                                                                              ACCEPTED
                                                                         06-14-00206-CR
                                                               SIXTH COURT OF APPEALS
                                                                    TEXARKANA, TEXAS
                                                                    1/31/2015 7:27:20 PM
                                                                         DEBBIE AUTREY
                                                                                  CLERK

                 NO. 06 – 14-- 00206– CR

                                                     FILED IN
                                              6th COURT OF APPEALS
     IN THE SIXTH DISTRICT COURT OF         APPEALS
                                                TEXARKANA, TEXAS
                TEXARKANA, TEXAS              2/3/2015 3:15:00 PM
                                                  DEBBIE AUTREY
                                                      Clerk

                     CINQUE ROSS
                           Appellant,

                             v.

                 THE STATE OF TEXAS
                           Appellee


On appeal from the 188TH District Court, Gregg County, Texas
               Trial Court Case No. 43,104-B


           BRIEF OF THE STATE OF TEXAS


          – ORAL ARGUMENT NOT REQUESTED –

                       GREGG COUNTY CRIMINAL
                       DISTRICT ATTORNEY’S OFFICE

                       Zan Colson Brown
                       Texas Bar No. 03205900
                       Assistant District Attorney
                       Gregg County, Texas
                       101 East Methvin St., Suite 333
                       Longview, Texas 75601
                       Telephone: (903) 236–8440
                       Facsimile: (903) 236–3701
                       Email: zan.brown@co.gregg.tx.us
                                     TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................1

INDEX OF AUTHORITIES ...................................................................................2
STATEMENT OF FACTS ......................................................................................4


   ARGUMENT ........................................................................................................8
   I. The trial court correctely refused to reduce Ross’ bond amount. ...................8
           a.     Standard of Review................................................................................8
           b.     Trial court has discretion to consider many factors. ............................9
           c.     The court must consider certain factors................................................9
           d.     The court may consider other factors. ................................................10
           f. The record supports that the judge considered all five factors
                from Article 17.15. ..............................................................................12
           g.     The record supports that the judge considered many of the
                  other optional factors that he could consider under case
                  law. ......................................................................................................14


   CONCLUSION ....................................................................................................17



PRAYER .................................................................................................................17

CERTIFICATE OF SERVICE ............................................................................18


CERTIFICATE OF COMPLIANCE………………………………………….21




                                                                  1
                                INDEX OF AUTHORITIES


        State Cases

Brown v. State, 11 S.W.3d 501 (Tex. App.--Houston [14th Dist.] 2000, ................10

Clemons v. State, 220 S.W.3d 176 (Tex. App.—Eastland 2007, no pet.) ...... 8, 9, 10

DePena v. State, 56 S.W.3d 926 (Tex. App.—Corpus Christi 2001, no pet.) ........10

Ex parte Branch, 553 S.W.2d 380 (Tex. Crim. App. 1977) ......................................9

Ex parte Charlesworth, 600 S.W.2d 316 (Tex. Crim. App. 1980)......................9, 10

Ex parte Hunt, 138 S.W.3d 503 (Tex. App.--Fort Worth 2004, pet. ref'd) .............10

Ex parte Ivey, 594 S.W.2d 98 (Tex. Crim. App. 1980) ...........................................10

Ex parte Rubac, 611 S.W.2d at 850 .....................................................................8, 10

Ex parte Simpson, 77 S.W.3d 894 (Tex. App.--Tyler 2002, no pet.) ......................10

Ex parte Vasquez, 558 S.W.2d 477 (Tex. Crim. App. 1977) ........................... 10, 11

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) ..................................8

Hunt, 138 S.W.3d 503..............................................................................................10

Ivey, 594 S.W.2d 98 (Tex. Crim. App. 1980) ..........................................................10

Light v. State, 15 S.W.3d 104 (Tex. Crim. App. 2000) .............................................8

Light v. State, 15 S.W.3d 104, 106 (Tex. Crim. App. 2000) .....................................8

McLendon, 356 S.W.3d 541 (Tex. App. Texarkana 2011, no pet.) .................. 14, 15

Milner v. State, 263 S.W.3d 146 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ..11


                                                             2
Montgomery, 810 S.W.2d, 391 ..................................................................................8

        State Statutes

Tex. Crim. Proc. Code Ann. art. 17.15 (Vernon) ............................................ passim




                                                          3
                             STATEMENT OF FACTS


             Cinque Ross was indicted for being a felon in possession of a weapon.

