                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00249-CR


EX PARTE JAMELL D. BROOKS



                                     ----------

          FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

                                     ----------

                                   OPINION

                                     ----------

      Appellant Jamell D. Brooks appeals from the trial court’s denial of his

request to reduce his pretrial bond from $750,000. The primary purpose of an

appearance bond is to secure the defendant’s presence at trial on the offense

charged.1 Accordingly, bail should be high enough to give reasonable assurance

that the defendant will appear at trial, but it should not operate as an instrument




      1
       Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977).
of oppression.2 The burden of proof is on the defendant to show that the bail, as

set, is excessive.3

      Article 17.15 of the Texas Code of Criminal Procedure sets forth the

following criteria for establishing a defendant’s bond:

      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.4

      In addition to these factors, we find it instructive that the Texas Court of

Criminal Appeals, in determining whether an appeal bond set by the trial court

was excessive, stated that the court should also weigh the following factors: (1)

the accused’s work record; (2) the accused’s family ties; (3) the accused’s length

of residence; (4) the accused’s prior criminal record, if any; (5) the accused’s

conformity with the conditions of any previous bond; (6) the existence of




      2
       Id.
      3
       Id.
      4
       Tex. Code Crim. Proc. Ann. art. 17.15 (West 2005).


                                         2
outstanding bonds, if any; and (7) aggravating circumstances alleged to have

been involved in the charged offense.5

      The State’s version of the facts of the underlying offense is contained in

State’s Exhibit 1, the probable cause affidavit executed by Detective Allen

Killingsworth that sets out the information he had regarding the alleged assault of

Sergeant Brian Sheehan. Killingsworth stated that Sheehan had been on patrol

and had responded to a complaint that someone had fired shots into the air at an

apartment complex. When Sheehan arrived, he saw Appellant arguing with a

woman. A bystander told Sheehan that Appellant had fired the shots. Appellant

began walking away, and Sheehan saw a gun in Appellant’s hand. Sheehan told

Appellant to stop, but Appellant continued to walk and went into an apartment.

Sheehan drew his duty weapon and followed him.                Sheehan prevented

Appellant’s closing the door by pushing the door open and going into the

apartment. Sheehan saw the gun still in Appellant’s hand. Killingsworth stated

that Sheehan saw Appellant start to raise the gun and that Sheehan raised his

service revolver and fired at Appellant twice. At least one shot struck Appellant,

injuring his liver. Appellant did not fire.

      The record reflects that Appellant is thirty-two years old. At the time of his

arrest for aggravated assault of a public servant (Sheehan), a noncapital first-

degree felony, Appellant worked full-time for the Texas Department of


      5
       Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim. App. 1981).


                                              3
Transportation, picking up trash on the side of the highway and painting lines

when necessary. He earned $10.70 per hour. He had savings of $1,000 and

two paychecks totaling about $700.        He owned no real estate, no car, no

motorcycle, and no other vehicle and had no credit cards, furniture, or jewelry

that he could sell or borrow against. Neither he nor his family could come up with

the $75,000 that the bail bond company said he would need in order to post the

$750,000 bail bond. Appellant indicated that he could pay a bondsman $2,500 if

the trial court would reduce his bail to $25,000.

      Appellant has two prior misdemeanor convictions for driving while

intoxicated (DWI) and possession of marijuana, both in 2010. He testified that he

had been released on bond in the DWI case and had appeared for all his court

settings and for all his appointments with his attorney. He also testified that after

he was convicted, he surrendered to the jail to serve his two-day sentence.

      Appellant testified that if he is released on bail, he intends to rent a house

through a person from whom he has rented in the past. The record reflects that

Appellant has lived in Wichita Falls at least since April 2010, although it is

unclear where he lived before then and where his family lives.            The State

presented no evidence that Appellant is a flight risk or that he has outstanding

bonds or warrants.

      Appellant has been continuously incarcerated since his September 10,

2011 arrest.    Trial is specially set for November 26, 2012.          Appellant is




                                          4
represented by a court-appointed attorney from the Wichita County Public

Defender’s Office.

      Weighing the evidence in the record regarding both the statutory criteria

we are to consider as well as the additional factors suggested in Rubac, and

considering the conditions of bail that the trial court is empowered to impose6 to

satisfy the goals of bail, we hold that the trial court abused its discretion by

denying Appellant’s motion to reduce his pretrial bail.

