                                Fourth Court of Appeals
                                       San Antonio, Texas
                                   MEMORANDUM OPINION
            Nos. 04-13-00715-CR, 04-13-00716-CR, 04-13-00717-CR & 04-13-00718-CR

                                   EX PARTE Rogelio RINCON Jr.

                     From the 379th Judicial District Court, Bexar County, Texas
              Trial Court Nos. 2012CR2442, 2012CR2443, 2012CR2444 & 2012CR2445
                               Honorable Ron Rangel, 1 Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: May 28, 2014

AFFIRMED

           Rogelio Rincon Jr. stands indicted for the deaths and injuries sustained by four persons in

a January 2012 wrong-way, head-on traffic collision in San Antonio, Texas. The State alleges that

the collision was caused by Rincon’s driving while intoxicated and other reckless actions. The

State charged Rincon in four separate causes, one per victim. In February 2013, Rincon applied

for habeas corpus relief in all four causes, complaining that the pretrial bail set in those causes was

excessive and seeking a reduction in bail “to a reasonable amount.” See TEX. CODE CRIM. PROC.

art. 11.24 (West 2005) (providing that a defendant may challenge the excessiveness of his bail via



1
 The underlying causes in this case are pending in the 379th Judicial District Court, in which the Honorable Ron
Rangel is the presiding judge. Judge Rangel referred Rincon’s habeas applications to the Honorable Andrew
Carruthers, Criminal Magistrate Judge, who conducted the evidentiary hearings on the applications and signed the
orders denying relief.
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habeas corpus). The trial court held a hearing in September 2013 and denied Rincon’s requested

bail reductions. We affirm the trial court’s orders.

                                            DISCUSSION

       The primary purpose of setting pretrial bail should be to secure Rincon’s presence at trial.

See Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. [Panel Op.] 1980). The amount

of bail necessary to achieve that purpose is committed to the trial court’s sound discretion, although

its discretion is bounded and guided by constitutional and statutory provisions. Ex parte Estrada,

398 S.W.3d 723, 724 (Tex. App.—San Antonio 2008, no pet.). The federal constitution, our state

constitution, and our state laws prohibit “excessive” bail. U.S. CONST. amend. VIII; TEX. CONST.

art. I, § 13; TEX. CODE CRIM. PROC. ANN. art. 1.09 (West 2005). Article 17.15 of the Texas Code

of Criminal Procedure provides that “bail shall be sufficiently high to give reasonable assurance

that the undertaking will be complied with”; however, “[t]he power to require bail is not to be so

used as to make it an instrument of oppression.” TEX. CODE CRIM. PROC. art. 17.15 (1), (2) (West

2005). Although Rincon’s ability to make bail must be considered, it is not a controlling

consideration. See id. art. 17.15 (4); Ex parte Rodriguez, 595 S.W.2d at 550. The Code also

requires the trial court to consider the nature of Rincon’s offenses and the circumstances under

which he allegedly committed them and the future safety of the community if Rincon is released

on bail. See TEX. CODE CRIM. PROC. art. 17.15 (3), (5). Apart from these statutory considerations,

the trial court could also consider Rincon’s links to the community, including his family ties,

employment history, prior criminal record, the existence of other bonds against him, and his

compliance with the conditions of those bonds. See Ex parte Estrada, 398 S.W.3d at 724.

       At the time Rincon filed his habeas applications, the combined bail set in these causes was

$275,000. In cause number 2012CR2442, Rincon is charged with felony murder, intoxication

manslaughter, and manslaughter of one victim, and his bail in that cause is set at $100,000. Rincon
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faces the same charges against a different victim in cause number 2012CR2445, and his bail in

that cause is set at $75,000. In cause numbers 2012CR2443 and 2012CR2444 Rincon is charged

with intoxication assault and aggravated assault against two other victims, and bail in each cause

is set at $50,000. Rincon bears the burden of proof to show that the bail set in these causes is

excessive and that the trial court abused its discretion in not lowering the set amounts. See Ex parte

Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. [Panel Op.] 1981).

