                                                                                         PD-0479-15
                  PD-0479-15                                            COURT OF CRIMINAL APPEALS
                                                                                        AUSTIN, TEXAS
                                                                      Transmitted 4/30/2015 12:40:21 PM
                                                                         Accepted 5/1/2015 10:29:59 AM
                            NO. _________________                                        ABEL ACOSTA
                                                                                                 CLERK



                  IN THE COURT OF CRIMINAL APPEALS
                               OF TEXAS
                         ______________________

                              EX PARTE
                       RODARRIAN D. ARMSTRONG

                           ______________________

                   On appeal from the Ninth Judicial District
                       Court of Appeals, Beaumont, Texas
                      Appellate Cause No. 09-14-00522-CR
                                       and
                   st
              The 1 Judicial District Court of Jasper County, Texas
                              Cause No. 12,170JD
                          ______________________

           APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                        ______________________
                             Dennis D. Horn
                             SBN: 24034489
                            Attorney At Law
                              1075 CR 619
                         Kirbyville, Texas 75956
                             (409) 420-0771
                           (409) 420-0772 fax
                          horden@hotmail.com
                     ATTORNEY FOR APPELLANT




                                                            May 1, 2015


ORAL ARGUMENT IS NOT REQUESTED
UNLESS A STATE REQUEST FOR ORAL
ARGUMENT IS GRANTED
                          IDENTITY OF PARTIES AND COUNSEL


  The following is a complete list of all parties to the trial court's appealable order as well as the
names and addresses of all trial and appellate counsel.

PARTIES

Appellee: The State of Texas

Appellee Counsel: Steve Hollis
                  District Attorney
                  121 N. Austin, Room 121
                  Jasper, Texas 75951

Appellant: Rodarrian D. Armstrong
           101 Burch Street
           Jasper, Texas 75951

Appellant Counsel: Dennis D. Horn
                   Attorney At Law
                   1075 CR 619
                   Kirbyville, Texas 75956


Trial Court: The Honorable Craig M. Mixson
             District Judge
             121 N. Austin, Room 205
             Jasper, Texas 75951




                                                  2
                                                    TABLE OF CONTENTS


INDEX OF AUTHORITIES.............................................................................. 4

STATEMENT ON ORAL ARGUMENT...........................................................5

STATEMENT OF THE CASE.......................................................................... 5

STATEMENT OF PROCEDURAL HISTORY................................................ 5

GROUND FOR REVIEW- EXCESSIVE BOND............................................. 6

ARGUMENT .................................................................................................... 5

PRAYER.............................................................................................................8

CERTIFICATE OF DELIVERY........................................................................ 9

CERTIFICATE OF COMPLIANCE ................................................................. 9

APPENDIX .......................................................................................................10




                                                                      3
                                                  INDEX OF AUTHORITIES


CASES:


Ex parte Davis, 574 S.W. 2d 166, 168 (Tex.Crim.App. 1978) ...........................................6
Ex parte Prelow, 929 S.W.2d 54, 55 (Tex.App.–San Antonio 1996, no pet.) ....................6
Trammel v. State, 529 S.W.2d 528, 529-30 (Tex.Crim.App. 1975) ...................................6


TEXAS CODES:

Tex. Code of Crim. Proc., Art. 1.09 .....................................................................................6
Tex. Code of Crim. Proc., Art. 17.01 ...................................................................................6
Tex. Code of Crim. Proc., Art. 17.15 ...............................................................................6,7


TEXAS CONSTITUTION

Article 1, Sections 11, 13 ....................................................................................................6

UNITED STATES CONSTITUTION

8th Amendment ....................................................................................................................6




                                                                      4
                           STATEMENT ON ORAL ARGUMENT

     The issue in this matter is straightforward, unambiguous, and can be effectively addressed

in written briefs without oral argument. Oral argument is therefore waived unless the State is

granted oral argument. If the State is granted oral argument, Appellant request oral argument to

respond to the State’s oral argument.

                                STATEMENT OF THE CASE

     On May 28, 2014, Jasper city police responded to a shooting call to find Obrien Parks (victim)

suffering from a gunshot wound. Interviews with witnesses alleged that Appellant, an eighteen

year old male, and the victim had words earlier in the day. Appellant later returned to confront

the victim at his residence, at which time the victim displayed a firearm at Appellant. Appellant

left but returned to the victim’s residence to see him pointing the same firearm out the window at

Appellant. Appellant retrieved a shotgun from a vehicle and shot one time at the victim striking

him in the face and chest. The victim was later pronounced dead upon arrival at the hospital.

