Affirmed and Memorandum Opinion filed April 9, 2013.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-12-01151-CR

                         EX PARTE WAYLAND HURST



                     On Appeal from the 10th District Court
                           Galveston County, Texas
                       Trial Court Cause No. 12CR1752

                  MEMORANDUM                       OPINION


      Appellant Wayland Hurst appeals the trial court’s denial of his application
for writ of habeas corpus seeking a reduction in bond. In a single issue he argues
that his bail is excessive and that the trial court erred in failing to release him on a
personal bond. We affirm.

      On April 12, 2012, appellant was arrested for possession with intent to
deliver between four and 200 grams of cocaine within 1,000 feet of an elementary
school. Bond was set at $250,000. Appellant was not indicted until July 17, 2012.
On November 8, 2012, appellant filed an application for writ of habeas corpus and
bail reduction. According to his application, appellant was taken into custody on
April 12, 2012, and he can afford a bond of $10,000. On December 10, 2012, the
trial court denied appellant’s application for writ of habeas corpus, but reduced the
bond to $150,000.

        At the hearing on appellant’s application, it was established that appellant
had been incarcerated more than 90 days without the State announcing ready for
trial. Appellant’s wife testified at the hearing that she could only afford a $10,000
bond.

        In a single issue on appeal appellant contends the trial court abused its
discretion in not releasing appellant on personal recognizance or in the alternative
reducing appellant’s bond to $10,000 pursuant to article 17.151 of the Texas Code
of Criminal Procedure.

        Section 1 of article 17.151 provides that 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 90 days from the
commencement of his detention if he is accused of a felony. Tex. Code Crim.
Proc. Ann. art. 17.151 § 1(1). Appellant argues that in light of this statute, the trial
court had no discretion to act other than to release him on personal recognizance or
a bond in the amount he could afford.

        In support of his argument, appellant relies on Rowe v. State, a Court of
Criminal Appeals case decided in 1993. In Rowe, the State did not indict Rowe
within the ninety-day period that followed Rowe’s incarceration.            Rowe, 853
S.W.2d at 581. The Court of Criminal Appeals concluded that article 17.151
requires a trial court to reduce a defendant’s bail to an amount the record reflects
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that he can afford, or to release a defendant on personal bond where the record
reflects that he cannot make any bond. Id. at 582 & n. 1; see Tex. Code Crim.
Proc. Ann. art. 17.151.

      However, a trial court’s discretion in fixing a defendant’s bail is governed by
article 17.15 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc.
Ann. art. 17.15. In May 1993, when the Court of Criminal Appeals reached its
decision in Rowe, article 17.15 allowed, but did not require, trial courts to consider
the future safety of a victim of the respective alleged offense in fixing the
defendant’s bail. See Act of May 23, 1985, 69th Leg., R.S., ch. 588, § 2, 1985
Tex. Gen. Laws 2219 (amended 1993) (current version at Tex. Code Crim. Proc.
Ann. art. 17.15). At that time, the statute was silent with respect to whether a trial
court could consider community-safety concerns in determining the question of
bail. See id. After the Court of Criminal Appeals decided Rowe, the Legislature
amended article 17.15.

      The amended version of the statute applicable in this case places a
mandatory duty on courts to consider the future safety of the community in fixing
the amount of a defendant’s bail. See Act of May 22, 1993, 73rd Leg., R.S., ch.
396 § 1, 1993 Tex. Gen. Laws 1694, 1695; now codified as Tex. Code Crim. Proc.
Ann. art. 17.15.    The Court of Criminal Appeals, in an unpublished opinion
dismissing petition for discretionary review, adopted this construction of articles
17.15 and 17.151. See Ex parte Kretzer, 2012 WL 1882245 (Tex. Crim. App. May
16, 2012) (not released for publication) (“By placing a mandatory duty on trial
courts to consider the safety of the victim and the safety of the community in fixing
bail in all cases, the Legislature requires trial courts to consider a fact that is not
related to the amount the defendant can afford to pay.”) (quoting Matthews v.
State, 327 S.W.3d 884, 887 (Tex. App.—Beaumont 2010, no pet.).

