Ex Parte John Chapman, Jr.

Affirmed and Memorandum Opinion filed January 6, 2011. In The Fourteenth Court of Appeals ____________ NO. 14-10-00910-CR ____________ EX PARTE JOHN PAUL CHAPMAN, JR. On Appeal from the 337th District Court Harris County, Texas Trial Court Cause No. 1277117 M E M O R A N D U M   O P I N I O N John Paul Chapman, Jr. has been charged with driving while intoxicated (DWI). See Tex. Penal Code §49.04. The State alleged that he had been convicted of DWI twice before, thereby elevating this offense to a third degree felony. See Tex. Penal Code §49.09(b). The trial court ordered several conditions on Chapman’s release on pre-trial bond, including a prohibition against driving. Chapman filed an application for writ of habeas corpus challenging the trial court’s authority to impose the “no driving” condition. After a hearing, the trial court denied relief, and this appeal followed. See Tex. R. App. P. 31. Background At the writ hearing, Chapman’s father testified about his son’s employment with the family-owned trucking company, Champion Cartage Company, for the last 17 years. He explained that Chapman is a vice-president and he specializes in marketing and sales. As part of Chapman’s duties, he is required to travel to meet with clients and visit customer sites to measure cargo and quote prices for shipment. He also is to make sure that the trucks are properly loaded. The father also testified that Chapman shares custody of his three-year old son with his ex-wife. Because of the ex-wife’s medical issues, Chapman has the primary responsibility to transport his son to school, extracurricular activities and speech therapy. On cross-examination, the father acknowledged that Chapman was employed at the family company when he was convicted of DWI before. He acknowledged that the safety of his son, grandson, and the community as a whole are more important than his son’s work duties. Chapman’s father was the only witness to testify at the writ hearing. At the conclusion of the hearing, the trial court denied relief. Standard of Review A pre-trial writ of habeas corpus is appropriate only in very limited circumstances. The writ is permitted to challenge the State’s power to restrain a defendant, the manner of pre-trial restraint (i.e., the denial or conditions of bail), or certain issues that would bar prosecution or conviction. Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005). Thus, Chapman may challenge conditions on pre-trial bail through a writ of habeas corpus. In 1999, magistrates were given general authority to impose reasonable conditions on pre-trial bail. Ex parte Anderer, 61 S.W.3d 398, 401 (Tex. Crim. App. 2001). “To secure a defendant’s attendance at trial, a magistrate may impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community.” Tex. Code Crim. Proc. art. 17.40(a). In setting pre-trial bail, a magistrate must consider the nature and circumstances of the alleged offense and the safety of the alleged victim and the community, and the magistrate may impose reasonable conditions related to their safety. Anderer, 61 S.W.3d at 405-06. A condition of pre-trial bail will be upheld if it meets three criteria: (1) it must be reasonable; (2) it must be made to secure the defendant’s presence at trial; and (3) it must be related to the safety of the alleged victim or the community. Anderer, 61 S.W.3d at 401. An appellate court reviews a trial court’s pre-trial bail decision for an abuse of discretion. Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex. Crim. App. 1981). The applicant bears the burden to show that the trial court abused its discretion in setting the amount of bail or imposing a specific condition. Id.; Ex parte Anunobi, 278 S.W.3d 425, 528 (Tex. App.—San Antonio 2008, no pet). In reviewing a trial court’s ruling for an abuse of discretion, an appellate court will not intercede as long as the trial court’s ruling is at least within the zone of reasonable disagreement. Cooley v. State, 232 S.W.3d 228, 234 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)). Discussion Chapman contends in two issues that the trial court exceeded its authority and abused its discretion in imposing the “no driving” condition for pre-trial bond.[1] Chapman first argues that because the legislature has provided an appropriate safeguard, the trial court had no authority to impose the “no driving” restriction. Article 17.441 of the Code of Criminal Procedure provides for the requirement of a motor vehicle ignition interlock as a condition for pre-trial release when a defendant has been charged with a subsequent DWI offense. Tex. Code Crim. Proc. art. 17.441. Chapman argues that because article 17.441 provides a specific condition for a third DWI offense, it should control over the more general authority for conditions provided in article 17.40. The pre-trial bond condition requiring an ignition interlock is not mandatory, however. See Ex parte Elliott, 950 S.W.2d 714, 717 (Tex. App.—Fort Worth 1997, pet. ref’d). The device is not required if the magistrate determines that installation of the device “would not be in the best interest of justice.” Tex. Code Crim. Proc. art. 17.441(b). Therefore, the trial court has authority to impose other reasonable conditions. Chapter 17 of the Code of Criminal Procedure provides a wide range of conditions of bail. Article 17.44(a) permits the imposition of home confinement and electronic monitoring as conditions of release on bond. Tex. Code Crim. Proc. art. 17.44(a)(1). The State contends that the “no driving” condition is actually less restrictive that the conditions permitted in article 17.44. In addition, Chapter 17 provides for curfews and drug testing. Tex. Code Crim. Proc. art. 17.43, 17.44(a)(2). For defendants charged with sex crimes committed against children under age 14, article 17.41 provides for conditions prohibiting communicating with, and going near locations frequented by, the victim. Tex. Code Crim. Proc. art. 17.41(a)(1), (2). Therefore, the code contemplates conditions on bond that promote safety and are not solely directed at securing the defendant’s presence at trial. The conditions of bail “may not impinge unreasonably upon rights guaranteed by the Constitution.” Anderer, 61 S.W.3d at 402. Driving an automobile is a privilege, not a right. See Texas Dep’t of Pub. Safety v. Schaejbe, 687 S.W.2d 727, 728 (Tex.1985); Naff v. State, 946 S.W.2d 529, 532-33 (Tex. App.—Fort Worth 1997, no pet.). Chapman’s rights have not been violated by the “no driving” condition. See Anderer, 61 S.W.3d at 406 (upholding condition that defendant convicted of criminally negligent homicide not operate motor vehicle while on bail pending appeal because of protection to the public). After hearing evidence from Chapman’s father, the trial court ruled that the conditions set for pre-trial release on bond were reasonable. The court found that in light of Chapman’s third arrest for DWI, the “no driving” condition was related to the safety of the community and would prevent Chapman from endangering himself, ensuring his safety and appearance in court. A condition of bond need not relate directly to securing the defendant’s presence in court. Elliott, 950 S.W.2d at 716. A condition is appropriate if it indirectly increases the likelihood that the defendant will appear. Id. The trial court also explained that after hearing evidence of Chapman’s employment at his father’s trucking company, the court considered that Chapman would have access to numerous other vehicles. Therefore, an interlock device on Chapman’s personal vehicle would be an inadequate safeguard. We cannot say that the trial court abused its discretion in imposing a “no driving” condition. Conclusion Chapman has not met his burden to establish that the trial court exceeded its authority or abused its discretion in imposing a “no driving” condition. We hold that the trial court did not abuse its discretion in denying Chapman’s application for pre-trial writ of habeas corpus. Chapman’s issues are overruled. Accordingly, we affirm the trial court’s order. PER CURIAM Panel consists of Justices Brown, Boyce and Jamison. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The “no driving” condition is the only condition challenged on appeal.