Opinion issued February 21, 2013




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-13-00048-CR
                           ———————————
                  BRANDON EUGENE WILSON, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



               On Appeal from the 178th Judicial District Court
                            Harris County, Texas
                       Trial Court Case No. 1372430



                         MEMORANDUM OPINION

      This is an interlocutory appeal from a bail proceeding. See TEX. R. APP. P.

31. Appellant Brandon Wilson has been charged with possession with intent to

deliver a controlled substance, fraudulent transfer of a motor vehicle, theft, and
burglary of a habitation. See TEX. PENAL CODE ANN. §§ 30.02(a), 31.03, 32.34

(West 2011); TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2008). His

pretrial bond was set at $140,000 in aggregate, with $100,000 set as bail for his

drug possession charge. He filed a motion to reduce bail, which was denied by the

trial court. Wilson appeals from the order denying his motion. See TEX. R. APP. P.

31. We affirm.

                                    Background

      Wilson was arrested in July 2010 and charged with burglary of a habitation.

The State alleged that on or about July 19, 2010, Wilson “did then and there

unlawfully, with intent to commit an assault, enter a habitation owned by” another

and “he used and exhibited a deadly weapon, namely, a FIREARM, during the

commission of said offense.” The case was assigned to the 178th District Court,

and bail was set at $30,000. Wilson spent several months in custody until his

family was able to obtain sufficient funds to enable him to post bond. After he

posted bond, Wilson was released.

      On February 29, 2012, while still free on bond for the burglary charge,

Wilson was arrested and charged with possession with intent to deliver a controlled

substance. The State alleged that on or about February 29, 2012, he “did then and

there unlawfully, knowingly possess with intent to deliver a controlled substance,




                                        2
namely, COCAINE, weighing more than 4 grams and less than 200 grams by

aggregate weight.”

      In addition to the drug charge, Wilson was arrested in connection with

outstanding warrants for charges pending against him for the theft and fraudulent

transfer of a motor vehicle. The State alleged that Wilson did, on or about January

16, 2012, “unlawfully, appropriate by acquiring and exercising control over

property, namely, A MOTOR VEHICLE, owned by [Complainant] of the value of

over twenty thousand dollars and under one hundred thousand dollars, with intent

to deprive the Complainant of the property.” The State further alleged that then

Wilson did “unlawfully accept possession of a motor vehicle from [Complainant],

with a value of less than twenty thousand dollars, knowing that the vehicle was

subject to a security interest and lien, and then transferred the vehicle to third party

without firsts [sic] obtaining written authorization from the vehicle’s secured

creditor and lien holder.”

      All of these new charges were assigned to the 178th District Court. Initially,

no bail was set in the theft and fraudulent transfer cases, but bail was set at $20,000

in the drug possession case. Bail was subsequently set at $5,000 in the each of the

theft and fraudulent transfer cases, and the bail in the possession case was raised to

$100,000. In sum, Wilson’s cumulative bail for the four pending charges is now

set at $140,000.

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      On November 16, 2012, Wilson filed an original application for a writ of

habeas corpus in the trial court. In his application, he alleged that he is a resident

of Harris County, Texas, and that he and all his family members reside in and

around Houston. He alleged that they would attest that he is not a flight risk. He

claims that he is unable to post bond for the $140,000 bail amount, and he remains

incarcerated in the Harris County jail.

      On January 4, 2013, the trial court held a hearing on Wilson’s application.

Wilson presented one witness—his mother, Linda Marshall. She testified that their

family had difficulty in collecting the $3,000 they had used to post bond for his

initial burglary charge. She further testified that Wilson has no savings, bank

accounts, stocks, bonds, or real estate. His only personal property is an inoperative

car valued at approximately $500. When he was released on bail previously,

Wilson worked and was able to pay his own living expenses. His mother testified

that the family could possibly assemble, at most, $3,000 more, which would be

sufficient to post a bond covering an additional $30,000 in bail. She believed that

the bond company would reinstate his original bond for the burglary case, so

Wilson could post bond if the bail for the three charges of theft, fraudulent transfer,

and possession of cocaine was no more than $30,000.

