Ramiro Buentello v. State

Opinion issued July 15, 2010 In The Court of Appeals For The First District of Texas ———————————— NO. 01-10-00206-CR ——————————— Ramiro Buentello, Appellant V. The State of Texas, Appellee On Appeal from the 174th District Court Harris County, Texas Trial Court Case No. 1246176 MEMORANDUM OPINION This is an interlocutory appeal from the trial court’s ruling on a pretrial habeas corpus petition alleging that bail was oppressive and violative of the United States and Texas Constitutions. See Tex. R. App. P. 31. In his habeas petition to the trial court, appellant, Ramiro Buentello, requested that his bail be reduced from $1,000,000 to $100,000. Following a hearing on the writ, the trial court granted relief by reducing the bond from $1,000,000 to $500,000. On appeal, appellant argues that the trial court abused its discretion by reducing his bail to $500,000. We affirm. BACKGROUND In December 2009, appellant was arrested and charged with possessing, with intent to deliver, more than 50 kilograms of cocaine valued at over $5,000,000. Appellant’s bail was originally set at $10.2 million but was later reduced to $1,000,000. Appellant filed a pretrial writ for habeas corpus relief, requesting that the trial court “reduce the amount of bond to a reasonable amount.” The trial court granted the writ and ordered that a hearing be held on February 11, 2010. At the hearing, the State rested after it offered a certified copy of the indictment and asked the court to take judicial notice of the writ and return in the case. Appellant offered the testimony of his sister, Marie Zuniga.[1] Zuniga testified that appellant was her older brother. She testified that appellant was not a United States citizen but has been a resident of the United States since the 1980s. Appellant resided in Harris County in a house with his wife and daughter. Appellant was a paint contractor, but approximately two years earlier, he suffered an injury to his back and has “not [been] doing a lot of work” since. Appellant’s wife, Elsa Buentello, was a U.S. citizen, and had worked at Sears for 35 years. His daughter, Vanessa Buentello, was a high school teacher. Zuniga testified that in 1987 appellant was charged with two felonies, for burglary of a motor vehicle and auto theft, and she believed he went to court when those charges were pending. Regarding appellant’s assets, Zuniga testified that appellant and his wife were still paying on their house and did not own the house free and clear. Zuniga testified that between the members of their whole family, they were able to raise $10,000 towards the bail. Zuniga also mentioned that her sister-in-law had a friend that was willing to post property to help with meeting the bail but she was not aware of the property’s value. Zuniga suggested that the court set a bail at $100,000. Zuniga testified that all of her and appellant’s family lived in Houston and San Antonio. However, on cross-examination, Zuniga admitted they had cousins and aunts in Monterey, Mexico. When asked whether she was aware that appellant traveled to Mexico frequently, Zuniga answered affirmatively that appellant goes to Mexico. Zuniga testified that they were in Mexico as recently as November 2009. Zuniga admitted on cross-examination that she was aware appellant transported appliances and electronics from the United States to Mexico for their family to sell. The trial court granted appellant’s request for habeas relief and reduced his bail from $1,000,000 to $500,000. Appellant argues that the trial court abused its discretion in setting the bail at $500,000. A. Standard of Review We review a trial court’s ruling on the setting of bond under an abuse of discretion standard. Golden v. State, 288 S.W.3d 516, 518 (Tex. App.—Houston [1st Dist] 2009, pet. ref’d) (citing Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. 1981)). B. Propriety of Bail In the exercise of its discretion, a trial court must consider the following statutory factors in setting bail: 1. The bail shall be sufficiently high to give reasonable assurance that a criminal defendant will appear at trial and comply with other court orders and conditions of the bond. 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. 