Pedro Sanchez Aviles v. The State of Texas--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-94-187-CR

PEDRO SANCHEZ AVILES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 25,450

O P I N I O N

Aviles was charged by complaint with the offense of murder and his bond was set at $200,000. Aviles filed a writ of habeas corpus asserting that the bail was excessive. The court denied the writ and continued the bond at $200,000. Aviles brings this appeal alleging that the court abused its discretion when it refused to reduce bail. We will affirm.

Setting bail is within the sound discretion of the trial court and although there is no precise standard of review in such cases, Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon Supp. 1994), serves as a guide. Ex parte Penagos, 810 S.W.2d 796, 798 (Tex. App. Houston [1st Dist.] 1991, no pet.); Ex parte Pemberton, 577 S.W.2d 266, 267 (Tex. Crim. App. 1979). Article 17.15 provides as follows:

The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by 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 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.

Ability to make bail is a factor to be considered, but ability alone, even indigency, does not control the amount of bail. The nature of the offense and the circumstances under which it was committed are also to be considered, and this necessarily involves the punishment permitted by law. Ex parte Penagos, 796 S.W.2d at 796.

Evidence at the habeas corpus hearing revealed that Aviles was a resident alien from Mexico and that he visited his parents and relatives in Mexico two or three times a year. Aviles testified that he is married and has six children. He has worked for the same employer for over ten years and would be able to return to work pending trial if he could make bail. In addition to a 1983 Ford Escort worth about $1,000, Aviles owns a rent house which he purchased for $5,000 and spent an additional $9,000 in repairs and renovations.

The complaint charging murder is a first-degree felony which carries possible prison confinement of not less than 5 years nor more than 99 years or life imprisonment. In addition, a fine not to exceed $10,000 may be assessed. Tex. Penal Code Ann. 12.32 (Vernon 1994). Based upon the sworn complaint of Corsicana Police Officer Gary Youngblood, the alleged murder was committed with a 9mm-automatic pistol in a "drive-by" type shooting.

Taking into consideration the nature of the offense and the manner in which it is alleged to have been committed, together with the fact that Aviles is a resident alien, we do not find that the court abused its discretion in refusing to reduce the amount of the bond.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed September 21, 1994

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