Opinion issued July 5, 2012.




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                               NO. 01-12-00176-CR
                          ———————————
                    KELVIN LYNN O’BRIEN, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 338th District Court
                           Harris County, Texas
                       Trial Court Case No. 1328129


                         MEMORANDUM OPINION

      Kelvin Lynn O’Brien, is charged with the felony offense of engaging in

organized criminal activity by participating in a combination to commit theft of

items worth over $200,000. O’Brien filed an application for a writ of habeas

corpus and requested that his bond be reduced from $750,000 to an amount under
$200,000. After holding a hearing, the trial court denied O’Brien’s request for a

bond reduction. In his sole issue on appeal, O’Brien argues that the trial court

abused its discretion in refusing to reduce the amount of his bond.

                                        Background

      O’Brien asserts that the trial court abused its discretion in refusing to reduce

his bond and argues that his bond should be reduced to $150,000. At the hearing

on O’Brien’s writ of habeas corpus, the trial court admitted into evidence a

probable cause affidavit signed by Houston Police Department Officer F. Quinn.

The affidavit showed that police suspected that O’Brien and two other men, one of

which was O’Brien’s brother, broke into a Harris County jewelry and gold store,

Karat 22, and stole $6,000,000 worth of gold, jewelry, diamonds, and watches.

The investigation showed that in the weeks following the theft, one of O’Brien’s

suspected accomplices sold over $3,000,000 worth of melted gold to a third party.

During the same timeframe, witnesses saw O’Brien dismantling Rolex watches,

removing stones from jewelry, and removing serial numbers from diamonds. In

O’Brien’s home, police recovered diamond appraisal certificates dated after the

alleged theft.   Seven of the appraisal certificates matched the descriptions of

diamonds stolen from Karat 22.

      O’Brien’s bail initially was set at $12,000,000. On O’Brien’s motions, the

trial court reduced it first to $1,000,000, and later to $750,000.

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                     Standard of Review and Applicable Law

      We review a trial court’s decision regarding bond settings for an abuse of

discretion. See Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. 1981);

Montalvo v. State, 315 S.W.3d 588, 592 (Tex. App.—Houston [1st Dist.] 2010, no

pet.). When reviewing a trial court’s decision, we will not disturb that ruling as

long as it is “at least within the zone of reasonable disagreement.” Cooley v. State,

232 S.W.3d 228, 234 (Tex. App.—Houston [1st Dist.] 2007, no pet.). “But an

abuse of discretion review requires more of the appellate court than simply

deciding that the trial court did not rule arbitrarily or capriciously. 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 bond is to secure the presence of the

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

1977); Ex parte Bonilla, 742 S.W.2d 743, 744 (Tex. App.—Houston [1st Dist.]

1987, no pet.).    The amount of bail should be set sufficiently high to give

reasonable assurance that the accused will comply with the undertaking, but should

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); Ex parte Willman, 695 S.W.2d 752, 753

(Tex. App.—Houston [1st Dist.] 1985, no pet.).           Courts must consider the

following statutory factors in setting bail:

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      1. The bail shall be sufficiently high to give reasonable assurance that
         a criminal defendant will appear at trial and comply with other
         court orders and conditions of the bond.

      2. The power to require bail is not to be used as an instrument of
         oppression.

      3. The nature of the offense and the circumstances of its commission.

      4. The ability to make bail is to be regarded, and proof may be taken
         on this point.

      5. The future safety of a victim of the alleged offense and the
         community.

See TEX. CODE CRIM. PROC. ANN. art. 17.15 (West 2005); Ludwig v. State, 812

S.W.2d 323, 324 (Tex. Crim. App. 1991) (noting that the court is to be governed in

the exercise of its discretion by the Constitution and by the article 17.15 factors).

Courts should also consider the defendant’s work record, family ties, length of

residency, past criminal record, conformity with previous bond conditions, other

outstanding bonds, and aggravating factors involved in the offense. See Rubac,

611 S.W.2d at 849–50; Golden v. State, 288 S.W.3d 516, 519 (Tex.

App.—Houston [1st Dist.] 2009, pet. ref’d).       The burden of proof is upon a

defendant who claims bail is excessive. Rubac, 611 S.W.2d at 849.

