           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                      NO. AP-76,962

                          BURTON LEON SPELL, Appellant
                                    v.
                           THE STATE OF TEXAS

                     ON APPEAL FROM DENIAL OF BAIL
                 CAUSE NO. 32809 IN THE 1ST DISTRICT COURT
                           FROM JASPER COUNTY

       Per curiam.

                                       OPINION

       This is an appeal from an order denying bail under Article 1, § 11a, of the Texas

Constitution.1 On January 6, 2013, while free on bail for several offenses, Appellant was

arrested and jailed for a new offense of burglary of a habitation. On January 8, 2013,



      1
        Article 1, §11a, provides in part:
       Any person . . . accused of a felony less than capital in this State, committed
       while on bail for a prior felony for which he has been indicted, . . .and upon
       evidence substantially showing the guilt of the accused of the offense . . .
       committed while on bail . . . may be denied bail pending trial, by a district
       judge in this State, if said order denying bail pending trial is issued within
       seven calendar days subsequent to the time of incarceration of the accused.
                                                                 Ex parte Spell - page 2

after a hearing on the State’s motion, the trial court denied bail under Article 1, § 11a,

because Appellant is alleged to have committed a felony (burglary of a habitation) while

released on bail for a prior felony for which he had been indicted. Appellant appealed,
contending that the State failed to present evidence “substantially showing” his guilt for
the burglary of a habitation. He argues that the evidence shows, at most, evidence of a
criminal trespass.
       At the hearing to deny bail, the State called Deputy William Land to testify about
the burglary. Land stated that he met and spoke with the owners of a mobile home who
told him someone had broken into the home and removed copper wiring from the ceiling
fans. The owners did not live in the home, and told Land they did not know if any other
property was missing, but they could tell someone had been staying there without
permission. Land also spoke with people who lived next door to the mobile home. They
told him Appellant and his girlfriend had been staying at that home the week prior to the
deputy being there.
       Under Art. 1, § 11a, the State has the burden to present evidence “substantially
showing” Appellant’s guilt of the burglary. This showing is “far less” than proof beyond
a reasonable doubt as is necessary at a trial on the merits. Lee v. State, 683 S.W.2d 8, 9
(Tex.Crim.App. 1985); Ex parte Moore, 594 S.W.2d 449, 452 (Tex.Crim.App. 1980).
But that burden must be considered in light of the general rule that favors the allowance
of bail.
       In the instant case the evidence does not substantially show Appellant’s guilt of
burglary of a habitation. Appellant had been staying in the home without permission
about a week before Deputy Land went out there. But the owners of the home did not
live in the home and no evidence was presented to show when they had last checked the
home. There was no showing how long the home had been uninhabited so as to provide a
time frame in which the theft of the copper wire could be determined. Other than
                                                                  Ex parte Spell - page 3

Appellant’s presence in the home for a week, no evidence connected him to the theft of
copper wire. See Lee, 683 S.W.2d at 9. Given the absence of evidence concerning the
timing of the theft in the uninhabited home, Appellant’s presence in the home, without
more, does not substantially show his guilt of burglary. Accordingly, the trial court’s
order denying bail is set aside and the case is remanded to the trial court to set a
reasonable bail. No motion for rehearing will be entertained.


Delivered March 4, 2013
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