Thanh Duc Tran v. State

Opinion issued June 29, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00035-CR

____________

THANH DUC TRAN

V.

THE STATE OF TEXAS

On Appeal from the 228th Judicial District Court

Harris County, Texas

Trial Court Cause No. 1050130

MEMORANDUM OPINION

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

a ppellant, 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.

T ex . C ode C rim . P roc . A nn . 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. [14 th 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 t o 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.

Jane Bland

Justice

Panel consists of Justices Keyes, Alcala, and Bland.

Do not publish. Tex. R. App. P. 47.2(b).