Ex Parte Darius Cooper

Affirmed and Memorandum Opinion filed July 8, 2010. In The Fourteenth Court of Appeals ____________ NO. 14-10-00346-CR ____________ EX PARTE DARIUS COOPER On Appeal from the 177th District Court Harris County, Texas Trial Court Cause No. 1254432 M E M O R A N D U M   O P I N I O N Darius Cooper has been charged with three first-degree felony offenses: aggravated kidnapping in cause number 1234210; and aggravated robbery in cause numbers 1234211 and 1234212. The trial court set bond at $30,000 in each case. Cooper filed a pre-trial application for writ of habeas corpus seeking a reduction of the bonds to $5,000 in each case. See Tex. Code Crim. Proc. art. 11.24 (Vernon 2005). After a writ hearing, the trial court denied relief. This appeal followed. See Tex. R. App. P. 31. Background In cause numbers 1234210 and 1234212, Cooper is charged with aggravated kidnapping and aggravated robbery during which it is alleged that he and two other men approached the complainant and another man in a parking lot, ordered the men to the ground at gunpoint, and took their wallets.[1] It is alleged that Cooper and his accomplices forced the men into a car, drove them to a nearby automatic teller machine, and forced them to withdraw money. The group then returned with the complainant to his apartment, forced their way inside, woke the complainant’s roommate, and forced the victims to lie on the floor as they ransacked the apartment. One of the defendants “play[ed] Russian roulette” as he pointed a pistol at the victims’ heads. In cause number 1234211, the State charged Cooper with aggravated robbery for a “home-invasion-style” robbery. It is alleged that Cooper and two accomplices approached the complainant as he was leaving for work, put a gun to the complainant’s head, and forced him to take them into his apartment where they stole several items, including guitars. During the home invasion, one of the defendants sexually assaulted the complainant’s wife. It was unclear whether Cooper or one of the other defendants committed the sexual assault. The stolen items were recovered from a pawn shop and traced to the three defendants. Cooper and one of the accomplices confessed to the crimes. At the writ hearing, Cooper and his older brother testified. At that time, Cooper had been incarcerated for over six months. Cooper’s brother testified that family members had attempted to raise the money for his bonds, but they could only raise about $1,700. Cooper testified about his employment and lack of assets. At the conclusion of the hearing, the trial court denied Cooper’s request to reduce his bonds, finding that his requested bonds of $5,000 in each case were “wholly insufficient to secure his attendance at trial.” Standard of Review In his sole issue in this appeal, Cooper contends that the trial court erred in denying his request to lower his bonds. He alleges that he is illegally confined because of the unreasonable bonds in the underlying cases. We review a trial court’s ruling on the setting of bond under an abuse of discretion standard of review. See Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. 1981); Milner v. State, 263 S.W.3d 146, 147 (Tex. App.—Houston [1st Dist.] 2006, no pet.) A defendant who seeks a reduction in the amount of bond has the burden of proof to demonstrate that the bond is excessive. Maldonado v. State, 999 S.W.2d 91, 93 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). The primary purpose of an appearance bond is to secure the accused’s presence at trial on the charged offense. Id. Bail should be set high enough to give reasonable assurance that the defendant will appear at trial, but it should not operate as an instrument of oppression. Id. Bail set at an amount higher than reasonably calculated to fulfill this primary purpose is excessive under the Eighth Amendment. In re Durst, 148 S.W.3d 496, 498 (Tex. App.—Houston [14th Dist.] 2004, no pet.). While the decision regarding a proper bail amount lies within the sound discretion of the trial court, the court is required to consider the criteria set forth in article 17.15 of the Texas Code of Criminal Procedure, which provides as follows: The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by 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 used so 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. Tex.Code Crim. Proc. Ann. art. 17.15 (Vernon 2005); see Ludwig v. State, 812 S.W.2d 323, 324 (Tex. Crim. App. 1991) (noting that the court is to be guided by the article 17.15 factors). We measure the trial court’s ruling against these criteria. Ex parte Beard, 92 S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref’d). In addition to these criteria, the trial court may consider the following factors in determining bail: (1) the accused’s work record; (2) the accused’s family and community ties; (3) the accused’s length of residency; (4) the accused’s prior criminal record; (5) the accused’s conformity with previous bond conditions, if any; (6) the existence of any other outstanding bonds; and (7) aggravating circumstances alleged to have been involved in the charged offense. Maldonado, 999 S.W.2d at 93. The Nature and Circumstances of the Offenses 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); Ex parte Hunt, 138 S.W.3d 503, 506 (Tex. App.—Fort Worth 2004, pet. ref'd). In considering the nature of the offense, it is also proper to consider the possible punishment. Maldonado, 999 S.W.2d 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 record reflects that Cooper has been charged with three first degree felonies. Therefore, he could be sentenced to up to 99 years in the Texas Department of Criminal Justice and assessed a $10,000.00 fine in each of these cases if he is convicted. See Tex. Penal Code Ann. § 12.32 (Vernon 2003). The probable cause summary alleges that Cooper committed aggravated robbery and aggravated kidnapping. Specifically, the victims were robbed at gunpoint and forced to withdraw money from an ATM. Cooper and his accomplices then accompanied a victim to his home where the occupants were threatened with a gun. At another home-invasion robbery, Cooper or one of his accomplices sexually assaulted the robbery victim’s wife. These offenses are both serious and violent in nature. The nature of these aggravated offenses warrants a bond sufficiently high to secure Cooper’s presence at trial. Ability to Make Bond The accused’s ability to make bond is merely one factor to be considered in determining the appropriate amount of bail. See Tex. Code Crim. Proc. Ann. art. 17.15(4); Ex parte Brown, 959 S.W.2d 369, 372 (Tex. App.