Opinion issued April 21, 2015




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-15-00288-CR
                           ———————————
            EX PARTE KEITH WILSON GOODSON, Appellant



                   On Appeal from the 184th District Court
                           Harris County, Texas
                       Trial Court Case No. 1457737


                         MEMORANDUM OPINION

      This is an appeal from a bail proceeding. See TEX. R. APP. P. 31. Appellant

Keith Wilson Goodson has been charged with the felony offense of theft over

$200,000. See TEX. PENAL CODE ANN. §31.03(e)(7) (West Supp. 2014). Pretrial

bail was initially set at $5 million, and Goodson filed an application for writ of

habeas corpus seeking bail reduction. Prior to the hearing on the habeas
application, the trial court reduced bail to $750,000. Following the hearing, the

court denied Goodson’s application for writ of habeas corpus and bail remained at

$750,000. Goodson appeals from the denial of his application for writ of habeas

corpus. See TEX. R. APP. P. 31. We conclude that the trial court did not abuse its

discretion and therefore affirm.

                                   Background

      Goodson was charged with stealing $2,790,000 in checks from his employer

and depositing them into his personal bank account. According to the State,

Goodson partially admitted to the theft in a statement obtained as part of his

employer’s investigation and later admitted to the theft in a voluntary statement

obtained by the Federal Bureau of Investigation; however, none of the money has

been recovered. Bail initially was set at $5 million. Goodson filed an application

for writ of habeas corpus claiming that he “has only minimal financial resources”

and requesting that bail be reduced to an amount between $20,000 and $100,000.

Prior to the hearing on the application, the trial court reduced bail to $750,000.

Although Goodson did not testify at the hearing on his application, he presented

testimony from his wife and a bail bondsman to argue that the bail amount should

be reduced. In arguing that the bail amount was proper, the State provided

testimony from a fraud examiner and introduced evidence demonstrating, among

other things, over $117,000 in purchases from Goodson’s account as well as



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$526,246.48 in unaccounted cash withdrawals from January 2007 to February

2014.

        Goodson first presented testimony from Woodley Fisher, a licensed bail

bondsman. Fisher testified that: (1) Goodson would only qualify for a bond of

about $75,000, based on the information from his wife and additional cosigners,

(2) he did not believe that Goodson was a flight risk, and (3) he has never issued a

$750,000 bond in Harris County. On cross-examination, Fisher testified that he

was not aware of certain other bank accounts identified by the State as being held

by Goodson and admitted that his opinion on the appropriate bail amount would

change if Goodson has $500,000 in cash that has not been accounted for in any of

the records provided to Fisher.

        Goodson then presented testimony from his wife, Misti, who testified that

she does not believe her husband is a flight risk because: (1) he has lived in

Houston his entire life, (2) he is actively involved with his three children, and (3)

he is currently employed and is the sole source of his family’s income. She further

testified that Goodson could not post bail at $750,000, but could post a bond, with

help from family members, if the amount was reduced to $75,000. On cross-

examination, Misti testified that she does not know what happened to the

$526,246.48 in cash withdrawals and did not know about specified large purchases

from the account. She further testified on cross-examination that: (1) Goodson



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handled the family’s finances while she took care of the household, (2) they

currently have three cars, an ATV, a recreational vehicle, and a house appraised at

$230,000, (3) they added a pool and installed hardwood floors to their home, (4)

over the years, they have sold their boat, motorcycles, jet skis, 4-wheelers, and a

second house, and (5) they have traveled outside of the country.

      The State presented testimony from Brian Quijano, a fraud examiner with

the Harris County District Attorney’s Office, who reviewed records from

Goodson’s bank account. Quijano prepared exhibits that were introduced into

evidence identifying $2,250,886.40 in unauthorized checks deposited by Goodson

into his account from January 2007 to February 2014 and $526,246.48 in cash

withdrawals during the same time period. Quijano testified that people who steal

large amounts of money sometimes store cash, and there is no way to determine

with certainty whether such defendants have a large amount stored away. In

reviewing Goodson’s account, Quijano found evidence of potential other

unidentified accounts. On this point, the State introduced evidence of wire transfers

from Goodson’s account to other accounts with different financial institutions,

including one which indicated purpose of the transfer was “[s]ending to self.” On

cross-examination, Quijano admitted that these accounts could be either bank

accounts or loans. Finally, the State introduced into evidence a list of purchases

from Goodson’s account for certain “large items.” Quijano testified that he was



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able to verify these purchases in the Goodson’s account records and that the

purchases totaled over $117,000, suggesting assets of that amount.

