Ex Parte Jimmy Charles Holloway

Affirmed and Memorandum Opinion filed February 12, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00505-CR
EX PARTE JIMMY CHARLES HOLLOWAY
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 1345314
MEMORANDUM OPINION
Appellant Jimmy Charles Holloway has been charged with theft of over
$200,000, allegedly committed over several years. Appellant is alleged to have
stolen $2,485,449 from his employer. The trial court set his pre-trial bond at
$1,000,000. Appellant filed an application for writ of habeas corpus seeking a
reduction in bond. See Tex. Code Crim. Proc. art. 11.24. After a hearing, the trial
court denied relief, and appellant brought this appeal. 1 See Tex. R. App. P. 31.
1
Because this is an appeal from the denial of relief on an application for writ of habeas corpus,
the Texas Court of Criminal Appeals has instructed us that the proper style is “Ex parte
Holloway.” See Ex parte Anderer, 61 S.W.3d 398, 399 n. 1 (Tex. Crim. App. 2001).
Appellant was employed for over twenty-five years as the bookkeeper at a
family business, Coastal Agricultural Supply. At the bail hearing, an FBI
investigator, Special Agent Eric Norman, testified that he was assigned in early
2011 to investigate embezzlement at the company and discovered that appellant
had filed an assumed name certificate for “Coastal Agricultural Limestone Supply”
in June 2000. He also discovered that appellant had opened a bank account in that
name.
Special Agent Norman obtained appellant’s bank statements and discovered
deposits in appellant’s account totaling $2,485,449.11 from January 2004 through
January 2011, of checks made out to variations on the name “Coastal,” “Coastal
Ag,” “Coastal Agricultural,” and “Coastal Supply.”2 Norman learned from the
companies that had written the checks that those checks were not intended for
appellant, but were for his employer.
Evidence at the hearing revealed that after the theft was discovered,
appellant moved his personal belongings to six storage units that were not leased
under his name. In addition, appellant refused to disclose his whereabouts to
Norman when he attempted to execute an arrest warrant. After appellant was
arrested at his daughter’s home, various travel documents were discovered
indicating he intended to travel abroad and he was planning to exchange foreign
currency. At the conclusion of the writ hearing, the trial court stated: “Given the
nature of the offense, the evidence that the defendant is likely to flee the
jurisdiction and that [he] has hidden assets from the tribunal in the civil case, I will
deny relief on the writ.” This appeal followed.
In reviewing a trial court’s decision to deny relief on a writ of habeas corpus
seeking a bond reduction, we review the facts in the light most favorable to the
2
The bank did not maintain records prior to 2004.
2
trial court’s ruling and will uphold it absent an abuse of discretion. Ex parte
Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006); see also Ex parte Rubac,
611 S.W.2d 848, 850 (Tex. Crim. App. 1981). We afford almost total deference to
a trial court’s factual findings, especially when those findings are based upon
credibility and demeanor. Ex parte White, 160 S.W.3d 46, 50 (Tex. Crim. App.
2004). On habeas review, we will not disturb the trial court’s ruling as long as it is
“at least within the zone of reasonable disagreement.” See Cooley v. State, 232
S.W.3d 228, 236 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
Courts are to consider the following statutory factors in setting bail:
1. The bail shall be sufficiently high to give reasonable assurance that
a criminal defendant will appear at trial and comply with other court
orders and conditions of the bond.
2. The power to require bail is not to be used as an instrument of
oppression.
3. The nature of the offense and the circumstances of its commission.
4. The ability to make bail is to be regarded, and proof may be taken
on this point.
5. The future safety of a victim of the alleged offense and the
community.
Tex. Code Crim. Proc. art. 17.15; Ludwig v. State, 812 S.W.2d 323, 324 (Tex.
Crim. App. 1991). Courts should also consider the defendant’s work record, family
ties, length of residency, past criminal record, conformity with previous bond
conditions, other outstanding bonds, and aggravating factors involved in the
offense. See Rubac, 611 S.W.2d at 849–50; Golden v. State, 288 S.W.3d 516, 519
(Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).
In his sole issue on appeal, appellant complains that the trial court abused its
discretion by denying habeas relief. He contends that the bail set is unreasonable,
and the trial court should have reduced it because appellant has strong ties to the
community, no criminal record, will appear for trial, and is not a danger to the
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community.
