Ex Parte Gabriel Bernal--Appeal from 38th Judicial District Court of Medina County

MEMORANDUM OPINION
No. 04-04-00100-CR
EX PARTE Gabriel BERNAL,
From the 38th Judicial District Court, Medina County, Texas
Trial Court No. 03-12-9069-CR
Honorable Mickey Pennington, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: July 7, 2004

AFFIRMED

Appellant Gabriel Bernal is charged with two counts of capital murder and his bail was set at an aggregate amount of $1.5 million ($750,000 per count). Bernal petitioned for a writ of habeas corpus, complaining of excessive bail. The writ issued and after a hearing, the trial court found that Bernal's bail was excessive, reducing Bernal's aggregate bail to $650,000 ($325,000 per count). On appeal, Bernal asserts that his bail is still unduly excessive and requests that this court reverse the trial court's order and reduce his bail to an aggregate sum of $25,000. We affirm the trial court's order.

Bernal's three appellate issues challenge the bail amount set by the trial court as violating the constitutional and statutory prohibitions against excessive bail. See U.S. Const. amends. VIII, XIV; Tex. Const. art. I, 11, 13; Tex. Code Crim. Proc. Ann. arts. 1.09, 17.15 (Vernon 1977 & Supp. 2004). "The primary purpose or object of an appearance bond is to secure the presence of a defendant in court for the trial of the offense charged." Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. 1980). Bail should not be set so high as to be oppressive, guaranteeing the defendant's appearance, but should be high enough to provide reasonable assurance the defendant will appear at trial. Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. 1980). The burden of proof is on the defendant to show that the bail, as set, is excessive. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. 1981).

When reviewing bail settings, we are guided by article 17.15 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 17.15. Article 17.15 provides a framework for setting a defendant's bail:

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.

Id. In addition, courts may give consideration to the defendant's work record, family and community ties, length of residency, prior criminal record (if any), conformity with previous bond conditions, the existence of outstanding bonds, and any aggravating factors involved in the charged offense. Ex parte Rubac, 611 S.W.2d at 849-50.

We review a 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.). To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Simply because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Id.

In this case, Bernal is charged with committing two counts of capital murder. Although the circumstances surrounding the offenses were not fully developed at the habeas hearing, the record indicates that Bernal shot his victims more than thirty times. If convicted, Bernal faces the death penalty or life in prison. Tex. Penal Code Ann. 19.03(b) (Vernon 2003).

At the writ hearing, Bernal presented two witnesses on his behalf: Consuelo Bernal and Sophia Ledesma. Consuelo Bernal, Bernal's mother, testified that Bernal is a longtime resident of San Antonio and that he has a strong relationship with his family and four-year old son, all of whom live in San Antonio. If Bernal is released on bond, Bernal's mother stated Bernal would live with her and Bernal's father as he has for almost his entire life. Consuelo testified that Bernal's family lacked resources to post a $1.5 million bond, and that the family might be able to arrange to pay $2,500 toward posting Bernal's bond. Consuelo stated that Bernal was working as a forklift operator before his arrest, earning about $300 per week.

Consuelo also testified that Bernal's only previous criminal conviction was for driving while intoxicated. According to Consuelo, Bernal complied with conditions of bond for his past arrest. Consuelo further testified that Bernal was at one time a street gang member; however, Bernal continued to associate with members of his gang up until his arrest for the alleged offenses.

Sophia Ledesma, Bernal's neighbor, testified that Bernal was trustworthy and that she felt "comfortable in going to bed with [Bernal] in [her] house." She further stated that if Bernal was released on bond, she believed Bernal would appear and answer the accusations against him.

Ultimately, the appropriate amount of bail must be determined on a case-by-case basis. Ex parte Henson, 131 S.W.3d 645, 650 (Tex. App.--Texarkana 2004, no pet. h.). On the one hand, we acknowledge that the record in this case indicates that Bernal is a longtime resident of San Antonio, has a fairly strong relationship with his family and four-year old son, and is employed. We further acknowledge that Bernal's family and friends believe Bernal is not a threat to the community and would appear and answer the accusations against him if released on a reduced bond.

On the other hand, we are mindful of the gravity of the crimes committed: this case concerns the intentional killing of two individuals who were shot more than thirty times. Although Bernal has complied with conditions of bond for his previous arrest, he has never before been charged with such a serious crime as capital murder. Despite the fact that Bernal's past history has not been violent, we must acknowledge that he associates with known gang members. We must also emphasize that the evidence presented regarding Bernal's personal financial history is unsatisfactory; we have no testimony with respect to financial assets that Bernal might own. Moreover, there is no indication that Bernal made any effort to furnish bail in any amount.

Based on the facts presented, the trial court determined that a reduction in bail was warranted, but only to the present amount of $650,000 ($325,000 per count). We believe the amount of bail set by the trial court is supported by legal precedent from this court. In Ex parte Chavfull, the trial court assessed a $750,000 bond in a capital murder case. 945 S.W.2d 183, 184 (Tex. App.--San Antonio 1997, no pet.). On appeal, we held the trial court did not abuse its discretion by setting pretrial bail in the amount that it did, citing the violent nature of the crime, the defendant's history of violence, the potential danger defendant posed to the community, and the absence of evidence regarding the defendant's financial resources. Id. at 187. In light of the foregoing, we hold the trial court did not abuse its discretion in refusing to further reduce the amount of Bernal's bail. Bernal's three appellate issues are therefore overruled.

The order of the trial court is affirmed.

Catherine Stone, Justice

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