Reversed and Remanded and Majority and Concurring Opinions filed June 1, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-01421-CR
NO. 14-03-01423-CR
NO. 14-04-00194-CR
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EX PARTE ROBERT DURST, PETITIONER
On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Cause Nos. 01CR1900 & 01CR2007 & 04CR0323
C O N C U R R I N G O P I N I O N
I join in every aspect of the majority opinion except one. I write separately because, in my opinion, under the unusual circumstances of this case, we should set a bail amount on each of the three indictments.
As the majority explained, appellant is charged with three third-degree felony offenses; each offense is punishable by a maximum of ten years= confinement and a $10,000 fine. We have already held that a $1 billion bond for each caseCand even a $10,000,000 bond for all threeCis too much.
When we receive an appeal alleging a bail amount is too high, and we determine the claim is valid, we typically set an amount. I believe we should and can do that here. Reversing without setting an amount is an inefficient use of everyone=sClawyers= and judges=Ctime.
I believe that bond for each indictment should be set between $150,000 and $200,000. That range is higher than what is usually assessed for a third degree felony. In fact, a $150,000 to $200,000 bail is most often reserved for murder[1] and other second- and first-degree felonies.[2] However, two of the third-degree felonies are for fleeing in the face of an indictment charging murder and the third is for destruction of evidenceCwhich in this case is a human body. These are serious offenses.
Additionally, appellant has fled before when faced with an indictment. As a result, $150,000 to $200,000 for each offense does not seem too high; it addresses both the seriousness of the offenses and appellant=s history of fleeing when faced with legal troubles. And, appellant has acknowledged his ability and willingness to post this amount.
Some might claim that this rangeCwhich is two hundredth=s of a percent of the original bail amountCis too low because appellant has fled before. But, the trial court has already addressed this problem by imposing conditions designed to prevent flight. As the majority states, each bond requires appellant to do the following: (1) surrender his passport; (2) not leave Galveston or Harris Counties without prior written court approval; and (3) appear weekly in the trial court. In addition to these three conditions, the judge imposed one other, more important condition: appellant must pay for twenty-four hour supervision by a licensed peace officer of the State of Texas chosen by the trial judge. With these precautions, the judge has done all she can to ensure that appellant does not flee.
In short, the original bail amount of $1,000,000,000 is too high. I would reverse that part of the judgment setting bail and set a new bond amount for each alleged offense between $150,000 and $200,000. I would affirm the portion of the judgment imposing conditions on each bond.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Majority and Concurring Opinions filed June 1, 2004.
Panel consists of Justices Fowler, Edelman, and Seymore. (Edelman, J., majority).
Publish C Tex. R. App. P. 47.2(b).
[1] See, e.g., Ex parte Garza, No. 04‑02‑00803‑CR, 2003 WL 21750013 (Tex. App.CSan Antonio July 30, 2003, no pet.) (not designated for publication); Ex parte Green, 940 S.W.2d 799 (Tex. App.CEl Paso 1997, no pet.); Ex parte Prelow, 929 S.W.2d 54 (Tex. App.CSan Antonio 1996, no pet.).
[2] See, e.g., Hernandez v. State, No. 07‑03‑0094‑CR, 2003 WL 21998057 (Tex. App.CAmarillo Aug. 22, 2003, no pet.) (not designated for publication) (possession of over 400 grams of cocaine); Ex parte Huff, No. 14‑02‑01069‑CR, 2003 WL 1344843 (Tex. App.CHouston [14th Dist.] Mar. 20, 2003, no pet.) (not designated for publication) (possession with intent to deliver at least 400 grams of cocaine); Ex parte Gomez, No. 04‑02‑00431‑CR, 2003 WL 292175 (Tex. App.CSan Antonio Feb. 12, 2003, no pet.) (not designated for publication) (child abandonment or endangerment, arson, and assault on a family member); Ex parte Leonides, No. 03‑01‑00641‑CR, 2002 WL 189057 (Tex. App.CAustin Feb. 7, 2002, no pet.) (not designated for publication) (intoxication manslaughter).