Opinion
Nos. 44410, 44411.
July 14, 1971.
Appeal from the 167th Judicial District Court, Travis County, Tom Blackwell, J.
Stovall Wilhite by Ray Montgomery, Houston, for Albino L. Alba.
Wallace Shropshire, Austin, for Henry Bedell.
Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
The appellants are in the custody of the sheriff to Travis County to answer indictments charging each of them with the possession of heroin, with prior narcotics convictions alleged against each of them for the purpose of enhancement of punishment.
This is a joint indictment as to both appellants which is apparently a re-indictment after the dismissal of prior indictment. A hearing was held on May 22, 1971 on the present indictment at which certain testimony from prior hearing was stipulated into the record. At the time of the May 22 hearing bail was set at the sum of $100,000 and after said hearing bail was reduced by the court from $100,000 each to $90,000 each. At a later hour on May 22, another hearing was held at which both appellants testified they could not make bail in the reduced amount of $90,000 with Alba testifying that the highest bail he could make would be $10,000 and Bedell testifying the highest bail he could make was $5,000.
The record reflects that the appellants and their attorney were offered a speedy public trial on any week and the State announced it would be ready at the first jury week after the hearing.
The ability of the appellants to make bail in the sum set is not the sole criteria. The nature of the offense and the punishment that may be assessed must be taken into consideration. Ex parte Mathews, 151 Tex.Crim. R., 204 S.W.2d 992; Ex parte Davis, 159 Tex.Crim. R., 261 S.W.2d 323. The amount of the bond will vary according to the seriousness of the offense. Ex parte Solsona, 140 Tex.Crim. R., 146 S.W.2d 761. Further, the probability of conviction and the severity of punishment that probably be assessed may also be considered. Ex parte Hill, 106 Tex.Crim. R., 293 S.W. 1117; Ex parte Cascio, 140 Tex.Crim. 288, 114 S.W.2d 886.
In view of the amount of heroin confiscated from the automobile occupied by the two appellants herein, the severity of the punishment which can be assessed under the indictment and the nature of the crime we do not find the amount of bail fixed to be excessive.
The judgment of the trial court is affirmed.
ONION, P.J., not participating.