Opinion issued June 30, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-00282-CR
NO. 01-05-00480-CR
NO. 01-05-00481-CR
NO. 01-05-00482-CR
NO. 01-05-00483-CR
NO. 01-05-00484-CR
NO. 01-05-00485-CR
__________
EX PARTE TERRENCE LYNN JAMES,
On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Cause Nos. 48,610; 48,611; 48,612; 48,613; 48,614; 48,615; 48,616
MEMORANDUM OPINION
Appellant, Terrence Lynn James, challenges the trial court’s denial of his applications for writs of habeas corpus in seven separate cases. In five of the cases, appellant stands accused of five separate state jail felony offenses of unlawful restraint of a child younger than 17 years of age. In the other two cases, appellant stands accused of the felony offenses of unlawful restraint of a public servant and assault on a public servant. After a hearing on appellant’s applications, the trial court made a finding of probable cause and reduced James’s bail to $12,500 in each of the five unlawful restraint of a child cases, $12,500 in the unlawful restraint of a public servant case, and $25,000 in the assault on a public servant case, for an aggregate bond of $100,000.
In seven issues, James argues that the trial court erred in denying him habeas corpus relief because (1) the setting of bail was not regulated by the magistrate, (2) the commitment orders are void as appellant “did not have adequate notice of the charges” against him, (3) the trial court did not reduce the bail sufficiently to overcome the excessiveness of the bail, (4) the trial court did not sufficiently reduce the bail to overcome the oppressive nature of the bail, (5) no condition existed warranting the posting of a new bond, (6) probable cause did not “exist to charge [him] with the offenses charged,” and (7) requirements of random urine analysis and reporting to a probation officer were improper conditions for bail reductions. We affirm.
Factual and Procedural Background
In these seven separate cases, the State accuses appellant of stopping a school bus containing five children, striking the driver several times, knocking her from her seat, and attempting to take the bus driver’s seat. A justice of the peace originally set the bail at $25,000 for each unlawful restraint of a child case, $25,000 for the unlawful restraint of a public servant case, and $30,000 for the assault on a public servant case, for a total bond of $180,000. James requested a hearing from the district court to reduce his bail and seek “release for lack of probable cause.”
At the hearing, appellant testified that he resided in West Columbia, Texas, that he was not employed, that he was a student at Columbia High School, and that he was eighteen years old. Appellant stated that he had previously been charged in regard to the underlying incident with “six counts of false imprisonment,” “one count of criminal mischief,” and “one count of aggravated assault on a bus driver.” He also testified that the bail set for these original cases totaled $24,000, and that he had posted bond. One week after posting bond in the original cases, appellant was rearrested in regard to the instant cases. Appellant stated that he did not know the amount of bail in the new cases, but that he did not have any money to post bond in the new cases.
Appellant testified that he stopped the school bus because he thought that the “devil was chasing [him]” and he needed help. He thought he asked the driver to get him to a church, and he was not aware that he hit the bus driver, that he was sitting on the bus driver’s seat, or that there were children on the bus. Appellant agreed that he had not made any attempts to post bond in the new cases.
During appellant’s testimony, the State introduced into evidence the probable cause affidavits regarding the offenses of unlawful restraint of child, unlawful restraint of a public servant, and assault of a public servant. In these affidavits, a police officer testified that the bus driver stated that James stopped the school bus by running in front of it, waving, and asking for help. The bus driver also stated that when she opened her side window, James struck her in the face, climbed into the school bus, struck her several more times, knocked her from the driver’s seat, sat in the seat, and placed his hands on the steering wheel. The driver then reached for the keys and removed them from the ignition. The driver also stated that, at the time of this incident, there were five children on the bus.
