
                                          NO. 07-10-0192-CR

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL C

                                           JANUARY 27, 2010








                                    OLIVIA REYES TIENDA, APPELLANT


                                                  v.


                                     THE STATE OF TEXAS, APPELLEE





                           FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

                           NO. 2009-422,182; HONORABLE CECIL PURYEAR, JUDGE






Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                          MEMORANDUM OPINION

      This is an accelerated appeal[1] wherein Appellant, Olivia Reyes Tienda,  requests  this  Court
to review the trial court's order denying bail pending the appeal of her conviction for  credit  card
abuse, a state jail felony offense.[2]  In the underlying proceeding, Appellant was sentenced to  two
years confinement.  By her sole issue, she asserts the trial court abused its discretion  in  denying
her an appeal bond because the State failed in its burden to show good cause that she  is  likely  to
commit another offense while on bail.[3]

      Standard of Review

      We review a trial court's decision to  deny  an  appeal  bond  under  an  abuse  of  discretion
standard; Ex parte Spaulding, 612 S.W.2d 509, 511 (Tex.Crim.App. 1981), and  ask  whether  the  trial
judge's "decision was made without reference to any guiding rules or principles or, in  other  words,
if the decision was arbitrary or unreasonable."  Davis v. State, 71 S.W.3d  844,  845-46  (Tex.App.--
Texarkana 2002, no pet.) (citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990)).   So
long as the trial court's decision falls within  the  "zone  of  reasonable  disagreement,"  we  must
uphold the trial court's decision even if we would have reached a different result.  Id. at 845.

      Appeal Bond

      There is no federal or state constitutional right to bail pending  appeal.   Dallas  v.  State,
983 S.W.2d 276, 278 n.1 (Tex.Crim.App. 1998).  See Ex parte Cole, 43 S.W.3d 713, 716  (Tex.App.--Fort
Worth 2001, no pet.) (citing Ex parte Lowe, 573 S.W.2d 245, 247 (Tex.Crim.App.  [Panel  Op.]  1978)).
In Texas, a defendant's right to bail pending appeal is governed by the provisions of articles  44.04
and Chapter 17 of the Texas Code of Criminal Procedure.  See Dallas, 983 S.W.2d  at  278  (citing  Ex
parte Davila, 623 S.W.2d 408, 410 (Tex.Crim.App. 1981))  (holding  that  the  Chapter  17  procedures
concerning bail are modified and supplemented by article 44.04 after an accused  has  been  convicted
and post-verdict proceedings are initiated).

      Generally, a defendant convicted of  a  felony  offense  may  be  eligible  for  release  on  a
reasonable appeal bond unless there exists good cause to believe that he or she will not appear  when
his or her conviction becomes final or is likely to commit another offense while on bond.   See  art.
44.04; Compian v. State, 7 S.W.3d 199, 200 (Tex.App. --Houston [14th Dist.] 1999,  no  pet.)  (citing
Mayo v. State, 611 S.W.2d 442, 444 (Tex.Crim.App. 1981)).[4]  Here, following a  hearing,  the  trial
court denied an appeal bond based on its finding that Appellant was likely to re-offend in the  event
she was released from jail.

      At the hearing, the State produced evidence that  Appellant  was  under  investigation  by  the
286th Judicial District Attorney's Office in 2006 for exploiting an elderly  couple  through  forgery
and theft.  The investigation was prompted by bank employees who observed Appellant  accompanying  an
elderly couple to the bank during a loan application review and while cashing checks written  on  the
elderly couple's accounts.[5]  When the bank employees checked  one  account,  they  discovered  that
thirty-eight thousand dollars had been withdrawn during the four months the couple had been  observed
with Appellant, leaving a balance of less than a hundred dollars.  When bank employees  attempted  to
separate Appellant from the elderly couple in order to speak with them  privately,  Appellant  became
uncooperative and belligerent.  Shortly thereafter, they  closed  their  account  with  the  bank.[6]
When the investigator confronted Appellant, she admitted that the couple had agreed to  pay  her  one
hundred twenty-five dollars a week to clean their house but had given her  thousands  of  dollars  to
pay her bills and make her car payments.  Appellant was ultimately  charged  with  altering  a  check
made out by the couple to her from fifty dollars to one hundred fifty  dollars.   The  couple  agreed
that the check had been altered and a grocery employee positively identified Appellant as the  person
who cashed the altered check.  Ultimately, however, the District Attorney's  Office  did  not  pursue
criminal charges against Appellant because the couple was unable  to  testify  due  to  an  onset  of
dementia.

