Ex Parte Belton A. Presswood ( 2008 )

Affirmed and Memorandum Opinion filed May 13, 2008

Affirmed and Memorandum Opinion filed May 13, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00949-CR

NO. 14-07-00950-CR

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EX PARTE BELTON A. PRESSWOOD

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause Nos. 1126270 & 1126271

M E M O R A N D U M   O P I N I O N

This is an interlocutory appeal from the trial court=s handling of appellant, Belton A. Presswood=s pre-trial writs of habeas corpus requesting bond reductions in his two pending criminal cases.  Finding the trial court did not abuse its discretion, we affirm.

Factual and Procedural Background

Appellant was charged by indictment with the felony offense of theft of property with a value between $20,000 and $100,000 and with the felony offense of aggravated robbery.  Tex. Penal Code Ann. '' 29.03, 31.03(e)(5) (Vernon 2003).^[1] Both offenses allegedly occurred in Harris County, Texas.  Appellant=s bonds were originally set at $100,000 in the theft case and $30,000 in the aggravated robbery case.  Because he was unsuccessful at raising the money necessary to make these bonds, appellant filed petitions for writs of habeas corpus in both cases seeking to have his bonds reduced.

At the writ hearing, the prosecution offered no evidence on behalf of the State.  Appellant then called his wife, Angela Presswood, to testify.  Ms. Presswood testified she had known appellant for approximately two years and they had been married about a year at the time of the hearing.  She also testified they did not have any children together but she had a son living with them.  At the time of the hearing, Ms. Presswood was living in Montgomery County with her grandparents.  Ms. Presswood also told the trial court appellant could live with her grandparents if he got out of jail on bond. According to Ms. Presswood, prior to his incarceration on the theft and aggravated robbery charges, appellant was supporting her and her son by working as an appliance installer.  Ms. Presswood testified at the time he was arrested on the theft and aggravated robbery charges, appellant had been out on bond for four to six months on two 2006 charges of burglary of a building in Polk County, Texas.

  Ms. Presswood also testified about her efforts to raise appellant=s bond in the theft and aggravated robbery cases. According to Ms. Presswood, the only property she and appellant owned were two cars and a boat.  She testified she had been trying, without success, to sell the items for the entire six months appellant had been incarcerated.  She also informed the court her only employment was as a babysitter working four days a week making $15.00 a day.  Finally, Ms. Presswood testified she believed they could raise between $5,000 and $6,000 toward appellant=s bail.

Appellant then testified.  According to appellant, he has been in jail for six months on the theft and aggravated robbery charges because he has been unable to raise the amount of money required by his bonds. Appellant also testified regarding the property he owns which could be used to pay the bonds in the theft and aggravated robbery case.  Appellant owns a 1994 Firebird valued at $6,000.  Appellant said a potential buyer has made an offer of $2,800 for the Firebird.  Appellant also owns a 1992 17 foot boat. Appellant testified he paid $2,500 for the boat and has an offer for $1,800. Finally, appellant owns a 1986 Suburban he bought for $500.  Appellant testified he planned to keep the Suburban to drive to work if he is able to make bail.  According to appellant, he has no other assets, does not have a bank account or other investments, and owns no real estate.  Appellant testified he and his wife can raise $6,000 for the bond.

Appellant also testified he had been working installing appliances for a few months prior to his arrest.  According to appellant, he was earning between $2,000 and $5,000 per month.^[2] Appellant testified his former employer has informed him he can come back to work as an appliance installer if he makes bail.

Appellant testified he, his wife, and her son had rented a house in Montgomery County just before his arrest on the theft and aggravated robbery charges.  Appellant also testified he had no family, other than his wife, in the area.

Appellant testified he has a prior conviction for unauthorized use of a motor vehicle and spent a year in state jail after his probation was revoked.  Appellant also admitted he has two pending burglary of a building charges in Polk County.^[3] According to appellant, he was out on bail on those charges at the time he was arrested on the theft and aggravated robbery charges.  Finally, appellant testified those bonds had been revoked and the bond reset to $3,000 each. Appellant understood if he made bail in the Harris County cases, he would not be released from jail unless he was also able to make bail on the Polk County charges.

Following the testimony, the trial court granted relief in the theft case and lowered bail to $50,000.  The trial court denied relief in the aggravated robbery case and raised appellant=s bail in that case to $100,000.^[4] This appeal followed.

