Ex Parte Christopher McManus

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-20-00152-CR No. 07-20-00153-CR ________________________

EX PARTE CHRISTOPHER MCMANUS

On Appeal from the 46th District Court Wilbarger County, Texas Trial Court Nos. 12,053 & 12,099; Honorable Dan Mike Bird, Presiding

January 26, 2021

Before PIRTLE, PARKER, and DOSS, JJ.

OPINION

These appeals arise from the trial court’s May 21, 2020 order granting Christopher

McManus’s Application for Writ of Habeas Corpus and Motion to Set Reasonable Bond

and setting McManus’s bond at $200,000 in trial court cause number 12,053 involving the

charge against McManus for felony evading arrest and $200,000 in trial court cause

number 12,099 involving the charge against McManus for failure to appear for jury trial.

McManus challenges that order, arguing the bail bond amounts are excessive. Finding

the trial court did not abuse its discretion, we deny the habeas relief requested. BACKGROUND

McManus was charged with felony evading arrest in cause number 12,053. 1 That

matter was called for trial in April 2016. McManus failed to appear at that trial and, as a

result, was charged with failure to appear in cause number 12,099. 2 In March 2019,

McManus was arrested and held awaiting trial on both causes in the Wilbarger County

Jail. In April 2020, McManus filed with the district court an Application for Writ of Habeas

Corpus and Motion to Set Reasonable Bond in each cause with a brief in support thereof.

Through that application, McManus sought to either be released from jail on a personal

recognizance bond or have his bail reduced to $10,000 in each cause.

As support for McManus’s belief that he was entitled to the relief he sought, he

asserted (1) he had been unlawfully restrained for more than a year, (2) he was charged

with the nonviolent offenses of felony evading arrest with a motor vehicle and failure to

appear for jury trial, (3) his restraint was illegal because he was entitled to a reasonable

bond under articles 1.07 and 11.24 of the Texas Code of Criminal Procedure, article I,

sections 11 and 13 of the Texas Constitution and the Eighth Amendment to the United

States Constitution, (4) his health is in jeopardy as a result of the COVID-19 outbreak and

pandemic, due to his pre-existing health conditions of degenerative bone disease, high

blood pressure, and severe migraines, for which the Wilbarger County Jail is unprepared

to manage, and (5) he has limited financial resources and as such, is only able to raise

the funds required to post bond for $10,000 in each cause through a professional

bondsman.

1 TEX. PENAL CODE ANN. § 38.04(b)(2)(A) (West 2019). 2 TEX. PENAL CODE ANN. § 38.10 (West 2019). 2 The district court granted McManus’s application and motion and set bail at

$200,000 in each cause. McManus nevertheless still challenges that bail as excessive.

ANALYSIS

Bail “is the security given by the accused [to insure] that he will appear and

answer . . . the accusation brought against him . . . .” TEX. CODE CRIM. PROC. ANN. art.

17.01 (West 2015). An appellate court reviews a trial court’s ruling regarding bail under

an abuse of discretion standard. Id. at art. 17.15; Ex parte Gill, 413 S.W.3d 425, 428

(Tex. Crim. App. 2013); Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex. Crim. App. 1981).

In setting the amount of bail, or the conditions thereof, a trial court abuses its discretion if

it acts without reference to any guiding rules or principles. Ex parte Hunt, 138 S.W.3d

503, 505 (Tex. App.—Fort Worth 2004, pet. ref’d). As such, a reviewing court will not

disturb a decision of the trial court if it is within the zone of reasonable disagreement.

Clemons v. State, 220 S.W.3d 176, 178 (Tex. App.—Eastland 2007, no pet.).

The primary purpose of an appearance bond is to secure the accused’s presence

at trial on the offense charged. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App.

1977); Ex parte Hunt, 138 S.W.3d at 505. A trial court should set bail high enough to

reasonably assure that the defendant will have the incentive to appear at trial, but not so

high that it operates as an instrument of oppression. TEX. CODE CRIM. PROC. ANN. art.

