                                  NO. 07-04-0593-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                     APRIL 13, 2005

                          ______________________________

                           ANTONIO SCHMIDT, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

               FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                   NO. B15510-0405; HONORABLE ED SELF, JUDGE
                        _______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.


                               MEMORANDUM OPINION


       Appellant Antonio Schmidt appeals the denial of his application for writ of habeas

corpus seeking reduction of his appeal bond. Appellant was convicted of retaliation against

a prospective witness.1 He appealed that conviction and bail on appeal was set at

$25,000. A hearing was held on his habeas application. The trial court denied his request.




      1
          Tex. Pen. Code Ann. § 36.06 (Vernon Supp. 2004).
       By a single point of error, appellant contends that the trial court abused its discretion

in failing to set a reasonable bail.      He argues the $25,000 bail is excessive and

unreasonable in violation of article 17.15 of the Texas Code of Criminal Procedure. Tex.

Code Crim. Proc. Ann. art. 17.15 (Vernon 2005). See Tex. Code Crim. Proc. Ann. art.

44.04 (Vernon Supp. 2004). The trial court has discretion in determining the amount of

bail. Ex parte Penagos, 810 S.W.2d 796, 798 (Tex. App.–Houston [1st Dist.] 1991, no

pet.). The exercise of that discretion will not be disturbed unless clearly abused. See Ex

parte Rubac, 611 S.W.2d 848, 849-50 (Tex.Crim.App. [Panel Op.] 1981).


       The trial court is to determine the amount of bail on appeal based primarily on the

length of the sentence imposed and the nature of the offense. Mayo v. State, 611 S.W.2d

442, 444 (Tex.Crim.App. 1981); Ex parte Rubac, 611 S.W.2d at 849. There are other

considerations in setting 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.


       The trial court may consider other factors, identified by the Court of Criminal

Appeals to include: the accused’s work record; his family and community ties; his length

of residency; prior record; conformity with the conditions of any previous bond; the



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existence of outstanding bonds, if any; and the alleged aggravating circumstances involved

in the offense. Ex parte Rubac, 611 S.W.2d at 849-50. The burden of showing bail to be

excessive is on appellant. Id. at 849.


       Appellant suggests his indigence requires consideration of a personal recognizance

bond. The Code of Criminal Procedure provides a defendant’s ability to make bail is to be

regarded. Tex. Code Crim. Proc. Ann. art. 17.15. Case law also provides a defendant’s

indigence is a circumstance to be considered in setting bail. Ex parte August, 552 S.W.2d

169, 170 (Tex.Crim.App. 1977). Neither statute nor case law indicate, though, that ability

to make bail is a controlling or even primary consideration. Ability to make bail simply is

listed among the factors in article 17.15. As noted, Ex parte Rubac states the primary

factors determining reasonable bail on appeal are the length of the sentence and the

nature of the offense. 611 S.W.2d at 849. Ability to make the bond is included in that

opinion’s list of “other supportive data” the Court of Criminal Appeals “deems relevant.” Id.

See August, 552 S.W.2d at 170; Ex parte Clark, 537 S.W.2d 40, 42 (Tex.Crim.App. 1976).


       Appellant was convicted of a violent crime.2 He was sentenced to seven years,

which, as the State notes, is toward the higher end of the range of punishment for a third

degree felony, two to ten years. Tex. Pen. Code. Ann. § 12.34 (Vernon 2003).




       2
         The indictment included in the record includes the allegation that appellant struck
the victim of the retaliation.

                                             -3-
      Appellant testified that he had contacted three bail bondsmen and could obtain a

sufficient bond for an initial payment of $1500 with two cosigners. The testimony indicated

that appellant could not raise the $1500. At the time of the hearing, appellant had no

money, and no vehicle or other property that could be sold to make bond. His testimony

was that he had no relatives or friends able to provide the initial cash required by

bondsmen, but that his mother and girlfriend both were willing to help with monthly

payments. There was no testimony to indicate what amount of bond appellant would be

able to raise. His pretrial bond was $10,000, and the record indicates he was not able to

arrange for his release on that bond.


       Appellant presented evidence that he had lived in Hale County most of his life and

upon release would reside with his mother in Plainview. Appellant was unemployed and

presented no prospects for employment, other than working for his mother, who he testified

owns several rent houses. He was arrested for burglary at the age of sixteen, certified as

an adult, convicted and sentenced to four years in the Texas Department of Criminal

Justice. Since his release from prison, he has convictions for several misdemeanor

offenses, including resisting arrest in September 2001, possession of marijuana in June

2002, evading detention in January 2003 and driving while intoxicated in August 2003.

Appellant was released on bond after his arrest for each of the misdemeanor offenses. He

testified that his bond was surrendered only one time, and that caused by a mistake on the

part of the bonding company. He acknowledged that the January and August 2003

offenses were committed while he was out of jail on bond.




                                            -4-
       Appellant contends he should be treated no worse than the defendant in Ex parte

Brown, 561 S.W.2d 175 (Tex.Crim.App. 1978), who plead guilty to an aggravated robbery

in which the victim was shot. The court found the $50,000 appeal bond set by the trial

court was excessive and reduced it to $15,000. The facts in Brown bear similarity to those

present here, in that the defendant had lived in the area most of his life, had family in the

area and had a job waiting with a family member, and testimony indicated neither the

defendant nor his mother had cash or other assets. Differences in the cases include that

the felony offense there was aggravated and the defendant admitted his guilt, while

appellant contends the evidence of his guilt of retaliation is weak.3 But differences in the

cases also include that the defendant in Brown had no prior criminal record, and had

remained free on bond pending trial for three years, during which time he remained within

the jurisdiction and met all appearances. Although appellant testified he met the terms of

previous bonds, he has a record of committing criminal offenses even while released on

bond. Too, even in Brown, the court did not reduce the bond to the amount the defendant

said he could meet. The defendant testified he could afford a $5,000 bond, but the

appeals court set bond at three times that amount. We do not see that the Brown opinion

provides a basis to conclude the court’s action here was an abuse of its discretion.




       3
        Appellant cites Ex parte Vasquez, 558 S.W.2d 477 (Tex.Crim.App. 1977), for the
proposition that weak evidence on the underlying crime is a factor to be considered in
setting bail. Without in any way prejudging the merits of appellant’s pending appeal of his
conviction, we note that Vasquez involved a pretrial bond. Id. at 478. See generally Ex
parte Anderer, 61 S.W.3d 398 (Tex.Crim.App. 2001).

                                             -5-
       Considering his family ties to the community and lack of resources, but considering

also the length of his sentence, the violent nature of the offense of which he has been

convicted, his work and criminal records, and his commission of offenses while on bond,

we cannot say the requirement of bail here was used as an instrument of oppression, or

that appellant has demonstrated the trial court abused its discretion in setting bail.

Appellant’s issue is overruled. The order of the trial court is affirmed.




                                        Per Curiam


Do not publish.




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