                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-404-CR


EX PARTE

JEROME OVERSTREET

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           FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                I. INTRODUCTION

      This is an appeal from the denial of habeas corpus relief requesting bail

reduction. In three points, Appellant Jerome Overstreet contends that the trial

court erred by denying his application for bail reduction and ordering that bail

continue to be set in the amount of $500,000. We will affirm.




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          … See Tex. R. App. P. 47.4.
                    II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      In November 2007, Overstreet was arrested for and charged with

murdering his wife. The magistrate set bail at $100,000. In May 2008, a

grand jury returned an indictment against Overstreet for capital murder—murder

in the course of committing aggravated sexual assault—and the bond was held

insufficient.   On August 4, 2008, the trial court held a hearing to set bail.

Overstreet’s bail was then set to $500,000.            On September 18, 2008,

Overstreet filed an application for writ of habeas corpus, asserting that the bail

was excessive and requesting a reduction in the bail amount. On November 4,

2008, the court denied the requested relief. This appeal followed.

                               III. E XCESSIVE B AIL

      In three points, Overstreet contends that the trial court erred by denying

his application for bail reduction because $500,000 is an excessive amount.

He complains that the bail amount violates his rights under the Eighth and

Fourteenth Amendments to the United States Constitution; article I, sections

11 and 13 of the Texas Constitution; and articles 1.07, 1.09, and 17.15 of the

Texas Code of Criminal Procedure. The State maintains that the trial court did

not abuse its discretion by denying his request because $500,000 is reasonable

when applying the factors under section 17.15 of the Texas Code of Criminal




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Procedure. Overstreet’s brief combines the argument for his three points, and

we will likewise combine our analysis.

      A.    Standard of Review

      We review the trial court’s denial of a bail-reduction request under an

abuse of discretion standard. See Ex parte Rubac, 611 S.W.2d 848, 850 (Tex.

Crim. App. [Panel Op.] 1981); Ex parte Brown, 959 S.W.2d 369, 372 (Tex.

App.—Fort Worth 1998, no pet.); see also Tex. Code Crim. Proc. Ann. art.

17.15 (Vernon 2005) (giving trial court discretion to set amount of bail). To

determine whether a 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. Montgomery v. State,

810 S.W.2d 372, 380 (Tex. Crim. App. 1991) (op. on reh’g). Merely because

a trial court may decide a matter within its discretion in a different manner than

an appellate court would in a similar circumstance does not demonstrate that

an abuse of discretion has occurred. Id.

      The primary purpose of an appearance bond is to secure the presence of

the defendant at trial on the offense charged. Ex parte Vasquez, 558 S.W.2d

477, 479 (Tex. Crim. App. 1977). 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. Id. In a habeas proceeding,

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the burden of proof is on the defendant to show that the bail, as set, is

excessive. Rubac, 611 S.W.2d at 849.

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

following criteria for establishing a defendant’s bail amount:

      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 factors in determining the amount of the bail:

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

length of residency; (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. Rubac, 611 S.W.2d at

849–50; Brown, 959 S.W.2d at 372.



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      B.    The 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.     Vasquez, 558 S.W.2d at

479–80. When the nature of the offense is serious and involves aggravating

factors, a lengthy prison sentence following trial is probable. In re 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.

      Overstreet is charged with capital murder—murder in the course of

committing aggravated sexual assault—a capital felony. Tex. Penal Code Ann.

§ 19.03(a)(2) (Vernon 2005). If convicted, Overstreet faces an automatic life

sentence without the possibility of parole. See id. § 12.31.       Although the

circumstances surrounding the offense were not fully developed at the habeas

hearing, the indictment charges Overstreet with causing the death of his wife

by traumatic asphyxiation. The indictment further indicates that Overstreet

committed the murder of his wife while committing, or attempting to commit,

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the offense of aggravated sexual assault. Given the serious nature of capital

murder, aggravated sexual assault, and the potential for the sentence of life

without parole, the trial court properly could have concluded that the bail was

reasonable. See Ex parte Scott, 122 S.W.3d 866, 868 (Tex. App.—Fort Worth

2003, no pet.) (reasoning that when a defendant is charged with a serious

offense that involves a potentially lengthy sentence, the trial court can, within

its discretion, set a sufficiently high bail to secure the presence of the accused).

      C.    Ability to Make Bond

      The accused’s ability to make bond is merely one factor to be considered

in determining the appropriate amount of bail. Tex. Code Crim. Proc. Ann. art.

17.15(4); Brown, 959 S.W.2d at 372. Simply because a defendant cannot

secure bond for the bail set by the trial court does not automatically render the

bail excessive. Id. If the ability to make bond in a specified amount controlled,

then the role of the trial court in setting bail would be completely eliminated,

and the accused would be in the unique posture of determining what his bail

should be. Ex parte Miller, 631 S.W.2d 825, 827 (Tex. App.—Fort Worth

1982, pet. ref’d).

