Ex Parte Anthony Joseph Marcantoni AKA Jonathan David Samet v. State ( 2003 )

Affirmed in part; Reversed and Remanded in part and Opinion filed April 17, 2003

Affirmed in part; Reversed and Remanded in part and Opinion filed April 17, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00079-CR

____________

EX PARTE ANTHONY JOSEPH MARCANTONI

AKA JONATHAN DAVID SAMET,

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 935,631

M E M O R A N D U M  O P I N I O N

This is an appeal from the denial of habeas corpus relief.  In two issues, appellant, Anthony Joseph Marcantoni aka Jonathan David Samet,^[1] challenges the trial court=s revocation of his pre-trial bond and refusal to set a new bond.  We affirm in part, and reverse and remand in part.

Appellant, was charged with felony possession of marijuana (between fifty and two thousand pounds).  Pre-trial bond was set at $200,000.  Appellant posted bond and was released.  At a subsequent court appearance on December 16, 2002, the trial court ordered as a condition of bond that appellant submit to urinalysis by the Office of Court Services.  On the same day, the trial court revoked appellant=s bond and set new bond at zero after he tested positive for drug use on the urinalysis.  Appellant filed an application for writ of habeas corpus seeking reinstatement of his bond and release based on denial of due process, or, alternatively, asking that new bond be set.  On January 13, 2002, following an evidentiary hearing, the trial court denied habeas corpus relief.

Standard of Review

We review a trial court=s ruling on a habeas corpus application for abuse of discretion. Parrish v. State, 38 S.W.3d 831, 834 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).  In our abuse of discretion analysis, we determine whether the court acted without reference to any guiding rules or principles; in other words, whether the court acted arbitrarily or unreasonably.  Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993).

Revocation of Bond

In his first issue, appellant contends his imprisonment is illegal because he was denied due process when his bond was revoked.  See Tex. Code Crim. Proc. Ann. art. 11.40 (Vernon 1977) (providing in habeas corpus proceeding, applicant shall be discharged if no legal cause is shown for the imprisonment).  He asserts he was denied due process for three reasons: (1) he was not given proper notice that failing a urinalysis would result in revocation of his bond; (2) he was punished retroactively for acts that were not bond violations when they were committed; and (3) his bond was revoked on legally insufficient grounds.  We disagree.

First, appellant asserts he was denied due process because he was not given proper notice that failing a urinalysis would result in revocation of his bond.  At the outset, the State responds that appellant has waived this complaint because he presented no evidence that he objected at the time the urinalysis condition was imposed.  See Smith v. State, 993 S.W.2d 408, 410-11 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d) (holding failure to object to bond conditions when imposed precluded defendant from challenging them via habeas corpus appeal).  We have not been presented with a record of the proceeding at which the condition was imposed; therefore, we do not know whether appellant objected to the condition. Even had appellant objected to the condition in the trial court, however, he would not be entitled to habeas corpus relief.

Appellant does not contest that the trial court had statutory authority to impose urinalysis as a bond condition.  See Tex. Code Crim. Proc. Ann. art. 17.44(a)(2) (Vernon Supp. 2003) (authorizing trial court to impose testing for a controlled substance as a bond condition).  Instead, he argues that because the right to bail is constitutional, he was entitled to notice that the trial court intended to impose urinalysis as a bond condition and that failing the urinalysis could result in bond revocation. See Smith, 993 S.W.2d at 412 (citing Robinson v. State, 700 S.W.2d 710, 712-13 (Tex. App.CHouston [14th Dist.] 1985, no pet.) (recognizing liberty interest in bail which invokes the constitutional right to due process).  However, he cites no authority requiring such notice; in fact, he concedes that article 17.44 does not expressly require such notice.^[2]

Nevertheless, appellant was given notice by statute that the trial court could impose urinalysis as a bond condition and revoke bond if he failed the urinalysis.  Article 17.44(a)(2) explicitly provides that testing for the presence of a controlled substance in the defendant=s body may be imposed as a condition for release on bond.  Tex. Code Crim. Proc. Ann. art. 17.44(a)(2). Further, article 17.44(c) explicitly provides that if such testing indicates the presence of a controlled substance, bond may be revoked and the defendant arrested.  Tex. Code Crim. Proc. Ann. art. 17.44(c) (Vernon Supp. 2003).  Notice is given in compliance with due process standards simply by the publication of a statute.  Burns v. Harris County Bail Bonds Bd., 139 F.3d 513, 521 (5th Cir. 1998) (citing Breath v. Cronvich, 729 F.2d 1006, 1011 (5th Cir. 1984), cert. denied, 469 U.S. 934  (1984)).

Next, appellant contends he was denied due process because he was punished retroactively.  In essence, he complains that even if he failed the urinalysis, he ingested the controlled substance before the trial court imposed urinalysis as a bond condition. This contention is without merit.  Article 17.44(c) authorizes the trial court to revoke bond if testing indicates the presence of a controlled substance; it does not render that authority dependent on when the defendant ingested the controlled substance. See Tex. Code Crim. Proc. Ann. art. 17.44(c).