17.15; Ex parte Hunt, 138 S.W.3d at 505. Federal and state law both prohibit the

imposition of excessive bail. See U.S. CONST. amend. VIII; TEX. CONST. art. I, §§ 11, 13. 3

3 The Eighth Amendment to the United States Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST. amend. VIII. Per article I, section 11, “[a]ll prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident[.]” TEX. CONST. art. I, § 11. Article 1, section 13 provides, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” TEX. CONST. art. I, § 13. 3 In a proceeding seeking a reduction in the amount of pretrial bail, the accused bears the

burden of proof to show that the bail is excessive. Ex parte Hunt, 138 S.W.3d at 505-06.

See also Ex parte Jefferson, No. 07-20-00123-CR, 2020 Tex. App. LEXIS 5749, at *6

(Tex. App.—Amarillo July 23, 2020, no pet.) (mem. op., not designated for publication).

In determining a bond amount, the trial court should consider factors such as the

accused’s ability to make bail, work record, family ties, length of residency, prior criminal

record, compliance with the provisions and conditions of any previous bond. TEX. CODE

CRIM. PROC. ANN. art. 17.15; Ex parte Hunt, 138 S.W.3d at 506. The trial court should

also consider the existence of outstanding bonds, any aggravating circumstances alleged

to have been involved in the charged offense, the nature of the crime, circumstances

under which it was committed, the accused’s potential sentence, and the future safety of

a victim of the alleged offense as well as the safety of the community. TEX. CODE CRIM.

PROC. ANN. art. 17.15; Ex parte Hunt, 138 S.W.3d at 506.

McManus argues that the $200,000 bail set in each cause is excessive and is

being used both as punishment and as an instrument of oppression. As support for his

position that the bonds are excessive, he argues he stands charged of two non-violent

third degree felonies of which there were no victims (evading arrest and bail jumping).

Thus, he contends, there is no danger or threat to the community. He further argues he

has been imprisoned in the Wilbarger County jail without a bond from March 2019 until

May 2020, and since then under bonds he argues are excessive. Further, while he

understands the trial court considered his failure to appear at trial in determining the

appropriate amount of bail, he argues he is innocent until proven guilty and the trial court

had the means by which to order less invasive measures to ensure his appearance at

4 trial, i.e., house arrest and/or electronic monitoring. See Ex parte Wilson, No. 01-00-

00140-CR, 2000 Tex. App. LEXIS 4660, at *6 (Tex. App.—Houston [1st Dist.] July 12,

2000, no pet.) (mem. op., not designated for publication) (noting as a factor to consider

the defendant’s willingness to be electronically monitored). While this argument has the

potential of being persuasive due to the unprecedented delays in trial being experienced

due to the COVID-19 pandemic, McManus has not provided any evidence supporting his

position on these points and the record before us contains none. While trial courts must

be innovative in dealing with the delicate balance between an accused’s right to be

released on reasonable bail pending trial and the unparalleled delays courts are

experiencing in the trial of pending offenses, a trial court cannot be faulted for failing to

use an alternative that is not supported by the record any more than it can be faulted for

failing to invent a solution that does not exist.

McManus also asserts that he is indigent, has been incarcerated for more than a

year and a half, and has not been able to work and earn money. McManus points to his

stable work record and his strong family ties to the community as additional support for

his argument that the bail amounts set here are excessive. Notwithstanding his

arguments, he has not provided evidence concerning his work record, his family ties, or

any specific ties to the community from which the trial court could determine the

sufficiency of such to assure his appearance at trial. See Ex parte Scott, 122 S.W.3d

866, 870 (Tex. App.—Fort Worth 2003, no pet.) (discussing need for specificity regarding

these factors).

McManus also contends that while neither he nor his family can possibly make

combined bail of $400,000, his family is able to assist him in making a combined $25,000

5 bail. However, the accused’s ability to make bail is only one factor to be considered in

determining the appropriate amount of bail. Id. Merely because a defendant cannot meet

the bond set by the trial court does not automatically render the bond excessive. Id. “If

the ability to make bond in a specified amount controlled, then the role of the trial court in

setting bond would be completely eliminated, and the accused would be in the unique

posture of determining what his bond should be.” Id. (citing Ex parte Miller, 631 S.W.2d

825, 827 (Tex. App.—Fort Worth 1982, pet. ref’d)). McManus has not provided any

further information concerning his or his family’s ability to make bond. See Ex parte Scott,

