      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-04-00088-CR




                                   Ex parte Danny Ray Digman




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
           NO. 1030857, HONORABLE BOB PERKINS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Danny Ray Digman is confined in lieu of $1,000,000 bail while awaiting trial on an

indictment accusing him of securities fraud and other related offenses. See Tex. Rev. Civ. Stat. Ann.

art. 581-29 (West Supp. 2004). Digman petitioned for a writ of habeas corpus urging that the

amount of bail is unreasonable and asking that it be reduced to an unspecified amount. The writ

issued, and after a hearing, relief was denied. We will order bail reduced to $150,000.

                With certain exceptions not applicable to Digman, the Texas Constitution guarantees

that “[a]ll prisoners shall be bailable by sufficient sureties.” Tex. Const. art. I, § 11; see Tex. Code

Crim. Proc. Ann. art. 1.07 (West 1977). Both the federal and state constitutions prohibit excessive

bail. U.S. Const. amend. VIII; Tex. Const. art. I, § 13; see Tex. Code Crim. Proc. Ann. art. 1.09

(West 1977).

                The code of criminal procedure commits the setting of bail to the discretion of the

trial court or magistrate, but sets forth five rules that, together with the constitution, govern the
exercise of that discretion. Tex. Code Crim. Proc. Ann. art. 17.15 (West Supp. 2004). Bail should

be sufficiently high to give reasonable assurance that the undertaking will be complied with, but not

so high as to make it an instrument of oppression. Id. art. 17.15(1), (2); see Ex parte Vasquez, 558

S.W.2d 477, 479 (Tex. Crim. App. 1977) (primary purpose of pretrial bail is to secure presence of

defendant). The nature of the offense and the circumstances under which it was committed are

factors to be considered in setting bail, as is the future safety of the community and the victim of the

alleged offense. Tex. Code Crim. Proc. Ann. art. 17.15(3), (5). The defendant’s ability to make bail

also must be considered, but is not of itself controlling. Id. art. 17.15(4); Ex parte Gentry, 615

S.W.2d 228, 231 (Tex. Crim. App. 1981). In applying article 17.15, consideration may be given to

such evidentiary matters as the defendant’s work record, ties to the community, previous criminal

record, and record of appearances in the past. See Ex parte Williams, 619 S.W.2d 180, 183 (Tex.

Crim. App. 1981); Gentry, 615 S.W.2d at 231; Ex parte Parish, 598 S.W.2d 872, 873 (Tex. Crim.

App. 1980); Ex parte Keller, 595 S.W.2d 531, 533 (Tex. Crim. App. 1980).

               The burden is on the accused to prove that bail is excessive. Ex parte Rubac, 611

S.W.2d 848, 849 (Tex. Crim. App. 1981). We review the trial court’s ruling for an abuse of

discretion. Id. at 850.

                The record reflects that Digman was the founder, chairman, and part owner of

PaymentWorks, a Texas corporation. PaymentWorks and its subsidiaries sold possessory interests

in automated teller machines which it placed in various locations in Texas and other states.

PaymentWorks sent the investors monthly checks supposedly representing their share of the

transaction fees paid by users of the machines. The State contends that the possessory interests sold



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by PaymentWorks were investment contracts subject to the Texas Securities Act. The indictment

alleges that Digman engaged in securities fraud by failing to disclose to investors that he sold

interests in the same ATM machine to multiple investors, falsely represented the revenues derived

from the machines, and had four criminal convictions in state and federal courts. The indictment

alleges that pursuant to this fraud, Digman sold investment contracts worth $132,905 to eight named

investors. Other counts accused Digman of selling unregistered securities and selling securities

without being a registered dealer or agent. Digman’s common law wife Lori Burrow, who was

PaymentWorks’s president and co-owner, was also indicted for her participation in the scheme.1

               The securities board began its investigation of PaymentWorks in October 2003. In

late November, authorities executed a search warrant and seized the company’s records and assets.

Immediately thereafter, Digman and Burrow moved to Colorado. Burrow remained in Colorado with

family members, but Digman soon moved to Amarillo. Although Digman and Burrow knew there

were outstanding warrants for their arrest, they did not return to Austin until January 20, 2004.