CR4. He pleaded not guilty to the Court, but was found guilty and was sentenced to eight

years in the Texas Department of Criminal Justice—Institutional Division. See Judgment,

CR 6. His appeal bond was set at $100,000.00. See Docket sheet, Supp CR 4.

      He filed a motion for new trial, which was denied after a hearing on October 8,

2014. Supp CR 2. On the same day, he filed a motion to reduce bond. Supp CR 1. In it

he alleged that he was eligible to be released on bond pending the final determination of

his appeal; he is a resident of this community, with ties to the community, and with

family members residing here; he did not miss any court appearances while he was

previously on bond in this case; the amount of the bond is unreasonably high, neither he

nor his family has rthe resoures to pay the premium, but the family may have resources to

make a bond in a lesser amount; he is ready to comply with any reasonable terms

imposed by the trial court in setting a reasonable bond. Supp. CR 1.

      At the hearing on October 30, 2014, he testified as follows:

            he had lived in Gregg County most of his adult life, and his parents, his

              aunt, his sister and his son still live here and the relationship was close.

              1(2) RR 6.

            He had made a pre-trial bond in this case in the amount of $30,000, with

              conditions, and he had complied, appearing at every court appearance. 1

              (2) RR 7.

                                                4
           He had held an oil-field job working 70 hours a week before he was

              arrested on this charge. 1(2) RR 7.

           His eighteen-year-old son and 63-year-old mother both rely on him 1 (2)

              RR 8-9.

           His family could not raise the premium for a bond of $100,000, but they

              could raise $2500 or maybe a little more to put up as a bond premium. 1

              (2) RR 10.

      On cross-examination:

           he admitted being convicted for assault on a public servand and engaging in

              criminal activity, but could not remember the misdemeanors he was asked

              about. 1 (2) RR 11.

           On further questioning, he recalled having a misdemeanor of failing to

              identify himself, but could not recall that they were numerous. 1 (2) RR

              11.

      The Court agreed to take judicial notice of all prior proceedings, including the PSI

and the amount of his prior bond. 1 (2) RR 11.

      Defense counsel argued:

           that he was eligible for an appeal bond, but neither he nor his family have

             the resources to come up with the premium for a $100,000 bond;

           that he has worked here, he has close ties to the community; he has lived

             here most of his life;


                                                 5
    that he is not a flight risk.

The State argued:

    that the PSI contained his statement that he was selling the guns to buy

       drugs;

    that he had two felonies, nine misdemeanors, several of which were failure

       to identify himself. 1 (2) RR 13.

    The failure to identify indicates that he is a flight risk. 1 (2) RR 13.

    He has no driver’s license. 1 (2) RR 14.

    that he had no constitutional right to have bail set in an amount that he

       could handle. 1 (2) RR 14.

    that the Court should consider item number five from the rules for fixing

       the amount of bail: the future safety of the community. Tex. Crim. Proc.

       Code Ann. art. 17.15.



The Court denied the motion to reduce b ond. Ross appealed.




                                           6
                            SUMMARY OF THE ARGUMENT



       The trial court did not abuse its discretion. He considered Ross’ ability to work,

his ties to his family, the fact that he had lived here for a long time, and Ross’ testimony

regarding his family’s inability to raise the amount needed to pay the premium on a

$100,000 bond.

       He further considered his criminal record and the risk to the community by

releasing him. He was aware that a defendant has no constitutional right to a bond within

his means.

       The judge made a decision that was reasonable under these facts. His decision was

not arbitrary, and was well within the zone of reasonable disagreement. The appellant has

not met his burden to prove an abuse of discretion.




