Ex Parte Victor M. Cuevas, Jr.

11th Court of Appeals Eastland, Texas Opinion Ex parte Victor M. Cuevas, Jr. No. 11-03-00402-CR -- Appeal from Gaines County This is an appeal from the trial court=s order denying Victor M. Cuevas, Jr.=s motion to reduce bail bond. TEX.R.APP.P. 31. We affirm. Procedural Background In May 2003, Cuevas was indicted for engaging in organized criminal activity to commit theft. Bail was set at $1,000,000, and Cuevas filed a motion to reduce the bail to $10,000. After a hearing, the trial court denied the motion on July 17, 2003; and Cuevas appealed. The El Paso Court of Appeals reversed and remanded for the trial court to consider the factors listed in TEX. CODE CRIM. PRO. ANN. art. 17.15 (Vernon Supp. 2004). Ex parte Victor M. Cuevas, Jr., ___ S.W.3d ___, 2003 WL 22461883 (No. 08-03-00311-CR, Tex.App. - El Paso, October 30, 2003, no pet=n). On November 13, 2003, the trial court conducted another hearing pursuant to the El Paso Court of Appeals=s opinion. Cuevas asked the trial court to reduce the bail to $50,000. The trial court denied the motion, and Cuevas perfected this appeal.[1] We affirm. Issue on Appeal In his sole issue on appeal, Cuevas contends that the trial court abused its discretion by failing to reduce his bail. Cuevas argues that, under the factors listed in Article 17.15, the $1,000,000 bond is excessive. Cuevas also contends that the trial court should have taken into account other considerations such as his work record, his family and community ties to Gaines County, his length of residency, his prior criminal history, his conformity with previous bail bond restrictions, the existence of any outstanding bail bond, and any aggravating circumstances in the alleged offense. Applicable Law Article 17.15 provides that the trial court properly exercises its discretion by setting bail in accordance with the Texas Constitution and the following rules: 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. 5. The future safety of a victim of the alleged offense and the community shall be considered. In addition to the rules listed in Article 17.15, the following factors are also considered: the nature of the alleged offense; the circumstances under which the alleged offense was committed; possible punishment; the defendant=s work record; the defendant=s ties to the community; the defendant=s length of residency; the defendant=s prior criminal record; the defendant=s conformity with any prior bail bond conditions; the defendant=s ability or inability to make a bail bond; and the existence of any outstanding bail bonds. Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex.Cr.App.1980); Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex.Cr.App.1980); Ex parte Ivey, 594 S.W.2d 98 (Tex.Cr.App.1980); Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex.Cr.App.1977); Ex parte Simpson, 77 S.W.3d 894, 898 (Tex.App. - Tyler 2002, no pet=n); DePena v. State, 56 S.W.3d 926, 927 (Tex.App. - Corpus Christi 2001, no pet=n); Brown v. State, 11 S.W.3d 501 (Tex.App. - Houston [14th Dist.] no pet=n); see also Ex parte Rubac, 611 S.W.2d 848, 849 (Tex.Cr.App.1981). The ability to make bond is one of many factors to be considered; however, it does not control the amount of the bail bond and will not automatically render an amount excessive. Ex parte Charlesworth, supra; Ex parte Rodriguez, supra; Ex parte Ivey, supra; Ex parte Vasquez, supra; Ex parte Simpson, supra; DePena v. State, supra. The primary purpose of the bail bond is to secure the defendant=s presence in court. Ex parte Rodriguez, supra; Ex parte Ivey, supra; Ex parte Vasquez, supra; DePena v. State, supra; Brown v. State, supra. The defendant has the burden to prove that the amount of the bail bond is excessive. Ex parte Charlesworth, supra; Ex parte Rodriguez, supra; Ex parte Vasquez, supra; Ex parte Simpson, supra; DePena v. State, supra; Brown v. State, supra; see also Ex parte Rubac, supra. Background Facts According to the U.S. Department of Justice Drug Enforcement Administration Report admitted into evidence, Cuevas and Anna Jorgenson (his common-law wife) were arrested on June 24, 2002, in Oklahoma City as the result of an ongoing narcotics investigation. Cuevas had over $700,000 in his possession at the time. Cuevas told the officers that he lived in El Paso. Cuevas said that he was self-employed in the tractor business and that he had sold a tractor and a baler to a man he knew only as APelon.@ Cuevas told the officers that he had sold $100,000 farm tractors and implements to people whom he only knew by a nickname. Cuevas had come to Oklahoma City because Pelon was late on his payments. When Cuevas had called him, Pelon told Cuevas that he had sold the tractor and baler. Cuevas further told the officers that an Aunknown female@ had then telephoned him and told him to take a Ford Expedition to sell. Cuevas did not have a receipt for his sale to Pelon and did not know Pelon=s address or phone number. Jorgenson told the officers that they had driven to Oklahoma City to repossess a car. After they located the Ford Expedition, Jorgenson said that they went to eat at Hooters, went shopping at Penn Square Mall, and then returned to the Ford Expedition. Jorgenson identified a Ford F-150 pickup as the vehicle that they had driven to Oklahoma City. At this