                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-12-00242-CR


Ex parte Brent Benefield                   §    From the 30th District Court

                                           §    of Wichita County (176,894-A)

                                           §    January 17, 2013

                                           §    Opinion by Justice Gardner

                                           §    (nfp)

                                    JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s order. It is ordered that the order of the trial

court is affirmed.


                                      SECOND DISTRICT COURT OF APPEALS




                                      By_________________________________
                                        Justice Anne Gardner
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00242-CR


EX PARTE BRENT BENEFIELD




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          FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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                         MEMORANDUM OPINION1

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                                   I. Introduction

      Appellant Brent Benefield appeals the trial court’s order setting the amount

of his bail at $200,000. See Tex. Code Crim. Proc. Ann. art. 11.24 (West 2005).

Benefield asserts in one issue that the trial court abused its discretion by setting

bail at an amount he cannot make and by failing to properly consider the nature

and circumstances of the offense. We affirm.
      1
       See Tex. R. App. P. 47.4.
                                 II. Background

      Benefield was arrested in April 2012 for the felony offense of injury to a

child causing serious bodily injury or death.      See Tex. Penal Code Ann. §

22.04(e) (West Supp. 2012). Bail was initially set at $1 million. Benefield filed an

application for writ of habeas corpus, asserting that bail was excessive and

asking that the trial court reduce the bond to a reasonable amount or grant him

release on a personal recognizance bond. The trial court conducted a hearing

on Benefield’s application for writ of habeas corpus on May 18, 2012. After the

hearing, the trial court advised the parties that it had, based on the evidence

presented during the hearing, decided to reduce Benefield’s bail from $1 million

to $200,000. The trial court subsequently signed an order to that effect.

      The State’s only evidence, which the trial court admitted without objection,

was the arrest affidavit. In the affidavit, Detective Todd Henderson averred that

he was the primary investigator in the case. On February 8, 2012, emergency

personnel responded to a 911 call from Benefield who stated that his four-month-

old son was not breathing and was coughing up blood. Detective Henderson

spoke with Benefield at the hospital, and Benefield said that he was the child’s

primary caregiver during the day and that his wife had left for work around 7:30

that morning.2 Benefield reported that the child had acted normally until about

noon but that his son became unresponsive and began coughing up blood when

      2
       Benefield’s wife told Detective Henderson that the child was ―smiling and
fine‖ when she left for work that morning.


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he moved the child from a swing in order to change the child’s diaper. Benefield

told officers that he was the only person in contact with the child between 7:30

a.m. and the time he called 911.

      Detective Henderson also stated in the affidavit that medical personnel had

determined that the child had ―numerous injuries to his body including a brain

injury that resulted in a subdural hematoma inside his skull as a result of blunt

force trauma.‖ The child further had ―retinal hemorrhages in both eyes, along

with swelling of the brain.‖ The child died four days later. The cause of death

listed in the autopsy report was a ―[c]losed head injury due to blunt impact to the

head and brain,‖ and the manner of death was listed as homicide.

      Benefield called three witnesses during the hearing: his mother, his former

mother-in-law, and himself. Benefield testified that he was thirty years old and

had lived in Wichita Falls for sixteen or seventeen years. He had been employed

off and on throughout the community, and his most recent employment was as a

warehouse associate for Harbor Freight Tools.

      Benefield is married and has two other children, ages three and six. He

testified that he has no criminal history other than arrests for failure to pay traffic

tickets. He testified that he was aware of the investigation concerning this case

and that it lasted several months before his arrest. Benefield testified that he

received a phone call from the detective who said that officers were on their way

to arrest him. Benefield waited for the officers to arrive and allowed them to




                                          3
peacefully arrest him. He testified that he had ―ample opportunity‖ to run but did

not do so.

       Benefield also testified that he did not plan to run away if he were released

and that although he is no longer employed, he planned to find employment upon

release from custody. Concerning assurances that he could give the trial court,

Benefield testified, ―I don’t really know what I can give other than I’m not leaving

any -- any time because I have a six year old and a three year old that I can’t

leave.‖

       Benefield testified that he does not have money in a bank account, that he

does not own a vehicle or home, that he could not personally post any amount of

bail, that he would rely on family and friends to help him make bail if the amount

was reduced by the trial court, and that his family and friends had indicated a

willingness to help him.

       Angela Waldrop is Benefield’s former mother-in-law. She testified that she

had seen Benefield interact with his daughter many times over the years.

Waldrop described Benefield as ―[e]xtremely loving,‖ and that she had ―never

seen any temper,‖ and that ―he treat[ed his daughter] like the little princess she

is.‖ Waldrop testified that she did not believe Benefield to be a threat to the

community and that he has a good support structure in the community to help

him.

