Munoz v. State

Full title: ERIC RENEE MUNOZ, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Jan 29, 2009

No. 01-08-00223-CR (Tex. App. Jan. 29, 2009)

Opinion

No. 01-08-00223-CR

Opinion issued January 29, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).

On Appeal from the 351st District Court Harris County, Texas, Trial Court Cause No. 1150452.

Panel consists of Chief Justices RADACK and Justices HIGLEY and NUCHIA.¹

1 Justice Sam Nuchia, who retired from the First Court of Appeals on January 1, 2009, continues to sit by assignment for the disposition of this case, which was submitted on November 4, 2008.

MEMORANDUM OPINION

SHERRY RADACK, Chief Justice.

Appellant, Eric Renee Munoz, has been charged with capital murder. Bail was originally set at no bond. Appellant filed an application for writ of habeas corpus, requesting that bail be set at $75,000. After a hearing on the writ, the trial court granted habeas corpus relief, but set bail at $1,000,000. In this appeal, appellant contends the amount of bail is statutorily and constitutionally excessive and unreasonable. We affirm.

BACKGROUND

The probable cause affidavit in this case provided the following: On January 3, 2002, Sergeant W. Kuhlman arrived at the scene of a fatal shooting. Sixteen-year-old Carlos Christopher Zamudo died from a gunshot wound to the neck. A witness at the scene, Aizar Trevino, told officers that he had been driving his brother's blue Honda Accord, and that Zamudo was sitting in the passenger seat, when the two decided to stop at a Whataburger restaurant. While eating at the Whataburger, Trevino noticed a purple Escalade circle the restaurant. Shortly thereafter, a Hispanic female named Cynthia or Sandra approached their car. The girl was crying and told them that her boyfriend had kicked her out of his car. She asked Trevino and Zamudo to take her to a nearby apartment to visit a friend, which they agreed to do. As he turned into the apartment complex, Trevino again noticed the purple Escalade, which was leaving the complex. Two men then pulled guns on Trevino and Zamudo and ordered them out of the car. Trevino got out of the car and ran; he saw Zamudo on the ground and he then heard six shots being fired in Zamudo's direction. One of the men ordered the girl into Trevino's car, which then sped away. Trevino did not see the purple Escalade again, but he believed that the event was a "set up" that began at the Whataburger restaurant. The police found the stolen Honda the next day; it had been stripped of its custom wheels and rims and burned. The crime went unsolved for several years, until Sandra Gaitan was arrested on unrelated charges. When Gaitan was interviewed, she at first claimed that she was a victim of the crime, but later admitted to being a party to Zamudo's murder. Specifically, Gaitan admitted that she had lured Trevino and Zamudo to the apartment complex so that appellant and Robert Narvez could steal their car. Narvez and appellant, armed with guns, approached Trevino and Zamudo and demanded that they get out of the car. Gaitan then saw appellant shoot Zamudo, who was unarmed.

PROPRIETY OF BAIL SETTING

In his sole point of error, appellant argues that the million-dollar bail is statutorily and constitutionally excessive and unreasonable. To determine whether the trial court abused its discretion, we consider the rules found in article 17.15 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon 2005). The standard of review for reviewing bail settings is whether the trial court abused its discretion. See Ex parte Rubac, 611 S.W.2d 848, 850 (Tex.Crim.App. 1981). In the exercise of its discretion, a trial court should consider the following rules in setting 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 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 (Vernon 2005); see Ludwig v. State, 812 S.W.2d 323, 324 (Tex.Crim.App. 1991) (noting that the court is "to be governed in the exercise of [its] discretion by the Constitution and by the [article 17.15 factors]"). The burden of proof is upon a defendant who claims bail is excessive. Rubac, 611 S.W.2d at 849; 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.). Courts should also consider the defendant's work record, family ties, residency, past criminal record, conformity with previous bond conditions, other outstanding bonds, and aggravating factors involved in the offense. See Rubac, 611 S.W.2d at 849-50; see also Martinez-Velasco, 666 S.W.2d at 614-15.