Appellant’s father testified that he lived in California, was employed by the U.S. Marine Corps, had another child in California, and had been in Brazoria County for one week to address this situation. He further testified that he did not have any savings and that he had exhausted other family resources in posting bond in the original cases. He spoke with the bondsman, and was told that they would not get the money back in regard to the dismissed cases. He further testified that he could not raise 10% of the new aggregate bail amount of $180,000. He stated that he would ensure that appellant would make all court appearances, and that appellant would comply with any requirements set by the court. He noted that appellant lives with his aunt, and that his aunt did not have the funds to post bond. On cross-examination, he stated that he would be returning to California, but that he could ensure that appellant would appear in court because appellant was in his aunt’s control. He stated that appellant may have used narcotics at one time, but would not say whether appellant was on narcotics at the time of the incident. He agreed that he did not specifically ask the bondsman about the new bail, but that he assumed he would need to provide 10% of the total bond amount to obtain the bond for appellant.
Appellant’s mother testified that she lives in Garland, Texas. She stated that appellant had been suspended from high school. She also stated that the bail was excessive, that she was unemployed due to a disability, and that family and friends who had assisted with posting the previous bonds could not assist in posting the new bonds. She conceded that she had not spoken with the bondsman about posting the new bonds, though she did ask whether the money previously posted could be applied to the new bonds.
She further stated that appellant told her that he did not remember anything about the incident. When she spoke with family members at the scene, they agreed that appellant did not know what was going on at the time. She believes appellant was on narcotics at the time of the incident.
Setting of Bail
In his first issue, appellant contends that the setting of bail was not regulated by the magistrate, but instead was regulated by the district attorney. Appellant alleges that the justice of the peace stated, in setting the bail, that he was “bound by the instructions given by the district attorney.” Appellant argues that the district attorney lacked authority to control the amount of bail set by the magistrate.
However, appellant did not preserve this issue for our review because he did not raise this complaint to the district court in his applications for writs of habeas corpus or at the hearing. Tex. R. App. P. 33.1. We also note that the trial court reduced the bail initially set by the justice of the peace, and that appellant does not allege that the district attorney exercised undue influence over the district court.
We overrule appellant’s first issue.
Commitment Orders
In his second issue, appellant argues that the commitment orders are void because he “did not have adequate notice of the charges.” In support of this argument, appellant asserts that although the commitment orders state that probable cause affidavits were attached to them, no such affidavits were in fact attached, and thus he was denied due process. Appellant contends that the State’s failure to attach the probable cause affidavits violated his Sixth Amendment right to be informed of the nature and cause of the accusations against him.
The Texas Code of Criminal Procedure provides that a commitment order, signed by the proper magistrate directing a sheriff to receive and place in jail the person so committed, is sufficient if it has the following requisites:1. That it run in the name of “The State of Texas”;
2. That it be addressed to the sheriff of the county to the jail of
which the defendant is committed;
3. That it state in plain language the offense for which the defendant is committed, and give his name, if it be known, or if unknown, contain an accurate description of the defendant;
4. That it state to what court and at what time the defendant is to be held to answer;
5. When the prisoner is sent out of the county where the prosecution arose, the warrant of commitment shall state that there is no safe jail in the proper county; and
6. If bail has been granted, the amount of bail shall be stated in the
warrant of commitment.
Tex. Code Crim. Proc. Ann. art 16.20 (Vernon 2005).
Here, while the commitment orders state that “[p]robable cause for further detention exists, as evidenced by police officer’s probable cause affidavit attached hereto,” there is no statutory requirement that a probable cause affidavit be attached to a commitment order for the order to be valid. Additionally, we note that the probable cause affidavits were filed with the court on February 28, 2005, prior to the entry of the commitment orders on March 1, 2005.
We overrule appellant’s second issue.
