JOSUE PEREZ-DE LA PAZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued December 9, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-10-01185-CR
No. 05-10-01186-CR
No. 05-10-01187-CR
No. 05-10-01188-CR
 
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JOSUE PEREZ-DE LA PAZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 366-03701-2010, 366-03702-2010, 366-03703-2010, 366-03705-2010
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OPINION
Before Justices Morris, Francis, and Murphy
Opinion By Justice Francis
        Josue Perez-De La Paz appeals the trial court's orders denying his applications for habeas corpus seeking a reduction of his pretrial bonds. In one point of error, appellant contends the trial court abused its discretion by denying the bond reductions because the bail set in each case is excessive. We affirm the trial court's orders.
        Appellant is charged by indictment with sexual assault of a child, three offenses of online solicitation of a minor, and possession of child pornography. See Tex. Penal Code Ann. §§ 22.011(a)(2)(A), 33.021(b), (c) (West Supp. 2010), § 43.26(a) (West 2003). His bonds were originally set at $50,000 in four cases and $100,000 in the fifth case. Appellant filed a pretrial application for writ of habeas corpus seeking a reduction of the bonds.
        The affidavits for arrest warrants, which the trial court considered, provide that parents of a thirteen-year-old boy found text messages from a man on the boy's cell phone. A police detective assumed the identity of the boy and continued conversations with the suspect, known only as JD. The conversations were sexual in nature, culminating with JD arranging to meet the boy to engage in sex. JD described the vehicle he would be driving. At the appointed time, appellant was at the arranged meeting place in the vehicle described by JD. The detective made contact with appellant. Appellant admitted he was there to meet a person with the same name as the child, but said he thought the child was eighteen. Appellant admitted to the detective that he used “video chats” with the boy, and he had obtained a hotel room prior to the meeting. The detective arrested appellant for solicitation of a minor.
        When officers went to appellant's hotel room, they found condoms, sex toys, a laptop computer, a digital camera, an ambien pill, handcuffs, and receipts. The camera contained two photographs: one was of a young boy lying nude on the hotel bed, and the other was “head shots” of appellant and the same boy without their shirts on. The detective eventually determined the boy's name and age, which was fifteen at that time. The detective escorted the boy to a forensic interviewer. During the interview, the boy said appellant had picked him up near his home, taken him to a hotel room, used sex toys on him, and then put his penis in the boy's anus. After he and appellant “had intercourse,” appellant took a photograph of the boy lying nude on the bed and a second photograph of the both of them. During the bond reduction hearing, the trial judge stated that because he was familiar with the allegations in the warrants, he would not need to hear additional testimony from the detective.         Lisa Perez-De La Paz, appellant's wife, testified she could not pay the high aggregate amount of the bonds in the cases. She had contacted several bonding companies who wanted at least $30,000 down, a co-signer, and collateral worth the aggregate amount of the bonds. Lisa owned a small pet sitting business that she operated from her home, she had cashed out her 401K, sold some household items, and received money from family members, but all she could collect was about $10,000. She asked the trial court to lower the bonds to an aggregate total of $75,000 because then she would not need collateral or a co-signer.
        Lisa told the trial court she and appellant were originally from Oregon. They moved from Oregon to Florida so appellant could attend flight school. Six months later, they moved to Texas. They had been in the Euless area for two years prior to appellant's arrest. Appellant worked as an airline dispatcher for a company based in Memphis, Tennessee, and he spent three days a week in Memphis. Lisa offered to surrender appellant's pilot's license and passport to the court if necessary, and said she was willing to do anything to help appellant comply with any conditions imposed by the trial court. Lisa stated both she and appellant take medication for depression. The home they rent is located near an elementary school. Their family members live in Oregon and California, and she offered to provide the trial court with their addresses. Lisa's father offered to pay for an apartment for appellant to live in “after the cases were over.” Lisa told the court appellant had no prior criminal record.
        At the conclusion of the hearing, the trial judge reduced appellant's bond in one of the online solicitation of a minor cases from $100,000 to $50,000. Appellant did not appeal the trial court's ruling in that case. The trial judge continued the bonds in the remaining cases at $50,000 each.
        In reviewing the trial court's decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial court's ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). We uphold the ruling absent an abuse of discretion. Id. We afford almost total deference to the trial court's determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. Id. We afford the same amount of deference to the trial court's application of the law to the facts if the resolution of the ultimate questions turns on an evaluation of credibility and demeanor. Id. If the resolution of the ultimate questions turns on an application of legal standards, we review the determination de novo. Id.
        It is within the trial court's discretion to determine the proper amount of bail. See Tex. Code Crim. Proc. Ann. art. 17.15 (West 2005). In determining the amount of bail to set, the court is guided by the following rules: (1) the bail should 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 considered, and proof may be taken upon this point; and (5) the future safety of a victim of the alleged offense and the community may be considered. Id.; see Ex parte Welch, 729 S.W.2d 306, 309 (Tex. App.-Dallas 1987, no pet.). Relevant facts to be considered in determining the amount of bond include the accused's work record, family and community ties, length of residency, previous criminal record, and conformity with the conditions of any previous bond, any outstanding bonds, aggravating circumstances involved in the charged offense, and the range of punishment for the charged offense. See Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex. Crim. App. [Panel Op.] 1981).
        The person seeking the reduction has the burden of demonstrating the bail is excessive. See Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. [Panel Op.] 1980). Although the ability or inability of the accused to make bail is a factor to be considered, that factor alone does not control the amount of bail. See Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. [Panel Op.] 1980).
        Appellant contends the trial court abused its discretion by refusing to reduce his pretrial bonds because the bonds are excessive and violate the Eighth and Fourteenth Amendments to the United States Constitution, article I, sections 11 and 13 of the Texas Constitution, and articles 1.07, 1.09, and 17.15 of the Texas Code of Criminal Procedure.
        Appellant is charged with three second-degree felony offenses and two third-degree felony offenses. See Tex. Penal Code Ann. §§ 22.011(f), 33.021(f), 43.26(g). The punishment range for a second-degree felony is imprisonment for two to twenty years and a fine of up to $10,000. Id. § 12.33 (West Supp. 2010). The punishment range for a third-degree felony is imprisonment for two to ten years and a fine of up to $10,000. Id. § 12.34. If convicted, appellant faces the possibility of three twenty-year sentences and two ten-year sentences, and fines totaling $50,000. Further, the trial court may order appellant to serve the sentences consecutively, which could result in cumulative imprisonment of up to eighty years. See Tex. Penal Code Ann. §§ 3.03(b)(2)(A), (b)(3)(A) (West Supp. 2010).
        The record reflects appellant has no prior criminal record, and has no other outstanding bonds. He has a valid pilot's license, works as an airline dispatcher for a Memphis-based company, and travels to Memphis three days per week as part of his job. Appellant has been in Texas for only two years, and neither he nor his wife have any family ties to Texas.
        Testimony shows that appellant is unable to raise the amount required to obtain a $250,000 bond, but he could probably raise the amount necessary for the bond in the aggregate amount of $75,000. The only evidence regarding whether appellant would be a threat to the community came from his wife who testified that although their home was near an elementary school, she would make certain appellant did not leave the house without her and he had no access to a computer or the internet.
        Appellant has the burden to show the bonds are excessive. See Ex parte Rodriguez, 595 S.W.2d at 550. After having reviewed the records, we conclude appellant has not met his burden. Therefore, the trial court did not abuse its discretion by denying the bond reductions. We overrule appellant's sole point of error.
        We affirm the trial court's orders denying appellant's application for writ of habeas corpus seeking the bond reductions.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
101185F.U05