Ex Parte Ebah Haddad v.--Appeal from 248th District Court of Harris County

Affirmed and Memorandum Opinion filed October 25, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-07-00505-CR

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EX PARTE EBAH HADDAD

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 1118827

M E M O R A N D U M O P I N I O N

This is an interlocutory appeal from an order denying a pretrial application for writ of habeas corpus seeking a reduction in the $350,000 bond set by the trial court. In a single issue on appeal, appellant asserts that the bail amount is excessive. We affirm.

Appellant is charged with the offense of making a false statement to obtain credit.[1] The trial court originally set pre-trial bond at $2,000,000, which was subsequently reduced to $350,000. Appellant filed an application for writ of habeas corpus seeking a further reduction in the amount of his bail. After a hearing, the trial court entered an order denying appellant habeas relief. On appeal, appellant contends that the amount of his bail is unreasonable, excessive, and oppressive and requests bail be set at no more than $30,000.

A>Bail= is the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or a personal bond.@ Tex. Code Crim. Proc. Ann. art. 17.01. Article 17.15 provides that the amount of bail is to be governed by 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 and the community shall be considered.

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

The ability to make bond is one of the many factors to be considered; however, it does not control the amount of bail and will not automatically render an amount excessive. Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App.1980); Ex parte Branch, 553 S.W.2d 380, 382 (Tex. Crim. App.1977). If the ability to make bond in a specified amount controlled, then the role of the trial court in setting bond would be eliminated, and the accused would be in a position to determine what his bail should be. Ex parte Hunt, 138 S.W.3d 503, 506 (Tex. App.CFort Worth 2004, pet. ref'd).

In addition to the rules listed in Article 17.15, the following factors may also be considered: possible punishment, the accused's work record, his ties to the community, the length of his residency, his prior criminal record, his conformity with any prior bail bond conditions, his ability or inability to make a bail bond, and the existence of any outstanding bail bonds. Ex parte Charlesworth, 600 S.W.2d at 317; Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. 1980); Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977). The primary purpose of the bail bond is to secure the accused's presence in court. Ex parte Vasquez, 558 S.W.2d at 479.

Before these charges were brought, the Haddad brothers were in the real estate investment business buying property and reselling it at a higher price. AStraw@ buyers, who had good credit but insufficient income, were recruited to purchase homes at prices that did not reflect their true value. False information was included in the loan applications reflecting employment with high salaries and bank deposits that did not exist. Profits from the sale of the homes were wired to companies set up by the Haddads. The state=s investigation, which is still ongoing, has revealed more than $2.2 million from the sale of thirteen properties has been deposited in the Haddads= accounts.

During the investigation, the Haddads moved out of their apartment and could not be located. Both Haddads are Israeli Nationals on whom Immigration detainers have been issued because they are in the United States without permission. A customs alert was issued in case the Haddads attempted to leave the country. On April 21, 2007, the Haddads were detained as they were leaving on a private plane bound for Spain.

The setting of bail is a matter resting within the sound discretion of the trial court. Ex parte Pemberton, 577 S.W.2d 266, 267 (Tex. Crim. App. 1979). The accused has the burden to prove that bail is excessive. Ex parte Rubac, 611 S.W.2d 848, 859 (Tex. Crim. App. 1981).

At the hearing, appellant offered the testimony of Edd Blackwood, Jr., a licensed Harris County bail bondsman. Blackwood testified he had evaluated appellant=s financial ability to post a bail bond and found no property or bank accounts he could pledge as collateral. The largest bond he would be willing to underwrite would be $30,000. Under the policies and practices of the bail bond business in Harris County, Blackwood asserted that 100% collateral in the form of stocks, bonds, unencumbered real estate or cash, would be required. If real property pledged was encumbered by liens, $700,000 equity would be required to underwrite a $350,000 bond.

Appellant also offered the testimony of Richard Prinz, a board certified immigration attorney who represents the Haddads in their attempts to gain U.S. citizenship. He testified the brothers entered the U.S. as visitors in 1999, married U.S. citizens, and applied for green cards requesting permanent residence based on the marriages. Each brother was later divorced and is listed as Aoverstayed on his visa,@ meaning appellant is subject to deportation. Appellant has begun the procedure to obtain a green card through employment, listing Caf Lili as his employer, and he posted a $10,000 immigration bond.

Additional testimony at the hearing established that appellant has no ties to Harris County other than some friends and a girlfriend to whom he recently became engaged. Two friends testified appellant could stay with them if he were released on bond. Appellant no longer has a residence in Harris County and has no family here other than his brother.

The trial court was free to believe that appellant has access to sufficient funds to post bond based upon the discovery of over $2.2 million being paid to the Haddads= companies. The evidence at the bail hearing found that appellant has minimal ties to the community. IN addition, he faces punishment of up to a life term in prison for this felony offense. The fact that the Haddads had moved out of their apartment and were apprehended leaving the country weighs heavily in favor of a sufficiently high bond to Agive reasonable assurance@ that appellant will appear for trial. See Tex. Code Crim. Proc. Ann. art. 17.15(1).

Based upon this record, we cannot say the trial court abused its discretion in denying habeas relief. Appellant has not satisfied his burden to establish that bail should be further reduced. Accordingly, we overrule appellant=s sole issue and affirm the trial court=s order.

PER CURIAM

Judgment rendered and Memorandum Opinion filed October 25, 2007.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

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

[1] Ehab Haddad and Khalil Haddad are brothers charged with being involved in the same mortgage fraud scheme. Khalil Haddad=s appeal from the trial court=s denial of his application for writ of habeas corpus is filed under our number 14-07-00506-CR.