Opinion
Nos. 01-06-00432-CR, 01-06-00433-CR
Opinion issued October 26, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 185th District Court, Harris County, Texas, Trial Court Cause Nos. 1065932 and 1065933.
Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.
MEMORANDUM OPINION
Appellants, Robert Clemente Perez (Robert) and Jazmin Rodriguez Perez (Jazmin) (jointly, the Perezes) appeal the trial court's judgments setting bail at $2,000,000. In four points of error, the Perezes assert that their bail, which was set at $2,000,000, is excessive and is in violation of the Eighth Amendment to the United States Constitution, article I, section 13 of the Texas Constitution, and articles 1.09 and 17.15 of the Texas Code of Criminal Procedure. We reverse the trial court's judgments and render judgments setting bail for each appellant at $200,000.
U.S. Const. amend. VII.
Tex. Const. art. I, § 13.
Tex. Code Crim. Proc. Ann. arts. 1.09, 17.15 (Vernon 2005).
BACKGROUND
On March 23, 2006, appellants were driving near their home in their Lincoln Navigator with their 18-month-old son when agents from the Drug Enforcement Administration (DEA) and officers from the Houston Police Department initiated a traffic stop of their truck. The officers had observed Jazmin's father, Isidro Rodriguez (Rodriguez), who was under surveillance for suspicion of selling illegal drugs, retrieve a package from the Perezes' house. After being stopped, Robert showed his driver's license to the officers, advised them that he had a pistol in his truck, gave the officers the pistol, and granted permission to search the truck. The Perezes also gave the police permission to search their house and said the police would find no narcotics in the home. However, just before the police entered the house, Jazmin told an agent that they would probably find some narcotics. The Perezes were cooperative during the search, and Robert showed the police where the guns and drugs were located. During the search, the police found 23 kilograms of cocaine, five handguns, and $5,900 in cash. Appellants were arrested and indicted for possession with the intent to deliver at least 400 grams of cocaine. Jazmin stated, in a written statement, that they were keeping the drugs for her father in exchange for some money to pay bills and that this was the second time they had done so. She stated that they had been paid $2000 the first time they stored the drugs, but had not received any money this time. Rodriguez was later arrested with 45 kilograms of cocaine and $39,000 in cash. Initially, the trial court set bail at $5,000,000 for each appellant. Two witnesses testified at a hearing on appellants' applications for writ of habeas corpus, Shaun Burns, a licensed bail bondsman with six years' experience in Harris County, and Paul Stefenauer, a Houston Police Officer assigned to the narcotics division. Burns's testimony was based on his investigation of appellants' records and interviews with Jasmin's mother and aunt. Burns testified that the Perezes, ages 21 and 24, were both born in Houston and have lived in Houston their entire lives, that neither has a prior criminal record or a record of any arrest, and that both were unemployed at the time of their arrest, although Jazmin had previously worked as a grocery store cashier and Robert as a "game room employee." Burns testified that the Perezes' primary asset is their house, which Robert inherited from his mother. Burns further testified that, based on the Perezes' assets and information provided by Jazmin's mother and aunt, the Perezes could post a maximum bond of $50,000 each. Burns testified that he did not interview the appellants in jail and did not consider the value of their automobile when determining the maximum bond. He further testified that the amount of cash seized from appellants' home was not relevant because that money was not available to use in posting bail. Burns testified that, to his knowledge, no bondsman in Harris County could post a $5,000,000 bond, and that a $5,000,000 bond is essentially the same as no bond. Burns stated that the highest bond he could post was $250,000 and that no bondsman can post a bond in excess of the amount he has on deposit with the county. Appellants' applications stated that aunts and uncles had agreed to put up their property as collateral for the bail bond and that, with their help, they could post a $50,000 bond. At the close of the hearing, the trial court granted appellants' motions and set bail at $2,000,000 each. Appellants appeal the $2,000,000 bail as excessive.DISCUSSION