      Wilson also presented evidence in an attempt to establish that he would have

a credible defense to each of the charges against him. Regarding the burglary

                                          4
charge from 2010, he presented his cousin’s sworn statement that Wilson was

watching her children on the day of the burglary.          The man charged with

committing the burglary with Wilson, who pleaded guilty to the crime, stated that

Wilson did not accompany him during the burglary and that he did not see Wilson

on the day in question.

      Regarding the theft and fraudulent transfer of a vehicle charges, Wilson’s

mother testified that he had not stolen the car in question. Instead, Wilson had

rented the car to go on a family trip to Mississippi. His mother testified that she

saw Wilson return the car to the rental company’s parking lot. A receipt for the car

rental showing that Wilson had paid for and returned the car was introduced as an

exhibit. Wilson also introduced the offense report for the incident. In it, the man

who bought the fraudulently transferred car failed to identify Wilson in a photo

array as the person who sold him the car.

      With respect to the cocaine charge, Wilson contends that he has an illegal-

search defense because the police had “no reason” for pulling over the car which

he was driving. Wilson offered a statement of the car’s passenger to support this

contention, and his mother testified there was no stop sign at the intersection where

he was pulled over, although the police officer stated that he stopped the car

because it passed a stop sign without stopping.




                                            5
      The State argued that Wilson’s bail amount was proper because he had

committed three new offenses while released on bond for the burglary charge. The

mother’s story that she had seen Wilson return the car was called into question

because employees of the rental company attested that the car was not returned.

The State also referred to a voluntary statement by a witness, Bradley Rhodes, who

stated that he had worked with Wilson to steal and fraudulently transfer the car.

Another witness corroborated Rhodes’s statement that Wilson was involved in the

fraudulent transfer. Based on these factors, the State argued that Wilson is a

danger to society and requested that the bail remain the same for the safety of the

community.

      Wilson’s counsel requested that bail for the drug charge be reduced from

$100,000 to $20,000. The trial court denied habeas corpus relief and the request to

reduce bail. The court continued to set bail at $100,000 for the drug charge in the

interest of protecting the public safety from further criminal actions. Wilson filed

notice of appeal on the same day.

                                     Analysis

      The Eighth Amendment to the United States Constitution provides that

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” U.S. CONST. amend. VIII; Schilb v. Kuebel, 404

U.S. 357, 365, 92 S. Ct. 479, 484 (1971) (applying Eighth Amendment prohibition


                                         6
of excessive bail to the States). Likewise, the Bill of Rights contained within the

Texas Constitution provides that “[a]ll prisoners shall be bailable by sufficient

sureties, unless for capital offenses, when the proof is evident; but this provision

shall not be so construed as to prevent bail after indictment found upon

examination of the evidence, in such manner as may be prescribed by law.” TEX.

CONST. art. I, § 11. The Texas Bill of Rights further specifies that “Excessive bail

shall not be required . . . .” Id., art. I, § 13.

       The standard for reviewing whether excessive bail has been set is whether

the trial court abused its discretion. See Ex parte Rubac, 611 S.W.2d 848, 849–50

(Tex. Crim. App. 1981) (reviewing bail pending appeal for abuse of discretion);

Cooley v. State, 232 S.W.3d 228, 233 (Tex. App.—Houston [1st Dist.] 2007, no

pet.); Montalvo v. State, 315 S.W.3d 588, 592 (Tex. App.—Houston [1st Dist.]

2010, no pet.). In the exercise of its discretion, a trial court should consider the

following factors in setting a defendant’s bail before trial:

       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.


