Ex Parte Guadalupe Garza--Appeal from 399th Judicial District Court of Bexar County

OPINION

No. 04-02-00803-CR
EX PARTE Guadalupe GARZA
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. CM 923961
Honorable Andrew Carruthers, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Chief Justice

Paul W. Green, Justice

Sandee Bryan Marion, Justice

Delivered and filed: July 30, 2003

AFFIRMED

Guadalupe Garza was arrested and charged with murder. Garza filed an application for writ of habeas corpus seeking a reduction in his pretrial bail from the original amount of $250,000 to $50,000. After a hearing, the trial court granted partial relief, reducing bail to $150,000, and Garza appealed. We affirm the trial court's order.

STANDARD OF REVIEW

We review the trial court's decision on the reduction of bail for abuse of discretion.Ex parte Dueitt, 529 S.W.2d 531, 532 (Tex. Crim. App. 1975); Ex parte Wood, 952 S.W.2d 41, 42 (Tex. App.-San Antonio 1997, no pet.). Article 17.15 of the Code of Criminal Procedure provides factors which guide the trial court's decision:

1. The bail shall be sufficiently high to give a reasonable assurance that the undertaking will be complied with.

2. The power to require bail is not to be 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 on this point.

5. The future safety of a victim of the alleged offense and the community shall be considered.

Tex. Code Crim. Pro. Ann. art. 17.15 (Vernon Supp. 2003). The defendant challenging the amount of bail has the burden to show the amount is excessive in light of these factors. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. 1981). BACKGROUND

Garza's mother was the only witness at the hearing. She testified that 23-year- old Garza lived at home, although he often stayed with a brother or a girlfriend. She stated Garza had little income and no assets, and she could only borrow $5,000 to pay for his bond. Garza had a job in lawn maintenance before his arrest and was offered similar employment if released on bail. Garza's mother was not aware that he was a gang member or that he regularly carried guns. She testified that although Garza did not turn himself in, he also did

not flee when he learned the police were looking for him. Garza told her he had nothing to do with the murder.

The State introduced information from an eyewitness statement that the murder occurred during a drug deal. The eyewitness stated that he saw Garza, a/k/a 'Rocket,' lean over from the front seat of a car where the deal was taking place and shoot the unarmed victim sitting in the back seat. He also says Garza continued to shoot the victim in the back as he attempted to get out of the car and run away. The State alleges Garza and others at the scene took money from the victim; therefore, Garza still faces a possible indictment for capital murder.

The State also introduced evidence that Garza is a member of a street gang. In Garza's statement to police, he admitted he was present at the scene of the murder and that he always carries guns. When asked whether he had bragged about firing his gun until he ran out of bullets the night of the murder, Garza denied being the shooter and said he was just trying to sound "badass." Garza has a juvenile record but no prior history of violent crime. Shortly after the hearing, Garza was able to make bail and is currently out on bond with electronic monitoring.

DISCUSSION

Appropriate bail is a "fact-driven determination" and "each case . . . must be judged on its own unique facts." Esquivel v. State, 922 S.W.2d 601, 604 (Tex. App.-San Antonio 1996, no pet.). First, bail must be sufficiently high to give reasonable assurance that Garza will appear for trial without becoming an instrument of oppression. See Landry, 936 S.W.2d at 28. The defendant's ability to make bail may be considered but is not dispositive. See id. Garza's mother testified she could only raise $5,000, enough to pay the fee for a $50,000 bond. There is no evidence in the record to indicate how Garza made the $150,000 bond. Garza has close ties to his family in San Antonio but no property of his own or steady income that would entice him to remain in the community. Although he has complied with conditions of bond for past arrests, he has never before been charged with such a serious crime.

Next, we consider the nature of the crime and the circumstances under which it was committed. The crime itself is brutal, an apparently unprovoked attack on an unarmed victim who was repeatedly shot as he tried to flee. Because of the nature of the crime, there is concern about the future safety of the community if Garza is released on bond. The record reflects that the eyewitness expressed concern about his safety because he was fired upon the night of the murder, but there is no indication that Garza threatened the witness or attempted to contact him. (1) Although Garza's past history has not been violent, he is a gang member and admitted to carrying guns at all times.

In light of the foregoing, the trial court found that a reduction in bail was warranted but only to the present amount of $150,000. Based on these facts, we hold the trial court did

not abuse its discretion in refusing to further reduce the amount of bail. We affirm the trial court's order.

Paul W. Green, Justice

Do Not Publish

1. The trial court imposed electronic monitoring and a no-contact order as conditions of bond, which will help to ensure the safety of the witness and the community.