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

         ______________________________

               No. 06-08-00042-CR
         ______________________________



   EX PARTE: DESMOND DEWAYNE JACKSON




    On Appeal from the 188th Judicial District Court
                 Gregg County, Texas
               Trial Court No. 1539-H




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

          By his pretrial writ of habeas corpus, Desmond Dewayne Jackson sought to have his

$750,000.00 bail1 reduced in connection with his pending charge of murder during the course of a

robbery. After a brief hearing, the trial court denied Jackson's motion without altering its bond

requirement. We affirm that denial.

          "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. [Panel Op.] 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. [Panel Op.] 1980). Bail

operates to 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) (Clinton, J., dissenting in part / concurring in part). Nevertheless,

the burden of proof is on the defendant to show that 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. See TEX . CODE CRIM . PROC. ANN . art. 17.15 (Vernon 2005). We will reverse



          1
        Initially, the trial court denied bond. Following a hearing on Jackson's first petition for writ
of habeas corpus, the court set his bond at $750,000.00. Jackson then filed this second petition
seeking a reduction of that amount.

                                                   2
the trial court's decision only if the court abused its discretion, that is, if the decision 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). 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 (op. on reh'g). 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.

              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, courts are 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. Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim. App. [Panel Op.] 1981).




                                                   3
       In this case, Jackson argues that the trial court abused its discretion in refusing to lower bail,

because the State presented no evidence about the nature and circumstances of the offense that could

justify setting such an excessively high level of bail, $750,000.00. Citing this Court to our case of

Ex parte Henson, 131 S.W.3d 645 (Tex. App.—Texarkana 2004, no pet.), in which we held bail of

$750,000.00 for each of three counts of capital murder was excessive, Jackson argues that his bail

should be lowered to no more than $100,000.00.2 The State responds by pointing out that this is a

capital murder prosecution, as was Henson, and that, in line with that case, the amount required here

was not excessive.

       At the beginning of the hearing, the court, before hearing any evidence, stated that it was

taking judicial notice of the complaint, the arrest warrant, and the attachments. There was little

testimony given at the hearing.3 Jackson testified that he owned nothing, that he had three children,

and that his wife was employed, but her expenses exceeded her income. He testified that he could

not post bond, either personally or through efforts of family and friends, and that even the requested


       2
         In Henson, we reduced the bail from $750,000.00 per count to $500,000.00 per count, in
light of proof of the unprovoked murder of three individuals but under evidence suggesting that
Henson was not the shooter and had strong community ties. See Henson, 131 S.W.3d 645. Here,
Jackson is accused of being the shooter and having already traveled to Georgia, from which state he
was returned after his arrest on this charge.
       3
         Jackson called to the stand Detective Doug Brinkley of the Longview Police Department,
but the trial court did not let him testify, ruling that such testimony was contrary to traditional
procedures and would constitute improper pretrial discovery. Presumably, this was influenced by
Jackson's expressed desire to test through Brinkley the sufficiency of the evidence of the alleged
crime. Jackson mentions this refusal in his statement of facts, but does not make it a point of error
or an argument on appeal.

                                                   4
$100,000.00 bond would be very difficult to work out even through a bondsman. The State

questioned Jackson, eliciting testimony that he had not been employed for several months before his

arrest and that his wife was living with friends and relatives because the Jacksons had lost their

house. After a flurry of questions by the State, to most of which defense counsel either objected or

instructed his client not to answer based on Fifth Amendment grounds,4 Jackson testified, again, that

he owned nothing.

        The question before us is whether, based on the information before the trial court, it properly

exercised its discretion in setting bail in this case.

        The court had before it the complaint and an affidavit prepared by Brinkley, which contained

a detailed and lengthy description of the charged crime and of another similar robbery that involved

an apparently accidental discharge of a pistol but with no one shot.5

        The court had information before it setting out the nature of the offense, a murder during a

robbery—significantly, with Jackson alleged to be the shooter—and of the circumstances

surrounding its commission. It had evidence about Jackson's ability or inability to make a particular

level of bail. Significantly, it had evidence that, after the shooting, Jackson had departed Texas and



        4
       We do not see how Fifth Amendment considerations would apply to questions about
whether the house the Jacksons lived in was rented or owned or had been foreclosed on.
        5
         In this case, the manager of a Cash America Pawn Shop was attacked outside the business,
robbed of approximately $8,000.00 and shot to death. A month later, a Krogers was robbed of
approximately $14,000.00 by a similarly armed individual. The affidavit reflects that Jackson was
identified as the robber in both instances.

                                                    5
was arrested in Georgia and returned to Texas. Further, the court had information about another

armed robbery committed only a week later, allegedly by the same person, with details outlining the

State's case against him for both allegations. That addresses the circumstances surrounding the

original offense and community safety considerations. The amount set is high, but is within the

ranges of bail set by other courts for similar types of crimes. See id. at 648–49.

       We also note that the possible punishment was suggested as being life imprisonment and that

Jackson apparently had not had gainful employment for six months before the crimes. Cf. Clemons

v. State, 220 S.W.3d 176, 178 (Tex. App.—Eastland 2007, no pet.). We recognize that the inability

to make this level of bail is one of a number of factors to be considered, but that factor neither

controls the amount of bail set nor automatically renders the amount excessive. Id.

       We conclude that the court had the 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.




                                                  6
      We affirm the order.




                                    Josh R. Morriss, III
                                    Chief Justice

Date Submitted:     June 4, 2008
Date Decided:       June 27, 2008

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