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

Affirmed and Memorandum Opinion filed November 8, 2007

Affirmed and Memorandum Opinion filed November 8, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-07-00506-CR

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EX PARTE KHALIL HADDAD

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 1118826

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 Khalil Haddad=s application for writ of habeas corpus, seeking reduction of pretrial bail. Appellant is charged with the offense of false statement to obtain credit[1] and pretrial bail was set originally at $2 million, but was later reduced to $350,000. Appellant claims the trial court abused its discretion in refusing to reduce bail to a reasonable amount. We affirm.

Appellant claims it was an abuse of discretion to set bail at $350,000 because this amount is excessive and in violation of the Fifth Amendment of the United States Constitution, Article I, section 11 of the Texas Constitution, and Articles 1.07, 1.09, and 17.15 of the Texas Code of Criminal Procedure. Appellant argues that application of the factors set out in Article 17.15 of the Code of Criminal Procedure and case law, including Ex parte Bogia, 56 S.W.3d 835 (Tex. App.BHouston [1st Dist.] 2001, no pet.), mandates appellant=s bond be lowered to $30,000.

Evidence at the Hearing

In support of his claim that the bond was excessive, appellant offered the testimony of four witnesses. Edd Blackwood, Jr., is a licensed bail bondsman in Harris County. He testified that he bases his decision whether to make bail on the charge, the penalty, the amount of the bond, social involvement in the community, family ties, employment record, past history, and collateral. In this case, Blackwood testified he talked with appellant and did research. According to his research, Blackwood found that appellant owns more than one parcel of property, but one may be homestead and appellant has no equity in the other properties. Furthermore, Blackwood testified that, although appellant is employed there is no bank account, car title, or other collateral. Thus, Blackwood testified that he would make a bond of $20-30,000.

Richard Prinz, appellant=s immigration attorney, testified that appellant entered the country as a visitor, then married, applied for a green card and then divorced. Appellant was denied a green card and has overstayed his visa, but has applied for a green card through employment.

Ahmad Shayeb and Juan Carlos Bolivian testified on behalf of appellant. Shayeb testified he knew appellant as a fellow car salesman. Shayeb testified that appellant is known in the Arabic community, has no family in the State, and has never expressed a desire to leave the country. Shayeb testified that appellant could stay with him if he is released on bond. Bolivian testified he is a personal trainer at 24 Hour Fitness, where he met and worked with appellant. Bolivian became friends with appellant. Bolivian did not know of any relatives of appellant living in Houston or in the country. Bolivian testified he would allow appellant to live with him if he is released on bond.

The State offered the testimony of Michael Kelly, an investigator for the Harris County District Attorney=s office. Kelly opened an investigation into the activities of appellant and appellant=s brother in February of 2007. Elizabeth Ubinger provided information to Kelly that she was employed by appellant and his brother in the real estate investment business. Ubinger testified that she transported straw buyers to closings and assisted with the use of false information on applications for loans. After investigation of thirteen of the properties purchased, Kelly found that appellant and his brother received approximately $2.2 million. Kelly has not completed his review of all transactions. Kelly has not learned where this money went. In March 2007, Kelly learned that appellant moved out of his apartment. Kelly placed a Customs Alert and he was advised in April 2007 that appellant, his brother, and a woman were attempting to leave the country on a private plane. Appellant was then arrested. Kelly discovered a bank account for a business owned by appellant and his brother and it contained less than $100. Kelly has not located other bank accounts.

Standard of Review

Article 17.15 of the Code of Criminal Procedure provides the parameters for fixing the amount of bail. Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon 2005). The statute provides these 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 (Vernon 2005).

The defendant bears the burden of showing that the amount of bail set is excessive. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. 1981). The primary factors we must consider in reviewing bond are the punishment that may be imposed and the nature of the offense. Id. Other factors we must consider include family ties, ability to make bond, residency, the defendant=s work history, prior criminal record, aggravating factors involved in the offense, and previous and outstanding bonds. Id. at 849-50. Ability or inability to make bail does not alone control in determining the amount of bond. Ex parte Vance, 608 S.W.2d 681, 683 (Tex. Crim. App. 1980).

A. Sufficient Bail to Assure Appearance

The evidence indicates that appellant and his brother had moved out of their apartment and were attempting to leave the country by private plane from an airport in Maine. Although appellant argues that there is no evidence appellant knew he was being investigated, the attempt to leave the jurisdiction nonetheless supports a higher bond. Appellant has no family ties in Houston or Texas, other than his brother.

