Amit Suryakant Mehta v. The State of Texas--Appeal from 400th District Court of Ft. Bend County

Opinion issued July 7, 2005

In The

Court of Appeals

For The

First District of Texas

NOS. 01-04-01299-CR

01-04-01300-CR

01-04-01301-CR

01-04-01302-CR

01-04-01303-CR

___________

AMIT SURYAKANT MEHTA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause Nos. 40,721; 40,722; 40,723; 40,724; and 40,725

MEMORANDUM OPINIONAmit Suryakant Mehta, is charged with three counts of arson and two counts of attempted arson. Bail was set at $200,000 for each arson charge and $20,000 for each attempted arson charge, for a total of $640,000. After Mehta filed writs of habeas corpus to reduce the bail, the trial court reduced bail to $100,000 for each arson charge, but kept the attempted arson bail at $20,000 each, for a total of $340,000. In addition, the trial court ordered that, in the event that he makes bond, Mehta will be confined to his house and subject to electronic satellite monitoring. The trial court denied his motion to reconsider, // and Mehta now brings this appeal in which we address whether bail in the aggregate amount of $340,000 in these cases is excessive. We affirm.

Legal Authority

The right to release before trial is conditioned upon the accused s giving adequate assurance that he will stand for trial and submit to sentence if convicted. Stack v. Boyle, 342 U.S. 1, 4, 72 S. Ct. 1, 3 (1951). Bail set at an amount higher than reasonably calculated to fulfill this purpose is excessive under the Eighth Amendment. Id.

The burden is on the person seeking the reduction to demonstrate that bail is excessive. See Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. 1981); Ex parte Martinez-Velasco, 666 S.W.2d 613, 614 (Tex. App. Houston [1st Dist.] 1984, no pet.). The standard of review for reviewing bail settings is whether the trial court abused its discretion. See Rubac, 611 S.W.2d at 849; Ex parte Ruiz, 129 S.W.3d 751, 753 (Tex. App. Houston [1st Dist.] 2004, no pet.). In the exercise of its discretion, a trial court should consider the following factors in 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 used as an instrument of oppression.

3.The nature of the offense and the circumstances of its commission 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. Proc. Ann. art. 17.15 (Vernon Supp.2004); see Ludwig v. State, 812 S.W.2d 323, 324 (Tex. Crim. App. 1991) (noting that the court is to be governed in the exercise of [its] discretion by the Constitution and by the [article 17.15 factors] ). The primary purpose for setting bond is to secure the presence of the defendant in court at his trial. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977); Ex parte Bonilla, 742 S.W.2d 743, 744 (Tex. App. Houston [1st Dist.] 1987, no pet.). The strength of the evidence of the crime presented at the habeas hearing has been considered in determining the propriety of bail. See Ex parte Parish, 598 S.W.2d 872, 873 (Tex. Crim. App. 1980); Ex parte Sabur-Smith, 73 S.W.3d 436, 440-441(Tex. App. Houston [1st Dist.] 2002, no pet.). The amount of bail should be set sufficiently high to give reasonable assurance that the accused will comply with the undertaking, but should not be set so high as to be an instrument of oppression. Ex parte Bufkin, 553 S.W.2d 116, 118 (Tex. Crim. App. 1977); Ex parte Willman, 695 S.W.2d 752, 753 (Tex. App. Houston [1st Dist.] 1985, no pet.). Courts should also consider the defendant s work record, family and community ties, length of residency, and past criminal record. See Rubac, 611 S.W.2d at 849; see also Martinez-Velasco, 666 S.W.2d at 614-15.

Discussion

A. Nature of the Offense

David Bock, special agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, testified at the habeas hearing that, after a one-year investigation, he interviewed Mehta, and Mehta gave admission to 17 arsons. Bock explained that these were residential fires set in the daytime, and all of the victims were associated with each other and most were associated with the VPSS [Hindu] temple. Bock testified that the Indian community in Southwest Houston, which numbers in the thousands, was concerned for their health and safety. This concern has subsided since Mehta was placed in custody. It was Bock s opinion that Mehta is a danger to society if released again.

Arson - Second Degree Felony

The State has charged Mehta with three counts of arson, all second degree felonies. See Tex. Pen. Code Ann. 28.02 (Vernon 2003). The arson offenses each carry a sentence of 2 to 20 years and a fine not to exceed $10,000. Tex. Pen. Code Ann. 12.33 (Vernon 2003).

