Opinion issued February 21, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00048-CR
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BRANDON EUGENE WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th Judicial District Court
Harris County, Texas
Trial Court Case No. 1372430
MEMORANDUM OPINION
This is an interlocutory appeal from a bail proceeding. See TEX. R. APP. P.
31. Appellant Brandon Wilson has been charged with possession with intent to
deliver a controlled substance, fraudulent transfer of a motor vehicle, theft, and
burglary of a habitation. See TEX. PENAL CODE ANN. §§ 30.02(a), 31.03, 32.34
(West 2011); TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2008). His
pretrial bond was set at $140,000 in aggregate, with $100,000 set as bail for his
drug possession charge. He filed a motion to reduce bail, which was denied by the
trial court. Wilson appeals from the order denying his motion. See TEX. R. APP. P.
31. We affirm.
Background
Wilson was arrested in July 2010 and charged with burglary of a habitation.
The State alleged that on or about July 19, 2010, Wilson “did then and there
unlawfully, with intent to commit an assault, enter a habitation owned by” another
and “he used and exhibited a deadly weapon, namely, a FIREARM, during the
commission of said offense.” The case was assigned to the 178th District Court,
and bail was set at $30,000. Wilson spent several months in custody until his
family was able to obtain sufficient funds to enable him to post bond. After he
posted bond, Wilson was released.
On February 29, 2012, while still free on bond for the burglary charge,
Wilson was arrested and charged with possession with intent to deliver a controlled
substance. The State alleged that on or about February 29, 2012, he “did then and
there unlawfully, knowingly possess with intent to deliver a controlled substance,
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namely, COCAINE, weighing more than 4 grams and less than 200 grams by
aggregate weight.”
In addition to the drug charge, Wilson was arrested in connection with
outstanding warrants for charges pending against him for the theft and fraudulent
transfer of a motor vehicle. The State alleged that Wilson did, on or about January
16, 2012, “unlawfully, appropriate by acquiring and exercising control over
property, namely, A MOTOR VEHICLE, owned by [Complainant] of the value of
over twenty thousand dollars and under one hundred thousand dollars, with intent
to deprive the Complainant of the property.” The State further alleged that then
Wilson did “unlawfully accept possession of a motor vehicle from [Complainant],
with a value of less than twenty thousand dollars, knowing that the vehicle was
subject to a security interest and lien, and then transferred the vehicle to third party
without firsts [sic] obtaining written authorization from the vehicle’s secured
creditor and lien holder.”
All of these new charges were assigned to the 178th District Court. Initially,
no bail was set in the theft and fraudulent transfer cases, but bail was set at $20,000
in the drug possession case. Bail was subsequently set at $5,000 in the each of the
theft and fraudulent transfer cases, and the bail in the possession case was raised to
$100,000. In sum, Wilson’s cumulative bail for the four pending charges is now
set at $140,000.
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On November 16, 2012, Wilson filed an original application for a writ of
habeas corpus in the trial court. In his application, he alleged that he is a resident
of Harris County, Texas, and that he and all his family members reside in and
around Houston. He alleged that they would attest that he is not a flight risk. He
claims that he is unable to post bond for the $140,000 bail amount, and he remains
incarcerated in the Harris County jail.
On January 4, 2013, the trial court held a hearing on Wilson’s application.
Wilson presented one witness—his mother, Linda Marshall. She testified that their
family had difficulty in collecting the $3,000 they had used to post bond for his
initial burglary charge. She further testified that Wilson has no savings, bank
accounts, stocks, bonds, or real estate. His only personal property is an inoperative
car valued at approximately $500. When he was released on bail previously,
Wilson worked and was able to pay his own living expenses. His mother testified
that the family could possibly assemble, at most, $3,000 more, which would be
sufficient to post a bond covering an additional $30,000 in bail. She believed that
the bond company would reinstate his original bond for the burglary case, so
Wilson could post bond if the bail for the three charges of theft, fraudulent transfer,
and possession of cocaine was no more than $30,000.
Wilson also presented evidence in an attempt to establish that he would have
a credible defense to each of the charges against him. Regarding the burglary
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charge from 2010, he presented his cousin’s sworn statement that Wilson was
watching her children on the day of the burglary. The man charged with
committing the burglary with Wilson, who pleaded guilty to the crime, stated that
Wilson did not accompany him during the burglary and that he did not see Wilson
on the day in question.