time, Cuevas had in his possession the keys to both the Ford Expedition and the Ford F-150 pickup. Both Jorgenson and Cuevas consented to the search of the vehicles. A duffle bag containing at least $761,385 was found in the cab of the Ford F-150 pickup. Cuevas had been very calm and had not paid much attention to the officers until the officers approached the pickup. Cuevas then became nervous. He interrupted the officers by asking for a cigarette and tried to distract them by asking if he could call his ex-wife. When the officer who found the money called in his discovery, Cuevas A[a]lmost simultaneously@ Aturned around, leaned over the marked police unit, and put his hands behind his back@ in an arrest position. Cuevas did this Aon his own free will@ and was not directed to assume an arrest position. The Oklahoma City Methamphetamine Task Force agents arrested Cuevas and Jorgenson. In an 18-count document, a total of 28 people including Cuevas and Jorgenson were charged with conspiracy to traffic controlled substances, conspiracy to transport proceeds from the unlawful sale of controlled substances, and possession of proceeds from such sales. Less than nine months after the Oklahoma incident in March 2003, Billy Joe LaRue was asked to move some farm equipment from Gaines County to El Paso. LaRue was taken to a location west of Seminole at about 10:00 or 11:00 p.m. and was told to turn the lights off on his vehicle. Cuevas drove up in a John Deere tractor. When Cuevas opened the door, LaRue could tell that the tractor was brand new. Cuevas Aran dark@ until he turned the tractor=s lights on just long enough to tell where the trailer was and then drove the tractor onto the trailer. Cuevas called LaRue several times on a cell phone during LaRue=s trip to El Paso. Cuevas arranged to meet LaRue for breakfast at a restaurant in Tornillo, outside of El Paso. Afterwards, Cuevas unloaded the tractor from the trailer. About a month later on April 5, 2003, LaRue was contacted at 10:30 p.m. about moving another tractor from Gaines County to El Paso. Cuevas again called him on a cell phone during the trip and again unloaded the tractor. Cuevas was driving a new dark red Ford Mustang at this time. Before LaRue left to return to Gaines County, Cuevas told him that Athis was easy money@ and that Athe farmer was not going to report this tractor stolen for two weeks.@ Gaines County Sheriff Jon Key testified concerning several tractors that had been stolen in Gaines County from December 2001 to April 2003, including a new John Deere tractor in March 2003 and an Arco tractor in April 2003. U.S. Department of Justice Immigration and Naturalization Service Senior Patrol Agent Paul W. Farmer gave a statement concerning two John Deere tractors he had seen being driven across the Rio Grande River into Mexico. Photographs of the area where the tractors had been driven into Mexico were admitted at the hearing. In this case, Cuevas is indicted for engaging in organized criminal activity with respect to the March 2003 theft of the new John Deere tractor and for the March 2003 theft of the John Deere tractor. The dealer from whom the tractor was stolen stated that he paid $146,481.38 for the tractor and that he would normally mark up that type of tractor Aabout $3,000.00.@ Cuevas=s Evidence At the second hearing on November 13, 2003, Cuevas offered the record from the first hearing on June 19, 2003, as his Exhibit No. 1. At the first hearing, Maribel Rodriguez testified that Cuevas was her brother. Maribel stated that she lived in Odessa and that Cuevas lived in El Paso. Their grandmother lived in Mexico, and their father=s sister lived in Juarez, Mexico. Their father and three of their sisters lived in Seminole. Another sister lived in Odessa, and a brother lived in El Paso. At this time, Jorgenson was living with Maribel and was expecting Cuevas=s baby in six months. Both Maribel and Cuevas were born in Juarez and were naturalized citizens of the United States. Maribel stated that their father owned land and rent houses in Gaines County. The total value of their father=s real estate was $200,000. After talking with bail bondsmen, Maribel felt that the family could make a $50,000 bond. On cross-examination, Maribel stated that she could not remember whom she talked to at Judy=s Bail Bond in Odessa and that they did not tell her how much money they would need. She was aware that her brother was facing charges in Oklahoma City but was not aware that he and Jorgenson had had over three quarters of a million dollars in their possession when they were arrested. Maribel stated that she did not know who Cuevas worked for and that she had not seen him in awhile. She usually stayed in touch with Cuevas through their mother, and she did not know how often he went to Mexico. Maribel was uncertain what vehicles Cuevas drove or owned. At the second hearing, Claudia Cuevas testified that Cuevas was her brother, that she lived in Seminole, and that she worked as a legal assistant for an attorney in Seminole. Claudia stated that she had contacted Ace Bonding in Odessa, Amigo=s Bail Bond in Odessa, Midland Bail Bond, Easy Terms Bail Bond of Midland, Triple A Bail Bond, and Lynn Cook Bail Bond of Lubbock. Not one of these companies was willing to post a $1,000,000 bail bond. Claudia was told that