      More recently, while incarcerated, Appellant made a telephone call  to  her  daughters  wherein
she asked one daughter to go to an elderly woman's house on the pretext of  taking  her  garbage  out
and described how she could obtain money by deceiving the elderly woman.[7]  She proposed  a  variety
of lies her daughter should use to obtain money from the woman.  Based upon  the  past  investigation
and this new information, Kevin  Davis,  Hockley  County  Sheriff,  and  Brandy  Montgomery,  a  bank
employee, opined that, if Appellant made bond, she would absolutely, or very likely,  commit  another
crime.

      Given the findings of the elderly-exploitation investigation in 2006 and her  recent  telephone
call from jail encouraging her daughter to obtain money from an elderly person by  false  pretext  or
deception,[8] we cannot say that the trial court's decision to deny an appeal bond  was  "so  clearly
wrong as to lie outside that zone within which reasonable  persons  might  disagree."   Shugart,  994
S.W.2d at 369 (quoting Heiselbetz v. State, 906 S.W.2d  500,  517  (Tex.Crim.App.  1995)).   This  is
particularly so as the investigation report and recent phone call  from  jail  suggest  a  continuous
pattern of such behavior undeterred by her  present  incarceration.   Accordingly,  Appellant's  sole
issue is overruled.

                                              Conclusion

      The trial court’s order denying bail is affirmed.

                                             Patrick A. Pirtle
                                                   Justice
Do not publish.
-----------------------
[1]An appeal of any judgment or order pertaining to an  Appellant's  right  to  bond  pending  appeal
"shall be given preference by the appellate court."  Tex. Code  Crim.  Proc.  Ann.  article  44.04(g)
(West 2006).  For convenience, provisions of the Texas Code of Criminal Procedure will  hereafter  be
cited as "article ____" or "art. ____."



[2]See Cause No. 07-10-0257-CR, Olivia Reyes Tienda v. State, presently pending before this Court.

[3]See art. 44.04(c) (West 2006); Ex parte Castaneda, 739 S.W.2d 456, 457  (Tex.App.--Corpus  Christi
1987, no pet.).

[4]When a court sets bail, certain factors should be considered in  reviewing  whether  the  bail  is
reasonable such as length of the sentence, nature of the offense, work record,  family  ties,  length
of residence and ability to make bail.  See Swinnea v. State,  614  S.W.2d  453,  455  (Tex.Crim.App.
1981); Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex.Crim.App. 1981).  However,  when  a  court  denies
bail, the decision is based upon whether the record shows that the  defendant  is  likely  to  commit
another offense while on bail or would not appear when his conviction became final.   Art.  44.04(c);
Shugart v. State, 994 S.W.2d 367, 369 (Tex.Crim.App. 1999).

[5]The couple was in their eighties and the woman had recently suffered a  stroke.   Her  memory  and
mental state were not clear.

[6]The investigative report indicated that, prior to moving their money to this bank, the couple  had
moved their money from another bank when bank employees confronted them with  their  suspicions  that
Appellant was exploiting them.  The bank employees at the prior  bank  also  became  suspicious  when
they observed Appellant cashing multiple checks written by the couple on their account.

[7]Appellant and her daughter had been cleaning the woman's house  for  several  years.   Appellant's
husband testified the woman was making payments to them for Appellant's medications.

[8]See Tex. Penal Code Ann. §§ 31.02, 31.03 (West Supp. 2010); Miller v. State, 164 Tex.  Crim.  628,
301 S.W.2d 672, 672-73 (1957).