Discussion

In a single issue on appeal, appellant contends the trial court abused its discretion when it denied the relief appellant requested in his petitions for writs of habeas corpus and instead set appellant=s bonds in the excessive and punitive amounts of $100,000 on the aggravated robbery charge and $50,000 on the theft charge.  Appellant asserts a more appropriate bond would be $10,000 and $5,000 respectively.

I.        The Applicable Law

The primary purpose of an appearance bond is to secure the presence of the accused at trial on the offense charged.  Maldonado v. State, 999 S.W.2d 91, 93 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).  Bail should be set high enough to give reasonable assurance the defendant will appear at trial, but it should not operate as an instrument of oppression.  Id. Bail set at an amount higher than reasonably calculated to fulfill this primary purpose is excessive under the Eighth Amendment.  In re Durst, 148 S.W.3d 496, 498 (Tex. App.CHouston [14th Dist.] 2004, no pet.) (citing Stack v. Boyle, 342 U.S. 1, 4, 72 S. Ct. 1, 96 L.Ed.3 (1951)).

The burden is on the person seeking the reduction to demonstrate the bail set is excessive.  Maldonado, 999 S.W.2d at 93. The decision regarding a proper bail amount lies within the sound discretion of the trial court and there is no precise standard for reviewing its determination.  Durst, 148 S.W.3d at 498.  However, while the bail decision is within the trial court=s discretion, the trial court is required to consider the criteria found in article 17.15 of the Code of Criminal Procedure.  Article 17.15 provides:

The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules:

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).  Other circumstances and factors to be considered in determining the amount of bail include family and community ties, length of residency, aggravating factors in the offense, the defendant=s work history, prior criminal record, and previous and outstanding bail.  Durst, 148 S.W.3d at 498 (citing Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. 1981).

II.       Application of the Law to the Evidence

We examine the evidence in light of the article 17.15 and Rubac factors.

A.      Sufficient Bail to Assure Appearance

In this case, the evidence shows appellant is not a resident of Harris County.  The evidence also demonstrates that while appellant was a resident of Montgomery County when he was arrested on the theft and aggravated robbery charges, he does not own any real estate there.  The evidence also establishes that, other than his wife, whom he has known for two years, appellant has no family ties to either Harris or Montgomery Counties.  Also, while the  evidence does not reveal how long appellant has resided in Montgomery County, it did show appellant is accused of committing crimes in Polk County in 2006 and was living in Colorado County when his probation was revoked and he went to state jail in 2000.  The evidence also establishes appellant has a place to stay, in Montgomery County, and an offer of employment, if he is released on bond.  After evaluating the evidence, we hold this factor weighs in favor of a higher rather than a lower bail.  See Maldonado, 999 S.W.2d at 95 (finding the lack of ties to Harris County, as well as the fact the defendant only recently arrived in Harris County, justified the imposition of a high bond).

B.      Not to be Used as an Instrument of Oppression

There is no direct evidence in the record the trial court=s refusal to reduce appellant=s total bail was done as an oppressive measure.  Indeed, the trial court granted appellant some of the relief he requested by reducing the bond amount in the theft case in half.  In addition, the same evidence cited in section A above, supports the determination that the imposition of a high bond was taken to ensure appellant=s appearance at trial rather than as an oppressive measure.  Finally, a trial court has the authority to increase a criminal defendant=s bond.  Tex. Code Crim. Proc. Ann. art. 17.09 (Vernon 2005).  Therefore, the fact the trial court, at the same time it decreased appellant=s bond on the theft charge, also increased appellant=s bond on the aggravated robbery charge, does not alone establish an abuse of discretion.

C.      The Nature of the Offense

This is the most important factor to be considered.  Rubac, 611 S.W.2d at 849.  Taking into consideration the nature of the offense necessarily involves the punishment permitted under the law.  Ex parte Rodriguez, 595 S.w.2d 549, 550 (Tex. Crim. App. 1980).

Appellant was indicted for the first degree felony offense of aggravated robbery.  Tex. Penal Code Ann. ' 29.03(a)(2) & (b) (Vernon 2003).  The range of punishment for this offense is imprisonment in the Institutional Division of the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years, and a fine not to exceed $10,000.  Tex. Penal Code Ann. ' 12.32 (Vernon 2003).  There are no details of this alleged offense found in the appellate record.