      Accordingly, we reverse the trial court’s denial of Appellant’s motion to

reduce bail and remand this case to the trial court to set a reasonable bail; to

determine what conditions, if any, to impose; and to allow both the State and

Appellant the opportunity to present any additional evidence or argument that the

trial court deems appropriate to assist it in determining reasonable bail and

conditions, if any.7



                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

GABRIEL, J., filed a dissenting opinion.

PUBLISH

DELIVERED: July 26, 2012

      6
       See Tex. Code Crim. Proc. Ann. art. 17.40 (West 2005).
      7
       See Tex. R. App. P. 43.6.


                                           5
                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-12-00249-CR


EX PARTE JAMELL D. BROOKS


                                       ----------

          FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

                                       ----------

                            DISSENTING OPINION
                                       ----------

      Because I believe it was within the zone of reasonable disagreement for

the trial court to set a high bond for a person with little to no proven ties to the

community who is held pending trial for assaulting a police officer with a deadly

weapon, I dissent to the majority’s reversing the trial court’s decision.

      Setting bail is committed to the sound discretion of the trial court, but the

exercise of that discretion is governed by law. See U.S. Const. amend. VIII; Tex.

Const. art. I, § 13; Tex. Code Crim. Proc. Ann. art. 17.15 (West 2005). 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).

Both the federal and state constitutions prohibit excessive bail. See U.S. Const.

amend. VIII; Tex. Const. art. I, § 13. Bail is excessive if it is “set in an amount

greater than is reasonably necessary to satisfy the government’s legitimate

interests.” Beard, 92 S.W.3d at 573. In addition to the constitutional prohibition

against excessive bail, the Texas Legislature has imposed the following statutory

requirements:

      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.

      In setting the amount of bail, the trial court may also give consideration to

such factors as (1) the accused’s work record; (2) the accused’s family and

community ties; (3) the accused’s length of residency; (4) the accused’s prior

criminal record; (5) the accused’s conformity with previous bond conditions; (6)

the existence of other outstanding bonds, if any; and (7) aggravating

circumstances alleged to have been involved in the charged offense.           See



                                         2
Maldonado v. State, 999 S.W.2d 91, 93 (Tex. App.––Houston [14th Dist.] 1999,

pet. ref’d) (citing Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim. App.

[Panel Op.] 1981)).

      We review the trial court’s ruling on a request to reduce bail under an

abuse-of-discretion standard. See Rubac, 611 S.W.2d at 850; Clemons v. State,

220 S.W.3d 176, 178 (Tex. App.––Eastland 2007, no pet.).           To determine

whether the trial court abused its discretion, we must decide whether the trial

court acted without reference to any guiding rules or principles; in other words,

whether the act was arbitrary or unreasonable. Ex parte Hunt, 138 S.W.3d 503,

505 (Tex. App.––Fort Worth 2004, pet. ref’d) (citing Montgomery v. State, 810

S.W.2d 372, 380 (Tex. Crim. App. 1990)). We must not disturb the trial court’s

ruling if it was within the zone of reasonable disagreement.      Clemons, 220

S.W.3d at 178.

      In a habeas case, the writ applicant bears the burden of proving facts that

would entitle him to relief and ensuring that a sufficient record is presented to

show error requiring reversal. See Ex parte Kimes, 872 S.W.2d 700, 703 (Tex.

Crim. App. 1993). The burden of proof is upon an applicant who claims bail is

excessive. See Rubac, 611 S.W.2d at 849; Milner v. State, 263 S.W.3d 146, 148

(Tex. App.––Houston [1st Dist.] 2006, no pet.). Here, I would hold that Brooks

did not meet his burden.




                                       3
                               Statutory factors

Sufficient bail to assure appearance but not oppress

      The first two statutory factors are interrelated. 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).

Thus, the amount of bail must be high enough to give reasonable assurance that

the accused will appear as required. Ex parte Charlesworth, 600 S.W.2d 316,

317 (Tex. Crim. App. 1980). However, while bail should be sufficiently high to

give reasonable assurance 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). This occurs when the trial court sets bail at an

amount “for the express purpose of forcing appellant to remain incarcerated”

pending trial or appeal. See Ex parte Harris, 733 S.W.2d 712, 714 (Tex. App.––

Austin 1987, no pet.).

      There are several older cases involving different offenses in which the

reviewing court reduced the bail amount after finding that the trial court’s bail

amount was excessive. See Ludwig v. State, 812 S.W.2d 323, 325 (Tex. Crim.

