Ex Parte Lopes

Full title: EX PARTE LEONARD VINCENT LOPES, JR

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 26, 2004

No. 05-04-00216-CR (Tex. App. Apr. 26, 2004)

Opinion

No. 05-04-00216-CR.

Opinion Filed April 26, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F03-74226-NK. Affirm.

Before Justices MORRIS, FITZGERALD, and FRANCIS.

OPINION

Opinion By Justice FITZGERALD.

Leonard Vincent Lopes, Jr. is charged by indictment with stalking. See Tex. Pen. Code Ann. § 42.072 (Vernon 2003). Bond was set at $100,000. Appellant made an oral motion to reduce the bond, which was denied following a hearing. This appeal followed.

Facts

Several witnesses testified at the bond reduction hearing. Dallas police detective B.J. Watkins testified that he is assigned to the sex crimes unit of the Crimes Against Persons division. He investigated this case in which Kelly Fahey is the complainant and appellant is the defendant. Watkins testified that Fahey and appellant, on one occasion, had consensual sex. Sometime after that, appellant began threatening Fahey that he would tell her boyfriend, Ernest Kuehne, about their encounter if she did not continue to have sex with appellant. On July 19, 2003, appellant threatened to cut off Fahey's head with a machete if she did not have sex with him. Watkins testified that on July 28, 2003, Fahey obtained a TRO protective order from the 192^nd Judicial District Court prohibiting appellant from contacting her or Kuehne, except through their respective attorneys. Watkins testified that appellant basically ignored the court order. After the order was issued, appellant violated the protective order 150 to 200 times by making telephone calls to Fahey, Kuehne, and Fahey's civil lawyer, Patricia Jordan. Appellant left text messages and voice messages on Fahey's telephone.¹ Watkins testified that a reasonable person who had experienced what Fahey had been through on July 19 would take the messages to be threatening bodily harm. Watkins had no information that appellant followed Fahey to work or to stores. Fahey, however, moved from her residence. Watkins testified that on November 17, 2003, police executed a search warrant on appellant's residence. They seized a computer with numerous images; six microcassettes of phone messages; and thirty-five floppy disks and eleven or twelve CD's with various images. There were also hard copies of information concerning Fahey, Kuehne, Fahey's and Kuehne's children, records of their drivers' licenses, and plot maps from Yahoo reflecting Fahey's and Kuehne's home addresses. The police also found a "captured" phone list from Fahey's internet address book and e-mail correspondence between Fahey and her son. They also found Jordan's telephone numbers and her husband's name written down. To obtain Fahey's e-mail address book, appellant would need both her user name and her password. The police found a machete and several commando-type knives and ammunition, but no guns. The knives were not seized. Watkins testified that appellant is not a member of Kuehne's family and there would be no legitimate reason for appellant to have information regarding Kuehne's children. Watkins acknowledged that if appellant were representing himself in the civil suit filed by Fahey against him, appellant might have a reason to need information about Fahey and Kuehne. During the course of the investigation, Watkins learned that appellant had private investigator experience. He also learned that appellant had been employed by Freeman Computing or Freeman Software in Garland, Texas until about the time the warrant was executed. Watkins did not find a record that appellant had any prior convictions. However, during his investigation, Watkins learned that another former girlfriend of appellant's had experienced the same type of behavior from appellant. The former girlfriend was still very afraid of appellant even though she had not had contact with him for some time. Watkins further testified that Fahey, Kuehne, and Jordan were "terrified" of the prospect that appellant might get out of jail. Appellant testified that he is forty-eight years old and has lived in Dallas most of his life. He has a sister and a brother. However, he did not know where his brother lived, and he "believed" his sister lived in McKinney. Appellant had been employed by Freeman Software, but was laid off in October 2003 due to business cash flow problems. Appellant admitted that the civil suit took a tremendous amount of time, which impacted on his work. Appellant testified that he has no misdemeanor or felony convictions. Appellant further testified that he had no ability to post a $100,000 bond or to make a $10,000 payment to a bondsman. Appellant had approximately $2800 in cash, from which he had to pay his monthly bills, and a $3000 IRA/CD. Appellant's monthly expenses for rent, car payment, and car insurance totaled about $1577. Appellant has no family or friends who could loan him the money to post bond. Further, appellant has been unable to look for work while he was in jail. Appellant sought release on a personal bond, testifying that it would be difficult to raise even $500. He further testified that if he were released, he would have no contact with Fahey, Kuehne, or Jordan. Edward Kay testified he was appellant's landlord for three years. Appellant had never been a problem, and always paid his rent on time. Kay testified that he helped appellant by feeding appellant's pet rabbit, but had no financial resources with which to help appellant make bail. Paul Owens testified he had known appellant all of his life. He checked with some bail bond companies and found one that would do a $100,000 bond "for nine." Owens testified that he did not have the money to help appellant, and appellant did not have $9000.

