                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NOS. 02-11-00200-CR
                                  02-11-00201-CR
                                  02-11-00202-CR
EX PARTE JOHN RAYBON




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          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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                        MEMORANDUM OPINION1
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                                   I. INTRODUCTION

      Appellant John Raybon was charged with the felony offenses of

obstruction or retaliation, unlawful carrying of a weapon on a licensed premise,

and attempted aggravated assault. The trial court set pre-trial bail at $100,000,

$10,000, and $50,000, respectively, for a total bail amount of $160,000. Raybon

filed a pre-trial application for writ of habeas corpus in each case, seeking a


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       See Tex. R. App. P. 47.4.
reduction of the bail amount. See Tex. Code Crim. Proc. art. 11.24 (West 2005).

The trial court denied relief, and Raybon appealed. See Tex. R. App. P. 31. We

will affirm.

                    II. FACTUAL AND PROCEDURAL BACKGROUND

       At the hearing on Raybon’s application for writ of habeas corpus, Kevin

Taylor testified that he is the manager of an AT&T store in Wichita Falls. He

testified that Raybon had brought his laptop into the store for repairs and that

Taylor had dropped it, causing a dent in the laptop. At some point during that

visit, Raybon told Taylor that he always carries a gun and that he needed to use

it on his wife, who was divorcing him. Following company policy, Taylor reported

the damage to the company’s claims department, at which point, according to

Taylor, ―it was out of our hands.‖ Raybon began calling the store about the

damage to his laptop, often using an abrasive and demanding tone, cursing, and

yelling. He left Taylor voice messages threatening to ―take it to the media‖ and to

―take it how ever far he needed to take it.‖ Taylor testified that Raybon used

―veiled threats‖ but that he never directly threatened to hurt or kill Taylor.

       Based on Raybon’s threatening behavior, Taylor hired an off-duty police

officer as security for the store during business hours. One day, Raybon went to

the store to have his cell phones repaired. The store had banned Raybon as a

customer based on past dealings with him, so the off-duty officer escorted him

outside. Once outside, Raybon ―gestured to reach for [a gun]‖ as Taylor watched

from inside the store.     Taylor did not see the gun, but he later learned that


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Raybon was carrying a gun in the area that he had reached toward. Taylor

testified that he is ―[a]bsolutely‖ concerned for his own safety if Raybon’s bail is

reduced.

      Jake Bussey, who works at Cellular World, testified that Raybon went to

Bussey’s store to get his two cell phones fixed and, while there, told Bussey that

the situation with his phones was ―all because of [Taylor].‖ Raybon had taken a

photograph of Taylor and showed it to Bussey.

          The State introduced in evidence Raybon’s prior criminal history, which

includes five arrests and two convictions for battery/domestic violence between

1997 and 2009, and a protective order from Oklahoma based on harassing and

threatening telephone communication.         Raybon testified briefly about the

protective order; he said that it stemmed from an argument over a haircut. He

admitted that after the protective order was filed, he purchased a gun.

      The trial court took judicial notice of the probable cause affidavit for each

case. The probable cause affidavit for the attempted aggravated assault charge

states that, on January 8, 2011, Raybon went to the AT&T store and threatened

Taylor by stating, ―I’ll get my tech 9 and come back and take care of this.‖2 The

affidavit stated that, on January 28, 2011, Raybon returned to the store and was

escorted outside by an off-duty police officer who had been hired as security at

the store because of Raybon. The off-duty officer saw the butt of a handgun in

      2
       Taylor testified that Raybon never made this comment and that Taylor
never told an officer that Raybon made that comment.


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Raybon’s jacket pocket. The officer reached for the gun, and Raybon pulled

away, stating, ―I have a gun.‖ He appeared to be reaching for the gun. Another

officer arrived on the scene and helped control Raybon. The officers found a

loaded 9mm handgun on Raybon.

      The probable cause affidavit for the obstruction or retaliation charge states

that after Raybon was arrested in front of the AT&T store with a gun in his

possession, the store disconnected his cellular service.         Subsequently, on

January 31, 2011, Raybon called Lane Atkin, an employee at the AT&T store;

Raybon was very upset that his cellular service had been disconnected. Atkin

explained that the store no longer wished to do business with him, and Raybon

told Atkin, ―I’m going to the police department to get my gun back, then I’m going

to make a move to destroy your life.‖

      The probable cause affidavit for the unlawful carrying of weapons on a

licensed premise charge states that, on February 4, 2011, Raybon was arrested

at a Fast Eddy’s under a warrant for making a terroristic threat. The arresting

officer found a switchblade knife in Raybon’s jacket pocket.

