Frank Gonzalez Hernandez v. State

NO. 07-03-0094-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A AUGUST 22, 2003 ______________________________ FRANK GONZALEZ HERNANDEZ, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY; NO. 11296; HONORABLE STEVEN R. EMMERT, JUDGE _______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ. MEMORANDUM OPINION Frank Gonzalez Hernandez appeals from the trial court's refusal to reduce his bond. We affirm. Appellant is incarcerated in Wheeler County pursuant to arrest for possession of a controlled substance, cocaine, over 400 grams. Bond has been set at $150,000. Via habeas corpus motion and hearing, appellant sought reduction of the bond. Appellant did not offer evidence of his income, net worth, financial status, funds available to him through family and friends or attempts to make bond. He testified that he could not make the bond set. The standard by which we review the amount of a bond is abuse of discretion. See Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex.Crim.App. 1981); Ex parte Milburn, 8 S.W.3d 422, 424 (Tex.App.--Amarillo 1999, no pet.). It is the defendant's burden to prove that the bond is excessive. See Ex parte Sabur-Smith, 73 S.W.3d 436, 439 (Tex.App.--Houston [1st Dist.] 2002, no pet.). Such a showing generally requires proof that the defendant made an unsuccessful effort to furnish bond in the amount fixed. Id. Absent a showing by appellant that an effort has been made to furnish bond in the amount fixed by the trial court, an abuse of discretion in setting the bond is not shown. See Ex parte Stembridge, 472 S.W.2d 155 (Tex.Crim.App. 1971). Appellant has not demonstrated that the trial court abused its discretion. The order setting bond is affirmed. Per Curiam Do not publish. o that we were to hold that the trial court did err, authority prohibits us from reversing the judgment unless we determine that the "case turn[ed] on the evidence excluded . . . ." Id.; accord, Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004) (so holding). And, the burden lies with the complainant to demonstrate that. Nissan Motor Co. v. Armstrong, 145 S.W.3d at 144. As to the guiding principles applicable at bar, we find several in the Texas Rules of Evidence. The first mandates that evidence of other wrongs is not admissible to prove the character of a person to show that he acted in conformity with that character. Tex. R. Evid. 404(b). It may, however, be received by the trial court if offered for other purposes, such as to prove motive, plan, scheme, knowledge, or identity, for instance. Id. Finally, even if admissible, the trial court may still exclude it if the probative value of the evidence, if any, is substantially outweighed by the danger of unfair prejudice, confusing of the issues, or misleading the jury. Tex. R. Evid. 403. Application of Standard Underlying McKee's argument on appeal is the proposition that the evidence of other malpractice claims was admissible due to the similarity between the alleged neglect there involved and that involved here. Yet, our review of the record fails to illustrate that such a contention was urged below. Again, McKee informed the trial court that the evidence was admissible to discredit Dove's opinions and because the door to its use had been opened. Nowhere did he urge that it was admissible due to its similarity to the circumstances or claims before us. Since the grounds asserted on appeal must comport with those mentioned at trial to preserve a complaint, Moser v. Davis, 79 S.W.3d 162, 169 (Tex. App.-Amarillo 2002, no pet.), and they do not here, the issue was waived. Next, to the extent that evidence of similar wrongs may be admissible, despite Rule 404(b), it is clear that, at the very least, the circumstances of the incidents and conditions under which they occurred must be reasonably similar. Nissan Motor Co. v. Armstrong, 145 S.W.3d at 138 (involving unintended acceleration of a vehicle); Farr v. Wright, 833 S.W.2d 597, 601 (Tex. App.-Corpus Christi 1992, writ denied) (involving a malpractice claim). And, the degree of similarity required depends upon the fact or issue in dispute. Nissan Motor Co. v. Armstrong, 145 S.W.3d at 138. Yet, even if similar, the evidence remains subject to exclusion if it creates undue prejudice, confusion, or delay. Id. Additionally, inherent in both Nissan and Farr is the requirement that the proponent of the evidence illustrate that the supposedly similar incident actually occurred. Simply put, if the incident did not happen, then it could hardly be admissible to prove the occurrence of some other act or event. And, therein lies the problem here. The only evidence of record purporting to illustrate the existence of the extraneous incidents of malpractice were copies of pleadings and final orders issued by various courts. Yet, most anything can be said in a pleading, whether true or not. Consequently, including an allegation favorable to the pleader in such a document is seldom evidence of its occurrence. See In re M.C., 65 S.W.3d 188, 193 (Tex. App.-Amarillo 2001, no pet.) (stating that "generally, pleadings are not admissible as proof of their contents in favor of the pleader"). Furthermore, the final orders accompanying each pleading in question say nothing about the veracity of the particular plaintiff's claims. Instead, they either indicate that the claims were settled or that recovery was denied; none state that Dove was negligent or that the incident described in the respective pleading actually happened. So, because the incidents underlying McKee's complaint before us appear as nothing more than mere allegations in various pleadings, we find no basis upon which to infer that they actually occurred or that they were reasonably similar to those underlying the claims against Dove. In short, the record does not permit us to hold that the trial court abused its discretion in excluding the evidence in question. Thus, we overrule McKee's issue and affirm the judgment of the trial court. Brian Quinn Justice 1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon 1998). 2. Though some 20 different suits were mentioned at trial, not all involved medical malpractice claims. Furthermore, McKee represented during oral argument and in his brief that he is concerned only about eight particular instances of litigation.