EX PARTE ERICK DRAKE CHARETTE v. << (2011)

OPINION

Opinion By Justice Lang

In separate trials, Erick Drake Charette was convicted of aggravated assault with a deadly weapon and bail jumping/failure to appear.   Punishment was assessed at four years' imprisonment in each case.   Appellant appealed each conviction.¹  The trial court set an appeal bond in each case in the amount of $30,000.   Appellant filed motions to reduce the amount of the bonds, which the trial court denied.   These appeals followed.²

Background

Appellant originally sought to be released on appeal bonds in June 2010.   A hearing was conducted on June 11, 2010.   At the June 11, 2010 hearing ³ appellant testified that if he was released on bond pending appeal, he would like to return to California, but would stay in Dallas if ordered.   If he stayed in Dallas, he would live in a shelter/halfway house called Freedom House.   He had received instructions from Matthew Pilgrim, the jail chaplain's son, to “call a Kim and go to her and refer Matt's name to her and they would set [appellant] up with housing and job placement.”   Appellant testified that he did appliance and computer repair.   At the conclusion of the hearing, the trial court set bond at $30,000 in each case.   Appellant appealed the ruling, but ultimately moved to dismiss those appeals.⁴

On September 15, 2010, appellant filed a motion to reduce the bonds.   The trial court conducted a hearing on September 21, 2010 on the motion.   At the hearing, appellant asked the judge to reduce the appeal bonds from the $60,000 total.   Appellant did not present any evidence as to changed circumstances since the June 11, 2010 hearing.   In response to the judge's question as to why the judge should reduce the bond, appellant responded, “I can't give you a reason right at the moment.”   Appellant stated “it would certainly make it a lot easier for self-representation.” ⁵

Applicable Law

Article 44.04(c) of the Texas Code of Criminal Procedure provides that in an appeal from any felony conviction in which the punishment does not exceed ten years' imprisonment or the offense is not one listed in article 42.12, section 3g(a)(1), the trial court “may ․ admit [the defendant] to reasonable bail until his conviction becomes final.”  Tex.Code Crim. Proc. Ann. Art. 44.04(c) (West 2006).   The trial court may also impose reasonable conditions of that bail.   See id.   The primary object of an appearance bond is to secure the defendant's presence in court when his conviction becomes final.   See generally id.   The only interest that is furthered by a defendant's right to remain free during appeal is the interest in protecting the defendant from an erroneous judgment.  Ex parte Anderer, 61 S.W.3d 298, 406 (Tex.Crim.App.2001).   That interest must be balanced against the interest of society in enforcing the penal laws.  Id.

We review the trial court's decision in setting bail pending appeal under an abuse of discretion standard.   See Ex parte Turner, 612 S.W.2d 611, 612 (Tex.Crim.App.1981);  Shugurt v. State, 994 S.W.2d 367, 369 (Tex.App.-Waco 1999, no pet.).   The person seeking the reduction has the burden of demonstrating the bail is excessive.   See Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex.Crim.App. [Panel Op.] 1980).   Although the ability or inability of the accused to make bail is a factor to be considered, that factor alone does not control the amount of bail.   See Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex.Crim.App. [Panel Op.] 1980).

Analysis

Appellant has been convicted of two felony offenses and sentenced to four years' imprisonment for each offense.   One of the offenses for which he was convicted was bail jumping/failure to appear.   Apart from stating he could not afford the $60,000 total bonds, appellant presented no evidence as to the amount of bond he could afford.   Nor did appellant present any concrete evidence as to either housing or employment pending appeal.

The person seeking the reduction has the burden of demonstrating the bail is excessive.   See Ex parte Rodriguez, 595 S.W.2d at 550.   Appellant did not satisfy his burden in these cases.   Therefore, we conclude the trial court did not abuse its discretion by denying the motion to reduce the bonds.

We affirm the trial court's order.

FOOTNOTES

FN1. Those appeals are pending and are docketed as cause nos.   05-09-01387-CR (aggravated assault) and 05-10-00305-CR (failure to appear)..  FN1. Those appeals are pending and are docketed as cause nos.   05-09-01387-CR (aggravated assault) and 05-10-00305-CR (failure to appear).

FN2. Neither appellant nor the State filed briefs.   Therefore, we will proceed without briefs.   See Tex.R.App. P. 31.1..  FN2. Neither appellant nor the State filed briefs.   Therefore, we will proceed without briefs.   See Tex.R.App. P. 31.1.

FN3. The trial court's order denying appellant's motion for bond reductions recites that the judge considered the record before it.   Therefore, we will consider the records from both the June 10, 2010 and September 21, 2010 hearings in reviewing the trial court's ruling..  FN3. The trial court's order denying appellant's motion for bond reductions recites that the judge considered the record before it.   Therefore, we will consider the records from both the June 10, 2010 and September 21, 2010 hearings in reviewing the trial court's ruling.

FN4. The first appeals were docketed as cause nos.   05-10-00900-CR and 05-10-00907-CR, styled Ex parte Erik Drake Charette..  FN4. The first appeals were docketed as cause nos.   05-10-00900-CR and 05-10-00907-CR, styled Ex parte Erik Drake Charette.

FN5. At the September 21, 2010 hearing, appellant was granted permission to represent himself in both the above appeals and the appeals from his underlying convictions..  FN5. At the September 21, 2010 hearing, appellant was granted permission to represent himself in both the above appeals and the appeals from his underlying convictions.

DOUGLAS S. LANG JUSTICE