      After hearing all of the testimony and reviewing Raybon’s criminal record

and the probable cause affidavits, the trial court denied the application for writ of

habeas corpus. The trial court explained that Raybon has ―a great deal of pent-

up anger‖ and that, for the safety of the victims and the public in general, the bail

amount should not be lowered.




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                              III. STANDARD OF REVIEW

      We review the trial court’s ruling on the setting of bail under an abuse of

discretion standard of review. 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 (West

2005) (giving trial court discretion to set bail amount).

      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 trial court’s action 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 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 a bail 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:


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      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)

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 Offenses and the Potential Sentences

      The nature of the offenses and the circumstances surrounding the

offenses are primary factors in determining what constitutes a reasonable bond.



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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

offenses, it is proper to consider the possible punishments.         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, Raybon is charged with three third-degree felonies. See Tex. Penal

Code Ann. §§ 22.02(b), 36.06(c), 46.02(c) (West 2011); see also id. § 15.01(d)

(West 2011). He faces a punishment of two to ten years for each offense. See

id. § 12.34 (West 2011). As we have detailed above, the circumstances of the

offenses, including the threats to the safety of the AT&T store’s employees, are

quite serious.

                             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


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

be.‖ Id.

      The record shows that the trial court declared Raybon indigent and

appointed counsel to represent him. Raybon testified that he is going through a

divorce and that he is in the middle of a bankruptcy. According to Raybon, he

and his wife have ―a couple of TVs, a new bed,‖ but everything else was sold to

cover the cost of the bankruptcy. He had purchased a Las Vegas home for

$360,000, but at the time of the hearing, it was in foreclosure. Raybon said that

he has approximately $800 in a bank account and that he had recently

purchased a car for $500 that he could sell, although he needs it to get to court.

      Raybon did not specify, either in his motion or at the hearing, an amount of

bail that he would be able to pay, nor did he present any evidence about whether

his family has any ability to help him 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 generally must show that his funds and his

family’s funds have been exhausted.‖). He did not explain what efforts, if any,

were made to make the $160,000 bail. 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).

                  C. Safety of the Victim and the Community

      Regarding the safety of the victim and the community, Taylor explained

that he is concerned for his own safety if Raybon makes bail. Taylor explained, ―I


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don’t have a doubt in my mind that he would come after me in some sense.‖ The

probable cause affidavit for obstruction or retaliation states that Akin feels that

Raybon is dangerous and has the means to carry out the threats he made.

According to the affidavit, Akin fears imminent serious bodily injury and death for

himself and other employees of his business.

                        D. Community and Family Ties

       Raybon testified that he grew up near Wichita Falls in Burkburnett. At

some point, he moved to Nevada, where he lived for at least fourteen years; he

briefly returned to Burkburnett before moving with his wife to Durant, Oklahoma

for several months in 2009. He returned to Burkburnett in 2009. His son, four

grandchildren, aunt, and uncle live in Wichita County. When asked where he

would live locally, he said he was ―thinking very seriously that [his] uncle would

let [him] stay at his place.‖ However, Raybon admitted that he had spoken with

his uncle several times while in jail and had not yet asked if he could live with

him.

                              E. Prior Convictions

       Raybon’s criminal history includes five arrests and two convictions for

battery/domestic violence between 1997 and 2009, as well as a protective order

from Oklahoma based on harassing and threatening telephone communication.

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

611 S.W.2d at 849–50.




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                            F. No Abuse of Discretion

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

nature of the offenses, Raybon’s history of violence, and the safety of the victims

and the community, we hold that Raybon has failed to demonstrate that the bail

amounts are excessive or that the trial court abused its discretion by refusing to

lower the bail amounts. 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 orders denying his applications for writs of habeas corpus.



                                                    PER CURIAM

PANEL: WALKER, MEIER, and GABRIEL, JJ.

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

DELIVERED: August 4, 2011




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