                        STATEMENT OF PROCEDURAL HISTORY

   Appellant is currently a prisoner held in the Jasper County jail after being arrested on May

28, 2014, and charged with murder. Defendant’s original bond was set at $1,000,000.00. On

October 6, 2014, Appellant filed a Motion to Set Reasonable Bail. A hearing was held on

October 10, 2014, and the Court set Appellant’s bond at $800,000.00. On November 7, 2014,

Appellant filed his Writ of Habeas Corpus Motion to Set Reasonable Bail. (CR1,p.28-32). After

hearing Appellant’s Application on November 20, 2014, the trial court continued Appellant’s

bond at $800,000.00 (CR, p.58). On December 3, 2014, Appellant filed his Notice Of Appeal.

(CR, p.53). On April 1, 2015, the Ninth Court of Appeals affirmed the bail decision of the trial


                                                 5
court.

                                     GROUND FOR REVIEW



(1) The trial erred in setting Appellant’s bond at $800,000.00. The amount of bond set in this

case is in direct conflict with the Texas Code of Criminal Procedure, Texas Constitution,

U.S. Constitution, and current case law.

                                            ARGUMENT

    Pursuant to Texas Code of Criminal Procedure (TCCP) Article 1.09, excessive bail shall not be

required. “Article 1.09 ... proscribes excessive bail. The primary purpose of an appearance bond

is to secure the presence of the defendant in court for the trial of the offense charged. Bail should

be set sufficiently high to give reasonable assurance that the defendant will appear at trial, but it

should not be used as an instrument of oppression.” Ex parte Prelow, 929 S.W.2d 54, 55

(Tex.App.–San Antonio 1996, no pet.) Additionally, Article 17.01 of the TCCP states that “bail

is the security given by the accused that he will appear and answer before the proper court the

accusation brought against him, and includes a bail bond or a person bond.” The general rule

favors the allowance of bail. Thus, presumptions are not to be indulged against the applicant, and

the power to deny or require bail will not be used as an instrument of oppression. Ex parte Davis,

574 S.W. 2d 166, 168 (Tex.Crim.App. 1978) The purpose of bail is to secure the presence of an

accused upon trial of an accusation against him. It is not a revenue measure intended to be a

substitution for a fine, but is intended to secure the trial of the alleged offender rather than turn

his securities or those of his bondsman into a penalty. Trammel v. State, 529 S.W.2d 528, 529-30

(Tex.Crim.App. 1975) “The power to require bail is not to be so used as to make it an


                                                   6
instrument of oppression.” Article 17.15(2) TCCP. Under the Eighth Amendment of the United

States Constitution and Article 1, Sections 11 and 13 of the Texas Constitution, all prisoners

shall be bailable by sufficient sureties and excessive bail shall not be required.

 Appellant was arrested on May 28, 2014, and charged with murder. Appellant was arraigned on the

charge and bond was set at $1,000,000.00, but was subsequently reduced to $800,000.00.

Appellant filed a Writ of Habeas Corpus Motion for Reasonable Bail and a hearing was held on

November 20, 2014. At this hearing Appellant testified that he had lived in Jasper all his life, his

father also lives in Jasper, and that if he were to make bond, he would stay at an aunt’s house in

Jasper. Appellant stated that his family nor anyone else has the ability to get a loan or anything

else to obtain funds for a bond, he did not have any way to secure a loan or any other means to

make a $800,000.00 bond.

Article 17.15 of the TCCP states the rules for fixing the amount of bail. Under subsection (1), bail shall

be sufficiently high to give reasonable assurance the defendant will appear, however subsection

(2) states that bail is not to be so used an instrument of oppression. Additionally, pursuant to

subsection (3), the nature of the offense and the circumstances under which it was committed are

to be considered, and subsection (4) states the ability to make bail is to be regarded. Finally,

under subsection (5), the future safety of the victim and the community shall be considered.

