Ex Parte Robert Martinez ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-06-553 CR ____________________

EX PARTE ROBERT MARTINEZ

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On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 2138 (98828 & 98829)

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MEMORANDUM OPINION

Appellant Robert Martinez filed a petition for writ of habeas corpus seeking a reduction in the amount of his bond. ⁽¹⁾ The trial court entered an order granting habeas relief and lowering Martinez's bond to $95,000.00. Martinez then filed this appeal, in which he contends the trial court erred by refusing to set a reasonable bond. We affirm.

Because the trial court granted Martinez 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 ruling on the merits of an application for writ of habeas corpus is appealable.). We review the trial court's order reducing Martinez's bond for abuse of discretion. Setting bail lies within the sound discretion of the trial court. 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 trial courts must consider in setting the amount of bail, as follows:

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 length of the sentence; 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). Martinez bears the burden of demonstrating that the amount of the bond is excessive. See id. at 849.

Here, Martinez's application for writ of habeas corpus simply recited that his bond is excessive. Martinez's application did not explain why the bond set by the trial court is excessive. Martinez's application for writ of habeas corpus was unaccompanied by affidavits or other evidence. Given the dearth of evidence presented, we find that the trial court did not abuse its discretion by setting Martinez's bond at $95,000.00. We overrule Martinez's issue and affirm the trial court's judgment.

AFFIRMED.

STEVE McKEITHEN

Chief Justice

Submitted on February 8, 2007

Opinion Delivered March 7, 2007

Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.

1. The clerk's record does not contain the indictment. Martinez asserts he is charged with aggravated robbery.