Ex Parte Davis

147 S.W.3d 546, 7 A.L.R. 6th 829, 2004 Tex. App. LEXIS 7784, 2004 WL 1903405
CourtCourt of Appeals of Texas
DecidedAugust 25, 2004
Docket10-04-00083-CR, 10-04-00084-CR
StatusPublished
Cited by56 cases

This text of 147 S.W.3d 546 (Ex Parte Davis) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex Parte Davis, 147 S.W.3d 546, 7 A.L.R. 6th 829, 2004 Tex. App. LEXIS 7784, 2004 WL 1903405 (Tex. Ct. App. 2004).

Opinions

OPINION

FELIPE REYNA, Justice.

The State charged Trey and Chad Davis with murder. A magistrate set bail for each at $1,000,000. Trey and Chad filed habeas applications seeking a reduction of bail, which the trial court denied. They contend on appeal that the court abused its discretion because: (1) they cannot afford to make bail in this amount; (2) they have ties to the community which indicate that they do not pose a flight risk; (3) adequate conditions of bail could be imposed to ensure that they pose no threat to the community; and (4) the circumstances of the offense simply do not justify bail in this amount.

Because most of the evidence supports a reduction of bail as to Trey, we will reverse the judgment as to Trey and reduce his bail to $500,000. Because the evidence is less favorable as to Chad but his bail is excessive when compared to other cases involving similar factual scenarios, we will reverse the judgment as to Chad and reduce his bail to $750,000.

[548]*548STANDARD OF REVIEW

We review a court’s pretrial bail determination under an abuse-of-discretion standard. Ex parte Rubac, 611 S.W.2d 848, 850 (Tex.Crim.App. [Panel Op.] 1981); Ex parte Beard, 92 S.W.3d 566, 568 (Tex.App.-Austin 2002, pet. ref'd); Ex parte McCullough, 993 S.W.2d 836, 837 (Tex.App.-Waco 1999, no pet.). A habeas applicant bears the burden of proving that his bail is excessive. Rubac, 611 S.W.2d at 849; Beard, 92 S.W.3d at 568; McCullough, 993 S.W.2d at 837.

Article 17.15 provides five factors to be considered in determining what bail is appropriate:

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 Grim. PROC. Ann. art. 17.15 (Vernon Supp.2004).

Other pertinent factors include family and community ties, work history, length of residence in the county, prior criminal record, conformity with conditions of prior bonds, and any aggravating circumstances of the offense. Rubac, 611 S.W.2d at 849-50; Beard, 92 S.W.3d at 568; McCullough, 993 S.W.2d at 837. 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 Charlesworth, 600 S.W.2d 316, 317 (Tex.Crim.App. [Panel Op.] 1980); McCullough, 993 S.W.2d at 837.

We will review the court’s decision in light of the pertinent factors.

SUFFICIENTLY HIGH TO GIVE REASONABLE ASSURANCE OF APPEARANCE

“[B]ail should be set high enough to give reasonable assurance that the defendant will appear at trial.” McCullough, 993 S.W.2d at 837 (quoting Ex parte Brown, 959 S.W.2d 369, 371 (Tex.App.-Fort Worth 1998, no pet.)). A defendant’s ties to the community and work history bear on the adequacy of bail to give reasonable assurance he will appear. See McCullough, 993 S.W.2d at 837-38. A defendant’s compliance with the conditions of any prior bonds likewise bears on this issue.

Here, Trey testified in his own behalf that he lives with his father Willie in Brazos County. He has lived there for ten years. He works with Willie in the oilfield business, although at the time of the hearing he was unable to work because of a broken arm. Trey had complied with the conditions of a prior appearance bond related to a charge of unlawfully carrying a weapon.

Conversely, Trey’s brother Chad did not testify. Nor did he present evidence of his ties to the community or employment situation. Nevertheless, the State presented evidence that Chad has a residence in Point Blank, San Jacinto County, near Lake Livingston.1 According to the affida[549]*549vit presented to obtain a search warrant for Chad’s residence, this property was “in charge of and controlled by” Trey, Chad, Willie, and others unknown.

The State also presented evidence that Trey and Willie have an occupation other than (or in addition to) the oilfield business and that Chad is engaged in this other pursuit as well. A Texas Ranger testified that he received information from a confidential informant that Trey, Chad, and Willie are personally engaged in trafficking marihuana and cocaine from Mexico to Georgia and elsewhere. This information is corroborated by evidence seized during the search of Chad’s home, Willie’s and Trey’s home, and a tour bus owned by Willie. In these searches, authorities recovered miscellaneous firearms and ammunition, marihuana, drug paraphernalia, more than $26,000 in cash, numerous cell phones and pagers, cell phone parts, numerous vehicles, and out-of-state license plates.

The information provided by the informant is also corroborated by the circumstances of the offense. According to the allegations, the murder victim Tommy An-drade had “ripped off the [Davises] for $100,000 worth of drugs and/or money.”

Trey’s ten-year residence in Brazos County, his work in the oilfield business, and his compliance with the conditions of his prior bond all lead to the conclusion that a significantly high bail would not be necessary to ensure his appearance at trial. Conversely, his alleged involvement in narcotics trafficking across state and national boundaries and perhaps his access to a residence in another county lead to the opposite conclusion.

Chad on the other hand presented no evidence with regard to this factor which would suggest that a lesser bond would suffice. The evidence on this factor as to Chad all points to the need for a fairly high bail to ensure his appearance.

NOT SO HIGH AS TO CONSTITUTE 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 pending [trial].’ ” McCullough, 993 S.W.2d at 837 (quoting Ex parte Harris, 733 S.W.2d 712, 714 (Tex.App.-Austin 1987, no pet.)). The record contains nothing to indicate that the trial court rendered its decision on this basis. Cf. Harris, 733 S.W.2d at 714 (trial judge stated, “I’d rather see him in jail than to see someone’s life taken....”).

NATURE AND CIRCUMSTANCES OF THE OFFENSE

Trey and Chad are both charged with murder, which carries a potential maximum sentence of life imprisonment and a fine of up to $10,000. See Tex. Pen.Code Ann.

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Cite This Page — Counsel Stack

Bluebook (online)
147 S.W.3d 546, 7 A.L.R. 6th 829, 2004 Tex. App. LEXIS 7784, 2004 WL 1903405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-davis-texapp-2004.