                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00395-CR
                                 No. 10-11-00396-CR
                                 No. 10-11-00397-CR

                     EX PARTE DAVID LEWIS SMITH JR.,



                        From the 13th District Court
                          Navarro County, Texas
      Trial Court No. 11-20473-CV, No. 11-20474-CV and 11-20475-CV


                           MEMORANDUM OPINION


       Applicant, David Lewis Smith Jr., is charged with one count of intentionally or

knowingly causing serious bodily injury to a disabled person, a first-degree felony, in

three different cause numbers. See TEX. PENAL CODE ANN. § 22.04(a)(1), (e) (West Supp.

2011). The trial court set bail at $500,000 in each cause for a cumulative bail amount of

$1.5 million. Applicant filed an application for a writ of habeas corpus, seeking a

reduction in bail, which the trial court denied. In one issue, applicant argues that, based

on article 17.15 of the code of criminal procedure, the trial court abused its discretion in

failing to reduce his bail in the three causes. See TEX. CODE CRIM. PROC. ANN. art. 17.15

(West 2005). We affirm.
                                    I.    BACKGROUND

       According to Detective Jessica Abbe of the Corsicana Police Department, at the

time of the incident, applicant worked for American Rehabilitation Services at a

“welfare home for disabled or mentally challenged individuals” in Corsicana, Texas.

While working at the welfare home, applicant allegedly “poured hot grease on three

separate disabled persons at separate times.” In her testimony, Detective Abbe noted

that applicant “provided a written confession to Adult Protective Services for burning

the three individuals, not just one.” She further testified that the disabled individuals

sustained severe burns on several parts of their bodies as a result of applicant’s actions

and that, because of their disabilities, the individuals are unable to speak about the

incident. Detective Abbe concluded that, based on her investigation, applicant did not

accidentally burn the disabled individuals. She recalled that applicant first told his

employer that the burns on the disabled individuals were due to small carpet burns;

however, applicant later changed his story. Detective Abbe testified that she believes

that applicant would engage in these actions again and that applicant’s bail should not

be lowered because he is a danger to the community. On cross-examination, however,

Detective Abbe stated that applicant does not have a violent criminal history.

       Applicant called several family members to testify on his behalf. Each testified

that they are a close-knit family and would assist applicant financially and ensure that

he attends all court hearings. The family members also testified that, when pooling

their money together, they could not afford to pay the bail amount and that applicant

had a normal childhood and did not engage in violent behaviors.

Ex parte Smith                                                                      Page 2
       At the conclusion of the hearing on applicant’s application, the trial court denied

applicant’s application seeking a reduction in bail and later entered the following

findings of fact and conclusions of law:

                                       FINDINGS OF FACT

       1. David Lewis Smith, Jr. (hereinafter “Defendant”) is charged with three
          cases of Injury to a Disabled Person where bond is set on each case at
          $500,000.00.

       2. Each case filed is a First Degree Felony which carries a range of
          punishment of up to Life in prison.

       3. Defendant is a 2005 graduate of Corsicana High School.

       4. Defendant’s family, with the exception of a brother, currently lives in
          Corsicana, Texas.

       5. Defendant has no prior criminal history.

       6. Defendant has no assets.

       7. Defendant was employed working with disabled and mentally
          handicapped persons at the time of his arrest but is no longer
          employed in that capacity due to his incarceration.

       8. Defendant and his family have been unable to raise funds to make the
          premium payments on the current bonds to local sureties.

       9. If released, Defendant would potentially be in the presence of children.

       10. Defendant confessed to burning three handicapped individuals.

       11. The three alleged victims were transported to Parkland Hospital’s
           Burn Unit for medical treatment.

       12. The three alleged victims are unable to speak.

                                 CONCLUSIONS OF LAW

       1. The bail set in each case is not oppressive.

Ex parte Smith                                                                       Page 3
       2. The bail set in each case i[s] to protect not just the alleged victims but
          also the community as a whole.

       3. Considering the five factors listed in Article 17.15 of the Code of
          Criminal Procedure as well as factors enumerated in case law, the
          Court did not abuse its discretion in denying the Defendant’s
          Applications for Writ of Habeas Corpus Seeking Bail Reduction.

       4. The Defendant’s relief requested should be denied; bond should
          remain on each case at $500,000.00.

                      II.     STANDARD OF REVIEW & APPLICABLE LAW

       We review a trial court’s decision regarding bail settings for an abuse of

discretion. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. 1981); see Montalvo v.

State, 315 S.W.3d 588, 592 (Tex. App.—Houston [1st Dist.] 2010, no pet.).              When

reviewing a trial court’s decision, we will not disturb that ruling as long as it is “at least

within the zone of reasonable disagreement.” Cooley v. State, 232 S.W.3d 228, 234 (Tex.

App.—Houston [1st Dist.] 2007, no pet.). “But an abuse of discretion review requires

more of the appellate court than simply deciding that the trial court did not rule

arbitrarily or capriciously. The appellate court must instead measure the trial court’s

ruling against the relevant criteria by which the ruling was made.” Id.