The primary purpose for setting bond is to secure the presence of the
defendant at his trial. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App.
1977). In a pre-trial writ seeking a bail reduction, the burden is on the defendant
seeking the reduction to demonstrate that bail is excessive. Rubac, 611 S.W.2d at
849; Maldonado v. State, 999 S.W.2d 91, 93 (Tex. App.—Houston [14th Dist.]
1999, pet. ref’d). Thus, appellant had the burden to establish that the bail set by the
trial court is excessive and unnecessary to secure his presence at trial.
To meet this burden, appellant called only one witness at the writ hearing,
his daughter, Beverly Castro. She testified that appellant has lived in Harris County
since 1998, and both of his adult children live in Houston. Appellant has no other
immediate family. Castro testified that she would provide a room for appellant if
he is released on bail. She also testified that appellant has health concerns,
including liver and prostate issues. She stated that the civil suit against her father
was settled recently, and as part of the settlement, appellant turned over his
retirement account, all of his real property, and all personal property except for a
few family heirlooms. Castro testified that the family could raise only $2,000 to
$3,000 to contribute to appellant’s bail. Castro testified that federal agents came to
her house on August 10, 2011, with an arrest warrant for her father. She called
appellant, and he then came to her house and turned himself in. She was not aware,
however, that the FBI had contacted appellant by phone that morning and he
refused to tell the agent where he was.
Appellant did not provide any documentary evidence of his finances. Castro
testified that she does not have access to appellant’s financial information. Other
evidence showed that appellant had hidden his financial dealings from his daughter
for at least five years when the thefts occurred. In addition, there was evidence that
appellant had hidden assets from the court in the related civil case. Castro also
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admitted that she and her husband helped appellant move personal property from
his house into several storage units around the time that the related civil suit was
filed. She acknowledged that the storage units were not leased in her father’s name.
The State provided testimony from one of the family members of appellant’s
employer that only a small percentage of the stolen money had been recovered
from appellant as a result of the civil lawsuit. Evidence introduced at the writ
hearing indicates that appellant may have assets in foreign banks. The State
admitted one of appellant’s bank statements showing a wire transfer from a bank in
the Netherlands. Based on this evidence, the trial court may have reasonably
doubted the testimony that appellant lacked the ability to post bond.
The State presented evidence that appellant had not cooperated fully with
law enforcement authorities. Not only had evidence indicated that he attempted to
avoid arrest, there was testimony that appellant called a friend from jail and asked
him to retrieve a package hidden under the carpet at his former residence that had
not been discovered when authorities searched the house. Appellant did not inform
authorities about the property in the storage units. In addition, there was evidence
that appellant had both friends and financial dealings in foreign countries. Castro
acknowledged that appellant travelled overseas regularly and that he had a number
of friends in foreign countries. Even though the State did not have the burden of
proof, it provided some evidence that appellant may be a flight risk and may have
hidden assets overseas.
The defendant’s potential sentence and the nature of the crime are “primary
factors” for us to consider. 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). If convicted, appellant is subject to a sentence of five to ninety-nine
5
years or life. See Tex. Penal Code § 12.32. 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 lengthy potential sentence,
appellant may have a strong incentive to flee the jurisdiction, and a high bail
amount is reasonable.
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.). Appellant has not made
that showing. There is almost no evidence in the record regarding appellant’s
assets and financial resources. See, e.g., Ex parte Ruiz, 129 S.W.3d 751, 754 (Tex.
App.—Houston [1st Dist.] 2004, no pet.) (lack of evidence of appellant’s personal
financial resources was factor considered by court of appeals in affirming trial
court’s decision not to lower bail). Because appellant has offered very little
evidence supporting his claimed inability to make bail and no evidence regarding
his efforts to secure bond, the trial court could properly have concluded that the
amount of bail was reasonable under the circumstances. See Ex parte Scott, 122
S.W.3d 866, 870 (Tex. App.—Fort Worth 2003, no pet.).
Courts often compare bond amounts in analogous cases to determine
whether the amount set in the current case is excessive. This court previously has
affirmed a trial court’s imposition of much higher bail in a case in which the
defendant was charged with participating in the theft of automobiles worth far less
than what appellant is alleged to have stolen in this case. See Ex parte Waddell,
No. 14-02-01237-CR, 2003 WL 21403545, *1 (Tex. App.—Houston [14th Dist.]
