                            COURT OF APPEALS
                             SECOND DISTRICT OF TEXAS
                                  FORT WORTH

                                  NO. 02-13-00447-CR


EX PARTE ALBERT PAYTEN




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           FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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                            MEMORANDUM OPINION1

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                                       I. INTRODUCTION

       Appellant Albert Payten appeals from the trial court’s denial of his

application for writ of habeas corpus seeking a bail reduction. See Tex. R. App.

P. 31. Because the trial court did not abuse its discretion by denying relief, we

will affirm the trial court’s order.



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        See Tex. R. App. P. 47.4.
                  II. FACTUAL AND PROCEDURAL BACKGROUND

      Payten is charged with aggravated robbery. The trial court set pretrial bail

in the amount of $750,000. Payten filed an application for writ of habeas corpus,

arguing that the $750,000 bail amount is excessive, oppressive, and beyond his

financial means. At the hearing on his application, Payten testified that he is

unable to make bail in the amount of $750,000. He said that he contacted a

bondsman who said ―it’s impossible for a bondsman to make that type of bond.‖

Payten testified that he has been bonded out in the past and that ―the going rate‖

is usually ten percent, meaning that a $75,000 premium would be required for a

bond in this case. Payten explained that he has no bank accounts, cash, vehicle,

real estate, jewelry, electronics, or anything of value. Payten said he could make

a lower bail, however, by getting help from his two sisters. Payten was not sure

of the exact amount of money that his sisters could provide, but he thought they

could help him make bail between $50,000 to $100,000. Payten testified that if

he made bail, he would live with his mother in Wichita Falls. He said that he had

worked for Dean Drilling in Archer City in the past but that he was currently

unemployed.

      Payten also offered into evidence as Defendant’s Exhibits 1, 2, and 3 an

affidavit of nonprosecution from the complainant in this case and two affidavits

from alleged witnesses to the robbery, who recanted their prior statements to

police that Payten was involved in the robbery.     The trial court admitted the




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exhibits in evidence but noted at the conclusion of the hearing that it gave very

little weight to them ―because they are hearsay and they aren’t very impressive.‖

      On cross-examination, Payten testified to some of his prior convictions,

and the State introduced in evidence judgments of the following prior convictions:

credit card abuse that occurred on December 16, 2005, robbery that occurred on

June 16, 2006, assault/family violence that occurred on July 3, 2009, violation of

a protective order that occurred on August 4, 2009, and another violation of a

protective order that occurred on August 19, 2009. State’s Exhibit 6 is a copy of

Payten’s criminal history record showing his prior arrests and nine prior

convictions or adjudications.

      State’s Exhibit 7 is the probable cause affidavit for the current offense,

which alleges the following. Three men entered a residence in Wichita Falls and

robbed the residents at gunpoint. The residents knew Payten and one of the

other robbers. During the robbery, Payten struck one of the residents in the head

with a gun. After the robbers left with money and property, they fired at least

eight gunshots at the house from their car. One resident was shot twice, once in

his face. According to the probable cause affidavit, Payten ―is a known Blood

Gang Member.‖

      The State also introduced evidence of Payten’s previous three violations of

bond conditions, including that he gave a fraudulent check to one bondsman, that

he failed to keep another bondsman informed of his whereabouts and check in

as agreed, and that he failed to maintain contact with his attorney.


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      At the conclusion of the hearing, the trial court noted its concerns that the

current offense was a violent crime and that Payten has a lengthy criminal record

and ―is pretty well known to this Court.‖ The trial court also emphasized that

Payten’s prior convictions for violating protective orders and his prior violations of

bond conditions show that he has a history of failing to comply with court orders.

The trial court denied Payten’s application for habeas relief.

                    III. STANDARD OF REVIEW AND LAW ON BAIL

      We review a trial court’s ruling on the setting of bail for an abuse of

discretion. See Tex. Code Crim. Proc. Ann. art. 17.15 (West 2005); Ex parte

Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981). To determine

whether a trial court abused its discretion, we must decide whether the trial court

acted without reference to any guiding rules or principles; in other words, we

must decide whether the trial court’s action was arbitrary or unreasonable.

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).              Merely

because a trial court may decide a matter within its discretion in a different

manner than an appellate court would in a similar circumstance does not

demonstrate that an abuse of discretion has occurred. Id.

      The primary purpose of an appearance bond is to secure the presence of

the defendant at trial on the offense charged. Ex parte Scott, 122 S.W.3d 866,

868 (Tex. App.—Fort Worth 2003, no pet.) (citing Ex parte Vasquez, 558 S.W.2d

477, 479 (Tex. Crim. App. 1977)).        Federal and state law both prohibit the

imposition of excessive bail. U.S. Const. amend. VIII; Tex. Const. art. I, § 13.


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The defendant bears the burden of proving that bail, as set, is excessive. Scott,

122 S.W.3d at 868–69 (citing Rubac, 611 S.W.2d at 849). Bail may be deemed

oppressive when the trial court sets it at an amount ―for the express purpose of

forcing [a defendant] to remain incarcerated.‖ Ex parte Harris, 733 S.W.2d 712,

714 (Tex. App.—Austin 1987, no pet.).