The bail amounts for second degree felony offenses range from $30,000 to $75,000. See, e.g., Ex parte Garcia, 100 S.W.3d 243, 245 (Tex. App. San Antonio 2001, no pet.) ($50,000 for indecency with a child); Briones v. State, 76 S.W.3d 591, 592 (Tex. App. Corpus Christi 2002, no pet.) ($75,000 for possession of 950 lbs of marihuana); Ex parte Sabur-Smith, 73 S.W.3d at 437 (this Court reversed and reduced bail from $150,000 down to $30,000 for sexual assault); Ex parte Bogia, 56 S.W.3d 835, 836 (Tex. App. Houston [1st Dist.] 2001, no pet.) (this Court reversed and reduced bail from $360,000 down to $10,000 for theft of more than $100,000 and less than $200,000); Esquivel v. State, 922 S.W.2d 601, 602 (Tex. App. San Antonio 1996, no pet.) (affirmed $150,000.00 bond on 15 counts of sexual assault, indecency with a child, and prohibited sexual assault); Ex parte Bell, 784 S.W.2d 577, 579 (Tex. App. Houston [1st Dist.] 1990, pet. ref d, untimely filed) ( reduced $50,000 bond to $10,000 for burglary of a habitation with intent to commit sexual assault).

In fact, the bail assessed in this case was well above that set in numerous violent first degree felony cases. See, e.g., Ludwig v. State, 812 S.W.2d 323, 325 (Tex. Crim. App. 1991) (reduced bail from $1,000,000 to $50,000 where appellant charged with capital murder of two individuals); Montalvo v. State, 786 S.W.2d 710, 711 (Tex. Crim. App. 1989) (setting bail on murder conviction pending appeal at $25,000); Ex parte Ivey, 594 S.W.2d 98, 100 (Tex. Crim. App. 1980) (reduced an appeal bond in an armed robbery case from $250,000 to $50,000); Ex parte Vasquez, 558 S.W.2d 477, 480 (Tex. Crim. App. 1977) (reduced a $100,000 bond for capital murder to $20,000).

Attempted Arson - Third Degree Felony

Mehta has also been charged with two counts of attempted arson, both of which are third degree felonies. See Tex. Pen. Code Ann. 15.01 (Vernon 2003). The attempted arson offenses each carry a sentence of 2 to 10 years in prison and a fine not to exceed $10,000. Tex. Pen. Code Ann. 12.34 (Vernon 2003).

The bail amounts set for third-degree felonies range from $25,000 to $150,000. See, e.g., Ex parte Durst, 148 S.W.3d 496, 501 (Tex. App. Houston [14th Dist.] 2004, no pet.); In re Hulin, 31 S.W.3d 754, 755 (Tex. App. Houston [1st Dist.] 2000, no pet.) (bail of $50,000 for criminal solicitation of a minor); Ex parte McCullough, 993 S.W.2d 836, 836-37 (Tex. App. Waco 1999, no pet.) (bail of $25,000 for three counts of injury to an elderly person); Applewhite v. State, 872 S.W.2d 32, 34 (Tex. App. Houston [1st Dist.] 1994, no pet.) (bail of $80,000 for theft).

Considering this factor alone, a bail for the attempted arson charges within this range would not be unreasonable. However, in relation to bonds set in other second degree felony cases, we find the $100,000 bond in this case excessive.

B. Sufficient Bail to Assure Appearance But Not Oppress

Mehta s wife, Daxa Mehta, was asked if she thought her husband would come to court if released on bond. At first, she said that he would appear. Then, she was asked, You don t expect him to run away, do you? to which she responded, Well, he s mentally still not stable, so I think if I started work, I don t know. When asked to clarify, she responded, I said mentally he s not stable, so sometimes if I work and nobody is at the home, so who s going to take care of him?