Appellant is also indicted for the third degree felony offense of theft alleging he stole property valued at $20,000 or more but less than $100,000, which is punishable by imprisonment in the Institutional Division of the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years and a fine not to exceed $10,000.  Tex. Penal Code Ann. '' 12.34,  31.03(a) & (e)(5) (Vernon 2003 and Vernon Supp. 2007).  This charge alleges appellant and an accomplice stole a truck, trailer, and five copper and brass exchangers.

The fact appellant faces the possibility of a life sentence in the penitentiary, combined with his lack of ties to Harris County, weighs in favor of a high bond.  See Maldonado, 999 S.W.2d at 95B96.

D.      Ability to Make Bail

The fourth factor under article 17.15, and the one emphasized by appellant, is the ability of the defendant to make bail.  The evidence in the appellate record establishes  appellant would have great difficulty making even the original bail set by the trial court, much less the higher bail imposed following the hearing on appellant=s writ applications.  However, a person=s inability to make the bail set by the trial court does not automatically render the bail excessive.  Maldonado, 999 S.W.2d at 96.  To allow this factor to control whether a bond set by a trial court is unconstitutionally excessive would impermissibly allow the accused to set his own bond.  Id. Although this factor favors a reduction of the bail, the accused=s inability to make bail, even to the point of indigence, does not control over the other factors.  McCullough v. State, 993 S.W.2d 836, 838 (Tex. App.CWaco 1999, no pet.).

E.      Future Safety of the Victim and the Community

There is no evidence in the appellate record indicating the safety of the victims in the two cases is a concern.  However, the same cannot be said of the safety of the community.  The record on appeal demonstrates that the degree of the offenses with which appellant is charged has escalated over time.  Appellant was previously convicted of the state jail felony offense of unauthorized use of a motor vehicle.  Appellant had only been out of jail on bond on the two burglary of a building charges a short time when he was arrested on the current Harris County charges.  The current charges allege appellant participated in the third degree felony of theft and aggravated robbery, a first degree felony.  This factor weighs in favor of a high bond.

F.       The Rubac Factors

The Rubac factors include the following: family and community ties, length of residency, aggravating factors in the offense, the defendant=s work history, prior criminal record, and previous and outstanding bail.  Rubac, 611 S.W.2d at 849B50.  We examine each in turn.

As detailed above, appellant has no connections with Harris County and his only connection with Montgomery County found in the record is his wife.  In addition, the record establishes appellant had only resided in Montgomery County for a short time before he was arrested on the theft and aggravated robbery charges.  The only evidence regarding appellant=s work history was his testimony he had been working as an appliance installer for a few months before he was arrested on the current charges.  The burden was on appellant to show he was entitled to a reduction in bail.  Maldonado, 999 S.W.2d at 97.  If appellant had additional ties to the community, was a long term resident of the area, or had an extensive work history, he should have produced evidence to that effect.  Because he did not, these factors weigh in favor of a high bond.

There is nothing in the record regarding any aggravating factors in the alleged offenses beyond the allegation in the indictment that appellant committed a robbery using a deadly weapon.  Accordingly, we hold this factor does not weigh in favor of either a high or low bond.  However, as discussed above, appellant has a prior criminal record, a conviction for unauthorized use of a motor vehicle.  In addition, appellant was out of jail on bond for two charges of burglary of a building when he was arrested on the current charges.  While appellant testified he has never previously jumped bail, both factors still weigh in favor of a high bond.

Conclusion

Having considered the evidence relevant to the article 17.15 and Rubac factors, we hold the trial court did not abuse its discretion when the net effect of its rulings on appellant=s two applications for writ of habeas corpus was to increase appellant=s total bond by $20,000.  Therefore, we overrule appellant=s single issue on appeal and affirm the trial court=s orders.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed May 13, 2008.

Panel consists of Chief Justice Hedges, and Justices Anderson and Boyce.

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

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^[1]  There are no details in the appellate record on the aggravated robbery charge.  The probable cause affidavit in the theft case alleges appellant stole a truck, trailer, and five copper and brass exchangers valued at $50,000.

^[2]  While appellant testified he was earning between $2,000 and $5,000 at the time of his arrest, he also testified he was earning only $350 and $500 per week installing appliances.

^[3]  Appellant also testified he might have two misdemeanor charges, possibly for criminal mischief or burglary of a motor vehicle, pending against him in Polk County. Appellant=s counsel informed the trial court he could find no record of any pending misdemeanor charges and therefore believed they had been dismissed.

^[4]  The net effect of the trial court=s rulings was to raise appellant=s cumulative bail from $130,000 to $150,000.