IN THE
TENTH COURT OF APPEALS
No. 10-11-00395-CR
No. 10-11-00396-CR
No. 10-11-00397-CR
EX PARTE DAVID LEWIS SMITH JR.,
From the 13th District Court
Navarro County, Texas
Trial Court No. 11-20473-CV, No. 11-20474-CV and 11-20475-CV
MEMORANDUM OPINION
Applicant, David Lewis Smith Jr., is charged with one count of intentionally or
knowingly causing serious bodily injury to a disabled person, a first-degree felony, in
three different cause numbers. See TEX. PENAL CODE ANN. § 22.04(a)(1), (e) (West Supp.
2011). The trial court set bail at $500,000 in each cause for a cumulative bail amount of
$1.5 million. Applicant filed an application for a writ of habeas corpus, seeking a
reduction in bail, which the trial court denied. In one issue, applicant argues that, based
on article 17.15 of the code of criminal procedure, the trial court abused its discretion in
failing to reduce his bail in the three causes. See TEX. CODE CRIM. PROC. ANN. art. 17.15
(West 2005). We affirm.
I. BACKGROUND
According to Detective Jessica Abbe of the Corsicana Police Department, at the
time of the incident, applicant worked for American Rehabilitation Services at a
“welfare home for disabled or mentally challenged individuals” in Corsicana, Texas.
While working at the welfare home, applicant allegedly “poured hot grease on three
separate disabled persons at separate times.” In her testimony, Detective Abbe noted
that applicant “provided a written confession to Adult Protective Services for burning
the three individuals, not just one.” She further testified that the disabled individuals
sustained severe burns on several parts of their bodies as a result of applicant’s actions
and that, because of their disabilities, the individuals are unable to speak about the
incident. Detective Abbe concluded that, based on her investigation, applicant did not
accidentally burn the disabled individuals. She recalled that applicant first told his
employer that the burns on the disabled individuals were due to small carpet burns;
however, applicant later changed his story. Detective Abbe testified that she believes
that applicant would engage in these actions again and that applicant’s bail should not
be lowered because he is a danger to the community. On cross-examination, however,
Detective Abbe stated that applicant does not have a violent criminal history.
Applicant called several family members to testify on his behalf. Each testified
that they are a close-knit family and would assist applicant financially and ensure that
he attends all court hearings. The family members also testified that, when pooling
their money together, they could not afford to pay the bail amount and that applicant
had a normal childhood and did not engage in violent behaviors.
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At the conclusion of the hearing on applicant’s application, the trial court denied
applicant’s application seeking a reduction in bail and later entered the following
findings of fact and conclusions of law:
FINDINGS OF FACT
1. David Lewis Smith, Jr. (hereinafter “Defendant”) is charged with three
cases of Injury to a Disabled Person where bond is set on each case at
$500,000.00.
2. Each case filed is a First Degree Felony which carries a range of
punishment of up to Life in prison.
3. Defendant is a 2005 graduate of Corsicana High School.
4. Defendant’s family, with the exception of a brother, currently lives in
Corsicana, Texas.
5. Defendant has no prior criminal history.
6. Defendant has no assets.
7. Defendant was employed working with disabled and mentally
handicapped persons at the time of his arrest but is no longer
employed in that capacity due to his incarceration.
8. Defendant and his family have been unable to raise funds to make the
premium payments on the current bonds to local sureties.
9. If released, Defendant would potentially be in the presence of children.
10. Defendant confessed to burning three handicapped individuals.
11. The three alleged victims were transported to Parkland Hospital’s
Burn Unit for medical treatment.
12. The three alleged victims are unable to speak.
CONCLUSIONS OF LAW
1. The bail set in each case is not oppressive.
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2. The bail set in each case i[s] to protect not just the alleged victims but
also the community as a whole.
3. Considering the five factors listed in Article 17.15 of the Code of
Criminal Procedure as well as factors enumerated in case law, the
Court did not abuse its discretion in denying the Defendant’s
Applications for Writ of Habeas Corpus Seeking Bail Reduction.
4. The Defendant’s relief requested should be denied; bond should
remain on each case at $500,000.00.
II. STANDARD OF REVIEW & APPLICABLE LAW
We review a trial court’s decision regarding bail settings for an abuse of
discretion. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. 1981); see Montalvo v.
State, 315 S.W.3d 588, 592 (Tex. App.—Houston [1st Dist.] 2010, no pet.). When
reviewing a trial court’s decision, we will not disturb that ruling as long as it is “at least
within the zone of reasonable disagreement.” Cooley v. State, 232 S.W.3d 228, 234 (Tex.
App.—Houston [1st Dist.] 2007, no pet.). “But an abuse of discretion review requires
more of the appellate court than simply deciding that the trial court did not rule
arbitrarily or capriciously. The appellate court must instead measure the trial court’s
ruling against the relevant criteria by which the ruling was made.” Id.
In exercising its discretion, the trial court should consider the following statutory
rules 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 so used as to make it an
instrument of oppression.
