IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 3, 2004
______________________________
ANNA MARIA RODRIQUEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B13505-9908; HONORABLE ED SELF, JUDGE
_______________________________
Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
MEMORANDUM OPINIONAppellant Anna Maria Rodriquez appeals from a judgment revoking community supervision and imposing sentence pursuant to conviction for unauthorized absence from a community corrections facility. (1) We modify the judgment and affirm as modified.
In accordance with a plea bargain, appellant entered a plea of guilty to a charge of unauthorized absence from a community corrections facility. The Judge of the 242nd District Court of Hale County (the trial court), found that the evidence substantiated appellant's guilt, accepted the guilty plea, found appellant guilty, and sentenced appellant to confinement for two years, a $500 fine and court costs and attorney's fees. The confinement portion of the sentence was suspended and appellant was placed on community supervision for five years.
The State filed a motion to revoke on May 9, 2000. The motion was heard on July 3, 2000. Appellant pled true to five of the eleven grounds alleged as bases for the motion to revoke. The trial judge modified the terms of appellant's probation by requiring her to complete the Substance Abuse Felony Punishment Facility (SAFPF) program. The State filed a second motion to revoke on October 29, 2002, alleging three grounds as the bases for the motion. The motion was heard on November 19, 2002. Appellant pled true without a plea bargain to all of the grounds alleged as bases for the motion except for the ground alleging that she failed to complete her community service hours as required. The trial judge found true the allegations to which appellant pled true, found that appellant violated terms of her probation, revoked the order placing appellant on community supervision, and sentenced appellant to two years in the Texas Department of Criminal Justice, State Jail Division. Appellant timely noticed her appeal.
Counsel for appellant has filed a Motion to Withdraw and a Brief in Support thereof. In support of the motion to withdraw, counsel has certified that, in compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), the record has been diligently reviewed and that in the opinion of counsel, the record reflects no reversible error or grounds upon which a non-frivolous appeal can arguably be predicated. Counsel thus concludes that the appeal is frivolous.
Counsel has attached exhibits showing that a copy of the Anders brief and Motion to Withdraw have been forwarded to appellant, and that counsel has appropriately advised appellant of appellant's right to review the record and file a response to counsel's motion and brief. Appellant has not filed a response to counsel's motion and brief.
We have made an independent examination of the record to determine whether there are any arguable grounds for appeal, see Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L.Ed 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such grounds. We agree with appellate counsel that the appeal is without merit. In particular, we find that the evidence is legally and factually sufficient to support the trial court's revocation of appellant's community supervision. See Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App. 1979); Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. 1979); Gobell v. State, 528 S.W.2d 223, 224 (Tex.Crim.App. 1975). However, in our review we noted that the judgment states that appellant was charged by indictment. It is clear from the record that appellant waived the making of an indictment and pled guilty to an information. We conclude that this is merely a clerical error. Accordingly, we hereby modify the judgment to reflect that appellant was charged by information, and affirm the judgment as modified. Tex. R. App. P. 43.2(b);
Accordingly, counsel's Motion to Withdraw is granted. The judgment of the trial court is affirmed as modified.
Phil Johnson
Chief Justice
Do not publish.
1. Tex. Pen. Code Ann. 38.113 (Vernon 2003).
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NO. 07-09-0349-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 9, 2010
______________________________
LEONARD A. PRIEL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_______________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2009-001,159; HON. BRAD UNDERWOOD, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Leonard A. Priel appeals from the trial court=s order denying his application for writ of habeas corpus seeking a reduction in bond. He claims an abuse of the trial court=s discretion. We disagree and affirm the order.
Priel was charged with aggravated sexual assault of a child (his daughters) and bail was originally set at $75,000. He then filed an application for writ of habeas corpus seeking a reduction in bond which, after a hearing, the trial court denied.
The primary purpose of an appearance bond is to secure the presence of the accused at trial on the offense charged. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977). In setting bond, the trial court is to be guided by rules set forth in the Code of Criminal Procedure. That is, 1) bail shall be sufficiently high to give reasonable assurance that the undertaking will be met; 2) the requirement of bail is not to be used as an instrument of oppression; 3) the nature of the offense and the circumstances under which it was committed should be considered; 4) the applicant=s ability to make bail should be considered; and 5) the future safety of the victim and the community shall be considered. Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon 2005). Other factors to weigh include 1) the accused=s work record, 2) his family ties, 3) his length of residence, 4) his prior criminal record, if any, 5) his compliance with the conditions of any previous bond, 6) the existence of outstanding bonds, and 7) any aggravating circumstances alleged in the charged offense. Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex. Crim. App. 1981). The court may also consider the potential sentence and the nature of the crime. Ex parte Hunt, 138 S.W.3d 503, 506 (Tex. App.Fort Worth 2004, pet. ref=d). Finally, the defendant has the burden to establish the excessiveness of the bail set. Id. at 505-06. With those criteria in mind, we turn to the record before us.
Priel resides in California with his fiancé and her two female daughters. His parents are retired, maintain an address but no home in Livingston, Texas, live in a recreational vehicle, and travel. His children live in east Texas. The only other relative he apparently has in Texas is a sister who lives in Houston. Thus, his familial ties to Lubbock are nominal at best, or so the trial court could have reasonably concluded.