        Rincon’s mother was the sole witness at the habeas hearing. She testified that the bail

bondsmen with whom she had spoken would require the payment of a bail bond fee of $27,500

before they would post the full amount of Rincon’s bail. Although she did not directly testify about

Rincon’s assets, she did testify that he had been unable to pay the required bail bond fee since he

had been in jail.

        She testified that she lives in the area, owns two homes in Bexar County, and has only

$1,000 total in her bank accounts. Each house is valued at about $100,000, 2 and she testified that

she is attempting to sell both of the houses. She testified that she would not be able to sell one until

next year and that the other house was difficult to sell because she has to get her husband’s

signature and he lives in Mexico. She testified that Rincon and her husband (Rincon’s father) have

a good relationship. She also testified that Rincon’s two brothers and sister also live in the area,

but that they do not have the financial means to help post Rincon’s bail.

        She testified that the day of the collision was Rincon’s birthday and that he had been

drinking prior to the collision. She testified that Rincon had previously been to prison three times

and that his most recent incarceration was for felony DWI.




2
 Rincon’s mother testified that the value of one of the houses was $100,000 and that the value of both homes together
was between $200,000 and $250,000.

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       The only evidence presented by the State was a report from one of the officers who

responded to the traffic collision. His report reflects that the collision happened around three

o’clock in the afternoon and that beer cans were strewn about the interior of Rincon’s vehicle.

       At the conclusion of the hearing, Rincon argued that the bail was excessive because his

family would be required to sell everything they own to pay the bondsman’s fee and emphasized

that Rincon had been in jail for over eighteenth months because he could not make bail. The State

argued that Rincon’s status as a habitual offender, the circumstances of Rincon’s alleged offenses,

and Rincon’s relationship with his father in Mexico weighed against any bond reduction. The trial

court denied Rincon bond reductions in any amount in all four causes, stating the amounts were

“set appropriately considering that the defendant is indicted as an habitual offender in each of the

four cases.”

       On appeal, Rincon argues that the trial court’s articulated reason for denying bail

reductions suggests that the trial court failed to give sufficient consideration to the factors that

favor reducing bail. He argues that his demonstrated inability to make bail for over eighteen

months shows that the bail amounts set have become instruments of oppression. He also argues

that there is no evidence that he is a flight risk or has ties beyond the San Antonio area. Finally, he

complains that the trial court did not consider imposing any conditions of release on bail as part of

its bail-reduction ruling, although he concedes that he did not request the trial court to consider

any conditions.

       To support the trial court’s ruling, the State emphasizes that Rincon has ties to Mexico

through his father, that Rincon has a criminal history including felony DWI, two people died in

the collision, and that Rincon has been charged as a habitual offender. The State also emphasizes

that Rincon presented no evidence regarding his work record, his community ties, the length of his

residency, or his compliance with conditions of any previous bonds.
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        Based on the record and arguments before the trial court, we cannot say that it abused its

discretion in denying reductions in the bail amounts set in Rincon’s four separate causes. As

Rincon himself admits, his criminal history and the nature and circumstances of his offense weigh

against a bail reduction. Rincon’s previous DWI felony conviction shows that he has either

previously been convicted of (1) intoxication manslaughter or (2) of two separate DWIs. See TEX.

PENAL CODE ANN. § 49.04(b); 49.09(b)(2) (West Supp. 2013). Despite his previous felony DWI

conviction, there is evidence to suggest that Rincon had been drinking on the day of the collision

and that by virtue of his drinking he caused a deadly traffic collision around three o’clock in the

afternoon. The trial court could have reasonably concluded that Rincon posed a danger to the

community based on his history of drunk driving and considered that a compelling factor in setting

his bail.