       In exercising its discretion, the trial court should consider the following statutory

rules in setting a defendant’s 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.



Ex parte Smith                                                                          Page 4
       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 the victim of the alleged offense and the
          community shall be considered.

TEX. CODE CRIM. PROC. ANN. art. 17.15; see Golden v. State, 288 S.W.3d 516, 518 (Tex.

App.—Houston [1st Dist.] 2009, pet. ref’d). The burden of proof is upon the defendant

to demonstrate that the set bail amount is excessive. Golden, 288 S.W.3d at 518.

       In addition to the statutory factors listed in article 17.15, we also consider the

defendant’s work record, family ties, length of residency, past criminal record,

conformity with previous bond conditions, other outstanding bonds, and aggravating

factors involved in the offense. Id. at 519 (citing Ex parte Rubac, 611 S.W.2d at 849-50).

                                       III.   ANALYSIS

       On appeal, applicant contends that his bail is oppressive and should be reduced

because his family members can only raise $25,000 in funds; he has no criminal record;

he has ties to the community; he is not a flight risk; and he has a place to live—with his

mother and father—if released.

A. Nature of the Offenses

       The defendant’s potential sentence and the nature of the crime are “primary

factors” for us to consider. Ex parte Hunt, 138 S.W.3d 503, 506 (Tex. App.—Fort Worth

2004, pet. ref’d); see Ex parte Vasquez, 558 S.W.2d 477, 479-80 (Tex. Crim. App. 1977).

When the nature of the offense is serious and aggravating factors are involved, “a


Ex parte Smith                                                                         Page 5
lengthy prison sentence following trial is probable.” Ex parte Scott, 122 S.W.3d 866, 869

(Tex. App.—Fort Worth 2003, no pet.). “Pretrial bond in these kinds of cases should be

set sufficiently high to secure the presence of the accused at trial because the accused’s

reaction to the prospect of a lengthy prison sentence might be not to appear.” Ex parte

Hulin, 31 S.W.3d 754, 761 (Tex. App.—Houston [1st Dist.] 2000, no pet.); see Ex parte

Hunt, 138 S.W.3d at 506 (“Given the serious nature of the offenses and the potential for

a lengthy sentence, the trial court could properly have concluded that the amounts of

the bonds were reasonable.”).

       In this case, the State has charged applicant with three separate cases of

intentionally and knowingly causing serious bodily injury to a disabled person, a first-

degree felony, which carries a punishment range of confinement for five to ninety-nine

years, or life, plus a fine of up to $10,000. See TEX. PENAL CODE ANN. §§ 12.32 (West

2011), 22.04(a)(1), (e). Therefore, if convicted in each cause number, applicant faces the

possibility of three life sentences. See id. § 12.32. Given the serious and egregious

nature of applicant’s alleged offenses and the potential for lengthy sentences if

convicted, the trial court could have properly concluded that applicant’s bail was

reasonable. See Golden, 288 S.W.3d at 518; see also Ex parte Scott, 122 S.W.3d at 870.

B. Sufficient Bail to Assure Appearance but Not Oppress

       A trial court should set bail sufficiently high to provide reasonable assurance that

the defendant will appear at trial. Montalvo, 315 S.W.3d at 593. “A defendant’s ties to

the community and work history bear on the adequacy of bail to give reasonable

assurance he will appear.” Richardson v. State, 181 S.W.3d 756, 759 (Tex. App.—Waco

Ex parte Smith                                                                           Page 6
2005, no pet.). We also consider whether the record reflects that the trial court made its

decision regarding the bail amount “for the purpose of forcing [applicant] to remain

incarcerated pending trial.” Milner v. State, 263 S.W.3d 146, 149 (Tex. App.—Houston

[1st Dist.] 2006, no pet.) (citing Ex parte Harris, 733 S.W.2d 712, 714 (Tex. App.—Austin

1987, no pet.) (noting that the trial judge stated, “I’d rather see him in jail than to see

someone’s life taken . . .”)); see Richardson, 181 S.W.3d at 759 (“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].” (internal quotations & citations omitted)). The

record here contains no indication that the trial court set the bail amounts for the sole

purpose of keeping applicant incarcerated pending trial. See Montalvo, 315 S.W.3d at

596 (“Our independent review of the habeas corpus record likewise does not suggest

that the trial court deliberately set bail at an excessively high level solely to prevent

Montalvo from posting bail.”).

       As noted above, applicant presented evidence that all of his family lives in

Corsicana, except for his brother who lives in Dallas, Texas. Applicant’s family testified

that they have lived in Corsicana for many years. Applicant’s mother informed the trial

court that applicant was living in her home at the time of his arrest and that, if he was

released on bail, he could return to her home. Applicant testified that he has had

several jobs since graduating from high school in 2005; however, because of this

incident, he was terminated from American Rehabilitation Services and, thus, has no

job. Based on our review of the record, we conclude that applicant has presented

Ex parte Smith                                                                       Page 7
evidence of family and community ties to the area, which weighs in favor of a reduction

of the bail amount.

