Ex Parte Teddy Berry

In The

Court of Appeals
Ninth District of Texas at Beaumont
_________________

NO. 09-14-00519-CR
NO. 09-14-00520-CR
_________________

EX PARTE TEDDY BERRY, Appellant
__________________________________________________________________

On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause Nos. 14-20471, 14-20474
__________________________________________________________________
MEMORANDUM OPINION

Appellant Teddy Berry appeals from the trial court’s denial of relief on his

pretrial applications for writ of habeas corpus seeking a bond reduction in two

cases. In two issues, Berry contends that the bond set in each case is excessive and

oppressive in violation of the Eighth and Fourteenth Amendments to the United

States Constitution; article I, sections 11, 13, and 19 of the Texas Constitution; and

articles 1.09 and 17.15 of the Texas Code of Criminal Procedure. We affirm the

trial court’s orders denying habeas relief.

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 I. Background

Berry was charged by two indictments with the offense of aggravated

robbery. Bail in each case was initially set at “no bond.” On September 24, 2014,

Berry filed an application for writ of habeas corpus in each case, asking the trial

court to set reasonable bail for the charged offenses.

On September 29, 2014, the trial court conducted a hearing on Berry’s

applications for writ of habeas corpus. Berry presented testimony from three

witnesses at the hearing. First, Berry’s fiancé testified that she and Berry reside in

Little Rock, Arkansas. She testified that Berry manages a powder coating business

in Arkansas and that Berry is the family’s main provider. She testified that she

would personally bring Berry to court whenever he had a court appearance.

Berry’s daughter also testified at the hearing. His daughter testified that she

lives in Arkansas and is currently a stay-at-home mother. She stated that she has a

good relationship with her father, and when asked what assurances she could

provide to the court that Berry would show up for court appearances if released on

bond, she testified that she would “have to get him here.”

Berry also called his older brother as a witness at the hearing. His brother

testified that he has resided in Jefferson County since 1979 and currently lives in

Port Arthur, Texas, where he owns a remodeling company. He testified that if

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Berry was released on bond, he would allow Berry to stay with him at his home in

Port Arthur whenever he needed. In addition, he testified that since he would “have

to put up some of the money” and “some property” to secure any bond set by the

trial court, he would ensure that Berry would show up for his court appearances

because he did not want to lose anything he put up as collateral for the bond.

In addition to the testimony of the three witnesses, Berry presented evidence

at the hearing showing that he had served in the United States Air Force for over

three years and was honorably discharged in 1983. Further, in response to an

inquiry from the trial court about Berry’s criminal record, Berry’s counsel

informed the trial court that Berry had previously been convicted for misdemeanor

theft in Arkansas. The State confirmed that its records for Berry showed a prior

arrest for theft of property, but stated that it was unaware of the disposition of that

charge. It was also undisputed at the hearing that Berry was in Louisiana at the

time he was arrested for the charged offenses.

At the conclusion of the hearing, the trial court set bail at $150,000 in each

case. As a condition of bail, the trial court required that a GPS monitor be installed

on Berry’s ankle.

On October 14, 2014, Berry posted bond in both cases in the aggregate

amount of $300,000. On October 24, 2014, the State filed a motion to increase and

3
modify the conditions of bond in both cases. In its motions, the State alleged that

“new information” warranted an increase in Berry’s appearance bonds.

Specifically, the State alleged that on September 9, 2014, while Berry was in jail

for the charged offenses, Berry made a threat against the complaining witnesses

during a recorded telephone conversation with a third party. On October 24, 2014,

the trial court, without a hearing, increased bail in each case to $500,000, and a

warrant was issued for Berry’s arrest based on the increased bond amounts.

