                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-13-00474-CR


EX PARTE JUSTIN GREEN


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              FROM THE 97TH DISTRICT COURT OF CLAY COUNTY

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                           MEMORANDUM OPINION1

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                                  I. INTRODUCTION

      Appellant Justin Green appeals from a trial court order denying him relief

on his application for writ of habeas corpus seeking a bail reduction. We will

affirm.




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          See Tex. R. App. P. 47.4.
                                 II. BACKGROUND

      Texas Ranger Marshall Thomas participated in exhuming a heavily

decomposed body buried in a “shallow grave” in Clay County, Texas, in early

February 2012. Thomas’s investigation into the body led him to obtain an arrest

warrant for Green, who had previously lived on the land where law enforcement

found the body. On February 16, 2012, Arizona officials extradited Green to

Texas by delivering Green to Thomas, who, accompanied by other law

enforcement officers, flew Green from Phoenix, Arizona, back to Texas. Having

identified the body and determined the date of death, the State charged Green

with having murdered Jose Ramirez on July 25, 2007.

      Prior to trial, the trial court set Green’s bail at $1,000,000. Green moved

the trial court to reduce the bail, and the trial court denied his motion. At trial,

Green argued that he shot Ramirez in self-defense.2          The State, however,

introduced evidence that Green shot Ramirez, his friend and ex-Army mate, in

the head and chest while Ramirez was unarmed and either sleeping or seated at

his computer wearing only his boxer shorts. The evidence also indicates that

from there, Green dragged Ramirez’s body to Green’s truck, which he had


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        At the habeas hearing, the State introduced “all of the evidence” from the
trial. Green stated affirmatively that he did not have any objection. In its oral
pronouncement to deny Green’s application, the trial court stated that it had
considered “all of the evidence previously [introduced at trial]” in making its
determination. Thus, our review of the record is not limited to the hearing
transcript only. See Ex parte Green, 940 S.W.2d 799, 800–801 (Tex. App.—El
Paso 1997, no writ).


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parked near the garage for the purpose of transporting Ramirez’s body from the

residence to a pre-dug, shallow grave on the property where Green lived with his

mother. Green, who at that time had recently been discharged from the Army for

“patterns of misconduct” involving his repeated use of marijuana and

methamphetamine, was unemployed.

      The State elicited testimony from Green’s sister and her best friend,

Stephanie Corral. Corral specifically testified that Green had told her and his

sister on multiple occasions that he had killed Ramirez and buried his body on

his property. By Corral’s account, Green killed Ramirez for money. Corral also

stated that Green had threatened his mother, his sister, and Corral that if any one

of them ever disclosed this information to anyone, he would kill them as well.

The evidence shows that after he shot Ramirez, Green sent papers to Ramirez’s

bank and obtained a new PIN for Ramirez’s debit card. From there, the evidence

indicates that Green withdrew over $9,000 that had belonged to Ramirez. Green

later moved to Arizona with his mother.

      With a jury unable to reach a verdict, the trial court granted Green’s motion

for a mistrial. Green then filed an application for writ of habeas corpus, seeking a

reduction in the $1,000,000 bail.     After conducting a hearing, the trial court

denied Green’s application. This appeal followed.

                                  III. DISCUSSION

      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.


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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



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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, 703–04

(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.).


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      A.    Statutory Factors

            1.     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. [Panel Op.]

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. [Panel Op.] 1980). Even though 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. Id.;

Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. [Panel Op.] 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.).

      Here, Green did not present any evidence at the habeas hearing that the

trial court set bail in his case for the express purpose of forcing him to remain

incarcerated. And the bail the trial court set is congruent with a number of cases

involving similarly alleged crimes. See Ex parte Garcia, No. 09-06-00543-CR,

2007 WL 846571, *1 (Tex. App.—Beaumont Mar. 21, 2007, no pet.) (mem. op.,

not designated for publication) (upholding trial court order granting habeas relief

and lowering murder defendant’s bond from $1,000,000 to $950,000); see also

Ex parte Jackson, 257 S.W.3d 520, 523 (Tex. App.—Texarkana 2008, no pet.)


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(declining to reduce $750,000 bail for defendant charged with capital murder);

Ex parte Brown, 959 S.W.2d 369, 372 (Tex. App.—Fort Worth 1998, no pet.)

(affirming denial of reduction of $500,000 pretrial bail in capital murder case).

Although $1,000,000 is within the higher range of bails set for similar cases,

Green presented no evidence that the bail set in his case required reversal, and

we conclude that the trial court did not act arbitrarily in setting the amount.

             2.     Nature and Circumstances of the Offense

      The nature of the offense and the circumstances surrounding the offense

are primary factors in determining what constitutes reasonable bail. Tex. Code

Crim. Proc. Ann. art. 17.15(3); see Ex parte Davila, 623 S.W.2d 408, 410 (Tex.

Crim. App. [Panel Op.] 1981). In considering the nature of the offense, it is

proper to consider the possible punishment. Ex parte Vasquez, 558 S.W.2d 477,

479–80 (Tex. Crim. App. 1977). When the nature of the offense is serious and

involves aggravating factors, a lengthy prison sentence following trial is probable.

Ex parte Hulin, 31 S.W.3d 754, 760 (Tex. App.—Houston [1st Dist.] 2000, no

pet.). Therefore, pretrial bail must be set sufficiently high to secure the presence

of the accused at trial because the accused’s reaction to the prospect of a

lengthy sentence might be to not appear. Id. at 761.

