                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-18-00129-CR

                    EX PARTE SANDRA LOUISE GARNER



                            From the 443rd District Court
                                Ellis County, Texas
                              Trial Court No. 43468CR


                            MEMORANDUM OPINION


       In this appeal from the denial of her application for writ of habeas corpus, Sandra

Louise Garner complains that the trial court abused its discretion by setting her bail at

$1,000,000 because such an amount is excessive. Because we cannot conclude that the

trial court abused its discretion, we affirm.

                                       I.       BACKGROUND

       Here, Garner was arrested for the murder of her husband, Jon Kevin Garner. Bail

was initially set at $2,000,000; however, after Garner filed her first application for writ of

habeas corpus seeking reduced bail, the trial court lowered the bail amount to $1,000,000.

Thereafter, Garner filed a second application for writ of habeas corpus seeking to further
reduce bail. After a hearing, the trial court declined Garner’s request to lower bail. The

trial court certified Garner’s right to appeal, and this appeal followed.

                                  II.    STANDARD OF REVIEW

       An applicant seeking a writ of habeas corpus bears the burden of proving facts

that would entitle her 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).

Both the federal and state constitutions prohibit excessive bail. U.S. CONST. amend. VIII;

TEX. CONST. art. I, §§ 11, 13.

       The primary purpose for setting bail is to secure the presence of the defendant in

court at her trial. See Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977); Golden

v. State, 288 S.W.3d 516, 519 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd). The amount

of bail should be set sufficiently high to give reasonable assurance that the accused will

comply with the undertaking, but should not be set so high as to be an instrument of

oppression. See Ex parte Bufkin, 553 S.W.2d 116, 118 (Tex. Crim. App. 1977); Montalvo v.

State, 315 S.W.3d 588, 593 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

       When reviewing a trial court's determination regarding the amount of bail set,

appellate courts apply an abuse-of-discretion standard. See Ex parte Rubac, 611 S.W.2d

848, 849-50 (Tex. Crim. App. 1981) (reviewing bail pending appeal for abuse of

discretion). In the exercise of its discretion, a trial court should consider the following




Ex parte Garner                                                                       Page 2
factors set forth in article 17.15 of the Code of Criminal Procedure when setting a

defendant's bail before trial:

       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 (West 2015); see Ludwig v. State, 812 S.W.2d 323, 324

(Tex. Crim. App. 1991). In addition to these factors, courts should also consider the

defendant's work record, family ties, residency, criminal record, conformity with

previous bond conditions, and aggravating factors involved in the offense. See Ex parte

Rubac, 611 S.W.2d at 849-50.

                                        III.   ANALYSIS

       On appeal, Garner asserts that the trial court abused its discretion by imposing an

excessive bail amount when the evidence shows that, among other things, she is disabled;

she has made living arrangements after her release; she has no prior criminal history and

outstanding bonds; she has resided in the area her whole life; she has complied with law-

enforcement requests; and she is unable to pay a $100,000 bail amount or 10% of the
Ex parte Garner                                                                        Page 3
$1,000,000 bond.1 Instead, Garner requests that her bail be “set somewhere between

$20,000.00 and $100,000.00.” We disagree.

A.     Nature and Circumstances of the Offense

       In determining whether the trial court abused its discretion, the defendant's

potential sentence and the nature of the crime are “primary factors” for us to consider.

See Ex parte Hunt, 138 S.W.3d 503, 506 (Tex. App.—Fort Worth 2004, pet. ref'd); see also

Montalvo, 315 S.W.3d at 593 (noting that the consideration of the nature and

circumstances of offense requires us to consider range of punishment permitted in event

of conviction). When the nature of the offense is serious and a lengthy sentence following

trial is probable, bail 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.” See Ex parte Hulin, 31 S.W.3d 754, 761 (Tex. App.—Houston [1st Dist.]

2000, no pet.).

       Here, Garner is charged with murder, a first-degree felony subject to a maximum

punishment of ninety-nine years or life in prison. See TEX. PENAL CODE ANN. §§ 12.32(a),

19.02(b)-(c) (West 2011). Included in the evidence is an arrest warrant affidavit executed

by Chief Boyd Ray Norton of the Maypearl Police Department, which states the

following, in relevant part:



       1   A bail bondsman typically charges 10% of the total bail amount and requires “substantial
collateral” before agreeing to post the bail. See Ex parte Sabur-Smith, 73 S.W.3d 436, 440 (Tex. App.—
Houston [1st Dist.] 2002, no pet.) (per curiam).

Ex parte Garner                                                                                Page 4
       Officers arrived on scene and located a white male on the floor who has
       suffered multiple gunshot wounds, one to the head lying in the floor
       unresponsive. Medical personnel arrived and pronounced the subject
       deceased at the scene. The subject was presumably identified as Jon Garner,
       the husband of caller Sandra Garner.

