Opinion filed September 9, 2010




                                             In The


   Eleventh Court of Appeals
                                          __________

                                     No. 11-10-00126-CR
                                         __________

                       JUAN DAMAS RODRIGUEZ, Appellant

                                                V.

                               STATE OF TEXAS, Appellee


                           On Appeal from the 106th District Court

                                      Gaines County, Texas

                              Trial Court Cause No. 10-03-15982


                           MEMORANDUM                    OPINION
       This is an appeal pursuant to TEX. R. APP. P. 31 from the trial court‟s order denying a
motion to reduce pretrial bond. We affirm.
       Juan Damas Rodriguez is charged with the aggravated sexual assault of and indecency
with his girlfriend‟s eleven-year-old granddaughter. Bail bond was set at $250,000. Appellant
requested that the trial court reduce his bond to $10,000.
       “„Bail‟ is the security given by the accused that he will appear and answer before the
proper court the accusation brought against him, and includes a bail bond or a personal bond.”
TEX. CODE CRIM. PROC. ANN. art. 17.01 (Vernon 2005). Article 17.15 provides that the amount
of bail:
           [I]s to be regulated by the court, judge, magistrate or officer taking the bail; they
           are to be governed in the exercise of this discretion by the Constitution and by the
           following rules:

                         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 so used as to make
                  it an instrument of oppression.

                         3. The nature of the offense and the circumstances under
                  which it was committed are to be considered.

                        4. The ability to make bail is to be regarded, and proof
                  may be taken upon 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 ability to make bond is one of the
many factors to be considered; however, it does not control the amount of bail and will not
automatically render an amount excessive. Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex.
Crim. App. 1980); Ex parte Branch, 553 S.W.2d 380, 382 (Tex. Crim. App. 1977); Clemons v.
State, 220 S.W.3d 176, 178 (Tex. App.—Eastland 2007, no pet.). If the ability to make bond in a
specified amount controlled, then the role of the trial court in setting bond would be eliminated,
and the accused would be in a position to determine what his bail should be. Ex parte Hunt, 138
S.W.3d 503, 506 (Tex. App.—Fort Worth 2004, pet. ref‟d); Ex parte Miller, 631 S.W.2d 825,
827 (Tex. App.—Fort Worth 1982, pet. ref‟d).
           In addition to the rules listed in Article 17.15, the following factors may also be
considered: possible punishment, the accused‟s work record, his ties to the community, the
length of his residency, his prior criminal record, his conformity with any prior bail bond
conditions, his ability or inability to make a bail bond, and the existence of any outstanding bail
bonds. Ex parte Charlesworth, 600 S.W.2d at 317; Ex parte Ivey, 594 S.W.2d 98, 99 (Tex.
Crim. App. 1980); Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977); Clemons,
220 S.W.3d at 178; Ex parte Hunt, 138 S.W.3d at 506; Ex parte Simpson, 77 S.W.3d 894, 896-


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97 (Tex. App.—Tyler 2002, no pet.); DePena v. State, 56 S.W.3d 926, 928-29 (Tex. App.—
Corpus Christi 2001, no pet.); Brown v. State, 11 S.W.3d 501, 503 (Tex. App.—Houston [14th
Dist.] 2000, no pet.); see also Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. 1981).
The primary purpose of the bail bond is to secure the accused‟s presence in court. Ex parte
Vasquez, 558 S.W.2d at 479. The accused has the burden to prove that bail is excessive. Id.
        We review the trial court‟s ruling on a request to reduce bail under an abuse of discretion
standard. See Ex parte Rubac, 611 S.W.2d at 850; Clemons, 220 S.W.3d at 178; see also
Article 17.15 (giving trial court discretion to set amount of bail). As such, we will not disturb
the trial court‟s ruling if it was within the zone of reasonable disagreement. Montgomery v.
State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991). Rule 31.2 provides that the sole purpose of
an appeal in this situation is “to do substantial justice to the parties.”
        Bacilia Rodriguez testified that she was appellant‟s mother. Bacilia stated that appellant
was fifty-seven years old and had his own residence. She identified pictures of the farm where
appellant lived by himself. She stated that appellant had not been convicted of a felony and had
no money. Bacilia stated that she had borrowed $6,000 against her pickup to hire an attorney.
        On cross-examination, Bacilia testified that she owned her home but did not know how
much it was worth. She also testified that appellant had a bank account. She stated that
appellant had worked for Haliburton for six years, but she did not know how much money he had
made. She wanted “to pay and get him out so he can go to work.” Bacilia planned to borrow the
money for his bail.
        Andrea Sifuentes testified that she was appellant‟s sister.          Andrea stated she knew
appellant was purchasing the 150-acre farm he was living on because she had helped him
complete the paperwork. Appellant paid $1,438 a month for his farm. He was also making
payments on a vehicle. He had leased ninety acres out for $9,000 a year. Appellant was a
United States citizen. Andrea did not know how much appellant made when he worked for
Haliburton. She had talked to three bonding companies and understood that each company
would require the family to pay ten percent of the bond. Andrea believed that the family could
raise $1,000 or $2,000 at the most.
        Gaines County Deputy Sheriff Gene Berry testified that he investigated the case.
Appellant‟s girlfriend had custody of her eleven-year-old granddaughter, and the two of them
lived with appellant. The allegations involved the penetration of the child‟s sexual organ by

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appellant‟s hands. When Deputy Berry went to appellant‟s residence, appellant told the deputy
that he wanted to speak to his lawyer first and that he would come in the next day to give a
statement. Deputy Berry testified that appellant never did come in.
       The record does not support the contention that the trial court abused its discretion. The
trial court stated at the close of the hearing that, given the nature of the offense and considering
the future safety of both the child and the community, a bond of $10,000 to $20,000 was not
reasonable.
       The order of the trial court is affirmed.




                                                             JIM R. WRIGHT
                                                             CHIEF JUSTICE


September 9, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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