Ex Parte: Gerald Christopher Zuliani--Appeal from 147th District Court of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-396-CR
EX PARTE:
GERALD CHRISTOPHER ZULIANI,

APPELLANT

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 102,693, HONORABLE JON N. WISSER, JUDGE PRESIDING

PER CURIAM

This is an appeal from an order of the district court, entered following a hearing on appellant's writ of habeas corpus, setting appellant's bail pending appeal at $50,000. Tex. R. App. P. 44. Appellant is presently incarcerated following his conviction for the offense of injury to a child, for which he was sentenced to imprisonment for ten years and a $10,000 fine. Appellant's appeal from that conviction is pending in this Court as our cause number 3-92-110-CR.

Prior to trial, appellant was released on a $50,000 surety bond. Following his conviction, the district court ordered that appellant's bail pending appeal be set at $125,000. As noted above, the court reduced bail to $50,000 following the habeas corpus hearing. (1) In his first point of error, appellant urges that the court abused its discretion by setting bail in an amount exceeding $10,000.

The primary purpose of bail is to secure the presence of the defendant. Ex parte Vasquez, 558 S.W.2d 477 (Tex. Crim. App. 1977). While bail should be sufficiently high to give reasonable assurance that the undertaking will be complied with, the power to require bail is not to be used so as to make it an instrument of oppression. Id.; Tex. Code Crim. Proc. Ann. art. 17.15 (West Supp. 1992). Among the factors considered relevant in setting the amount of bail pending appeal are: the nature of the offense and the punishment assessed; the defendant's work record, family ties, and length of residence in the community; the defendant's ability to make the bail; and the defendant's conformity with previous bond conditions. Ex parte Davila, 623 S.W.2d 408 (Tex. Crim. App. 1981).

Appellant was found guilty of recklessly causing bodily injury to a child. The evidence at the hearing reflects that the child died, and the judgment of conviction includes a finding that appellant used a deadly weapon (his hands, a wall, or a blunt object) during the commission of the offense. The punishment assessed is the maximum applicable to the offense. Tex. Penal Code Ann. 22.04(e) (West Supp. 1992). This is appellant's only criminal conviction.

Appellant is twenty-four years old. He has lived in Austin since infancy. Appellant's parents, grandmother, and several uncles and cousins live in Austin, as does his fiancée. Appellant was employed before his arrest. Since that time, he has worked at various temporary jobs when not incarcerated. While free on bond before trial, appellant lived with his parents or with his fiancée. Appellant never missed a court appearance.

Appellant's mother testified that he has no possessions except his bed and his clothing. His parents still owe the attorneys who represented appellant at trial $12,000 of the $20,000 fee. Appellant's mother estimates that she and her husband can pay no more than $1500 for a bond.

The burden of proof is on the applicant for reduction of bail to show that the bail set is excessive. Ex parte Vasquez, 558 S.W.2d at 479. We hold that appellant has not demonstrated that the district court abused its discretion in setting bail in the present amount. The first point of error is overruled.

In his second point of error, appellant contends that the court erred by granting the State's motion that it take judicial notice of all filings, proceedings, and records of his trial. Appellant argues that because the statement of facts from the trial had not been transcribed at the time of the hearing, the noticed facts were not capable of accurate and ready determination. Tex. R. Crim. Evid. 201(b). Appellant also notes that the court below is not the court in which he was tried, that the judge below did not preside at his trial, and that his counsel in this habeas corpus proceeding did not represent him at trial. See Ex parte Turner, 612 S.W.2d 611 (Tex. Crim. App. 1981).

Assuming that the court erred by granting the State's motion, we conclude that the error was harmless. Tex. R. App. P. 81(b). At the conclusion of the habeas corpus hearing, the court stated:

 

The Court finds itself in a somewhat awkward position in this matter, not having been the Court in which this matter was tried. Judge Thurman, with his vast experience, having set the bond and this Court having to some extent learn the thoughts of Judge Thurman is somewhat reluctant to do anything other than what Judge Thurman would order. However, I don't believe Judge Thurman had the benefit of these cases and Mr. Morgan's [defense counsel] able argument at the time he set the bond.

 

And based on these cases it does appear that the current bond is beyond what the appellate courts would sustain. And for that reason alone the Court is going to reduce the bond to $50,000 and let any further reduction be done by the Court of Appeals.

 

From these remarks by the court, it is apparent that it did not consider any facts adduced at trial in making its order. (2) Because the judicially noticed facts did not enter into the court's decision, any error in taking judicial notice was harmless beyond a reasonable doubt.

The order of the district court is affirmed.

 

[Before Justices Powers, Aboussie and B. A. Smith]

Affirmed

Filed: September 30, 1992

[Do Not Publish]

1. The judge who presided at appellant's trial and who initially set bail pending appeal has retired. A different judge issued the writ of habeas corpus, conducted the hearing, and rendered the order from which this appeal is taken.

2. All facts recited in this opinion were introduced in evidence at the hearing below.