App. 1991) (in murder case, reducing bail amount from $1,000,000 to $50,000);

Ivey, 594 S.W.2d at 100 (Tex. Crim. App. 1980) (in aggravated robbery case,

reducing bail amount from $250,000 to $50,000); Ex parte Vasquez, 558 S.W.2d

477, 480 (Tex. Crim. App. 1977) (in capital murder case, reducing bail amount

from $100,000 to $20,000); Ex parte Bufkin, 553 S.W.2d 116, 118 (Tex. Crim.


                                       4
App. 1977) (in case involving conspiracy to commit capital murder, reducing bail

amount from $150,000 to $15,000); Smithwick v. State, 880 S.W.2d 510, 511

(Tex. App.––San Antonio 1994, no pet.) (in case involving murder and injury to

child, reducing bail amount from $500,000 to $100,000); Ex parte McDonald, 852

S.W.2d 730, 735–36 (Tex. App.––San Antonio 1993, no pet.) (in capital murder

case, reducing bail amount from $1,000,000 to $75,000).              However, as

commentators as well as one of our sister courts have observed, “‘Case law is of

relatively little value in addressing the ultimate question of the appropriate

amount of bail in a particular case’ because appellate decisions on bail matters

are often brief and avoid extended discussions, and because the ‘cases are so

individualized that generalization from results reached in others is difficult.’”

Beard, 92 S.W.3d at 571 (citing 41 George E. Dix & Robert O. Dawson, Texas

Practice: Criminal Practice and Procedure § 16.51 (2d ed. 2001)).          Finding

significant factual differences between the above cases and the case before us, I

do not find those cases to be persuasive here.1


      1
         For example, in Ludwig, the defendant had a child-custody proceeding
pending which would require his presence in the jurisdiction, and he had several
close relatives who were long-time Texas citizens and were willing to sign a bond
ensuring his appearance at trial. 812 S.W.2d at 324. In Ivey, the defendant was
a lifetime resident of the city in which he was being tried, had a family and owned
a house in that city, and both his parents and his wife’s parents were from that
city. 594 S.W.2d at 99–100. In Vasquez, it was undisputed that the defendant
was indigent, and, although there was little evidence presented concerning the
circumstances surrounding the offense, it appeared that the defendant was, at
most, responsible as a party to the offense. 558 S.W.2d at 479–80. The other
cases cited above are similarly distinguishable from the facts of this case.


                                        5
Nature of offense

      The third factor under article 17.15 is the nature of the offense for which

the defendant is charged and the circumstances under which it was committed.

Brooks is accused of aggravated assault of a peace officer. Included in the

record is the probable-cause affidavit supporting the arrest warrant. The affidavit

describes in detail the allegations against Brooks, including that he had

apparently discharged a firearm into the air in front of an apartment complex, had

ignored a responding police officer’s commands to halt, and had raised a firearm

toward the responding officer. Thus, the record reflects that the nature of the

offense and the alleged circumstances surrounding its commission are very

serious.

      When reviewing the appropriate bail for a particular offense, appellate

courts often compare bail amounts in other cases involving offenses of the same

degree. This is because such offenses carry the same punishment range, which

is a proper consideration in determining the nature of the offense charged. See

Charlesworth, 600 S.W.2d at 317; Vasquez, 558 S.W.2d at 480; Maldonado, 999

S.W.2d at 95.

      Brooks stands charged for aggravated assault of a police officer.         As

alleged, the offense is a first-degree felony.    See Tex. Penal Code Ann. §

22.02(b)(2)(B) (West 2011).      The punishment for a first-degree felony is

imprisonment for five to ninety-nine years or life, plus a fine not to exceed

$10,000. Id. § 12.32. Perhaps reflecting the wide range of punishment, Texas


                                        6
courts have approved bail amounts as low as $1,000 and as high as $1,000,000

for first-degree felony offenses. See, e.g., Ex parte Carson, 215 S.W.3d 921,

924 (Tex. App.––Texarkana 2007, no pet.) (in case involving first-degree felony

offense of possession of controlled substance, setting bail at $1,000); Gonzalez

v. State, 996 S.W.2d 350, 353 (Tex. App.––Houston [14th Dist.] 1999, no pet.) (in

case involving aggravated robbery, approving bail set at $90,000); see also

Pharris v. State, No. 14-06-00788-CR, 2006 WL 3313323, at *1, *2 (Tex. App.––

Houston [14th Dist.] Nov. 16, 2006, pet. ref’d) (mem. op., not designated for

publication) (in case involving offense of first-degree felony theft, approving bail

set at $500,000); Tran v. State, No. 01-06-00035-CR, 2006 WL 1771815, at *1,

*5 (Tex. App.––Houston [1st Dist.] June 29, 2006, no pet.) (mem. op., not

designated for publication) (in case involving drug possession, approving bail set

at $800,000 for cocaine possession and $500,000 for marihuana possession); Ex

parte Cuevas, No. 11-03-00402-CR, 2004 WL 527960, at *1, *5 (Tex. App.––

Eastland Mar.18, 2004, no pet.) (not designated for publication) (in case involving

offense of engaging in organized criminal activity to commit theft, approving bail

set at $1,000,000). The bail amount set in this case, $750,000, is within the

range of bail amounts approved for other first-degree felonies.

