Ex Parte Pequeno-Flores

Full title: EX PARTE JOSE DANIEL PEQUENO-FLORES, Appellant

Court: Court of Appeals of Texas, First District, Houston

Date published: Nov 10, 2003

No. 01-03-00523-CR (Tex. App. Nov. 10, 2003)

Opinion

No. 01-03-00523-CR

Opinion issued November 10, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 339th District Court, Harris County, Texas, Trial Court Cause No. 946672.

Panel consists of Justices HEDGES, NUCHIA, HIGLEY.

MEMORANDUM OPINION

SAM NUCHIA, Justice.

Appellant, Jose Daniel Pequeno-Flores, is charged with possession of a controlled substance, namely, cocaine weighing at least 400 grams. The trial court initially set the bail at $5,500,000.00. Appellant filed an application for a writ of habeas corpus and bond reduction. The trial court granted the writ and subsequently reduced the bail to $1,500,000.00.¹ Appellant appeals this decision, stating that the amount is oppressive and unreasonable. We affirm.

1 The appellant's brief erroneously stated that the bond had been reduced to $1,600,000. Court records reflect that the bond was reduced to $1,500,000.

Facts and Procedural History

On April 11, 2003, police observed appellant carrying a plastic container into a house at 4215 Oneida in Pasadena, Texas. They later found an identical container holding eight kilos of cocaine. It is disputed whether the container that appellant was carrying was the same one that contained the cocaine. Officers recovered 27.65 kilos of cocaine from a washer and dryer inside the house and an additional 27.90 kilos from a vehicle parked in the garage, which is attached to the house. Officers inferred that appellant was a resident of the house because, shortly before their April 11 observations, they saw appellant coming and going from it and, being the last person there, using keys to lock it before leaving. In addition, the house had been under surveillance since February 2002, and police had seen appellant at the house on other days between then and April 11. During the course of the investigation, police recovered $690,000 in cash from a car-wheel rim being carried by individuals leaving the house. The cash was in a container welded to the wheel rim. The 27.90 kilos of cocaine found in the vehicle in the garage were found in similar containers welded to the car's wheel rims. It appeared that the money was destined for Mexico. It is unclear from the record whether the $690,000 cash was seized at the same time the drugs were seized. Whether the house belongs to appellant is disputed. The cocaine has an estimated street value of $100,000 per kilo. Appellant is a citizen of Mexico and is in the United States on a tourist visa, which expires in 2008. He entered the country with a border permit that was set to expire in July of this year. He travels between the U.S. and Mexico to buy and sell trucks. He is a resident of Nicolas De Los Garza, on the south side of Monterrey, Mexico. Appellant presented evidence that he is the father of at least one U.S.-born child. At the time of his arrest, appellant stated that he had been in the U.S. for three days and was staying at a hotel near the airport. Appellant has offered to surrender his passport and has agreed to sign a waiver of extradition. At the bond reduction hearing, appellant presented testimony from a bail bondsman, who indicated that appellant's family could make a bond in the range of $10,000-$25,000. He also testified that he did not write bonds as large as $1,500,000. Appellant did not present evidence about his own, individual financial resources.

Legal Authority

The amount of bail is committed to the trial court's discretion under Texas Code of Criminal Procedure, article 17.15. See Smith v. State , 829 S.W.2d 885, 887 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd). There is no precise standard for reviewing bond settings on appeal, but the reviewing court is guided by the Texas Code of Criminal Procedure. Ex Parte Pemberton , 577 S.W.2d 266, 267 (Tex.Crim.App. 1979). It indicates that the following factors are to be considered in determining the amount of 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). The burden of proof is upon an appellant who claims bail is excessive. 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 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 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.). Other factors that should be considered include appellant's work record, family 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. Sufficient Bail to Assure Appearance But Not Oppress

While there was no evidence directly linking appellant to the $690,000 seized during the investigation from the individuals leaving the house in question, it was evidence tending to support the police's theory that a drug smuggling conspiracy was being conducted from a structure over which appellant had control. Illegal 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. Willman , 695 S.W.2d at 753. When this is considered in conjunction with the fact that appellant gave no evidence regarding his own personal financial resources, as distinguished from those of his family, we conclude that appellant did not carry his burden to show that the bail set was higher than necessary to assure his appearance at trial or that it was being used as an instrument of oppression. See Ex parte Chavfull , 945 S.W.2d 183, 186, 187 (Tex.App.-San Antonio 1997, no pet.) (holding bail reduction unwarranted when, among other things, appellant put on no evidence of his own individual resources as distinguished from those of his family).

B. Nature of the Offense

Appellant is charged with possession with intent to deliver a controlled substance in an amount weighing more than 400 grams. See Tex. Health Safety Code Ann . § 481.112(a) (Vernon 2003). This offense carries a sentence of 15 to 99 years or life and a fine not to exceed $250,000. Tex. Health Safety Code Ann. § 481.112(f) (Vernon 2003). The quantity of drugs involved in this incident was in excess of 55 kilos. In addition to the large amount of drugs involved, there is some concern on the part of law enforcement officials that there is a drug smuggling operation connected to this house, involving drugs and money transported in vehicle wheels. The nature of the offense is serious, carries a substantial penalty, and indicates an organized drug smuggling operation. Therefore, the nature of the offense does not favor a bond reduction.

C. Ability to make bail

Appellant contends that he is unable to make bail. Testimony from a bail bondsman is the only evidence presented to support this contention. The ability of the defendant to make bail is one factor to be considered in reviewing a bond decision. Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon Supp. 2004). However, a person's ability to pay does not control the bail. Ex parte Gentry , 615 S.W.2d 228, 231(Tex.Crim.App. 1981). It is only one factor among several to be considered. Ex parte Reyes, 4 S.W.3d 353, 355 (Tex.App.-Houston [1st Dist.] 1999, no pet.). The inability of a bail bondsman to post bond is not determinative of the amount of bail a trial court may set in a particular case. Wright v. State , 976 S.W.2d 815, 820 (Tex App.-Houston [1st Dist.] 1998, no pet.). The mere fact that appellant's family could make a bail of only $25,000.00 is not a reason to reduce the bail.

D. Other Factors

Other factors to consider in reviewing a bond decision include appellant's work record, family ties, length of residency, and past criminal record. Appellant is self-employed. He travels between Mexico and the United States buying and selling trucks. The nature of his occupation is transient and bolsters the argument that he poses a substantial flight risk. Moreover, although he is in the country on a legal tourist visa, his border permit may have already expired. Appellant has no real ties to the community, although he presented evidence that at least one of his children was born here. At the time of his arrest, he listed his residence as an airport hotel. He has not presented evidence that he can secure employment here, has a bank account here, or has substantial ties to this community. Although has no previous criminal record and no previous bond history, the transient nature of his job and his lack of significant ties to the community disfavor bond reduction.

Conclusion

This incident involves a large quantity of illegal drugs and cash. Appellant has not produced evidence of his own financial resources for making bail as distinguished from those of his family. The alleged offense carries a substantial penalty. The appellant has no ties to the community and poses a serious flight risk because of the nature of his job and residence in Mexico. Accordingly, the trial court decision to set bail at $1,500,000 is affirmed.