No. 01-06-00035-CR
Opinion issued June 29, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 228th Judicial District Court, Harris County, Texas, Trial Court Cause No. 1050130.
Panel consists of Justices KEYES, ALCALA, and BLAND.
JANE BLAND, Justice.
This is an appeal from the trial court's order denying an application for writ of habeas corpus in connection with a bond reduction hearing. The State charges appellant, Thanh Duc Tran, with possession of cocaine with intent to deliver and possession of marijuana. The trial court initially set bail at $4 million and $2.4 million for each charge, respectively. After hearing Tran's application, the trial court reduced the bail to $800,000 for the cocaine charge and $500,000 for the marijuana charge. We affirm.
Facts
Rick Mendez, a representative of Access Bail Bonding, interviewed Tran to determine his ability to make bond. He testified to the following: Tran has lived in Houston since 1993, and currently resides with his sister. He also has a brother living in Houston. Tran is a self-employed tile worker, earning approximately $600 per week. He has a social security number and a passport. When Mendez asked Tran whether he has a bank account, Tran responded that he had access to about $2,000. Tran has no real estate and owns a 1991 Lexus worth about $1,000. Tran has one prior misdemeanor conviction for DWI from January 2005, has no bond forfeitures, and abided by the conditions of a previous bond. Mendez concluded his company would post a $5,000 bond on Tran's behalf. On cross-examination, Mendez conceded that Tran did not tell him a green Acura, alleged to have been involved in the delivery of cocaine, was registered in Tran's name, nor that he was the registered owner of a Honda minivan, in which police officers observed Tran leaving the location where the officers later discovered a substantial amount of cocaine and marijuana. The State proffered that on November 2, 2005, police officers received information about narcotics activity at 2828 Hayes Road, apartment 418, leading them to establish surveillance there. The officers observed Tran leave the apartment in a van, go to another location, and return in a green Acura. He later left the location in the van. Officers observed Tran at the apartment, and saw him open its garage door with an opener to allow a Honda pickup truck to exit the apartment's garage. When police subsequently stopped the truck for a traffic violation, they found approximately 110 pounds of marijuana in the truck's bed. Officers obtained a search warrant for the apartment. While waiting for the search warrant, officers saw two other suspects arrive at the apartment in a silver Neon. The officers found six kilograms of cocaine in their possession. When officers executed the warrant to search the apartment, they recovered approximately 600 pounds of marijuana, 20 kilograms of cocaine, and 400 grams of ecstasy tablets. Tran admitted to the officers that he and another friend watched the apartment. Police found approximately $1,300 in cash on Tran. The trial court concluded that the apartment was a "stash house." The trial court stated Tran's bonds would remain high because the the drugs were valuable and the range of punishment, confinement for a range of 15 years to life, made Tran a flight risk. The trial court reduced the bond on the cocaine charge from $4 million to $800,000 and on the marijuana charge from $2.4 million to $500,000. Standard of Review
The standard for reviewing bail settings is whether the trial court abused its discretion. See Ex parte Rubac, 611 S.W.2d 848, 849 (Tex.Crim.App. 1981). In the exercise of its discretion, a trial court should consider the following factors in setting a defendant's bail: 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 as an instrument of oppression.
3. The nature of the offense and the circumstances of its commission are to be considered.
4. The ability to make bail is to be regarded, and proof may be taken on 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 Supp. 2005); see Ludwig v. State, 812 S.W.2d 323, 324 (Tex.Crim.App. 1991) (noting that the court is "to be governed in the exercise of [its] discretion by the Constitution and by the [article 17.15 factors]"). The burden of proof is upon a defendant who claims bail is excessive. Rubac, 611 S.W.2d at 849; Ex parte Martinez-Velasco, 666 S.W.2d 613, 614 (Tex.App.-Houston [1st Dist.] 1984, no pet.). The primary purpose for setting bond is to secure the presence of the defendant in court at his trial. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex.Crim.App. 1977); Ex parte Bonilla, 742 S.W.2d 743, 744 (Tex.App.-Houston [1st Dist.] 1987, no pet.). The amount of bail should be set sufficiently high to give reasonable assurance that the accused will comply with the undertaking, but should not be set so high as to be an instrument of oppression. Ex parte Bufkin, 553 S.W.2d 116, 118 (Tex.Crim.App. 1977); Ex parte Willman, 695 S.W.2d 752, 753 (Tex.App.-Houston [1st Dist.] 1985, no pet.). Courts should also consider the defendant's work record, family ties, residency, criminal record, and conformity with previous bond conditions. See Rubac, 611 S.W.2d at 849. Discussion
A. Nature of the Offense Police established surveillance for narcotics activity at the Hayes Road apartment. During their observation, officers saw Tran leave the location in a van, go to a second location, and return to the apartment, driving a green Acura. Police also saw Tran open the apartment's garage with an automatic opener to allow a Honda pickup truck to exit it. Officers then pulled over the truck that had left the garage. They searched the truck and discovered 110 pounds of marijuana. While waiting to execute a search warrant for the Hayes apartment, officers apprehended two additional suspects arriving at the apartment in possession of six kilograms of cocaine. When police searched the apartment, they found approximately 20 kilograms of cocaine, 600 pounds of marijuana, and 400 grams of Ecstasy tablets. Tran admitted that he and a friend kept watch over the apartment. Police found $1,300 cash on Tran at the time of his arrest. The cocaine charge is a first degree felony offense, carrying a range of punishment of 15 to 99 years or life imprisonment and a fine not to exceed $250,000. See Tex. Health Safety Code Ann. § 481.112(a), (f) (Vernon 2003); id. 481.102(3)(D) (Vernon Supp. 2005). The marijuana charge is a second degree felony offense, carrying a range of punishment of not more than 20 years or less than two years and a fine not to exceed $10,000. Id. § 481.121(b)(5) (Vernon 2003); Tex. Pen. Code Ann. § 