Ex Parte: David McBride

Opinion

OPINION HEADING PER CUR

                NO. 12-07-00241-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

§          APPEAL FROM THE 7TH

EX PARTE: DAVID MCBRIDE,

APPELLANT            §          JUDICIAL DISTRICT COURT OF

§          SMITH COUNTY, TEXAS

MEMORANDUM OPINION

            David Allen McBride appeals the trial court’s order reducing his bond from $500,000.00 to $250,000.00.  In one issue, Appellant contends that the trial court erred when it granted a bail reduction in an amount that violated the Texas Constitution and the Texas Code of Criminal Procedure.  We affirm.

Background

            Appellant was charged with murder, a first degree felony.¹

 The trial court set Appellant’s bond at $500,000.00.  Appellant filed an application for writ of habeas corpus seeking bail reduction, alleging that the bail was excessive, oppressive, and beyond Appellant’s financial means  in violation of the United States Constitution, the Texas Constitution, and the Texas Code of Criminal Procedure. The trial court conducted a hearing on the application.  Appellant’s investigator, Johnny Beddingfield, was the only witness.  He testified regarding damage to and around Appellant’s front door. Appellant’s counsel stated that Appellant’s family had the ability to make a $50,000.00 bond.  The State introduced a laboratory report from the Southwestern Institute of Forensic Sciences at Dallas, the offense report, and photographs of the victim and crime scene.  Following the hearing, the trial court entered an order granting Appellant’s application for bail reduction and reduced Appellant’s bail to $250,000.00.  This appeal followed.

Amount of Bail

            In his sole issue, Appellant contends that the trial court abused its discretion when it granted his application for bail reduction in an amount that violated the Texas Constitution and the Texas Code of Criminal Procedure. More specifically, he argues that the trial court did not sufficiently reduce his bail and requests that his bail amount be reduced to $50,000.00. The State disagrees.

Applicable Law

            The decision regarding a proper bail amount lies within the sound discretion of the trial court. Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon 2005). Thus, we review a trial court’s pretrial bail determination under an abuse of discretion standard.  See Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981).  With few exceptions, all persons accused of a crime in this state have a right to bail pending trial. Tex. Const. art. I, § 11; Tex. Code Crim. Proc. Ann. art. 1.07 (Vernon 2005). The right to bail is based on the presumption of innocence. Nguyen v. State, 881 S.W.2d 141, 143 (Tex. App.–Houston [1st Dist.] 1994, no pet.). Excessive bail is prohibited by 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 an appearance bond 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). A habeas applicant bears the burden of proof to show that his bail is excessive. See id. at 849. 

            The Texas Legislature has established the following factors to be considered by a trial court in setting pretrial 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 bond 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 meet the bond set by the trial court does not automatically render the bail excessive. Id.

            Other pertinent factors include work record, family and community ties, length of residency in the county, prior criminal record, conformity with previous bond conditions, other outstanding bonds, and aggravating factors involved in the offense.  Ex parte Rubac, 611 S.W.2d at 849-50.  The factors to be considered in our review of a trial court’s decision are the same as those that are to be considered by the trial court in its initial determination of bail.  Smith v. State, 829 S.W.2d 885, 887 (Tex. App.– Houston [1st Dist.] 1992, pet. ref’d). 

Analysis

            We turn to the factors to be considered in setting pretrial bail and set out the evidence in this case as it relates to each factor.  Because the trial court granted Appellant’s application for bail reduction, we review the evidence to determine whether the trial court abused its discretion by not setting Appellant’s bail lower than $250,000.00.

1. Reasonable Assurance of Appearance

            Appellant offered no evidence regarding his ties to the community.  Beddingfield testified that there was an eviction notice at Appellant’s mobile home where the incident took place.  Appellant’s parents or other family members did not testify that he could live with them before his trial.  Further, Appellant was facing a possible life sentence.²  On the other hand, Appellant’s counsel stated that Appellant voluntarily turned himself in after an arrest warrant was issued. Considering this factor alone, the evidence supports a finding that Appellant may fail to appear for trial. Therefore, this factor favors the current bail amount.