Ex parte Smith Page 4
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 the victim of the alleged offense and the
community shall be considered.
TEX. CODE CRIM. PROC. ANN. art. 17.15; see Golden v. State, 288 S.W.3d 516, 518 (Tex.
App.—Houston [1st Dist.] 2009, pet. ref’d). The burden of proof is upon the defendant
to demonstrate that the set bail amount is excessive. Golden, 288 S.W.3d at 518.
In addition to the statutory factors listed in article 17.15, we also consider the
defendant’s work record, family ties, length of residency, past criminal record,
conformity with previous bond conditions, other outstanding bonds, and aggravating
factors involved in the offense. Id. at 519 (citing Ex parte Rubac, 611 S.W.2d at 849-50).
III. ANALYSIS
On appeal, applicant contends that his bail is oppressive and should be reduced
because his family members can only raise $25,000 in funds; he has no criminal record;
he has ties to the community; he is not a flight risk; and he has a place to live—with his
mother and father—if released.
A. Nature of the Offenses
The defendant’s potential sentence and the nature of the crime are “primary
factors” for us to consider. Ex parte Hunt, 138 S.W.3d 503, 506 (Tex. App.—Fort Worth
2004, pet. ref’d); see Ex parte Vasquez, 558 S.W.2d 477, 479-80 (Tex. Crim. App. 1977).
When the nature of the offense is serious and aggravating factors are involved, “a
Ex parte Smith Page 5
lengthy prison sentence following trial is probable.” Ex parte Scott, 122 S.W.3d 866, 869
(Tex. App.—Fort Worth 2003, no pet.). “Pretrial bond in these kinds of cases should be
set sufficiently high to secure the presence of the accused at trial because the accused’s
reaction to the prospect of a lengthy prison sentence might be not to appear.” Ex parte
Hulin, 31 S.W.3d 754, 761 (Tex. App.—Houston [1st Dist.] 2000, no pet.); see Ex parte
Hunt, 138 S.W.3d at 506 (“Given the serious nature of the offenses and the potential for
a lengthy sentence, the trial court could properly have concluded that the amounts of
the bonds were reasonable.”).
In this case, the State has charged applicant with three separate cases of
intentionally and knowingly causing serious bodily injury to a disabled person, a first-
degree felony, which carries a punishment range of confinement for five to ninety-nine
years, or life, plus a fine of up to $10,000. See TEX. PENAL CODE ANN. §§ 12.32 (West
2011), 22.04(a)(1), (e). Therefore, if convicted in each cause number, applicant faces the
possibility of three life sentences. See id. § 12.32. Given the serious and egregious
nature of applicant’s alleged offenses and the potential for lengthy sentences if
convicted, the trial court could have properly concluded that applicant’s bail was
reasonable. See Golden, 288 S.W.3d at 518; see also Ex parte Scott, 122 S.W.3d at 870.
B. Sufficient Bail to Assure Appearance but Not Oppress
A trial court should set bail sufficiently high to provide reasonable assurance that
the defendant will appear at trial. Montalvo, 315 S.W.3d at 593. “A defendant’s ties to
the community and work history bear on the adequacy of bail to give reasonable
assurance he will appear.” Richardson v. State, 181 S.W.3d 756, 759 (Tex. App.—Waco
Ex parte Smith Page 6
2005, no pet.). We also consider whether the record reflects that the trial court made its
decision regarding the bail amount “for the purpose of forcing [applicant] to remain
incarcerated pending trial.” Milner v. State, 263 S.W.3d 146, 149 (Tex. App.—Houston
[1st Dist.] 2006, no pet.) (citing Ex parte Harris, 733 S.W.2d 712, 714 (Tex. App.—Austin
1987, no pet.) (noting that the trial judge stated, “I’d rather see him in jail than to see
someone’s life taken . . .”)); see Richardson, 181 S.W.3d at 759 (“Bail set in a particular
amount becomes oppressive when it is based on the assumption that [the accused
cannot] afford bail in that amount and for the express purpose of forcing [the accused]
to remain incarcerated pending [trial].” (internal quotations & citations omitted)). The
record here contains no indication that the trial court set the bail amounts for the sole
purpose of keeping applicant incarcerated pending trial. See Montalvo, 315 S.W.3d at
596 (“Our independent review of the habeas corpus record likewise does not suggest
that the trial court deliberately set bail at an excessively high level solely to prevent
Montalvo from posting bail.”).
As noted above, applicant presented evidence that all of his family lives in
Corsicana, except for his brother who lives in Dallas, Texas. Applicant’s family testified
that they have lived in Corsicana for many years. Applicant’s mother informed the trial
court that applicant was living in her home at the time of his arrest and that, if he was
released on bail, he could return to her home. Applicant testified that he has had
several jobs since graduating from high school in 2005; however, because of this
incident, he was terminated from American Rehabilitation Services and, thus, has no
job. Based on our review of the record, we conclude that applicant has presented
Ex parte Smith Page 7
evidence of family and community ties to the area, which weighs in favor of a reduction
of the bail amount.