      At the conclusion of the hearing, the court denied the writ of habeas corpus

and held that the bail remained at $750,000. Goodson filed a timely notice of

appeal.

                                      Analysis

      An applicant seeking a writ of habeas corpus bears the burden of proving

facts that would entitle him to relief and ensuring that a sufficient record is

presented to show error requiring reversal. See Ex parte Kimes, 872 S.W.2d 700,

703–04 (Tex. Crim. App. 1993). In reviewing the trial court’s order, we view the

facts in the light most favorable to the trial court’s ruling, and we uphold the ruling

absent an abuse of discretion. See Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim.

App. 2006).

      Both the federal and state constitutions prohibit excessive bail. The Eighth

Amendment to the United States Constitution provides that “Excessive bail shall

not be required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted.” U.S. Const. amend. VIII; see also id., amend. XIV; Schilb v. Kuebel,

404 U.S. 357, 365, 92 S. Ct. 479, 484 (1971) (applying Eighth Amendment

prohibition of excessive bail to the States). Likewise, the Bill of Rights contained

within the Texas Constitution provides that “[a]ll prisoners shall be bailable by



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sufficient sureties, unless for capital offenses, when the proof is evident; but this

provision shall not be so construed as to prevent bail after indictment found upon

examination of the evidence, in such manner as may be prescribed by law.” TEX.

CONST. art. I, § 11. The Texas Bill of Rights further specifies that “Excessive bail

shall not be required . . . .” Id., art. I, § 13.

       The primary purpose for setting bail is to secure the presence of the

defendant in court at his trial. See Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex.

Crim. App. 1977); Golden v. State, 288 S.W.3d 516, 519 (Tex. App.—Houston

[1st Dist.] 2009, pet. ref’d). The amount of bail should be set sufficiently high to

give reasonable assurance that the accused will comply with the undertaking, but

should not be set so high as to be an instrument of oppression. See Ex parte Bufkin,

553 S.W.2d 116, 118 (Tex. Crim. App. 1977); Montalvo v. State, 315 S.W.3d 588,

593 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

       When reviewing a trial court’s determination regarding the amount of bail

set, appellate courts apply an abuse-of-discretion standard. See Ex parte Rubac,

611 S.W.2d 848, 849–50 (Tex. Crim. App. 1981) (reviewing bail pending appeal

for abuse of discretion); Montalvo, 315 S.W.3d at 592; Cooley v. State, 232

S.W.3d 228, 233 (Tex. App.—Houston [1st Dist.] 2007, no pet.). In the exercise of

its discretion, a trial court should consider the following factors set forth in




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Article 17.15 of the Texas Code of Criminal Procedure in setting a defendant’s bail

before trial:

       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 (West Supp. 2014); see Ludwig v. State,

812 S.W.2d 323, 324 (Tex. Crim. App. 1991); Montalvo, 315 S.W.3d at 592. In

addition to these factors, courts should also consider the defendant’s work record,

family ties, residency, criminal record, conformity with previous bond conditions,

and aggravating factors involved in the offense. See Ex parte Rubac, 611 S.W.2d at

849–50; Montalvo, 315 S.W.3d at 596.

       A defendant carries the burden of proof to establish that bail is excessive.

See Ex parte Rubac, 611 S.W.2d at 849; In re Hulin, 31 S.W.3d 754, 759 (Tex.

App.—Houston [1st Dist.] 2000, no pet.). 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 within the zone of reasonable disagreement. See Cooley, 232 S.W.3d at

234; Ex parte Beard, 92 S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref’d)



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(citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)). An

abuse-of-discretion review in this context requires more of the appellate court than

simply deciding that the trial court did not rule arbitrarily or capriciously. See

Cooley, 232 S.W.3d at 234. The appellate court must instead measure the trial

court’s ruling against the relevant criteria by which the ruling was made. See id.

    I.     Nature and circumstances of the offense

      The defendant’s potential sentence and the nature of the crime are “primary

factors” for us to consider. See Ex parte Hunt,138 S.W.3d 503, 506 (Tex. App.—

Fort Worth 2004, pet. ref’d); see also Montalvo, 315 S.W.3d at 593 (noting that

consideration of nature and circumstances of offense requires us to consider range

of punishment permitted in event of conviction). When the nature of the offense is

serious and a lengthy sentence following trial is probable, bail should be “set

sufficiently high to secure the presence of the accused at trial because the

accused’s reaction to the prospect of a lengthy prison sentence might be not to

appear.” In re Hulin, 31 S.W.3d at 761; see also Hunt, 138 S.W.3d at 506 (“Given

the serious nature of the offenses and the potential for a lengthy sentence, the trial

court could properly have concluded that the amounts of the bonds were

reasonable.”).