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. See Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon 2005); Ludwig v. State, 812 S.W.2d 323, 324 (Tex. Crim. App. 1991) (noting that the court is “to be governed in the exercise of [its] discretion by the Constitution and by the article 17.15 factors”). The burden of proof is upon a defendant who claims bail is excessive. Rubac, 611 S.W.2d at 849; 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 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.). Courts should consider the defendant’s work record, family ties, length of residency, past criminal record, conformity with previous bond conditions, and other outstanding bonds. See Rubac, 611 S.W.2d at 849; see also Martinez-Velasco, 666 S.W.2d at 614–15. C. Analysis Appellant’s sister testified regarding family ties to Houston and San Antonio, but admitted on cross-examination that they had family in Mexico and appellant made frequent trips to Mexico to deliver electronics. Appellant is not a citizen of the United States but has been a resident of Houston since the 1980s. Appellant worked as a paint contractor several years ago but has not worked for the last two years. Zuniga indicated that appellant made money by traveling to Mexico to sell electronics and appliances. This evidence does not weigh in favor of reduction. The nature of the offense and circumstances surrounding the crime are primary factors in determining what constitutes reasonable bail. See Ex parte Davila, 623 S.W.2d 408, 410 (Tex. Crim. App. 1981). In his brief, appellant argues that “[n]o party or witness has implied that the safety of any victim or the community at large is at risk in the event the appellant should make bail” and “no party has implied this concern is a proper justification for such a high bail.” Appellant is charged with possessing with the intent to deliver more than 50 kilograms of cocaine valued at over $5,000,000. Courts have previously held that those who possess cocaine with the intent to deliver in amounts over 400 grams undoubtedly affect the community in which they live. See Maldonado v. State, 999 S.W.2d 91, 97 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). Because appellant was charged with possessing with the intent to deliver more than 50,000 grams (or 50 kilograms) of cocaine, the nature of the offense necessarily affects the community. See id. In considering the nature of the offense, it is also proper to consider the possible punishment. Id. at 95; Wright v. State, 976 S.W.2d 815, 820 (Tex. App.—Houston [1st Dist.] 1998, no pet.). When the nature of the offense is serious and involves aggravating factors that may result in a lengthy prison sentence, bail must be set sufficiently high to secure the defendant’s presence at trial. In re Hulin, 31 S.W.3d 754, 760 (Tex. App.—Houston [1st Dist.] 2000, no pet.). The State charged appellant with possession with intent to deliver at least 400 grams of cocaine. Tex. Health & Safety Code Ann. § 481.112(f) (Vernon 2003). The regular range of punishment for such the offense is confinement for life or for a term of not more than 99 years or less than 15 years, and a fine not to exceed $250,000. Id. Appellant concedes in his brief that he has a prior conviction. If proven, the enhancement paragraph elevates the range of punishment to confinement for a minimum of 25 years to 99 years or life. Tex. Penal Code Ann. § 12.42 (Vernon Supp. 2008). Appellant is charged with a serious offense, and if convicted, he will face a lengthy sentence. Thus, the nature of the offense and the circumstances of its commission also weigh against reduction of bail. Though ability or inability to make bail does not control the bail to be set, it is a factor that the trial court must consider together with the other statutory elements. Ex parte Gentry, 615 S.W.2d 228, 231 (Tex. Crim. App. 1981); Ex parte Reyes, 4 S.W.3d 353, 355 (Tex. App.—Houston [1st Dist.] 1999, no pet.); Tex. Code Crim. Proc. Ann. art. 17.15(4). Unless the defendant shows that his funds and those of his family have been exhausted, as in Ex parte Dueitt, he must show that he made an unsuccessful effort to furnish bail in the amount set. 529 S.W.2d 531, 532 (Tex. Crim. App. 1975); see generally Ex parte Stembridge, 472 S.W.2d 155 (Tex. Crim. App. 1971); Ex parte Williams, 467 S.W.2d 433 (Tex. Crim. App. 1971). Zuniga, appellant’s sister, testified regarding appellant’s inability to make bail, but she did not provide any documentation regarding appellant’s finances. Zuniga testified that appellant owned his home, but did not own it “free and clear.” However, Zuniga never testified regarding the value or amount of equity in the home. Zuniga testified that friends of the family offered to help appellant by posting their property to secure the bond, but Zuniga did not know that value of the property.