Regarding the theft and fraudulent transfer of a vehicle charges, Wilson’s
mother testified that he had not stolen the car in question. Instead, Wilson had
rented the car to go on a family trip to Mississippi. His mother testified that she
saw Wilson return the car to the rental company’s parking lot. A receipt for the car
rental showing that Wilson had paid for and returned the car was introduced as an
exhibit. Wilson also introduced the offense report for the incident. In it, the man
who bought the fraudulently transferred car failed to identify Wilson in a photo
array as the person who sold him the car.
With respect to the cocaine charge, Wilson contends that he has an illegal-
search defense because the police had “no reason” for pulling over the car which
he was driving. Wilson offered a statement of the car’s passenger to support this
contention, and his mother testified there was no stop sign at the intersection where
he was pulled over, although the police officer stated that he stopped the car
because it passed a stop sign without stopping.
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The State argued that Wilson’s bail amount was proper because he had
committed three new offenses while released on bond for the burglary charge. The
mother’s story that she had seen Wilson return the car was called into question
because employees of the rental company attested that the car was not returned.
The State also referred to a voluntary statement by a witness, Bradley Rhodes, who
stated that he had worked with Wilson to steal and fraudulently transfer the car.
Another witness corroborated Rhodes’s statement that Wilson was involved in the
fraudulent transfer. Based on these factors, the State argued that Wilson is a
danger to society and requested that the bail remain the same for the safety of the
community.
Wilson’s counsel requested that bail for the drug charge be reduced from
$100,000 to $20,000. The trial court denied habeas corpus relief and the request to
reduce bail. The court continued to set bail at $100,000 for the drug charge in the
interest of protecting the public safety from further criminal actions. Wilson filed
notice of appeal on the same day.
Analysis
The Eighth Amendment to the United States Constitution provides that
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. CONST. amend. VIII; Schilb v. Kuebel, 404
U.S. 357, 365, 92 S. Ct. 479, 484 (1971) (applying Eighth Amendment prohibition
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of excessive bail to the States). Likewise, the Bill of Rights contained within the
Texas Constitution provides that “[a]ll prisoners shall be bailable by sufficient
sureties, unless for capital offenses, when the proof is evident; but this provision
shall not be so construed as to prevent bail after indictment found upon
examination of the evidence, in such manner as may be prescribed by law.” TEX.
CONST. art. I, § 11. The Texas Bill of Rights further specifies that “Excessive bail
shall not be required . . . .” Id., art. I, § 13.
The standard for reviewing whether excessive bail has been set is whether
the trial court abused its discretion. See Ex parte Rubac, 611 S.W.2d 848, 849–50
(Tex. Crim. App. 1981) (reviewing bail pending appeal for abuse of discretion);
Cooley v. State, 232 S.W.3d 228, 233 (Tex. App.—Houston [1st Dist.] 2007, no
pet.); Montalvo v. State, 315 S.W.3d 588, 592 (Tex. App.—Houston [1st Dist.]
2010, no pet.). In the exercise of its discretion, a trial court should consider the
following factors in setting a defendant’s bail before trial:
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.
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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); see Ludwig v. State, 812
S.W.2d 323, 324 (Tex. Crim. App. 1991); Montalvo, 315 S.W.3d at 592. A
defendant carries the burden of proof to establish that bail is excessive. Ex parte
Rubac, 611 S.W.2d at 849; In re Hulin, 31 S.W.3d 754, 759 (Tex. App.—Houston
[1st Dist.] 2000, no pet.). In reviewing a trial court’s ruling for an abuse of
discretion, an appellate court will not intercede as long as the trial court’s ruling is
at least within the zone of reasonable disagreement. Cooley, 232 S.W.3d at 234;
Ex parte Beard, 92 S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref’d) (citing
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)). We
acknowledge, however, that an abuse-of-discretion review in this context requires
more of the appellate court than simply deciding that the trial court did not rule
arbitrarily or capriciously. Cooley, 232 S.W.3d at 234. The appellate court must
instead measure the trial court’s ruling against the relevant criteria by which the
ruling was made. Id.
The primary purpose for setting bail is to secure the presence of the
defendant in court at his trial. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim.
App. 1977); Golden v. State, 288 S.W.3d 516, 519 (Tex. App.—Houston [1st
Dist.] 2009, pet. ref’d). The amount of bail should be set sufficiently high to give
reasonable assurance that the accused will comply with the undertaking, but should
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not be set so high as to be an instrument of oppression. Ex parte Bufkin, 553
S.W.2d 116, 118 (Tex. Crim. App. 1977); Montalvo, 315 S.W.3d at 596. Courts
should also consider the defendant’s work record, family ties, residency, criminal
record, conformity with previous bond conditions and aggravating factors involved
in the offense. See Ex parte Rubac, 611 S.W.2d at 849–50; Montalvo, 315 S.W.3d
at 596.
