Affirmed and Opinion filed May 23, 2013.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00002-CR

                      EX PARTE DENNIS JOE PHARRIS


                    On Appeal from the 351st District Court
                            Harris County, Texas
                        Trial Court Cause No. 1369073

                                  OPINION

      Appellant Dennis Joe Pharris appeals the trial court’s denial of his
application for writ of habeas corpus seeking a reduction in bond. In a single issue
he argues that his bail is excessive and that the trial court erred in failing to lower
his bond to $200,000. We affirm.

                                       BACKGROUND

      According to appellant’s application for writ of habeas corpus, appellant was
indicted for the offense of securing execution of a document by deception. He was
arrested on June 26, 2012, and bond was set at $900,000. On July 5, 2012, the trial
court reduced appellant’s bond to $600,000. Appellant stated he could afford a
$300,000 bond.
      On December 11, 2012, the trial court held a hearing on appellant’s
application for writ of habeas corpus. Appellant did not offer evidence in support
of his application. However, the court took judicial notice of evidence presented at
a bond hearing held July 5, 2012.

      At the July 5, 2012 hearing, Miguel Rodriguez, an employee of A Way Out
Bail Bonds, testified that appellant has been a client of A Way Out since 2009 or
2010. During that period of time Rodriguez issued several bonds on appellant, and
appellant has consistently communicated with the bonding company. Rodriguez
previously posted at least three bonds for appellant, one of which was for
$200,000. Each of those bonds was surrendered when appellant was arrested in
this case. Rodriguez testified that his underwriter will not permit bonds larger than
$300,000.

      The State presented the testimony of Trevor Paulsen, appellant’s former
employee.    Paulsen testified that appellant, using the name Steve Howell,
approached him about purchasing homes and yachts worth several million dollars.
Despite appellant’s probation condition in federal court that required appellant to
remain in the Southern District of Texas, Paulsen and appellant traveled to
California, New York and Florida. Paulsen was with appellant when he purchased
“numerous expensive vehicles.”       Appellant garaged the vehicles at different
locations to hide them from his federal probation officer.        Paulsen observed
appellant use other people’s computer-generated signatures to sign various
financial documents. The State introduced a stock option agreement that Paulsen
received from appellant via email. The agreement purported to sell stock in a
company that did not exist. Paulsen testified that, at the time of the hearing,
appellant continued to sell stock in the non-existent company.

      Paulsen contacted the Harris County District Attorney’s Office earlier in the

                                          2
year to express his fear about testifying against appellant.         He learned that
appellant had threatened the prosecutor in this case. Appellant contacted another
individual who had been prosecuted by the same assistant district attorney to solicit
that individual’s help in harming the prosecutor. An anonymous letter was sent to
appellant’s home with an aerial photograph of the prosecutor’s home. Appellant
believed the individual he contacted sent the photograph.           After appellant’s
daughter was arrested, appellant told Paulsen, in reference to the prosecutor, “I’m
going to bury that bitch. . . . I’ve already called my guys.”

      During closing argument, the prosecutor averred that appellant had been
previously convicted four times. In the fourth conviction he pleaded guilty to theft
of more than $14 million. At the conclusion of the hearing, the trial court reduced
appellant’s bond to $600,000.

                                   STANDARD OF REVIEW

      “Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.” U. S. CONST. amend. VIII; see also Schilb v.
Kuebel, 404 U.S. 357, 365, (1971) (applying Eighth Amendment prohibition of
excessive bail to the States). The standard for reviewing whether excessive bail
has been set is whether the trial court abused its discretion. See Ex parte Rubac,
611 S.W.2d 848, 849–50 (Tex. Crim. App. 1981). A defendant carries the burden
of proof to establish that bail is excessive. Id. at 849. In reviewing a trial court’s
ruling for an abuse of discretion, an appellate court will not intercede as long as the
trial court’s ruling is at least within the zone of reasonable disagreement. Ex parte
Beard, 92 S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref’d) (citing
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)).
                                         ANALYSIS

