No. 14-06-00788-CR
Opinion filed November 16, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 351st District Court, Harris County, Texas, Trial Court Cause No. 1031225. Affirmed.
Panel consists of Justices ANDERSON, HUDSON, and GUZMAN.
PER CURIAM.
Appellant is charged with first degree felony theft. Bail was originally set at $10 million, but was reduced to $2.5 million on July 15, 2005. This amount was later reduced to $1 million. Appellant challenged this ruling and the First Court of Appeals reversed the trial court and rendered judgment that bail be set at $500,000. Pharris v. State, 196 S.W.3d 369, 374 (Tex.App.BHouston [1st Dist.] 2006, no pet.). Appellant was unable to make bail and filed a motion to reduce bail to $5000. After a hearing, the trial court denied appellant's motion by order signed August 30, 2006. Appellant asserts that bail must be reduced to $5000 under article 17.151 of the Code of Criminal Procedure. We affirm.
Appellant was originally charged on June 17, 2004, with the offense of forgery. A new charge was filed on December 15, 2004, alleging the offense of theft from Hibernia Bank. On April 15, 2005, the state filed new charges alleging theft against Southwestern Bank. On June 20, 2005, the state filed the instant case, which allegedly incorporates all existing theft cases against appellant.
Background
In his motion to reduce bail, appellant conceded that evidence had previously supported the court's order setting bail at $500,000, but appellant alleged that circumstances have now changed because a notice of lis pendens was filed on the real property the bondsman wanted to use as security. A copy of this lis pendens was attached to the motion. Additionally, an affidavit from the bondsman, David Schmidt, was attached to the motion. In the first appeal regarding bail, Pharris v. State, 196 S.W.3d 369 (Texas App.BHouston [1st Dist.] 2006, no pet.), two bail bondsmen testified in the hearing on the writ of habeas corpus. One testified that, after preliminary research, he would post bail of a maximum of $100,000-125,000. Id. at 371. The other witness, David Schmidt, testified he had investigated judgments against appellant and his family and had discussions with appellant's family attorney regarding property that could be used to secure a bond. Id. Schmidt testified he would post a bail bond for appellant up to a maximum of $500,000. Id. In the affidavit attached to the motion to reduce bond in this case, Schmidt stated his previous opinion that appellant could make a $500,000 bond was based on the ability to use a parcel of real property in Hill County as security. Because a notice of lis pendens was filed, Schmidt stated that appellant no longer has the ability to make a $500,000 bond, that he does not believe appellant has the present ability to make a bond greater than $5000, and that Schmidt would not post a bond of more than $5000. David Schmidt was the sole witness for appellant at the hearing on the motion to reduce bond. Schmidt testified he had done extensive research and had a real estate attorney work with him regarding securing the bond with the Hill County property owned by the Pharris Family Trust. According to Schmidt, the lis pendens was filed in conjunction with a claim in appellant's mother's bankruptcy case. Schmidt testified that the lis pendens clouded title to the property and the title company would no longer issue a title policy. Without the title policy, Schmidt testified he would not make the bond. Because appellant has paid cash of $6,500, Schmidt testified that he would hold $5000 in escrow and would be willing to post a $5000 bond. Schmidt testified that his research revealed no other unencumbered real property that would support a higher bond. Schmidt admitted, however, that he has done no research regarding any assets other than real property. The State called one witness, David Pilant, a fraud examiner for the Harris County District Attorney's Office. Pilant testified he had reviewed numerous bank records and deed records relating to this case. Pilant testified that appellant's financial statements revealed he controlled approximately $25 million in the JLP Trust, that his mother possessed approximately $13 million in assets, that his mother's company, Land-Tex, was worth approximately $64 million, and that appellant's company, NG Holdings, was worth approximately $35 million. However, Pilant admitted that appellant's financial statements were "grossly exaggerated." Pilant further testified that the net amount of money appellant had obtained from victims since he was first indicted was in excess of $8 million; however, this money has yet to be located. As to the real property, Pilant understands that these are either tied up in bankruptcy or have judgment liens on them. Discussion
Appellant contends that article 17.151 mandates that appellant is presently entitled to a bail he can make and, because the record establishes that appellant cannot make bail of more than $5000, bail must be reduced to $5000. Article 17.151 provides that a defendant who is detained in jail pending trial must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial within 90 days of his detention if he is accused of a felony. TEX. CODE CRIM. PROC. ANN. art. 17.151 § 1(1) (Vernon Supp. 2006). In Rowe v. State, the Court of Criminal Appeals held that the provisions of article 17.151 are mandatory. 853 S.W.2d 581, 582 n. 1 (Tex.Crim.App. 1993) (en banc). AIf the trial court chooses to reduce the amount of bail required, it must reduce bail required to an amount that the record reflects an accused can make in order to effectuate release. Id. The burden of proof is on the accused to show the he is unable to make the bond. See Carraway v. State, 750 S.W.2d 12, 13 (Tex.App.BHouston [14th Dist.] 1988, no pet.). Appellant presented one witness, who testified that he would not make a bond for $500,000 because there was no longer any real property available to use as security for the bond. However, this witness also admitted he had not done any further investigation of appellant's assets and that he has never investigated appellant's financial assets or bank records. Although the evidence establishes appellant has no real property available to secure a bond, appellant presented no evidence concerning assets other than real property that are available to secure a bond. Because we conclude appellant did not meet his burden of proving he was unable to make the $500,000 bond, we hold the trial court did not abuse its discretion in denying appellant's motion to reduce bond. Accordingly, we affirm the trial court's order denying appellant's motion to reduce bond.