Angel Soliz, Jr. v. State

Affirmed and Memorandum Opinion filed October 7, 2008

 Affirmed and Memorandum Opinion filed October 7, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-08-00171-CR

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ANGEL SOLIZ, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 1149948

M E M O R A N D U M   O P I N I O N

Appellant is charged with the manufacture or delivery of a controlled substanceCcocaineCweighing at least 400 grams.  The trial court originally set bail at $5,000,000.  Appellant filed an application for writ of habeas corpus requesting a reduction in bail to a reasonable amount, which appellant stated in the application would be $20,000. After conducting a hearing, the trial court reduced appellant=s bail to $1,500,000.  Appellant filed this appeal.

Appellant claims the trial court abused its discretion in setting the amount of bail at $1,500,000 and requests a reduction to an amount no greater than $175,000.  The burden of proof is on the defendant to show bail is excessive.  Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. 1980).  In reviewing bond settings on appeal, we reverse a lower court's determination only if we find an abuse of discretion.  Tex. Code  Crim. Proc. Ann. art. 17.15.  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.

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.

Id.    In addition, we consider the accused=s work record, family and community ties, length of residency, prior criminal record (if any), and any alleged aggravating circumstances.  Ex parte Rubac, 611 S.W.2d 848, 849B50 (Tex. Crim. App. 1981). 

Appellant did not testify at the hearing.  John Schwartz, an agent with the Drug Enforcement Administration, testified as follows:

!       Appellant, appellant=s father Angel Soliz, Sr., and other men were arrested after they tried to sell 29.678 kilograms of cocaine to a confidential informant.

!       Appellant arrived at the home in which the narcotics transaction was to occur in a Abrand new Dodge F250 super crew diesel truck@ worth  $53,000.  The papers in the vehicle indicated that appellant recently had purchased this truck.

!       When the cocaine was presented to the confidential informant, appellant=s father indicated to the informant that he could get 25 more kilograms of cocaine to sell to the informant, if the informant was interested.

!       The current wholesale price for a kilogram of cocaine in Houston is $16,000.  The price for a gram of cocaine on the streets is $120.

!       The amount of cocaine involved in this case indicates a more Ahigh-level drug trafficking . . .@

!       The cocaine seized in this case, if sold in bulk quantities, would be worth approximately $500,000; if sold by the gram, it would be worth more than $3,000,000. 

Rick Mendez, an employee of Access Bail Bonds Services, testified as follows:

!       Appellant is employed at AMillenium Transportation Company@ where he buys and sells vehicles.

!       Mendez does not know what kind of work appellant=s father will be doing if he is able to post bond.

!       One individual is willing to pledge property as collateral for appellant=s bond and 19 of appellant=s family members are willing to co-sign as guarantors of appellant=s bond.  Based on this collateral, these guarantors, and appellant=s long-standing ties to the Houston community, Mendez has determined that a total bond of $175,000 can be posted for appellant and his father.

!       Though Mendez has spoken to relatives of appellant and his father, he has not spoken with appellant or his father.

!       Mendez has no idea what funds appellant and his father have available to them in bank accounts.  Mendez has no idea what assets appellant and his father have.