122 S.W.3d at 870 (noting same). To demonstrate an inability to make bail, a defendant

generally must establish that his funds and his family’s funds have been exhausted. Ex

parte Hopkins, Nos. 03-19-00695-CR, 03-19-00715-CR, 2020 Tex. App. LEXIS 6685, at

*7 (Tex. App.—Austin Aug. 20, 2020, no pet.) (mem. op., not designated for publication)

(citations omitted). “Moreover, a bail reduction is not favored when the defendant makes

vague references to inability to make bail without detailing his specific assets and financial

resources.” Id. The lack of evidence before us, then, weighs in favor of a finding that the

bails set are not excessive. See Ex parte Robles, No. 14-20-00317-CR, 2020 Tex. App.

LEXIS 8495, at * 8-9 (Tex. App.—Houston [14th Dist.] Oct. 29, 2020, no pet.) (mem. op.,

not designated for publication) (noting that the appellant did not meet his burden of proof

because he did not establish that his family’s financial resources had been exhausted

and had not offered any evidence of an unsuccessful effort to furnish bail).

McManus also asserts that the jail stopped all in-person visits due to the COVID-

19 pandemic and thus, he has been able to communicate with counsel only by phone and

by letters. He expressed concern about thoroughly preparing for trial through these

means as all calls are recorded and limited by jail policies and it is difficult to fully 6 communicate via written letter. He asserts this is violative of statutory and constitutional

rights above and beyond his right to be free of excessive bails, thus weighing in favor of

reducing his bail in each cause. We do not agree this circumstance weighs particularly

heavily in McManus’s favor.

Lastly, McManus brings to the attention of this court his recent medical history. A

doctor discovered a potentially cancerous tumor on McManus’s leg. McManus contends

that if it is determined to be cancer, he will require expensive treatment that the sheriff in

Wilbarger County has expressed an inability or unwillingness to provide. Further,

McManus suffers from other medical conditions he claims make him more vulnerable

during the COVID-19 pandemic for which the Wilbarger County Jail is unequipped to fully

handle or mitigate. The Fourteenth Court of Appeals, sitting in Houston, recently

addressed a similar contention. See Ex parte Robles, No. 14-20-00317-CR, 2020 Tex.

App. LEXIS 8495, at * 13. It cited a case from the Ninth Court of Appeals, sitting in

Beaumont, that rejected a claim that bail should be reduced due to the defendant’s health

condition. Ex parte Corona, Nos. 09-18-00166-CR through 09-18-00172-CR, 2018 Tex.

App. LEXIS 7816, at * 9-10 (Tex. App.—Beaumont Sept. 26, 2018, no pet.) (mem. op.,

not designated for publication). The court in Robles concluded that a trial court may

consider any evidence of such claims under the existing factors, if such evidence is

indeed presented. However, it determined that given the “scant evidence regarding the

actual risk to appellant,” it was not compelled to grant a reduction in bail. We find the

same to be true here as Appellant has provided no evidence of his medical conditions nor

any evidence of whether or how the jail’s COVID-19 procedures would be insufficient to

protect him. See Ex parte Robles, 2020 Tex. App. LEXIS 8495, at *14. While this court

7 is sympathetic to McManus’s situation, we cannot say his condition weighs in favor of

reducing the amount of his bail.

Based on the record before us, it is reasonable to assume that, if released on a

reduced amount of bail in each cause, McManus might not appear for court when

summoned as he did previously. Nearly three years lapsed from the time McManus failed

to appear for trial to the time he was arrested. Because this is a significant indicator of

future conduct and because we do not find the other factors weigh sufficiently in favor of

reducing the amount of bail set by the trial court, particularly given the lack of evidence

presented in the record, we cannot say the trial court abused its discretion in setting

McManus’s bail at the amounts it did. Accordingly, we resolve McManus’s issue against

him.

CONCLUSION

Considering the record evidence in the light most favorable to the trial court’s ruling

and measuring the court’s ruling against the applicable criteria, we conclude the court did

not abuse its discretion by setting bail at $200,000 in each cause. Accordingly, we deny

the request for habeas relief.

Per Curiam

Publish.