Ex Parte Walter Wilson Booker ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-07-016 CR ____________________

EX PARTE WALTER WILSON BOOKER

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On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 2139 (93628)

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MEMORANDUM OPINION

Appellant Walter Wilson Booker filed a pro se petition for writ of habeas corpus, seeking reduction in the amount of his bond. ⁽¹⁾ The trial court granted habeas relief and lowered Booker's bond from $30,000 to $29,000. Booker challenged this decision in the trial court requesting further relief. The trial court denied Booker's challenge because the court had previously granted the relief sought by Booker-a reduction in bond. Booker then filed this appeal. Among various constitutional and statutory-violation assertions, Booker essentially contends that the trial court erred by refusing to set a reasonable bond. ⁽²⁾

Because the trial court granted Booker habeas corpus relief by lowering his bond, we have jurisdiction to hear this appeal. See Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991) (en banc) (An order on the merits of an application for writ of habeas corpus is appealable.). We review the trial court's order setting Booker's bond at $29,000 for an abuse of discretion. See Ex parte Ruiz, 129 S.W.3d 751, 753 & n.2 (Tex. App.-Houston [1st Dist.] 2004, no pet.).

We allow the trial court to exercise sound discretion in setting a defendant's bail. See Ex parte Pemberton, 577 S.W.2d 266, 267 (Tex. Crim. App. 1979). Article 17.15 of the Texas Code of Criminal Procedure sets forth the criteria that trial courts must consider in setting the amount of bail, and provides:

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 (Vernon 2005). The trial court may also consider the accused's work record, family and community ties, length of residency, prior record, conformity with the conditions of any previous bond, the existence of any outstanding bonds, and any alleged aggravating circumstances involved in the offense. Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex. Crim. App. 1981). Booker bears the burden of demonstrating that the amount of bond is excessive. See id. at 849.

In addition to reciting that his bond is excessive and unreasonable because he is indigent, Booker's application claims that he and his family and friends could post a bond in the amount of $10,000, which implies that he is unable to make a higher bond. ⁽³⁾ The ability to make bail is only a factor to consider and is not dispositive. Jones v. State, 803 S.W.2d 712, 716 (Tex. Crim. App. 1991); Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. 1980) ("Although the ability to make bail is a factor to be considered, ability alone, even indigency, does not control the amount of bail.").

Booker's application did not otherwise explain why a bond of $29,000 is excessive and did not provide any evidence supporting his assertion. In light of the burden of proof placed on Booker and the absence of evidence presented, we find the trial court did not abuse its discretion by setting Booker's bond at $29,000. We overrule Booker's issue and affirm the trial court's judgment.

AFFIRMED.

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HOLLIS HORTON

Justice

Submitted on March 5, 2007

Opinion Delivered March 21, 2007

Do Not Publish

Before Gaultney, Kreger, and Horton, JJ.

1. The clerk's record does not contain the indictment. The State's brief asserts that Booker is charged with "aggravated robbery, a first degree felony, habitual felony offender;" Booker states in his writ of habeas corpus that he is charged with aggravated robbery.

2.

As a point of error, Booker also states "There has been no effective assistance of counsel within said matter since day one." However, Booker's brief contains no argument or pertinent authorities in support of his contention. Therefore, we do not address it. See Tex. R. App. P. 38.1(h) (Briefs must contain clear and concise arguments for the contentions made, with appropriate citations to authorities.).

3.

In Booker's appeal, he requests a reduction in his bond to $15,000 rather than $10,000 as asserted in his writ of habeas corpus.