Ex Parte Fernando Castellanos

Affirmed and Opinion filed January 23, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00538-CR
NO. 14-13-00539-CR
NO. 14-13-00540-CR
EX PARTE FERNANDO CASTELLANOS, Appellant
On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Cause Nos. 13-DCR-062986, 13-DCR-062987 & 13-DCR-062988
OPINION
Appellant was charged with engaging in organized criminal activity,
fraudulent use or possession of identifying information, and money laundering in
an amount greater than $200,000. The trial court originally set bail at $500,000 on
each count. Appellant filed an application for writ of habeas corpus requesting a
reduction in bail to a reasonable amount, which appellant stated at the hearing
would be $50,000 in each case. After conducting an evidentiary hearing, the trial
court reduced appellant’s bail to $225,000 for each count. Appellant filed this
appeal.1
FACTUAL AND PROCEDURAL BACKGROUND
Appellant did not testify at the hearing. Ariel Valverde, appellant’s cousin,
testified as follows:
Appellant’s family and friends have spoken with a bail bondsman and
learned they can afford to post a $50,000 bond on each count.
Appellant was employed “driving trucks and in construction” for
more than five years.
Appellant has a wife and two adult sons who depend on appellant’s
income.
Appellant and his family have lived in the Houston area for
approximately eight years.
Appellant has family in Cuba and has visited Cuba more than twice in
the past eight years.
Appellant has no prior criminal history and is willing to relinquish his
passport if he is released on bail.
Antonia Castillo, an employee of a bonding company, testified as follows:
Appellant could afford to post $50,000 bonds on each count.
She considered two pieces of real property and a truck as collateral,
but did not have specific evidence of the collateral to present at the
hearing.
Detective Matthew Cardenas testified as follows:
Appellant and his co-defendant are accused of purchasing credit card
numbers online using software that re-encodes those card numbers on
counterfeit credit cards, essentially creating a “clone” of the victim’s
credit card. Video surveillance showed appellant and his co-defendant
used the cloned cards to purchase gift cards, clothes, food, etc.
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Appellant’s co-defendant, Alfredo Castillo-Lorente, was charged with engaging in
organized criminal activity and money laundering. The trial court also reduced his bail to
$225,000 in each case. He has appealed that decision in cause numbers 14-13-00541-CR and 14-
13-00542-CR.
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As part of his surveillance Cardenas did not see appellant go to work;
he saw appellant travel to and from another house that was being
investigated by the United States Secret Service for the same type of
alleged fraud.
A search warrant of appellant’s house revealed boxes of blank cards,
printing machines used to print bank logos on blank cards, pages of
credit card numbers containing approximately thirty numbers each,
approximately $8,000 in cash, ledgers containing credit card numbers,
user names and passwords, credit card embossers, and computers.
Appellant’s passport was seized as a result of the search.
Investigators located money order transfers from the United States to
Cuba, the Ukraine, Russia, and other countries.
Other individuals who were involved in this scheme have been
arrested or located outside the United States.
STANDARD OF REVIEW
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.” U. S. CONST. amend. VIII; see also Schilb v.
Kuebel, 404 U.S. 357, 365, (1971) (applying Eighth Amendment prohibition of
excessive bail to the States). The standard for reviewing an allegation of excessive
bail is whether the trial court abused its discretion. See Ex parte Rubac, 611
S.W.2d 848, 849–50 (Tex. Crim. App. 1981). A defendant has the burden of
proving that bail is excessive. Id. at 849. In reviewing a trial court’s ruling for an
abuse of discretion, an appellate court will not intercede as long as the trial court’s
ruling is at least within the zone of reasonable disagreement. Ex parte Beard, 92
S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref’d).
The amount of bail required in any case is within the discretion of the court
subject to the following rules:
1. The bail shall be sufficiently high to give reasonable
assurance that the undertaking will be complied with.
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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.
See Tex. Code Crim. Proc. Ann. art. 17.15 (West 2014).
In addition to considering the factors in article 17.15, the courts have added
seven other factors that can be weighed in determining the amount of bond: (1) the
accused’s work record; (2) the accused’s family and community ties; (3) the
accused’s length of residency; (4) the accused’s prior criminal record; (5) the
accused’s conformity with previous bond conditions; (6) the existence of other
outstanding bonds, if any; and (7) aggravating circumstances alleged to have been
involved in the charged offense. Ex parte Rubac, 611 S.W.2d at 849–50. The trial
court may also consider the fact that the accused is not a United States citizen. Ex
parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. 1980).
ANALYSIS
In two issues, appellant contends the trial court abused its discretion in
denying habeas relief. He contends the bail, as reduced, is unreasonable, and the
trial court should have reduced it further because appellant has strong ties to the
community, no criminal record, will appear for trial, and is not a danger to the
community because the offenses for which he is charged are non-violent.
Nature and Circumstances Under Which They Are alleged to Have Been
Committed
Appellant was indicted for engaging in organized criminal activity,
fraudulent use or possession of identifying information, and money laundering
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more than $200,000. The offenses are punishable by imprisonment for fifteen to
ninety-nine years or life. Tex. Penal Code Ann. § 32.51 (fraudulent use or
possession of identifying information), § 34.02 (money laundering), § 71.02
(engaging in organized criminal activity). The defendant’s potential sentence and
the nature of the crime are significant factors for us to consider when assessing the
reasonableness of a bail amount . Ex parte Hunt, 138 S.W.3d 503, 506 (Tex.
