                        COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH


                               NO. 2-10-260-CR


EX PARTE WILLIE BARNES

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          FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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                       MEMORANDUM OPINION1
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                                  I. INTRODUCTION

      This is an appeal from the trial court’s order on Appellant Willie Barnes’s

Motion for Personal Recognizance Bond or Bail Reduction, in which the trial

court reduced Barnes’s bail amount from $750,000 to $250,000. We will affirm.

                  II. FACTUAL AND PROCEDURAL BACKGROUND

      Barnes was arrested for aggravated robbery on March 2, 2010. His bail

was set at $750,000. Barnes filed his Motion for Personal Recognizance Bond or


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      See Tex. R. App. P. 47.4.
Bail Reduction, requesting that he be released on personal bound or,

alternatively, that his bail be reduced to $5,000. After a hearing, the trial court

denied both requests, but the court found that Barnes’s bail amount of $750,000

was excessive and reduced it to $250,000.

      Barnes filed a notice of appeal from the trial court’s order, claiming that he

is “[i]ndigent and cannot make bail on such an excessive bail amount.” We did

not request briefing. See Tex. R. App. P. 31.1, 31.2.

                            III. STANDARD OF REVIEW

      We review the trial court’s denial of a bond-reduction request under an

abuse of discretion standard. See Ex parte Rubac, 611 S.W.2d 848, 850 (Tex.

Crim. App. [Panel Op.] 1981); Ex parte Scott, 122 S.W.3d 866, 868 (Tex. App.––

Fort Worth 2003, no pet.); see also Tex. Code Crim. Proc. Ann. art. 17.15

(Vernon 2005) (giving trial court discretion to set bond amount). Similarly, the

decision whether to permit an accused to make a personal bond is within a

magistrate’s sound discretion. See Tex. Code Crim. Proc. Ann. art. 17.03(a)

(Vernon Supp. 2009).

      To determine whether a trial court abused its discretion, we must decide

whether the trial court acted without reference to any guiding rules or principles;

in other words, we must decide whether the act was arbitrary or unreasonable.

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).            Merely

because a trial court may decide a matter within its discretion in a different



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manner than an appellate court would in a similar circumstance does not

demonstrate that an abuse of discretion has occurred. Id.

                                IV. BAIL REDUCTION

      The primary purpose of an appearance bond is to secure the presence of

the defendant at trial on the offense charged. Ex parte Vasquez, 558 S.W.2d

477, 479 (Tex. Crim. App. 1977); Scott, 122 S.W.3d at 868. Accordingly, bail

should be set high enough to give reasonable assurance that the defendant will

appear at trial, but it should not operate as an instrument of oppression. Scott,

122 S.W.3d at 868.

      Article 17.15 of the Texas Code of Criminal Procedure sets forth the

following criteria for establishing the amount of bail:

            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 these factors, the court should also weigh the following

factors in determining the amount of the bail: (1) the accused’s work record; (2)


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the accused’s family ties; (3) the accused’s length of residency; (4) the accused’s

prior criminal record, if any; (5) the accused’s conformity with the conditions of

any previous bond; (6) the existence of outstanding bonds, if any; and (7)

aggravating circumstances alleged to have been involved in the charged offense.

Rubac, 611 S.W.2d at 849–50; Scott, 122 S.W.3d at 869. The defendant bears

the burden to show that he is entitled to a reduction in bail. Rubac, 611 S.W.2d

at 849; Maldonado v. State, 999 S.W.2d 91, 97 (Tex. App.––Houston [14th Dist.]

1999, pet. ref’d).

            A. The Nature of the Offense and the Potential Sentence

      The nature of the offense and the circumstances surrounding the offense

are primary factors in determining what constitutes a reasonable bond. See Tex.

Code Crim. Proc. Ann. art. 17.15(3); Ex parte Davila, 623 S.W.2d 408, 410 (Tex.

Crim. App. [Panel Op.] 1981). In considering the nature of the offense, it is

proper to consider the possible punishment. Vasquez, 558 S.W.2d at 479–80;

Ex parte Hunt, 138 S.W.3d 503, 506 (Tex. App.––Fort Worth 2004, pet. ref’d).

When the nature of the offense is serious and involves aggravating factors, a

lengthy prison sentence following trial is probable. Scott, 122 S.W.3d at 869.

Therefore, pretrial bond must be set sufficiently high to secure the presence of

the accused at trial because the accused’s reaction to the prospect of a lengthy

sentence might be to not appear. Id.