In Mehta s favor, he turned himself in. Voluntary surrender is a factor that courts have used to lower a bond. See, e.g., Ex parte Hellenguard, 622 S.W.2d 875, 875-76 (Tex. Crim. App. 1981) (bail reduced in murder case from $100,000 to $25,000 where defendant voluntarily surrendered to sheriff); Ex parte Walton, 583 S.W.2d 786, 786-87 (Tex. Crim. App. 1979) (bail reduced in murder case from $25,000 to $15,000 where defendant voluntarily surrendered to police); Ex parte McDonald, 852 S.W.2d 730, 735-36 (Tex. App. San Antonio 1993, no pet.) (bail reduced in murder case from $1,000,000 to $75,000 where defendant turned himself into police before they knew offense had been committed).

C. Ability to Make Bail

The ability of appellant to make bail and proof thereof is another factor to be

considered by the court. Daxa Mehta, Mehta s wife, testified that, despite his previously having worked for Shell Oil for 12 years, Mehta is unemployable because he is mentally unstable. Daxa makes $800 a month working part-time for Dillard s department stores. // She introduced exhibits showing that several of her credit card bills are delinquent one with a $750 balance and one with a $6,876 balance. She submitted evidence that Shell loaned her $11,423, for which she was required to pay $104.71 a month. There was evidence that Mehta had recently received a delinquency notice from the Shell Employees Federal Credit Union indicating that he had neglected to pay $271.90 on his $5,754 balance. Daxa s monthly statement from Honda Financial Services reflected that she owed a monthly payment of $371.42 on a 2003 Honda Accord with an estimated payoff of $16,829.54.

Daxa testified that she has $69,000 in equity in her home, and she has family members who supplement her income. She acknowledged that her home was probably worth $80,000, but she did not want to sell it because she and her two children would have no place to live.

Ability to make bail is only a factor that needs to be considered. It is not dispositive. Jones v. State, 803 S.W.2d 712, 716 (Tex. Crim. App. 1991). This is true even if the appellant is indigent. Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. 1980) ( Although the ability to make bail is a factor to be considered, ability alone, even indigency, does not control the amount of bail. ). Indeed, [i]f the ability to make a specified bond were determinative, then the trial court would be relegated to the position of setting bail as determined by the accused. Ex parte Welch, 729 S.W.2d 306, 310 (Tex. App. Dallas 1987, no pet.); see also Ex parte Miller, 631 S.W.2d 825, 827 (Tex. App. Fort Worth 1982, pet ref d). The burden is on the party seeking a reduction to show that the bail set is excessive. Rubac, 611 S.W.2d at 849. This requires the appellant to show he is unable to furnish bail in the amount set. Ex parte Stembridge, 472 S.W.2d 155, 155 (Tex. Crim. App. 1971); Ex parte Williams, 467 S.W.2d 433, 434 (Tex. Crim. App. 1971) (explaining that complaint of excessive bail will not stand in the absence of evidence that appellant tried to furnish bail). //

D. Future Safety of the Victims and the Community

Mehta has no criminal history. Bock testified that Mehta targeted a specific community, and the community of thousands were concerned for their health and safety. Bock further testified that these were residential fires. Fortunately, no one was injured when these 17 fires were set, but they were, nonetheless, set at homes. Furthermore, we cannot overlook the number of offenses for which Mehta is charged. Daxa testified that Mehta is mentally unstable and refuses to take medication to treat this instability. She testified that, if she is not at home, she is uncertain who would care for Mehta. The obvious implication being that he could not be trusted to care for himself.

E. The Remaining Factors

We next consider the remaining factors an established work record, family ties to Fort Bend County, length of residence, and past record of appearing for trial. While, at one time, Mehta had an established work record, now, he is unemployed, and his wife claims that he is unemployable because he is mentally unstable. His wife and two children live in Fort Bend County, and one child attends Houston Baptist University, while his younger child attends high school in Fort Bend County. Mehta has no criminal record, // and he voluntarily surrendered to the police.

In sum, Mehta confessed to 17 arsons; there are three arson charges pending against him in Harris County; he is not working; there is arguably enough equity in his home to make bail; his wife testified that she was uncertain if he would run away if no one was taking care of him; and, if convicted, his sentence could be up to 80 years in prison with a $50,000 fine. Accordingly, we hold that Mehta did not meet his burden of showing that the trial court abused its discretion in denying his motion to reconsider his bail. See Rubac, 611 S.W.2d at 849.

Conclusion

We affirm the trial court s order denying Mehta s motion to reconsider.

George C. Hanks, Jr.

Justice

Panel consists of Chief Justice Radack and Justices Jennings and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).