C. Ability to Make Bail

       Generally, to show that he cannot make bail, a defendant must demonstrate that

his funds and his family’s funds have been exhausted. See Milner, 263 S.W.3d at 149.

Unless he has shown that his funds and his family’s funds have been exhausted, a

defendant must usually show that he made an unsuccessful effort to furnish bail before

bail can be determined to be excessive. Id. If, however, both the defendant and his

family indicate a financial inability to procure a bond, the court will not require him “to

do a useless thing.” Id. at 149-50 (quoting Ex parte Duiett, 529 S.W.2d 531, 532-33 (Tex.

Crim. App. 1975)).

       “[T]he ability of an accused to make bail does not itself control the amount of

bail, even if the accused is indigent.” Wright v. State, 976 S.W.2d 815, 820 (Tex. App.—

Houston [1st Dist.] 1998, no pet.); see Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex.

Crim. App. 1980); Ex parte Clark, 537 S.W.2d 40, 42 (Tex. Crim. App. 1976). If the

defendant’s ability to make bail in a specific amount controlled, “the role of the trial

court in setting [bail] would be completely eliminated and the accused would be in the

position to determine what his [bail] should be.” Milner, 263 S.W.3d at 150; see Ex parte

Miller, 631 S.W.2d 825, 827 (Tex. App.—Fort Worth 1982, pet. ref’d). When considering

an applicant’s ability to make bail, we are not limited to looking solely to the

defendant’s financial resources; rather, we may also consider his family’s resources and

ability to post security.   See Milner, 263 S.W.3d at 150 (considering, in addition to

Ex parte Smith                                                                       Page 8
defendant’s financial resources, those of his mother); see also Montalvo, 315 S.W.3d at 595

(“No evidence was presented about any discussions with bondsmen or the maximum

amount of bail that Montalvo believed he could satisfy. Similarly, no evidence was

presented about whether Montalvo’s family had any ability to help him make bail.”).

       Here, applicant’s family testified that they did not have the resources to pay the

bail amount imposed by the trial court. Several family members testified that they

could contribute several thousand dollars to help pay for applicant’s bail amount.

Applicant’s mother stated that she contacted three different bondsmen and that the

cheapest bond premium quoted was $150,000, based on the $1.5 million bail imposed.

When asked about property that could be sold to pay the bond premium, applicant’s

mother testified that she owns her home, which appraises for approximately $70,000;

however, she acknowledged that she only had about $10,000 in equity in the house.

Applicant stated that he is not employed and that he does not have any resources that

he could use to pay the bail amount. None of applicant’s family members noted that

they have exhausted any funds in an attempt to make bail. Based on the testimony

adduced at the hearing on applicant’s habeas corpus application, it could be concluded

that this factor weighs in favor of reducing applicant’s bail amount. However, we must

note that, despite such a conclusion, “this element would not control over all other

considerations.” Milner, 263 S.W.3d at 150; see Richardson, 181 S.W.3d at 760 (“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 Smith                                                                       Page 9
D. Future Safety of Victim and Community

       Article 17.15 dictates that we must also consider “[t]he future safety of a victim of

the alleged offenses and the community” when reviewing the trial court’s bail

determination.    TEX. CODE CRIM. PROC. ANN. art. 17.15(5).          Several members of

applicant’s family stated that he is not a violent person and that he does not have a

criminal record, though most of the family members testified that they were unaware of

the egregiousness of the crimes of which applicant is accused. Nevertheless, Detective

Abbe stated that, based on her investigation of the incident and applicant’s background,

she believes that applicant would engage in these actions again and that applicant’s bail

should not be lowered because he is a danger to the community. In addition, the trial

court, in its findings of fact and conclusions of law, stated that:       (1) “If released,

Defendant would potentially be in the presence of children”; and (2) “The bail in each

case i[s] to protect not just the alleged victims but also the community as a whole.” In

considering the record, we conclude that the evidence supports the trial court’s finding

that the present bail amount is appropriate to protect the alleged victims and the

community. See id.; see also Milner, 263 S.W.3d at 150.

       After considering the factors of article 17.15 and the record before us, we cannot

conclude that the bail amounts set by the trial court are constitutionally or statutorily

excessive. See U.S. CONST. amend. VIII; TEX. CODE CRIM. PROC. ANN. art. 17.15; see also

Golden, 288 S.W.3d at 518. We therefore hold that the trial court did not abuse its

discretion in setting applicant’s bail at a total of $1.5 million for the three charged



Ex parte Smith                                                                       Page 10
offenses. See Ex parte Rubac, 611 S.W.2d at 849; see also Montalvo, 315 S.W.3d at 592.

Applicant’s sole issue is overruled.

                                       IV.   CONCLUSION

       We affirm the judgment of the trial court.




                                                AL SCOGGINS
                                                Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 15, 2012
[CR25]




Ex parte Smith                                                                 Page 11
