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


                  No. 06-14-00206-CR




               EX PARTE CINQUE ROSS




         On Appeal from the 188th District Court
                 Gregg County, Texas
               Trial Court No. 43,104-A




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                   MEMORANDUM OPINION
        Cinque Ross was convicted of unlawful possession of a firearm by a felon and was

sentenced to eight years’ confinement. Ross’ previously perfected appeal of his underlying

conviction is pending in this Court, but this appeal relates to Ross’ bail pending appeal, which

was set at $100,000.00. The trial court denied Ross’ motion to reduce his bond on appeal. On

appeal, Ross argues that the trial court abused its discretion in failing to reduce the bond. We

affirm the trial court’s ruling.

        When an appeal is pending from certain felony convictions, the trial court may admit the

defendant “to reasonable bail until his conviction becomes final.” TEX. CODE CRIM. PROC. ANN.

art. 44.04(c) (West 2006). In reviewing bonds on appeal, we review the trial court’s decision

using an abuse-of-discretion standard. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.

App. 1990). We will reverse that decision only if it was made without reference to any guiding

principles, in other words, if it was arbitrary or unreasonable. Id.; Ex parte Jackson, 257 S.W.3d

520, 521 (Tex. App.—Texarkana 2008, no pet.). We will not interfere with the trial court’s

ruling as long as it is within the zone of reasonable disagreement, even if we would have reached

a different result. Montgomery, 810 S.W.2d at 391 (op. on reh’g); Jackson, 257 S.W.3d at 521.

The amount of bail required is within the discretion of the court, judge, magistrate, or officer

taking the bail, subject to the following rules:

               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.


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             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). Ross has the burden of proof to show that

the amount of bail set is excessive. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App.

[Panel Op.] 1981).

       Securing the appellant’s apprehension if his conviction is affirmed is the primary

objective of the appeal bond. Id. The primary factors we are to consider are the nature of the

offense and the length of the sentence. Id. at 849. In addition, we are to consider the accused’s

employment record, family and community ties, length of residency, prior criminal record, and

any aggravating circumstances involved in the underlying offense. Id. at 849–50; Jackson, 257

S.W.3d at 522.

       In this case, Ross argues that the trial court abused its discretion because he lacks the

financial resources to make a $100,000.00 bond and that he is not a flight risk since he has close

family and community ties and has a history of employment. The State responds that Ross has

not established that he and his family do not have the resources to be able to pay the bond

premium and that the trial court considered all of the factors required by Article 17.15 and Rubac

in setting the bond.

       Ross was the only witness at the bond reduction hearing. He testified that he has lived in

Longview most of his adult life and that his parents, son, brother, sister, and aunt also live in the
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area. He made his pretrial bond of $30,000.00, complied with its conditions, and was present at

every court appointment. Before being incarcerated, he had worked an oilfield job and thought

he would be able to resume the job if he were released on bond. He claimed he was indigent and

would have to depend on his family to raise the bond premium. He believed they would be able

to raise $2,500.00 for a bond premium.                 On cross-examination, he admitted that he had

previously been convicted of two felonies, assault on a public servant and engaging in criminal

activity, and at least one misdemeanor.

           Primarily, we consider that Ross was convicted of unlawful possession of a firearm by a

felon, a third degree felony, 1 and sentenced to eight years’ confinement. The indictment on

which he was convicted alleges he was previously convicted of assault on a public servant

August 13, 2009, just over four years from the date of his arrest in this case. At the bond

reduction hearing, the trial court took judicial notice of all prior proceedings in the case, which

would have included the sentencing hearing. It therefore took into account all of the evidence at

that hearing that led to the trial court imposing a sentence of eight years’ confinement, which is

near the maximum of the punishment range for a third degree felony. 2 Considering Ross’ prior

criminal record and that Ross was convicted of illegally possessing a firearm a few years after

being convicted of assault on a public servant, the trial court could have legitimate concerns

about the safety of the community, thereby justifying the higher bond.




1
    See TEX. PENAL CODE ANN. § 46.04(a), (e) (West 2011).
2
 An individual convicted of a third degree felony is subject to imprisonment for not less than two years and not more
than ten years. TEX. PENAL CODE ANN. § 12.34(a) (West 2011).
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        Although the ability to make bond is one of the factors to be considered, it is not

controlling and will not alone render the bond amount excessive. Clemons v. State, 220 S.W.3d

176, 178 (Tex. App.—Eastland 2007, no pet.) (citing Ex parte Charlesworth, 600 S.W.2d 316

(Tex. Crim. App. 1980)). “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.” Milner v. State, 263 S.W.3d

146, 149 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Ross testified that he was able to make

his pretrial bond of $30,000.00, but that now he is indigent and dependent on his family to raise

the money for the bond premium. Although he believed his family would be able to raise only

$2,500.00 for a bond premium, there is no evidence of the income of these other family members

that would support this belief. In addition, there was no testimony regarding whether these

family members possessed assets that could be used to secure a loan for the bond premium.

Therefore, Ross’ evidence does not bind the trial court to find that his family’s resources have

been exhausted to the extent that the bonding premium could not be met. See Stephenson v.

State, No. 06-13-00181-CR, 2013 WL 5234247, at *2 (Tex. App.—Texarkana Sept. 17, 2013, no

pet.)

        Finally, there is some evidence that Ross has close community ties, employment

opportunities and that he complied with prior bond requirements. He also testified that he is

willing to wear an ankle monitor and comply with other conditions the trial court imposed.

These factors may tend to make him less of a flight risk. Although these considerations may

favor a reduction of his bond, we cannot say the trial court abused its discretion in denying the




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bond reduction, considering Ross’ prior criminal record, the nature and circumstances of the

offense, and the length of his sentence.

       We affirm the judgment of the trial court.



                                            Josh R. Morriss III
                                            Chief Justice

Date Submitted:        February 4, 2015
Date Decided:          February 20, 2015

Do Not Publish




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