                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                          No. 04-12-00583-CR

                                  EX PARTE Joshua ORCASITAS

                     From the 175th Judicial District Court, Bexar County, Texas
                                    Trial Court No. NM151672
                          Honorable Andrew Carruthers, 1 Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: February 20, 2013

AFFIRMED

           Appellant Joshua Orcasitas was arrested and charged with murder. His bail was initially

set at $250,000. After a hearing, his bail was reduced to $100,000. On appeal, Orcasitas asserts

the trial court abused its discretion by requiring excessive bail. We affirm the trial court’s order.

                                             BACKGROUND

           Nineteen-year-old Joshua Orcasitas was charged with murder for allegedly fatally

shooting his mother’s boyfriend. His bail was initially set at $250,000, but Orcasitas applied for

a writ of habeas corpus to reduce his bail. Through his unsworn affidavit of indigence and his

mother’s sworn affidavit, Orcasitas asserted he does not own any real property, has lived all his

life in San Antonio, all the members of his immediate family reside in or near Bexar County, and

1
 Criminal Law Magistrate Judge Andrew Carruthers conducted the hearing on the application for writ of habeas
corpus. Judge Mary Roman is the presiding judge of the 175th District Court.
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he has no connections to any other state or country. He argued that his successful completion of

deferred adjudication probation for two prior misdemeanor marijuana offenses demonstrates his

compliance with conditions and shows he is not a flight risk. He asked for a bail set at no more

than $50,000 because his family could not raise the bond fee for a higher amount. The trial court

reduced his bail to $100,000, and Orcasitas appealed.

                                 COMPLAINTS OF EXCESSIVE BAIL

        Orcasitas raises three points of error on appeal: the trial court abused its discretion by

refusing to reduce bail to $50,000; his $100,000 bail violates the Texas Constitution; and his

$100,000 bail violates the Eighth Amendment. We consider these related issues together.

A. Standard of Review

        We review a trial court’s decision that sets a bail amount for an abuse of discretion. See

Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981); Ex parte Gonzalez,

383 S.W.3d 160, 161 (Tex. App.—San Antonio 2012, pet. ref’d). We examine the record to

determine whether the trial court considered the relevant statutory and common law factors and

set a bail amount that was not excessive. See Gonzalez, 383 S.W.3d at 161–62; Montalvo v.

State, 315 S.W.3d 588, 592 (Tex. App.—Houston [1st Dist.] 2010, no pet.). The appellant has

the burden to show that the amount of bail is excessive. Rubac, 611 S.W.2d at 849; Gonzalez,

383 S.W.3d at 161.

B. Applicable Law

        Except for “capital offenses when the proof is evident,” the court must set a pretrial bail

amount that is “sufficiently high to give reasonable assurance that the [defendant will appear for

trial],” but the bail amount must not be excessive. See U.S. CONST. amend. VIII; TEX. CONST.

art. I, §§ 11, 13; TEX. CODE CRIM. PROC. ANN. arts. 1.07, 1.09, 17.15 (West 2005). In exercising

its discretion to set a bail amount, the trial court is governed by specific statutory factors:
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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. Common law factors include the nature of the offense

and the possible sentence, the defendant’s ties to the community, employment history, and prior

criminal record. See Gonzalez, 383 S.W.3d at 162; Ex parte Estrada, Nos. 04-08-00596-CR, 04-

08-00597-CR, 04-08-00598-CR, 2008 WL 4958370, at *1 (Tex. App.—San Antonio Nov. 19,

2008, no pet.). If our review shows the trial court exercised its discretion within the constraints

of the Constitution, the Texas Constitution, the statutory requirements, and the common law

factors, we will not overturn its decision. See Gonzalez, 383 S.W.3d at 161–62; Ex parte Hunt,

138 S.W.3d 503, 505 (Tex. App.—Fort Worth 2004, pet. ref’d) (citing Montgomery v. State, 810

S.W.2d 372, 379–80 (Tex. Crim. App. 1990)).

C. Analysis

       On appeal, Orcasitas asserts the trial court abused its discretion because he met his

burden to show that, for his circumstances, a $100,000 bail is excessive. He states he cannot

afford the bond fee for a $100,000 bail, and the applicable factors do not require such a high

amount.

       1. Habeas Corpus Hearing

       At the hearing on Orcasitas’s application for writ of habeas corpus, neither Orcasitas nor

the State presented live witnesses. The trial court admitted Orcasitas’s unsworn affidavit of


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indigence and his mother’s sworn affidavit.           The trial court also admitted the State’s

investigative report and Orcasitas’s criminal history data sheet documenting his prior

misdemeanor offenses. The trial court heard arguments from Orcasitas and the State on several

statutory and common law factors.

               a. Nature of Offense and Circumstances

       Orcasitas was charged with murder. The State’s evidence showed Orcasitas admitted

shooting the victim, but Orcasitas claimed he did so only after the victim attacked him.