On November 7, 2014, Berry filed a second application for writ of habeas

corpus in each case. In both applications, Berry argued that the increased bond

amounts were excessive, oppressive, beyond his financial means, and in violation

of his rights under the Eighth and Fourteenth Amendments to the United States

Constitution; article 1, sections 11, 13, and 19 of the Texas Constitution; and

articles 1.09 and 17.15 of the Texas Code of Criminal Procedure. Berry also

argued that the trial court erred by increasing bail in each case based solely on the

State’s allegation that Berry had made a threat against the complaining witnesses.

Specifically, Berry argued that the State possessed a police report and an audio

recording containing information regarding the alleged threat when the first habeas

hearing took place, but that the State failed to disclose this information to the trial

court at that time. Berry argued that because the State did not disclose this

4
information to the trial court when it set his bonds at the first habeas hearing, the

information could not properly form the basis for a subsequent bail increase.

On November 10, 2014, the trial court conducted a hearing on Berry’s

applications. At the hearing, the trial court, at the request of Berry’s counsel, took

judicial notice of the bond history contained in the court’s file and the evidence

presented during the September 29, 2014 hearing. Thereafter, Berry presented one

witness, Keith Day. Day testified that he is a bail bondsman and that he posted the

two $150,000 bonds for Berry on October 14, 2014. He testified that Berry made a

$10,000 down payment in order to secure Day’s services for those bonds. Day

testified that he required Berry to check in with his bonding company twice per

week and to notify Day’s company of any changes in Berry’s address, phone

number, or employment or if he was rearrested. Day also testified that he required

Berry to wear an electronic ankle monitor and that the ankle monitor was

programmed to notify the monitoring facility if Berry came within ten miles of the

complaining witnesses’ residence. Day testified that during the time period that

Berry was released on the two $150,000 bonds, Berry did not violate the

requirements imposed by Day and, to the best of his knowledge, Berry did not go

within ten miles of the complaining witnesses’ residence. Day further testified that

Berry was aware that there was a warrant issued for his arrest based on the

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increased bond amounts, yet Berry voluntarily appeared in court for the second

habeas hearing.

At the conclusion of the hearing, the trial court denied Berry’s requested

relief and ordered that bail remain at $500,000 in each case. Berry timely filed this

appeal.

II. Increase in Bail

Berry’s brief on appeal challenges the trial court’s decision to increase bail

and its subsequent denial of his request for a reduction in bail. We first address

Berry’s argument that the trial court erred in increasing his bail from $150,000 to

$500,000 in each case.

Article 17.09 of the Texas Code of Criminal Procedure provides that once a

defendant has “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[.]” Tex. Code Crim. Proc. Ann. art. 17.09, § 2 (West 2015). However, as

an exception to this rule, article 17.09 provides 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,” the judge or

magistrate may “require the accused to give another bond in such amount as the

6
judge or magistrate may deem proper.” Id. art. 17.09, § 3; see also Ex parte Wood,

308 S.W.3d 550, 553 (Tex. App.—Beaumont 2010, no pet.). “No precise standard

exists for determining what constitutes ‘good and sufficient cause’ under [a]rticle

17.09.” Miller v. State, 855 S.W.2d 92, 93-94 (Tex. App.—Houston [14th Dist.]

1993, pet. ref’d). Therefore, each case must be reviewed on a case-by-case basis.

Id. at 94. Because the trial court has considerable discretion under article 17.09 to

increase bail, we will not disturb its decision unless we find that the trial court has

abused its discretion. Id. at 93.

As part of his first issue, Berry argues that the trial court erred by granting

the State’s motion to increase bond and raising his bail to $500,000 in each case

because the State did not establish that Berry made a threat against the complaining

witnesses. Essentially, Berry argues that the State’s allegation that Berry made a

threat against the complaining witnesses was insufficient, by itself, to support an

increase in bail and that it was an abuse of discretion for the trial court to increase

his bonds without evidence of the alleged threat. Berry, however, did not argue,

either in his second application for writ of habeas corpus or at the second habeas

hearing, that the State failed to present evidence of the alleged threat in support of

its motion to increase bail or that the trial court abused its discretion by increasing

his bail without this evidence. He also did not argue that the State failed to show