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      Under the amended statute, to obtain release on personal recognizance or a
reduced bond under article 17.151, appellant bears the burden of proof to show bail
is excessive and the future safety of the victim and the community will not be
affected by his release. Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim.
App. 1980); see also Matthews, 327 S.W.3d at 888.

      The trial court is required to consider certain criteria in making a bail
determination. Maldonado v. State, 999 S.W.2d 91, 93 (Tex. App.—Houston
[14th Dist.] 1999, pet. ref’d). Article 17.15 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 considering the factors in
article 17.15, the courts have added seven other factors to be weighed in
determining the amount of bond: (1) the accused’s work record; (2) the accused’s
family and community ties; (3) the accused’s length of residency; (4) the accused’s
prior criminal record; (5) the accused’s conformity with previous bond conditions;
(6) the existence of other outstanding bonds, if any; and (7) aggravating
circumstances alleged to have been involved in the charged offense. Ex parte

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Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim. App. [Panel Op.] 1981); Maldonado,
999 S.W.2d at 93.

      In this case, appellant presented evidence through his wife’s testimony that
he could only afford a $10,000 bond. She further testified that he had not been a
threat to the community, nor had he been violent. On cross-examination she
testified that she and appellant were born and raised in Galveston County, and had
lived in their current home for six months with three school-age children. Due to
the drugs that were found in the home, the Department of Family Protective
Services required appellant’s wife to attend parenting classes.

      The State produced three exhibits as evidence in support of the bond. The
first exhibit is the affidavit for search warrant.    The affidavit reflects that a
confidential informant reported that appellant and his wife were engaging in
cocaine trafficking in their home. The return and inventory reflects that officers
seized 5.7 grams of cocaine, a small amount of marijuana, a digital scale, two
prescription bottles, and a marijuana grinder. The second exhibit was the incident
report, which confirmed that the house was in a drug-free zone, within 1,000 feet
of an elementary school. The third exhibit is a controlled substance analysis
laboratory report, which reflects the cocaine recovered weighed a total of 3.96
grams.

      Appellant is charged with possession with intent to deliver between four and
200 grams of cocaine. Tex. Health & Safety Code § 481.112(d). If convicted,
appellant could receive a twenty-five to ninety-nine year sentence or life in prison.
Tex. Health & Safety Code § 481.112(f); Tex. Penal Code Ann. § 12.42. Although
the lab report reflects fewer than four grams of cocaine were recovered, appellant
remains subject to the same range of punishment due to two prior convictions
alleged as enhancement paragraphs in the indictment.         Additionally, in cases

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involving illegal trafficking of drugs, a higher bond may be required because of the
nature of the offense. See Maldonado, 999 S.W.2d at 95–96 (upholding bail set at
$2,500,000 where defendant was charged with possession with intent to deliver
cocaine worth at least $11,000,000); Ex parte Willman, 695 S.W.2d 752, 753 (Tex.
App.—Houston [1st Dist.] 1985, no pet.) (holding $300,000 was reasonable bail on
charge of delivery of at least 400 grams of cocaine).

      In this case, there is evidence in the form of the confidential informant’s
statements that appellant and his wife are engaged in the trafficking of narcotics.
They are accused of conducting a drug business in their home where three school-
age children live, and within 1,000 feet of an elementary school. Although there is
no direct evidence concerning future safety of the victim or the community, in
cases involving large quantities of illegal drugs, particularly near an elementary
school, such as this case, a much higher bond may be required to assure the
presence of the defendant at trial. See Maldonado, 999 S.W.2d at 96.

      Based on the evidence in the record, we find appellant has failed to
demonstrate that the pretrial bail as reduced by the trial court is oppressively high
and violates his rights under the state and federal constitutions. When we consider
the evidence relevant to the future safety of the community, we find the trial court
did not abuse its discretion in reducing bail to $150,000. We affirm the trial
court’s order denying appellant’s request to reduce bond.

                                              PER CURIAM



Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
Do Not Publish — TEX. R. APP. P. 47.2(b).



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