      Statutory and common law factors guide a trial court’s determination of

appropriate bail. The code of criminal procedure provides,

      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. In addition to these statutory factors, the

court of criminal appeals has instructed courts to also consider the accused’s

work record, the accused’s family ties, the accused’s length of residency, the

accused’s prior criminal record, the accused’s conformity with the conditions of

any previous bond, the existence of any outstanding bonds, and aggravating


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circumstances alleged to have been involved in the charged offense. Rubac,

611 S.W.2d at 849–50; Scott, 122 S.W.3d at 869.

           IV. NO ABUSE OF DISCRETION BY REFUSING TO REDUCE BAIL

      The nature of the offense that Payten is charged with and the

circumstances surrounding that offense are primary factors in determining what

constitutes reasonable bail.    See Tex. Code Crim. Proc. Ann. art. 17.15(3); Ex

parte Davila, 623 S.W.2d 408, 410 (Tex. Crim. App. [Panel Op.] 1981).       When

the nature of the offense potentially merits a lengthy prison sentence upon

conviction, pretrial bail must be sufficiently high so as to secure the presence of

the accused because the accused’s reaction to the prospect of a long sentence

may be to not appear. Scott, 122 S.W.3d at 869. Aggravated robbery is a first-

degree felony, and if convicted, Payten faces a sentence of between five and

ninety-nine years’ or life imprisonment.2 See Tex. Penal Code Ann. §§ 12.32(a),

29.03(a) (West 2011); see also Tex. Code Crim. Proc. Ann. art. 17.15(3). The

probable cause affidavit admitted in evidence at the hearing shows the violent

circumstances of the alleged aggravated robbery, including that one of the

victims was shot in the face.

      Payten’s inability to make the current amount of bail is merely one factor to

be considered in determining the appropriate amount of bail and, standing alone,

does not singularly render the bail excessive. See Scott, 122 S.W.3d at 870 (―If

      2
      The record on appeal does not include the indictment, and we do not
know whether any enhancements have been alleged.


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the ability to make bond in a specified amount controlled, then the role of the trial

court in setting bond would be completely eliminated, and the accused would be

in the unique posture of determining what his bond should be.‖) (quoting Ex parte

Miller, 631 S.W.2d 825, 827 (Tex. App.—Fort Worth 1982, pet. ref’d)); see also

Tex. Code Crim. Proc. Ann. art. 17.15(4). Payten testified in general terms that

he thought his sisters could help him make bail if it were reduced to between

$50,000 and $100,000, but he did not offer any evidence of his family’s specific

assets and financial resources or explain what efforts were being made to make

his bail. See Scott, 122 S.W.3d at 870 (explaining that ―vague references to [a

defendant’s] inability to make bond‖ do not fulfill a defendant’s burden of proof in

a proceeding for reduction of bail); see also Milner v. State, 263 S.W.3d 146, 149

(Tex. App.—Houston [1st Dist.] 2006, no pet.) (―To show that he is unable to

make bail, a defendant generally must show that his funds and his family’s funds

have been exhausted.‖).      His testimony that one bondsman told him that no

bondsman would write a bond in the amount of $750,000 does not alone make

the amount excessive. See Wright v. State, 976 S.W.2d 815, 820 (Tex. App.—

Houston [1st Dist.] 1998, no pet.) (holding that bail was not excessive even when

no bond companies in the county were able or willing to write a bond for the

amount set by the trial court).

      Regarding the safety of the victims of the offense and the community, the

victims of the robbery knew who Payten was, Payten has a substantial criminal

history, including several violent crimes, and he is a known gang member. See


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Tex. Code Crim. Proc. Ann. art. 17.15(5); see also Ex Parte Beltran, No. 04-96-

00596-CR, 1996 WL 729935, at *2 (Tex. App.—San Antonio Dec. 18, 1996, no

writ) (mem. op., not designated for publication) (considering gang membership in

analysis of safety of victims and community).

      Regarding the remaining nonstatutory factors the trial court could have

considered, Payten last worked for a drilling company but does not have a job to

return to. The only family ties revealed by the record are that his mother lives in

Wichita Falls and that he has two sisters. Finally, he has failed to comply with

conditions of bond several times in the past.

      After considering each of the statutory and common law factors relevant to

the determination of reasonable bail, especially the nature and circumstances of

the offense and Payten’s prior criminal record, we hold that he has failed to

demonstrate that bail in the amount of $750,000 is excessive or that the trial

court abused its discretion by refusing to lower the amount. See Rubac, 611

S.W.2d at 850; Scott, 122 S.W.3d at 868; see also Ex Parte Murray, No. 02-13-

00151-CR, 2013 WL 5425312, at *8 (Tex. App.—Fort Worth Sept. 26, 2013, no.

pet. h.) (mem. op., not designated for publication) (upholding trial court’s decision

not to reduce $750,000 bail amount for aggravated assault with deadly weapon

based in part on the appellant’s substantial criminal history, the serious nature of

offense, and his failure to show that he could not make bail); Ex parte Leonard,

No. 05-12-00401-CR, 2012 WL 4497654, at *1–4 (Tex. App.—Dallas Oct. 1,




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2012, no pet.) (mem. op., not designated for publication) (upholding bail of

$500,000 when defendant had a lengthy and violent criminal history).

                                  V. CONCLUSION

      Having determined that the trial court did not abuse its discretion, we affirm

the trial court’s order denying Payten’s application for writ of habeas corpus.




                                                    PER CURIAM

PANEL: WALKER, GARDNER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 7, 2013




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