Ex Parte Isidro Gallegos, Jr.--Appeal from 183rd District Court of Harris County

Affirmed and Opinion filed August 14, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-03-00590-CR

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EX PARTE ISIDRO GALLEGOS, JR.

On Appeal from the 183rd District Court

Harris  County, Texas

Trial Court Cause No. 945,703

M E M O R A N D U M O P I N I O N

Appellant appeals the denial of his application for pretrial writ of habeas corpus on the grounds that the trial court abused its discretion in setting his bail at $500,000. We affirm.

Appellant Isidro Gallegos is charged with possession with intent to deliver at least four hundred grams of cocaine. Bond was set at $1,200,000 and later reduced to $500,000. Appellant filed a pretrial application for writ of habeas corpus asserting the bond was excessive and asking the trial court to reduce it and set a reasonable bond. Following an evidentiary hearing, the trial court denied the bond reduction. In a single issue, appellant contends the bond set by the trial court is excessively high.

Background

Appellant was arrested in Harris County, Texas with more than five kilograms of cocaine in the trunk of the car in which he was a passenger. At the time of his arrest he was on bond for failure to stop and give information. At the hearing on appellant=s application for writ of habeas corpus, appellant presented testimony that he has enough collateral to make a $15,000 tto$20,000 bond. His wife testified that she and appellant are both citizens of the United States and they have a child.

Invited Error

The State initially argues that appellant should be estopped from complaining about his bond because he agreed to a $500,000 bond. The State points to a bond agreement in the record signed by the prosecutor, the judge, and defense counsel agreeing that bond be set at $500,000. The doctrine of invited error estops a party from complaining about an action the party has requested. Ripkowskiv. State, 61 S.W.3d 378, 388 (Tex. Crim. App. 2001). Here, the State contends appellant requested his bond be reduced to $500,000 so he cannot now ask for a further reduction. Contrary to the State=s argument, the record does not reflect that appellant requested the trial court reduce his bond to $500,000, but that he agreed to that amount as opposed to $1.2 million. Appellant may challenge the amount of his bond in the trial court by application for writ of habeas corpus. Ex parte Reese, 666 S.W.2d 675, 677 (Tex. App.CFort Worth 1984, pet. ref=d). We do not find that appellant is estopped from bringing an application for writ of habeas corpus challenging the reduced bond.

Excessive Bail

Bail is the security given by a defendant that he will appear in court to answer the accusation brought against him. Tex. Code Crim. Proc. Ann. art. 17.01. Bail balances the presumption of innocence of the accused with the compelling interest of the State that the accused appear to answer the accusation against him. Balboa v. State, 612 S.W.2d 553, 556 (Tex. Crim. App. 1981). Bail should be set high enough to give reasonable assurance that the defendant will appear at trial, but it should not operate as an instrument of oppression. See Maldonado v. State, 999 S.W.2d 91, 93 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). The burden is on the person seeking the reduction to demonstrate that bail is excessive. Id. The setting of bail is a matter resting within the sound discretion of the trial court and there is no precise standard for reviewing its determination. Ex parte Pemberton, 577 S.W.2d 266, 267 (Tex. Crim. App. 1979). However, article 17.15 of the Texas Code of Criminal Procedure serves as a guide.

Article 17.15 provides that bail shall be set, in the exercise of discretion, and according to the following rules:

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 as so used 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 may be considered.

Other circumstances and factors to be considered in determining the amount of bond include the following: family ties, residency, ability to make bond, aggravating factors involved in the offense, the defendant=s work history, prior criminal record, and previous and outstanding bonds. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. 1981). Keeping in mind it is appellant=s burden to demonstrate that bail is excessive, we now review the evidence in light of the Rubac factors and those listed in article 17.15.

A. Sufficient Bail to Assure Appearance and Bail as Instrument of Oppression.

The evidence indicates that appellant has family ties to the community in that he is married with one child. He is a citizen and has a home in Harris County.

B. Nature of the Offense

The amount of bail must also be based on the nature of the offense and the punishment for the offense. Appellant is charged with possession with intent to deliver more than four hundred grams of cocaine. Tex. Health & Safety Code ' 481.112(a). Appellant was arrested with over five kilograms of cocaine, worth approximately $570,000. If convicted, appellant could receive a fifteen to ninety-nine year sentence or life in prison. Tex. Health & Safety Code ' 481.112(f). Additionally, in cases involving illegal transportation and sale of drugs, a higher bond may be required because of the nature of the offense. Ex parte Willman, 695 S.W.2d 752, 753 (Tex. App.CHouston [1st Dist.] 1985, no pet.). Drug transactions of the nature alleged usually require large amounts of cash and the involvement of financial backers willing to forfeit bonds that are not sufficiently high. Id.

C. Ability to Make Bond

Appellant presented evidence that he could not make a bond of $500,000. While appellant=s inability to make bail is a factor, it is not the sole determining factor to be considered in setting bail. Ex parte Gentry, 615 S.W.2d 228, 231 (Tex. Crim. App. 1981). Appellant=s wife testified that she could raise enough cash to fund a $15,000 to $20,000 bond. This factor alone does not make the bond excessive. See Ex parte Welch, 729 S.W.2d 306, 310 (Tex. App.CDallas 1987, no pet.). (AIf 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.@).

D. Future Safety of the Community

Although there is no evidence that appellant presents a threat of physical violence to the community, he is charged with possession with intent to deliver a large amount of cocaine. To the extent the community would be harmed by the sale and use of that drug, appellant could be considered a threat to the community. Further, appellant committed this offense while on bond for another offense. There is little assurance that appellant would refrain from committing further crimes while on bond for this offense.

E. The Remaining Factors

Appellant presented no evidence of an established work record. Appellant has been arrested for failure to stop and give information, and organized crime, but has no prior convictions.

Conclusion

Based on the evidence in the record, we find appellant has failed to demonstrate that the pretrial bail fixed by the trial court is oppressively high. When we consider the evidence relevant to the factors set out in article 17.15 and Ex parte Rubac, we hold the trial court did not abuse its discretion in setting bail at $500,000. Appellant=s sole issue is overruled.

We affirm the trial court=s order denying appellant=s request to reduce his bond.

PER CURIAM

Judgment rendered and Memorandum Opinion filed August 14, 2003.

Panel consists of Justices Hudson, Fowler and Anderson.

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