                                               7
      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 (West 2005); see Ludwig v. State, 812

S.W.2d 323, 324 (Tex. Crim. App. 1991); Montalvo, 315 S.W.3d at 592. A

defendant carries the burden of proof to establish that bail is excessive. Ex parte

Rubac, 611 S.W.2d at 849; In re Hulin, 31 S.W.3d 754, 759 (Tex. App.—Houston

[1st Dist.] 2000, no pet.). In reviewing a trial court’s ruling for an abuse of

discretion, an appellate court will not intercede as long as the trial court’s ruling is

at least within the zone of reasonable disagreement. Cooley, 232 S.W.3d at 234;

Ex parte Beard, 92 S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref’d) (citing

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)).                   We

acknowledge, however, that an abuse-of-discretion review in this context requires

more of the appellate court than simply deciding that the trial court did not rule

arbitrarily or capriciously. Cooley, 232 S.W.3d at 234. The appellate court must

instead measure the trial court’s ruling against the relevant criteria by which the

ruling was made. Id.

      The primary purpose for setting bail is to secure the presence of the

defendant in court at his trial. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim.

App. 1977); Golden v. State, 288 S.W.3d 516, 519 (Tex. App.—Houston [1st

Dist.] 2009, pet. ref’d). The amount of bail should be set sufficiently high to give

reasonable assurance that the accused will comply with the undertaking, but should
                                           8
not be set so high as to be an instrument of oppression. Ex parte Bufkin, 553

S.W.2d 116, 118 (Tex. Crim. App. 1977); Montalvo, 315 S.W.3d at 596. Courts

should also consider the defendant’s work record, family ties, residency, criminal

record, conformity with previous bond conditions and aggravating factors involved

in the offense. See Ex parte Rubac, 611 S.W.2d at 849–50; Montalvo, 315 S.W.3d

at 596.

I.    Sufficiency of bail

      Because Wilson is complaining that bail of $140,000 is excessive, and as the

State asked the trial court to continue to set bail at that amount, there is no dispute

that the bail set by the trial court is sufficiently high to give reasonable assurance

that Wilson would comply with the undertaking of appearing in court as required

in the future.

II.   Nature and circumstances of the offense

      Wilson has been charged with a second-degree felony count of possession of

more than four grams but less than 200 grams of a controlled substance. See TEX.

HEALTH & SAFETY CODE ANN. § 481.115(d). Additionally, Wilson has been

charged with a first-degree felony count of burglary of a habitation, see TEX.

PENAL CODE ANN. § 30.02(d), a third-degree felony count of theft of property of a

value of over $20,000 and under $100,000, see id. § 31.03(e)(5), and a state-jail

felony count of fraudulent transfer of a motor vehicle with a value of less than


                                          9
$20,000. See id. § 32.34(f)(1). Our consideration of the nature and circumstances

of the offense requires that we take note of the range of punishment permitted by

law in the event of a conviction. See, e.g., Ex parte Rodriguez, 595 S.W.2d 549,

550 (Tex. Crim. App. 1980); Ex parte Reyes, 4 S.W.3d 353, 355 (Tex. App.—

Houston [1st Dist.] 1999, no pet.). The punishment for unlawful possession of a

controlled substance weighing more than four grams but less than 200 grams

ranges from 2 to 20 years in prison, and a fine not to exceed $10,000. TEX. PENAL

CODE ANN. § 12.33 (West 2011).           In this case, the potential unenhanced

punishment for burglary of a habitation ranges from 5 to 99 years or life in prison.

Id. § 12.32. The punishment for theft ranges from 2 to 10 years in prison, and the

punishment for the fraudulent transfer of a motor vehicle ranges from 6 months to

2 years. Id. §§ 12.34, 12.35. With the exception of the theft and fraudulent

transfer charges, which arise out of the same criminal episode, the trial court would

have discretion to order these sentences to run either consecutively or concurrently.

See TEX. CODE CRIM. PROC. ANN. art. 42.08 (West Supp. 2012); TEX. PENAL CODE

ANN. § 3.03 (West Supp. 2012) (requiring concurrent sentence when offense arise

from same episode prosecuted in single action).

