                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-15-00301-CR

                        EX PARTE JAMES REID BENTLEY



                            From the 413th District Court
                               Johnson County, Texas
                               Trial Court No. F49700


                            MEMORANDUM OPINION


       James Reid Bentley was arrested after he was indicted on six counts of possession

of child pornography. TEX. PENAL CODE ANN. § 43.26(d) (West 2011). His bail was set at

$250,000. Soon after his arrest, Bentley filed a pre-trial petition for writ of habeas

corpus, seeking a reduction in the set amount of bail. After a hearing, the trial court

denied the petition and again set Bentley’s bail at $250,000. Because the trial court

abused its discretion in setting bail at $250,000, the trial court’s Order on Writ of Habeas

Corpus is reversed. Judgment is rendered that bail for Bentley is set at $50,000, and this

case is remanded to the trial court to set conditions of bail.
BAIL

       In two issues, Bentley asserts that the trial court abused its discretion in setting

bail and that the bail set is excessive. We discuss these issues together.

Law

       The Texas Constitution guarantees that "all prisoners shall be bailable by

sufficient sureties, unless for capital offenses, when the proof is evident." TEX. CONST.

art. I, § 11; see TEX. CODE CRIM. PROC. ANN. art. 1.07 (West 2005). Thus, for a non-capital

offense, a defendant is entitled to reasonable bail, that is, bail that is not excessive. See

U.S. CONST. amend. VIII (excessive bail shall not be required); TEX. CONST. art. I, § 13

(same); TEX. CODE CRIM. PROC. ANN. art. 1.09 (West 2005) (same).

       Texas Code of Criminal Procedure article 17.15 is a legislative effort to

implement the constitutional right to bail. TEX. CODE CRIM. PROC. ANN. art. 17.15 (West

2015); Ex parte Beard, 92 S.W.3d 566, 568 (Tex. App.—Austin 2002, pet. ref’d). Article

17.15 commits the setting of bail to the discretion of the court or magistrate, but sets

forth five rules that, together with the constitution, govern the exercise of that

discretion. Id. Bail should be sufficiently high to give reasonable assurance that the

undertaking will be complied with, but not so high as to make it an instrument of

oppression. Id. art. 17.15(1), (2); see Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim.

App. 1977) (primary purpose of pretrial bail is to secure presence of defendant); Beard,

92 S.W.3d at 568. The nature of the offense and the circumstances under which it was


Ex parte Bentley                                                                       Page 2
committed are factors to be considered in setting bail, as is the future safety of the

community and the victim of the alleged offense. TEX. CODE CRIM. PROC. ANN. art.

17.15(3), (5) (West 2015). The defendant's ability to make bail also must be considered,

but is not of itself controlling. Id. art. 17.15(4); Ex parte Gentry, 615 S.W.2d 228, 231 (Tex.

Crim. App. 1981).

       Courts may also consider the following set of factors when assessing whether the

amount of bail is reasonable: (1) the defendant's work record; (2) the defendant's family

and community ties; (3) the defendant's length of residency; (4) the defendant's prior

criminal record; (5) the defendant's conformity with previous bond conditions; (6) the

existence of other outstanding bonds, if any; and (7) the aggravating circumstances

alleged to have been involved in the charged offense. See Ex parte Rubac, 611 S.W.2d

848, 849-50 (Tex. Crim. App. [Panel Op.] 1981).

Standard of Review

       We review a trial court's decision that sets a bail amount for an abuse of

discretion. See Rubac, 611 S.W.2d at 850; Ex parte Gonzalez, 383 S.W.3d 160, 161 (Tex.

App.—San Antonio 2012, pet. ref'd). We examine the record to determine whether the

trial court considered the relevant statutory and common law factors and set a bail

amount that was not excessive. See Gonzalez, 383 S.W.3d at 161-62; Montalvo v. State, 315

S.W.3d 588, 592 (Tex. App.—Houston [1st Dist.] 2010, no pet.). The appellant has the

burden to show that the amount of bail is excessive. Rubac, 611 S.W.2d at 849; Gonzalez,


Ex parte Bentley                                                                         Page 3
383 S.W.3d at 161. If our review shows the trial court exercised its discretion within the

constraints of the United States Constitution, the Texas Constitution, the statutory

requirements, and the common law factors, we will not overturn its decision.            See

Gonzalez, 383 S.W.3d at 161-62; 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, 379-80 (Tex. Crim.

App. 1990)).

BAIL REDUCTION HEARING

       Bentley was charged with six counts of possession of child pornography. His

bail was set at $250,000. Bentley’s wife, Kathy, took the stand first and testified that she

had been married to Bentley for almost 30 years. They had lived in the same house for

about 25 years and had two grown daughters. Bentley’s parents and other family

members live in the area. Kathy testified that she had worked at the same job for about

18 years but only earned about $1,000 a month. She stated that Bentley was earning the

primary income for the family, making about $3,500 a month. They had less than $5,000

in checking and savings. Kathy had called eight different bonding companies and

could not afford the $25,000 required to cover the amount necessary to post bond.