7
“good and sufficient cause” to increase bail under article 17.09. By failing to

include these grounds in his second application for writ of habeas corpus or in his

arguments to the trial court at the second habeas hearing, Berry failed to preserve

these arguments for our review. See Tex. R. App. P. 33.1(a); Hughes v. State, 16

S.W.3d 429, 431 (Tex. App.—Waco 2000, no pet.) (finding that appellant waived

argument regarding collateral estoppel for purposes of appeal by failing to present

it in his application for writ of habeas corpus or in his arguments to the trial court

during the habeas hearing); Ex parte Torres, 941 S.W.2d 219, 220 (Tex. App.—

Corpus Christi 1996, pet. ref’d) (concluding that appellant waived basis for claim

of double jeopardy by failing to include it in his application for writ of habeas

corpus); see also Ex parte Saldana, Nos. 13-01-360-CR, 13-01-361-CR, 2002 WL

91331, *5 (Tex. App.—Corpus Christi Jan. 24, 2002, no pet.) (not designated for

publication) (finding that appellant failed to preserve his argument that his bond

was improperly increased under article 17.09 because appellant failed to include

such argument in his application for writ of habeas corpus). We, therefore, do not

address the merits of these arguments on appeal.

In his second issue, Berry argues that the trial court should not have

considered the telephone conversation containing the alleged threat in determining

whether to increase bail because the State allegedly possessed a police report and

8
an audio recording containing information regarding the alleged threat when the

first habeas hearing took place, but failed to disclose this information to the trial

court at that time. Berry claims that the State instead chose to bring the telephone

conversation to the trial court’s attention only after Berry had posted the original

two $150,000 bonds. Berry argues that “[a]llowing the State to present information

it possessed but failed to disclose until after a bond hearing or, as in this case, after

[a]ppellant incurs enormous costs in posting the bond,” is oppressive and would

encourage the State to engage in those tactics in the future.

The record before us does not definitively indicate when the State came into

possession of any police report, audio recording, or other evidence of the telephone

conversation containing the alleged threat made by Berry. 1 However, during the

second habeas hearing, the prosecutor informed the trial court that regardless of
1
During the second habeas hearing, Berry’s counsel argued that a police
report containing information regarding the telephone conversation was filed on
September 17 or September 19. He then stated, “I’d like to make sure that that’s
part of the record[,] that that’s a fact.” The trial judge responded, “[t]hat will be
reflected in the record.” However, “[c]ounsel who want ‘the record to reflect’
certain facts must include those facts in the record as evidence either by sworn
testimony, exhibits, stipulations, admissions or judicial notice.” Shields v. State,
820 S.W.2d 831, 833 (Tex. App.—Waco 1991, no pet.). Berry did not present any
testimony, exhibits, stipulations, or admissions establishing the date that the State
first came into possession of the information regarding the telephone conversation.
In addition, although Berry’s counsel asked the trial court to take judicial notice of
the fact that the State possessed an audio recording of the telephone conversation at
the time of the original bond hearing, the record does not reflect that the trial court
agreed to do so.
9
when the State first received information regarding the alleged threat, the

prosecutor filed the State’s motion to increase bond as soon as he personally

became aware of this information:

[THE STATE]: And, Your Honor, regardless of when the
State came in possession of these phone calls, it was made -- as soon
as it was brought to my attention that there was a threat made by Mr.
Berry to the complaining witnesses, that’s when I acted. I felt that it
was important that the Court know that these statements were made.
All cases are different in reference to [defense counsel] comparing
this bond compared to other crimes. All crimes are different, and the
facts are different on this case because there was a threat made to the
complaining witnesses in this case. I acted upon that as soon as I
became aware of it and I brought that to the Court’s attention. I do
think it is pertinent to how these bonds should be set in order to
protect the complaining witnesses in this case.