Next, the criminal proceeding from which this appeal arose was not the only one pending against appellant. In addition to being under indictment for the aggravated sexual assault of two of his children, he was previously indicted for committing the offense of injury to a child. Appellant having been indicted in both situations, it can be said that an independent body has determined that there existed articulable facts or particular evidence at least sufficient to establish probable cause to believe that he committed the offenses. One of the police reports accepted into evidence also alludes to appellant being Ainvolved with child pornography@; this may or may not be why defense counsel propounded questions to various witnesses regarding computers and their potential availability to appellant if he was to make bail.
That appellant has returned periodically to attend the hearings held as part of his prosecution for injuring a child illustrates that he will also appear to defend against the sexual assault charge, according to appellant. Yet, aggravated sexual assault of a child is a felony of the first degree, Tex. Penal Code Ann. '22.021(e) (Vernon Supp. 2009), and punishable by a prison term ranging from five years to life. Id. '12.32(a); see also Compian v. State, 7 S.W.3d 199, 200 (Tex. App.Houston [14th Dist.] 1999, no pet.) (recognizing aggravated sexual assault of a child to be a serious and violent offense and, because it is, the nature of the charge plays a significant role in determining the accused=s pre-trial bond). On the other hand, injury to a child may be anything from a state jail felony to a felony of the first degree, depending upon such criteria as the actor=s mens rea and the extent of injury inflicted.[1] See id. '22.04 (e)-(g). Thus, the term of incarceration accompanying a conviction for such an offense may be as little as a range of 180 days to two years. Id. '12.35(a). Given this potential disparity in potential terms of imprisonment, appellant may have more incentive to avoid trial for aggravated sexual assault. This, in turn, makes it somewhat difficult to say that just because appellant regularly appeared at hearings relating to the offense carrying a potentially lesser punishment, he will appear to defend against an offense that potentially carries with it far more punishment. Simply put, there may be more reason for him to flee now than before.
Next, Priel=s fiancée testified that she had spoken with one bonding company and that it represented it would be willing to assist if appellant=s bond was reduced from its current amount of $75,000 to $25,000. Whether she tried to contact other bondsmen on behalf of appellant went unmentioned. Thus, the trial court lacked basis from which to reasonably infer that no bond company would be willing to issue a bond of $75,000 for appellant. We further note that while the fiancée testified that she and appellant=s parents could raise approximately $3,000 for a bond, appellant=s father simply said that they could only Acome up with@ that sum A[a]t this present time . . . .@ (Emphasis added). The conditional language could have been of import to the trial court for it left open the possibility that additional assets for appellant=s use may be available in the future.
Of additional note is the dearth of evidence developing the extent of assets, if any, available to or owned by appellant. Apparently, he was unemployed and had no savings account or stocks or bonds. Yet, no one asked about whether he owned realty, had other investments, or had other sources of income. As for the checking account he owned with his fiancée, there was a comment about it being depleted given appellant=s trips back to Lubbock, but what amount remained in it, if any, was undisclosed. Regarding the assets of his fiancée who was apparently willing to use them for appellant, there was indication that she too was unemployed, but receiving disability payments. However, no one asked her about the amount of those payments. They could be de minimus or substantial depending upon their source (i.e. governmental or private and contractual), but in any case, the topic should have been better covered.
Also missing from the record was whether the attorneys representing appellant with regard to any of his criminal proceedings were appointed or retained. If the latter, then question would arise as to where the funds were obtained to retain them.
Simply put, the evidence regarding the funds and assets available to appellant was sparse and conclusory. None was supported by documentation. For the most part, it consisted of oral generalities uttered by individuals related or soon to be related to appellant. Given its conclusory nature and the personal relationship between appellant and those proffering it, the trial court was not obligated to accept it as true.
As for the evidence about appellant having access to a house if freed and told to stay in Lubbock, the house in question was located within walking distance of a park and elementary school. The trial judge may have deemed such a location less than ideal for someone being tried for injuring and sexually assaulting children. And, though the alleged victims of his conduct (two of his own children) do not live in Lubbock or with Priel, his fiancée=s two daughters live with him in California.
As previously mentioned, the evidence before the trial court was a mixed bag of generalities proffered by those having an interest in securing appellant=s release. As some have said, Athe devil is in the details.@ Had more detail been afforded the trial court, then the result may have been different. But, that is only speculation. Nonetheless, the severity of the crime involved, the sketchy evidence about appellant=s finances and those of the people willing to help him, and the few ties appellant had with the community prevent us from concluding that the trial court erred in refusing to reduce appellant=s bail. See Milner v. State, 263 S.W.3d 146, 149 (Tex. App.Houston [1st Dist.] 2006, no pet.) (finding no abuse of discretion where defendant was charged with murder and attempted murder even though he had satisfied the conditions of another bond since he did not have a reason to remain in the county if released, had a prior criminal record, and posed a safety risk to the community); Clemons v. State, 220 S.W.3d 176, 179 (Tex. App.Eastland 2007, no pet.) (noting the seriousness of the offense, i.e. the aggravated sexual assault of a child, as a factor in setting bail at $75,000).
Accordingly, appellant=s complaints are overruled, and the order of the trial court is affirmed.
Brian Quinn
Chief Justice
Do not publish.
[1]No one cited us to evidence indicating whether the indictment for injuring a child averred a state jail felony or a felony of the first degree. Nor did we find any such evidence.