In four points of error, appellants contend that the bail set by the trial court violated the United States Constitution, the Texas Constitution, and the Texas Code of Criminal Procedure. The United States Constitution provides, "Excessive bail shall not be required, not excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. The Texas Constitution provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. . . ." Tex. Const. art. I, § 13. Article 1.09 of the Code of Criminal Procedure provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted." Tex. Code Crim. Proc. Ann. art. 1.09 (Vernon 2005). Article 17.15 of the Code provides that a trial court should consider the following factors in setting 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 2005). The primary purpose for setting bail 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 Ruiz, 129 S.W.3d 751, 753 (Tex.App.-Houston [1st Dist.] 2004, 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 Ruiz, 129 S.W.3d at 753; see also Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon 2005). The burden of proof is upon a defendant who claims that bail is excessive. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex.Crim.App. 1981); Ex parte Ruiz, 129 S.W.3d at 753. We review a trial court's judgment setting bail for abuse of discretion. See Ex parte Rubac, 611 S.W.2d at 850. In addition to the factors set out in article 17.15, other factors to be weighed by the trial court are (1) the accused's work record, (2) the accused's family and community ties, (3) the accused's length of residency, (4) the accused's prior criminal record, (5) the accused's conformity with previous bond conditions, (6) the existence of other outstanding bonds, if any, and (7) aggravating circumstances alleged to have been involved in the charged offense. Maldonado v. State, 999 S.W.2d 91, 93 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). We will consider the statutory factors and the Maldonado factors to determine whether appellants' bail is excessive. A. Sufficient bail to assure appearance but not to oppress The purpose of bail is not to guarantee a defendant's appearance at trial, but to give reasonable assurance of the defendant's appearance. Ex parte Bogia, 56 S.W.3d 835, 840 (Tex.App.-Houston [1st Dist.] 2001, no pet.). In Bogia, a theft case, this Court stated, "At the $360,000 level, bail is oppressive unless justified by unusual circumstances." Id. This Court reasoned that such bail was oppressive because many bondsman and most defendants cannot make the bond, and the bail "displaces the presumption of innocence with a guaranteed trial appearance assured by incarceration without trial." Id. In light of appellants' life-long residence in Houston and their family ties here, appellants do not appear to be a flight risk. These factors weigh in favor of lowering their bail. B. Nature of the offense Appellants are charged with a very serious, but non-violent offense: possession with intent to deliver at least 400 grams of cocaine, a first degree felony with a punishment range of imprisonment for life or a term of not more than 99 years or less than 15 years and a fine not to exceed $250,000. Tex. Health Safety Code Ann. § 481.112(f) (Vernon 2003). Although appellants were in possession of six guns, they made no attempt to use them and made no attempt to flee from the officers. Appellants were cooperative when stopped by police, volunteered the fact that they had a gun in the truck, consented to the search of their truck and home, and led the police to the location of the cocaine and guns in their home. The severity of the punishment range for the alleged offense generally weighs in favor of a relatively high bail. However, here, it was Rodriguez, and not the Perezes, who was originally under surveillance for suspicion of selling narcotics. Moreover, the State presented no evidence contradicting the appellants' assertion that the narcotics found in the home actually belonged to Rodriguez. These facts weigh in favor of a lower bail. C. Ability to make bail Burns testified that, based on appellants' assets (presumably, their house) and information given to him by Jazmin's mother and aunt, the maximum bond that appellants could make was $50,000. Appellants have been in jail for more than six months, a fact that tends to corroborate appellants' assertions that they cannot make bail even at the reduced amount of $2,000,000. Although a defendant's inability to make bail is not a controlling factor in setting bail, it is a factor to be considered. Ex parte Gentry, 615 S.W.2d 228, 231 (Tex.Crim.App. 1981). The Court of Criminal Appeals has often given weight to a person's