Perez v. State, 04-94-00807-CR

• Decision Date: 03 April 1995
• Docket Number: No. 04-94-00807-CR,04-94-00807-CR
• Citation: 897 S.W.2d 893
• Parties: Ex parte Raul PEREZ, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 893

897 S.W.2d 893

Ex parte Raul PEREZ, Appellant v. The STATE of Texas, Appellee.

No. 04-94-00807-CR.

Court of Appeals of Texas,

San Antonio.

April 3, 1995.

Stephanie L. Stevens, San Antonio, for appellant.

Steven C. Hilbig, Crim. Dist. Atty. and Edward F. Shaughnessy, III, Asst. Crim. Dist. Atty., San Antonio, for appellee.

Before CHAPA, C.J., and HARDBERGER and GREEN, JJ.

OPINION

PER CURIAM.

This is a habeas corpus appeal from an order denying post-conviction reduction in bail pending appeal. Perez pled guilty to Felony Driving While Intoxicated and received a four-year sentence. His bond pending appeal was set at $100,000 and five months later Perez moved for reduction of the appeal bond. ¹ The court heard evidence, denied the motion, and this appeal followed. For the reasons stated below, we reverse the trial court's decision and order a reduction in the bail amount.

Perez contends that the order denying reduction in bail should be reversed because it is excessive under (1) articles 17.15 and 44.04(c) of the Texas Code of Criminal Procedure; (2) the Eighth and Fourteenth Amendments of the United States Constitution; and (3) Article I, sections 11 and 13 of the Texas Constitution.

The Texas Constitution recognizes the right to bail by sufficient securities in all criminal offenses except when the probability of assessing the death penalty is strongly indicated. See TEX. CONST. art. I, § 11. This constitutional right to bail, however, is limited to pre-conviction cases. Ex parte Laday, 594 S.W.2d 102, 103 (Tex.Crim.App.1980) (en banc); Ex parte Davis, 574 S.W.2d 166, 168 n. 2 (Tex.Crim.App.1978); Ex parte Bitela, 452 S.W.2d 501, 501 (Tex.Crim.App.1970); Ex parte Nielssen, 446 S.W.2d 882, 882 (Tex.Cr.App.1969); Ex parte Ezell, 40 Tex. 451, 460 (1874). Convicted felons are not guaranteed the right to bail under the constitution. Ex parte McBride, 108 Tex.Crim. 618, 2 S.W.2d 267, 267 (App.1928). Once the accused has been found guilty, his or her status has changed.

Article 44.04(b) renders a convicted felon ineligible for bail pending appeal where punishment in excess of 15 years confinement has been assessed. In cases where the assessed punishment is 15 years or less, the trial court has the discretion to set bail or to deny bail for good cause shown. ² See TEX.CODE CRIM.P. art. 44.04(b), (c). The trial court may deny bail to one appealing a felony conviction where punishment does not exceed 15 years if there is good cause to believe that the defendant is likely to commit another offense while on bail. Id., art. 44.04(c). There is some evidence in the record to suggest that the trial court in this case focused on the likelihood that appellant would. At least one court of appeals, however, has held that the statutory authority to deny bail pending appeal in certain cases does not carry with it authority to set excessive bail in such cases. See Ex parte Harris, 733 S.W.2d 712, 715 (Tex.App.--Austin 1987, no pet.) (reducing $50,000 bail pending appeal of D.W.I. conviction to $10,000).

Once the trial court determines that a person is eligible for bail, the bail to be set must be reasonable. Article 17.15 of the code of criminal procedure lists the following factors to be considered in determining the appropriate amount of bail:

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.

TEX.CODE CRIM.PROC.ANN., art. 17.15 (Vernon Supp.1994).

The burden is on the person seeking a reduction to show that the bail set is excessive. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex.Crim.App.1981) (bail pending appeal). The bail shall be sufficiently high to give reasonable assurance that if his conviction is affirmed, he will present himself to the authorities to serve his sentence. See id.; TEX.CODE CRIM.P. art. 17.15 (Vernon Supp.1995).

While an accused's ability to make bail may be considered, it is not dispositive. Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex.Crim.App.1980); see also Ex parte Ivey, 594 S.W.2d 98, 99 (Tex.Crim.App.1980) ($250,000 bail for unemployed armed robbery defendant reduced to $50,000); Ex parte Vasquez, 558 S.W.2d 477, 480 (Tex.Crim.App.1977) ($100,000 bail for indigent capital murder defendant who admitted driving get-away car reduced to $20,000).

