                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-11-00162-CR
        ______________________________



     EX PARTE: TRICHA ANN MCLENDON




    On Appeal from the 6th Judicial District Court
             Red River County, Texas
            Trial Court No. CR-00974




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Moseley
        Dissenting Opinion by Justice Carter
                                            OPINION

       Tricha Ann McLendon was convicted of possession of a controlled substance and was

sentenced to two years’ confinement. McLendon, an indigent defendant, filed a motion for

reasonable bail pending appeal requesting to either ―be permitted to remain at large on the existing

bail‖ or ―be admitted to reasonable bail, in the amount of no more than $2,500, until conviction

becomes final.‖ The trial court set bond in the amount of $50,000.00 and ordered weekly drug

testing as a condition of bond. McLendon appeals, arguing that the amount of bond was

unreasonable and that the trial court had no authority to order weekly drug testing. McLendon

failed to preserve error by neglecting to notify the trial court of her objection to the bond condition,

and we find the amount of the bond reasonable.            Accordingly, we affirm the trial court’s

judgment.

I.     McLendon’s Complaint Relating to Bond Condition Was Not Preserved

       McLendon challenges the condition of bail requiring her to undergo weekly drug testing.

Although McLendon had a right to appeal the order of the trial court that set the condition of drug

testing, she was not relieved of the requirement to preserve error by bringing her complaint about

the condition to the attention of the trial court. TEX. R. APP. P. 33.1(a); Margoitta v. State, 994

S.W.2d 336, 338–39 (Tex. App.—Waco 1999, no pet.) (citing Hill v. State, 902 S.W.2d 57, 60

(Tex. App.—Houston [1st Dist.] 1995, pet. ref’d)). Because McLendon failed to preserve this

point of error by raising it below, the point of error is overruled.



                                                   2
II.    Bond Amount Was Reasonable

       Article 44.04 of the Texas Code of Criminal Procedure, entitled ―Bond pending appeal‖

authorized the trial court to admit McLendon to ―reasonable bail‖ and ―impose reasonable

conditions on bail,‖ pending finality of her conviction. TEX. CODE CRIM. PROC. ANN. art.

44.04(c) (West 2006). In reviewing bail, we are guided by Article 17.15 of the Texas Code of

Criminal Procedure, and we reverse a lower court’s determination only if we find an abuse of

discretion. TEX. CODE CRIM. PROC. ANN. art. 17.15 (West 2005). That is, we will reverse the trial

court’s decision only if it was made without reference to any guiding principles or was, in other

words, arbitrary or unreasonable. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.

1990). Even if we would have reached a different result, we will not intervene if the trial court’s

ruling was within the zone of reasonable disagreement. Id. at 391 (op. on reh’g).

       Under Texas law, the amount of bail required in any case is within the discretion of the

court, judge, magistrate, or officer taking the bail, subject to 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.



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             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, the Texas Court of Criminal Appeals has

directed courts to consider the work record, family and community ties, length of residency, prior

criminal record (if any), and any aggravating circumstances alleged to have been involved in the

offense the accused is charged with committing. Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex.

Crim. App. [Panel Op.] 1981).

         Generally, a writ applicant has the burden of proving the facts which would entitle the

applicant to relief. Ex parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993). The same

holds true for an applicant in a bail reduction proceeding. See Ex parte Charlesworth, 600

S.W.2d 316, 317 (Tex. Crim. App. [Panel Op.] 1980). Although a hearing on the motion for

reasonable bail was set, it was not held.1 We will examine the existing record as presented to us to

determine reasonableness of the amount of bail.

         The nature of the offense and circumstances surrounding the crime are primary factors in

determining what constitutes reasonable bail. See Ex parte Davila, 623 S.W.2d 408, 410 (Tex.

Crim. App. [Panel Op.] 1981); Ex parte Hunt, 138 S.W.3d 503, 506 (Tex. App.—Fort Worth

2004, pet. ref’d). In considering the nature of the offense, it is also proper to consider the possible

punishment. Maldonado v. State, 999 S.W.2d 91, 95 (Tex. App.—Houston [14th Dist.] 1999,

1
 In a letter dated November 8, 2011, this Court recited it had ―been informed by telephone that a hearing on this motion
did not occur,‖ and asked the trial court to ―confirm in writing, within ten days of the date of this letter, that no hearing
was held on this motion on August 8th, and that no hearing on bail pending appeal was conducted.‖ The court failed
to respond to our request. In the absence of a response, and because the court’s docket sheet does not reflect the
occurrence of a hearing, we proceed as if none occurred.