       Terri Daugherty, Benefield’s mother, testified that Benefield had always

been ―excellent‖ with his children, had been a ―very good dad,‖ and had a ―really


                                         4
low-key‖ personality.    Daugherty testified that she and her husband lived in

Wichita Falls and that she had never seen anything out of the ordinary with

Benefield’s interaction with his children.       Daugherty testified that she had

provided support to Benefield and his wife when needed and that Benefield did

not have the means to post $1 million in bail. She testified that Benefield would

have to rely on friends and family to post any kind of bail.          Daugherty also

testified that Benefield had never before been in any kind of trouble and that she

would help assure that he would abide by the court’s orders concerning release

on bail, including any prohibition that he not be around his children.

      At the conclusion of testimony, Benefield offered an exhibit containing a

recorded conversation between two of his attorneys and Dr. Lloyd White, the

pathologist who performed the autopsy in this case. The State did not object to

the exhibit, and the trial court admitted it for purposes of the hearing.

      The recording reflects that Dr. White was reviewing a portion of the child’s

medical records while answering questions posed by Benefield’s attorneys. Dr.

White had noted during the autopsy that the child had suffered numerous injuries

throughout his life. Dr. White opined that the child had sustained a spiral fracture

in December 2011, and that fractures to the child’s ―long bones‖ were more

recent. The child also had rib fractures that could have occurred in December.

      Concerning the child’s subdural hematoma, Dr. White stated that there is

not a way of ―dating it‖ but that it had probably occurred within twenty-four hours

of the x-ray.   Dr. White also noted other, smaller subdural hematomas that


                                          5
appeared five to seven days older. Near the end of the recorded conversation,

Dr. White stated that he did not know ―whether [the State would] be able to come

up with legal proceedings because . . . [w]ith criminal, you know, proceedings,

you have to get into a beyond reasonable doubt realm‖ and that ―this is a -- you

know, kind of out in the gray zone.‖

       After Benefield filed notice of this appeal, he filed a motion to reconsider in

the trial court. In that motion, Benefield argued that newly discovered evidence,

including information within police investigation records stating that Benefield’s

wife suffers from post-partum depression and had stopped taking her medication

before the child had been fatally injured, raised doubt as to whether probable

cause supported Benefield’s continued detention. The appellate record includes

the motion to reconsider but does not include an order granting or denying

Benefield’s motion to reconsider.

       While this appeal was pending, a grand jury indicted Benefield for serious

bodily injury to a child.3



       3
        To the extent Benefield contends on appeal that there was no probable
cause to justify his detention at the time of his application for writ of habeas
corpus, that argument is now moot because of Benefield’s intervening indictment.
See Ex parte Preston, 533 S.W.2d 820, 821 (Tex. Crim. App. 1976) (―The return
of an indictment establishes probable cause as a matter of law. Therefore, the
question of probable cause to hold appellant has been rendered moot.‖); Golden
v. State, 288 S.W.3d 516, 518 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).
The return of the indictment does not, however, render moot Benefield’s appeal
for the reduction of the amount of bail. See Ex parte Johnston, 533 S.W.2d 349,
352 (Tex. Crim. App. 1976).


                                          6
                                 III. Discussion

      We review the trial court’s ruling on the setting of bail for an abuse of

discretion. See Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel

Op.] 1981); Ex parte Scott, 122 S.W.3d 866, 868 (Tex. App.—Fort Worth 2003,

no pet.); see also Tex. Code Crim. Proc. Ann. art. 17.15 (West 2005).             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, i.e.,

whether the trial court’s action was arbitrary or unreasonable. Montgomery v.

State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Merely because a trial court

may decide a matter within its discretion in a different manner than an appellate

court would in similar circumstances does not demonstrate that an abuse of

discretion has occurred. Id.

      The primary purpose of a bail bond is to secure the defendant’s presence

at trial on the offense charged. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex.

Crim. App. 1977); Scott, 122 S.W.3d at 868. Accordingly, bail should be set high

enough to give reasonable assurance that the defendant will appear at trial, but it

should not operate as an instrument of oppression. Scott, 122 S.W.3d at 868.

The pretrial bail amount must be set sufficiently high to secure the accused’s

presence at trial because he might fail to appear when facing the prospect of a

lengthy sentence. See id. at 869. A defendant’s inability to meet the bail set by

the trial court does not automatically render the amount excessive. Id. at 870.




                                        7
      Code of criminal procedure article 17.15 sets forth the following criteria for

establishing the amount of bail to be required:

      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 addition to these factors, the court should also weigh the following in

determining the amount of bail: the accused’s work record; the accused’s family

and community ties; the accused’s length of residence in the county; the

accused’s prior criminal record, if any; the accused’s conformity with the

conditions of any previous bond; the existence of outstanding bonds, if any; and

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

Rubac, 611 S.W.2d at 849–50; Scott, 122 S.W.3d at 869; see Ex parte King, No.