[2] Appellant did not provide evidence of his overall financial resources through the testimony of his sister or otherwise. See, e.g., Ex parte Ruiz, 129 S.W.3d 751, 754 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (lack of evidence of Ruiz’s personal financial resources was factor considered by court of appeals in affirming trial court’s decision not to lower bail) (citing Ex parte Chavfull, 945 S.W.2d 183, 186–87 (Tex. App.—San Antonio 1997, no pet.)). Appellant did not produce evidence of the value of his property or whether he had securities or bank or savings accounts, and, if so, their values. See, e.g. Chavfull, 945 S.W.2d at 186. Accordingly, appellant has failed to provide enough evidence for the court to adequately assess his financial capabilities and weighs against reducing the bail. See id. Zuniga testified that her brother was not working and his only income came from selling electronics and appliances in Mexico. Because appellant was not working prior to his arrest, this evidence indicates that appellant’s post-arrest incarceration has not detrimentally impacted his ability to post a bond. See Ex parte Bogia, 56 S.W.3d 835, 837, (Tex. App.—Houston [1st Dist.] 2001, no pet.) (considering fact that defendant was confined in jail for six months as evidence that he could not make bail and concluding that the $360,000 bail set for second degree felony theft was less justifiable the longer pretrial detention continued). Appellant is subject to a lengthy period of confinement if he is convicted, similar to Willman, Ruiz, or other drug cases in which our court has affirmed six-figure bail amounts. In Willman, the State charged the defendant with delivery of approximately two kilograms of cocaine,[3] and in Ruiz, police recovered approximately 63.55 kilograms of cocaine valued at $5.5 million.[4] Willman, 695 S.W.2d at 753; Ruiz, 129 S.W.3d at 752. Here, over fifty kilograms of cocaine were involved, comparable to the relatively large quantities involved in Willman and Ruiz. Like Ruiz, here, there is evidence that the defendant is not a United States citizen and he poses a flight risk. See Ruiz, 129 S.W.3d at 752. Appellant cites language from Bogia to support his argument that the reduced $500,000 bail was still excessive. See 56 S.W.3d at 835 (holding bail of $360,000 on charge of second degree felony theft was excessive and setting bail at $10,000). The facts of Bogia are distinguishable. In Bogia, appellant’s husband supervised a corporation’s environmental remediation projects and violated the corporation’s policy by granting such contracts to his wife’s (appellant’s) company. Id. at 839. Using an assumed name, appellant’s company received contracts for $183,214.50 and completed the work, but the State argued the work was performed by unqualified people. Id. at 836. The Court stated that the circumstances of the offense were significant and might not outrage the jury, noting that “[t]his is not a case in which money was paid for nothing[.]” Id. at 839. Bogia had no prior convictions. Id. The range of punishment applicable to Bogia’s offense was 2 to 20 years, but the Court noted that “appellant’s realistic exposure to punishment is less, probably within the 2-10 year range” and “[j]udges and juries often given sentences of less than 10 years, even probation, for such crimes.” Id. Thus, Bogia involved a much less serious offense than in the present case. Here, appellant is charged with an aggravated first degree felony. He has a prior conviction, has ties to Mexico, regularly travels to Mexico, and has not provided sufficient evidence to show his inability to meet bail. Because appellant failed to offer evidence of his assets and finances, and because other factors weighing against reduction are present, he has failed to meet his burden of proving the bail was excessive. See Golden, 288 S.W.3d at 518. We hold that the trial court did not abuse its discretion by denying habeas relief. We overrule appellant’s sole issue on appeal. Conclusion We affirm the judgment of the trial court. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Bland and Sharp. Do not publish. Tex. R. App. P. 47.2(b). [1] In his brief, appellant noted that the witness’s last name is “Zuniga” but was incorrectly spelled “Suniga” in the hearing record. We correct the spelling error here. [2] In his brief, appellant states that the family friend’s property was “worth $100,000.” However, the value of the property is not in the record. [3] This court affirmed the trial court’s reduction of bail from $500,000 to $300,000. Ex parte Willman, 695 S.W.2d 752, 754 (Tex. App.—Houston [1st Dist.] 1985, no pet.). [4] This court affirmed the trial court’s reduction of bail from $1,600,000 to $600,000. Ruiz, 129 S.W.3d at 752.