C. Ability to Make Bail
Generally, to show that he cannot make bail, a defendant must demonstrate that
his funds and his family’s funds have been exhausted. See Milner, 263 S.W.3d at 149.
Unless he has shown that his funds and his family’s funds have been exhausted, a
defendant must usually show that he made an unsuccessful effort to furnish bail before
bail can be determined to be excessive. Id. If, however, both the defendant and his
family indicate a financial inability to procure a bond, the court will not require him “to
do a useless thing.” Id. at 149-50 (quoting Ex parte Duiett, 529 S.W.2d 531, 532-33 (Tex.
Crim. App. 1975)).
“[T]he ability of an accused to make bail does not itself control the amount of
bail, even if the accused is indigent.” Wright v. State, 976 S.W.2d 815, 820 (Tex. App.—
Houston [1st Dist.] 1998, no pet.); see Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex.
Crim. App. 1980); Ex parte Clark, 537 S.W.2d 40, 42 (Tex. Crim. App. 1976). If the
defendant’s ability to make bail in a specific amount controlled, “the role of the trial
court in setting [bail] would be completely eliminated and the accused would be in the
position to determine what his [bail] should be.” Milner, 263 S.W.3d at 150; see Ex parte
Miller, 631 S.W.2d 825, 827 (Tex. App.—Fort Worth 1982, pet. ref’d). When considering
an applicant’s ability to make bail, we are not limited to looking solely to the
defendant’s financial resources; rather, we may also consider his family’s resources and
ability to post security. See Milner, 263 S.W.3d at 150 (considering, in addition to
Ex parte Smith Page 8
defendant’s financial resources, those of his mother); see also Montalvo, 315 S.W.3d at 595
(“No evidence was presented about any discussions with bondsmen or the maximum
amount of bail that Montalvo believed he could satisfy. Similarly, no evidence was
presented about whether Montalvo’s family had any ability to help him make bail.”).
Here, applicant’s family testified that they did not have the resources to pay the
bail amount imposed by the trial court. Several family members testified that they
could contribute several thousand dollars to help pay for applicant’s bail amount.
Applicant’s mother stated that she contacted three different bondsmen and that the
cheapest bond premium quoted was $150,000, based on the $1.5 million bail imposed.
When asked about property that could be sold to pay the bond premium, applicant’s
mother testified that she owns her home, which appraises for approximately $70,000;
however, she acknowledged that she only had about $10,000 in equity in the house.
Applicant stated that he is not employed and that he does not have any resources that
he could use to pay the bail amount. None of applicant’s family members noted that
they have exhausted any funds in an attempt to make bail. Based on the testimony
adduced at the hearing on applicant’s habeas corpus application, it could be concluded
that this factor weighs in favor of reducing applicant’s bail amount. However, we must
note that, despite such a conclusion, “this element would not control over all other
considerations.” Milner, 263 S.W.3d at 150; see Richardson, 181 S.W.3d at 760 (“Although
a defendant’s ability to make bail is a factor for consideration, inability to make bail,
even to the point of indigence, does not control over the other factors.”).
Ex parte Smith Page 9
D. Future Safety of Victim and Community
Article 17.15 dictates that we must also consider “[t]he future safety of a victim of
the alleged offenses and the community” when reviewing the trial court’s bail
determination. TEX. CODE CRIM. PROC. ANN. art. 17.15(5). Several members of
applicant’s family stated that he is not a violent person and that he does not have a
criminal record, though most of the family members testified that they were unaware of
the egregiousness of the crimes of which applicant is accused. Nevertheless, Detective
Abbe stated that, based on her investigation of the incident and applicant’s background,
she believes that applicant would engage in these actions again and that applicant’s bail
should not be lowered because he is a danger to the community. In addition, the trial
court, in its findings of fact and conclusions of law, stated that: (1) “If released,
Defendant would potentially be in the presence of children”; and (2) “The bail in each
case i[s] to protect not just the alleged victims but also the community as a whole.” In
considering the record, we conclude that the evidence supports the trial court’s finding
that the present bail amount is appropriate to protect the alleged victims and the
community. See id.; see also Milner, 263 S.W.3d at 150.
After considering the factors of article 17.15 and the record before us, we cannot
conclude that the bail amounts set by the trial court are constitutionally or statutorily
excessive. See U.S. CONST. amend. VIII; TEX. CODE CRIM. PROC. ANN. art. 17.15; see also
Golden, 288 S.W.3d at 518. We therefore hold that the trial court did not abuse its
discretion in setting applicant’s bail at a total of $1.5 million for the three charged
Ex parte Smith Page 10
offenses. See Ex parte Rubac, 611 S.W.2d at 849; see also Montalvo, 315 S.W.3d at 592.
Applicant’s sole issue is overruled.
IV. CONCLUSION
We affirm the judgment of the trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed February 15, 2012
[CR25]
Ex parte Smith Page 11