10-09-00164-CR, 2009 WL 2767725, at *1 (Tex. App.—Waco Aug.19, 2009, no

pet.) (mem. op., not designated for publication). The defendant bears the burden

of showing that he is entitled to a reduction in bail. Rubac, 611 S.W.2d at 849;




                                         8
Maldonado v. State, 999 S.W.2d 91, 97 (Tex. App.—Houston [14th Dist.] 1999,

pet. ref’d).

       Benefield argues that his voluntary cooperation with authorities during the

investigation, including that he was the person who initially called 911, and his

local ties to Wichita Falls demonstrate that he needs little financial incentive to

ensure his appearance at trial. He further asserts that a lower bail amount is

necessary because he established that he cannot make bail at any amount and

must rely on friends and family. Benefield also points to the evidence that he has

no criminal history and poses no risk to his other children.         Concerning the

circumstances of the case, Benefield contends that the trial court failed to

adequately consider the strength of the State’s case against him, and he points

to the police records reflecting his wife’s depression and to Dr. White’s opinions

that some of the child’s injuries were caused over a period of months.              In

conclusion, Benefield asserts that because the circumstances of the crime do not

definitively point to his guilt and because he cannot make bail in the amount of

$200,000, bail in the amount of $200,000 is excessive.

       The State responds that nothing in the record suggests that the trial court

set bail at $200,000 in an effort to prevent his release, particularly given the trial

court’s reduction of bail by $800,000.        The State further argues that, despite

Benefield’s assertions that he cannot afford bail in any amount, Benefield has not

shown that he could not rely on others to help him post bail at $200,000. The

State also points out that the crime for which Benefield has been charged carries


                                          9
a punishment range of five to ninety-nine years or life4 and that Benefield is

charged with causing his child’s death through blunt-force trauma to the head.

Citing this court’s opinion in Ex parte Bennett, the State asserts that bail in the

amount of $200,000 is reasonable for this case. See No. 02-07-00175-CR, 2007

WL 3037908, at *2, 4 (Tex. App.—Fort Worth Oct. 18, 2007, no pet.) (mem. op.,

not designated for publication) (affirming $200,000 bond for defendant charged

with aggravated sexual assault of a child).

      With the above-stated principles and the parties’ arguments in mind, we

consider whether the trial court abused its discretion by setting Benefield’s bail at

$200,000.    Benefield is charged with a first-degree felony and faces the

possibility of up to ninety-nine years or life incarceration. See Tex. Penal Code

Ann. §§ 12.32(a), 22.04(e). Also, the record contains no evidence indicating that

the trial court rendered its decision for the purpose of forcing Benefield to remain

incarcerated pending trial.    Cf. Ex parte Harris, 733 S.W.2d 712, 714 (Tex.

App.—Austin 1987, no pet.) (noting that the trial judge had stated that it would

―rather see him in jail than to see someone’s life taken‖). On the other hand,

Benefield presented evidence that he has strong ties to the community, that he

has no prior criminal record, and that he voluntarily spoke with police during the

investigation. Benefield also presented evidence that he cannot make bail in any

amount. Although a defendant’s ability to make bail is a factor for consideration,


      4
       See Tex. Penal Code Ann. § 22.04(e); see id. § 12.32(a) (West 2011).


                                         10
the 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); Ex parte Davis, 147 S.W.3d 546, 548 (Tex. App.—Waco

2004, no pet.).

      Benefield unquestionably presented evidence favorable to his application

for writ of habeas corpus, but given the serious nature of the crime for which he

is accused, the possibility of a substantial term of incarceration, the absence of

any indication that the trial court set bail at $200,000 so that Benefield would

remain incarcerated, and the trial court’s reduction of bail from $1 million to

$200,000, we cannot say that Benefield has satisfied his burden of showing that

bail in the amount of $200,000 is excessive. See Ex parte Poullard, No. 14-10-

01034-CR, 2011 WL 304212, at *3 (Tex. App.—Houston [14th Dist.] Jan. 27,

2011, no pet.) (mem. op., not designated for publication) (holding the appellant

did not meet burden of showing excessive bond and noting that trial court had

reduced bond from $1 million to $250,000); Bennett, 2007 WL 3037908, at *2–4

(affirming $200,000 bail amount). We thus cannot hold that the trial court abused

its discretion, and we overrule Benefield’s sole issue.




                                         11
                                 IV. Conclusion

      Having overruled Benefield’s sole issue, we affirm the trial court’s order.




                                                   ANNE GARDNER
                                                   JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 17, 2013




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