I. Sufficiency of bail
Because Wilson is complaining that bail of $140,000 is excessive, and as the
State asked the trial court to continue to set bail at that amount, there is no dispute
that the bail set by the trial court is sufficiently high to give reasonable assurance
that Wilson would comply with the undertaking of appearing in court as required
in the future.
II. Nature and circumstances of the offense
Wilson has been charged with a second-degree felony count of possession of
more than four grams but less than 200 grams of a controlled substance. See TEX.
HEALTH & SAFETY CODE ANN. § 481.115(d). Additionally, Wilson has been
charged with a first-degree felony count of burglary of a habitation, see TEX.
PENAL CODE ANN. § 30.02(d), a third-degree felony count of theft of property of a
value of over $20,000 and under $100,000, see id. § 31.03(e)(5), and a state-jail
felony count of fraudulent transfer of a motor vehicle with a value of less than
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$20,000. See id. § 32.34(f)(1). Our consideration of the nature and circumstances
of the offense requires that we take note of the range of punishment permitted by
law in the event of a conviction. See, e.g., Ex parte Rodriguez, 595 S.W.2d 549,
550 (Tex. Crim. App. 1980); Ex parte Reyes, 4 S.W.3d 353, 355 (Tex. App.—
Houston [1st Dist.] 1999, no pet.). The punishment for unlawful possession of a
controlled substance weighing more than four grams but less than 200 grams
ranges from 2 to 20 years in prison, and a fine not to exceed $10,000. TEX. PENAL
CODE ANN. § 12.33 (West 2011). In this case, the potential unenhanced
punishment for burglary of a habitation ranges from 5 to 99 years or life in prison.
Id. § 12.32. The punishment for theft ranges from 2 to 10 years in prison, and the
punishment for the fraudulent transfer of a motor vehicle ranges from 6 months to
2 years. Id. §§ 12.34, 12.35. With the exception of the theft and fraudulent
transfer charges, which arise out of the same criminal episode, the trial court would
have discretion to order these sentences to run either consecutively or concurrently.
See TEX. CODE CRIM. PROC. ANN. art. 42.08 (West Supp. 2012); TEX. PENAL CODE
ANN. § 3.03 (West Supp. 2012) (requiring concurrent sentence when offense arise
from same episode prosecuted in single action).
We have reversed bail amounts of $100,000 or more in cases in which the
amount of drugs allegedly possessed is small and there is no evidence that the
defendant poses a flight risk. In Golden v. State, this court reduced a bail amount
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of $200,000 for each of two drug possession charges, an aggregate amount of
$400,000, to $75,000 for the second-degree felony charge and $50,000 for the
third-degree felony possession charge. Golden, 288 S.W.3d at 521. The amount
of drugs for the second-degree felony charge in Golden was between 4 grams and
200 grams, far less than the multiple-kilogram amounts of cocaine that had
justified high bail in other cases. Id. at 520 (distinguishing Ex parte Ruiz, 129
S.W.3d 751 (Tex. App.—Houston [1st Dist.] 2004, no pet.), and Ex parte Willman,
695 S.W.2d 752 (Tex. App.—Houston [1st Dist.] 1985, no writ)). The court in
Golden also noted that while possession of large amounts cocaine in excess of 400
grams would weigh in favor of high bail because of the effects such a large amount
of drugs would have on the community, a charge for a low quantity of drugs
without the involvement of a weapon or violence weighs against setting a high bail
amount. Id. at 519 (citing Maldonado v. State, 999 S.W.2d 91, 97 (Tex. App.—
Houston [14th Dist.] 1999, pet. ref’d)). Unlike other cases with high bail, the State
had not presented any evidence in Golden that the defendant was not a U.S. citizen
or posed any flight risk. Id. at 520.
Wilson, like the defendant in Golden, was charged with possession between
4 grams and 200 grams of illegal narcotics. See id. at 520. Wilson’s attorney
argues that the amount of drugs is likely to not weigh much more than four grams,
but the evidence for that inference is not included in the record. Wilson’s drug
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charge is not alleged to have involved a weapon. And Wilson is not alleged to be a
foreign national, to pose a flight risk, or to have been involved in an organized
smuggling operation.