      We have reversed bail amounts of $100,000 or more in cases in which the

amount of drugs allegedly possessed is small and there is no evidence that the

defendant poses a flight risk. In Golden v. State, this court reduced a bail amount

                                         10
of $200,000 for each of two drug possession charges, an aggregate amount of

$400,000, to $75,000 for the second-degree felony charge and $50,000 for the

third-degree felony possession charge. Golden, 288 S.W.3d at 521. The amount

of drugs for the second-degree felony charge in Golden was between 4 grams and

200 grams, far less than the multiple-kilogram amounts of cocaine that had

justified high bail in other cases. Id. at 520 (distinguishing Ex parte Ruiz, 129

S.W.3d 751 (Tex. App.—Houston [1st Dist.] 2004, no pet.), and Ex parte Willman,

695 S.W.2d 752 (Tex. App.—Houston [1st Dist.] 1985, no writ)). The court in

Golden also noted that while possession of large amounts cocaine in excess of 400

grams would weigh in favor of high bail because of the effects such a large amount

of drugs would have on the community, a charge for a low quantity of drugs

without the involvement of a weapon or violence weighs against setting a high bail

amount. Id. at 519 (citing Maldonado v. State, 999 S.W.2d 91, 97 (Tex. App.—

Houston [14th Dist.] 1999, pet. ref’d)). Unlike other cases with high bail, the State

had not presented any evidence in Golden that the defendant was not a U.S. citizen

or posed any flight risk. Id. at 520.

      Wilson, like the defendant in Golden, was charged with possession between

4 grams and 200 grams of illegal narcotics. See id. at 520.       Wilson’s attorney

argues that the amount of drugs is likely to not weigh much more than four grams,

but the evidence for that inference is not included in the record. Wilson’s drug

                                         11
charge is not alleged to have involved a weapon. And Wilson is not alleged to be a

foreign national, to pose a flight risk, or to have been involved in an organized

smuggling operation.

      But unlike the defendant in Golden, Wilson was charged with new offenses

while released on bail. Under the bail schedule established by the district judges of

Harris County, which this court has considered in the past in reviewing bail

determinations for Harris County defendants, see, e.g., Ex parte Borgia, 56 S.W.3d

835, 838 (Tex. App.—Houston [1st Dist.] 2001, no pet.), the standard amount of

bail for a defendant already released on bail for any felony charge is specified as

“no bond.”      See District Court Bail Schedule, Harris County Administrative

Offices    of      the    District    Courts     (effective    Jan.     1,    2007),

http://www.justex.net/BailBondSchedule.aspx. When Wilson was charged with

possession of illegal narcotics, he already had been released on bail for the first-

degree felony charge of burglary of a habitation. According to the schedule, the

trial court could have set bail as “no bond” and Wilson thereby would have been

prevented from making bail at all. Instead, the trial court set bail for the drug

charge at $100,000, which was more advantageous than the standard bail schedule

insofar as it allowed Wilson the opportunity to make bail. In sum, the fact that

Wilson was already free on bail at the time of the newly alleged offenses is a

circumstance which weighs against the reduction of bail.

                                         12
      Wilson also argues that he has a potentially valid illegal-search defense to

his possession charge, which should be a factor favoring the reduction of bail.

According to Wilson, the police officer who stopped him said that he did so

because Wilson had failed to stop at a stop sign. Wilson’s mother testified that she

knew of the intersection at which Wilson was stopped, and that there was no stop

sign there. A passenger who was in the car stated in a sworn statement that the

police pulled over Wilson “for no reason.” To the extent that he relies on this

evidence to support a defense that his car was illegally searched in violation of the

Fourth Amendment, however, Wilson has not shown that he has filed a motion to

suppress or otherwise raised his defense in court, where it could be tested. Nor did

he present any evidence from the police officer about the search. Accordingly,

Wilson presents only one-sided, self-serving arguments that the prosecution has

not had the opportunity to contest. We therefore do not consider this purported

defense as a circumstance that should decrease bail for his drug charge.

