                                 NO. 07-04-0085-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                NOVEMBER 12, 2004

                        ______________________________


                       ADELAIDA CONTRERAS, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

           FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2003-001686; HONORABLE ANDREW KUPPER, JUDGE

                        _______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.


                              MEMORANDUM OPINION


      Appellant Adelaida Contreras challenges the denial of her application for writ of

habeas corpus seeking reduction of the bond in the case pending against her. The trial

court, after a hearing on her request to reduce bond that was initially set at $200,000,

reduced the amount to $50,000. She presents two issues for our review, 1) whether this
court has jurisdiction to hear an appeal on the trial court’s order reducing bond and 2)

whether the trial court erred and abused its discretion by failing to set a reasonable bond.


       Appellant is charged with murder.1 Her bail was initially set at $200,000. A hearing

was held on her application for writ of habeas corpus seeking bail reduction on December

18, 2003. After hearing evidence and argument of counsel, the trial court reduced the bail

to $50,000 with additional terms and conditions. Appellant contends that setting bail at

$50,000 is excessive and denies her the ability to earn money to finance her defense.


       An order ruling on an application for writ of habeas corpus on its merits following an

evidentiary hearing is appealable. Ex parte Hargett, 819 S.W.2d 866, 868 (Tex.Crim.App.

1991) (en banc). A defendant may raise, by pretrial habeas corpus, claims concerning

double jeopardy, collateral estoppel, and bail because if he were not allowed to do so until

after conviction those protections would be undermined. Jaime v. State, 81 S.W.3d 920,

924 (Tex.App.–El Paso 2002, pet. ref’d). The record indicates a hearing was held and

after testimony was given, the court ruled on the merits of appellant’s application. As a

result, we have jurisdiction to hear an appeal of the trial court’s order and appellant’s first

issue is sustained.


       In her second issue, appellant contends that the trial court abused its discretion in

failing to set a reasonable bail. She argues that bail is excessive and unreasonable in



       1
         Both appellant and the State in their briefs indicate appellant is charged with
murder, but the record does not contain a copy of the indictment. Absent a copy of the
indictment we will rely on the representation of appellant that she has been indicted on a
murder charge.

                                              -2-
violation of the Eighth Amendment to the U.S. Constitution, Article 1, Section 13 of the

Texas Constitution and Article 1.09 of the Texas Code of Criminal Procedure.


       The trial court has discretion in determining the amount of bail. Ex parte Penagos,

810 S.W.2d 796, 798 (Tex. App.–Houston [1st Dist.] 1991, no pet.). The exercise of that

discretion will not be disturbed unless clearly abused. Ex parte Pipkin, 935 S.W.2d 213,

215 (Tex.App.–Amarillo 1996, pet. ref’d).


       The trial court is to determine the amount of bail, in part, 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; and (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

(Vernon Supp. 2004-2005).


       The trial court may consider other factors, identified by the Court of Criminal

Appeals to include: the accused’s work record; her family and community ties; her length

of residency; prior record; conformity with the conditions of any previous bond; the

existence of outstanding bonds, if any; and the alleged aggravating circumstances involved




                                             -3-
in the offense. Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex.Crim.App. [Panel Op.]

1981).2 The burden of showing bail to be excessive is on appellant. Id. at 849.


       Appellant presented evidence at the hearing that she had been living and working

in Dallas for several months prior to her arrest. A former employer testified appellant had

worked successfully in Lubbock with “at risk youth” through the local YMCA and Lubbock

Housing Authority for a number of years. Appellant was unemployed due to a back injury

at the time she moved to Dallas. She has relatives in Lubbock, which indicates that she

has ties to the community.


       The parties stipulated that in Lubbock County a party would have to pay a fee of ten

to fifteen percent for a bond. The testimony indicated that appellant would be able to raise

only $500 which would allow her to obtain bail in the amount of $5000. There is no

information in the record regarding appellant’s current assets other than references in the

police reports to a vehicle owned by appellant at the time of the murder.


       The State argues that the nature of the offense and appellant’s previous convictions

for felonies are factors the court considered in setting bail at $50,000. Appellant has been

convicted three times for possession of a controlled substance and has additional

convictions for theft and forgery. She has been convicted of felonies in Texas and New

Mexico and has used various aliases in the past, indicating she could be a flight risk.




      2
        While Rubac involved an appeal bond, it relied on several cases involving pretrial
bonds, making no distinction between the two.

                                            -4-
       The future safety of the victim is not an issue since the victim was murdered. The

safety of the community is relevant, given appellant’s prior felony record and the

circumstances surrounding the murder. The murder investigation conducted by the

Lubbock Police Department identified several witnesses who were reluctant to discuss the

homicide due to alleged involvement of the “Texas syndicate prison gang.” Witnesses

expressed a concern for their own safety and indicated that the murder was a “contract

killing” ordered by members of the gang. Appellant’s boyfriend, who has also been indicted

for the murder, is a member of the gang.


       Appellant was seen in the area where the murder occurred and with the murder

weapons shortly afterwards. The State alleges that she has either hidden or disposed of

knives used in the commission of the murder. The State argues that to release appellant

prior to trial would provide her with an opportunity to dispose of the murder weapons, if

they are still in her control, and would put the lives of witnesses in jeopardy.


       Given all the evidence presented to the trial court, and the severity of the alleged

offense, we find it was not unreasonable for the court to set bail at $50,000. It is

sufficiently high to provide assurance appellant will appear for trial but does not appear,

under the circumstances, to be an instrument of oppression. The trial court did not abuse

its discretion in setting appellant’s bail at $50,000. Appellant’s second issue is overruled.

The order of the trial court is affirmed.


                                                         Per Curiam


Do not publish.

                                             -5-