Although the ability to make bail is a factor to be considered, ability alone, even indigency, does not control the amount of bail. In considering the nature of the offense, it is appropriate to consider the possible punishment as well. Although the bail should be high enough to give reasonable assurance that the undertaking will be complied with, the amount should not be oppressively high.

Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex.Crim.App.1980) (citations omitted).

The Rubac opinion contains a list of factors a court should consider in determining reasonable bail post-conviction. The length of the sentence and the nature of the offense are considered primary factors. Other relevant circumstances include the petitioner's work record, family ties, length of residency, conformity with previous bond conditions, other outstanding bonds, and any aggravating factors involved in the offense. Rubac, 611 S.W.2d at 849-50 (reducing a $100,000 bond pending appeal of narcotics conviction to $25,000). The Rubac case categorized narcotics charges to be non-violent. Id., at 849.

Applying this analysis, the following facts appear in the record of the case at bar:

1. The length of sentence imposed is four years. At the time this appeal was submitted, appellant has already served 10 months.

2. The nature of the offense is DWI. The trial court expressed concern on the record for the future safety of the community should appellant commit another offense while out on bond pending appeal. ³

3. The petitioner's work record is a 12-year history in the maintenance department of South San Antonio Independent School District.

4. His family ties include a daughter who is a local attorney, a daughter who is a college student married to a San Antonio police officer, and a son who is in high school. His married daughter and son-in-law are willing to have him stay with them while his appeal is pending so long as he does not drink alcohol. He has continued to make child support payments from his savings while incarcerated.

5. With the exception of his years of military service, he is a life-long resident of Bexar County.

6. He and his daughter testified that neither he nor anyone in his family has the ability to meet the conditions of a $100,000 bond, that he has $1,500 in a bank account available to purchase a bond. The family had contacted three bondsmen and was unable to meet their terms.

7. This is his third DWI conviction and there are other arrests for DWI on his record. However, he is enrolled in an Alcoholics Anonymous program while incarcerated. He has no history of violent crime. He owns a older vehicle. ⁴

8. His history of conforming to the terms and conditions of previous bonds is unclear. The trial judge referred to prior offenses committed while on other bonds, but the PSI report is not part of the record on appeal. ⁵ The two prior DWI convictions were misdemeanors upon which he was released on PI bonds. It does not appear that his past actions ever resulted in a bond forfeiture proceeding.

9. The record does not reflect any other outstanding bonds.

10. There do not appear to be any aggravating factors concerning this offense.

A review of some of the opinions analyzing the reasonableness of bail may provide further guidance to the trial court. In Ludwig v. State, which involved violent crime, the trial court set bail at $2,000,000 for multiple murder charges. The court of appeals reduced bail to $1,000,000. The court of criminal appeals found that amount excessive and set bail at $50,000. Ludwig v. State, 812 S.W.2d 323 (Tex.Crim.App.1991).

Recently, this court reviewed excessive bail in capital murder cases in Ex parte McDonald, 852 S.W.2d 730, 733-34 (Tex.App.--San Antonio 1993, no pet.). McDonald's bail had originally been set at $1,000,000 where the accused was indicted for killing his ex-wife during a kidnapping attempt. Id. at 734. McDonald reported the crime and turned himself in to the police. Id. at 735. A long-time resident of the city, he lived with his ailing mother and had few assets. Id. The victim's son testified that he feared McDonald. Id. Nevertheless, we found the $1,000,000 bail oppressively high because it was far higher than necessary to insure that the defendant would appear at his trial and we reduced the bail amount to $75,000. Id. at 736. We noted, however, that each case must be evaluated upon its unique facts. See id. at 735 n. 4.

The Harris opinion issued by the Austin Court of Appeals concerns the same primary factors as this case: the issue of reasonable bail for felony D.W.I. and a four-year sentence. Many of the other relevant factors are also similar: an older, life-long resident of the county, with some regular income and an inability to meet the conditions of a $50,000 bond. Harris, 733 S.W.2d at 713. Harris had a history of alcohol-related convictions, including violations of probation conditions due to alcohol. Id. The court of appeals rejected the State's position that since there was evidence to support outright denial of bail, a high bond was not an abuse of discretion. Id. at 714. The deliberate setting of bail at a level the court knew the appellant could not afford under these circumstances was oppressive. Id. The court concluded:

The statutory authority to...