Ex Parte Edward James Waddell--Appeal from 184th District Court of Harris County

Affirmed and Opinion filed June 19, 2003

Affirmedand Opinion filed June 19, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01237-CR

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EX PARTE EDWARD JAMES WADDELL

On Appeal from the 184th District Court

Harris  County, Texas

Trial Court Cause No. 921,279

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 Edward James Waddell is charged with engaging in organized crime. Bond was set at $1,600,000. 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 stated it would reduce the bond to $750,000 if appellant would surrender his passport to the court until the case was resolved. The trial court denied habeas corpus relief and noted on the judgment that bond remained at $1,600,000 because appellant refused to surrender his passport. On appeal, appellant contends the bond set is oppressively high and violates his rights under the Texas Code of Criminal Procedure and the United States and Texas Constitutions. We affirm.

Background

Based on a warrant that had been outstanding since June 24, 2002, appellant was arrested on August 1, 2002 for engaging in organized criminal activity. On August 16, 2002, appellant filed an application for writ of habeas corpus requesting his bond be reduced to $50,000. The hearings on appellant=s application occurred on August 29, September 10, and October 24, 2002. At those hearings, appellant presented evidence that he could only raise a bond of $50,000. The State presented evidence that appellant was charged with theft of automobiles worth approximately $788,000. The State presented evidence that appellant was involved in a scheme to steal individuals=identity and good credit in order to purchase vehicles from a local car dealership. The State also presented circumstantial evidence that appellant attempted to raise money by passing counterfeit checks and cash. Further, while a warrant was outstanding for appellant=s arrest, appellant attempted to sell narcotics to obtain money to flee the country. The trial court denied habeas relief because appellant refused to surrender his passport.

Jurisdiction

Initially, the State contends we should dismiss appellant=s appeal because the original indictment under which appellant filed his application for writ of habeas corpus has been dismissed. The State admits, however, that the charges were re-filed in another cause number. Appellant remains in custody under a $1.6 million bond and charged with engaging in organized criminal activity. As authority for dismissal, the State cites three cases in which courts have held that after conviction a pretrial application for reduction in bond is moot. See Henriksen v. State, 500 S.W.2d 491, 494 (Tex. Crim. App. 1973); Ex parte Clay, 479 S.W.2d 677, 678 (Tex. Crim. App. 1972; Smith v. State, 848 S.W.2d 891, 893 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d). We have found no authority, nor has the State cited any, that holds appellant must file another application for writ of habeas corpus if the State re-indicts him for the same charge. A habeas corpus proceeding is to secure discharge of one restrained of his liberty. See Dahesh v. State, 51 S.W.3d 300, 302 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). The State=s re-indictment did not change the fact that appellant is restrained of his liberty on a pending charge of organized criminal activity; therefore, the re-indictment did not affect the subject matter of appellant=s writ of habeas corpus. Accordingly, we have jurisdiction over this appeal.

Article 17.151

  In his first issue, appellant contends the trial court erred in not reducing the bond to $50,000 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 in relevant part:

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; . . . .

  Tex. Code Crim. Proc. Ann. art. 17.151,  '1.

  Thus, 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.).

On November 19, 2002, appellant filed a motion to reconsider his application for writ of habeas corpus. In that motion, appellant stated he had been in custody for more than ninety days and asked to be released pursuant to article 17.151 of the Code of Criminal Procedure. Appellant contends a hearing was held on his motion to reconsider, and at that time the State failed to announce that it was ready for trial. This court has no record of a hearing on that date. Cynthia J. Lee, the official court reporter for the 184th District Court, filed a notice with this Court in which she stated that no hearing was held in this matter on November 19, 2002, and therefore, no reporter=s record was made. The court reporter stated she confirmed that neither the trial court=s docket sheet nor her calendar showed a hearing in this matter on November 19, 2002. Instead, appellant=s counsel had a discussion with the trial judge in front of the clerk=s desk without a formal hearing.