  Appellant’s bond is currently set at eight hundred thousand dollars for a first degree felony. Although

murder is a very serious charge, there appear to be extenuating circumstances in this case, and no

evidence was presented of any prior criminal history on Appellant or that he might be a flight

risk. He does not have any money and his ability to secure funds to make any form of bond are

severely limited. Additionally, the State did not raise any concerns about the future safety of the


                                                  7
     community for this appears to be an isolated incident with no reference to prior acts of violence

     by Appellant. As stated in the U.S. Constitution, the Texas Constitution, and the TCCP the

     purpose of bond is: to secure the appearance of the defendant in court. Appellant stated that he

     nor any of his family members had the ability to make a bond of that amount. Appellant has

     resided in this city all his life with family members in the community and would reside with an

     aunt if he made bond. These close ties with the county favor a reasonable bond in conformance

     with amounts set in similar first degree felony cases.

The amount of bond set in this case is in direct conflict with the above listed code sections, articles, and case

     law. To set bond at $800,000.00 on a first degree felony on a defendant with no prior criminal

     history or evidence of a flight risk is using bond as a form of oppression and is totally out of line

     with other bonds set in this county for this degree of felony.

                                                PRAYER

WHEREFORE, Appellant prays that his petition for discretionary review be granted and that, on hearing, the

     judgment of the Ninth Court of Appeals by reversed and vacated and the cause remanded to the

     trial court with instructions to release Appellant on a personal bond or set bail in an amount

     which this Court determines Appellant can clearly afford.

                                                              Respectfully submitted,



                                                           /s/ Dennis D. Horn
                                                               Attorney For Appellant
                                                               SBN: 24034489
                                                               1075 CR 619
                                                               Kirbyville, Texas 75956
                                                               Tel:(409) 420-0771
                                                               Fax: (409) 420-0772


                                                       8
                                                           horden@hotmail.com




                                           Certificate of Delivery

         This is to certify that, on this date, the undersigned served this Petition for Discretionary
     Review on Steven M. Hollis, District Attorney, by hand delivery of same to the office of the
     Criminal District Attorney for Jasper County, Texas, at 121 N. Austin, Room 101, Jasper, TX
     75951.


                                     Signed this 30th day of April, 2015.


                                                            /s/_________________________
                                                           Dennis D. Horn
                                                           Attorney For Appellant



                             RULE 9.4 CERTIFICATE OF COMPLIANCE

Using the WordPerfect X7 word count utility, I have determined that this document contains 790 words, not
    including the “caption, identity of parties and counsel, statement regarding oral argument, table
    of contents, index of authorities, statement of the case, statement of issues presented, statement
    of jurisdiction, statement of procedural history, signature, proof of service certification,
    certificate of compliance, and appendix.” TRAP 9.4.

                                                           /s/___________________________
                                                           Dennis D. Horn




                                                APPENDIX


                                                      9
Attached hereto is a true and correct copy of the opinion of the Ninth Court of Appeals.




                                               10
                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                           ____________________
                             NO. 09-14-00522-CR
                           ____________________


                EX PARTE RODARRION D. ARMSTRONG

_______________________________________________________           ______________

                On Appeal from the 1A Judicial District Court
                            Jasper County, Texas
                         Trial Cause No. 12170JD
________________________________________________________           _____________

                         MEMORANDUM OPINION

      Appellant Rodarrion D. Armstrong (appellant or Armstrong) appeals the

denial of his pretrial habeas corpus application requesting bail reduction. We

affirm.

                                  BACKGROUND

      According to appellant’s brief,1 Jasper City Police responded to a call about

a shooting, where they found the victim, Obrien Parks (Obrien), suffering from a


      1
       This matter involves a pretrial issue and therefore, solely for purposes of
our review on this matter, any references to the underlying facts of the alleged
                                        1
gunshot wound. Witnesses allege that Armstrong, an eighteen-year-old male, and

Obrien had a disagreement earlier that day, and Armstrong confronted Obrien at

Obrien’s residence. Obrien allegedly displayed a firearm at Armstrong, and

Armstrong left. Later, Armstrong returned to the victim’s residence, where Obrien

pointed the firearm out the window at Armstrong. Armstrong then retrieved a

shotgun from a vehicle and fired one shot at Obrien, striking Obrien in the face and

chest. Obrien was later pronounced dead on arrival at the hospital. Armstrong was

arrested and indicted for first-degree felony murder. See Tex. Penal Code Ann.