        In addition, all four of the indictments against Rincon contain enhancement paragraphs

based on his prior felony DWI conviction and another conviction, making him eligible for

enhanced punishments so that he was subject to first-degree felony punishment in all the causes.

See TEX. PENAL CODE ANN. § 12.42 (West Supp. 2013) (prescribing enhanced punishments for

habitual offenders). The severe punishment ranges Rincon may be subjected to weighs in favor of

the trial court’s decision to not reduce Rincon’s bail. See Ex parte Ivey, 594 S.W.2d 98, 99 (Tex.

Crim. App. [Panel Op.] 1980) (“The nature of the offense and the circumstances of its commission

should be considered, and this necessarily involves the punishment authorized by law.”).

        Rincon’s inability to make bail for over eighteen months is a factor to be considered;

however, it is not the determinative factor. The primary purpose of bail is to ensure the accused

appears for trial. A lower bail may pose the risk that if Rincon posts bond, he will fail to appear

for a trial where he is accused of causing the deaths of two persons and severe bodily injury to two

more. In connection with this point, we agree with the State that Rincon’s connection to his father
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in Mexico was a relevant consideration in determining whether Rincon would be less likely to

appear for trial. See Ex parte Gonzalez, 383 S.W.3d 160, 166 (Tex. App.—San Antonio 2012, pet.

ref’d). The lack of evidence regarding Rincon’s work employment history and ties to the San

Antonio community, which was his burden to produce, only further underscores that point.

See Ex parte Leonides, No. 03-01-00641-CR, 2002 WL 189057, at *2 (Tex. App.—Austin Feb. 7,

2002, no pet.) (mem. op., not designated for publication).

       The Austin court of appeals has upheld a bail of $175,000 as reasonable for a single count

of intoxication manslaughter. Id. The defendant in Leonides argued to the appellate court that his

bail should be reduced because of his inability to make bail and because the trial court gave undue

weight to the community safety component. Id. The court held “[b]alancing the paucity of proof

regarding ties with the community against the nature and seriousness of the offense along with the

community safety concerns, we conclude that the trial court adequately weighed the relevant

considerations.” Id.

       We do not see any evidence that the trial court in this case only gave weight to a single

consideration, as Rincon claims. Instead, like the Austin court, we think that several

considerations—including community-safety concerns, the nature of the offenses alleged against

Rincon, the lack of evidence showing strong ties to the community, and the evidence showing ties

to a foreign jurisdiction—support the trial court’s decision to deny Rincon any reductions in his

bail and thus we conclude the trial court adequately weighed the competing considerations. The

trial court’s decision to set Rincon’s bail at $100,000 and $75,000 in the two causes dealing with

deaths is reasonable, considering that the similarly situated Leonides’s bail was set at $175,000 for

a single fatality. See Ex parte Estrada, 398 S.W.3d at 727 (considering the bail amounts approved

by other courts of appeals in similar cases to determine whether bail was excessive). Likewise, a

bail bond amount of $50,000 for each assaultive offense is reasonable.
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       Rincon argues that the trial court should have considered imposing pretrial bail conditions,

which would justify lowering the amount of pretrial bail. Rincon concedes that he did not request

the trial court to impose any pretrial bail conditions in his habeas applications or at the hearing,

and he has cited no authority requiring the trial court to sua sponte consider imposing pretrial bail

conditions when the defendant has only requested “reasonable” bail in his habeas applications.

Because Rincon did not request that the trial court impose any conditions and thus the issue was

not brought to the trial court’s attention, we decline to hold it abused its discretion in not

considering whether imposing pretrial bail conditions would justify a lower pretrial bail.

       In light of the facts and arguments before the trial court, we cannot say that the bail

currently set in the four causes is excessive or that the trial court abused its discretion in denying

Rincon’s requested bail reductions. We affirm the trial court’s orders denying bail reductions in

these four causes.

                                                  Luz Elena D. Chapa, Justice

Do Not Publish




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