      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-18-00795-CR



                                     Ex parte Marcus Hanson


      FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
            NO. 79628, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Marcus Hanson was indicted for aggravated assault with a deadly weapon, a second-

degree felony, after he allegedly attacked his wife and struck her repeatedly with a handgun. See

Tex. Penal Code § 22.02(a)(2), (b). After a magistrate judge set bail at $200,000, Hanson filed an

“Application for Writ of Habeas Corpus Seeking Bail Reduction.” The trial court held a hearing on

the application, at which Hanson’s wife, niece, and two friends testified. After the hearing, the trial

court signed an order denying Hanson’s application, and Hanson now appeals from that order. We

will affirm the trial court’s order denying Hanson’s application for writ of habeas corpus.


                    APPLICABLE LAW AND STANDARD OF REVIEW

               In his sole point of error, Hanson contends that the trial court abused its discretion

in denying his application for writ of habeas corpus because the bail set in this case is excessive.

Both the United States and Texas Constitutions prohibit excessive bail. See U.S. Const. amend. VIII;

Tex. Const. art. I, § 13. The primary purpose of bail is to secure the presence of the defendant in

court to answer the accusations against him. Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App.
1980). While bail should be sufficiently high to give reasonable assurance that the defendant will

appear, it should not be used as an instrument of oppression. Id. In setting bail, the trial court must

strike a balance between the defendant’s presumption of innocence 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).

                Article 17.15 of the Texas Code of Criminal Procedure provides that the trial court

must observe the following rules when exercising its discretion in setting 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. art. 17.15. The Texas Court of Criminal Appeals has held that the trial court

may also consider the defendant’s work record, family ties, length of residency, criminal record, and

conformity with previous bond conditions. See Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim.

App. 1981). The defendant has the burden of proof to show that the bail set is excessive. Id.

                We review a trial court’s ruling in setting bail for an abuse of discretion. See Ex parte

Gill, 413 S.W.3d 425, 428 (Tex. Crim. App. 2013); Beard, 92 S.W.3d at 573. We view the evidence



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in the light most favorable to the trial court’s ruling. Beard, 92 S.W.3d at 573. We will not disturb

the ruling if it is within the zone of reasonable disagreement. Id.


                                            DISCUSSION

                 In reviewing the trial court’s order for an abuse of discretion, we will consider the

factors enumerated in Article 17.15 and in Rubac.


Nature and Circumstances of the Offense

                 At the hearing on Hanson’s habeas application, the State offered, and the trial court

admitted, without objection, a voluntary statement (the Statement) both handwritten and signed by

Stormi Hanson, appellant’s wife and the alleged victim.1 The Statement explains that Hanson and

Stormi had agreed to “an open relationship to try to help fix [their] marriage, which [had] been

rocky lately.” The Statement then describes Hanson’s arrival at their home and the subsequent

assault. According to the Statement, Hanson threw Stormi on the floor “and proceeded to kick and

punch [her] in various places.” Hanson also struck Stormi’s face multiple times with a black

handgun and struck her “in various places” with a brown handgun. The Statement alleges that

Hanson dragged Stormi by her hair from room to room while continuing to punch and kick her. In

the Statement, Stormi explains that Hanson “finally let [her] go” but would not let her take her cell

phone. Stormi walked to a neighbor’s house, and the neighbors called the police and an ambulance.

The Statement concludes, “I wish to press charges at this time.”




       1
           Because she shares a surname with appellant, we will refer to the alleged victim as “Stormi.”

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               The State also introduced several photographs without objection during the hearing.

They depict blood around the home, hair and blood on a handgun, and Stormi’s injuries, including

her head and face covered in blood and a swollen black eye. Additionally, the State provided

testimony that two handguns were seized as evidence.