A. Nature of the Offense

The record reflects that the State indicted appellant for capital murder for intentionally or knowingly causing the death of Carlos Zamudio with a firearm, during the course of committing and attempting to commit a robbery. See Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon Supp. 2008). An offense under this statute is a capital felony. Id. § 19.03(b) (Vernon Supp. 2008). The punishment for this offense is imprisonment for life, or death, as the State is seeking the death penalty in this case. Id. § 12.31 (Vernon Supp. 2008). Although high, other murder cases have held $1,000,000 bonds not to be excessive under certain circumstances. See Ex parte Brown, No. 05-00-00655-CR, 2000 WL 964673 (Tex.App. ___ Dallas July 13, 2000, no pet.) (not designated for publication) (holding that $1,000,000 bail not excessive for murder when defendant did not present testimony relating to factors in article 17.15); Ex parte Pulte, No. 2-03-202-CR, 2003 WL 22674734 (Tex.App. ___ Fort Worth Nov. 13, 2003, no pet.) (not designated for publication) (holding that $1,000,000 bail not excessive for solicitation of murder when record showed that defendant had assets, had not shown evidence of bond he could make, and committed offense while on bond for related offense); Ex parte Saldana, No. 13-01-00360-CR, 2002 WL 91331 (Tex.App. ___ Corpus Christi Jan. 24, 2002, no pet.) (not designated for publication) (holding that $1,000,000 bail for capital murder not excessive in light of violent nature of offense, defendant's family's ability post a $500,000 bond previously, defendant's membership in violent gang, and other evidence suggesting defendant posed flight risk and danger to community). Here, the nature of the offense reflects that appellant allegedly shot and killed 16-year-old Carlos Zamudio because he wanted the rims from the car in which Zamudio was a passenger. The State intends to prove that appellant was not merely a party to the crime, but that he was the actual gunman who fired at Zamudio. Based on the serious nature of the crime and the substantial penalty if convicted, the trial court could have reasonably concluded that the nature of the offense did not favor a lower bail.

B. Ability to make bail

To show that he is unable to make bail, a defendant generally must show that his funds have been exhausted. See Ex parte Willman, 695 S.W.2d at 754 (citing Ex parte Dueitt, 529 S.W.2d 531, 532 (Tex.Crim.App. 1975). Unless he has shown that his funds have been exhausted, a defendant must usually show that he made an unsuccessful effort to furnish bail before bail can be determined to be excessive. Ex parte Willman, 695 S.W.2d at 754; see Ex parte Williams 467 S.W.2d 433, 434 (Tex.Crim.App. 1971). If the defendant indicates a financial inability to procure a surety bond, the court will not require him "to do a useless thing." Ex parte Dueitt, 529 S.W.2d at 532-33. The ability or inability of an accused to make bail, however, even indigency, does not alone control in determining the amount of bail. Ex parte Charles worth, 600 S.W.2d 316, 317 (Tex.Crim.App. 1980). If the ability to make bond in a specified amount controlled, the role of the trial court in setting bond would be completely eliminated, and the accused would be in the position to determine what his bond should be. Ex parte Miller, 631 S.W.2d 825, 827 (Tex.App. ___ Fort Worth 1982, pet. ref'd). In this case, appellant's mother, Mary Leyva, testified about appellant's ability to make bond as follows: Q: How much money do you and your husband combined make weekly or monthly?

A: I don't know. I guess —

Q: What are you-all's combined incomes?

* * * *

Q: How much do you make a week, approximately?

A: Bi-weekly. I get paid bi-weekly.

Q: I know. But how much is that?

A: 1100.

Q: How much does your husband make? Does he get paid by the week or —

A: Every two weeks.

* * * *

Q: How much does he bring?

A: I haven't seen the last check stub.

Q: Approximate amount?

A: I'd say about 28.

Q: Now, if the Judge set a bond, what kind of bond do you think that you and your husband, if the family and everybody got together, could make?

A: I have no idea right now.

Q: So, basically, you have about 3,000 — a little over 3,000 every two weeks coming in?

Significantly, appellant did not testify and did not provide any evidence whatsoever about his own financial condition. And, although appellant's mother did provide evidence of her and her husband's weekly income, appellant himself made no effort to determine whether he could obtain a bond to make bail, or what amount of bail he would be able to make. Thus, the trial court could have determined that the evidence supports the bail set. See Ex parte Chavful, 945 S.W.2d 183, 186-87 (Tex.App. ___ San Antonio 1997, no pet.) (holding that bail reduction unwarranted when, among other facts, defendant put on no evidence of his own individual resources). Even if appellant had established that he could not make bail, however, this element would not control over all other considerations. See Ex parte Charles worth, 600 S.W.2d at 317.

