Ex Parte Alfredo Castillo Lorente , 420 S.W.3d 884 ( 2014 )

Affirmed and Opinion filed January 23, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00541-CR
NO. 14-13-00542-CR
EX PARTE ALFREDO CASTILLO-LORENTE, Appellant
On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Cause Nos. 13-DCR-063078 & 13-DCR-063079
OPINION
In this appeal of the denial of an application for writ of habeas corpus, we
consider whether the trial court abused its discretion in setting appellant’s pretrial bail.
We affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant is charged with engaging in organized criminal activity and money
laundering in an amount greater than $200,000. Both charges arise out of alleged
fraudulent use of identifying information. The trial court originally set bail at $400,000
for the charge of engaging in organized criminal activity and $250,000 for the money
laundering charge. Appellant filed an application for writ of habeas corpus requesting
the trial court to reduce his bail to a reasonable amount; appellant contended at the
hearing that a reasonable amount would be $40,000 on each count. After conducting a
hearing, the trial court reduced appellant’s bail to $225,000 on each count. Appellant
filed this appeal.1
Appellant did not testify at the hearing. Gladys Lorente, 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 $40,000 bond on each count.
For approximately two years, appellant was employed making deliveries
for a company called Hoyo de Cuba.
Appellant has been married for more than fourteen years and has no
children.
Appellant has lived in the Houston area for six years; he has maintained
employment during those six years, primarily doing odd jobs such as
“handyman” or landscaping work.
Appellant and his wife each own a vehicle.
Appellant has family members still living in Cuba and recently visited
them.
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 $30,000 bonds in 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.
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Appellant’s co-defendant, Fernando Castellanos, was charged with engaging in organized
criminal activity, fraudulent use or possession of identifying information, and money laundering. The
trial court also reduced the co-defendant’s bail to $225,000 in each count. The co-defendant has
appealed that decision in cause numbers 14-13-00538-CR, 14-13-00539-CR, and 14-13-00540-CR.
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Detective Matthew Cardenas testified as follows:
He found no work history for appellant through the Texas Work Force
Commission.
Appellant and his co-defendant are accused of purchasing credit card
numbers online and 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 then used
the cloned cards to purchase gift cards, clothes, food, and other items.
A search warrant of appellant’s house revealed several gift cards alleged to
have been purchased with stolen credit card numbers.
Investigators located money order transfers from appellant from the United
States to Cuba, the Ukraine, Russia, and other countries.
Other individuals who were involved in the alleged 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). Whether the bail set is excessive is reviewed under an abuse of discretion
standard. See Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim. App. 1981). A
defendant carries the burden of proof to establish 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 trial court
subject to the following rules:
1. The bail shall be sufficiently high to give reasonable assurance of
compliance with the undertaking.
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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 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 to 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 also may 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. Appellant
emphasizes that he has no criminal record and the offenses for which he is charged are
non-violent.
Nature of the Offenses and Circumstances Under Which They Are Alleged to
Have Been Committed
The indicted offenses are engaging in organized criminal activity and money
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laundering more than $200,000. The offenses are punishable by imprisonment for
fifteen to ninety-nine years or life. Tex. Penal Code Ann. § 34.02 (money laundering), §
71.02 (engaging in organized criminal activity). The defendant’s potential sentence and
the nature of the crimes are significant 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). 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 the charged offenses and the lengthy potential sentences, appellant may
have 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 are accused of being the
top two individuals in a credit-card-fraud ring that is alleged to have defrauded hundreds
of victims. Some 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. Appellants are Cuban nationals and
there is evidence they transferred money orders to Cuba, the Ukraine, and Russia.
Appellant offered to relinquish his passport, but the evidence at the writ hearing
supports a finding that appellant is a significant flight risk based upon his ties to
individuals in other countries and access to equipment with which to make counterfeit
credit cards. On this record, the trial 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.
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Accused’s Ability to Make Bail
To show that he is unable to make bail, a defendant generally must establish 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 alleged
inability to make bail consisted of Lorente’s testimony that appellant’s family and
friends have spoken with a bail bondsman and learned they can afford to post a $40,000
bond on each count and Castillo’s testimony that the bonding company would post a
$30,000 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 very little evidence supporting his claimed inability
to make bail, the trial court properly could 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 to post the bond, but
he did not detail either his or his family’s specific assets and financial resources nor his
efforts to furnish bond).
Future Safety of Victims and the Community
In support of his argument to lower bail, appellant points out that he is charged
with non-violent offenses. Cardenas testified that restrictions on computer use and the
Internet would not prevent appellant from continuing to illegally obtain credit card
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numbers if he were released on bond. There was no evidence presented concerning any
physical threat appellant might pose to victims of the offenses or to the community. But,
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
The evidence is conflicting as to whether appellant maintained employment. He is
a Cuban national and the record contains evidence indicating he was involved in money
order transfers to Cuba and other foreign countries. The record reflects that appellant is
a permanent resident of the United States, but not a citizen. Appellant has no prior
criminal history and has lived in the United States for six years. He has a wife and
cousin in the Houston area. 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 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
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Clause of the Eighth Amendment).
Based on the evidence before the trial court in this case, the trial judge reasonably
could have concluded the bail set was justified by the circumstances presented. The
record contains 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 reasonably could have concluded a bond of
$225,000 for each count was necessary to deter appellant from fleeing the jurisdiction.
CONCLUSION
Based on our consideration of the above factors and the record evidence, we
conclude that the trial court did not abuse its discretion in setting appellant’s bail at
$225,000 on 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 order.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Jamison and Wise.
Publish — TEX. R. APP. P. 47.2(b).
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