Ability to make bail

      The ability of an accused to post bail is a factor to be considered, but the

inability to make the bail set by the trial court does not automatically render the

bail excessive. See Ex parte Vance, 608 S.W.2d 681, 683 (Tex. Crim. App.


                                         7
1980); Maldonado, 999 S.W.2d at 96.           This is true even if the accused is

determined to be indigent. Charlesworth, 600 S.W.2d at 317. If the ability to

make bail in a specified amount controlled, the role of the trial court in setting bail

would be unnecessary and the accused would be able to set his own bail. Hunt,

138 S.W.3d at 506.

      Brooks presented some evidence that he could not afford to post bail. He

testified that the bond company would expect him to put up $75,000 but that

although he worked for the department of transportation and made $10.70 an

hour, he had no assets and only $1,700 in savings and that neither he nor his

family could come up with $75,000. He thought that he could raise enough to

post a $25,000 bond.

Future safety of the victim and the community

      The final statutory factor examines the safety of the victim and the

community if the defendant were to be released on bail. See Tex. Code Crim.

Proc. Ann. art. 17.15(5). In this case, it appears that the potential victim, Officer

Sheehan, shot Brooks twice as Brooks raised his weapon. But that does not

diminish the importance of the future safety of the community as a factor. The

probable cause affidavit indicates that Brooks fired his weapon into the air in front

of an apartment complex, walked away from a police officer despite the officer’s

repeated commands to stop, and then raised a weapon at the officer. These

actions bode ill for the future safety of the community should Brooks be released

within it on a lower bond.


                                          8
      Based on the above, the trial court could have found that Brooks was a

danger to the community, and the $750,000 bail was necessary to ensure its

safety. On this record, I cannot conclude that the trial court abused its discretion

by doing so.

Other factors

      There is very little, if any, evidence in the record about Brooks’s family,

work record, length of residency, and other ties to the area. Brooks testified that

he has no house or real property, that he was “trying to get a house through Vida

Cook,” and that he would be willing to stay in the county until the end of trial. But

there is no evidence showing who Vida Cook is or where this house would be or

even if Vida Cook would be willing to provide the house for Brooks. There is no

evidence showing how long Brooks had held his job, how long he lived in the

community or whether he had any family who tied him to the community. In this

habeas proceeding, Brooks bears the burden of proof to show that the bail, as

set, is excessive. Based on the lack of evidence on these factors, the trial court

could have concluded that Brooks’s ties to the community were insufficient to

assure his appearance at trial. See Hunt, 138 S.W.3d at 505.

      As for the remaining factors, Brooks testified to a prior criminal history of

DWI and that he had complied with bond conditions in that case. There is no

evidence of the existence of other outstanding bonds.




                                         9
                                   Conclusion

      On the above record, I would not conclude that the district court abused its

discretion by denying Brooks’s request to reduce bail. Although there is some

evidence in the record that Brooks cannot afford the current bail amount, it does

not establish in my view that the trial court abused its discretion by not lowering

the bond amount. Moreover, even assuming that Brooks could not afford bail,

this factor is not controlling. See Hunt, 138 S.W.3d at 506.

      The other factors weigh in favor of the trial court’s decision. The record

does not reflect that the trial court refused to reduce bail in order to make it an

“instrument of oppression.” Although Brooks has a prior criminal history for a

misdemeanor, the offense of which he stands charged and the alleged

circumstances surrounding their commission are very serious. The bail amount

is within the range Texas courts have approved for first-degree felonies. The

record indicates that Brooks is a danger to the community.




                                        10
      In sum, I would affirm the trial court’s order and hold that Brooks has failed

to satisfy his burden to prove that bail in this case was excessive, i.e., that it was

“set in an amount greater than is reasonably necessary to satisfy the

government’s legitimate interests.” See Beard, 92 S.W.3d at 573. Because the

majority does not so hold, I dissent.



                                                    LEE GABRIEL
                                                    JUSTICE

DELIVERED: July 26, 2012




                                         11