But unlike the defendant in Golden, Wilson was charged with new offenses
while released on bail. Under the bail schedule established by the district judges of
Harris County, which this court has considered in the past in reviewing bail
determinations for Harris County defendants, see, e.g., Ex parte Borgia, 56 S.W.3d
835, 838 (Tex. App.—Houston [1st Dist.] 2001, no pet.), the standard amount of
bail for a defendant already released on bail for any felony charge is specified as
“no bond.” See District Court Bail Schedule, Harris County Administrative
Offices of the District Courts (effective Jan. 1, 2007),
http://www.justex.net/BailBondSchedule.aspx. When Wilson was charged with
possession of illegal narcotics, he already had been released on bail for the first-
degree felony charge of burglary of a habitation. According to the schedule, the
trial court could have set bail as “no bond” and Wilson thereby would have been
prevented from making bail at all. Instead, the trial court set bail for the drug
charge at $100,000, which was more advantageous than the standard bail schedule
insofar as it allowed Wilson the opportunity to make bail. In sum, the fact that
Wilson was already free on bail at the time of the newly alleged offenses is a
circumstance which weighs against the reduction of bail.
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Wilson also argues that he has a potentially valid illegal-search defense to
his possession charge, which should be a factor favoring the reduction of bail.
According to Wilson, the police officer who stopped him said that he did so
because Wilson had failed to stop at a stop sign. Wilson’s mother testified that she
knew of the intersection at which Wilson was stopped, and that there was no stop
sign there. A passenger who was in the car stated in a sworn statement that the
police pulled over Wilson “for no reason.” To the extent that he relies on this
evidence to support a defense that his car was illegally searched in violation of the
Fourth Amendment, however, Wilson has not shown that he has filed a motion to
suppress or otherwise raised his defense in court, where it could be tested. Nor did
he present any evidence from the police officer about the search. Accordingly,
Wilson presents only one-sided, self-serving arguments that the prosecution has
not had the opportunity to contest. We therefore do not consider this purported
defense as a circumstance that should decrease bail for his drug charge.
With respect to the other charges against him, Wilson generally complains
about the aggregate amount of bail, but he fails to present specific arguments that
the amount of bail set for the other charges is excessive. Wilson requests that his
bail be reduced from $140,000 in aggregate to $60,000, or, in other words, a
reduction in bail for his possession charge from $100,000 to $20,000. This is the
amount he believes he can afford, because he can have the $30,000 bond for his
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burglary charge reinstated by the bondsman and he can post a new bond for up to
$30,000 more. To the limited extent that he challenges the bail for his other
charges, we consider that Wilson denies his involvement in the burglary and rental
car theft and fraudulent transfer. He presented statements from the man convicted
of the burglary, saying that Wilson was not involved, and his mother, saying that
she saw him return the car in question. The State did not address his burglary
contentions but indicated that there were two other witnesses who confirm
Wilson’s involvement in those crimes, contrary to his witnesses.
III. Future safety of complainants and the community
Wilson has not directly addressed the future safety of the complainants.
There was no evidence at the hearing on Wilson’s application to suggest whether
he presents any threat to the complainants in the case.
The future safety of the community, however, evidently was a paramount
consideration in assessing bail. The State argued that Wilson posed such a danger
because he was charged with three additional offenses when he was released on
bail. The trial judge orally stated at the conclusion of the hearing that he was
denying the request to reduce bail “in [the] interest of protecting the public safety
and ensuring defendant’s attendance in court and protecting the public from further
criminal actions.” The trial court may consider that the defendant continued to
commit crimes while released on bail as a continuing danger to the public. Ex
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parte Jackson, No. 14-10-00979-CR, 2011 WL 166933, at *5 (Tex. App.—
Houston [14th Dist.] Jan. 13, 2011, no pet.); see also Patterson v. State, 841
S.W.2d 534, 535–36 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d)
(considering the entire record, including the fact that defendant charged while on
bond for two other crimes, in affirming $150,000 bail for possession of 1.2 kg of
cocaine). Considering the number of offenses and the deadly weapon allegation in
the burglary charge, this factor favored a high amount of bail to ensure the safety
of the community as a whole. See Ex parte Jackson, 2011 WL 166933 at *5; see
also TEX. CODE CRIM. PROC. ANN. art. 17.40 (West Supp. 2012) (permitting
consideration of public safety in imposing a condition on pre-trial bail); Ex parte
Anderer, 61 S.W.3d 398, 406 (Tex. Crim. App. 2001).
IV. Ability to make bail
The Code of Criminal Procedure requires the trial court to consider the
defendant’s ability to make bail. TEX. CODE CRIM. PROC. ANN. art. 17.15(4).
Wilson’s mother testified that his family did not have the resources available to
post a bond for any additional amount greater than $30,000. His mother testified
that she believed the prior $30,000 bond for the burglary charge could be
reinstated, but at most the family could raise $3,000 for an additional $30,000
bond. She is unemployed and the family could raise only $3,000 if they sold
property and pooled their money. She testified to the amount of cash and other
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property that Wilson owned, a car with a value of approximately $500.