Berry presented no evidence to contradict the prosecutor’s statements, and the

record before us contains no evidence to suggest that the State intentionally

withheld information from the trial court at the original bail hearing or that the

State, with the intent to keep Berry incarcerated, waited to inform the trial court of

the alleged threats against the complaining witnesses until after Berry had posted

the original appearance bonds.

Article 17.15(5) of the Texas Code of Criminal Procedure requires the trial

court to consider the future safety of the victim of an alleged offense in setting a

defendant’s bail. Tex. Code Crim. Proc. Ann. art. 17.15(5) (West 2015). In

addition, article 56.02 gives the victim of an offense “the right to have the
10
magistrate take the safety of the victim or his family into consideration as an

element in fixing the amount of bail for the accused[.]” Id. art. 56.02(a)(2) (West

Supp. 2014). In light of the trial court’s statutory duty to consider the safety of the

victims, the trial court’s broad discretion in setting bail, the absence of any

evidence that the State withheld information intentionally or for the purpose of

keeping Berry incarcerated, and the absence of any relevant case law cited by

Berry to support his argument, we find that the trial court did not abuse its

discretion by considering the alleged threat, even though the trial court received

this information after the initial bond hearing and after Berry posted his original

bonds. See id. art. 17.09, § 3 (providing that the trial court may require the accused

to give another bond “whenever, during the course of the action, the judge . . .

finds that the bond is . . . insufficient in amount . . . or for any other good and

sufficient cause”); Meador v. State, 780 S.W.2d 836, 836-37 (Tex. App.—Houston

[14th Dist.] 1989, no pet.) (finding, in the context of a bond increase under article

17.09, that the trial court “has great latitude and discretion when setting bond for a

person accused of committing a crime”). We overrule Berry’s second issue.

III. Denial of Request to Reduce Bail

In his first issue, Berry argues that the $500,000 appearance bond in each

case is excessive and violates his rights under the Eighth and Fourteenth

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Amendments of the United States Constitution; article I, sections 11, 13, and 19 of

the Texas Constitution; and articles 1.09 and 17.15 of the Texas Code of Criminal

Procedure. We review a trial court’s decision in setting bail for an abuse of

discretion. See Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel

Op.] 1981). The trial court’s ruling will not be disturbed if it is within the zone of

reasonable disagreement. Wood, 308 S.W.3d at 552. In reviewing the trial court’s

decision, we view the evidence in the light most favorable to the trial court’s

ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003),

overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App.

2007).

The primary purpose of an appearance bond is to secure the presence of a

defendant in court for trial of the offense charged. Ex parte Vasquez, 558 S.W.2d

477, 479 (Tex. Crim. App. 1977). “Bail should not be set so high as to be

oppressive, guaranteeing the defendant's appearance, but should be high enough to

provide reasonable assurance the defendant will appear at trial.” Ex parte Henson,

131 S.W.3d 645, 647 (Tex. App.—Texarkana 2004, no pet.); see also Ex parte

Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. [Panel Op.] 1980). In setting bail, the

trial court must strike a balance between the defendant’s presumption of innocence

12
and the State’s interest in assuring the defendant’s appearance at trial. Ex parte

Beard, 92 S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref’d).

Both the United States and Texas Constitutions prohibit excessive bail. See

U.S. CONST. amends. VIII, XIV; Tex. Const. art. I, §§ 11, 13. Bail is excessive if it

is “set in an amount greater than [what] is reasonably necessary to satisfy the

government’s legitimate interests.” Beard, 92 S.W.3d at 573. Article 17.15 of the

Texas Code of Criminal Procedure provides rules for the court to follow in setting

bail. See Tex. Code Crim. Proc. Ann. art. 17.15. Article 17.15 provides:

The amount of bail to be required in any case is to be regulated
by the court, judge, magistrate or officer taking the bail; they are to be
governed in the exercise of this discretion by the Constitution and by
the following rules:

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.

