Summary
affirming $1,500,000 bond in case in which defendant was charged with possession of at least 400 grams of cocaine in case in which the total quantity of cocaine involved in the incident weighed more than 55 kilograms
Summary of this case from Soliz v. StateOpinion
No. 01-03-00523-CR
Opinion issued November 10, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 339th District Court, Harris County, Texas, Trial Court Cause No. 946672.
Panel consists of Justices HEDGES, NUCHIA, HIGLEY.
MEMORANDUM OPINION
Appellant, Jose Daniel Pequeno-Flores, is charged with possession of a controlled substance, namely, cocaine weighing at least 400 grams. The trial court initially set the bail at $5,500,000.00. Appellant filed an application for a writ of habeas corpus and bond reduction. The trial court granted the writ and subsequently reduced the bail to $1,500,000.00. Appellant appeals this decision, stating that the amount is oppressive and unreasonable. We affirm.
The appellant's brief erroneously stated that the bond had been reduced to $1,600,000. Court records reflect that the bond was reduced to $1,500,000.
Facts and Procedural History
On April 11, 2003, police observed appellant carrying a plastic container into a house at 4215 Oneida in Pasadena, Texas. They later found an identical container holding eight kilos of cocaine. It is disputed whether the container that appellant was carrying was the same one that contained the cocaine. Officers recovered 27.65 kilos of cocaine from a washer and dryer inside the house and an additional 27.90 kilos from a vehicle parked in the garage, which is attached to the house. Officers inferred that appellant was a resident of the house because, shortly before their April 11 observations, they saw appellant coming and going from it and, being the last person there, using keys to lock it before leaving. In addition, the house had been under surveillance since February 2002, and police had seen appellant at the house on other days between then and April 11. During the course of the investigation, police recovered $690,000 in cash from a car-wheel rim being carried by individuals leaving the house. The cash was in a container welded to the wheel rim. The 27.90 kilos of cocaine found in the vehicle in the garage were found in similar containers welded to the car's wheel rims. It appeared that the money was destined for Mexico. It is unclear from the record whether the $690,000 cash was seized at the same time the drugs were seized. Whether the house belongs to appellant is disputed. The cocaine has an estimated street value of $100,000 per kilo. Appellant is a citizen of Mexico and is in the United States on a tourist visa, which expires in 2008. He entered the country with a border permit that was set to expire in July of this year. He travels between the U.S. and Mexico to buy and sell trucks. He is a resident of Nicolas De Los Garza, on the south side of Monterrey, Mexico. Appellant presented evidence that he is the father of at least one U.S.-born child. At the time of his arrest, appellant stated that he had been in the U.S. for three days and was staying at a hotel near the airport. Appellant has offered to surrender his passport and has agreed to sign a waiver of extradition. At the bond reduction hearing, appellant presented testimony from a bail bondsman, who indicated that appellant's family could make a bond in the range of $10,000-$25,000. He also testified that he did not write bonds as large as $1,500,000. Appellant did not present evidence about his own, individual financial resources.Legal Authority
The amount of bail is committed to the trial court's discretion under Texas Code of Criminal Procedure, article 17.15. See Smith v. State , 829 S.W.2d 885, 887 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd). There is no precise standard for reviewing bond settings on appeal, but the reviewing court is guided by the Texas Code of Criminal Procedure. Ex Parte Pemberton , 577 S.W.2d 266, 267 (Tex.Crim.App. 1979). It indicates that the following factors are to be considered in determining the amount of a defendant's bail: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 as an instrument of oppression.
3. The nature of the offense and the circumstances of its commission are to be considered.
4. The ability to make bail is to be regarded, and proof may be taken on 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 (Vernon Supp. 2004). The burden of proof is upon an appellant who claims bail is excessive. Ex parte Rubac , 611 S.W.2d 848, 849 (Tex.Crim.App. 1981); Ex parte Martinez-Velasco , 666 S.W.2d 613, 614 (Tex.App.-Houston [1st Dist.] 1984, no pet.). The primary purpose for setting bond is to secure the presence of the defendant in court at his trial. Ex parte Vasquez , 558 S.W.2d 477, 479 (Tex.Crim.App. 1977); Ex parte Bonilla , 742 S.W.2d 743, 744 (Tex.App.-Houston [1st Dist.] 1987, no pet.). The amount of bail should be set sufficiently high to give reasonable assurance that the accused will comply with the undertaking, but should not be set so high as to be an instrument of oppression. Ex parte Bufkin , 553 S.W.2d 116, 118 (Tex.Crim.App. 1977); Ex parte Willman , 695 S.W.2d 752, 753 (Tex.App.-Houston [1st Dist.] 1985, no pet.). Other factors that should be considered include appellant's work record, family ties, length of residency and past criminal record. See Rubac , 611 S.W.2d at 849; see also Martinez-Velasco , 666 S.W.2d at 614-15.