Ex Parte Hamis Athoman Chande ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00115-CR
EX PARTE HAMIS ATHOMAN CHANDE,
From the 19th District Court
McLennan County, Texas
Trial Court No. 2012-561-C2
MEMORANDUM OPINION
Appellant, Hamis Athoman Chande, appeals the trial court’s ruling on his
application for writ of habeas corpus. We affirm.1
I. BACKGROUND
On November 10, 2011, Chande was arrested for the offense of unlawful
possession of more than one gram but less than four grams of cocaine with intent to
deliver in a drug-free zone. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(a), (c),
481.134 (West 2010 & Supp. 2011). According to Chande’s application for writ of habeas
corpus, he was not indicted within ninety days of his arrest. Subsequently, Chande’s
trial counsel filed a habeas corpus application under article 17.151 of the code of
1 On May 30, 2012, the State filed a motion to dismiss this appeal. In light of our opinion, we
dismiss the State’s motion as moot.
criminal procedure, requesting: (1) that he be released on a personal-recognizance
bond; or (2) a reduction in the amount of bail required for release. See TEX. CODE CRIM.
PROC. ANN. art. 17.151 (West Supp. 2011). After a hearing, the trial court granted
Chande’s habeas corpus application, but only reduced his bail amount from $25,000 to
$5,000, rather than granting him a personal-recognizance bond.
Thereafter, Chande filed, in this Court, a pro se notice of appeal and a pro se
“Motion to Appeal ‘A Denial of Application for Writ of Habeas Corpus’ and Seeking
Release Because of Delay Under Article 17.151.” In his pro se filings, Chande contended
that he was entitled to a personal-recognizance bond because the State was not ready
for trial within ninety days of his arrest and because he could only “raise the funds
required to pay a personal bond’s [sic] fee of $20.00.”
II. APPLICABLE LAW
We have jurisdiction over an appeal of a trial court’s pre-trial denial of habeas
corpus relief. See, e.g., Ex parte Avila, 201 S.W.3d 824, 826 (Tex. App.—Waco 2006, no
pet.); Ex parte Remeika, No. 10-09-00379-CR, 2010 Tex. App. LEXIS 2717, at *3 (Tex.
App.—Waco Apr. 14, 2010, pet. dism’d) (mem. op., not designated for publication). We
review a trial court’s pre-trial bail determination under an abuse-of-discretion standard.
Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981); Ex parte Avila,
201 S.W.3d at 826.
Article 17.151 of the code of criminal procedure provides the following, in
relevant part:
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A defendant who is detained in jail pending trial of an accusation against
him must be released either on personal bond or by reducing the amount
of bail required, if the state is not ready for trial of the criminal action for
which he is being detained within: (1) 90 days from the commencement of
his detention if he is accused of a felony . . . .
Id. art. 17.151, § 1(1).
III. ANALYSIS
After reviewing the record and his pro se filings, we cannot say that Chande is
entitled to the relief sought. This is true for many reasons. First, we note that Chande is
represented by counsel, and the record does not demonstrate that Chande’s trial
counsel has filed a motion to withdraw in the trial court or that he has been removed as
Chande’s attorney in some other fashion. The court of criminal appeals has held that a
party represented by counsel is not entitled to hybrid representation. See Ex parte
Bohannon, 350 S.W.3d 116, 116 n.1 (Tex. Crim. App. 2011) (noting that the court
disregarded and took no action on a habeas corpus applicant’s pro se submissions
because he was represented by counsel); see also Ex parte Taylor, 36 S.W.3d 883, 887 (Tex.
Crim. App. 2001). Chande has not adequately explained that he is entitled to advance
pro se in this matter despite being represented by counsel.2 On that ground alone,
Chande’s contentions should be rejected, and the trial court’s ruling on Chande’s
habeas corpus application should be affirmed. See Robinson v. State, 240 S.W.3d 919, 922
(Tex. Crim. App. 2007); see also Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App.
1995).
In fact, we note that none of Chande’s pro se filings indicate that his trial counsel was served or
2
was otherwise notified of these filings.
Ex Parte Chande Page 3
However, even if we were to analyze the merits of Chande’s contentions, we
would still arrive at the same conclusion—that Chande is not entitled to the relief
sought. Nothing in article 17.151 of the code of criminal procedure provides that an
indigent habeas-corpus applicant is entitled to a personal-recognizance bond. TEX.
CODE CRIM. PROC. ANN. art. 17.151. Article 17.151, section 1(1) specifically states that a
defendant may be entitled to either a personal-recognizance bond or a bail reduction if
the State is not ready for trial within ninety days of his arrest. See id. art. 17.151, § 1(1).