                                                7
                                      ARGUMENT



   I.      The trial court correctely refused to reduce Ross’ bond
           amount.


        The trial court did not abuse its discretion when it denied the request to

reduce the appellate bond.

           a. Standard of Review

        A trial court's ruling on a request to reduce bail is reviewed under an abuse

of discretion standard. Clemons v. State, 220 S.W.3d 176, 178 (Tex. App.—

Eastland 2007, no pet.). (citing Ex parte Rubac, 611 S.W.2d 848 at 850 (Tex.

Crim. App. 1981) and Article 17.15, which gives a 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. Clemons, at 178, citing Montgomery, 810

S.W.2d, 391.      As a general rule, appellate courts should afford almost total

deference to a trial court's determination of the historical facts that the record

supports, especially when the trial court's fact findings are based on an evaluation

of credibility and demeanor. Light v. State, 15 S.W.3d 104, 106 (Tex. Crim. App.

2000), citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

        Appellant’s sole issue here is whether the trial court abused its discretion in

denying the reduction. The evidence on which he bases his request for reduction

                                              8
was provided by his own testimony, whose demeanor was observed by the trial

court and whose credibility could be judged only by the trial court.

          b. Trial court has discretion to consider many factors.

      “The ability to make bond is one of many factors to be considered; however,

it does not control the amount of bail and will not automatically render an amount

excessive.” Clemons, 220 S.W.3d at 178, citing Ex parte Charlesworth, 600

S.W.2d 316; Ex parte Branch, 553 S.W.2d 380, 382 (Tex. Crim. App. 1977). “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 the position

to determine what his bail should be.” Clemons, citing Ex parte Branch, 553

S.W.2d at 382. Tex. Crim. Proc. Code Ann. art. 17.15 This Court considered other

factors besides the defendant’s ability to make bond.

          c. The court must consider certain factors.

      The Court, pursuant to the Code of Criminal Procedure, must consider

certain factors when determining an amount of bond to set.

             The amount of bail to be required in any case is 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.
                                                9
              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. art. 17.15 (2013).

         d. The court may consider other factors.

      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. Clemons, 220 S.W.3d at 178, citing

Ex parte Charlesworth, 600 S.W.2d at 317; Ex parte Vasquez, 558 S.W.2d 477,

479 (Tex. Crim. App. 1977) Ex parte Ivey, 594 S.W.2d 98 (Tex. Crim. App. 1980);

Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977); Ex parte Hunt,

138 S.W.3d 503 (Tex. App.--Fort Worth 2004, pet. ref'd); Ex parte DePena v.

State, 56 S.W.3d 926, 927 (Tex. App.—Corpus Christi 2001, no pet.); Ex parte

Simpson, 77 S.W.3d 894 (Tex. App. Tyler 2002); Brown v. State, 11 S.W.3d 501

(Tex. App.--Houston [14th Dist.] 2000, no pet.); see also Ex parte Rubac, 611

S.W.2d at 849.

      The primary purpose of the bail bond is to secure the accused's presence in

court. Clemons v. State, at 178 (citing Ex parte Vasquez, 558 S.W.2d at 479). The

accused has the burden to prove that bail is excessive. Id.
                                             10
         e. The trial court considered many factors.

      The defense, with the burden to prove that the bond should be reduced,

argued that neither Ross nor his family had the wherewithal to pay the premium on

a $100,000 bond, but might be able to raise $2500 or a little more.

      Regarding ability to make bond, his attorney argued that he and his family

have limited resources, and that the present bond was beyond their reach. 1 (2) RR

14-15. He did not discuss whether anybody in the family had property that could

be used as collateral to borrow the money. Nobody else in the family came

forward to testify to their indigence. “To show that [one ] is able to make bail, a

defendant generally must show that [his] funds and [his] family’s funds have been

exhausted.” Milner v. State, 263 S.W.3d 146, 149 (Tex. App.—Houston [1st Dist.]

2006, no pet.).

      Regarding the other factors, defense counsel argued asl follows:

      He has worked here; he had a job; he has family; he has close ties to
      the community; lived here most of his life; and I don't think he's going
      to go anywhere, Your Honor. I don't think he's a flight risk. There's
      been no evidence of that, I don't think in the past. 1 (2) RR 13.


