                                 NO. 07-02-0482-CR
                                     07-02-0483-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                  AUGUST 21, 2003

                        ______________________________

                         EX PARTE LAYNE THESIL COSBY

                      _________________________________


Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                              MEMORANDUM OPINION


      Layne Thesil Cosby appeals from the trial court’s refusal to reduce his bond in two

cases. We sustain his issue in No. 07-02-0482-CR and overrule the issue in No. 07-02-

0483-CR.


      Appellant is incarcerated in Randall County pursuant to indictments for possession

of a controlled substance, methamphetamine, over four grams but less than 200 grams

(No. 07-02-0482-CR); and possession of child pornography (No. 07-02-0483-CR). The

child pornography indictment includes 17 counts. Bond has been set at $50,000 on the

controlled substance indictment and $100,000 on the child pornography indictment.
       Via habeas corpus motions and a combined hearing, appellant sought reduction of

bonds in the two proceedings. Appellant’s testimony was the only evidence presented as

to his ability to make bond and attempts to do so. Among other matters, he testified that

he has lived in Canyon for over 50 years, he lives in the house owned by his parents

before they passed away, he owns a one-third undivided interest in the house, and he is

retired. Appellant has traveled outside the country in the past; the last time was to

Thailand in 1997 or 1998.


       Appellant’s testimony as to his income, net worth, financial status and what kind of

bond he could make was sparse. In their briefs appellant and the State address the

evidence more fully than we have recited it.


       Appellant cites numerous authorities for principles underlying his right to bail which

is not excessive, see TEX . CONST . art. I, §§ 11 and 13; Estrada v. State, 594 S.W.2d 445

(Tex.Crim.App. 1980), and guidelines for setting the amount of bail. See TEX . CRIM . PROC .

CODE ANN . art. 17.15 (Vernon Supp. 2003); Ex parte Pemberton, 577 S.W.2d 266

(Tex.Crim.App. 1979); Ex parte Parker, 26 S.W.3d 711 (Tex.App.--Waco 2000, no pet.).

He agrees with the State that bail amounts are set by the trial court in exercising its

discretion.


       The State asserts that the evidence was insufficient to show that appellant was

unable to make the bonds set, or that he had tried to make the bonds. The State further

notes that the standard by which we review the amount of the bonds is abuse of discretion,

see Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex.Crim.App. 1981); Ex parte Milburn, 8


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S.W.3d 422, 424 (Tex.App.--Amarillo 1999, no pet.), and argues that the trial court’s

decision was not outside the zone of reasonable disagreement.


       We agree in part with appellant and in part with the State. Appellant requested the

court to release him on “personal recognizance. A bond of five or $5,000, $7,500

possibly... On each count.”, and testified that he believed he could maybe gain access to

funds to bond such amount.


       While the amount of bond that a defendant testifies can be made is not

determinative of the amount of bond which should be set, see id. at 427, the evidence in

this record, all of which we have not recited, and the authorities, lead us to conclude that

bond of $50,000 for the controlled substance indictment is outside the zone of reasonable

disagreement. We sustain appellant’s challenge to the trial court’s failure to reduce bond

on the possession of controlled substance. Bond for such charged offense is set at

$20,000.


       On the other hand, bond of $100,000 for 17 counts of possession of child

pornography is less than $6,000 per count. Such amount is not outside the zone of

reasonable disagreement based on this record. As to such bond, appellant’s challenge to

the trial court’s ruling is overruled.


       Bond in No. 07-02-0482-CR is set at $20,000. Bond in No. 07-02-0483-CR, shall

remain at $100,000.


                                                        Per Curiam


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