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). 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 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.

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 the third-degree felony offense of stalking. If convicted, he faces a punishment range of two to ten years imprisonment and a $10,000 fine. See Tex. Pen. Code Ann. § 12.34 (Vernon 2003). Although appellant characterizes the circumstances surrounding the alleged offense as not being egregious, the trial court could have reasonably concluded otherwise. The evidence presented at the hearing reflects that, in an effort to coerce Fahey into continuing a sexual relationship with him, appellant first threatened her with blackmail, then threatened her with physical violence. Watkins testified appellant threatened to cut off Fahey's head with a machete. During a search of appellant's house, police found a machete and other commando-type knives. Moreover, the police found personal information about Fahey, Kuehne, and their children, as well as plot maps to their homes, and personal e-mail information and correspondence of Fahey's. They also found information about Jordan and her husband Although appellant contends that as a pro se litigant in a civil lawsuit filed by Fahey and Kuehne he would be entitled to discovery of certain information about them, appellant presented no evidence that he obtained the information through legitimate discovery procedures in the context of the civil lawsuit. He presented no evidence showing that information regarding Fahey and Kuehne's children or the personal e-mail addresses and messages were relevant or discoverable in the civil lawsuit. The record reflects appellant has no prior convictions. There was also no evidence that appellant physically followed Fahey. However, there was evidence that after Fahey and Kuehne obtained a temporary restraining order preventing appellant from contacting them, appellant sent 150 to 200 text messages to Fahey, Kuehne, and Jordan, some of which included threatening language. There was also evidence that appellant engaged in similar conduct against a former girlfriend. There was testimony that Fahey, Kuehne, and Jordan are very fearful of appellant being released on bail. Additionally, Kuehne is concerned for his children's safety. Although appellant contends any fear experienced by Kuehne, Jordan, or the children is irrelevant, we disagree. Article 17.15(5) specifically requires that the safety of the community, as well as the victim, be considered in setting bond. Appellant has lived in Dallas most of his forty-eight years. However, apart from employment, he does not appear to have any close personal ties to the community. He does not belong to a church or to any civic organizations. He does not own real property. Further, there is no evidence appellant has strong family ties to the community. To the contrary, the evidence reflects he does not know where his brother lives, and he "believes" his sister lives in McKinney. Appellant had worked for a computer company. However, he was not employed at the time of the hearing because he had been laid off due to financial difficulties within the company. If released from jail, appellant planned to look for new employment. Appellant was unable to make the bail himself and had no family and friends who could assist him. Inability to make bail is not itself determinative of the issue. See Ex parte Hulin, 31 S.W.3d 754, 761 (Tex. App.-Houston [1^st Dist.] 2000, no pet.). Finally, appellant testified that if he was released, he would have no contact with Fahey, Kuehne, or Jordan. Having reviewed all of the evidence, we cannot conclude the $100,000 bond is an instrument of oppression. Therefore, we conclude the trial court did not abuse its discretion in denying appellant's request for a bond reduction. We overrule appellant's sole point of error. We affirm the trial court's order denying appellant's request for a bond reduction.