2. Use of Bail as an Instrument of Oppression

            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 during trial.  Richardson v. State, 181 S.W.3d 756, 759 (Tex. App.–Waco 2005, no pet.).  Appellant was charged with murder, a first degree felony.  In a number of cases, courts in this state have concluded that bail of $250,000.00 for murder was not excessive.  See, e.g., Sherman v. State, No. 01-06-00466-CR, 2007 WL 54806, at *7-8 (Tex. App.–Houston [1st Dist.] Jan. 9, 2007, no pet.) (mem. op., not designated for publication) (holding that bail of $250,000.00 for murder was not excessive because appellant did not show his inability to post bail higher than $100,000.00, appellant represented a flight risk, and appellant committed two drug possession offenses while out on a previous bail); Ex parte McFarland, No. 04-03-00154-CR, 2003 WL 21658599, at *3 (Tex. App.–San Antonio July 16, 2003, no pet.) (mem. op., not designated for publication) (determining that bail of $500,000.00 for murder charge was excessive and lowering bail to $250,000.00); Ex parte Ortiz, No. 01-02-00087-CR, 2002 WL 937676, at *3-4 (Tex. App.–Houston [1st Dist.] May 7, 2002, no pet.) (not designated for publication) (holding bail of $250,000.00 for murder charge was not excessive because of strong evidence suggesting that appellant committed the offense, the nature of the offense, appellant’s escape from police officers, and assault on police officers and his father); Ex parte Lebron, No. 04-97-00087-CR, 1997 WL 311488, at *1-2 (Tex. App.–San Antonio June 11, 1997, no pet.) (not designated for publication) (determining that bail of $250,000.00 for murder charge was not excessive because of the violent nature of the crime and appellant’s criminal history and lack of ties to the community).

            The record contains nothing to indicate the trial court rendered its decision to force Appellant to remain incarcerated, especially since it reduced bail from $500,000.00 to $250,000.00.  See Richardson, 181 S.W.3d at 759.  In light of decisions by other courts, bail of $250,000.00 for a first degree murder charge does not appear excessive. Further, Appellant failed to produce any evidence regarding his assets and failed to demonstrate that the trial court set bail in an amount higher than he could afford or higher than necessary to assure his appearance in court. See Sherman,  2007 WL 54806, at *7.  Thus, this factor favors the current bail amount.

3. Nature of the Offense and Circumstances of Commission

            Appellant’s counsel argued that the offense report showed Appellant was acting in self defense when he shot and killed the victim.  The State’s evidence showed that eight of the nine shots found in the victim’s body entered through his back. Although Appellant’s counsel disputed that all eight shots were to the victim’s back, he conceded that some of them were. Appellant was charged with murder, a first degree felony, with a maximum sentence of life imprisonment and a fine of up to $10,000.00.  See Tex. Penal Code. Ann. §12.32, 19.02(c) (Vernon 2003).  The potential life sentence and evidence showing that the victim was shot multiple times in the back indicate that a high bail amount was appropriate. Therefore, this factor favors the current bail amount.

4. Ability to Make Bail

            Although Appellant carried the burden of proof on his application, he introduced no evidence on his personal ability to make bail. Appellant’s counsel stated that Appellant’s family could make a $50,000.00 bond, but offered no evidence to show the individual financial condition of any family member. Because Appellant failed to carry his burden of proof, this factor favors the current bail amount.

5. Future Safety of the Community and Other Factors

            The future safety of the community was not addressed at the hearing.  The existence of an indictment, without more, is insufficient to show the accused poses a threat to the community, and evidence should be presented on that issue. See Ex parte Milburn, 8 S.W.3d 422, 426 (Tex. App.–Amarillo 1999, no pet.); Nguyen, 881 S.W.2d at 144. Therefore, the unproven allegations in the indictments are insufficient support for a conclusion that Appellant is a threat to the community. Morever, the record includes no evidence supporting an inference that Appellant is a threat to the community. Also, the other pertinent factors that may be considered by the trial court were not addressed at the hearing. Thus, these factors favor a lower bail amount.

Conclusion

            After reviewing the record in this case and considering the appropriate factors, we conclude that bail of $250,000.00 was supported by the evidence. Consequently, the trial court did not abuse

 its discretion by granting Appellant’s application for writ of habeas corpus seeking bail reduction and reducing his bail from $500,000.00 to $250,000.00. We overrule Appellant’s sole issue. The judgment of the trial court is affirmed.

                                                                                                     JAMES T. WORTHEN   

                                                                                                                 Chief Justice

Opinion delivered November 30, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

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¹Tex. Penal Code Ann. § 19.02(b), (c) (Vernon 2003).

² Punishment for a first degree felony is imprisonment for life or for any term of not more than ninety-nine years or less than five years and, in addition, a fine not to exceed $10,000.00. Tex. Penal Code Ann. § 12.32 (Vernon 2003).