Ex Parte Jorge Alfredo Gomez--Appeal from 274th Judicial District Court of Guadalupe County

No. 04-02-00431-CR
EX PARTE GOMEZ
From the 274th Judicial District Court, Guadalupe County, Texas
Trial Court No. 02-0707-CV
Honorable Gary L. Steel, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: February 12, 2003

AFFIRMED

This is an accelerated appeal of an order denying a reduction in bail. Appellant Jorge A. Gomez was charged with child abandonment or endangerment, arson, and assault on a family member. His bond was set at $200,000. (1) Gomez filed an application for writ of habeas corpus, claiming the bond was unreasonable and in excess of his family's financial resources. Following an evidentiary hearing, the trial judge denied the application for a reduction in bail, but ordered that Gomez be allowed to post a ten percent cash bond. Gomez now appeals to this Court, claiming the $200,000 bail violates his right to reasonable bail under U.S. Const. amend. VIII and Tex. Const. art. 1 11, 13. He asks that this Court order the bond reduced to $50,000, payable by a ten percent cash bond.

Background

On April 14, 2002, the police were called to the apartment which Jorge A. Gomez shared with his common-law wife, Camilla Rubio, and their four young children. Upon finding the family standing outside the apartment, Camilla's face beaten, and smoke coming from the building, the investigating officer questioned several witnesses, including Camilla and the couple's eldest daughter, ten-year-old, Alma Rubio. After questioning these individuals, the officer arrested Gomez for endangerment of a child, arson, and assault on a family member.

Bail Reduction

In two issues, Gomez claims the trial court erred in keeping the bail set at $200,000, because this amount violates his right to reasonable bail under both the United States and Texas Constitutions. U.S. Const. amend. VIII; Tex. Const. art. 1 11, 13.

Article 1.09 of the Texas Code of Criminal Procedure proscribes excessive bail. Tex. Code Crim. Proc. Ann. art. 1.09 (Vernon Supp. 2003). The primary purpose of an appearance bond is to secure the presence of the defendant in court for the trial of the offenses as charged. Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. 1980); Esquivel v. State, 922 S.W.2d 601, 602 (Tex. App.--San Antonio 1996, no pet.). We review the trial court's decision in a bail reduction case under an abuse of discretion standard. Ex parte Wood, 952 S.W.2d 41, 42 (Tex. App.--San Antonio 1997, no pet.). In order to determine whether the trial court has abused its discretion when setting bail, we examine the five factors enumerated in article 17.15 of the Texas Code of Criminal Procedure. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. 1981); Esquivel, 922 S.W.2d at 602-604; Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon Supp. 2003).

First, bail must be sufficiently high to reasonably assure the accused will appear at trial. Tex. Code Crim. Proc. Ann. art. 17.15(1) (Vernon Supp. 2003). At the evidentiary hearing on Gomez's application for habeas corpus, Gomez presented the testimony of his brother, Julian. Julian testified that Gomez had lived in Seguin for three years, and was working as a stocker at Wal-Mart up until the time of his arrest. Julian also testified that he and another brother, Jose, lived in the area and that Gomez had a common-law wife of eight years and four children who were dependent upon his income.

Second, bail must not be used as an instrument of oppression. Tex. Code Crim. Proc. Ann. art. 17.15(2) (Vernon Supp. 2003). At the evidentiary hearing, Gomez presented no evidence that the bond amount proscribed by the court served as an instrument of oppression.

Third, we must consider the nature of the offense and the circumstances under which the offense was committed. Tex. Code Crim. Proc. Ann. art. 17.15(3) (Vernon Supp. 2003). Through its witnesses at the hearing, the State introduced evidence that Gomez poured gasoline on his living room sofa then struck a match and threw it onto the doused furniture. Gomez did this while all four of his children and his wife were still inside the apartment. The State also introduced the testimony of Craig Jones, the officer who arrested Gomez. Jones testified that he had questioned witnesses at the scene of the fire who stated Gomez had started the fire. It was also apparent to Jones that Camilla Rubio had been beaten, and he implied, at the hearing, that she indicated it was Gomez who beat her.

Fourth, we consider the ability to make bail. Tex. Code Crim. Proc. Ann. art. 17.15(4) (Vernon Supp. 2003). At the evidentiary hearing, Gomez's brother, Julian, attested to Gomez's financial status, stating that Gomez had no savings and few personal assets. Gomez also testified on his own behalf, reiterating the fact that he had no monetary savings, did not own a home or real property, and that any bond money would have to be posted by his family. The State, however, introduced evidence that Gomez did own a few household appliances, such as a refrigerator, which could have served as collateral. Although the accused's ability to make bail may be considered, it is not dispositive. Jones v. State, 803 S.W.2d 712, 716 (Tex. Crim. App. 1991); Esquivel, 922 S.W.2d at 603. The burden is on the party seeking a reduction to show the bail set is excessive. Esquivel, 922 S.W.2d at 603-604.

The final factor involves the consideration of the future safety of both the victim of the alleged offense and of the community. Tex. Code Crim. Proc. Ann. art. 17.15(5) (Vernon Supp. 2003). Although Gomez has no past record, the State presented evidence relevant to this issue. The State called three witnesses at the evidentiary hearing: Alma Rubio, the ten-year-old daughter of Gomez and Camilla Rubio, Sonya Vidal, a neighbor who witnessed the act of arson, and Craig Jones, the officer who arrested Gomez at the scene. Both Rubio and Vidal testified that they had seen Gomez douse the furniture in gasoline and light the couch on fire while Gomez's four children, including Rubio, and wife were still inside the apartment. Both also testified that Gomez did not assist any of the children in escaping the fire. In fact, Rubio recounted that she had to awaken her two-year-old sister, her six-month-old sister, and her mother, all of whom were asleep in other rooms. Officer Jones testified that when he arrived at the scene he found the Rubio family to be confused and scared. Camilla Rubio had a bruised and swollen eye. Jones stated that the witnesses with whom he spoke led him to believe that Gomez had started the fire.

While Gomez chooses to focus on his inability to make bail, the trial court must examine all five factors in determining the proper bond amount. In light of the apparent continuing threat to Gomez's family as evidenced by, among other factors, his disregard for their welfare, we find there was sufficient evidence in the record to justify the trial court's denial of the bond reduction. The trial court's actions do not violate either the United States Constitution or the Texas Constitution. We overrule both of Gomez's issues and affirm the ruling of the trial court.

Paul W. Green, Justice

Do not Publish

1. The trial court set the bond at $175,000 for the endangerment charge, $20,000 for the arson charge, and $5,000 for the assault charge.