      The State, on the other hand, argued several facts from the pre-sentence

report. He doesn’t have a constitutional right to have bond set in an amount he can

handle. The State also asked the judge to give particular consideration to the future

safety of the community.

                                            11
       Having this evidence and argument before him, the trial judge was certainly

within the zone of reasonable disagreement to refuse to reduce the bond.



          f. The record supports that the judge considered all five factors from
          Article 17.15.

       These are the rules and the evidence that the judge considered them:

         1. The bail shall be sufficiently high to give reasonable assurance
       that the undertaking will be complied with.Tex. Crim. Proc. Code
       Ann. art. 17.15.

       The judge considered reducing it, but decided against it, leaving it

sufficiently high to give reasonable assurance that Ross would make an appearance

after the appeal is finished.



         2. The power to require bail is not to be so used as to make it an
       instrument of oppression. Tex. Crim. Proc. Code Ann. art. 17.15.


       The judge was not asked to consider this rule in particular; there was no

allegation that the original bond was oppressive. The defense counsel did refer the

judge to these rules, however. 1 (2) RR 5. Therefore it can be assumed that the

judge considered or reconsidered it. The defense did not carry its burden to prove a

violation of this rule.

         3. The nature of the offense and the circumstances under which
       it was committed are to be considered. Tex. Crim. Proc. Code Ann.
       art. 17.15.
                                            12
       The judge agreed to consider all prior proceedings and the PSI, in which he

would find a statement that Ross was selling the guns to purchase drugs. 1 (2) RR

11.


        4. The ability to make bail is to be regarded, and proof may be
      taken upon this point. Tex. Crim. Proc. Code Ann. art. 17.15.

      The only evidence of his family’s inability to make the bond as set was the

testimony of the defendant, which the judge was free to believe or disbelieve. 1 (2)

RR 9-10. No other witness was there to speak to the family’s possession of

property that could be used as collateral to borrow the bond premium. No one

testified to the household income. No documents were produced to show their

income(s). The judge did comply with the statute by considering it, but he

apparently found the evidence insufficient. There was evidence of his ability to

make a pre-trial bond. He claimed to have made a bond of $30,000, but it might

have been $20,000. He was not sure. 1(2) RR 11-12.


        5. The future safety of a victim of the alleged offense and the
      community shall be considered. Tex. Crim. Proc. Code Ann. art.
      17.15.

      The judge was specifically asked by the State to consider the future safety of

the community. 1 (2) RR 14. Since the judge was familiar with the case, having

heard it from the first, and since the judge agreed to consider the pre-sentence
                                           13
investigation report, he could consider the crime itself and the circumstances

surrounding the crime while he thought about protecting the community. “The

nature of the offense and circumstances surrounding the crime are primary factors

in determining what constitutes reasonable bail.” Ex parte McLendon, 356 S.W.3d

541, 543 (Tex. App. Texarkana 2011, no pet.).

      The defense failed to prove any violation of any of the above mandatory

considerations.


         g. The record supports that the judge considered many of the other
         optional factors that he could consider under case law.


      According to the cases listed in paragraph “d,” above, a trial court may also

consider the following:

         1. Possible punishment. Ross’ punishment had already been set at

            eight years in prison. CR 6.

         2. The accused's work record. Ross was unemployed at the time of this

            hearing, but he testified he had previously held an oil-field job

            working 70 hours per week, and he felt he could either go back to

            work for the same employer or get another job. 1 (2) RR 7-8. The

            judge was free to believe or disbelieve the words of the accused.

         3. His ties to the community. Ross testified he had worked here. Id.

            The Judge also took notice of the criminal record in this community. 1

                                           14
   (2) RR 10-11. His criminal record in the community is relevant to his

   ties to the community.

4. The length of his residency. Ross testified that he had lived here

   most of his life. 1 (2) RR 6

5. His prior criminal record. The State asked--and the judge agreed--

   to take judicial notice of all prior proceedings, and of the pre-sentence

   investigation report. 1 (2) RR 11. Ross’ memory failed him when he

   was asked about his criminal record, but he did recall a felony assault

   on a public servant, and a felony engaging in criminal activity, and

   when reminded, recalled at least one failure to identify himself. 1 (2)

   RR 11.