       Nature of the Offense and Circumstances Under Which it Was Committed

The indicted offense is the manufacture or delivery of a controlled substanceCcocaineCweighing at least 400 grams.  The record reflects that appellant did not resist arrest and that he was not armed when arrested.  Nonetheless, the charged offense is a serious one, the alleged delivery of 29.678 kilograms of cocaine.   This offense is punishable by imprisonment in the Institutional Division of the Texas Department of Criminal Justice for life or for a term of years of not more than 99 years or less than 15 years and a fine not to exceed $250,000. Tex. Health & Safety Code Ann. 481.112(f) (Vernon 2003).  Cases involving offenses based on the illegal manufacture, transportation and sale of large quantities of narcotics give rise to special considerations and often justify high pre‑trial bonds.  Brown v. State, 11 S.W.3d 501, 502 (Tex. App.CHouston [14th Dist.] 2000, no pet.). Because narcotics‑related activities usually require multiple transactions of a transitory nature, by the very nature of the operation, participants in the transport and sale of illegal narcotics must be highly mobile.  See id.   Moreover, the large amount of cash required to effect these kinds of transactions suggests involvement of monied backers who may consider the cost of bail as a normal business expense, which they may be willing to forfeit and write off as one of the costs of operating this type of business.  See id.  Thus, in cases involving large quantities of illegal narcotics, a high bond may be required to assure the presence of the defendant at trial.  See id.  Consequently, high pre‑trial bonds have been upheld on numerous occasions for offenses involving possession of a large quantity of a controlled substance.  See e.g., Ex parte Gunter, No. 05-04-00640-CR, 2004 WL 1632803, at *3 (Tex. App.CDallas July 22, 2004, no. pet.) (affirming $1,000,000 bond in case in which defendant was charged with possession with intent to deliver 1.5 kilograms of methamphetamine); Ex parte Pequeno-Flores, No. 01-03-00523-CR, 2003 WL 22682520, at *3 (Tex. App.CHouston [1st Dist.] Nov. 10, 2003, no. pet.) (affirming $1,500,000 bond in case in which defendant was charged with possession of at least 400 grams of cocaine in case in which the total quantity of cocaine involved in the incident weighed more than 55 kilograms); Brown, 11 S.W.3d at 504 (affirming $500,000 bond where defendant charged with possession with intent to distribute 4.5 kilograms of cocaine); Ex parte Reyes, 4 S.W.3d 353, 356 (Tex. App.CHouston [1st Dist.] 1999, no pet.) (affirming $3,000,000 bond where defendant charged with possession with intent to deliver 721 kilograms of cocaine); Maldonado v. State, 999 S.W.2d 91, 98 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d) (affirming $2,500,000 bond where defendant charged with possession with intent to deliver 400 or more grams of cocaine).

                       Bail Sufficient to Assure Appearance but not Oppress

The record contains evidence that a group of men including appellant delivered to a confidential informant almost 30 kilograms of cocaine, worth more than $3,000,000 if sold on the street in grams and worth approximately $500,000 if sold in kilograms.  Evidence in the record also demonstrates that appellant and his associates had access to another 25 kilograms of cocaine.  Shortly before his arrest, appellant purchased a vehicle worth $53,000.  Appellant also apparently works at a company that buys and sells vehicles.  The record does not reflect the amount of appellant=s income from this employment.  In any event, the record reflects that, if found guilty, appellant would face imprisonment for a significant period of time, up to and including a life sentence.  There is evidence appellant was born in Houston, attended public schools in Houston, and has lived in the Houston area his entire life. There is also evidence that appellant has many family members in the Houston area.  Nonetheless, the evidence supports a finding that appellant is a significant flight risk based on his alleged involvement in serious narcotics trafficking, apparent access to assets having a total value of millions of dollars, and the possibility that, if convicted, he might receive a life sentence.  On this record, the trial court reasonably could conclude that bail of $1,500,000 is not higher than necessary to give reasonable assurance of compliance with the undertaking and that this bail is not oppressive.

                                                Ability to Make Bail

The trial court reasonably could have concluded that appellant did not prove that he is unable to make bail at $1,500,000.  Appellant is employed.  The amount of cocaine involved in the charged offense is 29.678 kilograms, and the evidence indicates appellant  and his associates have access to another 25 kilograms of cocaine.  The evidence indicates that the combined value of this cocaine is approximately $875,000 if sold by the kilogram and more than $6,500,000 if sold by the gram.  When arrested, appellant possessed $1,255 in cash.  After he was arrested, police seized approximately 500 grams of cocaine from the apartment appellant shared with his girlfriend.  Mendez did not speak with appellant or have access to information showing his assets or income.  Mendez based his bail projection on the collateral and guarantees that people other than appellant allegedly agreed to provide.  There is no evidence from the hearing that, considering appellant=s economic resources, he is unable to post bail at $1,500,000.  

                                       Future Safety of the Community

Appellant=s alleged involvement in serious narcotics trafficking shows that, if free on bond pending trial, he might endanger the future safety of the community, especially in light of his potential access to an additional 25 kilograms of cocaine that was not seized when he was arrested in this case.

                                                    Other Factors

Mendez testified that appellant works at a company that buys and sells vehicles, but there is no additional evidence regarding the nature of that employment.  The record contains evidence showing appellant was born in Houston, has lived in the Houston area his entire life, and has many family members in the Houston area.

                                             Conclusion

Based on these factors, we conclude that the trial court did not abuse its discretion in setting the amount of bail at $1,500,000 and in concluding that appellant did not show that bail in this amount is excessive. Accordingly, we overrule appellant=s point of error and affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed October 7, 2008.

Panel consists of Justices Anderson, Frost, and Hudson.^*

Do not publish - Tex. R. App. P. 47.2(b).

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^*  Senior Justice J. Harvey Hudson sitting by assignment.