Ex Parte Jose Jesus Esquivel Ontiveros--Appeal from 341st Judicial District Court of Webb County

MEMORANDUM OPINION
No. 04-04-00315-CR
EX PARTE Jose Jesus Esquivel ONTIVEROS
From the 341st Judicial District Court, Webb County, Texas
Trial Court No. 2003-CV6-002005-D3
Honorable Elma Teresa Salinas Ender, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez. Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: September 22, 2004

AFFIRMED

Jose Jesus Esquivel Ontiveros ("Ontiveros") appeals the trial court's order denying a further bond reduction. Ontiveros's original bond was set at $200,000 for the charge of murder, felony 1, and $100,000 for the charge of attempted murder, felony 2. After a hearing, the trial court reduced the bond to $150,000 for the murder charge and $75,000 for the attempted murder charge. In his motion for rehearing, Ontiveros requested the trial court to further reduce his bond to $100,000 for the murder charge and $50,000 for the attempted murder charge. The trial court denied the request, and Ontiveros appeals, contending that the bond amounts are excessive. We overrule Ontiveros's contention and affirm the trial court's order.

We review the trial court's decision regarding bail under an abuse of discretion standard. Ex parte Garcia, 100 S.W.3d 243, 245 (Tex. App.--San Antonio 2001, no pet.). In determining the amount of bail, the trial court should consider the following rules as set forth in article 17.15 of the Code of Criminal Procedure:

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 Supp. 2004). Factors to be considered in applying these rules include: (1) the length of the sentence; (2) the nature of the offense; (3) the defendant's work record, family ties, and length of residency; (4) prior criminal record; (5) conformity with previous bond conditions; (6) other outstanding bonds; and (7) aggravating factors involved in the offense. Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex. Crim. App. 1981). The defendant challenging the amount of bail has the burden to show the amount is excessive in light of these rules. Garcia, 100 S.W.3d at 245.

Ontiveros is a twenty-six-year-old Mexican citizen and was residing with his parents in Nuevo Laredo at the time of his arrest. He had resided at the same address for approximately fifteen years. Ontiveros's three sisters reside in Laredo. Ontiveros's wife was living with him at the time of his arrest. Ontiveros has never been convicted of a crime, and he is currently studying computer engineering at a college in Nuevo Laredo. At the time of his arrest, Ontiveros was self-employed as a computer technician in Nuevo Laredo, earning approximately $300 per month. Ontiveros's wife does not work. Ontiveros owns a 1990 Ford Bronco, but he does not own any other property that he could sell, mortgage or use as collateral to raise the amount necessary to post bond. Ontiveros thought his parents would be able to assist him in posting bond in the amount of $100,000; however, if his bond is not reduced, he will have to remain incarcerated.

On cross-examination, Ontiveros admitted that his sisters are his only family in Laredo and that he has never been employed in Laredo. The only bank account Ontiveros had in Laredo was closed four years ago. Ontiveros's wife is from Laredo, and her family lives in Laredo. Ontiveros had not made any arrangements to talk to a bondsman about posting bond; however, Ontiveros stated that his family had. Ontiveros was unaware of who his family had contacted. Ontiveros had contacted one of his sisters and his parents to request assistance in posting bond. Approximately ten to eleven months before his arrest, Ontiveros was employed by the government in Nuevo Laredo as a computer technician before he became self-employed.

Ontiveros admitted that he was present at a gentlemen's club on December 27, 2003. When the police arrived, Ontiveros had a gun in his hand. One victim had been shot and killed, and a second victim, who also had been shot, was taken to a hospital.

Ontiveros's father resides in Nuevo Laredo and is employed in Nuevo Laredo as a supervisor at an aluminum company. Ontiveros's father has resided at the address where Ontiveros was arrested for twelve years, and his son was living with him at the time of his arrest. Ontiveros's father has $10,000 available to post bond, but he has not been able to raise any additional money. Ontiveros's father had attempted to post bond; however, the bond company wanted property as collateral which he did not have. Ontiveros's father is purchasing the house where he lives; however, the property is mortgaged.

The trial judge stated that she was denying any further reduction based on several factors. The trial judge noted Laredo's proximity to the border and that Ontiveros was born, lives, and works in Mexico. The trial judge also noted the seriousness of the offenses with which Ontiveros is charged.

Given the evidence presented, the trial court did not abuse its discretion in denying any further reduction in the bond amount. The bond needed to be sufficiently high in view of Laredo's proximity to the border and Ontiveros's connections in Mexico. Ontiveros's work record, family ties, and residency are all located in Mexico with the exception of his sisters. The trial court had previously reduced the original bond amount, demonstrating that it was not using bail as an instrument of oppression. The offenses with which Ontiveros is charged are serious, and the evidence against Ontiveros includes the police discovering him at the scene with a gun in his hand. No evidence was presented to show that Ontiveros's two other sisters or other relatives had been contacted in an effort to make the bail.

The trial court's order is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH