




02-12-249-CR





















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 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 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 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 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 impose[6]
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
 
















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 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.
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. 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.[8]
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 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. 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.
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.
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.
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




[1]Ex parte Vasquez,
558 S.W.2d 477, 479 (Tex. Crim. App. 1977).


[2]Id.


[3]Id.


[4]Tex. Code Crim. Proc. Ann.
art. 17.15 (West 2005).


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


[6]See Tex. Code Crim.
Proc. Ann. art. 17.40 (West 2005).


[7]See Tex. R. App. P. 43.6.


[8]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.


