666 S.W.2d 613, 617 (Tex.App.-Houston [1st Dist.] 1984, no pet.) (per curiam) (reducing $750,000 bond to $375,000 where defendant charged with delivery of 6000 grams of cocaine). The offense is a first-degree felony. If appellant is found guilty of the offense, he faces a punishment range of fifteen to ninety-nine years or life imprisonment and a fine not to exceed $250,000. See Tex. Health Safety Code Ann. §§ 481.012(6), 481.112(a), (f) (Vernon 2003 Supp. 2004). If the two enhancement paragraphs are found true, the punishment range becomes twenty-five to ninety-nine years or life imprisonment. See Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2004). Appellant has prior felony convictions. He also has other cases pending. Although Ditto testified appellant has appeared for all of his court hearings in the other cases, the trial court could reasonably conclude that as appellant accumulates cases, his incentive to flee may increase. Appellant presented no evidence regarding his income. Ditto only testified that appellant owned an auto repair business and that he is a professional gambler who had made a great deal of money gambling in 2000. Ditto testified she could make a bond of ten to fifteen thousand dollars, but did not present evidence that appellant was unable to make the $1,000,000 bond. Ditto testified that appellant has lived in Kaufman his entire life and has "sisters and friends" in the "general vicinity" with whom he could stay if he made bail. However, none of these individuals testified that appellant was welcome to stay with them, nor was there any evidence regarding exactly where these individuals live. Although Ditto did not specify the type of gambling appellant did, she testified that he gambled in casinos, which might indicate a likelihood to leave the State of Texas so that he could gamble in casinos. Finally, there was evidence that several weapons were found during the search of appellant's house. And, there was evidence that Ditto, who is appellant's mother, may have threatened the officers while they were searching appellant's residence. Appellant had the burden of demonstrating the bail is excessive. See Ex parte Rodriguez, 595 S.W.2d at 550. Deference must also be given to the trial court who observed the witnesses in person. Ex parte Reyes, 45 S.W.3d at 356. Having reviewed the record, we cannot conclude the trial court abused its discretion in denying appellant's request for a bond reduction. Accordingly, we resolve appellant's issue against him. We affirm the trial court's order denying appellant the relief sought by his application for writ of habeas corpus.