               At the hearing Stormi testified that Hanson slapped her, kicked her, and cut off her

hair during the assault, but claimed that he never struck her with a handgun. She also testified that

she sought medical treatment after the assault and received stitches and staples in her head at the

hospital. Stormi testified that she did not remember writing and signing the Statement, although she

admitted that it was her handwriting and signature. In addition, Hanson introduced an affidavit of

non-prosecution, signed by Stormi, in which Stormi claims that she was “not afraid of Marcus

Hanson” and that Hanson “never used or exhibited a deadly weapon during the alleged assault.”2

               Although Stormi denied at the hearing and in her affidavit that Hanson struck her with

a handgun, and although she tried to minimize the assault in her testimony, the photographs admitted

into evidence corroborate Stormi’s initial statement. Specifically, the photographs of Stormi’s

injuries suggest a sustained and vicious assault, and the photograph of what appears to be hair

and blood on a handgun corroborates the Statement’s allegations that Hanson struck Stormi

repeatedly with a handgun. The severe nature of the charged offense, aggravated assault with a




       2
          In addition, near the conclusion of the hearing, the State proffered additional evidence,
without objection, including testimony that a police officer met with Stormi at the hospital, that she
appeared to him as she appears in the photographs, and that “she did make an outcry as contained
in” the Statement.

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deadly weapon, combined with the evidence tending to corroborate Stormi’s initial written

account, therefore supports the trial court’s denial of Hanson’s habeas application.


Hanson’s Ability to Make Bail

               At the hearing, Stormi testified that she and Hanson do not have a joint checking

account, that she believed that he had a separate checking account but did not know how much was

in that account, and that she did not know whether he had a savings account. According to Stormi,

she paid their bills from her separate account, Hanson owned no real property, and they lived in a

rental home and shared a vehicle with a lien on it. Stormi testified that Hanson was a “day trader”

but that she did not know how much money Hanson made from “buying stocks.” Stormi also

testified that Hanson was working on an online associate’s degree with “a full-ride academic

scholarship.” On cross-examination, Stormi testified that she had been providing commissary

goods and money to Hanson during his incarceration and that she had paid for over 200 jail calls

from him. In addition, Hanson’s niece testified at the hearing that she and her mother together

would be able to contribute $3,000 to $4,000 dollars toward Hanson’s bond, and one of Hanson’s

friends testified that he would be willing to contribute to Hanson’s bond, although he did not know

how much he could afford to contribute.

               Although Stormi testified that Hanson owned no real property, she stated that she did

not know how much money Hanson had in his checking account or how much money he made as

a day trader. In addition, her testimony suggests that Hanson had minimal expenses, because Stormi

paid their bills and Hanson had a “full-ride” scholarship for his online studies. Therefore, we

conclude that Hanson failed to meet his burden of demonstrating an inability to meet bail, and we

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further conclude that this factor does not weigh in favor of finding that the court abused its discretion

in denying Hanson’s habeas application.


Safety of the Victim and Community

                Although Stormi testified that Hanson did not strike her with a handgun and although

she signed an affidavit of non-prosecution, her initial statement and the photographs of her injuries

suggest that she was the victim of a severe assault. The fact that she now denies the severity of the

assault, combined with the fact that she no longer wishes the State to prosecute Hanson after she

accepted over 200 jails calls from him, could have led the trial court to conclude that Stormi is

not willing or able to protect herself from future violence from Hanson. In addition, although

Hanson’s niece and two of his friends testified that Hanson would not be a danger to the community

if he were released on bond, none of those witnesses had known Hanson for more than nine months.

Moreover, Hanson’s niece testified that Hanson and Stormi shared “the epitome of a marriage,” an

evaluation contradicted by Stormi’s injuries and her indication in the Statement that her marriage

with Hanson was so “rocky lately” that they “agreed to an open relationship.” Therefore, the trial

court could have concluded that Hanson’s niece was not aware of his true character. Given that

none of Hanson’s witnesses had known him for more than nine months, the court could have further

concluded that Hanson failed to meet his burden of showing that he would not be a threat to Stormi

and the community if released.3 This factor does not weigh against the court’s ruling.