Here, it is undisputed that the State was not ready for trial within ninety days of
Chande’s arrest. Nevertheless, the trial court opted to reduce Chande’s bail to $5,000
based on testimony from Chande, at the hearing on counsel’s habeas corpus
application, that: (1) he is in the United States illegally and most of his family resides in
Tanzania, Africa; (2) he has lived in Houston, Texas, and Kansas while in the country
illegally; (3) he was previously arrested for driving while intoxicated in Houston; (4) he
lived with his girlfriend at the time of his arrest3; (5) his girlfriend has a job at a dry
cleaners and regularly visits Chande; (6) he has a child with another woman and
allegedly paid child support prior to his arrest; and (7) he has friends that might help
him obtain legal services to fight an immigration detainer. See id. art. 17.15 (outlining
the various factors a trial court should consider when setting a defendant’s bail); Golden
v. State, 288 S.W.3d 516, 518 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); Wright v.
State, 976 S.W.2d 815, 820 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (“[T]he ability
3In his brief, Chande acknowledges that his girlfriend, who allegedly was also charged as a “co-
defendant,” was able to post bail of $10,000.
Ex Parte Chande Page 4
of an accused to make bail does not itself control the amount of bail, even if the accused
is indigent.”); see also Milner v. State, 263 S.W.3d 146, 150 (Tex. App.—Houston [1st
Dist.] 2006, no pet.) (stating that, if the defendant’s ability to make bail in a specific
amount controlled, “the role of the trial court in setting [bail] would be completely
eliminated and the accused would be in the position to determine what his [bail] should
be”). Given this, we cannot say that the trial court abused its discretion in granting
Chande’s habeas-corpus application but denying his request for a personal-
recognizance bond.4 See Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006)
(stating that we review a trial court’s ruling on a habeas-corpus application under an
abuse-of-discretion standard).
IV. CONCLUSION
Based on the foregoing, we affirm the trial court’s ruling with respect to
Chande’s habeas-corpus application.5
4 Chande also complains about several of the conditions the trial court imposed in the event that
he posts bail. Considering Chande remains incarcerated and our resolution of this appeal, we do not find
Chande’s complaints about the trial court’s conditions to be ripe for review. See State ex rel. Watkins v.
Creuzot, 352 S.W.3d 493, 504 (Tex. Crim. App. 2011) (stating that the “ripeness doctrine protects against
‘judicial interference until a[ ] . . . decision has been formalized and its effect felt in a concrete way by the
challenging parties’” and that, in determining whether an issue is ripe for consideration, we “‘evaluate
both the fitness of the issues for judicial decision and the hardship to the parties of withholding court
consideration’” (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S. Ct. 1507, 1515-16, 18 L. Ed. 2d
681 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S. Ct. 980, 51 L. Ed. 2d 192
(1977))); see also Golden v. State, Nos. 05-11-00093-CR, 05-11-00094-CR, 05-11-00095-CR, 2012 Tex. App.
LEXIS 2644, at *7 (Tex. App.—Dallas Apr. 4, 2012, no pet. h.) (not designated for publication).
5 On June 7, 2012, Chande filed his “Appellant’s Motion in Support of ‘Pro Se Brief.’” We
construe Chande’s “Motion” to be a supplement to his originally-filed brief. In this filing, Chande asserts
that his trial counsel was ineffective at the hearing on his habeas-corpus application. To prevail on an
ineffective assistance of counsel claim, the appellant must prove by a preponderance of the evidence that
(1) counsel’s performance was deficient, and (2) the defense was prejudiced by counsel’s deficient
performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984);
Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). We look to the totality of the representation
Ex Parte Chande Page 5
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed June 20, 2012
Do not publish
[CR25]
and the particular circumstances of each case in evaluating the effectiveness of counsel; our review of
counsel’s representation is highly deferential, and we will find ineffective assistance only if Chande
overcomes the strong presumption that his counsel’s conduct fell within the range of reasonable
professional assistance. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see also Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999). After reviewing the record in the present case, we conclude that
Chande has not met his burden in demonstrating that counsel’s performance was ineffective, especially
considering the fact that counsel obtained a reduction in Chande’s bail from $25,000 to $5,000 and that,
contrary to Chande’s assertions, article 17.151 does not guarantee a personal-recognizance bond for
someone in his situation. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Andrews, 159 S.W.3d at 101; see
also TEX. CODE CRIM. PROC. ANN. art. 17.151, § 1(1) (West Supp. 2011).
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