Additionally, Wilson has spent more than 60 days in jail, unable to secure a bond
for his release. The State did not challenge Wilson’s inability to post a bond. All
of these factors suggest that Wilson has made a necessary demonstration of his
inability to make bail. See Milner v. State, 263 S.W.3d 146, 149 (Tex. App.—
Houston [1st Dist.] 2006, no pet.) (“To show that he is unable to make bail, a
defendant must show that his funds and his family’s funds have been exhausted.”);
see also Ex parte Dueitt, 529 S.W.2d 531, 532–33 (Tex. Crim. App. 1975)
(concluding that defendant was unable to make bail amount based on the
“indications” of defendant’s employer and father-in-law that the defendant and his
family were unable to make bail amount).
Nevertheless, the Court of Criminal Appeals has emphasized that ability or
inability to make bail does not, alone, control in determining the amount. See Ex
parte Rodriguez, 595 S.W.2d at 550; Ex parte Bufkin, 553 S.W.2d at 118. The
evidence of Wilson’s ability to make bail of no more than $60,000, i.e. no more
than $20,000 for the cocaine charge in addition to the other amounts, is a factor
favoring the reduction of bail, but that factor did not require the trial court to set
bail at an amount that Wilson could satisfy.
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V. Whether bail is being used as an instrument of oppression
Beyond arguing in his motion that bail was “excessive,” Wilson presented
no argument that bail is being used as an instrument of oppression in this case.
Initially, the two motor vehicle charges were set at “no bond,” while bail for the
drug charge was set at $20,000. In a handwritten alteration, the motor vehicle
charges were reduced to $5,000 bail each, while the possession charge was
increased to $100,000. These alterations allowed Wilson the possibility to make
bail when he previously would have had none. Our independent review of the
record does not suggest that the trial court deliberately set bail at an excessively
high level solely to prevent Wilson from posting bail.
VI. Other factors
Other factors to be considered in determining whether bail is excessive
include the defendant’s work record, family ties, residency, criminal record,
conformity with previous bond conditions and aggravating factors involved in the
offense. See Montalvo, 315 S.W.3d at 596. Wilson and his family reside in Harris
County, and he worked in the area when released on bail. His mother testified that
he had always appeared in court for the burglary charge. There also was no
evidence that Wilson has been convicted of any past crimes. On the other hand,
his burglary charge from 2010 was aggravated by a deadly weapon allegation, and
the additional offenses that he has allegedly committed while released on bail, if
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true, would violate his previous bond conditions. The State adduced some
evidence to show that he committed these offenses, which the trial court could
have credited in determining that Wilson was not compliant with the conditions of
bail when he previously had been afforded it.
Conclusion
In light of the foregoing analysis, we conclude that the trial court did not
abuse its discretion in setting bail at $140,000 for the charges against Wilson, and
specifically in setting bail at $100,000 for his possession of cocaine charge. That
amount is not clearly excessive in light of the number of offenses alleged while
Wilson was on bond pending resolution of other criminal charges. See Davis v.
State, 71 S.W.3d 844, 846 (Tex. App.—Texarkana 2002, no pet.) (affirming
$100,000 appeal bail amount for defendant who was arrested for possession of
cocaine and marijuana and criminal trespass while released on bail, although he
proved he was unable to make bail for that amount and his crimes were
nonviolent); see also Ex parte McLendon, 356 S.W.3d 541, 543 (Tex. App.—
Texarkana 2011, no pet.) (affirming $50,000 bail amount for state-jail felony of
possession of less than one gram of methamphetamines as within trial court’s
discretion based on flight risk and defendant testing positive for amphetamines
during pendency of case); In re Durst, 148 S.W.3d 496, 499 (Tex. App.—Houston
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[14th Dist.] 2005, no pet.) (noting that the bail amount for third-degree felonies
ranges up to $100,000 when aggravating factors are present).
Wilson established some factors that could justify a lower amount of bail,
such as the relatively low quantity of drugs he is alleged to have possessed and his
and his family’s limited funds available to post a bond. However, the trial court
validly could have concluded that Wilson posed a danger to the community based
on the evidence suggesting that he committed more crimes while previously
released on bail. Because we conclude that the trial court’s ruling is within the
zone of reasonable disagreement about the proper amount of bail, we will not
disturb the trial court’s ruling.
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Jennings, Bland, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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Brandon Eugene Wilson v. State
Combined Opinion