      With respect to the other charges against him, Wilson generally complains

about the aggregate amount of bail, but he fails to present specific arguments that

the amount of bail set for the other charges is excessive. Wilson requests that his

bail be reduced from $140,000 in aggregate to $60,000, or, in other words, a

reduction in bail for his possession charge from $100,000 to $20,000. This is the

amount he believes he can afford, because he can have the $30,000 bond for his

                                         13
burglary charge reinstated by the bondsman and he can post a new bond for up to

$30,000 more. To the limited extent that he challenges the bail for his other

charges, we consider that Wilson denies his involvement in the burglary and rental

car theft and fraudulent transfer. He presented statements from the man convicted

of the burglary, saying that Wilson was not involved, and his mother, saying that

she saw him return the car in question. The State did not address his burglary

contentions but indicated that there were two other witnesses who confirm

Wilson’s involvement in those crimes, contrary to his witnesses.

III.   Future safety of complainants and the community

       Wilson has not directly addressed the future safety of the complainants.

There was no evidence at the hearing on Wilson’s application to suggest whether

he presents any threat to the complainants in the case.

       The future safety of the community, however, evidently was a paramount

consideration in assessing bail. The State argued that Wilson posed such a danger

because he was charged with three additional offenses when he was released on

bail. The trial judge orally stated at the conclusion of the hearing that he was

denying the request to reduce bail “in [the] interest of protecting the public safety

and ensuring defendant’s attendance in court and protecting the public from further

criminal actions.” The trial court may consider that the defendant continued to

commit crimes while released on bail as a continuing danger to the public. Ex


                                         14
parte Jackson, No. 14-10-00979-CR, 2011 WL 166933, at *5 (Tex. App.—

Houston [14th Dist.] Jan. 13, 2011, no pet.); see also Patterson v. State, 841

S.W.2d 534, 535–36 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d)

(considering the entire record, including the fact that defendant charged while on

bond for two other crimes, in affirming $150,000 bail for possession of 1.2 kg of

cocaine). Considering the number of offenses and the deadly weapon allegation in

the burglary charge, this factor favored a high amount of bail to ensure the safety

of the community as a whole. See Ex parte Jackson, 2011 WL 166933 at *5; see

also TEX. CODE CRIM. PROC. ANN. art. 17.40 (West Supp. 2012) (permitting

consideration of public safety in imposing a condition on pre-trial bail); Ex parte

Anderer, 61 S.W.3d 398, 406 (Tex. Crim. App. 2001).

IV.   Ability to make bail

      The Code of Criminal Procedure requires the trial court to consider the

defendant’s ability to make bail. TEX. CODE CRIM. PROC. ANN. art. 17.15(4).

Wilson’s mother testified that his family did not have the resources available to

post a bond for any additional amount greater than $30,000. His mother testified

that she believed the prior $30,000 bond for the burglary charge could be

reinstated, but at most the family could raise $3,000 for an additional $30,000

bond. She is unemployed and the family could raise only $3,000 if they sold

property and pooled their money. She testified to the amount of cash and other


                                        15
property that Wilson owned, a car with a value of approximately $500.

Additionally, Wilson has spent more than 60 days in jail, unable to secure a bond

for his release. The State did not challenge Wilson’s inability to post a bond. All

of these factors suggest that Wilson has made a necessary demonstration of his

inability to make bail. See Milner v. State, 263 S.W.3d 146, 149 (Tex. App.—

Houston [1st Dist.] 2006, no pet.) (“To show that he is unable to make bail, a

defendant must show that his funds and his family’s funds have been exhausted.”);

see also Ex parte Dueitt, 529 S.W.2d 531, 532–33 (Tex. Crim. App. 1975)

(concluding that defendant was unable to make bail amount based on the

“indications” of defendant’s employer and father-in-law that the defendant and his

family were unable to make bail amount).

