                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00181-CR



           KASSIE STEPHENSON, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 124th District Court
                 Gregg County, Texas
               Trial Court No. 40,573-B




       Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Moseley
                                      MEMORANDUM OPINION
         After Kassie Stephenson was convicted of burglary of a building, sentenced to fifteen

months’ confinement in state jail, and ordered to pay a $368.00 fine, the trial court set her bond

pending appeal at $40,000.00. When Stephenson’s attempt to have the bond lowered was

rejected, she appealed that ruling. See TEX. CODE CRIM. PROC. ANN. art. 44.04(g) (West 2006). 1

We affirm the trial court’s judgment.

         “The primary objective of the appeal bond is to secure appellant’s apprehension if [her]

conviction is subsequently affirmed.” 2 Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App.

[Panel Op.] 1981). We review a trial court’s decision setting bond pending appeal for an abuse

of discretion. Ex parte Dueitt, 529 S.W.2d 531, 532 (Tex. Crim. App. 1975); Read v. State, 959

S.W.2d 228, 229 (Tex. App.—Fort Worth 1998, no pet.). It is Stephenson’s burden to show that

the amount of bond is excessive. See Ex parte Benefield, 403 S.W.3d 240, 242 (Tex. Crim. App.

2013); Rubac, 611 S.W.2d at 849.

         Article 17.15 of the Texas Code of Criminal Procedure provides,

         The amount of bail to be required in any case is to be regulated by the court,
         judge, magistrate or officer taking the bail; they are to be governed in the exercise
         of this discretion by the Constitution and by the following rules:

1
 In cases in which the assessed punishment for a felony conviction is less than ten years, the trial court has discretion
to deny bail, revoke existing bail, or impose reasonable conditions on bail. TEX. CODE CRIM. PROC. ANN. art.
44.04(c) (West 2006). However, the trial court’s “statutory authority to deny bail pending appeal in certain cases
does not carry with it the authority to set excessive bail in such cases.” Ex parte Harris, 733 S.W.2d 712, 715 (Tex.
App.—Austin 1987, no pet.) (per curiam).
2
 The trial court’s certification confirmed that Stephenson had no right of appeal from the underlying order of
deferred adjudication. However, a motion for new trial has been filed, and a hearing has been scheduled, with
respect to the trial court’s findings that Stephenson violated the terms and conditions of her community supervision
and its resulting decision to adjudicate guilt. We note, however, that Stephenson stipulated that she violated the
terms and conditions of her community supervision.

                                                           2
               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 (West 2005).

        “In considering what constitutes reasonable bail on appeal,” “primary factors,” such as

the nature of the offense and length of the sentence, should be considered. Rubac, 611 S.W.2d at

849. Stephenson judicially confessed to having entered, with intent to commit theft, a building

located at 934 Rabbit Creek Drive in Kilgore, Texas, and owned by D. Cedillo. 3 The nature of

the offense was non-violent, and the length of the sentence imposed was fifteen months’

confinement. These facts, taken alone, suggest that a reduction of the appeal bond amount would

be appropriate.

        However, when considering the nature of the offense, we can also consider where the

offense for which she was convicted occurred. Stephenson’s mother, Linda Main, testified that

Stephenson lived with her at Rabbit Creek Circle prior to the offense and would live with her

once again if she were to be released on bond during an appeal. The trial court noted that Main’s


3
 The offense report included in the record showed that the stolen items were two window air-conditioning units, a
refrigerator, a cooking stove, electrical wiring, and a central air-conditioning unit.
                                                       3
residence “[was] in the immediate area” of the building she was convicted of having burglarized.

The future safety of the victim is a statutory factor which the court could weigh in denying a

bond reduction. TEX. CODE CRIM. PROC. ANN. art. 17.15.

       In addition to the primary factors, ability to make bond, existence of a prior criminal

record, work record, family ties, length of residency, conformity with previous bond conditions,

aggravating factors, and other outstanding bonds are also relevant factors. Rubac, 611 S.W.2d at

849–50.

