                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00149-CR
        ______________________________



          EX PARTE DAMARCUS HEARN




   On Appeal from the 402nd Judicial District Court
                Wood County, Texas
           Trial Court No. 21,068-2010




    Before Morriss, C.J., Carter and Moseley, JJ.
   Memorandum Opinion by Chief Justice Morriss
                                  MEMORANDUM OPINION

        In Wood County, a county in which he has no family or significant ties, Damarcus Hearn

stands accused of a gang-related murder, a first degree felony punishable by a term of

imprisonment for life or for any term of not more than ninety-nine years or less than five years and

a fine not to exceed $10,000.00. See TEX. PENAL CODE ANN. § 12.32 (Vernon Supp. 2010),

§ 20.04 (Vernon 2003).

        Hearn has been incarcerated, pending trial, since his arrest May 12, 2009. His bond was

set at $370,000.00. On August 2, 2010, Hearn properly applied for a writ of habeas corpus

seeking to have his pretrial bond reduced. After a hearing, the trial court entered an order denying

Hearn’s application and refusing to reduce the bond. Hearn filed this appeal.

        Hearn argues that the trial court abused its discretion by denying the bond reduction

because the bail set was excessive in violation of Article 17.15 of the Texas Code of Criminal

Procedure and the United States and Texas Constitutions. Finding no abuse of discretion, we

affirm the trial court’s order.

        ―The primary purpose or object of an appearance bond is to secure the presence of a

defendant in court for the trial of the offense charged.‖ Ex parte Rodriguez, 595 S.W.2d 549, 550

(Tex. Crim. App. 1980). Bail should not be set so high as to be oppressive, guaranteeing the

defendant’s appearance, but should be high enough to provide reasonable assurance the defendant

will appear at trial. Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. 1980). Bail operates to


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balance the ―presumption of innocence of the accused and the compelling interest of the State that

the accused appear to answer the accusation against him.‖ Balboa v. State, 612 S.W.2d 553, 557

(Tex. Crim. App. 1981). Nevertheless, the burden of proof is on the defendant to show the bail is

excessive. Rodriguez, 595 S.W.2d at 550.

           In reviewing bond settings on appeal, we are guided by Article 17.15 of the Texas Code of

Criminal Procedure,1 and we are to reverse a lower court’s determination only if we find an abuse

of discretion. TEX. CODE CRIM. PROC. ANN. art. 17.15 (Vernon 2005). That is, we will reverse

the trial court’s decision only if it was made without reference to any guiding principles or was, in

other words, arbitrary or unreasonable. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.

App. 1990) (op. on reh’g). Even if we would have reached a different result, we should not

intervene if the trial court’s ruling is within the zone of reasonable disagreement. Id. at 391.

Under Texas law, the amount of bail required in any case is within the discretion of the court,

judge, magistrate, or officer taking the bail, subject to the following rules:

           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.




1
    We make no opinion regarding the applicability of Article 17.151 of the Texas Code of Criminal Procedure.
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        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, the Texas Court of Criminal Appeals has

directed courts to consider the accused’s work record, family and community ties, length of

residency, prior criminal record (if any), and any aggravating circumstances alleged to have been

involved in the offense the accused is charged with committing.2 Ex parte Rubac, 611 S.W.2d

848, 849–50 (Tex. Crim. App. 1981).

        With these principles in mind, we address the pertinent factors.

Nature of the Offense

        The primary factors to be considered in determining what constitutes reasonable bail are

the punishment that can be imposed and the nature of the offense. Id. at 849. ―Where the nature

of the offense is serious and involves aggravating factors, the likelihood of a lengthy prison

sentence following trial is great.‖ In re Hulin, 31 S.W.3d 754, 760 (Tex. App.—Houston

[1st Dist.] 2000, no pet.). Bond in such cases should be set sufficiently high to secure the

defendant’s presence at trial because his ―reaction to the prospect of a lengthy prison sentence

