Ex Parte: Jarod Duran v. State

COURT OF APPEALS COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ) ) No. 08-01-00110-CR ) EX PARTE: JARROD DURAN ) Appeal from ) ) 243rd District Court ) ) of El Paso County, Texas ) ) (TC# 970D03833) O P I N I O N Jarrod Duran was convicted of aggravated assault and six counts of deadly conduct. He has appealed the trial court=s denial of his application for writ of habeas corpus. We affirm. FACTUAL SUMMARY On February 6, 2001, Appellant was convicted of aggravated assault and six counts of deadly conduct. A jury sentenced him to eight years= confinement and a fine of $10,000 on the aggravated assault conviction. He was sentenced to confinement of one year and a fine of $1,000 for the deadly conduct. Appellant filed a motion for bond pending appeal which the trial court denied, finding good cause to believe that he would not appear when his conviction became final and that he was likely to commit other offenses while on bond. Appellant then filed an application for writ of habeas corpus complaining that the State failed to show legal grounds to deny him a reasonable appellate bond. The trial court granted the application and set a hearing. Taking judicial notice of the evidence adduced at the guilt/innocence and punishment phases of Appellant=s trial as well as the previous hearing on his motion for bond pending appeal, the trial court denied relief finding Athat good cause exists why [Appellant] should not be discharged from confinement.@ This is an appeal from the denial of bail as authorized by Tex.Code Crim.Proc.Ann. art. 44.04(g)(Vernon Pamphlet 2002). STANDARD OF REVIEW A trial court=s denial of an application for writ of habeas corpus is reviewed for abuse of discretion. Ex parte Spaulding, 612 S.W.2d 509, 511 (Tex.Crim.App. 1981); Molina v. State, 998 S.W.2d 302, 304 (Tex.App.--El Paso 1999, no pet.). An appellate court does not substitute its judgment for that of the trial court, but decides whether the trial court=s decision was without reference to any guiding rules or principles of law, or in other words, whether it was arbitrary or unreasonable. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). Even if this court would have reached a different result, we will not intercede as long as the trial court=s ruling was within the Azone of reasonable disagreement.@ Id. at 391 (op. on reh=g); Ex parte Mendiola, 961 S.W.2d 625, 626 (Tex.App.--San Antonio 1998, no pet.). RIGHT TO BAIL PENDING APPEAL Convicted felons are not guaranteed the right to bail under the Texas Constitution. See Ex parte Lowe, 573 S.W.2d 245, 247 (Tex.Crim.App. [Panel Op.] 1978); Tex.Const. art. 1, ' 11. The Legislature created a right to bail pending appeal under Article 44.04 of the Texas Code of Criminal Procedure. See Tex.Code Crim.Proc.Ann. art. 44.04. Article 44.04(b) renders a defendant ineligible for bail where his punishment equals or exceeds ten years= confinement or if the defendant has been convicted of an offense listed under Section 3g(a)(1) of Article 42.12.[1] Tex.Code Crim.Proc.Ann. art. 44.04(b). In cases where punishment is ten years or less, the trial court has the discretion to set bail or to deny bail for good cause to believe (1) the defendant would not appear when his conviction became final, or (2) that he would be likely to commit another offense while on bail. Tex.Code Crim.Proc.Ann. art. 44.04(c); Mendiola, 961 S.W.2d at 626. Thus, a trial court may deny bail altogether based on either one of these two independent grounds. Read v. State, 959 S.W.2d 228, 230 (Tex.App.--Fort Worth 1997, pet. ref=d). Because Appellant was sentenced to less than ten years= confinement, he would have been entitled to bond pending appeal had the trial court not found the existence of good cause to deny bail. In his sole point of error, Appellant contends there was no showing of good cause. We disagree. The trial court conducted two evidentiary hearings--one on Appellant=s motion for appeal bond and one on his application for writ of habeas corpus. At each hearing, the State requested that the trial court take judicial notice of the evidence adduced at the guilt/innocence and punishment phases of Appellant=s trial. This was proper. Ex parte Turner, 612 S.W.2d 611 (Tex.Crim.App. 1981). The trial court ultimately found good cause to believe that Appellant would not appear when his conviction became final and that he was likely to commit other offenses while on bail. Good Cause to Believe Appellant Would Not Appear Appellant testified at the evidentiary hearings that while he was on bond for four years awaiting trial in the instant case, he complied with all court appearances. He also introduced evidence of family members in Colorado who would ensure that he would not flee. He has a father, mother, brothers, a sister, and a girlfriend in Colorado, and another brother who resides in El Paso. He had a job in Colorado doing heating and cooling and draft maintenance that did not require him to travel. He could find employment locally if he were to obtain an appellate bond. However, the State claimed there was a good reason to believe Appellant would not appear because he was a resident of Colorado, not a resident of El Paso County. This is sufficient evidence from which a trial court could decide that Appellant=s family ties, residency status, and employment history in Colorado could cause him to flee the jurisdiction and make it unlikely he would appear when his conviction became final. Good Cause to Believe Appellant Was Likely to Commit Other Offenses The State also elicited evidence that Appellant was charged with manslaughter and third- degree assault in Colorado involving the death of another individual. This incident occurred while Appellant was released on bond prior to his trial in the instant cause. While the manslaughter charge was dismissed, Appellant was tried and convicted of third-degree assault. He was ultimately granted a new trial. Proof that a defendant committed a newly-charged offense while on bail has been held sufficient to sustain the denial of an appeal bond. Putnam v. State, 582 S.W.2d 146 (Tex.Crim.App. 1979). AThe evidence adduced in the hearing that the [defendant] Did commit another offense while on bail far exceeds the statutory requirement that the court find only that he Is likely to commit another offense while on bail . . . .@ [Emphasis added]. Id. at 151. In other words, a finding that a defendant previously committed a crime while on bail supports an inference that he is likely to commit another crime if released on bail yet again. Although Appellant was granted a new trial for the third-degree assault conviction, the trial court was nevertheless entitled to consider the offense. Appellant also testified at the evidentiary hearings that he had two convictions for driving while intoxicated and at least one for unlawfully carrying a weapon. Given his criminal history, we cannot conclude that the trial court abused its discretion in denying Appellant=s request for bond pending appeal. We are unable to conclude that the trial court acted unreasonably or without regard to guiding rules or principles of law when it denied Appellant=s application for writ of habeas corpus. Accordingly, we overrule the sole issue for review and affirm the trial court=s judgment. June 13, 2002 ANN CRAWFORD McCLURE, Justice Before Panel No. 2 Barajas, C.J., McClure, and Chew, JJ. (Do Not Publish) [1] The offenses listed under Section 3g(a)(1) include murder, capital murder, indecency with a child, aggravated kidnaping, aggravated sexual assault, aggravated robbery, offenses under Chapter 481 of the Health and Safety Code, and sexual assault. Tex.Code Crim.Proc.Ann. art. 42.12 ' 3(g)(a)(1)(Vernon Supp. 2002).