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Id. Other factors and circumstances that the trial court may consider in determining

the amount of bail include: (1) the defendant’s work record; (2) the defendant’s

family and community ties; (3) the defendant’s length of residency; (4) the

defendant’s prior criminal record; (5) the defendant’s conformity with previous

bond conditions; (6) the existence of outstanding bonds, if any; and (7) aggravating

circumstances alleged to have been involved in the charged offense. See Rubac,

611 S.W.2d at 849-50; Wood, 308 S.W.3d at 552. The burden of proof is on the

defendant to prove that bail is excessive. Rubac, 611 S.W.2d at 849.

A. Nature and Circumstances of the Alleged Offense

We first consider the nature of the alleged offenses and the circumstances of

their commission. See Tex. Code Crim. Proc. Ann. art. 17.15(3). In considering

this factor, it is proper to consider the potential punishment for the offense that is

permitted by law. Ex parte Hunt, 138 S.W.3d 503, 506 (Tex. App.—Fort Worth

2004, pet ref’d). Berry has been charged in two cases with aggravated robbery, a

first-degree felony. See Tex. Penal Code Ann. § 29.03(a)(1), (b) (West 2011). The

punishment range for a first-degree felony is imprisonment for five to ninety-nine

years or life, and a fine of up to $10,000. Id. § 12.32. To the extent the two

aggravated robbery offenses arise from the same criminal episode, which the

record seems to suggest, Berry may be sentenced to concurrent, rather than

14
consecutive, sentences if he is convicted of both offenses. See id. § 3.03(a) (West

Supp. 2014). Nevertheless, Berry faces a potentially lengthy prison sentence if he

is convicted of one or both charges. See id. § 12.32. Further, the indictments allege

that Berry, while in the course of committing theft of property belonging to the

complainants, and with the intent to obtain and maintain control over the property,

intentionally and knowingly caused serious bodily injury to the complainants by

hitting them with his hand and kicking them with his foot. “‘Serious bodily

injury’” is defined by the Penal Code as “bodily injury that creates a substantial

risk of death or that causes death, serious permanent disfigurement, or protracted

loss or impairment of the function of any bodily member or organ.” Tex. Penal

Code Ann. § 1.07(a)(46) (West Supp. 2014). Thus, the indictments, on their face,

indicate that the crimes with which Berry is charged are both serious and violent in

nature. Therefore, the trial court could have reasonably concluded that this factor

weighs in favor of a high bail.

B. Sufficient Bail to Assure Appearance

We next consider whether bail is sufficiently high to give a reasonable

assurance of appearance at trial. See Tex. Code Crim. Proc. Ann. art. 17.15(1). A

defendant’s ties to the community and work history are relevant to whether the

amount of bail is adequate to give reasonable assurance that the defendant will

15
appear. See Ex parte Tata, 358 S.W.3d 392, 400 (Tex. App.—Houston [1st Dist.]

2011, pet. dism’d). A defendant’s compliance with the conditions of any prior

bonds also bears on this issue. Ex parte Davis, 147 S.W.3d 546, 548 (Tex. App.—

Waco 2004, no pet.).

During the second habeas hearing, Berry presented evidence that he

complied with the requirements of the two $150,000 bonds while released on bail.

Specifically, Berry’s bail bondsman testified that he imposed several reporting

requirements on Berry, including requirements that Berry check in with the

bondsman twice per week, that Berry report any changes in his address, phone

number, or employment, and that Berry notify the bondsman if he was rearrested

or subsequently incarcerated. The bondsman testified that during the time period

that Berry was released on bond, Berry complied with each of these requirements.

Because Berry’s bonds were set high, the bonding company independently

required Berry to wear an electronic ankle monitor while he was released on bond.

The bondsman testified that Berry’s ankle monitor was programmed to alert the

monitoring facility if Berry came within ten miles of the complaining witnesses’

residence and that, to his knowledge, Berry did not personally violate the ten-mile

restriction while he was released on bond. The bondsman also testified that Berry

16
voluntarily appeared in court for his second habeas hearing despite knowing that a

warrant for his arrest had been issued based on his increased bonds.