6. His conformity with any prior bail bond conditions. The judge

   heard Ross testify that he had complied with his prior bond conditions

   by attending every court appearance, but no evidence was taken on

   other bond conditions. The judge also had the pre-sentence report to

   consider.

7. His ability or inability to make a bail bond. As stated above, the

   judge had only Ross’ testimony on his and his family’s inability to

   make the $100,000 bond set. Nobody testified to the family’s income,

   expenses, or their possessions that could be used collateral to borrow.

                                  15
           In an unpublished opinion, this Court found evidence insufficient to

           prove the family’s inability to pay when there was much more

           information than we have in the present case.

     According to Main, a bail-bonding company she contacted would
     require Stephenson to make an initial deposit of $2,300.00 as a
     condition [] for issuing such a $40,000.00 bond with the further
     requirement that she follow-up that initial payment with additional
     monthly payments. Main testified that she was disabled, that her sole
     income was about $470.00 per month in Social Security disability
     income, and that her nephew (who lived in the home with her) was
     likewise disabled and received about $840.00 per month from the
     same source. Main related further that Stephenson's other family and
     friends were able to supply only about $250.00 toward the payment of
     an appeal bond. Main failed to testify about her own monthly
     expenses. She claimed she could make a premium payment on a bond
     of only about $2,500.00 to $5,000.00, not the $40,000.00 appeal bond
     amount set by the trial court. Although Main testified that Stephenson
     lived in the same house with Main and Main's nephew, together with
     "her grandmother and -- and my son," the finances of neither
     Stephenson's grandmother nor her brother were discussed. Main also
     failed to testify whether she or any other family member possessed
     collateral with which to secure a loan for the payment of bonding fees.
     From the record, it is not entirely clear that Stephenson's family's
     resources have been exhausted to the extent that the requested bond
     fee could not be satisfied.

Stephenson v. State, 2013 Tex. App. LEXIS 11709, 5-7 (Tex. App.
Texarkana Sept. 17, 2013).


            The judge no doubt considered Ross’ opinion of his family’s

           financial situation, although he may have found such testimony

           insufficient to prove the inability to make the bond. He also could

           have believed or disbelieved it.
                                          16
            8. The existence of any outstanding bail bonds. No evidence was

              taken on this point.

       The record thus shows that the judge considered many different relevant

factors before determining that the defendant had not made a convincing argument

for reduction of bond to meet his burden of proof.




                                      CONCLUSION

       The ruling should be affirmed because the trial court did not act without reference

to any guiding principles; the trial court was not arbitrary or unreasonable in setting the

bond amount. There being no abuse of discretion, the ruling of the court should be

affirmed.

                                        PRAYER

       Fore the foregoing reasons, the State prays that the ruling be affirmed.

                                          Respectfully Submitted,


                                          _Zan Colson Brown
                                          Zan Colson Brown
                                          Texas Bar No. 03205900
                                          Assistant District Attorney
                                          101 East Methvin St., Suite 333
                                          Longview, TX 75601
                                          Telephone: (903) 236–8440
                                          Facsimile: (903) 236–3701




                                               17
                           CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the above and foregoing has been
forwarded to all counsel of record by certified mail, return receipt requested and/or
facsimile to:

      Lew Dunn
      P.O. Box 2226
      Longview, Texas 75606

      this 31st day of January, 2015.

                                              Zan Colson Brown
                                              Zan Colson Brown
                                              Assistant Criminal District Attorney

                          CERTIFICATE OF COMPLIANCE

              I certify that the foregoing document complies with Texas Rules of
Appellate Procedure regarding length of documents, in that exclusive of caption,
statement regarding oral argument, table of contents, table of authorities, signature,
certificate of service, certificate of compliance, it consists of 3,024 words.

                                                    /s/ Zan Colson Brown
                                                    Zan Colson Brown
                                                    Assistant Criminal District Attorney




                                             18
