Ex Parte Parker

26 S.W.3d 711, 2000 Tex. App. LEXIS 5387, 2000 WL 1133084

• Court: Court of Appeals of Texas
• Decided: August 9, 2000
• Docket: 10-00-131-CR
• Status: Published

Opinions

OPINION

GRAY, Justice.

Chad Parker is charged with an aggravated sexual assault of a child under fourteen years of age. His pretrial bail was set at $75,000. Parker filed a writ of habeas corpus to reduce his bail. The trial court reduced his bail to $50,000. After securing findings of fact and conclusions of law from the trial court, Parker appealed the reduction to this Court. The trial court’s judgment is affirmed.

Applicable Law

We review a trial court’s decision to reduce a defendant’s pretrial bail under an abuse of discretion standard. Ex parte Spaulding, 612 S.W.2d 509, 511 (Tex.Crim.App.1981); Ex parte McCullough, 993 S.W.2d 836, 837 (Tex.App.—Waco 1999, no pet.). A habeas applicant has the burden of proving to the trial court that his bah is excessive. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex.Crim.App. [Panel Op.] 1981); McCullough, 993 S.W.2d at 837.

The Code of Criminal Procedure provides the rules for fixing the amount of bail. Tex.Code Ceim. PROC. Ann. art. 17.15 (Vernon Supp.2000). Whoever sets a defendant’s bail, be it the court, judge, magistrate, or other officer, is governed 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.

Id. Family and community ties, length of residence in the county, prior criminal record, conformity with conditions of previous bond, and aggravating circumstances of the offense should also be considered. Rubac, 611 S.W.2d at 849-850; McCullough, 993 S.W.2d at 837. The accused’s 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.

Evidence

Parker contends that he cannot afford even the reduced bail, has no criminal record, has ties to the community, and is not a flight risk. Although testimony was presented concerning his ability to make bail, the trial court’s findings, which were supported by the record, were contrary to Parker’s remaining contentions. Parker is accused of the first degree felony offense of aggravated sexual assault. Tex. Pen. Code Ann. § 22.021 (Vernon Supp.2000). The alleged victim is 13 years of age while Parker is 19 years of age. Parker fled to Louisiana when he became aware of the allegations against him and after he agreed to take a polygraph examination. Parker’s mother declined to help investigators locate him.¹ He has a DWI charge pending against him and a juvenile history in Louisiana. He has family and job prospects in Louisiana. His mother and step-grandmother have only lived in Navarro County, Texas, for less than one year. There is no evidence in the record of how long Parker has resided in Navarro County-

The trial court concluded that the nature of the offense, the possible consequences of a conviction, and Parker’s history of absenting himself from the State and avoiding contact with investigators required a substantial bail amount. The trial court also concluded that bail in the amount of $50,000 was not unreasonable under the circumstances.

Conclusion

After considering the record and the necessary factors, the trial court did not abuse its discretion in refusing to reduce Parker’s bail to $15,000² as he requested. The order of the trial court is affirmed.

Chief Justice DAVIS concurring and Justice VANCE dissenting.

1 . The concurring and dissenting opinions have a sharp disagreement regarding whether the trial court could properly consider the offense report and thus, whether the report is properly part of the record before us. This is the only one of the trial court's findings of fact that is supported solely by the offense report. Some of the immaterial details included in the findings, such as dates, times and exact age of the victim, were also contained only in the offense report. However, the absence of this finding and the immaterial details would not alter this opinion. In fact, both parties briefed and were prepared to argue the case without reference to the offense report. The trial court’s order is amply supported by the testimony received at the hearing without regard to the offense report.

2 . Parker requested the trial court to lower his bail to $ 15,000. However, he asked this Court on appeal to lower it to $5,000. Because this is an appeal and not an original proceeding, there is some question whether we have authority to determine the amount of reasonable bail. The authority to set bail at less than what was requested from the trial court is even further suspect.