        3
          We also note that Hanson’s niece presented only ambiguous testimony concerning whether
Hanson would comply with the court’s conditions of bail if released. She testified that Hanson had
expressed to her “that it would basically suck, like, if he had an ankle monitor on” but that she was
able to bring him “back down to the reality level that that’s, you know, the conditions that he would
just have to go by.”

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Remaining Rubac Factors

               The trial court heard minimal evidence concerning Hanson’s work record, family

ties, length of residency, criminal record, and conformity with previous bond conditions. As noted

above, Stormi testified that Hanson is a “day trader” and online student, but she did not know

how much money he made through his trades. According to Stormi, she and Hanson have only lived

in Texas since December 2017, less than a year before the hearing. In addition, Hanson’s niece

testified that he had been a positive role model for her, but that she had only known Hanson for no

more than nine months.4 We conclude that these factors do not weigh against the trial court’s ruling.


Summary of Factors

               The trial court heard evidence that: Hanson was accused of aggravated assault with

a deadly weapon, a second-degree felony; Hanson caused multiple injuries to Stormi that required

medical attention; Stormi did not know what financial resources Hanson had access to and Hanson

presented no evidence regarding his lack of resources; and none of Hanson’s witnesses had

known him for more than nine months. Viewing the record before us in the light most favorable

to the trial court’s ruling and bearing in mind that Hanson had the burden of proof to show that his

bail is excessive, we cannot conclude that the trial court abused its discretion in denying Hanson’s

habeas application.

               Our conclusion is consistent with bail amounts set in other cases. For example, in

Ex parte Everage, No. 03-17-00879-CR, 2018 WL 1788795, at *1 (Tex. App.—Austin Apr. 13,


       4
         Hanson’s niece also admitted at the hearing that she had been convicted of felony
harassment of a public servant.

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2018, no pet.) (mem. op., not designated for publication), this Court considered whether the amounts

of bail set for evading arrest with a vehicle, aggravated robbery with a deadly weapon, and

aggravated assault on a public servant were excessive. In our review we considered several

comparable cases.5 While we ultimately reduced the bail for aggravated robbery from $500,000 to

$250,000 and the bail for aggravated assault from $500,000 to $150,000, our analysis shows that the

bail amount is highly fact-dependent and that $200,000 is not outside the range of reasonable

disagreement for a charge of aggravated assault with a deadly weapon. See Ex parte Owen,

No. 10-16-00188-CR, 2016 WL 6953107, at *3–4 (Tex. App.—Waco Nov. 23, 2016, no pet.) (mem.

op., not designated for publication) (upholding bail of $1 million for assault with bodily injury

against a family member with a prior conviction despite the fact that “the victim testified that she

was not afraid of [the defendant] and was not even certain that he had committed the offense against

her”).

               Because we cannot conclude that Hanson met his burden of showing that his bail is

excessive or that the court abused its discretion in denying his application for writ of habeas corpus,

we overrule his sole point of error.




         5
          In our review, we noted that appellate courts have upheld the following bail amounts:
$200,000 for aggravated robbery; $500,000 for aggravated assault; $250,000 for aggravated assault
on a public servant; $750,000 for aggravated assault with a deadly weapon; $750,000 for aggravated
robbery; and $1.9 million for aggravated robbery. See Ex parte Everage, No. 03-17-00879-CR,
2018 WL 1788795, at *6–9 (Tex. App.—Austin Apr. 13, 2018, no pet.) (mem. op., not designated
for publication).

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                                       CONCLUSION

              We affirm the trial court’s order denying Hanson’s application for writ of habeas

corpus.



                                            __________________________________________

                                            Chari L. Kelly, Justice

Before Chief Justice Rose, Justices Kelly and Smith

Affirmed

Filed: March 7, 2019

Do Not Publish




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