—Fort Worth 1998, no pet.). A defendant’s inability to secure bond for the bail set by the trial court does not automatically render the bail excessive. Id. If the ability to make bond in a specified amount controlled, the role of the trial court in setting bond would be unnecessary and the accused would be able to set his own bond. Gonzalez v. State, 996 S.W.2d 350, 353 (Tex. App.—Houston [14th Dist.] 1999, no pet.). To show that he is unable to make bail, a defendant generally must show that his funds have been exhausted. See Ex parte Willman, 695 S.W.2d 752, 754 (Tex. App. —Houston [1st Dist.] 1985, no pet.). Unless he has shown that his funds have been exhausted, a defendant should show that he made an unsuccessful effort to furnish bail before bail can be determined to be excessive. Id. Cooper testified at the writ hearing that he was employed before his arrest as a home health worker and he took care of his mentally disabled brother. He lived at home with his mother part of the time and with a friend part of the time. Including his brother’s disability checks, he stated that the monthly household income was about $1,300 to $1,400. Cooper testified that he does not have the cash, or any other assets, to pay a bail bondsman. On cross-examination, he denied any knowledge of the proceeds from the pawned items from the robberies. Appellant’s brother, Roderick, was the only other witness to testify. He testified that he had spoken to two or three unidentified bondsmen who said they would “work with” him if he were able to get the bond lowered. He testified that he worked for a “temp service,” and that he made about $1,200 in a good month. Roderick testified that he sold his car to raise money for the bond and received $1,100, about $800 of which remained. He was unable to testify to any specific information about how much money Cooper and his other family members had or could raise to post bond. Roderick estimated that the family had raised between $1,500 and $1,700 that his mother is holding for Cooper’s bond. He was unable to provide a definite amount because he stated that his mother did not trust him with the money. This unsupported, vague and conclusory testimony does not justify a reduction in the bonds. See Ex parte Chavfull, 945 S.W.2d 183, 186-87 (Tex. App.—San Antonio 1997, no pet.) (affirming refusal to lower bond despite mother’s testimony that defendant had no money and family could only raise $1000); Balawajder v. State, 759 S.W.2d 504, 506 (Tex. App.—Fort Worth 1988, pet. ref’d) (noting that vague references to inability to make bond do not justify a reduction in the amount set); Ex parte Miller, 631 S.W.2d 825, 827 (Tex. App.—Fort Worth 1982, pet. ref’d) (recognizing that it is incumbent on the accused to show that he has made an effort to obtain a bond in the amount set). Because Cooper provided only general information supporting his claimed inability to make bail and efforts to secure bond, the trial court could have properly concluded that the amount of bail was reasonable under the circumstances. See Scott, 122 S.W.3d at 870. Safety of the Victim and the Community The future safety of both the community and the victim of the alleged offense are to be considered in determining the appropriate amount of bond. See Tex. Crim. Proc. Ann. art 17.15(5) (Vernon 2005). The repeated and unprovoked acts of violence in these cases pose a significant risk to the community. In making his ruling, the judge stated on the record that he considered the nature of the offenses and the need to protect the community in denying Cooper’s requested bond reduction. The trial court may have concluded within its discretion that the number of offenses, together with the escalating pattern of violence, warranted a bail sufficient to ensure the safety of the community as a whole and of the individual victims and witnesses who may testify at trial. See Chavfull, 945 S.W.2d at 187 (considering defendant’s potential danger to the community as a factor in denying reduction of bond). Other Factors The trial court may also consider the defendant’s work record; family and community ties; length of residency; and his prior criminal record. Maldonado, 999 S.W.2d at 93. There is no mention in the record of Cooper’s prior arrests or other criminal history, if any. There is scant testimony about the other factors. The only evidence of his ties to the community was that his two brothers and mother reside in Harris County. Cooper and his brother testified that Cooper had no family outside of Texas and that if he were released on bond, Cooper would stay in Harris County. Cooper owns no property in Texas. There is no evidence that he is married or has children in Texas. If Cooper failed to appear at trial, only his family’s money would be at risk, rather than his own. The trial court may have determined within its discretion that appellant’s ties to the community were insufficient to assure his appearance at trial. See, e.g., Brown, 959 S.W.2d at 373 (refusing to lower bond where seriousness of crime and potential punishment together with insufficient ties to the community made applicant a flight risk). Conclusion Cooper has not met his burden to establish that the bonds in these cases are excessive. We hold that the trial court did not abuse its discretion in denying his request to lower the bonds. Accordingly, we overrule Cooper’s sole issue and affirm the trial court’s order. PER CURIAM Panel consists of Chief Justice Hedges and Justices Yates and Boyce. Do Not Publish C Tex. R. App. P. 47.2(b). [1] At the writ hearing, the prosecutor provided the trial court with the information concerning probable cause for the charged offenses. See Tex. R. Evid. 101(d(1)(E) (stating that the Texas Rules of Evidence do not apply in a hearing to lower bail); Garcia v. State, 775 S.W.2d 879, 880 (Tex. App.—San Antonio 1989, no pet.) (holding that the hearsay rule did not apply in habeas corpus proceedings seeking a reduction of bail and considering the unsworn summation by the prosecutor).