      In a single issue, appellant contends the trial court erred in refusing to set
                                           3
bail in the amount of $200,000 after the State’s failure to make a prima facie
showing of being ready for trial within 90 days of appellant’s incarceration.
Appellant relies on section 1, article 17.151 of Texas Code of Criminal Procedure,
which provides that a defendant who is detained in jail pending trial of an
accusation against him must be released either on personal bond or by reducing the
amount of bail required if the State is not ready for trial of the criminal action for
which he is being detained within 90 days from the commencement of his
detention if he is accused of a felony. See Tex. Code Crim. Proc. Ann. art. 17.151
§ 1(1).   Appellant argues that in light of this statute, the trial court had no
discretion to act other than to release him on personal recognizance or a bond in
the amount he could afford.

      The language of article 17.151 requires that when the defendant has been
incarcerated and there has been a 90-day period of delay in which the State has not
announced ready for trial, the trial court must either release the defendant on a
personal bond or allow the defendant to secure his release by setting a bail in some
amount. See Tex. Code Crim. Proc. art. 17.151; see also Rowe v. State, 853
S.W.2d 581, 582 (Tex. Crim. App. 1993). Despite the mandatory nature of the
language of article 17.151 our court holds that, a trial court has discretion to
consider future safety of a victim of the respective alleged offense in fixing a
defendant’s bail in cases in which a defendant seeks a bond reduction under article
17.151. Ex parte Hurst, No. 14-12-01151-CR, 2013 WL 1437732, at *2 (Tex.
App.—Houston [14th Dist.] Apr. 9, 2013, n.p.h.) (per curiam) (mem. op., not
designated for publication)(reasoning that because the Legislature amended article
17.15 after adoption of 17.151 and made the revision applicable to “any case,” it
vested trial court’s discretion to consider the new factor, community-safety
concerns, even in cases to which 17.151 is applicable). Article 17.15 provides:


                                          4
       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.
             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. 17.15.1 Therefore, when considering a bond
reduction under article 17.151, the trial court has a duty to consider article 17.15’s
factors, such as “the nature of the offense and the circumstances under which it
was committed” and “the future safety of the victim and the community,” as well
as whether bail is excessive.          See id. (reasoning that because the Legislature
amended article 17.15 after adoption of 17.151 and made the revision applicable to
“any case,” it vested trial court’s discretion to consider the new factor, community-
safety concerns, even in cases to which 17.151 is applicable).

       Other courts have also concluded that article 17.15 applies to bail hearings
under article 17.151. See, e.g., Matthews v. State, 327 S.W.3d 884, 887 (Tex.
App.—Beaumont 2010, no pet.). In Ex parte Matthews, the court noted after the

       1
          In addition to considering the factors in article 17.15, the courts have added seven other
factors to be weighed in determining the amount of bond: (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. Ex parte Rubac, 611 S.W.2d at 849–50.

                                                 5
decision in Rowe, article 17.15 was amended to place a duty on trial courts setting
bail to consider not only the defendant’s ability to make bail, but also to consider
factors not related to the amount the defendant can afford to pay, such as the future
safety of the community, in fixing the amount of a defendant’s bail. See 327
S.W.3d at 887. As the Matthews court explained: “We doubt that the Legislature
intended to mandate trial courts to release defendants on bail on a personal bond or
based solely on the amount they can afford in cases in which the defendant,
although unable to pay a significant bail, represents a real threat to his victim or to
the community; there are considerations that extend beyond the criteria of article
17.171 § 1 which focuses only upon the defendant’s ability to pay.” Id.