Excessiveness of Bail
In his third issue, appellant contends that the trial court erred in not reducing bail sufficiently to overcome the excessive nature of the bail. Appellant notes that, in seven original cases, he was initially accused of six separate offenses of false imprisonment and the offense of aggravated assault, that the aggregate bail set in the original cases was $24,000, and that he posted bond. Five days after posting bond in these cases, appellant was rearrested in regard to the new cases, and the aggregate amount of the bail set in these new cases totaled $180,000. After the bail-reduction hearing, the district court set the bail at $12,500 in each unlawful restraint of a child case, $12,500 in the unlawful restraint of a public servant case, and $25,000 in the assault on a public servant case, for a total bond of $100,000. Appellant contends that the requirement to make bail in the new cases violates article 17.09 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 17.09 (Vernon 2005).
In support of his argument that the aggregate amount of the bail, even after being reduced to $100,000, is still excessive, appellant asserts that he is an unemployed student who owns no property and has no means of obtaining sufficient funds to post bond. He also asserts that his mother is disabled and unemployed, has no property or resources from which to obtain funds, and has used any available resources to post bond in the original cases. Moreover, his father is stationed in California with the United States Marine Corps, lives in an apartment, and has no property or collateral.
The State asserts that appellant is charged with a “violent and potentially horrific crime,” that appellant was probably under the influence of narcotics during the offenses, and that appellant is charged with five state jail felonies and two third degree felonies. The State argues that appellant is a flight risk because he is 18 years old, has been suspended from school, and is living in the county with his aunt. The State also notes that appellant’s father lives in California and that his mother lives in Garland, Texas. Furthermore, the State emphasizes that appellant presented no evidence on how long appellant lived in the county, whether he had any other ties to the county, and whether any of his family members ever checked with a bondsman as to whether they could post bond in the new cases.
We review a trial court’s setting of bail for an abuse of discretion. See Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. 1981); Ex parte Ruiz, 129 S.W.3d 751, 753 (Tex. App.—Houston [1st Dist.] 2004, no pet.). 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.
Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon 2005).
The primary purpose for setting bail 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.). 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. Courts should also consider the defendant’s work record, family and community ties, length of residency, and past criminal record. See Rubac, 611 S.W.2d at 849; see also Ex parte Martinez-Velasco, 666 S.W.2d 613, 614–15 (Tex. App.—Houston [1st Dist.] 1984, no pet.). 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). A defendant has the burden to demonstrate that bail is excessive. See Rubac, 611 S.W.2d at 849; Martinez-Velasco, 666 S.W.2d at 614.
Nature of the offenses
The State alleges that appellant engaged in violence against a public servant, and, but for the alleged actions of the bus driver, the consequences of appellant’s actions could have been more serious. The State further alleges that appellant stopped a school bus, struck the driver multiple times, knocked her from her seat, and sat in the seat. The State asserts that after being attacked, the driver was able to pull the keys from the ignition to prevent the situation from escalating. The evidence indicates that there were five elementary school children on the bus at the time of the incident.
Appellant stands accused of five separate offenses of unlawful restraint of a chid, a state jail felony punishable by confinement for no more than two years and no less than 180 days and a fine of no more than $10,000. Tex. Pen. Code Ann. §§ 12.35, 20.02(c)(1) (Vernon Supp. 2004–2005). Appellant also stands accused of the offenses of unlawful restraint of a public servant and assault on a public servant, both third degree felonies, each punishable by confinement for no more than ten years and no less than two years and a fine of no more than $10,000. Tex. Pen. Code Ann. §§ 20.02(c)(2)(B), 22.01(b)(1) (Vernon Supp. 2004–2005).
We note that the bail amounts set for other third-degree felonies and state jail felonies appear to be wide-ranging, and turn heavily on the circumstances of the individual case. Ex Parte Bogia, 56 S.W.3d 835, 840 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (bail for second degree felony theft, but with likely punishment range more comparable to punishment range for third degree felony, reduced to $10,000); In re Hulin, 31 S.W.3d 754, 755 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (bail of $50,000 for third degree felony of criminal solicitation of a minor not excessive); Ex parte McCullough, 993 S.W.2d 836, 836-37 (Tex. App.—Waco 1999, no pet.) (bail of $25,000 for three counts of injury to an elderly person, a third degree felony, not excessive).