               Sandra was reported to be the only person in the home at the time of
       the shooting and agreed to come to the Ellis County Sheriff’s Office to
       provide a statement. Sandra told investigators she and Jon were asleep in
       bed when she was awoken by a noise. She stated she woke up and heard
       two gunshots. She observed a masked male holding a gun and flashlight
       approach her telling her he was not there to harm her. She continued by
       saying the subject called her by name, telling her she had treated him right
       when he worked for her. The perpetrator indicated to her he held a grudge
       against her husband because he had fired him causing him to lose his family
       and home. The perpetrator said Jon had always bragged about keeping
       money in the house and demanded the money. Sandra, she led the
       perpetrator into their bathroom and retrieved a fire safe where she claimed
       to have kept money. She gave the subject approximately $18,000. The
       subject took her to the bathroom and demanded her to count to “100” and
       if he heard police sirens before, he would come back and kill her.

              Jon’s body was taken to the Dallas County Medical Examiner’s
       Office for autopsy which took place on January 3, 2018. During the
       autopsy[,] a projectile was collected from Jon’s body. An additional
       projectile was recovered from a pillow seized during the execution of a
       search warrant. . . . They determined the projectiles associated in this case
       were from a .38 caliber.

              Additionally, during the execution of this search warrant[,]
       electronics were seized to include laptops, tablets, and cell phones.
       Additional search warrants were executed on said electronics and revealed
       an internet search on one of Sandra’s devices on December 28, 2017, “how
       to kill someone in their sleep.”          She clicked on a link titled
       “https://thoughtcatalog.com/juliet-escoria/2013/12/16-steps-to-kill-
       someone-and-not-get-caught/.[“]

             On January 5, 2018[,] investigators returned to 149 Creekview Circle
       to execute another search warrant. During the search[,] investigators
       turned to a Ford Mustang parked in a detached garage registered to the
Ex parte Garner                                                                        Page 5
       decedent, and primary transportation for Sandra Garner. We found the
       vehicle to be locked and asked Sandra for the keys to the vehicle. Sandra
       responded by telling us we seized the keys to the car and she no longer had
       them. From a previous search, investigators knew there was an additional
       key to the vehicle exist [sic] and should’ve been accessible. Sandra
       eventually went in the home and retrieved a key and unlocked the vehicle.
       Under the driver’s seat[,] investigators found a Taurus .38 Special revolver
       contained within two plastic bags, wrapped in a paper towel. Investigators
       searched the car on the previous search warrant and knew the gun had to
       have been placed in the car after the first search warrant.

              Projectiles and the recovered Taurus .38 were taken to the Texas
       Department of Public Safety Crime Lab in Garland for analysis. On January
       10, 2018[,] investigators received a crime lab report indicating the projectiles
       used to kill Jon Garner were a match, and were fired from the gun recovered
       from Sandra Garner’s car.

       The foregoing evidence, if true, is strong evidence of Garner’s guilt, the

premeditated nature of the offense, and indicative of Garner’s alleged attempts to hide

incriminating evidence—all of which carry the high potential for significant punishment.

Furthermore, we note that the $1,000,000 bail amount has been approved by this Court

in other felony-murder cases. See Ex parte Brossett, 524 S.W.3d 273, 276-77 (Tex. App.—

Waco 2016, pet. ref’d) (setting bail at $1 million in a capital murder case) (citing Ex parte

Lewis, No. 10-13-00448-CR, 2014 Tex. App. LEXIS 6635, at **5-6 (Tex. App.—Waco June

19, 2014, pet. ref’d) (mem. op., not designated for publication) (upholding bail set at $1

million in a capital murder case)). We therefore conclude that this factor favors the denial

of the reduction of the bail amount.

B.     Ability to Make Bail



Ex parte Garner                                                                           Page 6
       The accused's ability to make bail is merely one factor to be considered in

determining the appropriate amount of bail. See TEX. CODE CRIM. PROC. ANN. art. 17.15(4);

Ex parte Scott, 122 S.W.3d 866, 870 (Tex. App.—Fort Worth 2003, no pet.). Simply because

a defendant cannot meet the bail set by the trial court does not automatically render it

excessive. Ex parte Scott, 122 S.W.3d at 870. “If the ability to make bond in a specified

amount controlled, then the role of the trial court in setting bond would be completely

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

bond should be.” Id.

       Garner offered no evidence at the hearing on her habeas application

demonstrating how the bail amount was used as an instrument of oppression. However,

she did proffer testimony regarding her ability to make bail. Despite testimony from both

Garner and her daughter that Garner could not make bail at the set amount, the record

also contains testimony that Garner and her deceased husband had recently purchased a

home for $260,000 and put an additional $200,000 in cash into upgrades to the house,

including a pool and solar panels. Garner did testify that the home is encumbered by a

$200,000 mortgage; however, when considering the equity and the upgrades to the home,

there is substantial collateral to obtain a loan. Furthermore, Garner admitted to owning

three vehicles, including a 2016 pickup truck and a 2018 sedan that she owned outright.

She also acknowledged having a credit line of at least $15,000, at least $10,000 in a

checking account, and that family members could provide $1,500.


