Estrada v. State, 62970

• Decision Date: 27 February 1980
• Docket Number: No. 2,No. 62970,62970,2
• Citation: 594 S.W.2d 445
• Parties: Alberto ESTRADA, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 445

594 S.W.2d 445

Alberto ESTRADA, Appellant, v. The STATE of Texas, Appellee.

No. 62970.

Court of Criminal Appeals of Texas, Panel No. 2.

Feb. 27, 1980.

Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, ROBERTS and CLINTON, JJ.

OPINION

DOUGLAS, Judge.

Appellant was convicted of possession of heroin. The court assessed punishment at five years.

Estrada complains on appeal of certain conditions placed upon his appeal bond pursuant to Article 44.04(c), V.A.C.C.P. ¹ He contends that the provision of Article 44.04(c) permitting conditions to be placed upon bail pending appeal is violative of the Constitutions of Texas and of the United States, and further asserts that, even if the provision is constitutional, certain of the conditions placed upon his bond are unreasonable.

We find no authority for the assertion that bail conditions are per se unconstitutional. Addressing that question, the United States Court of Appeals for the Eighth Circuit wrote in a per curiam opinion:

"The defendants cite no authority for this contention and we think the course of the common law in England and the development of the common law and statutory law in the United States demonstrate that the courts have the inherent power to place restrictive conditions upon the granting of bail."

United States v. Smith, 444 F.2d 61 (8th Cir. 1971), cert. denied, 405 U.S. 977, 92 S.Ct. 1205, 31 L.Ed.2d 253.

The fountainhead of constitutionality of bail conditions is that they be "based upon standards relevant to the purpose of assuring the presence of (the) defendant." Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed.2d 3 (1951). Such conditions may not impinge unreasonably upon rights guaranteed by the Constitution. ²

We hold that the term "reasonable" in relation to conditions authorized by Article 44.04(c) encompasses these tests, and that the power of the court to impose reasonable conditions on appeal bonds is not repugnant to the Constitution of the United States or of Texas.

The sole remaining question is whether the conditions set by the court were reasonable. The court originally placed the following conditions upon the granting of bail:

"Defendant, ALBERTO ESTRADA, shall:

"(A) Commit no offense against the laws of this State or of any other State or of the United States;

"(B) Report, in person, to the Adult Probation Officer between the first and tenth days of each month;

"(C) Permit the Adult Probation Officer to visit you at your home, your work, or elsewhere;

"(D) Report any change of job, job status, or residence to the Probation Office within twenty-four hours;

"(E) Remain within Nueces County, Texas, unless permitted to depart by the Court and/or the Probation Office;

"(F) Work faithfully at suitable employment as far as possible;

"(G) To insure the Court that you are refraining from illegal use of drugs, you will leave urine samples with the Corpus Christi Methadone Clinic each week, on Monday. Said urine samples to be collected and tested chemically at your cost, as determined by Corpus Christi Methadone Clinic;

"(H) Permit the Corpus Christi Methadone Clinic to report in writing at least once each month the chemical results of said urine analysis to the Court and/or your probation officer, Ms. Claudia Booker; further, any medication prescribed by a physician to you must be immediately brought to the Corpus Christi Methadone Clinic and logged; further, any attempt by you to falsify your urine samples will be considered by the Court as an indication that you are illegally using drugs and may be cause for the Court to revoke your bond;

"(I) Attend at least one full drug counseling session each week as directed by your counselor at the Corpus Christi Methadone Clinic."

After a hearing upon those provisions, the court struck condition (C).

About conditions (G) and (H), appellant's counsel said:

". . . Your Honor, as far as I am concerned that is a condition that we agreed upon at the time that we had the hearing. We said we would do that. I suggest to the Court that probably is proper. He was attending that clinic and the Court had evidence of that. Mr. Estrada told me he is clean and he has no objection to doing that. With condition (g), he's willing to comply with that.

"(H), assuming this statute is constitutional, (h) permits the Methadone Clinic to report to the Court and/or Probation Officer and we have no objection."

We note also that appellant's continued abstention from heroin is rationally related to the likelihood of his continued appearance in court when necessary, and is probative of his abiding by the law as required by condition (A). Conditions (G) and (H) are reasonable and within the sound discretion of the court.

In Brown v. Chase, 462 F.Supp. 938 (D.C., Vt., 1978), the United States District Court found that a provision of pre-trial bond substantially similar to condition (A) was not unconstitutional, and that violation of the law was probative of the increased likelihood of failure to appear when ordered. We agree.

The United States Court of Appeals for the Fifth Circuit, in United States v. Cook, 428 F.2d 460 (5th Cir. 1970), found that restrictions to travel and association far more pervasive than appellant's condition (E) were within the discretion of the court under a federal provision cognate to Section 44.04(c), supra. ³

In overruling a refusal to release an appellant on bail, the United States Court of Appeals for the District of Columbia Circuit conditioned bail upon reporting to a probation officer subject to the same conditions as a probationer, remaining in the jurisdiction of the court except by express permission, continued residence with appellant's wife and children, and obtaining suitable employment. United States v. Harrison, 131 U.S.App.D.C. 390, 405 F.2d 355 (1968). These conditions are as stringent as Estrada's conditions (B), (D), (E) and (F).

In Harrison, the court noted that assured employment is a factor in determining the likelihood of appellant's appearance. We agree.

The same court went even further in Banks v. United States, 134 U.S.App.D.C. 254, 414 F.2d 1150 (1969), naming a probation officer, requiring a monthly report...