A writ applicant bears the burden of proving facts that would entitle him to relief. Ex parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993). The record before us fails to reflect that the State was not ready for trial within ninety days of appellant=s confinement. Our record reflects the last hearing held on appellant=s application for writ of habeas corpus was October 24, 2002, eighty-four days after appellant had been taken into custody. Thus, the record before this Court does not support appellant=s contention that the State failed to comply with article 17.151's ninety-day requirement. 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.

  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.

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

  The evidence indicates little that would keep appellant in the country if his bond were significantly reduced. The State presented evidence that appellant knew that an outstanding arrest warrant had issued and that he tried to raise money so that he could leave the country. Further, the trial court agreed to reduce appellant=s bond if he surrendered his passport. The trial judge explained the passport would be kept in a safe and would be returned upon resolution of the charges. Appellant, however, refused to surrender his passport. Although appellant has family ties to Harris County, he has expressed a desire to flee.

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 was indicted for engaging in organized criminal activity. Tex. Pen. Code  '71.02. If convicted, appellant could be sentenced to between five and ninety-nine years in prison. Tex. Pen. Code  '12.32. Houston Police Officer Mike Ingels testified extensively about the nature of this offense. The criminal activity alleged in the indictment involves participating in a scheme to steal individuals=  credit to fraudulently purchase expensive vehicles. The value of the vehicles stolen is approximately $788,000. In addition, Officer Ingels testified about appellant=s involvement in other criminal activities relating to counterfeit checks and drug trafficking.

C. Ability to Make Bail

The applicant for writ of habeas corpus bears the burden of proof when he claims that the amount of bail set is excessive. Ex parte Rubac, 611 S.W.2d at 849. Appellant did not testify at the writ hearing. The only evidence he offered was the testimony of a bail bondsmen, John Burns. Burns testified he had a telephone conversation with one of appellant=s sisters about assets the family could use as collateral, and based upon that conversation Burns concluded appellant could meet a bond of $50,000. There was absolutely no testimony about appellant=s financial resources, and Burns had no information about appellant=s personal finances.

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). This factor alone does not make 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.@).

Appellant relies on Ex parte Bogia, 56 S.W.3d 835 (Tex. App.CHouston [1st Dist.] 2001, no pet.) in arguing that this factor weighs heavily in his favor. In Bogia, the court determined that bail in the amount of $360,000 was excessive and ordered it reduced to $10,000. Id. at 840. In that case, the trial court followed the Harris County District Court Bail Schedule, which provides for bail in cases of Alarge quantities of stolen property@to be set at double the value of the property. The First Court of Appeals held that the facts in Bogia did not justify such a high bail. Bogia had significant ties to the community, including a twelve-year-old child, and there was no evidence of flight. Id. at 836. In Ex parte Keller, 595 S.W.2d 531, 533 (Tex. Crim. App. 1980), cited in Bogia, bail for defendants accused of receiving more than $1,000,000 worth of stolen property was ordered reduced to $10,000. Again, the record in that case reflected more extensive ties to the community than are shown in the cause before us and there was no evidence of attempted flight. See id. at 532.

  Although the trial court in this case also appears to have followed the Harris County District Court Bail Schedule, the extraordinary circumstances concerning appellant=s attempt to raise money to flee the country and his refusal to surrender his passport justify a bond at double the amount of the stolen property.

D. Future Safety of the Community

There is no evidence appellant presents a threat of violence to the community.

E. The Remaining Factors

Appellant presented no evidence of an established work record in Harris County. The State presented evidence that appellant was the president of Vortex Development Incorporated, a corporation that occupied empty office space and had no visible source of income. The State also presented evidence that appellant was being investigated by the United States Treasury Department for passing counterfeit checks and cash and that the DEA was investigating appellant for drug trafficking. In addition, appellant has been previously convicted for unauthorized use of a motor vehicle.

Conclusion

It is apparent from the record that the primary concern of the trial court in setting bail was to assure that appellant would appear in any future court proceedings, particularly in light of the testimony that appellant had attempted to raise money to flee the country when he learned of the warrant for his arrest. The trial court agreed to reduce appellant=s bond if he surrendered his passport. Because appellant refused to surrender his passport, his bond was not reduced. 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 $1,600,000. Appellant=s second through fifth points of error are overruled.

The judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Opinion filed June 19, 2003.

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

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