Ability to make bail
In regard to appellant’s ability to make bail, appellant did not present evidence concerning his father’s salary, nor did he present any specific evidence concerning his aunt’s assets. The only evidence presented that related to the aunt’s ability to make bail was his father’s testimony that she “didn’t have the funds.” However, appellant, his father, and his mother all testified that they had no additional resources to make the aggregate bail of $180,000, and that they had exhausted any available resources in posting bond on the original cases. Appellant also presented evidence that he is a student, that his mother is disabled and unemployed, and that his father lives out of state and has no savings or collateral to apply to posting the new bonds.
Sufficiency of bail to assure appearance
The evidence shows that appellant, an 18 year old student, had recently been suspended from school. Appellant was living with an aunt, who did not testify at the hearing. There is no evidence in the record concerning the aunt’s ties to Brazoria County, including her employment history, nor was there any testimony about the relationship between appellant and his aunt and the control the aunt exercised over appellant. Appellant’s father lives in California, and appellant’s mother lives in Garland, Texas. Appellant’s father was only able to testify that appellant would be present at future court appearances because appellant was in the control of his aunt. There is no evidence of any other ties appellant, or his aunt, had with Brazoria County.
Safety of victims and community
Finally, we note that neither party presented any testimony specifically addressing the future safety of the victims and the safety of the community, and the State did not present any evidence indicating that appellant had a prior criminal record.
In sum, appellant is accused, in seven separate cases, of the offenses of unlawful restraint of children and a public servant in addition to the offense of assaulting a public servant. Although he presented evidence of his inability to make bail, there is no evidence establishing that appellant, who is suspended from school, has any significant ties to Brazoria County. Moreover, the bail amount set in this case appears to be well within the wide range of bail set in other stated jail felony and third degree felony cases. Considering the evidence of the nature of the offenses, the appellant’s inability to make bail, and appellant’s lack of any strong ties to the county, we hold that the trial court did not abuse its discretion in setting the bail at $12,500 in each of the five of unlawful restraint of a child cases, $12,500 in the unlawful restraint of a public servant case, and $25,000 in the assault on a public servant case, for an aggregate bail of $100,000.
We overrule appellant’s third issue.
Prosecutorial Vindictiveness and Oppression
In his fourth issue, appellant contends that the trial court erred in not sufficiently reducing the bail set to overcome its oppressive nature. In support of this issue, appellant argues that in light of the media publicity surrounding the offenses, the district attorney “feels duty bound to punish [appellant] to ensure that he remains jailed until his trial,” and that the State has engaged in prosecutorial vindictiveness and oppression.
A claim of prosecutorial vindictiveness may be established by (1) proof of circumstances that pose a “realistic likelihood” of such misconduct sufficient to raise a “presumption of prosecutorial vindictiveness,” which the State must rebut or face dismissal of the charges, or (2) proof of actual vindictiveness by presenting direct evidence that the prosecutor’s charging decision is an unjustifiable penalty resulting solely from the defendant’s exercise of a protected legal right. Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004).
Appellant’s arguments in support of his claim of prosecutorial vindictiveness are difficult to follow. To some extent, appellant repeats his contention that bail is excessive. Appellant does allege that media publicity gave rise to the prosecutor’s vindictiveness, but appellant did not make any reference to this argument in the trial court and does not provide any citations to the record to support this claim. Appellant did not present any evidence supporting his contention of prosecutorial vindictiveness to either the trial court or this Court, and thus has waived this issue for our review. Tex. R. App. P. 33.1.
We overrule appellant’s fourth issue.
Posting of New Bond
In his fifth issue, appellant contends that no condition existed warranting the posting of a new bond, and that the requirement for posting a new bond was made in violation of article 17.09. Appellant notes that he has not committed any intervening acts which would require a new bond.