the highest bail bond any of these companies would post was $50,000. She felt that the family could post a $50,000 bail bond. Claudia also testified that Jorgenson was due to have the baby any day and that she was now living in Minnesota. She stated that, at the time of his arrest, Cuevas was selling seed and helping their brother with farm equipment. Cuevas did not own any real estate, had no bank accounts, no cash that she was aware of, and owned only one vehicle -- a wrecked Mustang. Claudia stated that Cuevas was born in Juarez, Mexico; that he lived in El Paso at the time of his arrest; and that he was a naturalized citizen. She did not know if he traveled back and forth to Mexico, and she did not know why Jorgenson and Cuevas had been arrested in Oklahoma. When asked, Claudia stated: AI don=t get into his business.@ After Claudia=s testimony, Cuevas rested. Article 17.15 Considerations Cuevas is charged with acting in an organized manner with others to deprive the owner of farm equipment worth in excess of $150,000. The record shows that Cuevas may have been involved in organized criminal activity between 2001 and 2003 possibly involving thefts from the same owner as well as from others, including the owner=s brother who was also a farm implement dealer. The owner had two other dealerships, one of which was located in Tornillo near El Paso. Cuevas had used the owner=s loading docks at the Tornillo facility to unload the stolen tractors. Cuevas=s brother (the same one who lived in El Paso and the same one Claudia testified that Cuevas had been helping with farm equipment) had worked for the owner but no longer did. While Cuevas presented evidence that the bondsmen his sister contacted were not willing to post a $1,000,000 bond, the record also shows that Cuevas is accused of being involved in organized criminal activity that may have existed for two years, that this ongoing activity as well as the activity in the present case involved traveling across the Mexican border, that the crossings were not made at a legal checkpoint, that the activity involved various thefts from people in Seminole and Gaines County, and that the activity involved more than one theft from the owner of the tractor in this case. Cuevas has not established that the trial court abused its discretion under the requirements of Article 17.15. Other Considerations Cuevas is charged with the commission of a first degree felony. TEX. PENAL CODE ANN. ' 71.02 (Vernon 2003 & Supp. 2004). The range of punishment for this offense is confinement for life or for a term of not more than 99 years and not less than 5 years. TEX. PENAL CODE ANN. ' 12.32 (Vernon 2003). An optional fine not to exceed $10,000 is also authorized. Section 12.32. The alleged offense was committed in the community where Cuevas=s father lived and owned real estate, where Cuevas went to school, where his three children by his ex-wife lived, and where his sister Claudia lived and worked. The offense appears to have involved not only stealing Cuevas=s brother=s employer=s property but also using his brother=s employer=s facilities to commit the offense. As far as Cuevas=s history of employment, the record reflects only that Cuevas helped his brother with farm equipment, that he sold seed, and that he traveled to Oklahoma to collect a Ford Expedition for payments a man named Pelon owed him on $100,000 worth of farm equipment. Cuevas=s possession of over $700,000 at the time of the Oklahoma arrest was unexplained. The record reflects that Cuevas was born in Juarez, Mexico; that he went to school in Seminole; and that he was a naturalized United States citizen. The record also reflects that Cuevas was known to drive a Ford Mustang, that he had been seen driving a new dark-colored Ford Mustang near the Mexico border in connection with the transportation of an allegedly stolen tractor, that this Ford Mustang had been seen crossing the Mexico border several times, and that the only vehicle his sister Claudia thought he owned was a Ford Mustang. Neither Maribel nor Claudia (Cuevas=s only witnesses) were very familiar with Cuevas=s activities, with his travels to Mexico, or with his work record. Both Maribel and Claudia stated that the family was willing to make bond for Cuevas, that their father owned $200,000 worth of real estate, and that they felt that the family could make a $50,000 bond. The present offense was committed less than nine months after Cuevas was arrested in Oklahoma for possession of more than $700,000 in proceeds from the sale of controlled substances. Cuevas was out on bond on the Oklahoma charges when he committed and when he was arrested for the present offense. Cuevas has not established that the trial court abused its discretion under these other considerations. This Court=s Holding Considering the factors enumerated in Article 17.15, the other factors stated above, and the evidence Cuevas presented, the record does not support Cuevas=s contentions that the trial court abused its discretion. The issue is overruled. The order of the trial court is affirmed. W. G. ARNOT, III March 18, 2004 CHIEF JUSTICE Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J. [1]Effective September 1, 2003, appeals from Gaines County are filed in the Eastland Court of Appeals. TEX. GOV=T CODE ANN. ' 22.201 (Vernon 2004).