                                     Analysis

   A. The nature of the offense

      The defendant’s potential sentence and the nature of the crime are “primary

factors” for us to consider.      Ex parte Hunt, 138 S.W.3d 503, 506 (Tex.
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App.—Fort Worth 2004, pet ref’d.); see also Montalvo, 315 S.W.3d at 593 (noting

that consideration of nature and circumstances of offense requires us to consider

range of punishment permitted in event of conviction).        When the offense is

serious and involves aggravating factors that may result in a lengthy prison

sentence, bail must be set sufficiently high to secure the defendant’s presence at

trial. See Ex parte Hulin, 31 S.W.3d 754, 761 (Tex. App.—Houston [1st Dist.]

2000, no pet.).

      O’Brien is charged with engaging in organized criminal activity by

participating with two other men in committing a theft of property worth more than

$200,000, a first degree felony. TEX. PENAL CODE. ANN. § 31.03(e)(7) (West Supp.

2011). One may be charged with first degree theft if the value of the stolen items

exceeds $200,000. O’Brien is alleged to have stolen property worth thirty times

that amount. If convicted, O’Brien is subject to a sentence of five to ninety-nine

years or life. TEX. PENAL CODE ANN. § 12.32 (West 2011). As the State pointed

out to the trial court, our sister court previously has affirmed a trial court’s

imposition of far higher bail in a case in which the defendant was also charged

with engaging in organized crime for allegedly participating in the theft of

automobiles worth far less than what O’Brien is alleged to have stolen in this case.

See Ex parte Waddell, No. 14-02-01237-CR, 2003 WL 21403545, *1 (Tex.

App.—Houston [14th Dist.] June 19, 2003, no pet.) (mem. op., not designated for

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publication) (holding pretrial bail of $1,600,000 was not excessive where appellant

was charged with theft of automobiles worth approximately $788,000, could be

sentenced to between five to ninety-nine years in prison, and presented evidence

that he could only raise a bond of $50,000).

   B. Bail sufficient to assure appearance but not oppress

       A trial court should set bail sufficiently high to provide reasonable assurance

that the defendant will appear at trial.       Montalvo, 315 S.W.3d at 593.        “A

defendant’s ties to the community and work history bear on the adequacy of bail to

give reasonable assurance he will appear.” Richardson v. State, 181 S.W.3d 756,

759 (Tex. App.—Waco 2005, no pet.). We also consider whether the record

reflects that the trial court made its decision regarding the bail amount “for the

purpose of forcing [the defendant] to remain incarcerated pending trial.” See

Milner v. State, 263 S.W.3d 146, 149 (Tex. App.—Houston [1st Dist.] 2006, no

pet.) (citing Ex parte Harris, 733 S.W.2d 712, 714 (Tex. App.—Austin 1987, no

pet.) (trial judge stated, “I’d rather see him in jail than to see someone’s life

taken . . . .”)).

       Here, the trial court expressed concern over O’Brien appearing at trial. Its

comments also suggest that the trial court considered the safety of the community,

and the possibility that O’Brien not forthcoming about all of the assets available to

him to use as collateral. And nothing in the record suggests that the trial court set


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bail at $750,000 in order to prevent O’Brien from posting bail. See Montalvo, 315

S.W.3d at 596 (“Our independent review of the habeas corpus record likewise does

not suggest that the trial court deliberately set bail at an excessively high level

solely to prevent Montalvo from posting bail.”).

      The fact that the record does not reveal that O’Brien either resides in or has

ties to Harris County is also a relevant consideration. O’Brien and his wife,

Maggie O’Brien, reside in Dallas. O’Brien owns a business in the Dallas area that

buys and sells gold and jewelry, but there is no evidence of his role in the business.

Nor is there any other evidence of other employment, family, property, or other

ties to Harris County. These factors weigh in favor of setting a high bail to ensure

his presence at trial. Milner, 263 S.W.3d at 149 (trial court could have concluded

high bail was necessary in part because defendant was unemployed, owned no

property in the area, and other than being close to his two children and family,

defendant had no other reason to remain in county).

   C. Ability to pay bond

      Unless he has shown that his funds and those of his family have been

exhausted, a defendant must usually show that he made an unsuccessful effort to

furnish bail before bail can be determined to be excessive. Id. (considering, in

addition to defendant’s financial resources, those of defendant’s mother); see also

Montalvo, 315 S.W.3d at 595 (taking into account there was no evidence about

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whether family members could help defendant make bail). If, however, both the

defendant and his family indicate a financial inability to procure a bond, the court

will not require her “to do a useless thing.” Id. at 149–50 (quoting Ex parte Dueitt,

529 S.W.2d 531, 532–33 (Tex. Crim. App. 1975)). “[T]he ability of an accused to

make bail does not itself control the amount of bail, even if the accused is

indigent.” Wright v. State, 976 S.W.2d 815, 820 (Tex. App.—Houston [1st Dist.]