               Letha Sparks, an investigator for the state securities board, testified that

PaymentWorks took in about $4,000,000 from over one hundred investors in 2002 and 2003, of

which about $147,000 remained in bank accounts seized by the board. Although PaymentWorks had

sold interests in over one thousand ATMs, Sparks was able to confirm the existence of only a few

hundred machines. Sparks testified that in 2003, PaymentWorks paid $5 to investors for every $1

that it received in transaction fees. In effect, she described PaymentWorks as a Ponzi scheme:




  1
    Burrow’s bail was also set at $1,000,000. She also sought a reduction, and the two causes were
heard together below. Although the court denied relief, Burrows did not appeal to this Court.

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payments to existing investors did not come from its business activities, but from the money received

from new investors.

               Burrow’s daughter, Crystal Burrow, testified that she was employed by

PaymentWorks as a secretary. Crystal said that PaymentWorks paid her $750 per week, and that her

mother was paid $1000 per week. Crystal testified that she “personally did the paperwork on

[PaymentWorks’s ATM machines] and made sure that they were there, they were hooked up, they

were working.” She was confident that PaymentWorks had more than one thousand machines in

operation.

               Burrow’s brother, Jamie Springer, also testified at the hearing. Springer worked for

PaymentWorks as a technician, for which he was paid $700 per week. Springer testified that he

personally installed or serviced over five hundred ATM machines in different locations.

               Digman estimated that he was paid $90,000 by PaymentWorks in 2003. He said that

he and Burrow were attempting to sell their home, on which they owe $237,000, for $284,000.

According to Digman, his only other assets are a pickup truck worth $5000 and a checking account

containing about $400. Digman testified that he could afford a $50,000 bond, and could perhaps pay

for a $100,000 bond with the help of his family.2 He could not afford a $200,000 bond.

               Digman had lived in Austin for just under six years before leaving in November 2003.

His father also lives in Austin, but his mother lives in Amarillo; Digman said that he intended to live

with his mother if released on bond. Before starting PaymentWorks, Digman had been in the




  2
     The State understands Digman to say that he could raise $100,000 in cash. Although Digman’s
statement was ambiguous, the context indicates that he was referring to a $100,000 bond.

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wrecker business in Austin and Amarillo for twenty years. He acknowledged previous convictions

for auto theft, theft by check, and tax fraud. Digman’s counsel referred to an outstanding parole

warrant during argument to the court, which suggests that he is on parole for one of his previous

convictions.

               In reviewing a trial court’s ruling for an abuse of discretion, an appellate court will

not intercede as long as the ruling is at least within the zone of reasonable disagreement.

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). But an abuse of

discretion review requires more of the appellate court than simply deciding that the trial court did

not rule arbitrarily or capriciously. Id. at 392. The appellate court must instead measure the trial

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

               Digman stands accused of a nonviolent property offense, and although he has a

criminal record, he has no convictions for crimes of violence. There is no evidence that he

represents a continuing threat to the victims of the alleged fraud or to the public. There is evidence

that PaymentWorks took in over $4,000,000 during its year-and-a-half of operation, but there is no

evidence that any of this money remains in Digman’s possession or that Digman has any assets other

than his share of the equity in the house he owns with Burrows, a pickup truck, and $400 in cash.

               The trial court could reasonably infer that Digman fled from Austin in November

2003 to avoid arrest. Digman does not appear to have significant ties to Austin or Travis County.

Although his father lives in Austin, Digman indicated that he would live in Amarillo with his mother

if allowed to do so. On the other hand, the trial court has the authority to condition bail on Digman




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remaining in Travis County, and the court can impose other conditions designed to assure his

presence for trial. See Tex. Code Crim. Proc. Ann. art. 17.44 (electronic monitoring).

               Having considered the evidence before the district court in the light most favorable

to the court’s ruling, and having measured the court’s ruling against the criteria informing the setting

of pretrial bail, we conclude that the court abused its discretion by continuing Digman’s bail at

$1,000,000. We order that bail be set at $150,000, subject to such reasonable terms and conditions

as may be determined by the district court.




                                               __________________________________________

                                               Bea Ann Smith, Justice

Before Justices Kidd, B. A. Smith and Pemberton

Reversed and Rendered

Filed: June 24, 2004

Do Not Publish




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