App.—Fort Worth 2004, pet ref’d). See also Montalvo v. State, 315 S.W.3d 588,
593 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (noting that consideration of
nature and circumstances of offense requires us to consider range of punishment in
event of conviction). When the offense is serious and involves aggravating factors
that may result in a lengthy prison sentence, bail must be set sufficiently high to
secure the defendant’s presence at trial. See Ex parte Hulin, 31 S.W.3d 754, 761
(Tex. App.—Houston [1st Dist.] 2000, no pet.). Because of the seriousness of this
offense and the potential lengthy sentence, the trial court could have concluded that
appellant has a strong incentive to flee the jurisdiction and a high bail amount is
reasonable.
Bail Sufficient to Assure Appearance but not Oppress
The record reflects that appellant and his co-defendant were the top two
individuals in a credit-card-fraud ring that is alleged to have defrauded hundreds of
victims. Some of the other members of the ring have been arrested, but others have
not. One member of the ring was arrested as he crossed the border from Mexico.
Another was arrested in Colombia and is awaiting extradition. Appellant is a
Cuban national with evidence of money order transfers to Cuba, the Ukraine, and
Russia. The evidence at the writ hearing supports a finding that appellant is a
significant flight risk based on his ties to individuals in other countries, and access
to equipment with which to make counterfeit credit cards. On this record, the trial
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court reasonably could conclude that bail of $225,000 for each offense is not
higher than necessary to give reasonable assurance of compliance with the
undertaking and that bail is not oppressive.
Accused’s Ability to Make Bail
To show that he is unable to make bail, a defendant generally must show that
his funds and his family’s funds have been exhausted. Milner v. State, 263 S.W.3d
146, 149 (Tex. App.—Houston [1st Dist.] 2006, no pet.). The accused’s ability to
make bond is merely one factor to be considered in determining the appropriate
amount of bond. Tex. Code Crim. Proc. Ann. art. 17.15(4); Ex parte Scott, 122
S.W.3d 866, 870 (Tex. App.—Fort Worth 2003, no pet.). Appellant’s evidence
with regard to his inability to make bail consisted of Valverde’s testimony that
appellant’s family and friends have spoken with a bail bondsman and learned they
can afford to post a $50,000 bond on each count and Castillo’s testimony that the
bonding company would post a $50,000 bond on each count. Appellant presented
no documentary evidence of his assets and financial resources. See Ex parte Ruiz,
129 S.W.3d 751, 754 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (concluding
that bail bondsman’s testimony of “largest bond” defendant could make did not
carry burden to establish inability to make bail).
Because appellant has offered no evidence of his financial circumstances
and very little evidence supporting his claimed inability to make bail, the trial court
could properly have concluded that the amount of bail was reasonable under the
circumstances. See Scott, 122 S.W.3d at 870 (in affirming trial court’s refusal to
lower bond, court cited as a factor absence of evidence regarding defendant’s
ability to make bond when defendant’s evidence consisted of his testimony that he
and his family lacked sufficient assets or financial resources noting that defendant
did not detail either his assets or financial resources nor his efforts to furnish
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bond).
Future Safety of Victims and the Community
In support of his argument to lower bail, appellant argues that he is charged
with non-violent offenses. Cardenas testified that restrictions on computer use and
the Internet would not necessarily prevent appellant from continuing to illegally
obtain credit card numbers if released on bond. There was no evidence presented
concerning any physical threat appellant might pose to victims of the offenses or to
the community. This court has previously held that those who possess illegal drugs
with the intent to deliver in large quantities affect the community in which they
live. See Maldonado v. State, 999 S.W.2d 91, 96–97 (Tex. App.—Houston [14th
Dist.] 1999, pet. ref’d). In this case, as with possession and distribution of large
quantities of illegal drugs, it is a matter of common sense that those who produce
hundreds of counterfeit credit cards affect the community in which they live. The
theft of credit card numbers and impact on the victims cannot be ignored in
analyzing the safety of the community relevant to bail determinations.
Other Factors
There is some evidence that appellant is employed as a truck driver. He is a
Cuban national with evidence of money order transfers to Cuba and other foreign
countries. Appellant has traveled outside the country more than twice while
residing in the United States. The record reflects that appellant is a permanent
resident of the United States, but not a citizen. Research has not revealed precedent
from this court or other Texas courts addressing bail for the offenses with which
appellant is charged (racketeering and money laundering), but precedent from
other jurisdictions shows that for racketeering charges, bail in amounts greater than
set in today’s case have been found not to be excessive. See United States v.
James, 674 F.2d 886, 888 (11th Cir. 1982) (determining bail set at $2 million was
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not excessive in case involving charges under the Racketeer Influenced and
Corrupt Organization Act and federal drug charges). Indeed, at least one court
denied bail in a racketeering case. See Constantino v. Warren, 684 S.E.2d 601,
601-04 (Ga. 2009) (in prosecution for violation of the Racketeering Influenced
Corrupt Organizations Act, denial of bail did not violate the Excessive Bail Clause
of the Eighth Amendment).
Based on the evidence before the trial court in this case, it reasonably could
have concluded the bail it set was justified by unusual circumstances. The trial
court had before it evidence that appellant had engaged in extensive credit card
fraud and theft by cloning hundreds of credit cards. Appellant is not a citizen of the
United States and has family members in Cuba. Given the nature of the charged
offenses and the aggravating circumstances, the trial court could have reasonably
concluded a bond of $225,000 for each count was necessary to deter appellant
from fleeing the jurisdiction.
CONCLUSION
We conclude that the trial court did not abuse its discretion in reducing
appellant’s bail to $225,000 for each count and in concluding that appellant did not
demonstrate that bail in this amount is excessive. Accordingly, we overrule
appellant’s issues and affirm the trial court’s judgment.
/s/ Ken Wise
Justice
Panel consists of Chief Justice Frost and Justices Jamison and Wise.
Publish — TEX. R. APP. P. 47.2(b).
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