2
 Although Rubac dealt specifically with whether a trial court abused its discretion in refusing to reduce an appeal
bond, appellate courts have generally applied these additional considerations in determining whether there was an
abuse of discretion in the original setting of an appearance bond. See Gonzalez v. State, 996 S.W.2d 350, 352–53
(Tex. App.—Houston [14th Dist.] 1999, no pet.) (citing Ex parte Emery, 970 S.W.2d 144, 145 (Tex. App.—Waco
1998, no pet.); Ex parte Brown, 959 S.W.2d 369, 371 (Tex. App.—Fort Worth 1998, no pet.); Smith v. State, 829
S.W.2d 885, 887 (Tex. App.—Houston [1st Dist.] 1992, pet. ref'd)). We agree these factors are appropriately
considered when reviewing either appeal or appearance bonds.
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might be not to appear.‖ Id. at 761; see also Ex parte Scott, 122 S.W.3d 866, 869–70 (Tex.

App.—Fort Worth 2003, no pet.).

       The charged offense is quite grave—gang-related murder, a first degree felony—as is the

potential punishment—a term of imprisonment for life or for any term of not more than

ninety-nine years or less than five years and a fine not to exceed $10,000.00. TEX. PENAL CODE

ANN. §§ 12.32, 20.04. Given the serious nature of the offense of murder, the gang-related

element, the allegation of the use of a deadly weapon, and the potential for a lengthy sentence, the

trial court could have properly concluded that the amount of the bond was reasonable. Milner v.

State, 263 S.W.3d 146, 149–50 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (noting serious

nature of crimes of murder and attempted murder and substantial penalty if convicted, and

affirming bond of $500,000.00); see also Ex parte Hunt, 138 S.W.3d 503 (Tex. App.—Fort Worth

2004, pet. ref’d); Hulin, 31 S.W.3d at 760.

Ability to Make Bond

       A criminal defendant’s ability to make bond is ―merely one factor to be considered in

determining the appropriate amount of bond.‖ Scott, 122 S.W.3d at 870 (citing TEX. CODE CRIM.

PROC. ANN. art. 17.15(4)). Here, it is undisputed that Hearn attempted to secure a bond, but was

financially unable to do so. This factor weighs in favor of a reduced bond; however, this factor is

not controlling over the other factors. See id.

Work History and Community Ties


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       Hearn was reportedly employed as a restaurant’s assistant manager for the six-to-eight

months preceding his arrest, and worked at J & M Concrete before that time, though there is no

evidence how long he worked at J & M. Hearn has no family or significant ties in Wood County.

Hearn did testify that he had lived in northeast Texas all of his life. He was raised in Daingerfield,

Morris County, Texas, and he, his mother, and fiancée and child all live in Longview, Gregg

County, Texas. If released, Hearn testified that he would, once again, live in Longview, with his

fiancée and son. Though Hearn has some work history, he has no family or significant ties in

Wood County. Accordingly, the trial court could have concluded that the bond amount was

reasonable.

Danger to the Community

       A year before his arrest in this case, Hearn had pled guilty to a misdemeanor assault charge.

He has no other criminal record. According to the indictment, Hearn is accused of killing the

victim with a firearm with the ―intent to establish, maintain, or participate as a member of a

criminal street gang.‖ However, inexplicably, the State failed to proffer any evidence regarding

the circumstances of the crime. Despite the State’s failure, the trial court could have concluded

that the bond amount was reasonable because the allegation of gang-related murder raises serious

concerns about the danger to the community posed by other gang-related activities.

       Here, even though the State failed to develop the circumstances of the crime, we conclude

that the violent nature of the alleged crime, the gang-related element, the possibility of life in


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prison, the potential continuing danger to the community, and the lack of ties to Wood County, all

weigh in favor of the bond amount. We conclude that the court was within its discretion to set

bail at this level and had adequate information before it to allow it to make a reasoned

determination. Under these facts, the trial court did not abuse its discretion by declining to reduce

bond as requested.

       We affirm the order of the trial court.



                                                      Josh R. Morriss, III
                                                      Chief Justice

Date Submitted:        October 12, 2010
Date Decided:          October 28, 2010

Do Not Publish




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