      Here, Barnes is charged with aggravated robbery, which is a first degree

felony.   See Tex. Penal Code Ann. § 29.03(b) (Vernon 2003).          He faces a

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punishment of five to ninety-nine years or life if convicted. See Tex. Penal Code

Ann. § 12.32(a) (Vernon Supp. 2009). The probable cause affidavit admitted into

evidence at the bond reduction hearing shows that the victim of the aggravated

robbery in this case was seriously injured in the robbery; as a result of the attack,

his eyes swelled shut, he “had a large amount of blood behind his eyes and

possible brain bleeding,” he lost several of his teeth, and he had to be care-

flighted to a Fort Worth hospital after receiving treatment in a local emergency

room.

        Given the applicable range of punishment and the relative seriousness of

the charged offense, the trial court properly could have concluded that bail in the

amount of $250,000 was reasonable to ensure Barnes’s presence at his trial.

See Hunt, 138 S.W.3d at 506; Scott, 122 S.W.3d at 869–70.

                              B. Ability to Make Bail

        The accused’s ability to make bail is merely one factor to be considered in

determining the appropriate amount of bail. See Tex. Code Crim. Proc. Ann. art.

17.15(4); Scott, 122 S.W.3d at 870. Simply because a defendant cannot meet

the bail set by the trial court does not automatically render it excessive. Scott,

122 S.W.3d at 870. “If the ability to make bond in a specified amount controlled,

then the role of the trial court in setting bond would be completely eliminated, and

the accused would be in the unique posture of determining what his bond should

be.” Id.



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      The record shows that the trial court declared Barnes indigent and

appointed counsel to represent him.      In his motion, Barnes stated that he is

indigent and unable to make bail if the amount is “more than $5,000.00.” Barnes

also testified at trial that he did not have the funds to make bail of $750,000, but

that he “could probably come up with like $800.          Like a $15,000 bond or

[$]10,000.” But Barnes did not explain what efforts, if any, were made to make

the $750,000 bail or detail his or his family’s specific assets. See id. (finding no

abuse of discretion absent, among other things, evidence of defendant’s and his

family’s assets and attempts to make bond).        Additionally, even considering

evidence of Barnes’s indigency, this factor alone does not establish an abuse of

discretion or automatically render the bail excessive. See id.

                  C. Safety of the Victim and the Community

      Regarding the safety of the victim and the community, the probable cause

affidavit reflects the serious injuries suffered by the victim of the robbery. The

probable cause affidavit further shows that Barnes had met the victim at a night

club just prior to the aggravated robbery and that the two men had traded phone

numbers and had made plans to meet at an apartment complex later that night.

When the victim arrived, Barnes attacked him and demanded his money. No

evidence suggests that Barnes knows where the victim lives, but the trial court

may have reasonably concluded that the violent nature of the crime warranted

bail in the amount of $250,000 in order to ensure the safety of the community as



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a whole. See Tex. Code Crim. Proc. Ann. art. 17.15(5); Scott, 122 S.W.3d at

870.

                         D. Community and Family Ties

       Regarding Barnes’s ties to the community, he testified that he is a life-long

resident of Wichita County, that he lives with his grandmother in Burkburnett, and

that he has close ties to the community.       He explained that he plays semi-

professional football for the Wichita Falls Falcons and that a couple of local

businesses sponsor him. He also said that he has a job remodeling apartments.

This factor weighs in favor of Barnes.

                                E. Other Factors

       As mentioned above, a court should also weigh the accused’s prior

criminal record, if any; the accused’s conformity with the conditions of any

previous bond; the existence of outstanding bonds, if any; and aggravating

circumstances alleged to have been involved in the charged offense. Rubac,

611 S.W.2d at 849–50; Scott, 122 S.W.3d at 869.

       The record shows that Barnes has two prior convictions, one for failure to

identify to a peace officer and one for burglary of a motor vehicle, and the trial

court was permitted to take this history into consideration.      See Rubac, 611

S.W.2d at 849–50. The record does not show whether Barnes complied with the

provisions of any bonds related to those prior convictions.




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                           F. No Abuse of Discretion

      Affording due deference to the trial court’s ruling and considering the

violent nature of the offense, the potential for a lengthy sentence, and the safety

of the victim and the community, we cannot say that the trial court acted

arbitrarily or unreasonably by refusing to release Barnes on a personal bond or

by reducing Barnes’s bail to $250,000, rather than the requested $5,000. We

hold that Barnes has failed to demonstrate that the bail set is excessive or that

the trial court abused its discretion. See Rubac, 611 S.W.2d at 850; Scott, 122

S.W.3d at 868.

                                 V. CONCLUSION

      Having determined that the trial court did not abuse its discretion, we affirm

the trial court’s order on Barnes’s Motion for Personal Recognizance Bond or Bail

Reduction.



                                                   SUE WALKER
                                                   JUSTICE



PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 31, 2010




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