      The record reflects that the State indicted Green for intentionally or

knowingly causing the death of Ramirez by shooting him with a gun, a first-

degree felony. See Tex. Pen. Code Ann. § 19.02(b), (c) (West 2011). As a first-

degree felony, the offense carries a sentence of five to ninety-nine years’ or life


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imprisonment, and a fine not to exceed $10,000. Id. § 12.32(a)–(b) (West 2011).

At trial, the State introduced evidence that Green killed Ramirez by shooting him

in the head and then in the chest, and then disposing the body in a shallow grave

which Green had prepared prior to the shooting for the very purpose of burying

Ramirez’s body. Further, the evidence suggests a calculated murder motivated

by money—a mere $9,000.        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.

      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.) (setting bail at $1,000 in

case involving first-degree felony offense of possession of controlled substance);

Gonzalez v. State, 996 S.W.2d 350, 353 (Tex. App.—Houston [14th Dist.] 1999,

no pet.) (approving bail set at $90,000 in case involving aggravated robbery); 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


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for publication) (approving bail set at $500,000 in case involving offense of first-

degree felony theft); Overstreet, 2009 WL 2196133 at *1 (upholding bail of

$500,000 in murder charge); Garcia, 2007 WL 846571, at *1 (upholding trial court

order granting habeas relief and lowering defendant’s bond from $1,000,000 to

$950,000); Tran v. State, No. 01-06-00035-CR, 2006 WL 1771815, at *5 (Tex.

App.—Houston [1st Dist.] June 29, 2006, no pet.) (mem. op., not designated for

publication) (approving bail set at $800,000 for cocaine possession and $500,000

for marijuana possession); Ex parte Cuevas, No. 11-03-00402-CR, 2004 WL

527960, at *5 (Tex. App.—Eastland Mar. 18, 2004, no pet.) (not designated for

publication) (approving bail set at $1,000,000 in case involving offense of

engaging in organized criminal activity to commit theft). The bail amount set in

this case, $1,000,000, is within the range of bail amounts approved for other first-

degree felonies.

             3.    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.

[Panel Op.] 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.


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

testified that the bond company would expect him to put up $100,000 but that he

possessed no assets and was unemployed. And the record reflects that the trial

court appointed Green counsel based on his indigence. This factor supports

Green’s contention that the bail is excessive, but the accused’s inability to make

bail, even to the point of indigence, does not control over the other factors. See

Ex parte Parker, 26 S.W.3d 711, 712 (Tex. App.—Waco 2000, no pet.).

             4.    Future Safety of 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, testimony adduced at trial indicates that

Green threatened to kill his mother, his sister, and his sister’s best friend if they

revealed to anyone that he had shot and killed Ramirez and buried his body.

There is also evidence in the record that Green has previously been charged with

the theft of firearms and body armor, armor that he allegedly stole from the Army.

There is also evidence that Green has unlawfully brought firearms onto premises

licensed to sell alcoholic beverages and that he has been convicted of driving

under the influence. Further, there is record evidence that when officers arrested

Green for the offense in which he was wearing the body armor, he told the

arresting officers that he “has angry outbursts and homicidal tendencies.” These

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

within it on a lower bond.


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      Based on this evidence, the trial court could have found that Green posed

a threat to the community and that the $1,000,000 bail was necessary to ensure

safety of the community. This factor supports that the trial court did not act

arbitrarily by denying Green’s application to reduce bail.

      B.     Rubac Factors

      The remaining non-statutory factors also support that the trial court did not

act outside the zone of reasonable disagreement by denying Green’s request to

lower the $1,000,000 bail amount. Although Green presented evidence that he

has an in-law in Clay County willing to let Green stay at his ranch, the record

demonstrates that after he killed Ramirez, Green and his mother moved to

Arizona. In fact, Arizona extradited Green to Texas in order for him to face this

present charge.

      Furthermore, the record demonstrates that Green has an extensive record

of past infractions involving drugs and firearms.       And although there is no

evidence that Green has violated past conditions of previous bonds, the

aggravating circumstances of the present offense are considerable. Green is

alleged to have shot Ramirez, his friend and ex-Army mate, in the head as he

either sat at his computer or slept. When Green shot him, Ramirez wore only a

pair of boxer shorts. The evidence also reveals that Green pre-meditated killing

Ramirez. Indeed, the evidence suggests that Green had already dug the shallow

grave where he eventually buried Ramirez’s body prior to shooting him and that

Green had even backed up his truck to the garage in anticipation of removing


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Ramirez’s body. The consideration of the non-statutory factors supports that the

trial court did not act arbitrarily or unreasonably by denying Green’s application to

reduce the $1,000,000 bail amount.

                                   IV. CONCLUSION

      Although Green presented some evidence of his inability to make bail at

the habeas hearing, the nature and aggravating circumstances of the charged

offense, the future safety of the community, Green’s prior criminal history, and

the fact that he moved to Arizona after having shot Ramirez and disposed of his

body in a pre-dug, shallow grave support that the trial court did not abuse its

discretion by denying Green’s application for writ of habeas corpus seeking a bail

reduction. See Jackson, 257 S.W.3d at 523 (holding that bail of $750,000 for

defendant charged with murder as shooter during robbery was within range of

bail for similar crimes). We affirm the trial court’s order.

                                                      /s/ Bill Meier

                                                      BILL MEIER
                                                      JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

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

DELIVERED: February 13, 2014




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