Although the record is unclear on the procedural history of the seven original cases, the parties appear to agree in their briefing that the cases concerned less serious offenses and that the aggregate bail set in these cases was $24,000. A week later, appellant was rearrested in regard to the present cases, and all of the original cases, except the aggravated assault on a police officer case and the criminal mischief case, were dismissed.
Article 17.09 provides, in pertinent part:
Sec. 2. When a defendant has once given bail for his appearance in answer to a criminal charge, he shall not be required to give another bond in the course of the same criminal action except as herein provided.
Sec. 3. Provided that whenever, during the course of the action, the judge or magistrate in whose court such action is pending finds that the bond is defective, excessive or insufficient in amount, or that the sureties, if any, are not acceptable, or for any other good and sufficient cause, such judge or magistrate may, either in term-time or in vacation, order the accused to be rearrested and require the accused to give another bond in such amount as the judge or magistrate may deem proper. . . .
Tex. Code Crim. Proc. Ann. art. 17.09.
Appellant complains that there was no showing by the State or the court that the previous bond was insufficient or that good cause existed to increase the bond. However, article 17.09 does not control in this instance. Here, the State dismissed certain cases, and rearrested appellant in regard to new cases alleging more serious offenses. Appellant is only complaining about the amount of the bail set in these new cases, but nothing in article 17.09 prohibits the State from electing to file new cases alleging more serious offenses and requiring a new bond. Furthermore, article 17.09 specifically provides that a judge or magistrate may find that the bail originally set is defective or insufficient in amount and that the accused should be rearrested and required to make bail in such an amount as the judge or magistrate may deem proper. Id.
We overrule appellant’s fifth issue.
Probable Cause
In his sixth issue, appellant contends that he “is being held without probable cause.” Although unclear, it appears that appellant is challenging the trial court’s finding, made in the respective commitment orders, that “probable cause for further detention exists, as evidenced by police officer’s probable cause affidavit[s].”
However, a Brazoria County grand jury has returned true bills of indictment, accusing appellant of the offenses of unlawful restraint of a child, unlawful restraint of a public servant, and assault on a public servant. The return of an indictment establishes probable cause as a matter of law, rendering appellant’s complaints moot. Ex Parte Plumb, 595 S.W.2d 544, 545 (Tex. Crim. App. [Panel Op.] 1980).
We overrule appellant’s sixth issue.
Conditions for Bail Reduction
In his seventh issue, appellant contends that the trial court abused its discretion in requiring appellant, as a condition of the grant of bail reduction, to undergo random urine analysis and report twice a month to the Brazoria County Adult Probation Department. Appellant argues that there was no evidence submitted regarding appellant’s use or abuse of narcotics.
At the bail reduction hearing, appellant’s mother testified that a police officer told her that appellant was under the influence of a hallucinogen at the time of his arrest. She also testified that she shared this opinion. In response to the mother’s testimony, appellant argues that the State exceeded the scope of cross-examination and that her testimony was hearsay. However, no such objection was made in the trial court. Additionally, appellant testified that he did not remember any details of the incident. Moreover, evidence also indicated that appellant lacked significant ties to the community.
Initially, we note that the Code of Criminal Procedure provides that “[t]o secure a defendant’s attendance at trial, a magistrate may impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community.” Tex. Code Crim. Pro. Ann. art. 17.40(a) (Vernon 2005). We also note that the Code further provides that a magistrate may require, as a condition of release on bond, that the defendant submit to home confinement, electronic monitoring, and drug testing for the presence of controlled substances. Tex. Code Crim. Proc. Ann. art. 17.44 (Vernon 2005). However, we do not address whether the trial court abused its discretion in imposing these conditions on appellant because appellant did not raise these issues before the district court. Thus, appellant has waived this issue for our review. Tex. R. App. P. 33.1.
We overrule appellant’s seventh issue.
Conclusion
We affirm the trial court’s orders setting bail at $12,500 in each of the five unlawful restraint of a child cases, $12,500 in the unlawful restraint of a public servant case, and $25,000 in the assault of a public servant case.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).