Ex parte Garner                                                                    Page 7
       In any event, Garner’s daughter testified that Garner cannot access any of these

assets because they are a part of Garner’s husband’s estate and because of a wrongful-

death lawsuit that has been filed. But Garner’s daughter also stated that she had not

spoken to an attorney or someone associated with the estate, nor has she been served

with papers regarding the lawsuit. Garner’s purported inability to access the assets for

the purpose of bail was simply Garner’s daughter’s personal opinion on the matter.

Moreover, Garner’s daughter noted that her brother handled financial matters for Garner,

and he was not called to testify.

       “To show that [s]he is unable to make bail, a defendant generally must show that

[her] funds and [her] family’s funds have been exhausted.” Milner v. State, 263 S.W.3d

146, 149 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (internal citations omitted).

“Unless [s]he has shown that [her] funds and those of [her] family have been exhausted,

a defendant must usually show that [s]he made an unsuccessful effort to furnish bail

before bail can be determined to be excessive.” Id. (internal citations omitted). As shown

above, Garner’s assets have not been exhausted, and she has made no showing of her

efforts to furnish bail. Accordingly, this factor favors the denial of the reduction of the

bail amount.

C.     Safety of the Victim and the Community

       Regarding the safety of the community, the record shows that Garner has made

threats to commit suicide, which necessitated that she submit to an emergency psychiatric


Ex parte Garner                                                                      Page 8
evaluation after the police questioned her. Both Chief Norton and Shane Thompson,

Criminal Investigation Lieutenant with the Ellis County Sheriff’s Office, testified that

Garner’s threats of suicide rendered her a flight risk and a danger to the community. See

Clemons v. State, 220 S.W.3d 176, 179 (Tex. App.—Eastland 2007, no pet.) (per curiam)

(holding that a $400,000 bond was not unconstitutionally excessive, considering, among

other things, that the charged crimes were serious with potential lengthy sentences, and

the defendant has expressed thoughts of suicide, as well as a desire to flee to Mexico with

family—both of which exhibit the defendant’s “lack of regard for his community ties (as

expressed by his desire to flee to Mexico and his thoughts of suicide)”); see also Ex parte

Shahwan, No. 02-14-0032-CR, 2014 Tex. App. LEXIS 7279, at *22 (Tex. App.—Fort Worth

July 3, 2014, no pet.) (suggesting that suicidal thoughts can support a finding that a

person is a flight risk).

       Additionally, Garner indicated that, upon release, she wants to return to her

house, which is situated across the street from the deceased’s parents. Garner’s in-laws

do not want to see Garner and have given her a criminal trespass warning to stay away

from them. Chief Norton also recounted that Garner’s son, Wesley Miller, had stated that

he did not want to stay in the house with Garner “because he didn’t know what she was

going to do.” On the other hand, Garner’s daughter testified that she is no danger to the

community, especially considering Garner has multiple sclerosis. Nevertheless, we

conclude that this factor favors the trial court’s denial of bail reduction.


Ex parte Garner                                                                      Page 9
D.     Community and Family Ties and Other Factors

       The record evidence demonstrates that Garner has some family ties to the area.

She testified that she lived in Maypearl, Ellis County, Texas, at the time of the offense and

that she has lived in the Dallas or Paris, Texas, areas the rest of her life. Garner’s mother

lives in Ellis County, and her daughter lives two hours away in Paris. Furthermore, we

note that the evidence shows that Garner has no prior criminal history or prior bonds to

show compliance history. These factors weigh slightly in favor of reducing Garner’s bail.

E.     Summary

       In determining whether the trial court abused its discretion by denying Garner’s

application for writ of habeas corpus, we must decide whether the trial court acted

without reference to any guiding rules or principles; or, in other words, we must decide

whether the trial court’s action was arbitrary or unreasonable. See Montgomery v. State,

810 S.W.2d 372, 380 (Tex. Crim. App. 1990). In doing so, we must keep in mind that

merely because the trial court decided a matter within its discretion in a different manner

than this Court would in a similar circumstance does not demonstrate that an abuse of

discretion has occurred. Id. Therefore, affording due deference to the trial court’s ruling

and considering the article 17.15 factors outlined above, we hold that Garner has failed

to demonstrate that the bail amount is excessive. See TEX. CODE CRIM. PROC. ANN. art.

17.15.; see also Ex parte Rubac, 611 S.W.2d at 850; Ex parte Scott, 122 S.W.3d at 868.

Accordingly, we cannot say that the trial court abused its discretion in setting Garner’s


Ex parte Garner                                                                       Page 10
bail at $1,000,000 in this felony-murder case. See Ex parte Rubac, 611 S.W.2d at 849-50. We

overrule Garner’s sole issue.

                                      IV.      CONCLUSION

       We affirm the judgment of the trial court.




                                                 AL SCOGGINS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
*(Chief Justice Gray dissenting with a note)
Affirmed
Opinion delivered and filed July 18, 2018
Do not publish
[CR25]

*(Chief Justice Gray dissents. A separate opinion will not issue.)




Ex parte Garner                                                                     Page 11
