COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

EX PARTE: MARL I

N MOORE § § § § § § No. 08-08-00259- CR

Appea l from the 41st District Court of El Paso County , Texas (TC# 20080D03174)

O P I N I O N This is an appea l of a district cour t’s denial of a

n application for

writ of habe as cor

pus. Mr. Moore w as cha

rg ed with DrivingWhil e Intox icated, se cond off ense. H e is now complaining about a much de layed modification of the conditions of his bail that require s him to onl y drive vehicles e quipped with an ig nition int erloc k. He f iled his writ of habe as cor pus with the district court on the f

ollowing ba ses: (1) T E X .C O D E C R I M .P R O C .AN N . art. 17.09 prohibits the imposition of an a dditional requireme nt for bail set in his case ; and (2) his due proce ss rig hts were violated beca use no hea

ringor evide nce w ere provided re lating to the r equire ments of Article 17.09. The district court denie d Appellant’s wr it application. On J uly 9, 2006, Appellant wa s arr ested for DrivingWhil e I

ntox icated ( DWI ), sec ond offe nse. He posted a $750 sure ty bond that day

in acc ordanc e with the mag istrate’s or der. O n J uly 24, 2006, Appellant wa s char g ed by an Information with DWI , second of fense . Appellant waived his a

rra ignme nt and enter ed a ple a of “ not guilty” about a month later. Almost two y ear s later, June 24, 2008, a county criminal cour

t at law judg e ente red a

DWISecond ModificationOrde r on the bond, whic h order ed Appe llant not to operate a ny motor vehicle unle ss the vehicle
was e quipped with an ig nition int erloc k. Appellant filed a n objection to the interlock require ment, and the c ounty criminal cour

t held a hea

ringon J une 25, 2008. The court ove rruled Appellant’s objec tion. The court issued its finding s of fa ct and c onclusions of law. On July 7, 2008, Appellant filed his applica tion for writ of ha

beas c orpus and f

or alter native re lief with the district court. Afte r a he aring , the cour t denied Appe llant’s writ application. On appe al, Appellant r aises five issues: (1) under T E X .C O D E C R I M .P R O C .AN N . art. 17.09, the district court e rre d in ruling that the trial court wa s authorized to modify the bond af

ter Appellant alr eady

provided ba il upon his original re lease , unless there is some defe ct in that bond or other g ood and suff

icient re ason exists ; (2) the tria l court violated Appe llant’s constitutional rig hts by requiringadditional bond and conditions of re lease pursuant to Article 17.441(a) (1) without providing a

hear ing a nd finding s of those def

iciencie s as set out in Article 17.09( 3); (3) the fa ct that the orig inal mag istrate had r elea sed Appe llant without the interlock requir ement makes it an implied findingthat the interlock r equire ment is not in t he best intere st of justice pursuant to Article 17.441(b); (4) the subsequent tria l judge violated Article 17.441(c) by requiringAppellant to install the interlock devic e bec ause the orig inal mag istrate did not require him to do so before the thirtieth day afte r the da

te that he wa s relea sed on bond; and (5) the subsequent judg e violated Appe llant’s due proc ess rig hts by imposing newconditions of rele ase in addition to the new bond without evidence of his failure to comply with the orig inal terms and conditions of rele ase or

other g ood and suff

icient re ason. In revie wingthe district court’s de cision to gr ant or de ny habea s corpus re lief, we view the fa cts “‘in the lig ht most favorable to the [di strict] j udg e’s r uling a nd should uphold itabsent
-2-an abuse of discre tion.’” Ex parte W heele r , 203 S.W .3d 317, 324 (Tex.Crim.App. 2006). I f the resolution of the ultimate questions turns on an e valuation of c redibility and deme anor, w e provide the same amount of de fer ence to the district court’s a pplication of the lawto the fac ts. See E x parte Pe terson , 117 S.W .3d 804, 819 (Tex.Crim.App. 2003). Howeve r, if the r esolution of the ultimate questions turns on an a pplication of leg al standar ds, we re view the de termination de novo
. See id
. In revie winga trial c ourt’s dec ision reg ardingbail settings, we look at whether the trial court ha s abused its discre tion and fix ed bail at a n excessive amount. See Cooley v. State , 232 S.W .3d 228, 233 (Tex.App.--Houston [1st Dist.] 2007, no pet.). An a ppellate c ourt should not intervene if the trial cour

t’s rulingis within t he zone of re asonable disag ree ment even if the appellate court would have re ache d a diffe rent re sult with respect to bail setting s. SeeT E X .C O D E C R I M .P R O C .AN N . art. 17.15 (V ernon 2005) ; Ex parte He nson , 131 S.W .3d 645, 647 (Tex.App.-- Texarkana