       Before her conviction, Stephenson had previously and successfully been released on a

$10,000.00 bond but argues that the record demonstrates her inability to obtain and post a

$40,000.00 appeal bond. The trial court found that Stephenson was indigent. Main testified that

Stephenson had no money and owned no property that could be used as collateral to secure a

loan. A criminal defendant’s ability to make bond is “merely one factor to be considered in

determining the appropriate amount of bond” and is not controlling. Ex parte Scott, 122 S.W.3d

866, 870 (Tex. App.—Fort Worth 2003, no pet.). “[E]ven indigency, does not control the

amount of bail.” Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. [Panel Op.]

1980). “To show that [she] is unable to make bail, a defendant generally must show that [her]

funds and [her] family’s funds have been exhausted.” Milner v. State, 263 S.W.3d 146, 149

(Tex. App.—Houston [1st Dist.] 2006, no pet.).

       According to Main, a bail-bonding company she contacted would require Stephenson to

make an initial deposit of $2,300.00 as a condition for issuing such a $40,000.00 bond with the

further requirement that she follow-up that initial payment with additional monthly payments.

                                                 4
Main testified that she was disabled, that her sole income was about $470.00 per month in Social

Security disability income, and that her nephew (who lived in the home with her) was likewise

disabled and received about $840.00 per month from the same source. Main related further that

Stephenson’s other family and friends were able to supply only about $250.00 toward the

payment of an appeal bond. Main failed to testify about her own monthly expenses. She

claimed she could make a premium payment on a bond of only about $2,500.00 to $5,000.00, not

the $40,000.00 appeal bond amount set by the trial court.           Although Main testified that

Stephenson lived in the same house with Main and Main’s nephew, together with “her

grandmother and -- and my son,” the finances of neither Stephenson’s grandmother nor her

brother were discussed. Main also failed to testify whether she or any other family member

possessed collateral with which to secure a loan for the payment of bonding fees. From the

record, it is not entirely clear that Stephenson’s family’s resources have been exhausted to the

extent that the requested bond fee could not be satisfied.

       Stephenson points out that there is nothing in the record to suggest that she had a prior

criminal record. Instead, she maintains, the record shows that “[s]he’s lived here all her life” and

has family ties to the area, no aggravating factors were involved in the burglary, there is no

record of any other outstanding bonds, and counsel believed Stephenson had “made her court

appearances” and had not fled while subject to community supervision.

       However, Stevenson’s deferred adjudication community supervision was revoked after

she failed “to report to [her] designated Probation Officer . . . in person for the months of March,

April, and May, 2013,” and she signed a stipulation of evidence confirming her failure to do so.

                                                 5
The court recalled that “[t]hroughout her entire pretrial and then even on -- when she was on

probation, the defendant had a problem reporting to Pretrial Services, and then one of the issues

she got revoked on was reporting on probation.” Main testified that Stephenson’s previous

failures were due to a lack of available transportation but added that she had recently acquired an

automobile which would provide Stephenson transportation to court appearances. Stephenson

has no work history, no property in the area, and no checking or savings accounts but now has

access to an automobile. The record could lead the trial court to determine, in its discretion, that

Stephenson—now faced with a jail sentence—could be a flight risk.

       “[T]he statutes treat conditions on pre-trial bond differently from conditions on bail

pending appeal.” Ex parte Anderer, 61 S.W.3d 398, 401 (Tex. Crim. App. 2001). A condition

of bail pending appeal “must only be ‘reasonable.’” Id. at 402. Given the close proximity of

Main’s home to the location of the offense committed by Stephenson and her failure to report to

the community supervision officer despite having been ordered to do so, we conclude that

Stephenson has not met her burden to show that the trial court abused its discretion in setting a

$40,000.00 post-conviction bond.

       We affirm the trial court’s judgment.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:        September 6, 2013
Date Decided:          September 17, 2013

Do Not Publish
                                                 6
