Ex Parte Steven Earl Armstead ( 2003 )

Affirmed and Opinion filed May 1, 2003

Affirmed and Opinion filed May 1, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01273-CR

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EX PARTE STEVEN EARL ARMSTEAD

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 925,378

M E M O R A N D U M   O P I N I O N

This is an appeal from the denial of habeas corpus relief.  Appellant Steven Earl Armstead is charged with possession with intent to deliver at least four hundred grams of cocaine. Bond was set at $500,000. Appellant filed a pretrial application for writ of habeas corpus asserting the bond was excessive and asking the trial court to reduce it and set bond at $50,000.  Following an evidentiary hearing, the trial court denied the bond reduction. Appellant filed a timely written notice of appeal.  On appeal, appellant contends in a single issue that the bond set by the trial court is oppressively high and violates his rights under the federal and state constitutions.  We affirm.

The primary purpose of an appearance bond is to secure the presence of the accused at trial on the offense charged. See Maldonado v. State, 999 S.W.2d 91, 93 (Tex. App.─Houston [14th Dist.] 1999, pet. ref=d).  Bail balances the presumption of innocence of the accused with the compelling interest of the State that the accused appear to answer the accusation against him.  See Balboa v. State, 612 S.W.2d 553, 556 (Tex. Crim. App. 1981). Bail should be set high enough to give reasonable assurance that the defendant will appear at trial, but it should not operate as an instrument of oppression.  Maldonado, 999 S.W.2d at 93.  The burden is on the person seeking the reduction to demonstrate that bail is excessive.  Id.  The amount of bail is a matter resting within the sound discretion of the trial court and there is no precise standard for reviewing its determination.  Ex parte Pemberton, 577 S.W.2d 266, 267 (Tex. Crim. App. 1979). Article 17.15 of the Code of Criminal Procedure, however, serves as a guide.

Article 17.15 provides that bail shall be set, in the exercise of discretion, and according 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 may be considered.

Tex. Code Crim. Proc. Ann. art. 17.15.

Other circumstances and factors to be considered in determining the amount of bond include: family ties, residency, ability to make bond, aggravating factors involved in the offense, the defendant=s work history, prior criminal record, and previous and outstanding bonds.  Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. 1981).  Keeping in mind it is appellant=s burden to demonstrate that bail is excessive, we now review the evidence in light of the Rubac factors and those listed in article 17.15.^[1]

A.        Sufficient Bail to Assure Appearance and Bail as Instrument of Oppression

Appellant called no witnesses, other than his defense counsel.  Counsel testified based on his conversations with appellant=s family that appellant, together with his family and friends, could post bail in the amount of $50,000 to $100,000, and they cannot post bond as set.  There was no testimony about appellant=s family or community ties to Harris County, his length of residency, or work history.  There was also no testimony that appellant was not a flight risk and no assurance was given that appellant would appear if released on bond. 

The State presented testimony that appellant is a habitual criminal with several prior convictions for drug offenses.  In addition to two pending drug offenses, and two drug convictions alleged in the enhancement paragraphs of those indictments, appellant had two other prior convictions for drug offenses.  He was also on bond for the offense of possession with intent to deliver between four and 200 grams of cocaine when he was arrested for possession with intent to deliver seven kilos of cocaine.  Thus, the State contends this obvious connection to the drug trafficking trade and the lack of evidence regarding ties to Harris County demonstrates the current bail is set no higher than necessary reasonably assure appellant=s appearance.  See Ex parte Reyes, 4 S.W.3d 353, 355 (Tex. App.CHouston [1st Dist.] 1999, no pet.).  Moreover, because of the immense street value of seven kilos of cocaine, the amount of the current bond is not oppressive.  See, e.g., Ex parte Bonilla, 747 S.W.2d 743 (Tex. App.CHouston [1st Dist.] 1987, no pet.) (holding $250,000 was reasonable bail on charge of delivery of five kilos of cocaine with street value of approximately $500,00).

B.        Nature of the Offense

The amount of bail must also be based on the nature of the offense and the punishment for the offense. Appellant is charged with possession with intent to deliver more than four hundred grams of cocaine. Tex. Health & Safety Code ' 481.112(a).  Specifically, appellant is charged with possessing seven kilos (7000 grams) of cocaine. If convicted, appellant could receive a fifteen to ninety-nine year sentence or life in prison, and a fine not to exceed $250,000.  Tex. Health & Safety Code ' 481.112(f).  Additionally, in cases involving illegal transportation and sale of drugs, a higher bond may be required because of the nature of the offense.  See Maldonado, 999 S.W.2d at 95-96 (upholding bail set at $2,500,000 where defendant was charged with possession with intent to deliver cocaine worth at least $11,000,000).  Ex parte Willman, 695 S.W.2d 752, 753 (Tex. App.─Houston [1st Dist.] 1985, no pet.) (holding $300,00 was reasonable bail on charge of delivery of at least 400 grams of cocaine).  Drug transactions of the type alleged in this case usually require large amounts of cash and the involvement of financial backers willing to forfeit bonds that are not sufficiently high.  Id.

C.        Ability to Make Bail

Appellant presented no evidence of his financial resources, but his attorney testified appellant was unable to post bail as set.  While appellant=s inability to make bail is a factor, it is not the sole determining factor to be considered in setting bail.  Ex parte Gentry, 615 S.W.2d 228, 231 (Tex. Crim. App. 1981). Appellant=s counsel testified appellant and his  family and friends could post a $50,000 or $100,000 bond.  This factor alone does not make the bond excessive.  See Ex parte Welch, 729 S.W.2d 306, 310 (Tex. App.─Dallas 1987, no pet.) (AIf the ability to make a specified bond were determinative, then the trial court would be relegated to the position of setting bail as determined by the accused.@).

D.        Future Safety of the Community

Although there is no evidence that appellant presents a threat of violence to the community, he is charged with possession with intent to deliver a large amount of cocaine. To the extent the community would be harmed by the sale and use of that drug, appellant could be considered a threat to the community.

Conclusion

Based on the evidence in the record, we find appellant has failed to demonstrate that the pretrial bail fixed by the trial court is oppressively high and violates his rights under the state and federal constitutions.  When we consider the evidence relevant to the factors set out in article 17.15 and Ex parte Rubac, we hold the trial court did not abuse its discretion in setting bail at $500,000. Appellant=s sole issue is overruled.

We affirm the trial court=s order denying appellant=s request to reduce his bond.

PER CURIAM

Judgment rendered and Opinion filed May 1, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant=s cites to our opinion in Aviles v. State, 26 S.W.3d 696 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d), which is inapposite because Aviles concerned setting bail after the reversal of the defendant=s conviction.