Opinion
No. 07-20-00221-CR
11-06-2020
EX PARTE MELVIN YOUNG
On Appeal from the 54th District Court of McLennan County, Texas
Trial Court Nos. 2019-2389-C2 , 2019-2390-C2. 2019-2391-C2, Honorable Matt Johnson, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
Melvin Young appeals from orders denying his petition for writ of habeas corpus. Through that petition, he sought to reduce his bond of $300,000, and contends before us that the trial court abused its discretion in denying him relief. We affirm.
It is clear from the appellate record, briefs, and the State's motion to supplement the record that appellant appealed from an order pertaining to three different criminal prosecutions having three different cause numbers. Thus, he perfected an appeal in each. However, only one appellate cause number was assigned to the appeals. Therefore, this appeal encompasses three different prosecutions despite having only one appellate cause number.
Because this appeal was transferred from the Tenth Court of Appeals, we are obligated to apply its precedent when available in the event of a conflict between the precedents of that court and this Court. See TEX. R. APP. P. 41.3.
An order denying a petition for writ of habeas corpus is reviewed under the standard of abused discretion. Ex parte Warren, No. 10-19-00140-CR, 2019 Tex. App. LEXIS 8800, at *1 (Tex. App.—Waco Oct. 2, 2019, no pet.) (mem. op., not designated for publication); Ex parte Hicks, 262 S.W.3d 387, 388 (Tex. App.—Waco 2008, no pet.). A trial court abuses its discretion by applying an erroneous legal standard or when no reasonable view of the record supports the decision. Ex parte Warren, 2019 Tex. App. LEXIS 8800, at *1. While conducting that review, we consider the evidence in a light most favorable to its decision. Id.
Next, one petitioning to reduce his bond has the burden to prove it is excessive. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. [Panel. Op.] 1981); Ex parte Ross, No. 06-14-00206-CR, 2015 Tex. App. LEXIS 1673, at *2 (Tex. App.—Texarkana Feb. 20, 2015, no pet.) (mem. op., not designated for publication). In assessing whether that burden was met, however, we must remember that unsworn comments by counsel are not evidence even though captured by the reporter's record. Shields v. State, 820 S.W.2d 831, 833 (Tex. App.—Waco 1991, no pet.); accord Daniels v. State, No. 06-05-00277-CR, 2007 Tex. App. LEXIS 3421, at *8 (Tex. App.—Texarkana May 4, 2007, no pet.) (mem. op., not designated for publication) (stating same). This is of import since, in a habeas corpus setting, the burden foisted on the petitioner obligates him to prove his claim by a preponderance of the evidence, and a habeas setting encompasses matters regarding bail. See Ex parte Bernal, No. 10-16-00403-CR, 2017 Tex. App. LEXIS 4494, at *2 (Tex. App.—Waco May 17, 2017, no pet.) (mem. op., not designated for publication) (wherein the appellant complained of the trial court's decision to increase his bail); accord Ex parte Garner, No. 10-18-00129-CR, 2018 Tex. App. LEXIS 5499, at *1-2 (Tex. App.— Waco July 18, 2018, no pet.) (mem. op., not designated for publication) (stating that an "applicant seeking a writ of habeas corpus bears the burden of proving facts that would entitle her to relief and ensuring that a sufficient record is presented to show error requiring reversal"). So, in effect, one seeking to lower his bail must prove by a preponderance of the evidence that the amount under attack is excessive.
Finally, a trial court setting bail may consider various indicia, including 1) whether bail is sufficiently high to give reasonable assurance that the undertaking will be complied with; 2) whether bail is used as an instrument of oppression; 3) the nature of the offense and the circumstances under which it was committed; 4) the ability to make bail; and 5) the safety of a victim and the community. TEX. CODE CRIM. PROC. ANN. art. 17.15 (West 2015); Ex parte Garner, 2018 Tex. App. LEXIS 5499, at *2. So too may the trial court consider the accused's work record, family ties, residency, criminal record, compliance with previous bond conditions, and aggravating factors involved in the offense. Ex parte Garner, 2018 Tex. App. LEXIS 5499, at *2. That said, we turn to the case at hand.
Despite the trial court convening a hearing on appellant's petition, appellant's counsel simply presented unsworn argument and representations regarding various of the aforementioned indicia. No competent evidence supporting any of those arguments and representations was proffered by him or appellant. That alone means he failed to carry his burden of proving the alleged excessiveness of bail by a preponderance of the evidence.
Yet, even if we were to accept such unsworn representations as evidence, they of both appellant's counsel and the prosecutor include indication that appellant had little connection to the county wherein the prosecution pended. He lived elsewhere and periodically drove through McLennan County to purportedly visit his child in the Dallas-Fort Worth area. Thus, his relationship to the venue of trial was tenuous at best.
Nor was this his first interaction with the criminal justice system. He apparently pled guilty in 2011 to theft of firearm, engaged in deadly conduct in 2016, received probation for discharging a firearm (which probation was subsequently revoked), evaded arrest in 2016, received a two-year sentence for manufacturing and delivering a controlled substance in 2018, and received a like sentence for being a felon who possessed a firearm in 2019.
Allegedly, he also was returning from a visit with his child or family when stopped and arrested. During the stop, it was discovered that the vehicle he drove contained quantities of controlled substances like 219 grams of eutylone, 400.22 grams of etizolam, and 224 grams of methamphetamine. His alleged possession of those substances underlies this and other prosecutions pending against him. Assuming, arguendo, appellant's guilt for the offense in question, one reasonably could view this circumstance as appellant's attempt to use visitation with his child as an opportunity to traffic drugs. See Ex parte Garner, 2018 Tex. App. LEXIS 5499, at *4-5 (observing that the nature of the crime is a primary factor to consider when determining if the trial court abused its discretion in setting bond).
Additionally, methamphetamine is a controlled substance falling within penalty group one. TEX. HEALTH & SAFETY CODE ANN. § 481.102(6) (West Supp. 2019). In transporting between 200 and 400 grams of it, he faces a prison sentence of no less than 10 years up to 99 years and a fine of up to $100,000. Id. § 481.112(e) (West 2017). Assuming his guilt, this punishment far exceeds the much lesser, and obviously ineffective, punishment levied against him for engaging in earlier criminal activity. See Ex parte Garner, 2018 Tex. App. LEXIS 5499. at *4-5 (observing that the defendant's potential sentence is a primary factor to consider when determining if the trial court abused its discretion in setting bond).
We further note that appellant opted not to execute an affidavit of indigence or like document indicating the extent of his assets. Rather, his attorney merely uttered (again without accompanying proof) that he had "no money," he was relying on the "mercy of his mother's contributions," his mother had "volunteered to try to get him a bond," and "she ha[d] nowhere near the $300,000.00." Yet, wealth and assets consist of more than "money." Whether appellant or his mother owned realty or other personalty with which to pay a bond, in any amount, went unmentioned. See id. at *9-10 (observing that, to establish an inability to make bail, a defendant must show that his and his family's assets are exhausted).
Bail serves to assure the accused's presence at trial. Id. at *1-2. The tenor of the evidence, or lack thereof, offered by appellant hardly suggests that something less than a $300,000 bail amount would assure his presence at trial. Nor does it prove that the $300,000 amount was excessive. So, under the circumstances of record, we cannot say that the trial court abused its discretion in denying appellant's request to lower his bond.
Appellant's issue is overruled, and the orders denying his petition for writ of habeas corpus and bond reduction are affirmed.
Brian Quinn
Chief Justice Do not publish.