         Goodson is charged with theft of over $200,000, which is a first-degree

felony offense carrying a punishment range of five to ninety-nine years or life



                                          8
imprisonment, plus a fine of up to $10,000. See TEX. PENAL CODE ANN. § 12.32

(first degree felony is punishable by imprisonment for five years to ninety-nine

years, or life, and a fine not to exceed $10,000); id. § 31.03(e)(7) (theft is first-

degree felony if value of property stolen is $200,000 or more).

      The $750,000 bail amount set in this case is within the range of bail amounts

that have been upheld for other first-degree felonies. See, e.g., O’Brien v. State,

No. 01–12–00176–CR, 2012 WL 2922545, at *1–5 (Tex. App.—Houston [1st

Dist.] July 5, 2012, no pet.) (mem. op., not designated for publication) (no abuse of

discretion in refusal to reduce bail set at $750,000 for first-degree felony charge of

theft of property valued at over $200,000); Ex parte Cuevas, Jr., No. 11–03–

00402–CR, 2004 WL 527960, at *4–5 (Tex. App.—Eastland Mar.18, 2004, no

pet.) (mem. op., not designated for publication) (approving bail set at $1,000,000

in case involving offense of engaging in organized criminal activity to commit

theft of farm equipment worth over $150,000); Ex parte Waddell, No. 14–02–

01237–CR, 2003 WL 21403545, *1–3 (Tex. App.—Houston [14th Dist.] June 19,

2003, no pet.) (mem. op., not designated for publication) (holding pretrial bail of

$1,600,000 was not excessive where appellant was charged with engaging in

organized crime involving theft of automobiles worth approximately $788,000,

could be sentenced to between five to ninety-nine years in prison, and presented

evidence that he could only raise a bond of $50,000); see also Tran v. State, No.



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01–06–00035–CR, 2006 WL 1771815, at *1–5 (Tex. App.—Houston [1st Dist.]

June 29, 2006, no pet.) (mem. op., not designated for publication) (upholding bail

set at $800,000 for cocaine possession and $500,000 for marijuana possession);

Maldonado v. State, 999 S.W.2d 91, 95-96 (Tex. App.—Houston [14th Dist.]

1999, pet. ref’d) (upholding $2.5 million bond where police recovered 721 kilos of

cocaine).

   II.      Sufficiency of bail and whether bail is being used as an instrument of
            oppression
      Because Goodson is complaining that the bail amount of $750,000 is

excessive, and the State asked the trial court continue to set bail at that amount,

there is no dispute that the bail set by the trial court is sufficiently high to give

reasonable assurance that Goodson would appear in court as required in the future.

See Montalvo, 315 S.W.3d at 593; see also Wilson v. State, No. 01-13-00048, 2013

WL 655263, at *4 (Tex. App.—Houston [1st Dist. Feb. 21, 2013, no pet.) (mem.

op., not designated for publication). Beyond arguing that the bail was “excessive,”

Goodson presented no argument that bail was being used as an instrument of

oppression in this case and nothing in the record suggests that the trial court set

bail at an excessively high level solely to prevent Goodson from posting bail. See

Montalvo, 315 S.W.3d at 596 (“Our independent review of the habeas corpus

record likewise does not suggest that the trial court deliberately set bail at an

excessively high level solely to prevent [appellant] from posting bail.”).


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  III.   Ability to make bail
      Although the ability to make bail is one of the factors to be considered, it is

not controlling and will not alone render the bail amount excessive. See Wright v.

State, 976 S.W.2d 815, 820 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (“[T]he

ability of an accused to make bail does not itself control the amount of bail, even if

the accused is indigent.”); Clemons v. State, 220 S.W.3d 176, 178 (Tex. App.—

Eastland 2007, no pet.) (citing Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex.

Crim. App. 1980)). “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.” Milner v.

State, 263 S.W.3d 146, 149 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

      Goodson did not testify at the hearing and his application for writ of habeas

corpus presented no documentary evidence of his assets and financial resources.

See Ex parte Castillo-Lorente, 420 S.W.3d 884, 889 (Tex. App.—Houston [14th

Dist.] 2014, no pet.). The testimony from Fisher regarding the largest bond amount

that he believed Goodson could obtain was insufficient to demonstrate an inability

to post bail. See Ex parte Ruiz, 129 S.W.3d 751, 754 (Tex. App.—Houston [1st

Dist.] 2004, no pet.) (bail bondsman’s testimony of “largest bond” defendant could

make did not carry burden to establish inability to make bail); Ex parte Castillo-

Lorente, 420 S.W.3d at 889 (testimony that appellant’s family and friends spoke

with bail bondsman and learned largest amount they could post was insufficient to



                                         11
carry burden of demonstrating inability to make bail). Although Fisher indicated

that Goodson had multiple persons willing to co-sign his bond, no information was

provided regarding the extent of the financial assistance that they could provide.