1998, no pet.). If the defendant’s ability to make bond in a specific amount

controlled, “the role of the trial court in setting bond would be completely

eliminated and the accused would be in the position to determine what his bond

should be.” Milner, 263 S.W.3d at 150.

      O’Brien did not testify at the hearing. The only live witness was Sean

Burns, a bondsman in Harris County. According to Burns, in order to get a

$750,000 bond, O’Brien would have to pay a $75,000 fee and provide additional

collateral worth close to $1,000,000. In support of his argument that bond is

excessive, O’Brien relies, in part, on Burns’s testimony that Burns personally

would be unable to provide a bond of that amount, and that he knew of only one

bondsman in Harris County who could post a bond of that size. There was no

evidence that O’Brien or his family attempted to secure a bond from anyone other

than Burns, including the bondsman who Burns testified would be able to post a

bond of that size. Moreover, this court has held that the ability of a bail bondsman

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to post bond should not be a controlling factor for the fixing of bail by the trial

court. Wright, 976 S.W.2d at 820.

      Similarly, although O’Brien argues that he does not have the ability to post a

$750,000 bond, the trial court noted that it did not believe that O’Brien had

addressed all of the collateral he could use to secure his bond. O’Brien offered the

affidavit of his wife, Maggie, into evidence at the hearing. In it, Maggie avers that

she earns a base salary of $65,000 a year, had approximately $5,000 in a checking

account, $3,500 total in two savings accounts, a credit card with a zero balance, a

$5,000 line of credit, and that she owned one Mercedes worth $15,000. The

affidavit further states that O’Brien “has only one checking account” and that it

“has a negative balance.”     Although the record reflects that O’Brien owns a

business in Dallas, there was no evidence of O’Brien’s earnings from it or any

other source of employment, no evidence of the income that O’Brien’s business

generates, of the value of the business, or of whether the business had any assets

that would be available to O’Brien to use as collateral. Likewise, although the

evidence showed that the O’Briens purchased, after the theft, a boat and Land

Rover for $100,000 each, Maggie’s affidavit did not address these assets. Nor did

her affidavit address the diamonds Maggie reported finding in the washing

machine while doing O’Brien’s laundry on the day after the theft.




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      With respect to real estate, the record shows that O’Brien bought a home for

approximately $450,000 cash shortly after the theft and then installed an $85,000

pool. O’Brien claims the house and pool cannot be sold and, in any event, are now

worth only $275,000, or slightly more than half of what they cost. Finally, with

respect to the ability of O’Brien’s family to help him procure the bond, the record

shows only that O’Brien’s brother had heavy equipment worth over $1,000,000

available to him to use as collateral and that he was able to make his own $750,000

bail. O’Brien offered no other information about what financial assistance his

family could or could not provide. See Montalvo, 315 S.W.3d at 595 (affirming

$100,000 bond where appellant offered no evidence about whether his family had

any ability to help him make bail). Having considered this evidence, the trial court

itself commented that it believed O’Brien had not been forthcoming about what

assets were available to him to offer as collateral.

   D. The future safety of the victim of the alleged offense and the community

      In support of its argument that O’Brien would be a continuing danger, the

State points to O’Brien’s four felony convictions, including one for aggravated

assault with a deadly weapon and possession of a prohibited weapon. O’Brien also

was arrested and charged in a 2007 jewelry store burglary, and he is a suspect in

other burglaries in Texas and Oklahoma. Nevertheless, there was no evidence at




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the hearing that specifically addressed whether O’Brien would pose a threat to the

safety of the community or of the complainant.

                                     Conclusion

      On balance, the evidence in the record suggests that a high bond is justified.

O’Brien failed to demonstrate ties to the community or a favorable work record,

and the offense with which he is charged carries the possibility of a substantial

sentence. There is scarce to no information about various assets that the record

suggests may be available for him to use as collateral to post bond, and there has

been no showing about whether his family can help him post bond. In light of the

foregoing analysis, and having considered all of the evidence in the record in light

of the Constitution and the factors enumerated in article 17.15, we cannot conclude

that the trial court abused its discretion in refusing to further reduce O’Brien’s bail

below $750,000.

      We affirm the judgment of the trial court.



                                               Rebeca Huddle
                                               Justice

Panel consists of Justices Higley, Sharp, and Huddle.

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




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