      At trial, Overstreet did not testify or otherwise demonstrate his financial

capacity or attempts to furnish bond.        The only evidence of Overstreet’s

financial affairs comes from Overstreet’s father and Sonya Ross—Overstreet’s

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paramour—who both testified at the habeas hearing.           Overstreet’s father

testified that he was unsure of Overstreet’s financial affairs. Specifically, when

asked how much Overstreet could raise by selling his assets, Overstreet’s

father said, “[W]hat would have to be figured out would be what he owes, and

right now I don’t know all the things that he owes, you know. I would have to

figure up everything.”       When testifying about his own financial affairs,

Overstreet’s father was equally vague. When asked whether he had “large

sums of cash at [his] disposal,” Overstreet’s father replied, “I have some. I

don’t know about large.” But Overstreet’s father never testified concerning his

financial resources or his own assets, nor did he explain what efforts, if any,

were made to furnish Overstreet’s bond. See Balawajder v. State, 759 S.W.2d

504, 506 (Tex. App.—Fort Worth 1988, pet. ref’d) (noting that vague

references to inability to make bond do not justify a reduction in the amount

set); Miller, 631 S.W.2d at 827 (recognizing that it is incumbent on the

accused to show that he has made an effort to furnish bond in the amount set).

Likewise, Ross was equally vague about Overstreet’s finances. When asked

whether Overstreet owes money on his vehicles, Ross responded, “I am not for

sure.”

         At the hearing, there was testimony that Overstreet owned three vehicles

and a home in Wichita, Kansas. But the record is void of anything to suggest

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that Overstreet has attempted to leverage these assets in an effort to furnish

his own bond. See Miller, 631 S.W.2d at 827. There was also testimony that

Oversteet was currently incarcerated and that he had lost his job when he was

arrested.   But again, the record is void of any documents pertaining to

Overstreet’s bank accounts, potential cash reserves, etc. Because Overstreet

demonstrated little evidence supporting his claimed inability to make bail and

no evidence regarding his efforts to secure bond, the trial court could properly

have   concluded   that the amount of bail was reasonable           under   the

circumstances. See Scott, 122 S.W.3d at 870.

       D.   Safety of the Community

       In determining the appropriate amount of bail, the future safety of the

community is to also be considered. Tex. Code Crim. Proc. Ann. art. 17.15(5);

Ex parte Beard, 92 S.W.3d 566, 568 (Tex. App.—Austin 2002, pet. ref’d).

The evidence presented at the hearing suggests that Overstreet followed his

wife to Texas, where she had fled from his repeated physical and verbal abuse.

The charged crime is of a violent nature—murder by asphyxiation during an

attempted aggravated sexual assault. Furthermore, Overstreet has previously

been convicted of drug-related offenses in California and Kansas.           See

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

1999, pet. ref’d) (stating that it is a matter of common sense that those who

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possess illegal drugs pose a danger to the community in which they live). With

the safety of the community as a backdrop, the trial court properly could have

concluded that Overstreet’s bail was reasonable considering the allegations of

his domestic abuse and his previous criminal history.

      E.    Community Ties

      Courts may also consider an accused’s work record, family ties, and

length of residency to determine what constitutes reasonable bail. See Rubac,

611 S.W.2d at 849. Overstreet has never resided or worked in Tarrant County.

In fact, Overstreet is a resident of Wichita, Kansas. The evidence reveals that

he traveled to Texas only after learning that his wife had moved to Grapevine.

Based on the evidence regarding Overstreet’s lack of ties to the community, the

trial court could have concluded that Overstreet’s community ties were

insufficient to assure his appearance at trial. See, e.g., Brown, 959 S.W.2d at

373 (holding that bail of $500,000 for alleged capital murder was not

excessive, when defendant faced life imprisonment or death penalty and did not

have any close ties to the community to assure his appearance at trial).

      F.    Other Factors

      A court should also weigh 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

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been involved in the charged offense. Rubac, 611 S.W.2d at 849–50; Scott,

122 S.W.3d at 869. There is no evidence in the record that Overstreet has

ever failed to conform with the conditions of a previous bond. But the record

does demonstrate that he has multiple previous convictions for drug-related

offenses.   Furthermore, the trial court would have been well within its

discretion to consider the heinous nature of the crime Overstreet has been

charged with, to wit: having murdered his wife by asphyxiation during the

commission of an aggravated sexual assault. Given these additional factors,

the trial court properly could have concluded that the bail should not be

reduced.

                                IV. C ONCLUSION

      Affording due deference to the trial court’s ruling, we cannot say that the

trial court acted arbitrarily or unreasonably by denying a reduction in

Overstreet’s bail amount. Overstreet has failed to demonstrate that the set bail

is excessive. See Brown, 959 S.W.2d at 371 (affirming denial of reduction of

$500,000 pretrial bail in capital murder case); see also Ex parte Jackson, 257

S.W.3d 520, 523 (Tex. App.—Texarkana 2008, no pet.) (declining to reduce

$750,000 bail for defendant charged with capital murder); Ex parte Wilson, No.

01-00-00140-CR, 2000 WL 964570, at *2 (Tex. App.—Houston [1st Dist.]

July 12, 2000, no pet.) (not designated for publication) (holding that bail of

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$500,000 in murder case was not excessive even though defendant lacked a

criminal record, willingly surrendered to police when being arrested, posed no

threat to the community, and was willing to wear a monitoring device). We

hold that the trial court did not abuse its discretion by denying Overstreet’s

request for bail reduction and overrule his three points. We therefore affirm the

trial court’s order denying habeas corpus relief.




                                            PER CURIAM

PANEL: MEIER, GARDNER, and WALKER, JJ.

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

DELIVERED: July 23, 2009




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