                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00422-CR

                     EX PARTE DARRNELL LEE SHIELDS,



                           From the 19th District Court
                            McLennan County, Texas
                          Trial Court No. 2008-1918-C1A


                           MEMORANDUM OPINION


       Appellant Darrnell Lee Shields’s first trial on three felony charges ended in a

mistrial during the charge conference, and the State is going to retry him. Shields’s bail

is set at $500,000. He filed an application for writ of habeas corpus, alleging that the

$500,000 bail pending retrial was excessive and requesting the trial court to lower bail to

$50,000. The trial court held a hearing but denied relief. Shields appeals, complaining

in his first issue that the trial court abused its discretion in refusing to reduce bail and

that the $500,000 bail remains excessive.

       Shields was charged with the following third-degree felonies: injury to a child,

assault—family violence (enhanced), and attempted sexual assault. The State has filed a

notice to enhance punishment to the habitual punishment range of 25 to 99 years, or
life, based on two of Shields’s prior Kansas felony convictions. See TEX. PEN. CODE ANN.

§ 12.42(d) (Vernon Supp. 2009).

        Standard of Review. We review a trial 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 Davis, 147 S.W.3d 546, 548 (Tex. App.—Waco 2004, no pet.).

A habeas applicant bears the burden of proving that his bail is excessive. Rubac, 611

S.W.2d at 849; Davis, 147 S.W.3d at 548.

        Bail Factors. Article 17.15 of the Code of Criminal Procedure lists 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 CRIM. PROC. ANN. art. 17.15 (Vernon 2005).

        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;

Davis, 147 S.W.3d at 548. We will review the trial court’s decision in light of the above


Ex parte Shields                                                                           Page 2
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.”

Ex parte McCullough, 993 S.W.2d 836, 837 (Tex. App.—Waco 1999, no pet.) (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 hearing was held and the sole witness was Shields. Before and during his first

trial, Kansas had issued a “blue warrant”1 on Shields, making the issue of bond moot at

the time, but he said that the hold has since been lifted. Shields said that he believed he

could make bail in the amount of $50,000 with a bail bond. At the time of his pretrial

incarceration, Shields had been in Waco for three months and had worked for two

months at Sanderson Farms. His grandmother lives in Waco, but Shields was not

familiar with her age, how long she has lived in Waco, or her employment. He said he

could stay with her if he meets bail. Shields has otherwise spent his whole life in

Kansas, and the rest of his family (mother, brother, nieces, and nephews) lives there.

He has four prior Kansas felony convictions, including one for domestic battery.

        At the hearing, the State asked the trial court to recall the evidence of the charged

offenses from the first trial. The State further contends that, in addition to Shields’s ties

being in Kansas and being almost nonexistent in McLennan County, because he has


1A “blue warrant” is an arrest warrant issued when a parolee has been suspected of violating conditions
of his probation. Franklin v. Kyle, 899 S.W.2d 405, 406 n.1 (Tex. App.—Waco 1995, no pet.).


Ex parte Shields                                                                                Page 3
seen all the State’s evidence, he is a flight risk. The evidence on this factor weighs

against a low bail amount.

        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.)). In considering this

factor, we have looked to bond amounts in other cases. See Ex parte Emery, 970 S.W.2d

144, 145-46 (Tex. App.—Waco 1998, no pet.);2 see also Jenkins v. State, No. 10-05-00147-

CR, 2006 WL 348716 (Tex. App.—Waco Feb. 15, 2006, no pet.) (mem. op.) (not

designated for publication) (holding that reduction of bail from $500,000 to $100,000,

instead of to $20,000, on charges of aggravated assault with deadly weapon, was not

abuse of discretion); Ex parte Parker, 26 S.W.3d 711 (Tex. App.—Waco 2000, no pet.)

