Ex Parte Edward Jerome Huff--Appeal from 180th District Court of Harris County

Affirmed and Opinion filed March 20, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01069-CR

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EX PARTE EDWARD JEROME HUFF

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 922,818

O P I N I O N

This is an appeal from the denial of habeas corpus relief. Appellant Edward Jerome Huff is charged with possession with intent to deliver at least four hundred grams of cocaine. Bond was set at $300,000 and later reduced to $200,000. 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 a reasonable bond. Following an evidentiary hearing, the trial court denied the bond reduction. On appeal, appellant contends the bond set by the trial court is oppressively high and violates his rights under the Texas Code of Criminal Procedure, and the United States and Texas Constitutions. We affirm.

Background

Appellant was arrested in Harris County, Texas on May 4, 2002 with two kilograms of cocaine in his possession. At the time of his arrest, appellant was driving a rental car and staying in motels for which he paid cash on a day-to-day basis. In addition to two kilograms of cocaine, appellant also possessed a Florida driver s license, a Texas identification card, and a one-way bus ticket to Florida for which he paid cash.

At the hearing on appellant s application for writ of habeas corpus, appellant presented testimony that he has enough collateral to make a $50,000 bond, but only has enough money to pay fees on a $25,000 bond. The State introduced evidence of appellant s prior felony conviction in Texas, his arrest record in Florida, and a pending charge of possession of marijuana in Chambers County. The trial court denied habeas relief.

Applicability of Article 17.151

In his first issue, appellant contends the trial court erred in not reducing the bond to $25,000 due to the State s failure to show readiness for trial within ninety days of appellant s arrest, pursuant to article 17.151 of the Texas Code of Criminal Procedure. Section 1 of article 17.151 states:

A defendant who is detained in jail pending trial of an accusation against him must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial of the criminal action for which he is being detained within: (1) 90 days from the commencement of his detention if he is accused of a felony.

If the State is not ready for trial within ninety days after commencement of detention for a felony, the trial court has two options: release on personal bond or reduce the bail amount. See Rowe v. State, 853 S.W.2d 581, 582 (Tex. Crim. App. 1993); Ex parte Ancira, 942 S.W.2d 46, 47 (Tex. App. Houston [14th Dist.] 1997, no pet.). The State did not show readiness for trial in this offense within ninety days of appellant s arrest.

The State contends, however, that section 1 of article 17.151 does not apply because at the time he was arrested for the Harris County offense, appellant was on bond for a pending offense in Chambers County. The record reflects that following appellant s arrest in Harris County, a detainer was placed by Chambers County for pending possession of marijuana charges. Section 2 of article 17.151 of the Texas Code of Criminal Procedure provides:

The provisions of this article do not apply to a defendant who is: (2) being detained pending trial of another accusation against him as to which the applicable period has not yet elapsed[.]

The writ hearing record does not reflect whether the applicable period has lapsed in the Chambers County case or whether the State has shown readiness for trial in that case. A writ applicant has the burden of proving facts that would entitle him to relief. Ex parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993). Therefore, appellant has failed to defeat the exception to section 1 of article 17.151. Because appellant failed to prove facts that would entitle him to relief, we find the trial court did not abuse its discretion in denying relief. Appellant s first issue is overruled.

Excessive Bail

In his second through fifth issues, appellant contends the bond set by the trial court is oppressively high and violates his rights under the United States and Texas Constitutions. 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). However, article 17.15 of the Code of Criminal Procedure 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.

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.

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

The evidence indicates little that would keep appellant in Texas if his bond were significantly reduced. When he was arrested, he had a Florida driver s license and a one-way bus ticket to Florida. While in Texas, he has used a rental car and stayed in motels paid by the day in cash. Appellant presented no evidence of ties to Harris County or Texas.

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). Appellant was arrested with two kilograms of cocaine, worth approximately $200,000. If convicted, appellant could receive a fifteen to ninety-nine year sentence or life in prison. 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. Ex parte Willman, 695 S.W.2d 752, 753 (Tex. App. Houston [1st Dist.] 1985, no pet.). Drug transactions of the nature alleged 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 evidence that he could not meet a bond of $200,000. 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 testified that he could raise enough cash to fund a $25,000 bond or enough collateral to fund a $50,000 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.) ( If 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.

E. The Remaining Factors

Appellant presented no evidence of an established work record or family ties to Harris County or Texas. Appellant was living in motels for which he paid on a day-to-day basis. He has previously been convicted of a felony in Texas. Appellant also served probation for possession and sale of marijuana in Florida. Further, appellant has a pending marijuana-possession charge in Chambers County.

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 $200,000. Appellant s second through fifth issues are overruled.

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

/s/ Scott Brister

Chief Justice

Judgment rendered and Opinion filed March 20, 2003.

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

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