2004, no pet.). The defe ndant bea rs the burde n to prove that ba il is ex cessive. See U.S.C O N S T . A M E N D . VI I I ; T E X .C O N S T . art. 1, § 13; T E X .C O D E C R I M .P R O C .AN N . art. 1.09 (Ve rnon 2005); Ex parte Cuev as , 130 S.W .3d 148, 150 (Tex.App.--El Paso 2003, no pet.)
. In his first issue, Appellant contends that under T E X .C O D E C R I M .P R O C .AN N . art. 17.09, the district court e rre d in ruling that the trial court wa s authorized to modify the bond af

ter Appellant alr eady

provided ba il upon his original re lease , unless there is some defe ct in that bond or other g ood and suff

icient re ason exists . Appellant conc edes that Article 17.441 may authorize the trial cour

t to modify

the bond but arg

ues that the modification does not “comport with principles of c onstitut ional due proc ess, two y ear s after [hi s] original re lease and with no fa ctual support . . . .”
-3-Texas courts have no inhere nt authority to ignor e express statutory provisions. See E

x parte Elliott , 950 S.W .2d 714, 716 (Tex.App.--F ort Worth 1997, pet. ref’ d). And it follows that a trial c ourt ca

n not abuse its discretion by followingan express statutory provision. See id
. T E X .C O D E C R I M .P R O C .AN N . art. 17.09, § 2 (V ernon Supp. 2009) pr ovides that when a defe ndant has provide d bail for his appe ara nce in a nsweringto a cr iminal charg e, he sha ll not be require d to post another bond in the cour se of the sa me cr iminal action. But ther e is an e x ception to that rule: Article 17.09, § 3 pr ovides that if a judg e or ma g istrate duringthe cour se of a defe ndant’s cr iminal action that is pendingfinds that the orig inal bond is defec tive, excessive or insufficient, a

ny sureties a re una cce ptable, or f

or any other g ood and suff

icient ca use, he or she may order the def endant to be r ear

rested a nd require him to give a

nother bond. The judge or mag istrate must relea se the de fenda nt from custody

once he or she a

pproves the g iven bond. See T E X .C O D E C R I M .P R O C .AN N . art. 17.09, § 3. Moreove r, T E X .C O D E C R I M .P R O C .AN N . art. 17.441 sets out the c onditions requiring motor vehicle ig nition int erloc k. The statute manda tes a mag istrate to re quire on re lease that a defe ndant cha

rg ed with an of

fense under Sec tions 49.04-49.06, 49.07, or 49.08 of the Pena l Code, which c over D WIoffe nses, to install the interlock device onto his mot or vehic le. See id
. A def endant may

not operate any

motor vehicle unle ss the vehicle is e quipped with this device. See id . The only

exception to this mandate is whe re the mag istrate finds that to re quire the installation “would not be in the best intere st of justice.” See id . The mag istrate must also require the def

endant to install the device at the def endant’ s expense befor e the thirtieth day afte r the date the defe ndant is relea sed on bond. SeeT E X .C O D E C R I M .P R O C .AN N . art 17.441. Appellant posted the sur ety bond in J uly

2006, but almost two y ear s later, in June 2008,
-4-the trial cour t entere d an orde r to modify that bond. The trial c ourt’s orde r stated that it was done
acc ordingto the require ments of Article 17.441. Be cause Appellant wa s char g ed with a DWI offe nse, Article 17.441 applies, and be cause the orig inal bond did not require A ppellant to install the interlock de vice, the tr ial court found the bond to be def ective unde r the e x press languag e of Article 17.09, § 3. The trial court c omplied fully with both Articles 17.09 and 17.441, the express statutory

provisions that are r eleva nt in the present c ase, a

nd we c an not find that it abused its discre tion. W e over rule I ssue One. In his second issue, Appe llant contends that his due proc ess rig hts were violated by requiringadditional bond and conditions of re lease pursuant to Article 17.441(a) (1) without providinghear ing a

nd finding s of those def

iciencie s as set out in Article 17.09, § 3. Notwithstanding his conte ntion, after he filed his objection to the interlock r equire ment on J une 24, 2008, the tria l court did hold a hea ringon the re quirement on June 25, 2008 and issued finding s of fa ct and c onclusions of law on July 10, 2008. The c ourt held that Appe llant prese nted no fa cts or cir cumstance s to indicate the interloc k installation would not be in the best interest of justice a ccor ding to Ar ticle 17.441(b) a

nd found that the re quirement wa s in the best interest of justice. We f

ind the trial court did not abuse its discretion. We overrule I ssue Two. In his remainingissues, Appellant conte nds: the fac t that the orig inal mag istrate had rele ased A

ppellant without the interlock re quirement make s it an impli ed findingthat the interlock re quirement is not in the best interest of justice pursuant to Article 17.441(b); the subsequent trial judg e violated Ar ticle 17.441(c ) by

requiringAppellant to install the interlock device beca

use the orig inal mag istrate did not require him to do so before the thirtieth day afte r the date that he was r elea sed on bond; and the subse quent judg e violated Appe llant’s due proc ess
-5-rig hts by

imposing newconditions of rele ase in a ddition to t he new bond without evidence of his failure to comply

with the orig inal terms and c onditions of relea se or other g ood and suff

icient
rea son. T E X .R.A P P .P. 33.1 requires a party to make a c omplaint to the trial court and f or the trial court to rule on it bef

ore the issues in the complaint can be appea led. I f an a ppellant does not do so, he fa ils to preserve his complaint and the issues within it for appellate revie w. See id
. Be cause the re cord doe s not show that Appellant pre sented those c omplaints to t he trial c ourt below, we must conclude that he has wa ived them for pur poses of this appea l. There fore , we
overr ule I ssues Thre e, F our, and F ive. Havingoverr

uled all of Appe llant’s issues, we a ffirm the tria l court’s judg ment.
August 25, 2010 DAVI D WEL L I NGTONCHEW, C hief Just ice
Be fore Chew, C.J ., Rivera, J., and Moody , J udg e Moody , J udg e (Sitting by Assignme nt) (Do Not Publish)

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