The testimony of Misti Goodson focused on whether she believed Goodson to be a

flight risk and similarly provided few details regarding either Goodson’s finances.

      In contrast to the dearth of evidence presented by Goodson regarding his

finances, the State offered evidence suggesting significant assets in the form of

vehicles and property, funds received from prior sales of various assets, and over

$500,000 in unaccounted cash withdrawals. Because Goodson offered little

evidence supporting his claimed inability to make bail, the trial court properly

could have concluded that the amount of bail was reasonable under the

circumstances. See 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 did not detail either his

or his family’s specific assets and financial resources nor efforts to furnish bond);

Balawajder v. State, 759 S.W.2d 504, 506 (Tex. App.—Fort Worth 1988, pet.

ref’d) (noting that vague references to inability to make bond do not justify a

reduction in the amount set).



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   IV.     Future safety of complainants and the community
      Neither Goodson nor the State addressed the future safety of the

complainants and the community, and no evidence was presented at the hearing

regarding the issue. However, when questioned by the trial court regarding whether

Goodson had a criminal record, the State mentioned that Goodson had a previous

deferred adjudication for the felony offense of injury to a child that he successfully

completed.

    V.     Other factors
      In addition to the considerations enumerated in the Code of Criminal

Procedure, courts also consider the defendant’s work record, family ties, residency,

criminal record, conformity with previous bond conditions, and aggravating factors

involved in the offense. See Ex parte Rubac, 611 S.W.2d at 849–50. Evidence was

presented that Goodson has resided in Houston his entire life, is currently

employed, has three children with whom he is actively involved, and voluntarily

surrendered to authorities. Although these factors weigh in favor of bail reduction,

they are offset by the other factors and we cannot conclude that the trial court

abused its discretion.

         This Court has also considered the Harris County District Court Bail

Schedule as a factor in reviewing the amount of bail for various offenses. See, e.g.,

Ex parte Bogia, 56 S.W.3d 835, 838 (Tex. App.—Houston [1st Dist.] 2001, no



                                         13
pet.). The bail schedule is not binding on district courts either inside or outside of

Harris County. See Ex parte Sabur–Smith, 73 S.W.3d 436, 441 n.5 (Tex. App.—

Houston [1st Dist.] 2002, no pet.). Still, the bail schedule provides some indication

of the propriety of bail for various types of offenses, just as case law arising from

other counties provides some evidence that the bail set is reasonable. See id.

      Goodson argues that the $750,000 bail set in his case is excessive because

the Harris County District Court Bail Schedule sets bail at $30,000 for defendants

charged with a first-degree felony with one previous felony, and his bail was set at

25 times that amount. See District Court Bail Schedule, Harris County

Administrative Offices of the District Courts (effective Jan. 1, 2007),

http://www.justex.net/BailBondSchedule.aspx.         However,        as     Goodson

acknowledges, the bail schedule also provides for bail to be set at twice the amount

stolen in theft cases involving large amounts of property. Goodson relies on our

opinion in Bogia to argue that this Court has held such an amount to be

“unreasonable in light of similar factors considered.” In Bogia, we found the

schedule’s formula setting bail at double the amount stolen in a high-value theft

case to be unreasonable, but also provided that the bail amount could be justified

based on the extraordinary circumstances of the case rather than the formula set

forth in the schedule. See Ex parte Bogia, 56 S.W.3d at 838-39 (“If a $360,000 bail

can be justified here, it will not be because of any formula. On the contrary, it



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would have to be justified by extraordinary facts in this particular case.”). Here, the

trial court departed from the bail schedule by setting bail at an amount significantly

lower than that scheduled for a high-value theft case (bail was set at approximately

27% of the $2,790,000 in checks alleged to have been stolen by Goodson rather

than 200% of the amount). As discussed above, given the specific circumstances of

this case, we cannot say that setting bail at $750,000 was unreasonable.

                                     Conclusion

      Based on the evidence before the trial court in this case and in light of the

foregoing analysis, we conclude that the trial court did not abuse its discretion in

refusing to reduce bail below $750,000. Accordingly, we affirm the trial court’s

denial of the application for writ of habeas corpus.

                                   PER CURIAM
Panel consists of Justices Keyes, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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