12.33(a), (b) (Vernon 2003). The State proffered evidence supporting the theory that Tran participated in the transportation and sale of large quantities of illegal drugs. According to the State's proffered evidence, Tran's participation in this alleged drug smuggling operation involved at least two other drug couriers and three vehicles that he did not discuss with his bail bondsman who testified: (1) the minivan, (2) the green Acura, and (3) the Honda pickup. In addition, Tran allegedly admitted that he and a friend "watched over" the Hayes apartment where police found large quantities of cocaine, marijuana and ecstasy. The nature of the alleged offenses is serious, carrying substantial penalties. We conclude that the State's proffer supports the trial court's inference that the Hayes apartment was a "stash house" of the type used by an organized drug smuggling operation, distributing a large quantity of drugs. In cases involving similarly large quantities of drugs, our court has held that the trial court does not abuse its discretion in setting a high bond. See, e.g., Ex parte Ruiz, 129 S.W.3d 751, 754 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (holding that drug operation with house containing 55 kilos of cocaine at its nexus in part justified $600,000 bond); Ex parte Willman, 695 S.W.2d at 753 (upholding $300,000 bond where police recovered 2 kilos of cocaine and defendant was charged with first degree felony); see also Brown v. State, 11 S.W.3d 501, 503 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (upholding $500,000 bond where police recovered 4.5 kilos of cocaine, despite defendant's strong family and community ties and his apparent inability to post bond, due in part to the serious nature of the offense); Maldonado v. State, 999 S.W.2d 91, 95-96 (Tex.App.-Hous. [14th Dist.] 1999, pet. ref'd) (upholding $2.5 million bond where police recovered 721 kilos of cocaine). B. Sufficient Bail to Assure Appearance But Not Oppress Tran contends that the State offered no evidence to justify the high bonds for these charges. The State responds that illegal drug smuggling operations of the kind alleged often require large amounts of cash and the involvement of monied backers willing to forfeit bonds that are not sufficiently high. See Willman, 695 S.W.2d at 753; Maldonado, 999 S.W.2d at 94 (Harris County bail bondsman admitted familiarity with recent bond forfeitures in large narcotic bond cases, including a $300,000 bond forfeiture in a drug case). This court has upheld trial court orders setting bonds in ratios related to the quantity recovered within the range of the trial court's order in this case. See Ruiz, 129 S.W.3d at 755 (upholding order setting the bail at $600,000 in a case in which police seized 63.55 kilos of cocaine); Willman, 695 S.W.2d at 753-54 (setting bail at $300,000 in a cocaine delivery case involving two kilos of cocaine). Here, Tran contends that we should not consider the street value of the drugs because the State offered no evidence to support such a conclusion. In setting the bonds, the trial court stated, "Sounds like a pretty extensive operation. And there is about $3 million worth of drugs involved." While the record reflects some evidence to support the former conclusion, the State offered no evidence to support the trial court's valuation of the drugs. We agree with Tran that we cannot consider the trial court's statement regarding the specific street or market value of the drugs to support the bonds in this case without evidence to support such a conclusion in the record. Nonetheless, given the large quantity of cocaine, ecstasy, and marijuana recovered, the trial court reasonably could have concluded that the market value of the drugs was significant — even if specifically undetermined — and a substantial source of income to those alleged to have possessed them with an intent to distribute them. One need not know the precise market value of a fleet of Mercedes at a car dealership to understand that those vehicles represent a significant source of income to the dealer; similarly, although no one offered evidence of the precise market value of the illegal drugs involved, the State provided the quantities recovered, which even at their lowest value would represent a significant source of income to those alleged to possess them with an intent to distribute. Tran introduced evidence from a bail bondsman that the largest bond Tran could make was $5,000. Given the evidence that associated Tran with the house where drugs were recovered, the three vehicles involved in the offenses, the large quantity of the drugs, and the $1,300 found on Tran's person, the trial court reasonably could have found that Tran's resources, as testified to by the bail bondsman, were not the only ones available to Tran, and therefore, he did not carry his burden to establish that he is unable to make bail. Tran notes that he complied with an earlier bond to secure his appearance in connection with a misdemeanor DWI charge, that he has lived in Houston for 13 years, has a sister and a brother who live in Houston, and that it is his first drug charge. These factors would indicate that the court could assure his attendance at trial with a lower bond. However, ties to the community and compliance with bonds associated with earlier criminal appearances, although factors that a trial court may take into account, may not outweigh the quantity of the drugs recovered, the mobility available to participants in the illegal transport and sale of drugs, and the resources that such activities provide to a defendant seeking to forfeit a bond. Brown, 11 S.W.3d at 503-04. In addition, the charges involved are serious offenses, with ranges of punishment from 15 years to life imprisonment in one charge and two to 20 years imprisonment in the other charge. Based on these factors, the trial court concluded Tran is a flight risk. C. Other Factors The parties offered no evidence as to the fifth factor specified in article 17.15, the future safety of a victim of the alleged offense and the community. A trial court should not ignore, however, the negative impact that the possession and distribution of cocaine and marijuana has on the safety of the community. Maldonado, 999 S.W.2d at 97. In setting bail, however, the trial court considered these factors against the State's allegations involving a drug smuggling operation, the quantity of drugs recovered, and the lengthy terms of potential imprisonment. Conclusion
Given the totality of the circumstances, we hold that the trial judge did not abuse his discretion in setting bail. We therefore affirm the order of the trial court.