Other evidence from the habeas hearings, however, establishes that Berry is

not a resident of this jurisdiction. He resides in Little Rock, Arkansas. Most of

Berry’s family members, including his fiancé, his daughter, and his daughter’s

family, also live in Arkansas. Berry has no discernable ties to Texas other than one

brother who lives in Port Arthur, Texas. The record also reflects that Berry was in

Louisiana at the time he was arrested for the alleged offenses.

With respect to his work history, the record indicates that Berry worked in

Arkansas as the manager of his powder coating business immediately before his

arrest. Berry, however, presented no evidence that he operated or worked for that

business for any meaningful amount of time or that he intended to return to that job

if released on bail. The only other evidence that Berry presented with respect to his

work history was that he served in the United States Air Force and was honorably

discharged in 1983 and that he worked for his brother building homes in Texas for

a brief period in 1986. Berry, however, presented no evidence of any recent work

history that would establish an additional tie to Jefferson County or to Texas in

general.

17
 Given that Berry does not reside in this jurisdiction, has few ties to the

community, and was located out of state at the time he was arrested for the charged

offenses, and given the scant evidence in the record of a stable work history or any

meaningful employment ties to Texas, the trial court could have reasonably

concluded that Berry presents a risk of flight, particularly given that he faces a

potential life sentence if convicted of one or both of the charged offenses. Further,

although Berry presented evidence regarding his compliance with the requirements

of his two $150,000 bonds during his release on bond, the record reflects that at the

time the trial court denied Berry’s requested relief, Berry had been released on

bond for less than thirty days. In evaluating Berry’s compliance with the bonds, the

trial court could have reasonably taken into account the relatively brief duration of

this period of compliance in deciding the weight to be given to this evidence. See

Esquivel v. State, 922 S.W.2d 601, 604 (Tex. App.—San Antonio 1996, no pet.)

(noting that the trial court, as the trier of fact, is responsible for assessing the

weight to be given to the evidence in a bail reduction hearing). Viewing the

evidence in the light most favorable to the trial court’s ruling, the trial court could

have reasonably concluded that this factor weighs in favor of a high bail.

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C. Instrument of Oppression

Bail may not be used as an instrument of oppression. Tex. Code Crim. Proc.

Ann. art. 17.15(2); see Ivey, 594 S.W.2d at 99. Bail has been held to be oppressive

when the trial court sets bail at an amount “for the express purpose of forcing

appellant to remain incarcerated” pending trial or appeal. See Ex parte Harris, 733

S.W.2d 712, 714 (Tex. App.—Austin 1987, no pet.). Here, the record contains no

indication that the trial court set the current bail amounts for the sole purpose of

ensuring that Berry remains incarcerated pending trial. See Montalvo v. State, 315

S.W.3d 588, 596 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (“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.”).

D. Ability to Make Bail

The trial court is also required to consider the defendant’s ability to make

bail. See Tex. Code Crim. Proc. Ann. art. 17.15(4). To show that he is unable to

make bail, a defendant generally must show that his funds and the funds of his

family have been exhausted. Ex parte Castellanos, 420 S.W.3d 878, 883 (Tex.

App.—Houston [14th Dist.] 2014, no pet.). Unless the defendant can make this

showing, a defendant usually must show that he made an unsuccessful effort to

19
furnish bail before bail can be determined to be excessive. Milner v. State, 263

S.W.3d 146, 149 (Tex. App.—Houston [1st Dist.] 2006, no pet.). However, if both

the defendant and his family indicate a financial inability to procure a bond, the

court will not require the defendant “‘to do a useless thing.’” Id. at 149-50 (quoting

Ex parte Dueitt, 529 S.W.2d 531, 532 (Tex. Crim. App. 1975)).