      The Matthews court held that the trial court properly considered community
safety concerns in setting the capital-murder defendant’s bail at $475,000, even
though the State conceded it was not ready for trial within 90 days of the
defendant’s incarceration and the defendant argued that his bail should be fixed at
$50,000. Id. at 888. Other courts have held similarly. See Garner v. State, No.
11-12-00211-CR, 2012 WL 3765089, at *1 (Tex. App.—Eastland Aug. 31, 2012,
no pet.) (concluding that article 17.15 places a duty on trial courts to consider
factors in addition to the defendant’s ability to make bail when considering a
defendant’s request for release under article 17.151 and holding that trial court did
not abuse its discretion by setting bail at $750,000 for capital-murder defendant);
Ex parte Robinson, 2012 WL 1255188, at *3 (Tex. App.—Corpus Christi Apr. 12,
2012, pet. ref’d) (not designated for publication) (affirming trial court’s order
setting bail at $750,000 on the defendant’s capital-murder charge, even though the
State was not ready for trial within ninety days of the commencement of the
defendant’s detention as required under art. 17.151).

      In this case, the alleged offense, in addition to other pending indictments

                                          6
against appellant, includes allegations that appellant engaged in a scheme that
included selling stock in a non-existent company. The range of punishment is
confinement for 25 years to life. See Tex. Penal Code Ann. §§ 12.42(d) & 32.46.
In appellant’s most recent conviction, he pleaded guilty to theft of over $14
million. Appellant argues, and the State concedes, that appellant has never missed
a court appearance in the last nine years. There was testimony at the hearing that
appellant violated a federal probation order requiring appellant to remain within
the Southern District of Texas by traveling to New York, Florida, and California.

      Just as a defendant’s inability to afford bail does not, in itself, demonstrate
that bail is excessive, a defendant’s ability to afford bail in the amount set does not,
in itself, justify bail in that amount. Ex parte Beard, 92 S.W.3d at 573. This factor
will not favor bond reduction, however, when the defendant makes vague
references to inability to make bond without detailing his specific assets and
financial resources. See, e.g. Ex parte Scott, 122 S.W.3d 866, 870 (Tex. App.—
Fort Worth 2003, no pet.) (in affirming trial court’s refusal to lower bond, court
cited as a factor absence of evidence regarding defendant’s ability to make bond
when defendant’s evidence consisted of his testimony that he and his family lacked
sufficient assets or financial resources to post the bond, but he did not detail either
his or his family’s specific assets and financial resources, nor did he explain what
efforts, if any were made to furnish the bond).

      In this case, there is no evidence of appellant’s financial condition other than
Rodriguez’ testimony that appellant cannot make a $900,000 bond. But Rodriguez
also testified that his company will only post a $300,000 bond for anyone.
Appellant’s lack of evidence of his financial condition is a consideration in
reviewing the trial court’s bond decision. See Cooley v. State, 232 S.W.3d 228,
234–38 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

                                           7
      Moreover, the safety of the community and the prosecutor is a consideration
in this case.    Paulsen testified that appellant threatened the prosecutor and
contacted another individual in an effort to solicit that individual’s help in harming
the prosecutor. Paulsen also testified that appellant continues to sell stock in a
non-existent company. The trial court could consider this testimony as evidence
that appellant could be a danger to the community. Not only the evidence of intent
to cause physical harm, but the potential to cause economic harm to potential
victims by continuing to engage in allegedly fraudulent business transactions.

      In Ex parte Bogia, 56 S.W.3d 835, 840 (Tex. App–Houston [1st Dist.].2001,
no pet.), the court said, “At the $360,000 level, bail is oppressive unless justified
by unusual circumstances.”      Based on the evidence before the trial court, it
reasonably could have concluded the bail it set was justified by unusual
circumstances. The trial court had before it evidence that appellant had engaged in
years of fraud and theft by soliciting investment in non-existent companies. The
court had no evidence before it of appellant’s financial situation. Given the nature
of appellant’s previous offenses and the evidence that appellant threatened the
prosecutor, the trial court could have reasonably concluded a high bond was
necessary to deter appellant from carrying out his threats against the prosecutor
and further sale of stock in a non-existent company.

      The trial court’s decision to reduce bail to $600,000 is not outside the zone
of reasonable disagreement. We overrule appellant’s issue and affirm the trial
court’s judgment.


                                       /s/       Jeffrey V. Brown
                                                 Justice

Panel consists of Justices Brown, Christopher, and McCally.
Publish — TEX. R. APP. P. 47.2(b).
                                             8
