Concurring opinion issued March 10, 2009
In The
Court of Appeals
For The
First District of Texas
NOS. 01-08-00575-CR
01-08-00576-CR
WILLIAM DAVID GOLDEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause Nos. 1171884 and 1171883
CONCURRING OPINION
While I concur in the Court’s judgments reducing Golden’s two bonds, I write to address the directive nature of article17.15(4):
The ability to make bail is to be regarded, and proof may be taken upon this point.
Tex. Code Crim Proc. Ann. art. 17.15(4) (Vernon 5005) (emphasis added).
The statute requires the trial court to consider and evaluate the defendant’s ability to make bail. See Webster’s Third New International Dictionary 1911 (Philip Babcock Gove ed. 1961) (defining “regard”). In the absence of proof being offered by the defendant, the statute requires the trial court—sitting in its capacity as a magistrate—to elicit testimony on the defendant’s “ability to make bail.”
Here, Golden, proceeding pro se, offered no evidence to the trial court of his ability to make bail. While there was testimony that a bondsman was willing to post a $5,000 bond, that is only evidence of what the bondsman was willing to risk, not evidence of Golden’s ability to make bond. Without regarding Golden’s ability to make bail, the trial court set bail at $200,000 in each case in an evidentiary vacuum. By failing to elicit evidence from Golden, a pro se defendant, regarding his ability to make bail, the trial court failed to perform the duty imposed by article 17.15(4).
Jim Sharp
Justice
Panel consists of Justices Taft, Bland, and Sharp.
Publish. Tex. R. App. P. 47.2(b).