Berry presented no evidence regarding how much he regularly earns from

his powder coating business, whether that business has any assets, or how much

that business is worth. There is also no evidence in the record regarding Berry’s

personal financial resources, including whether he has any other sources of

income, whether he has any bank accounts, whether he owns any real estate or

other assets, or whether he owes any debt.

At the second habeas hearing, Berry presented testimony from his bail

bondsman that he paid the bondsman $10,000 as a down payment for his original

two $150,000 bonds. Berry, however, presented no evidence regarding whether

that payment exhausted Berry’s funds or the funds of his family members or

whether Berry can pay or borrow any additional amounts.2 There is also no

2
In his applications for writ of habeas corpus, Berry alleged that the $10,000
that he paid to his bondsman to secure his initial two $150,000 bonds “represents
more than [d]efendant’s available assets and includes indebtedness to other persons
or family members who loaned money to [d]efendant to secure his release.” Berry
also alleged that as a result of paying the $10,000 to his bondsman, he “has
20
evidence in the record to indicate the premium Berry might have to pay to obtain

two $500,000 bonds to meet the current bail amount set by the trial court, and there

is no evidence showing what efforts, if any, Berry or his family has made to obtain

two $500,000 bonds.

Berry’s brother testified at the first habeas hearing that he would be willing

“to put up some of the money” and “some property” if the trial court set bail for the

charged offenses. The record, however, contains no evidence of how much money

his brother was able or willing to contribute or the value of the property he was

willing to provide as collateral for a bond. There is also no evidence regarding

whether his brother did, in fact, provide any money or property to secure Berry’s

initial two $150,000 bonds or whether any portion of those funds or the property is

still available to secure a bond in a higher amount. Similarly, although Berry’s

fiancé testified at the initial habeas hearing that she would try to make a bond for

Berry, she provided no details regarding how much money she was able or willing

to contribute to secure Berry’s bond, and there is no evidence regarding whether

virtually no assets available to pay his attorney’s fees, investigator’s fees, and other
legal fees related to the preparation of his defense.” Berry, however, presented no
evidence to support these allegations. An application for writ of habeas corpus,
although sworn, “is but a pleading and does not prove itself.” Ex parte Wells, 332
S.W.2d 565, 565 (Tex. Crim. App. 1960); see also Ex parte Taylor, 690 S.W.2d
33, 34 (Tex. App.—Beaumont 1985, no pet.).
21
she contributed any funds to the $10,000 payment made by Berry to secure his

initial two $150,000 bonds or whether she has any additional funds to contribute.

In short, the evidence shows that Berry has expended $10,000 since the first

habeas hearing to secure his initial appearance bonds. Berry, however, failed to

present any evidence regarding how, if at all, that payment impacted his ability to

make the higher bail now set by the trial court. Berry presented limited testimony

regarding his and his family’s current financial resources, and he presented no

evidence regarding what efforts, if any, he has made to furnish bail or whether his

funds or the funds of his family have been exhausted. We conclude, therefore, that

Berry did not carry his burden to show that he is unable to make the current bonds

and that the trial court could have reasonably concluded that this factor does not

support a reduction in bail. See Castellanos, 420 S.W.3d at 883; Milner, 263

S.W.3d at 149.

E. Future Safety of the Victims and the Community

The future safety of both the community and the victims of the alleged

offenses must be considered by the trial court in determining the appropriate

amount of bail. Tex. Code Crim. Proc. Ann. art. 17.15(5). Given the seriousness of

the offenses with which Berry has been charged, as well as the alleged acts of

violence that they involved, the trial court could have reasonably concluded that

22
Berry presents a risk to the safety of the community. See Milner, 263 S.W.3d at

151(considering the gravity and nature of the charged offense in determining

whether appellant presented a risk to the safety of the community).

Further, as noted, the State filed a motion to increase bond, asserting as its

sole basis for the increase that Berry, while in custody for the charged offenses,

made a threat against the complaining witnesses during a telephone conversation

with a third party. The State claimed that Berry’s actions “compromise[d] the

future safety of the community and the victim[s]” and warranted an increase in

bail. The record indicates that the trial court was persuaded by the State’s argument

in this respect and, finding that Berry made a threat against the complaining

witnesses, increased bail to $500,000 per case.

