Court of Appeals of Texas, San Antonio.
Ex Parte Edward Glen BYARS.
No. 04-97-00783-CR.
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March 18, 1998.
From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 97-CR-4626 Honorable Andrew W. Carruthers, Judge Presiding
Sitting PHIL HARDBERGER, Chief Justice TOM RICKHOFF, Justice SARAH B. DUNCAN, Justice.
Memorandum Opinion
SARAH B. DUNCAN, Justice.
AFFIRMED
*1 Appellant Edward Glen Byars was indicted for the offense of sexual assault as a repeat offender and his bail was set at $50,000. Byars filed an application for a writ of habeas corpus seeking a reduction in the amount of bail. The criminal law magistrate denied relief and Byars appealed to this court. After reviewing the record we conclude that the trial court did not abuse its discretion and affirm its decision. Because the law governing this matter is well settled, we issue this memorandum opinion. See Tex.R.App. P. 47.1.
The amount of bail “is a matter within the trial court’s sound discretion.” Ex Parte Dueitt, 529 S.W.2d 531, 532 (Tex.Crim.App.1975); Tex.Code Crim. Proc. Ann. art. 17.15 (Vernon Supp.1998). Article 17.15 provides that in exercising that discretion, the court is to be governed by the 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.
Id. A defendant challenging the amount of his bail has the burden of showing that the amount is excessive in light of these considerations. Ex Parte Wood, 952 S.W.2d 41, 42 (Tex.App.-San Antonio 1997, no pet.) (citing Ex Parte Rubac, 611 S.W.2d 848, 849 (Tex.Crim.App.1981)). We review the trial court’s decision of whether to reduce bail for abuse of discretion. Id.; Tex.Code Crim. Proc. Ann. art. 17.15 (Vernon Supp.1998); see Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).
The indictment charges Byars with sexual assault, a second degree felony. Tex. Penal Code Ann. § 22.011(f) (Vernon 1994). However, Byars is charged as a repeat offender due to a prior felony conviction. Therefore, if he is convicted, his punishment will be for a first degree felony, Tex. Penal Code Ann. § 12.42(b) (Vernon 1994), and he would face punishment of five to ninety-nine years or life imprisonment and a fine of up to $10,000. Tex. Penal Code Ann. § 12.32 (Vernon 1994).
The only testimonial evidence presented at the hearing was from Byars. The State offered the written statement of the complainant, a copy of the indictment, and a printout of Byars’ criminal history. The complainant’s statement alleges she met Byars at an Alcoholics Anonymous meeting, they became friends, and, when she was temporarily without a place to stay, Byars offered her a place to sleep for a few nights. After several days she made other arrangements; she later returned to Byars’ apartment, however, to pick up her belongings. The statement alleges that Byars would not let her leave, threatened her with violence, and forced her to perform oral sex. The State also presented evidence that Byars has seven prior misdemeanor convictions and two prior felony convictions, one for sexual abuse for which he was sentenced to nine years in prison.
*2 Byars’ testimony suggests that his ties to his family and the community are not strong. He is divorced, and his two grown children live in the Houston area. Although he grew up in San Antonio and has family there, in the month and a half he had been incarcerated at the time of the hearing, Byars’ only contact with his family was a call to one uncle. At the time of his arrest, Byars lived alone in a rented apartment. Since his arrest, he has been evicted. He owns no real property. There was no evidence of where Byars would live if he were able to post bond. Byars has not worked since he sustained an injury in August 1996.
Byars testified that he called several bondsmen who told him he would have to pay at least $5,000 for a bond. He stated that he did not have any resources other than the $195 a week he was receiving in workers’ compensation payments at the time of his arrest. He stated he could raise $500, or maybe up to $1,000, if he used his workers’ compensation payments and could pay in installments. The only other person Byars talked to about helping him raise money was one of his uncles. He did not believe the uncle had had any success in raising money for bail. Byars testified that he had not contacted any of his family or friends because he did not have access to their telephone numbers. Nevertheless, he testified, his family was poor, did not have that kind of money, and were not in a position to borrow money to help him post a bond. The record does not reflect any other efforts by Byars to obtain funds to post bond.
The record supports a finding that the trial court acted within its discretion in declining to reduce Byars’ bail. We therefore affirm the trial court’s order denying the requested bail reduction.