Further, appellant does not deny that he ingested a controlled substance, only that he must have done so before the bond condition was imposed.  Article 17.09 ' 3 of the Code of Criminal Procedure provides that the judge or magistrate in whose court an action is pending may Afor any other good and sufficient cause. . . order the accused to be rearrested, and require the accused to give another bond in such amount as the judge or magistrate may deem proper.@  Tex. Code Crim. Proc. Ann. art. 17.09 section 3 (Vernon 1977).  Article 17.09 ' 3 does not limit good and sufficient cause to a violation of a specific bond condition imposed on a defendant.  See id.  There is no precise standard for determining what constitutes Agood and sufficient cause@ under Article 17.09 ' 3.  Miller v. State, 855 S.W.2d 92, 93-94 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d).  Therefore, each case must be reviewed on a fact‑by‑fact basis.  See id. at 94.  Considering appellant is charged with felony drug possession, ingestion of a controlled substance while on bond supports a finding of good and sufficient cause for revoking bond.  See id. at 93-94 (holding trial court did not abuse its discretion by revoking bond and increasing bail when defendant was arrested for misdemeanor possession of marijuana while on bond for felony possession of cocaine and murder). Therefore, appellant was not denied due process when the court exercised its discretion to revoke his bond for failing a urinalysis test regardless of when he ingested the controlled substance.

Finally, appellant contends he was denied due process because his bond was revoked on legally insufficient grounds.  This is apparently a challenge to the legal sufficiency of the evidence because he cites that standard of review. Specifically, he complains that the State did not prove that the urinalysis was performed in accordance with scientifically accepted protocols, and the State did not prove a proper chain of custody.  We question appellant=s ability to challenge the legal sufficiency of the evidence supporting revocation because we review the trial court=s denial of a habeas corpus application for abuse of discretion.  See Parrish, 38 S.W.3d at 834.  Nevertheless, appellant has presented no record of the proceeding at which his bond was revoked.^[3]  Without a record of the proceeding, we cannot determine whether the evidence was legally sufficient to support revocation.  See McDonald v. State, 936 S.W.2d 734, 736 (Tex. App.CWaco 1997, no pet.) (recognizing that appellant who fails to present to the appellate court a complete record of the trial court proceedings cannot show legal insufficiency).

Appellant has failed to demonstrate that the trial court=s revocation of his bond violated his state or federal constitutional due process rights. Accordingly, the trial court did not abuse its discretion in denying habeas corpus relief with respect to his bond revocation.  We overrule appellant=s first issue.

Refusal to Set New Bail

In his second issue, appellant correctly asserts that even if the trial court determined he violated a condition of his original bond, he is constitutionally entitled to a new bond in a reasonable amount. See Tex. Const. art. I, ' 11 (providing that all prisoners shall be bailable unless for capital offenses when the proof is evident); see also Tex. Code Crim. Proc. Ann. art. 1.07 (Vernon 1977) (mirroring Tex. Const. art. I, ' 11); Tex Code Crim. Proc. Ann. art. 17.09 ' 3 (allowing trial court to revoke bond for good and sufficient cause, order the defendant rearrested, and require new bond).  The State concedes that appellant is constitutionally entitled to bail, and remand is appropriate for the trial court to set a new reasonable bond in light of appellant=s conduct while released on the original bond. Accordingly, we conclude the trial court abused its discretion in denying habeas corpus relief on the ground that appellant is constitutionally entitled to a new bond.  We sustain appellant=s second issue.

Conclusion

We affirm the denial of habeas corpus relief with respect to revocation of appellant=s bond.  We reverse the denial of habeas corpus relief with respect to the trial court=s refusal to set a new bond, and remand for the trial court to set a new bond.

PER CURIAM

Judgment rendered and Opinion filed April 17, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman. (Edelman, J. concurs in the result only.)

Do Not Publish C Tex. R. App. P. 47.2(b).

---

^[1]  Appellent filed this appeal in the name AAnthony Joseph Marcantoni aka Jonathan David Samet,@ but uses both names at different times in his brief.  The indictment, relevant orders, and habeas corpus application refer to Jonathan David Samet.  For clarity, testimony at the habeas corpus hearing revealed his correct name is Anthony Joseph Marcantoni, and Jonathan David Samet is an incorrect name he originally provided in the trial court.

^[2]  Appellant cites Smith in which we recognized that due process requires notice and a reasonable opportunity to be heard before a trial court revokes an appeal bond.  See 993 S.W.2d at 412.  However, appellant=s complaint is not lack of notice or a hearing before his bond was revoked, but lack of notice that the trial court intended to impose urinalysis as a bond condition and that failing a urinalysis could result in revocation of bond. 

^[3]  At the habeas corpus hearing, the trial court granted the State=s request that it take judicial notice of the entire file in appellant=s case. However, appellant has not included the record of the proceedings imposing urinalysis or revoking the bond in the appellate record.