Lloyd Quentez McMillian v. State

Opinion issued May 10, 2005 In The Court of Appeals For The First District of Texas NO. 01-04-01124-CR LLOYD QUENTEZ MCMILLIAN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 999521 MEMORANDUM OPINION Appellant, Lloyd Quentez McMillian, is charged with possession of a controlled substance, namely, cocaine weighing at least 400 grams. The trial court initially set the bail at $200,000, which it later reduced to $100,000. Appellant posted the $100,000 bond, and, while out on bond, was arrested in another state for felony possession of cocaine. Appellant’s bond was surrendered and bond was set at “no bond.” Appellant filed an application for a writ of habeas corpus and a request that bond be set. The trial court granted the writ and subsequently set the bail at $750,000. Appellant appeals this decision, stating that the amount is oppressive and unreasonable. We affirm. Legal Authority The amount of bail is committed to the trial court’s discretion under Texas Code of Criminal Procedure, article 17.15. See Smith v. State, 829 S.W.2d 885, 887 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). It indicates that the following factors are to be considered in determining the amount of a defendant’s bail: 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 used as an instrument of oppression. 3. The nature of the offense and the circumstances of its commission are to be considered. 4. The ability to make bail is to be regarded, and proof may be taken on 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 (Vernon 2005). The burden of proof is upon an appellant who claims bail is excessive. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. 1981); Ex parte Martinez-Velasco, 666 S.W.2d 613, 614 (Tex. App.—Houston [1st Dist.] 1984, no pet.). The primary purpose for setting bond 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); Ex parte Bonilla, 742 S.W.2d 743, 744 (Tex.App.—Houston [1st Dist.] 1987, no pet.). The amount of bail should be set sufficiently high to give reasonable assurance that the accused will comply with the undertaking, but should 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); Ex parte Willman, 695 S.W.2d 752, 753 (Tex. App.—Houston [1st Dist.] 1985, no pet.). Other factors that should be considered include appellant’s work record, family ties, length of residency and past criminal record. See Rubac, 611 S.W.2d at 849; see also Martinez-Velasco, 666 S.W.2d at 614-15. Discussion A. Sufficiently High to Give Reasonable Assurance of Appearance The record in this case shows that bail was initially set at $100,000, but that the bond was surrendered after appellant was arrested for a subsequent felony drug offense in Alabama. A trial court may increase the amount of bail for an offense when the defendant commits a new offense while on bail. Miller v. State, 855 S.W.2d 92, 93-94 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d]. It is apparent from the record that the previous $100,000 bond was insufficiently high to compel appellant’s compliance with the previous bond conditions. B. Nature of the Offense Appellant is charged with possession with intent to deliver a controlled substance in an amount weighing more than 400 grams. See Tex. Health & Safety Code Ann. § 481.112(a),(f) (Vernon 2003). This offense carries a sentence of 15 to 99 years or life and a fine not to exceed $250,000. Id. The quantity of drugs involved in this incident was over 400 grams of cocaine. “[I]n cases involving illegal transportation and sale of drugs, a higher bond may be required, because of the very nature of the offense. Illegal drug transactions of the nature alleged usually require large amounts of case and the involvement of financial backers willing to forfeit bonds that are not sufficiently high.” Ex parte Willman, 695 S.W.2d at 753. The nature of the offense is serious, carries a substantial penalty, and does not favor a bond reduction. C. Ability to make bail Appellant contends that he is unable to make bail on his own. He testified that he is a college student at Alabama A & M, and that he is supported financially by his parents. Appellant testified that his parents would be able to make only a $15,000 to $20,000 bond because they had exhausted some of their funds in making the first $100,000 bond. The ability of the defendant to make bail is one factor to be considered in reviewing a bond decision. Tex. Code Crim. Proc. Ann. art. 17.15. However, a person’s ability to pay does not control the bail. Ex parte Gentry, 615 S.W.2d 228, 231(Tex. Crim. App. 1981). It is only one factor among several to be considered. Ex parte Reyes, 4 S.W.3d 353, 355 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The mere fact that appellant’s family could make a bail of only $20,000 is not a reason to reduce the bail. D. Future Safety of the Community Under this factor, the State points out that appellant’s continued participation in the drug business, after his release on bond in this case, is evidence that the community will continue to be harmed by appellant while he is on bond. We agree that this factor, in light of appellant’s recidivism, weighs against the reduction of appellant’s bond. E. Other Factors Other factors to consider in reviewing a bond decision include appellant’s work record, family ties, length of residency, and past criminal record. Appellant is an college student who is supported by his parents. He is not a resident of Texas, has never lived in Texas, and has no plans for ever living in Texas. He has no ties to this community at all, other than one uncle, with whom he would not live if granted bond. Appellant testified that if granted bond, he would return to Alabama. Although appellant has no previous criminal record, he does, as mentioned earlier, have a prior bond that was surrendered for failure to comply with the terms of the bond. These factors weigh against the reduction of appellant’s bond. Conclusion This incident involves a large quantity of illegal drugs. The alleged offense carries a substantial penalty. The appellant has no ties to the community, and has shown that he is unable to comply with the conditions of his bond, as evidenced by the surrender of his previous bond. Accordingly, the trial court’s decision to set bail at $750,000 is affirmed. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Taft and Alcala. Do not publish. Tex. R. App. P. 47.2(b).