§19.02(b), (c) (West 2011).

      The trial court originally set bail at one million dollars. Armstrong filed a

Motion to Set Reasonable Bail. After a hearing on the motion, the trial court

reduced Armstrong’s bond to eight hundred thousand dollars. Armstrong then filed

an Application for a Writ of Habeas Corpus Seeking a Reasonable Bond.

      At the habeas hearing, Armstrong testified that he was incarcerated in the

Jasper County Jail and that he had no means to secure an $800,000 bond or a loan.

He testified that his family members do not have any money, they have not visited

him in jail, and he is not going to get any help from his family. According to

Armstrong’s testimony, he has lived in Jasper all his life, and if he were to make
_________________________
offense as stated in this Memorandum Opinion will be taken from Armstrong’s
brief on appeal.
                                         2
bond, the only place he could go would be his aunt’s home in Jasper. However,

Armstrong also testified that his mother lives in Harris County. The trial court gave

the State “a little latitude” in cross-examining Armstrong regarding the facts of the

offense and instructed the State, “Don’t get too much into the facts of the case.”

Nevertheless, the parties agreed on the record that Armstrong was under

indictment for murder. The trial court denied Armstrong’s request to reduce bail.

The trial court continued Armstrong’s bond at eight hundred thousand dollars. On

appeal, Armstrong argues the bail is excessive under the Texas Code of Criminal

Procedure and the United States and Texas Constitutions. 2

                   REVIEW OF TRIAL COURT’S SETTING OF BAIL

      We review a trial court’s ruling on the setting of bail under an abuse of

discretion standard of review. See Tex. Code Crim. Proc. Ann. art. 17.15 (West

2005) (affording a trial court discretion to set bail); Ex parte Rubac, 611 S.W.2d

848, 850 (Tex. Crim. App. [Panel Op.] 1981). The defendant has the burden to

show the bail set by the trial court is excessive. Ex parte Rodriguez. 595 S.W.2d

549, 550 (Tex. Crim. App. [Panel Op.] 1980). The trial court’s ruling will not be

disturbed if it is within the zone of reasonable disagreement. Clemons v. State, 220
      2
       The record includes limited information regarding the circumstances under
which the alleged offense occurred, and there is no evidence in the record before us
as to whether Armstrong had a prior criminal record, whether he had a prior work
history, or if there were any previous and outstanding bail amounts.
                                         3
S.W.3d 176, 178 (Tex. App.—Eastland 2007, no pet.) (citing Montgomery v. State,

810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g)). The United States

and Texas Constitutions prohibit excessive bail. U.S. Const. amends. VIII, XIV;

Tex. Const. art. I, §§ 11, 13. Additionally, the Code of Criminal Procedure sets

forth rules for the trial court in setting bail. See Tex. Code Crim. Proc. Ann. art.

17.15. Other factors that may be considered in determining the amount of bail

include family and community ties, length of residency, aggravating factors

involved in the offense, the defendant’s work history, the defendant’s prior

criminal record, and previous and outstanding bail. Ex parte Rubac, 611 S.W.2d at

849.

       An appearance bond secures the presence of a defendant in court for trial. Ex

parte Rodriguez, 595 S.W.2d at 550. The trial court should set bail sufficient to

provide reasonable assurance the defendant will appear at trial, but not so high as

to be oppressive. Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. 1980). The

right to a reasonable bail is protected by the United States and Texas Constitutions.

Ex parte Sabur-Smith, 73 S.W.3d 436, 439 (Tex. App.—Houston [1st Dist.] 2002,

no pet.). Bail is excessive if it is “set in an amount greater than [what] is

reasonably necessary to satisfy the government’s legitimate interests.” Ex parte

Beard, 92 S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref’d) (citing United

                                         4
States v. Salerno, 481 U.S. 739, 753-54 (1987)). When setting the amount of bail,

the trial court weighs the State’s interest in assuring the defendant's appearance at

trial against the defendant’s presumption of innocence. Id. The amount of bail may

be deemed oppressive when the trial court sets the bail at an amount “for the

express purpose of forcing [a defendant] to remain incarcerated.” Ex parte Harris,

733 S.W.2d 712, 714 (Tex. App.—Austin 1987, no pet.).

                                      ANALYSIS

      To determine whether the trial court abused its discretion, we consider the

rules found in article 17.15 of the Code of Criminal Procedure as well as the

factors set out in Rubac. See Tex. Code Crim. Proc. Ann. art. 17.15; Ex parte

Rubac, 611 S.W.2d at 849. The habeas applicant has the burden to establish that

the bail is excessive. Montalvo v. State, 315 S.W.3d 588, 592-93 (Tex. App.—

Houston [1st Dist.] 2010, no pet.).