      Nevertheless, the Court of Criminal Appeals has emphasized that ability or

inability to make bail does not, alone, control in determining the amount. See Ex

parte Rodriguez, 595 S.W.2d at 550; Ex parte Bufkin, 553 S.W.2d at 118. The

evidence of Wilson’s ability to make bail of no more than $60,000, i.e. no more

than $20,000 for the cocaine charge in addition to the other amounts, is a factor

favoring the reduction of bail, but that factor did not require the trial court to set

bail at an amount that Wilson could satisfy.




                                         16
V.    Whether bail is being used as an instrument of oppression

      Beyond arguing in his motion that bail was “excessive,” Wilson presented

no argument that bail is being used as an instrument of oppression in this case.

Initially, the two motor vehicle charges were set at “no bond,” while bail for the

drug charge was set at $20,000. In a handwritten alteration, the motor vehicle

charges were reduced to $5,000 bail each, while the possession charge was

increased to $100,000. These alterations allowed Wilson the possibility to make

bail when he previously would have had none. Our independent review of the

record does not suggest that the trial court deliberately set bail at an excessively

high level solely to prevent Wilson from posting bail.

VI.   Other factors

      Other factors to be considered in determining whether bail is excessive

include the defendant’s work record, family ties, residency, criminal record,

conformity with previous bond conditions and aggravating factors involved in the

offense. See Montalvo, 315 S.W.3d at 596. Wilson and his family reside in Harris

County, and he worked in the area when released on bail. His mother testified that

he had always appeared in court for the burglary charge. There also was no

evidence that Wilson has been convicted of any past crimes. On the other hand,

his burglary charge from 2010 was aggravated by a deadly weapon allegation, and

the additional offenses that he has allegedly committed while released on bail, if


                                        17
true, would violate his previous bond conditions.        The State adduced some

evidence to show that he committed these offenses, which the trial court could

have credited in determining that Wilson was not compliant with the conditions of

bail when he previously had been afforded it.

                                   Conclusion

      In light of the foregoing analysis, we conclude that the trial court did not

abuse its discretion in setting bail at $140,000 for the charges against Wilson, and

specifically in setting bail at $100,000 for his possession of cocaine charge. That

amount is not clearly excessive in light of the number of offenses alleged while

Wilson was on bond pending resolution of other criminal charges. See Davis v.

State, 71 S.W.3d 844, 846 (Tex. App.—Texarkana 2002, no pet.) (affirming

$100,000 appeal bail amount for defendant who was arrested for possession of

cocaine and marijuana and criminal trespass while released on bail, although he

proved he was unable to make bail for that amount and his crimes were

nonviolent); see also Ex parte McLendon, 356 S.W.3d 541, 543 (Tex. App.—

Texarkana 2011, no pet.) (affirming $50,000 bail amount for state-jail felony of

possession of less than one gram of methamphetamines as within trial court’s

discretion based on flight risk and defendant testing positive for amphetamines

during pendency of case); In re Durst, 148 S.W.3d 496, 499 (Tex. App.—Houston




                                        18
[14th Dist.] 2005, no pet.) (noting that the bail amount for third-degree felonies

ranges up to $100,000 when aggravating factors are present).

       Wilson established some factors that could justify a lower amount of bail,

such as the relatively low quantity of drugs he is alleged to have possessed and his

and his family’s limited funds available to post a bond. However, the trial court

validly could have concluded that Wilson posed a danger to the community based

on the evidence suggesting that he committed more crimes while previously

released on bail. Because we conclude that the trial court’s ruling is within the

zone of reasonable disagreement about the proper amount of bail, we will not

disturb the trial court’s ruling.

       We affirm the judgment of the trial court.



                                              Michael Massengale
                                              Justice

Panel consists of Justices Jennings, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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