Ex Parte: Ruben Antonio Ybanez

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-94-00674-CR

NO. 03-94-00675-CR

NO. 03-94-00676-CR

NO. 03-94-00677-CR





Ex Parte: Ruben Antonio Ybanez, Appellant





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NOS. 94-2109, 94-2110, 94-1070, & 94-1064

HONORABLE MICHAEL LYNCH, JUDGE PRESIDING





PER CURIAM



Appellant pleaded guilty to indictments accusing him of retaliation, possession of marihuana, and aggravated assault (two cases). The district court found him guilty of retaliation and possession of marihuana and assessed punishment at imprisonment for ten years, but suspended imposition of sentence and placed him on community supervision. The court found that the evidence substantiated appellant's guilt of the charged aggravated assaults, deferred further proceedings, and placed him on community supervision. (1) Appellant then filed petitions for writ of habeas corpus seeking a reduction in bail pending his appeal in these causes. Relief was denied and these appeals followed. Tex. R. App. P. 44.

The primary purpose of bail is to secure the presence of the defendant. Ex parte Vasquez, 558 S.W.2d 477 (Tex. Crim. App. 1977). While bail should be sufficiently high to give reasonable assurance that the undertaking will be complied with, the power to require bail is not to be used so as to make it an instrument of oppression. Id.; Tex. Code Crim. Proc. Ann. art. 17.15 (West Supp. 1992). Among the factors considered relevant in setting the amount of bail pending appeal are: the nature of the offense and the punishment assessed; the defendant's work record, family ties, and length of residence in the community; the defendant's ability to make the bail; and the defendant's conformity with previous bond conditions. Ex parte Davila, 623 S.W.2d 408 (Tex. Crim. App. 1981). The burden of proof is on the applicant to prove that bail is excessive. Ex parte Rubac, 611 S.W.2d 848 (Tex. Crim. App. 1981).

Prior to trial, bail in each of these causes was set at $25,000, where it now remains. At the hearing below, appellant testified that he cannot make bail in this amount, but did not offer evidence as to the amount of bail he could afford. Appellant has no previous convictions, has lived in Austin for seven years, and was employed prior to his arrest. Appellant testified that he has "two jobs waiting," but did not indicate what they were.

The district court explained its decision not to reduce bail as follows:



THE COURT: Right. And, therefore, with his agreement he was sentenced to a sentence that included successful completion of the Substance Abuse Treatment Program at the Institutional Division.



Now, it was the Court's opinion in assessing that punishment that before Mr. Ybanez would be a reasonable candidate to return to the street without endangering the safety of the victim in this case or the community in general he very seriously needed that treatment in that time. So . . . together with looking at the safety of the victim and the community in light of the serious nature of these offenses, that include grabbing the victim and forcing her to write notes saying she'd drop the charges against him, the violent nature of the retaliation in this case, the Court feels that a $25,000 bond in each case is still appropriate.



I just believe that what we did at the time of sentencing was the minimum necessary to insure the safety of the community and this victim, and without that kind of treatment, the Court's not willing to find that these bonds are excessive given the situation as it presently exists.





Appellant argues that the district court should have ordered his conditional release pursuant to article 44.041. Tex. Code Crim. Proc. Ann. art. 44.041 (West Supp. 1995). A defendant is entitled to release pursuant to this statute only if the court determines that such release is reasonable given the circumstances. It is obvious from the court's remarks that it did not consider conditional release to be reasonable in these causes.

On this record, appellant has not met his burden of proving that the present bail is excessive. The orders of the district court are affirmed.



Before Justices Powers, Kidd and B. A. Smith

Affirmed on All Causes

Filed: August 23, 1995

Do Not Publish

1. The judgments of conviction and orders deferring adjudication were affirmed by this Court and appellant is now seeking discretionary review in the Court of Criminal Appeals. Ybanez v. State, Nos. 03-94-00470-CR, 03-94-00471-CR, 03-94-00508-CR, 03-94-00509-CR (Tex. App.--Austin June 7, 1995, pet. filed) (not designated for publication).