      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 at 550.

The amount of bail must be high enough to give reasonable assurance that the

accused will appear, but the power to require bail should not be used as an

instrument of oppression. Id.; Ex parte Ivey, 594 S.W.2d at 99; Ex parte Harris,

733 S.W.2d at 714. According to the record before us, Armstrong did not present

                                         5
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. Furthermore, Armstrong

presented no evidence about any discussions with bail bondsmen or any evidence

about how much Armstrong believes the bail should be or what amount he could

satisfy. Montalvo, 315 S.W.3d at 595. The trial court could have believed or

disbelieved all or part of Armstrong’s testimony, and could accord that testimony

with the weight the trial court thought the testimony warranted. See Tex. Code

Crim. Proc. Ann. art. 36.13 (West 2009), art. 38.04 (West 1979); Ex parte

Mowbray, 943 S.W.2d 461, 465 (Tex. Crim. App. 1996).

      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). 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, a lengthy prison

sentence following a conviction is probable. Ex parte Hulin, 31 S.W.3d 754, 760

(Tex. App.—Houston [1st Dist.] 2000, no pet.). Therefore, the pretrial bail must be

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

prospect of a lengthy sentence might decrease the chance that the accused will

appear. See id. at 761.

                                         6
      The record reflects that the State indicted Armstrong for intentionally or

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

felony. See Tex. Penal Code Ann. § 19.02(b), (c). According to Armstrong’s brief,

he shot Obrien once, striking him in the face and chest. As a first-degree felony,

the offense carries a sentence of five to ninety-nine years or life imprisonment, and

a fine not to exceed $10,000. Id. § 12.32 (West 2011). Thus, the record reflects that

the nature of the offense is very serious and it carries a possible life sentence.

      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); Golden v. State, 288 S.W.3d 516, 519 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d). This is true even if the accused is determined to be indigent. Ex

parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. [Panel Op.] 1980).

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

Although the record reflects that the trial court appointed Armstrong counsel based

on his indigence, Armstrong did not present any evidence regarding his attempts to

secure bond or his work history. The accused’s inability to make bail, even to the

point of indigence, does not control over the other factors because if the ability to

make bail controlled, then the role of the trial court would be completely

                                           7
eliminated, and the accused would be in the position of determining his own bail.

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

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

      As noted previously, a trial court may also consider the defendant’s work

history, prior criminal record, his family and community ties, length of residency,

aggravating factors in the offense, and previous and outstanding bail. Ex parte

Rubac, 611 S.W.2d at 849. Armstrong presented no evidence regarding his work

history or his prior criminal record, or lack thereof.3 Although he testified he has

lived in Jasper all his life and the only place he could go if released on bond would

be his aunt’s home in Jasper, Armstrong admitted that none of his family members

had visited him while in prison. Therefore, the Rubac factors do not weigh in favor

of a reduction of his bail.

                                   CONCLUSION

      Armstrong bears the burden of demonstrating that the amount of the bond is

excessive. See Ex parte Rubac, 611 S.W.2d at 849; Ex parte Rodriguez, 595

S.W.2d at 550. Armstrong failed to meet his burden. We cannot say the trial

court’s denial of Armstrong’s application for writ of habeas corpus seeking a bail



      3
       We note that appellant asserts in his brief that he has no prior criminal
history, however such evidence was not presented at the hearing.
                                         8
reduction was outside the zone of reasonable disagreement. Accordingly, the trial

court did not abuse its discretion. We affirm the trial court’s order.

      AFFIRMED.



                                                      _________________________
                                                         LEANNE JOHNSON
                                                               Justice

Submitted on March 18, 2015
Opinion Delivered April 1, 2015
Do Not Publish

Before Kreger, Horton, and Johnson, JJ.




                                           9
