Opinion issued August 30, 2002
In The
Court of Appeals
For The
First District of Texas
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NO. 01-02-00507-CR
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EX PARTE DARRIN KEITH BROWN, Appellant
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 908471
O P I N I O N
Appellant, Darrin Keith Brown, appeals the trial court's refusal to grant him habeas corpus relief when it declined to reduce his $125,000 bail.
Facts
Appellant is charged with possession of more than four grams and less than 200 grams of cocaine, enhanced by two alleged prior felony convictions. The punishment range for such an offense is confinement for twenty-five years to ninety-nine years or life. See Tex. Pen. Code Ann. §12.42(d) (Vernon Supp. 2002). At the April 2002 bail reduction hearing, the State introduced appellant's indictment and rested.
Appellant put on two witnesses, his mother and himself. His mother testified that she had contacted four bonding companies and could not make the $125,000 bail. She is disabled and her husband is a carpenter. They have monthly income of about $1,000, and, after expenses, they could pay about $200 a month toward a bond. They do not own a house, a car, or have cash in a bank account. She has jewelry worth about $2000. She thinks her friends and relatives could raise $10,000. They have no other assets to pledge as collateral for a bond.
Appellant's mother testified that appellant has lived in Harris County all his life. Before this incident, he was living with his mother and his step-father, who are also life-long Harris County residents. If released on bond, he would continue to live with them. Appellant also has aunts, uncles, and siblings living in Harris County. None of her son's prior crimes, or the one currently charged, have involved violence.
Appellant testified that he has been in jail for four months. He cannot make the $125,000 bail. He has no money in the bank, no car, no house, nor other assets, except some jewelry that is worth $400 to $500, to help make the bail. Before he was arrested, he made $550 to $600 a month, and, if released on bail, he could and would go back to the refinery waterblasting work he was doing.
In August 2001, in connection with a prior offense, appellant successfully completed parole, complying with all its conditions.
Appellant has never been married and has no children. He attended school through the 11th grade. If released on bail, he intends to appear for all the trial settings, as well as the trial, to which he is looking forward so that he can present his case.
The trial court refused to reduce appellant's bail.
Appellant contends that $125,000 bail is excessive.
Analysis
There is no precise standard for reviewing bond settings on appeal. Ex parte Pemberton, 577 S.W.2d 266, 267 (Tex. Crim. App. 1979). A reviewing court is guided by article 17.15 of the Texas Code of Criminal Procedure. Id. Article 17.15 provides:
The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by 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.
Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon Supp. 2002).
A defendant has the burden to show that bail is excessive. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. 1981); Ex parte Willman, 695 S.W.2d 752, 754 (Tex. App.--Houston [1st Dist.] 1985, no pet.). The primary factors to be considered in determining what constitutes reasonable bail are the punishment that can be imposed and the nature of the offense. Rubac, 611 S.W.2d at 849; Hughes v. State, 843 S.W.2d 236, 237 (Tex. App.--Houston [14th Dist.] 1992, no pet.). Other circumstances and factors to be considered in determining the amount of bail include: family ties, residency, ability to make bond, aggravated factors involved in the offense, the defendant's work history, prior criminal record, and previous outstanding bonds. Rubac, 611 S.W.2d at 849; Willman, 695 S.W.2d at 754. The ability to make bail, alone, does not control the amount of bail. Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. 1980).
Regarding such factors as family ties and residency, appellant produced evidence weighing in favor of bail reduction. Appellant's evidence on work history was inconclusive, showing that he had a job before he was arrested, but not indicating how long he had held such a job. With respect to previously outstanding bonds, appellant introduced no evidence of whether he had made bonds in connection with his prior criminal offenses, and, if so, whether he complied with such bonds by making all his court appearances. However, appellant did introduce evidence of successfully completing parole. On the subject of future safety of the victim and the community, appellant produced evidence that there were no allegations of violence for the charged offense or in his prior offenses.
Concerning appellant's ability to make bail, appellant and his mother gave uncontroverted testimony that he could not make the $125,000 bail, but, with the help of family and friends the family could raise $10,000. However, while the accused's ability to make bail is relevant, it is not controlling in setting bail. See Ex parte Sabur-Smith, 73 S.W.3d 436, 440 (Tex. App.--Houston [1st Dist.] 2002, no pet.).
The primary factors to be considered in determining what constitutes reasonable bail are the punishment that can be imposed and the nature of the offense. Rubac, 611 S.W.2d at 849; Hughes, 843 S.W.2d at 237. The offense with which appellant is charged is a second degree felony, enhanced with two prior felony convictions, carrying a punishment of confinement ranging from twernty-five years to life. See Tex. Pen. Code Ann. §12.42(d) (Vernon Supp. 2002). The State cites Willman for the proposition that drug cases, by their very nature, require consideration of other factors such as the involvement of large amounts of cash and the involvement of financial backers willing to forfeit bonds that are not sufficiently high. See Willman, 695 S.W.2d at 753. This case is distinguishable from Willman and others like it, however, in that appellant is not charged with delivery of large amounts of a controlled substance, but rather with possession of a relatively small amount. See Willman, 695 S.W.2d at 753 (Willman charged with delivery of approximately 2,000 grams of cocaine and $300,000 bail held not excessive); Patterson v. State, 841 S.W.2d 534, 534-35 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd) (Patterson charged with possession with intent to deliver, 1,262.6 grams of cocaine involved, and $150,000 bail held not oppressive).
In considering the propriety of bail in Harris County cases, this Court has considered the "Harris County Bail Schedule." See Ex parte Bogia, 56 S.W.3d 835, 838 (Tex. App.--Houston [1st Dist.] 2001, no pet.). The bail schedule provides for "no bond" for cases that fit the "habitual" criteria of section 11a of the Texas Constitution. See id. at 841. The State argues that "no bail" could have been sought in this case, undoubtedly because appellant's offense is alleged to have taken place after two alleged prior felony convictions. See Tex. Const. §11(a),(1). However, this argument overlooks the second prong of §11(a), requiring that there be evidence: "substantially showing the guilt of the accused of the offense in (1) . . . ." See Tex. Const. §11a(a). In this case, at the bail reduction hearing, there was no evidence substantially showing the guilt of the accused of the charged offense. Therefore, "no bail" under the "habitual" offender provision was not, and is not, a consideration in evaluating the propriety of bail in this case.
The bail schedule also suggests that, for cases involving large quantities of controlled substance, the bail be set at double the value of the controlled substance. Regardless of whether the amount of cocaine allegedly involved in this case is considered large or small, there was no evidence of its alleged value. Therefore, this guideline also was not, and is not, a viable consideration in evaluating the propriety of bail in this case.
The category on the bail schedule closest to the situation in this case is for a second degree felony with a prior conviction, for which the bail schedule suggests a bail of $20,000. See id. Here, however, appellant's indictment for a second degree felony contains two enhancement paragraphs alleging he has two prior felony convictions, which appellant did not dispute at the bail reduction hearing. If convicted, therefore, appellant faces possible confinement of twenty-five years to life in prison. These considerations are counter-balanced by appellant's ties to the community and past history of completing parole. Additionally, we consider the aggravating fact that appellant was arrested for this offense less than a year after completing parole related to one of those prior felony convictions.
Having weighed the preceding considerations, we are of the opinion that bail of $125,000 in this case is excessive, and we lower it to $75,000.
Evelyn Keyes
Justice
Panel consists of Justices Hedges, Jennings, and Keyes.
Do not publish. Tex. R. App. P. 47.