NO. 12-06-00312-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DAIN JACKSON SAWYER, § APPEAL FROM THE 420TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § NACOGDOCHES COUNTY, TEXAS
MEMORANDUM OPINION
Dain Jackson Sawyer appeals from a trial court order setting his bail at $150,000 and imposing conditions on his release. We affirm.
Background
In December 2005, a Nacogdoches County grand jury indicted Appellant for the felony offense of stalking. Appellant was arrested and posted bail. A condition of his release was that he was to have no contact with the complaining witness. In July 2006, the State filed a motion to revoke Appellant’s bail. The State alleged that Appellant had been arrested for another offense while free on bail and that he had engaged in conduct that the State believed showed that Appellant represented a threat to the complaining witness or that Appellant intended to violate the no contact order.
Following a hearing, the trial court granted the State’s motion in part and set bail in the amount of $150,000. Additionally, the trial court placed conditions on Appellant’s release if he posted bail. This appeal followed.
Bail and Conditions of Bail
In two issues, Appellant complains that the trial court abused its discretion when it set bail in the amount of $150,000 and when it set strict conditions of release.
Standard of Review
The decision regarding the proper bail amount lies within the discretion of the trial court. Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon 2006). Therefore, we review a trial court’s bail determination under an abuse of discretion standard. Ex parte Wood, 952 S.W.2d 41, 42 (Tex. App.–San Antonio 1997, no pet.). In determining whether the trial court abused its discretion, we do not substitute our judgment for that of the trial court. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Rather, we will find an abuse of discretion only when a trial court acts without reference to any guiding rules or principles and when its decision, under the circumstances, lies outside the zone of reasonable disagreement. See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007); see also State v. Herndon, 215 S.W.3d 901, 907–08 (Tex. Crim. App. 2007).
Applicable Law
All persons accused of a noncapital crime in Texas have a right to bail pending trial. Tex. Const. art. I, § 11; Tex. Code Crim. Proc. Ann. art. 1.07 (Vernon 2006). Excessive bail is prohibited by both the Eighth Amendment to the United States Constitution and by article I, section 13 of the Texas Constitution. U.S. Const. amend. VIII; Tex. Const. art. I, § 13. The primary purpose of bail is to secure the presence of the accused at trial on the offense charged. Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. 1980). While bail should be sufficiently high to give reasonable assurances that the accused will appear, the power to require bail should not be used as an instrument of oppression. Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. 1980). The burden is on the appellant to show the bail amount is excessive. Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. 1980).
The Texas Legislature has established the following factors to be considered by the trial court in setting 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 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.
The ability of an accused to post bail is merely one factor to be considered in determining the appropriate bail. Brown v. State, 11 S.W.3d 501, 504 (Tex. App.–Houston [14th Dist.] 2000, no pet.). A defendant’s inability to secure his release does not automatically render the bail excessive. Id. Other factors that may be considered include aggravating factors involved in the offense along with the defendant’s (1) work record, (2) family and community ties, (3) length of residency, (4) prior criminal record, (5) conformity with previous bond conditions, and (6) other outstanding bonds. Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim. App. 1981); Ex parte Milburn, 8 S.W.3d 422, 425 (Tex. App.–Amarillo 1999, no pet.).
Analysis
Appellant does not make an argument based on the Texas or U.S. constitutions. Rather, he argues that the evidence is insufficient to support the trial court’s decision to set bail in the amount of $150,000 and to impose conditions on his release. The trial court’s decision to raise the bail and impose conditions of release is undergirded by two sets of facts. The first set of facts revolves around an incident where Appellant got into a scuffle with and attempted to flee from the police in Austin, Texas following a traffic accident. As part of that incident, which occurred while he was free on bail, Appellant was arrested for the unlawful carrying of an eleven inch knife, and for resisting arrest. One of the officers involved testified at the bail hearing, and a scale picture of the knife was admitted into evidence.
The second set of facts revolves around Appellant’s actions after his initial arrest. Both the complaining witness and Appellant had been students at Stephen F. Austin University. Both left the university after Appellant was charged with stalking. Later, both came to be enrolled in the same community college in Austin, Texas, with Appellant enrolling in classes on all three campuses of the community college. Appellant also moved to an address within fifteen miles of the complaining witness’s Austin home. That address was available to Appellant through a student directory.
At issue is the meaning to be ascribed to the confluence of these events and circumstances. Appellant argues that events and circumstances shown by the State do not prove that he had any proclivity to harm the complaining witness or otherwise violate a court order. He did not contact the complaining witness, and he argues that the circumstances which seem to suggest he was following her were simply coincidental.
But there is another set of inferences to be drawn from Appellant’s actions. The trial court reasonably concluded that Appellant’s actions, including moving across the state, enrolling at every campus of a school the witness was attending, carrying a weapon, and being unreasonable and belligerent to the police, when taken together, signaled a gathering threat to the complaining witness. The trial court was able to observe Appellant as he testified about the knife recovered from his vehicle and evaluate his story about how it was that he came to be in such close proximity to the complaining witness some two hundred miles from the situs of the indicted offense.
The other factors for consideration of the amount of bail are not in serious dispute. Appellant did not have ties to Nacogdoches County, a long work record, long term residency, a prior criminal record, or a record with other bonds. As alleged in the indictment, the charged offense does not contain any particularly aggravating factors, beyond the elements of the offense.
The bail that was ultimately set is high, and Appellant testified that he could not make a bail of more than $10,000. Appellant’s lack of connection to the community may support a bail in an amount higher than he testified that he could post, if not the bail that was actually set. But this was not the initial bail determination. This bail was set after the trial court heard evidence that convinced it that Appellant presented a danger to the complaining witness and had committed two criminal offenses while free on bail. The trial court was required to take the safety of the community and the complaining witness into account when making a decision about the appropriate bail for the case. Tex. Code Crim. Proc. Ann. art. 17.15(5). Ample evidence supported the trial court’s concern for the safety of the complaining witness and its conclusion that Appellant had committed criminal offenses while free on bail. Under these circumstances, Appellant has not shown that the trial court abused its discretion when it raised the bail to $150,000. We overrule Appellant’s first issue.
We reach the same conclusion with respect to the conditions placed on Appellant’s release. Specifically, the trial court ordered that Appellant was to be restricted to his mother’s house, with an electronic monitor, if he was able to post bail. In his one sentence argument, Appellant states that these conditions would prevent him from earning a living or attending college and argues that there is no proof in the record that he is a threat to the complaining witness or the public.
A trial court may impose any reasonable condition of bail related to the safety of a victim of the alleged offense or to the safety of the community. Tex. Code Crim. Proc. Ann. art. 17.40(a) (Vernon 2006). Furthermore, electronic monitoring and home confinement are expressly permitted by statute. Tex. Code Crim. Proc. Ann. art. 17.44(a)(1) (Vernon 2006).
As we explained previously, the trial court was not required to accept Appellant’s argument that the confluence of events in Austin should be considered in isolation and without application of common sense. The trial court was convinced that Appellant presented some danger to the complaining witness or the community. In balancing that concern with Appellant’s right to bail, the trial court fashioned a remedy where a relatively high bail was set, with conditions on Appellant’s liberty should he be released. This was a reasonable conclusion within the discretion afforded to the trial court. Appellant himself had suggested electronic monitoring, and he had committed two criminal offenses while free on bail. We overrule Appellant’s second issue.
Disposition
We affirm the judgment of the trial court.
BRIAN HOYLE
Justice
Opinion delivered April 30, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)