Orcasitas’s brother’s and sister’s statements to police also indicated Orcasitas acted in self-

defense. However, an unrelated neighbor’s statement indicated that Orcasitas was not acting in

self-defense, but was the aggressor. The neighbor stated he saw Orcasitas follow the victim

across the street, fire one round at the ground near the victim’s feet, strike the victim in the head

with the handgun, and then fire a second round that struck the victim in the head.

               b. Ability to Make Bail

       In his unsworn affidavit of indigence, Orcasitas stated that he had no real property,

owned no vehicles, and had only $20 in the bank, but would retain counsel to defend himself.

His mother’s sworn affidavit averred that Orcasitas owned no real property, had only about $20

in the bank, and was presently unemployed because he was incarcerated. The State noted

Orcasitas had retained counsel and suggested his family could afford more than a $50,000 bail.

               c. Safety of the Community

       Orcasitas argued that he does not have a history of violence, he only killed the victim

because the victim was attacking him, and he poses no danger to the community. The State

rejected Orcasitas’s assertion that the victim’s death was accidental or in self-defense. It argued

that Orcasitas intentionally killed the victim and was an ongoing danger to the neighbor-witness

and to the community.
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               d. Community Ties, Employment History, Prior Criminal Record

       Orcasitas asserted he is a lifelong resident of San Antonio, all of his family members live

in Bexar County or contiguous counties, and he has no family in, or ties to, Mexico or any other

place. He claimed he has been consistently employed in Bexar County, and he complied with all

the conditions of his two prior misdemeanor drug possession probations. The State contended

that Orcasitas could not be trusted to comply with all bail conditions or refrain from committing

other offenses because when he was on probation for possession of marijuana, he reoffended

within one month of his initial offense.

       2. Bail Amount

       Having reviewed the evidence and the parties’ arguments, we consider whether the trial

court acted within its discretion when it set bail at $100,000. The evidence before the trial court

showed that Orcasitas admitted to killing the victim. The trial court knew that if Orcasitas was

convicted of murder, he faced a maximum sentence of life imprisonment and a $10,000 fine. See

TEX. PENAL CODE ANN. §§ 12.32, 19.02 (West 2011). The witness statements were consistent

that Orcasitas pulled a gun from his person while he was outside his residence in or near a public

street. See id. § 46.02 (regulating carrying handguns). There was conflicting testimony on

whether Orcasitas acted in self-defense or was the aggressor. However, it was undisputed that he

reoffended while on probation for a previous misdemeanor drug possession offense.

       Further, the trial court heard Orcasitas’s repeated assertions that he was unable to pay the

bond fee for $100,000 bail, but his inability to pay is merely a factor for the court to consider—it

is not controlling. See Ex parte Bufkin, 553 S.W.2d 116, 118 (Tex. Crim. App. 1977); Montalvo

v. State, 315 S.W.3d 588, 595 (Tex. App.—Houston [1st Dist.] 2010, no pet.). Moreover,

Orcasitas’s $100,000 bail is substantially less than bail for a single murder charge in other cases

affirmed by this court. See, e.g., Ex parte Garza, 04-02-00803-CR, 2003 WL 21750013, at *2
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(Tex. App.—San Antonio July 30, 2003, no pet.) (not designated for publication) ($150,000); Ex

parte Wilson, 04-08-00553-CR, 2009 WL 330994, at *2 (Tex. App.—San Antonio Feb. 11,

2009, no pet.) (mem. op., not designated for publication) ($200,000); Ex parte Ramirez, 04-04-

00248-CR, 2004 WL 1835962, at *2 (Tex. App.—San Antonio Aug. 18, 2004, no pet.) (mem.

op., not designated for publication) ($250,000).

       Although Orcasitas insists that his circumstances do not require a $100,000 bail to give

reasonable assurance that he will appear for trial, the decision to set a bail amount rests with the

trial court. See TEX. CODE CRIM. PROC. ANN. art. 17.15; Ex parte Rubac, 611 S.W.2d 848, 849–

50 (Tex. Crim. App. [Panel Op.] 1981). Absent our determination that the amount was excessive

or acted as an instrument of oppression, we will not disturb the trial court decision.          See

Gonzalez, 383 S.W.3d at 161–62; Ex parte Hunt, 138 S.W.3d at 505 (citing Montgomery v.

State, 810 S.W.2d 372, 379–80 (Tex. Crim. App. 1990)).

                                           CONCLUSION

       Having examined the record and the bail amounts previously sustained by this court, we

conclude that the trial court considered the relevant statutory and common law factors and set a

bail amount that was not excessive and did not act as an instrument of oppression. See Ex parte

Rubac, 611 S.W.2d at 850; Gonzalez, 383 S.W.3d at 161; Montalvo, 315 S.W.3d at 592. We

overrule each of Orcasitas’s points of error and affirm the trial court’s order.



                                                   Patricia O. Alvarez, Justice

DO NOT PUBLISH




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