C. Sufficient Bail to Assure Appearance But Not Oppress

Appellant's mother testified that when her son was arrested for felony possession of between five and 50 pounds of marihuana, he was released on bail, he always appeared for his court hearings, and his bail was never forfeited. The State concedes that prior compliance with bail terms is a factor in appellant's favor, but points out that the stakes are significantly higher now that appellant has been charged with a capital offense. The State also points out that, after the date of the murder in this case, appellant was charged with committing an aggravated robbery at a jewelry store in Nueces County, for which he is currently out on bond. Thus, appellant faces the death penalty or life in prison, which is significantly higher than the penalty he faced for the marihuana case, thus making the risk of his flight greater. The State also argues that, despite his compliance with previous bonds, appellant has shown that he does not abide by court-ordered conditions, as evidenced by the fact that he violated the terms of his deferred adjudication probation in the felony marihuana case and, as a result, was adjudicated guilty and sent to prison. Finally, the State points out that, while appellant's mother testified that she believed her son would make all court appearances if he were given bail, appellant himself never testified or made such assurances. Thus, the trial court may have concluded that a reasonably high bail is necessary to ensure that appellant will appear at trial. In addition, the record contains nothing to indicate that the trial court rendered its decision for the purpose of forcing appellant to remain incarcerated pending trial. See Ex parte Harris, 733 S.W.2d 712, 714 (Tex.App. ___ Austin 1987, no pet.) (per curiam) (lowering bond because trial judge stated, "I'd rather see him in jail than to see someone's life taken. . . .").

D. Future Safety of Victim and Community

Finally, article 17.15 of the Code of Criminal Procedure requires that "[t]he future safety of a victim of the alleged offenses and the community shall be considered." Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon 2005). Appellant's mother testified that her son had never been involved in a gang and that he was not a violent or dangerous person. On cross-examination, however, appellant's mother admitted that she did not know that her son was suspected of helping to dispose of a dismembered body that was discovered in Galveston Bay. Appellant's mother also admitted that she did not know that her son had attempted to conspire with his co-defendant in this case, Robert Narvez, to intimidate or kill a witness. In contrast, Officer D. Rosales of the Houston Police Department testified that appellant was a member of the Hermanos Pistoleros Latinos gang (HPL). According to Rosales, HPL is involved in drug trafficking and violent crimes such as robbery and murder. Rosales also testified that he had information that led him to believe that appellant was a violent person. Rosales also testified that he believed that appellant posed a danger to witnesses in the case. A photograph was introduced at the habeas corpus hearing that showed appellant and several other men standing in front of a SUV that matched the vehicle used during the crime. Several men in the photo were flashing gang signs. The trial judge, as fact finder, was entitled to believe Officer Rosales, disbelieve appellant's mother, and conclude that appellant posed a threat to witnesses and the community.

E. Other Factors

Additional factors to consider in reviewing a bond decision include appellant's work record, family ties, length of residency, past criminal record, conformity with the conditions of any previous bond, other outstanding bonds, and aggravating factors involved in the offense. See Rubac, 611 S.W.2d at 849-50; Aviles v. State, 23 S.W.3d 74, 80 (Tex.App. ___ Houston [14th Dist.] 2000, pet. ref'd). Regarding appellant's work record, residency, and family ties, appellant's mother testified that appellant grew up in Houston. According to Leyva, appellant was a straight-A student at Easton Middle School and Furr High School before dropping out in the 12th grade. Leyva also testified that appellant is married, but he does not live with his wife or support their child. Appellant was living in Humble with his aunt at the time he was arrested, and, if released on bail, plans to resume residency there. After obtaining his general equivalency diploma, appellant worked at a collection agency, Preferred Healthcare Services, and was in cell phone sales for Sprint and Cingular. The record is unclear regarding whether appellant was employed at the time of his arrest in this case. We have already considered what little information the record provides on appellant's work record, family ties, and length of residency. Thus, we turn to appellant's criminal record. The record shows that appellant was previously convicted of possession of between five and 50 pounds of marihuana and received a sentence of five years' deferred adjudication. Appellant failed to comply with the terms of his deferred adjudication probation, which was revoked, and he was sentenced to four years' confinement in the penitentiary. Appellant has also been charged with an aggravated robbery in Nueces County and is currently out on bond in that case. In the Nueces County case, appellant is alleged to have robbed someone at a jewelry store at gunpoint. Based on the totality of these additional factors, the trial court could have determined that the evidence supports maintaining the present bail amount.

Conclusion

Given appellant's criminal history, the violent nature of the alleged crime and the seriousness of the punishment appellant faces, appellant's potential danger to witnesses and the community, and appellant's lack of evidence regarding his financial condition or ability to make bond, we conclude that the trial court did not abuse its discretion in setting bail at $1,000,000. We affirm the order of the trial court.