Kathy was aware of the investigation regarding the charges against Bentley and stated

that even though Bentley was also aware of the investigation over the course of the last

11 months, Bentley did not flee the jurisdiction of the court and did not take steps to

hide. She further testified that Bentley had been in counselling for the last 11 months.


Ex parte Bentley                                                                      Page 4
       Bentley then took the stand and echoed many of his wife’s statements regarding

where he lived and how long he had lived there, the close proximity of his family, and

that he could not afford to post a $250,000 bond. He had no property or securities with

which to post the bond. Bentley had been aware in the last 10 to 11 months that an

investigation was ongoing regarding the charges pending against him. He stated he

had no prior felony convictions or arrests. He would agree to 1) wear a leg monitor or

remain in home confinement, 2) submit to drug testing, and 3) report daily or weekly to

a supervision officer. Bentley had worked doing graphic layouts for ads for yellow

page companies. Before that, he worked for another yellow page service doing the

same type of work. His total years in this profession was 15 or 16 years. Bentley

acknowledged that if he was released on bond, he would return to his job and would

need internet access to perform his job. He also acknowledged that the allegations

against him related to his access to the internet.

       Bentley argued to the trial court that he could not raise the funds for the bail as

set and that he met other requirements, such as ties to the community and promising to

comply with bond conditions, for the purpose of lowering his bail. He asked the trial

court to lower bail to an amount that he could pay so that he could be out of jail during

the pendency of the trial. The State argued to keep bail set at $250,000 because Bentley

was indicted on six counts and the sentences could be stacked; thus, for the State, it was




Ex parte Bentley                                                                    Page 5
a case with high ramifications. The State also argued that, as an aggravating factor,

Bentley hid some of his pornography in different areas of a church.

       Ultimately, the trial court expressed its concern about sending Bentley home to

make a living on a computer with internet access.         The bail amount was kept at

$250,000, and as conditions of bail, the trial court ordered that Bentley could not use any

computers or have any internet access in any location in which he was to reside.

Another condition was that Bentley would be on house arrest with a GPS monitor. The

trial court said it would consider a bail reduction only if Bentley could “come up with a

plan to gain employment that doesn't use the requirement of the Internet or a computer

at his house.”

ANALYSIS

       We agree that possession of child pornography is a serious offense.             See

Savery v. State, 767 S.W.2d 242, 245 (Tex. App.—Beaumont 1989, no pet.) (“…child

pornography is even more damaging to the child victim than sexual abuse or

prostitution, inasmuch as the helpless child's actions are reduced and memorialized on

a recording or film and that type of pornography may haunt and damage the child for

many long years in the future after the original misdeed occurred. Indeed, the effect is

devastating and of long duration on the child who has been photographed performing

certain acts. That child must go through his adult life with the knowledge that the

recording or picture or photograph or film exists and may, at some time in later years,


Ex parte Bentley                                                                     Page 6
be distributed or circulated.”). In this case, possession of child pornography is a third

degree felony and carries a maximum punishment of 10 years. TEX. PENAL CODE ANN.

§§ 3.03(b)(3), 43.26(d) (West 2011).    If stacked, Bentley could receive a maximum

punishment of 60 years.

       That being said, the purpose of setting a bail is to make sure the defendant

appears when called to court, not to be oppressive. For this defendant, who has never

been convicted or arrested of a felony before, has significant ties to the community in

that his family lives in the area and he has lived in the community for a significant

amount of time, has a stable work history, albeit using the internet, had not fled the

jurisdiction of the court, even knowing about the investigation for at least 10 months,

and had been participating in counseling for at least 11 months, bail of $250,000 is

excessive. Further, the aggravating factor argued by the State, that Bentley kept some of

the pornography at a church, does not, on this record, appear to warrant an increase in

the amount of bail considering the purpose of bail. There was no testimony as to the

type of medium in which the pornography was hidden, whether it was printed out, on

a thumb drive, on a church computer, or whether it was easily accessible to members of

the church or others attending the church by casual observation.

       Accordingly, after our review of the record pursuant to the standards set out

above, we hold the trial court abused its discretion in setting bail at $250,000. Bentley’s

issues are sustained.


Ex parte Bentley                                                                     Page 7
CONCLUSION

       The trial court’s order denying the writ of habeas corpus is reversed. We render

judgment setting Bentley’s bail at $50,000 and remand the case to the trial court to set

conditions of bail that would adequately address any of the trial court’s concerns,

specifically Bentley’s access to the internet through Bentley’s choice of employment.1




                                               TOM GRAY
                                               Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Justice Davis dissents without an opinion)
Reversed and rendered in part and remanded in part
Opinion delivered and filed December 31, 2015
Do not publish
[OT06]




1 There are many methods that might satisfy the trial court’s concerns. These methods would include
restriction of internet access through one computer with key-stroke recording software and an agreement
for routine and surprise inspections. The inspections could be in person or remotely conducted.

Ex parte Bentley                                                                                Page 8