Thereafter, Berry filed his second application for writ of habeas corpus,

challenging the higher bond amounts. As the habeas applicant seeking a reduction

in bail, the burden was on Berry to prove that his bail was excessive in light of the

considerations set forth in article 17.15, including those outlined in article

17.15(5). See Rubac, 611 S.W.2d at 849; see generally Tex. Code Crim. Proc.

Ann. art. 17.15. In this respect, Berry presented evidence that while released on

bond, he wore an electronic ankle monitor as a requirement of his bonds, that the

monitor was programmed to alert the monitoring facility if Berry came within ten

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miles of the victims’ residence, and that he did not violate the ten-mile restriction

while he was released on bond. Berry, however, presented no evidence to refute

the trial court’s prior finding that he had threatened the complaining witnesses

while in custody for the charged offenses. Thus, he did not present any evidence to

refute the primary basis for the trial court’s decision to increase his bail. In light of

the trial court’s prior finding that Berry threatened the complaining witnesses, as

well as Berry’s failure to present evidence to refute that finding, the trial court

could have reasonably concluded that Berry’s evidence of compliance with his

bond conditions was insufficient to establish that he did not pose a danger to the

victims in this case and that a higher bail was necessary to ensure the victims’

future safety. The trial court, therefore, could have reasonably concluded that this

factor supported a higher bail.

F. Other Factors

In determining what constitutes reasonable bail, the trial court is also

permitted to consider the defendant’s criminal history and other outstanding bonds.

See Rubac, 611 S.W.2d at 849. Berry’s counsel informed the trial court that Berry

has one prior conviction for misdemeanor theft in Arkansas. The State

corroborated this statement, confirming that its records for Berry showed a prior

arrest for theft of property. No evidence was presented of any outstanding bonds.

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 Berry also relies on certain data he obtained from the Jefferson County

District Clerk’s office to argue that his bonds are excessive when compared to

bonds set in other first-degree felony cases in Jefferson County. In support of this

argument, Berry relies on a computer printout from the Jefferson County District

Clerk’s office, which lists, by docket number and charged offense, the bond

amounts set in each capital murder, attempted capital murder, murder, and

aggravated robbery case pending in Jefferson County as of late October or early

November 2014. However, we note that aside from the docket number, the charged

offense, and the amount of bail set, the printout contains no information regarding

any of the cases listed. As such, we do not know if any of the cases identified in

the printout involve facts or circumstances that are similar, in light of the factors

set forth in article 17.15, to those in the present case. Therefore, we find the

printout on which Berry relies to be of relatively little value in determining the

appropriateness of the bonds set in his two cases.

G. Conclusion

The record reflects that the trial court weighed each of the relevant factors in

determining the appropriate amount of bail in these two cases. Given Berry’s

residence out of state, his few ties to Texas, the scant evidence regarding his work

history, and the fact that he was apprehended for the charged offenses out of state,

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the trial court could have reasonably concluded that Berry poses a risk of flight.

Further, given the serious and violent nature of the offenses with which Berry is

charged, the potentially lengthy prison sentence he could face if convicted, the lack

of evidence regarding Berry’s inability to pay the bonds as currently set by the trial

court, and the trial court’s concerns regarding the future safety of the victims and

the community, we find that the trial court could have reasonably concluded that

the $500,000 bond in each case was justified. We conclude that the trial court did

not abuse its discretion in denying Berry’s request for a reduction in bail. We

overrule Berry’s first issue and affirm the judgment of the trial court.

AFFIRMED.

______________________________
CHARLES KREGER
Justice

Submitted on February 18, 2015
Opinion Delivered August 12, 2015
Do not publish

Before McKeithen, C.J., Kreger and Horton, JJ.

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