(trial court did not abuse its discretion in reducing bail from $75,000 to $50,000 where

defendant charged with aggravated sexual assault of child under 14 years of age). In its

brief, the State concedes that $500,000 is “on the high side of the range for third degree

felonies.” The evidence and case law relevant to this factor weigh in favor of a lower

bail.
2
   In Emery, 970 S.W.2d at 146 & n.1, we cited the following cases: Ex parte Clark, 635 S.W.2d 202 (Tex.
App.—San Antonio 1982, no pet.) (court reduced $150,000 bond for capital murder and $150,000 bond for
attempted capital murder to $50,000 each); Ex parte Ivey, 594 S.W.2d 98 (Tex. Crim. App. 1980) (Court
reduced appeal bond in armed robbery case from $250,000 to $50,000); Ex parte Vasquez, 558 S.W.2d 477
(Tex. Crim. App. 1977) (reduced $100,000 bond for capital murder to $20,000); Ex parte Bell, 784 S.W.2d
577 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d, untimely filed) (reducing appeal bond from $150,000
to $10,000 for burglary of habitation with intent to commit sexual assault); Ex parte Wood, 952 S.W.2d 41
(Tex. App.—San Antonio 1997, no pet.) (reducing $350,000 bond for capital murder and $100,000 bond for
aggravated robbery to $50,000 and $20,000 respectively).

Ex parte Shields                                                                                  Page 4
        Nature and Circumstances of the Offenses. Shields is accused of assaulting his

former girlfriend (assault—family violence) and attempting to sexually assault her in

front of her three-year-old son, whom he also allegedly assaulted (injury to a child)

during the same episode. The State is seeking to have Shields punished as a habitual

felon with a minimum sentence of twenty-five years in prison. The violent nature of the

alleged offenses—committed while Shields was on parole—suggests that a high bail

amount is appropriate. See Jenkins, 2006 WL 348716, at *2.

        Ability to Make Bail. 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); Davis, 147 S.W.3d at 548. Shields believes he could make bail in the

amount of $50,000. The evidence on this factor weighs in favor of a lower bail.

        Future Safety of the Community.     As noted, Shields is charged with violent

crimes, and the victims reside in the community. The State posits that Shields is a flight

risk, as explained above. The evidence and other information pertinent to this factor

tend to support bail in a high amount.

        Other Factors. Other pertinent factors include prior criminal record, conformity

with conditions of prior bonds, and any aggravating circumstances of the offense.

Rubac, 611 S.W.2d at 849-50; Davis, 147 S.W.3d at 548. Shields testified that he has four

Kansas felony convictions: two for possession of a firearm, one for discharge of a

firearm, and one for aggravated assault. This weighs in favor of a high bail amount.



Ex parte Shields                                                                    Page 5
        A final factor mostly in Shields’s favor is that he has been jailed since his arrest in

July of 2008. While this is attributable largely to the Kansas blue warrant and his first

trial ending in a mistrial, a lengthy pretrial detention should not be a substitute for a

trial—the purpose of our constitutional and statutory law on bail is to guarantee that it

is not. Ex parte Bogia, 56 S.W.3d 835, 840 (Tex. App.—Houston [1st Dist]. 2001, no pet.).

        After considering the factors of article 17.15, relevant case law, and the record

before us, we hold that the trial court did not abuse its discretion in refusing to reduce

Shields’s bail from $500,000 to $50,000. We thus overrule his issue in part. But we do

conclude that bail at $500,000 is excessive based on the factors discussed above and that

the trial court abused its discretion in not lowering it. Thus, we sustain in part Shields’s

issue and order a reduction in his bail to $300,000 (or $100,000 per felony count). See

Davis, 147 S.W.3d at 553.



                                                   REX D. DAVIS
                                                   Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray dissents. A separate opinion will not issue. He notes,
       however, that he would not find the trial court abused its discretion and
       therefore would not reduce bail. He joins no part of the opinion but believes the
       analysis in the opinion does not support a determination that the trial court acted
       without reference to the relevant factors.)
Affirmed in part, reversed in part; bail set
Opinion delivered and filed April 14, 2010
Do not publish
[CR25]



Ex parte Shields                                                                         Page 6