B. Not to be Used as an Instrument of Oppression

The second factor requires a trial court to ensure that bail is not used as an instrument of oppression. The bail bondsman testified that, given the lack of bank accounts and property for collateral, he could make a bond no higher than $20-30,000. However, the investigator from the DA=s office testified that appellant=s business had received wire transfers of over $2 million. Despite wire transfers of over $2 million to appellant and his brother, the bank accounts located by the DA=s investigation to date contain less than $100.

Certainly, the lack of funds in bank accounts supports a lower bond, but the record tends to show that appellant should have more funds than those located to date. Simply because the bail bondsman testified he would make only a low bond does not prove that bail is being used as an instrument of oppression.

C. Nature of the Offense

In connection with this factor, we must consider the length of the sentence and the nature of the offense. Rubac, 611 S.W.2d at 849. Appellant is charged with one count of false statement to obtain credit, a first-degree felony offense. The punishment for a first-degree felony is imprisonment for life or for a term of not more than 99 years or less than 5 years, and a fine not to exceed $10,000. See Tex. Penal Code Ann. ' 12.32 (Vernon 2003). Thus, the nature of the offense is serious, with a potentially substantial punishment.

Bail amounts for first-degree felonies range from $1,000 to $1 million. See, e.g., Ex parte Carson, 215 S.W.3d 921 (Tex. App.BTexarkana 2007, no pet.)(bail for possession of controlled substanceB$1,000); Tran v. State, 2006 WL 1771815 (Tex. App.BHouston [1st Dist.] 2006, no pet.)(bail for possession of cocaineB$800,000; bail for possession of marijuanaB$500,000); Pharris v. State, 2006 WL 3313323 (Tex. App.BHouston [14th Dist.] 2006, pet. ref=d)(bail for first-degree felony theftB$500,000); Ex parte Cuevas, 2004 WL 527960 (Tex. App.BEastland 2004, no pet.)(bail for engaging in organized criminal activityB$1,000,000); Gonzalez v. State, 996 S.W.2d 350 (Tex. App.BHouston [14th Dist.] 1999, no pet.)(bail for aggravated robberyB$90,000); In re Traylor, 1999 WL 497424 (Tex. App.BHouston [1st Dist.] 1999, no pet.)(bail for theftB$100,000). Considering this range of amounts, bail of $350,000 is not unreasonable.

D. Ability to Make Bail

Although the ability to make bail is a factor to consider, it is not controlling. See Vance, 608 S.W.2d at 683. The bail bondsman testified that he would make a bond no higher than $30,000 for appellant. However, the record also shows that appellant and his brother received wire transfers, in connection with their real estate activities, of funds in excess of $2 million. Appellant provided no evidence regarding income earned or value of the real estate companies owned by appellant and his brother.

E. Future Safety of the Victim and Community

No evidence was presented regarding future safety of victims in this case.

F. Remaining Factors

The remaining factors include work record, family ties, length of residence, and past record of appearing for trial. No evidence was presented of prior bail or criminal record. The record does not show appellant=s length of residence. Appellant=s work record, other than general testimony about past car sales, involves activities for which he is charged in this case. The record indicates that appellant has no family ties in Houston or in the state. Finally, the record indicates that appellant may be a flight risk. Although appellant=s counsel argues that there is no proof appellant knew of possible criminal charges at the time he was preparing to leave the country, the circumstances raise a strong inference that appellant is a flight risk. Appellant had moved out of his apartment, traveled to another state, and made arrangements to leave the country on a private plane. This factor alone supports a high bail.

Conclusion

Case law provides that the primary factor to consider is the nature of the offense. See, e.g., Rubac, 611 S.W.2d at 849. Based upon our review of the record, including the risk of flight and the serious nature of the offense, we cannot say the trial court abused its discretion in setting bail at $350,000.

We overrule appellant=s sole issue and we affirm the trial court=s order denying appellant=s application for writ of habeas corpus.

PER CURIAM

Judgment rendered and Memorandum Opinion filed November 8, 2007.

Panel consists of Justices Yates, Fowler, and Guzman.

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

[1] Khalil Haddad and Ebah Haddad are brothers charged with being involved in the same mortgage fraud scheme. Pretrial bail for Ebah Haddad was set at $350,000, and his appeal from the trial court=s denial of his application for writ of habeas corpus is filed under cause number 14-07-00506-CR. By opinion issued October 25, 2007, this court affirmed the trial court=s order in Ebah Haddad=s appeal.