inability to post a bond, along with other factors, in reducing the bail set by the trial court. Burns's testimony regarding the ability of appellants to secure a bond took into consideration the assets of appellants as well as the willingness and ability of family members to assist appellants. The testimony established appellants' inability to make not only a $5,000,000 bond, but also a $2,000,000 bond. Appellants' inability to make a bond on the set amount weighs in favor of lowering their bail. D. Future safety of victim and community Appellants are charged with a crime that affects the community. Even if their only involvement with narcotics was to store them for others, they have contributed to a climate of crime in their community. Maldonado v. State, 999 S.W.2d at 96. This factor weighs in favor of a relatively higher bail. E. Other factors Appellants were unemployed at the time of their arrest, but there was evidence of recent past employment for both. Appellants have significant family ties, including their 18-month-old child and Jazmin's mother and several aunts and uncles, who are apparently willing to help secure a bail bond. Both appellants are life-long residents of Houston and have no prior criminal record. They have neither previous nor outstanding bonds. In addition, there were no aggravating circumstances involved in the charged offense. On the contrary, they were very cooperative with police. These factors weigh in favor of reducing their bail. As we did in Bogia, so in this case we conclude that the bail set (here, $2,000,000) "is oppressive unless justified by unusual circumstances." Furthermore, the bail in this case is far greater than bail in other drug-related cases. See, e.g., Ex parte Ruiz, 129 S.W.3d at 751(affirming $600,000 bail on charge of possession with intent to distribute 55 kilograms of cocaine); Brown v. State, 11 S.W.3d 501 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (affirming $500,000 bail on charge of possession with intent to deliver 4.5 kilograms of cocaine); Balleza v. State, 858 S.W.2d 545 (Tex.App.-Texarkana 1993, no pet.) (affirming $250,000 bail on charge of possession of 38 kilograms of cocaine with intent to distribute); Patterson v. State, 841 S.W.2d 534 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd) (affirming $150,000 bail on charge of possession of 1262 grams of cocaine with intent to deliver); Ex parte Penagos, 810 S.W.2d 796 (Tex.App.-Houston [1st Dist.] 1991, no pet.) (affirming $100,000 bail on charge of possession with intent to deliver two kilograms of cocaine). We have found only three cases in which bail exceeded $1,000,000. In the cases of two co-defendants, Ex parte Reyes and Maldonado v. State, the police seized 721 kilograms of cocaine. Ex parte Reyes, 4 S.W.3d 353, 354 (Tex.App.-Houston [1st Dist.] 1999, no pet.); Maldonado, 999 S.W.2d at 94. Bail for each defendant was initially set at $10,000,000. Reyes, 4 S.W.3d at 354; Maldonado, 999 S.W.2d at 92. The trial court reduced Reyes's bail to $3,000,000 and Maldonado's to $2,500,000. Reyes, 4 S.W.3d at 354; Maldonado, 999 S.W.2d at 92. On appeal, the trial court's orders were affirmed. Reyes, 4 S.W.3d at 356; Maldonado, 999 S.W.2d at 97. A major factor in these cases was the extremely large amount of cocaine. Reyes, 4 S.W.3d at 356; Maldonado, 999 S.W.2d at 97. In the third case, Ex parte Pequeno-Flores, appellant was charged with possession of 400 grams of cocaine after police recovered 52 kilograms of cocaine from a house often occupied by appellant. No. 01-03-00523-CR, 2003 WL 22682520, at *1 (Tex.App.-Houston [1st Dist.] November 10, 2003, no pet.) (not designated for publication), We affirmed the trial court's order setting bail at $1,500,000 because the appellant had no significant ties to the community, was in this country on a tourist visa, and listed his residence as an airport hotel. Id. at *3. In the present case, the amount of cocaine, while not insignificant, does not begin to compare with that in Reyes and Maldonado and is less than half that in Pequeno-Flores, while the bail set is close to that in Maldonado and more than that in Pequeno-Flores. In addition, appellants' family and community ties are significant. We conclude that there are no unusual circumstances that justify appellants' $2,000,000 bail and that, therefore, the bail in that amount is oppressive in violation of article 17.15 of the Texas Code of Criminal Procedure and is excessive as prohibited by the United States Constitution and article 1.09 of the Texas Code of Criminal Procedure. Accordingly, we sustain appellants' first, third, and fourth points of error.