June 19, 2003, no pet.) (mem. op., not designated for publication) (holding pretrial
bail of $1,600,000 was not excessive where the defendant was charged with theft
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of automobiles worth approximately $788,000, had attempted to raise money to
flee the country, refused to surrender his passport, and faced a potential sentence of
between five to ninety-nine years in prison). Other cases reveal that the bond set in
this case is not outside the bounds of reasonable disagreement. See, e.g., O’Brien v.
State, No. 01-12-00176-CR, 2012 WL 2922545, *5 (Tex. App.—Houston [1st
Dist.] 2012, no pet.) (mem. op., not designated for publication) (finding no abuse
of discretion in refusing to further reduce bail originally set at $12,000,000 to
below the $750,000 reduced bond on charge of participating with two others in
committing theft of items worth $6,000,000); Pharris v. State, No. 14-06-00788-
CR, 2006 WL 3313323 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (mem.
op., not designated for publication) (affirming denial of request to further reduce
$500,000 reduced bail on first-degree theft charge); Ex parte Cuevas, No. 11-03-
00402-CR, 2004 WL 527960 (Tex. App.—Eastland 2004, no pet.) (mem. op., not
designated for publication) (affirming refusal to lower bail set at $1,000,000 for
engaging in organized criminal activity to commit theft).
In Harris County, the district courts follow a schedule in setting pre-trial bail
amounts.3 Generally, when a theft is for a large sum or large amount of property,
the court will set bail at twice the value of the stolen property or money. This court
has considered the Harris County District Court Bail Schedule as a factor in
reviewing the amount of the bail for various offenses. See, e.g., Ex parte Waddell,
2003 WL 21403545, at *4. The bail schedule is some indication of the propriety of
bail for various types of offenses, just as case law arising from other counties is
some evidence that the bail set is reasonable. Ex parte Sabur-Smith, 73 S.W.3d
436, 441 n.5 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Here, appellant’s bail
is far less than the scheduled amount.
Appellant cites Ex parte Keller, 595 S.W.2d 531 (Tex. Crim. App. 1980) as
3
See District Court Bail Schedule at http://www.justex.net/BailBondSchedule.aspx.
7
authority that his bail should be reduced. In that case, two defendants were each
charged with three separate offenses of theft by receiving stolen property allegedly
valued at over $1,000,000. Over thirty years ago, the Court of Criminal Appeals
ordered the bail set at $200,000 and $100,000 per case reduced to $10,000 per
case, or $30,000 per defendant, after finding that the defendants had met their
burden of proof. Id. at 533. The evidence in that case was far different than
presented here, however. Shirley Ann Keller provided evidence that she had two
teenage daughters who were living by themselves while she was in jail. Id. at 532-
33. Both defendants testified at the writ hearing that they would appear in court at
any time they were required to. Several family members also testified on behalf of
each defendant, making assurances that the defendants would appear in court and
that they would indemnify the defendants’ bonds. Id. at 532. The court considered
evidence that Keller had successfully served a five-year probated sentence without
any suggestion of failing to report. Id. at 533.The court found this evidence
important to its decision and “entitled to weight as regards the likelihood of her
reporting to court as required.” Id.
Appellant also cites a more recent case from our sister court in which bail
was ordered reduced. See Ex parte Bogia, 56 S.W.3d 835 (Tex. App.—Houston
[1st Dist.] 2001, no pet.). In Bogia, the trial court had apparently followed the
Harris County District Court Bail Schedule in setting bail at $360,000, twice the
value of the stolen funds. Id. at 835. An important distinguishing factor in that case
is that Sylvia Bogia was charged with second degree theft with a punishment range
of two to twenty years. See id. at 838. The First Court of Appeals considered the
nature of appellant’s offense and opined that a jury might likely find her far less
culpable than her husband in their scheme to perform contract work for his
employer. Id. at 839. The court ordered bail reduced to $10,000, the amount shown
on the bail schedule for first-time offenders charged with a second degree felony.
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Id. at 840. Based on the nature and circumstances of the crimes in each case, we
find that Bogia is inapposite.
We hold that appellant has not met his burden of proof to show that the bail
amount set by the trial court is excessive. Therefore, we overrule appellant’s sole
issue. The trial court’s order denying habeas relief is affirmed.
PER CURIAM
Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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