Opinion filed August 6, 2009




                                               In The


   Eleventh Court of Appeals
                                            ___________

                                      No. 11-09-00135-CR
                                          __________

                          BILLY WAYNE HAYNES, Appellant

                                                  V.

                                STATE OF TEXAS, Appellee


                            On Appeal from the 161st District Court

                                        Ector County, Texas

                                 Trial Court Cause No. W-3642-B


                             MEMORANDUM OPINION
       This is an appeal pursuant to TEX . R. APP . P. 31 from the denial of an application for writ of
habeas corpus seeking a bond reduction. We affirm.
       In his application filed on February 2, 2009, Billy Wayne Haynes contended that he was
illegally confined, that the State was not ready for trial because an indictment had not yet been filed,
and that TEX . CODE CRIM . PROC. ANN . art. 17.151 (Vernon Supp. 2008)1 mandated that either he be
released or his bond be reduced. On appeal, appellant complains that the trial court erred by failing
to set a personal recognizance bond.
        The record reflects that appellant was arrested on October 24, 2008. On February 10, 2009,
appellant was indicted for the murder of Rey Valdez, for engaging in criminal activity with the street
gang Aryan Circle to commit murder, and for engaging in criminal activity with the street gang
Aryan Circle to commit assault on Dwain Barina and Tracey Roupp. All four offenses were alleged
to have occurred on October 9. 2008. A hearing on appellant’s application was held on March 23,
2009.
        At the hearing, appellant testified that he did not own a vehicle that he could sell, that he did
not own any stocks or bonds, and that he did not have a savings account. He stated that he did not
have “any other holds” on him other than his confinement in the Ector County Jail for the alleged



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            Article 17.151 states:

                  Sec. 1. 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:

                             (1) 90 days from the commencement of his detention if he is accused of a felony;
                             (2) 30 days from the commencement of his detention if he is accused of a
                     misdemeanor punishable by a sentence of imprisonment in jail for more than 180 days;
                             (3) 15 days from the commencement of his detention if he is accused of a
                     misdemeanor punishable by a sentence of imprisonment for 180 days or less; or
                             (4) five days from the commencement of his detention if he is accused of a
                     misdemeanor punishable by a fine only.

                     Sec. 2. The provisions of this article do not apply to a defendant who is:

                               (1) serving a sentence of imprisonment for another offense while the defendant is
                     serving that sentence;
                               (2) being detained pending trial of another accusation against the defendant as to
                     which the applicable period has not yet elapsed;
                               (3) incompetent to stand trial, during the period of the defendant’s incompetence;
                     or
                               (4) being detained for a violation of the conditions of a previous release related to
                     the safety of a victim of the alleged offense or to the safety of the community under this
                     article.




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October 9 offenses. Appellant stated that he had made no effort to raise “any amount of money
toward [his] bond of $500,000.” He further testified that he thought he would be getting an income
tax refund of $2,500. With that refund, appellant testified that he “might be able to make a $50,000
bond.”
         On cross-examination, appellant denied that he was the president of the Aryan Circle.
         It is undisputed that appellant was incarcerated more than ninety days before an indictment
was returned. The State explained that the delay was due to the fact that the case was filed on
December 29, 2008, and that a grand jury was not called in Ector County until the week of
January 26, 2009, because of the holidays, the Presidential Inauguration, and Martin Luther King
Day. A total of seven people were involved in these offenses, and the district attorney exercised his
discretion to not present these complex cases at the first meeting of the grand jury. Instead, he opted
to make the four- to five-hour presentation at the February 10 meeting.
         David Wayne Callaway testified at the hearing that he was with appellant on the night of the
offenses. Callaway stated that he saw appellant fire a gun in the direction of a house and that he later
learned that someone had been killed as a result. Callaway said that appellant was the only person
he saw fire a gun. Callaway stated that on October 26, 2008, he informed the police what had
happened. Since then, Callaway said that he had received threats from appellant. Appellant had told
him that he was a “dead man walking,” that he had a “bullet with [Callaway’s] name on it,” and not
to “send cheese to a rat.” Callaway testified that his family had received threats and that he was
concerned for their safety.
         Kevin Rance Jackson testified that he saw appellant fire a gun toward the house. Afterwards,
appellant told Jackson that he thought “he had got one.”
         The State admitted into evidence a pen packet containing appellant’s prior convictions for
sexual assault of a child, burglary of a habitation, and possession of a deadly weapon in a penal
institution.
         The trial court heard counsel’s closing arguments and denied the application.
         We review the trial court’s ruling under an abuse of discretion standard. See Ex parte Rubac,
611 S.W.2d 848, 850 (Tex. Crim App. 1981); Clemons v. State, 220 S.W.3d 176, 178 (Tex.
App.—Eastland 2007, no pet.); see also TEX . CODE CRIM . PROC. ANN . art. 17.15 (Vernon 2005)

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(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).
       Article 17.151 is permissive. It allows the trial court to release the accused if certain
conditions are met. However, Article 17.151 does not absolutely “mandate” such a release. After
reviewing the record, we find that the trial court did not abuse its discretion by denying appellant’s
request that he be released pursuant to Article 17.151.
       “‘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.

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


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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, 896-97 (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 at 849. 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.
        After reviewing the record before this court, we find that the trial court did not abuse its
discretion in denying appellant’s request to be released on a $50,000 bond. The nature of the
offenses, appellant’s criminal record, and the testimony at the hearing support the trial court’s action.
Appellant’s contentions on appeal are overruled.
        The order of the trial court is affirmed.




                                                                PER CURIAM


August 6, 2009
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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