                                                             4
pet. ref’d). McLendon was found guilty of possession of methamphetamine in an amount less

than one gram and received the maximum two-year sentence for this state jail felony. The nature

of this crime suggests that the bond amount of $50,000.00 may be unreasonable.

       A criminal defendant’s ability to make bond is ―merely one factor to be considered in

determining the appropriate amount of bond.‖ Ex parte Scott, 122 S.W.3d 866, 870 (Tex.

App.—Fort Worth, no pet.) (citing TEX. CODE CRIM. PROC. ANN. art. 17.15(4)). Here, while there

was no hearing on the motion for reasonable bail, the record establishes that McLendon was

indigent and was represented by appointed counsel during appeal.        The only work history

provided was that she ―drive[s] a bulldozer for my ex-husband.‖ No mention of her wages was

made. Yet, ―[t]o show that he is unable to make bail, a defendant generally must show that his

funds and his family’s funds have been exhausted.‖ Milner v. State, 263 S.W.3d 146, 149 (Tex.

App.—Houston [1st Dist.] 2006, no pet.). The record demonstrates that McLendon met her bail

pending trial, which was $3,000.00. Without a record establishing McLendon’s access to family

funds, a record which McLendon had the burden to secure, we find this factor neutral.

       There is no mention in the record suggesting there was a victim in this drug possession

case, nullifying the requirement to provide for the victim’s future safety. Also, this was a

nonviolent crime, and no evidence related to the future safety of the community was presented.

However, at a previous revocation hearing, the trial court heard that McLendon ―has a pending

case in Titus County,‖ indicating a possible prior criminal history.



                                                 5
       This offense occurred in Red River County. The motion for reasonable bail states

―McLendon is a native of Red River County and has family ties to Red River County.‖ Although

she might be a native of the county, McLendon testified during the revocation hearing that she had

―not lived in Red River County in over five years.‖ The record also establishes that McLendon

tested positive for amphetamines during the pendency of this case. McLendon’s drug use,

combined with the fact that she was not a resident of Red River County, could have led the trial

court to determine that McLendon was a flight risk.

       Based on this record, we cannot hold that the trial court acted without reference to any

guiding principles or was arbitrary or unreasonable in setting the bond amount. We overrule

McLendon’s point of error.

III.   Conclusion

       We affirm the judgment of the trial court.




                                             Bailey C. Moseley
                                             Justice




                                                6
                                      DISSENTING OPINION

        The statute requires that four objective factors be considered in setting bail; all of them

indicate that this bail setting is unreasonable.

        1.      Reasonable assurance of compliance––McLendon apparently complied with a

pretrial bond set at $3,000.00 and appeared so that her case was processed. If we draw any

conclusion from this information, it would be that her history does not support a finding that such

a substantial bail was required to give reasonable assurance of her compliance.

        2.      Nature of the offense––This is the lowest level felony offense (state jail) and the

maximum punishment is two years’ incarceration.           The conviction was for her personal

possession of less than one gram of a controlled substance.

        3.      Ability to make bond––She is indigent, which means she has little or no assets or

resources from which to provide funds for bail.

        4.      Future safety––This offense for possession of a drug was a nonviolent offense.

There is no evidence that she is a threat to the safety of the community.

        Vague references to ―a pending case‖ does not establish a criminal history. Perhaps the

trial court had some information that is undisclosed that would suggest that such a substantial bond

was now required; if so, that could have been produced had a hearing been conducted. Based on

the record before us, a bail of $50,000.00 in this instance is unreasonable. In view of the

circumstances presented, a reasonable bail setting should not exceed $10,000.00.



                                                   7
      I respectfully dissent.




                                         Jack Carter
                                         Justice

Date Submitted:       December 5, 2011
Date Decided:         December 6, 2011

Publish




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