Ex Parte Bratcher

Full title: EX PARTE DAVID LYNN BRATCHER

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 13, 2005

Nos. 05-05-00634-CR, 05-05-00635-CR (Tex. App. Jul. 13, 2005)

Opinion

Nos. 05-05-00634-CR, 05-05-00635-CR

Opinion Filed July 13, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F05-00209-Kvt, F05-00211-Kvt. Affirm.

Before Justices O'NEILL, RICHTER, and FRANCIS.

OPINION

MICHAEL J. O'NEILL, Justice.

David Lynn Bratcher is charged by indictment with two aggravated sexual assault of a child offenses. Bond in each case is set at $500,000. Appellant filed motions to reduce the bonds to $50,000 each. Following a hearing, the trial judge denied appellant's motions. In six issues, appellant asserts the trial court abused its discretion in denying the bond reductions.

Background

Appellant is charged with two aggravated sexual assault of a child offenses involving the same complainant, C.W. The offenses were alleged to have occurred in 1991 when C.W. was younger than fourteen. C.W. reported the alleged offenses when he was in his twenties. Appellant had been previously tried for and convicted of sexual assault of C.W. In that case, appellant's motion for new trial was granted¹ and the State dismissed the charges. For purposes of the bond reduction hearing, the judge stated that he had presided over the earlier trial and he was taking judicial notice of the evidence presented except for the expert and character evidence.² Dallas police detective Joseph Corden testified he investigated the charges against appellant. As of the date of the bond reduction hearing, no one other than C.W. had come forward to make a complaint against appellant, nor had Corden sought out any other potential complainants. Corden testified that he has investigated more than 500 cases involving sexual abuse of children during his time with the police department. Additionally, he has attended training regarding investigating child sexual abuse cases. Based on his training and experience, he has learned how to identify the ways in which pedophiles work. Corden testified that pedophiles will often groom children for abuse by buying them gifts and gaining their trust. If children come from troubled homes, the pedophile will be seen as someone who cares for the children. Corden said a pedophile may also have a lot of children around the pedophile's home. Corden believed, based on his experience and his knowledge of appellant's history, that appellant was a threat to other children. Corden testified that appellant was already a convicted sex offender at the time these alleged offenses were committed. Corden did not know when appellant was released from prison on the prior convictions or how soon thereafter appellant opened his baseball card shop. Corden further testified that he believed appellant was a flight risk because appellant worked as a traveling salesman and appellant's first trial did not end the way appellant believed it would. Appellant's mother, Hazel Bratcher, testified that appellant is fifty-one years old, has lived in Dallas his entire life, and has three brothers. If appellant is released on bond, he would be able to live with her. She further testified that she would supervise appellant "with limitations of maturity." She believes that she and appellant have an understanding and that appellant would listen to her. Hazel also testified that appellant's brothers would help appellant get back on his feet. In response to a question about the use of electronic monitoring if appellant was released on bond, Hazel questioned whether she would have to agree to it. Hazel testified that she owns a school called "The Children's Place." The school is not operated out of her home and the students do not come to her home. Hazel promised that no one under eighteen years of age would be allowed in her house, including her grandchildren, if that was necessary to secure appellant's release. However, she further testified that if the trial court did not prohibit appellant from being around children, she thought "there would be no threat there." Hazel admitted that appellant's earlier convictions involved children who attended The Children's Place. At the time of the offenses, appellant was a co-owner of the school. However, Hazel testified that she did not believe appellant committed those offenses even though he was convicted of them. Nor does she believe appellant committed the offenses pending against him. Hazel testified she did not believe appellant was ever a threat to anyone. Hazel testified that appellant worked for Classic Products from 1993 until 2004. Appellant's boss, Todd Miller, sent a letter stating that a job was available for appellant at any time he was released from custody.³ Appellant's position was as a regional sales manager for the company, which required some travel. However, Hazel had spoken with Miller and they understood appellant would not be placed in the same position if he returned to work there. Finally, Hazel testified that she was unable to make the two bonds totaling $1 million in these cases. However, she was able to make two $50,000 bonds. The bond set on the sexual assault charge that was ultimately dismissed was $50,000. The judge took judicial notice of the fact that appellant had appeared for every hearing in the sexual assault case.

Applicable Law

The traditional right to freedom before conviction permits the accused the unhampered preparation of his defense and serves to prevent infliction of punishment before conviction. See Stack v. Boyle, 342 U.S. 1, 4 (1951). The primary object of an appearance bond is to secure the accused's presence at trial on the offense charged. Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex.Crim.App. [Panel Op.] 1980). Bail set in an amount higher than an amount reasonably calculated to fulfill this purpose is unconstitutionally excessive. See Stack, 342 U.S. at 5. The trial judge has discretion to determine the proper amount of bail. See Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon Supp. 2004-05). In determining the amount of bail to set, the judge shall be guided by 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.

Id.; Ex parte Welch, 729 S.W.2d 306, 309 (Tex.App.-Dallas 1987, no pet.). Circumstances to be considered in determining the amount of bond include the accused's work record, family and community ties, length of residency, prior criminal record, and conformity with the conditions of any previous bond, as well as the existence of any outstanding bonds and aggravating circumstances involved in the charged offense. See Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex.Crim.App. [Panel Op.] 1981); Ex parte Welch, 729 S.W.2d at 309. The trial court may also consider the range of punishment for the charged offense and the fact that the accused is not a United States citizen. Ex parte Rubac, 611 S.W.2d at 849; Ex parte Rodriguez, 595 S.W.2d at 550 n. 2. The person seeking the bond reduction has the burden of demonstrating the bail is excessive. Ex parte Rodriguez, 595 S.W.2d at 550. Although the ability or inability of the accused to make bail is a factor to be considered, that factor alone does not control in determining the amount of bail. See Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex.Crim.App. [Panel Op.] 1980).

Judicial Notice of Previous Trial

In his sixth issue, appellant complains the trial judge abused his discretion in taking judicial notice of evidence presented at appellant's trial on the sexual assault of C.W. Appellant, relying on Watts v. State, 99 S.W.3d 604, 609-10 (Tex.Crim.App. 2003), asserts the trial court should not take judicial notice under rule of evidence 201 of factually disputed witness testimony. The State, relying on Moreno v. State, 22 S.W.3d 482, 488 (Tex.Crim.App. 1999), responds that the trial judge properly took judicial notice of the evidence from the previous trial over which he presided. The Texas Rules of Evidence do not apply to proceedings regarding bail except hearings to deny, revoke, or increase bail. Tex. R. Evid. 101(d)(1)(E). The hearing on appellant's motion involved a bail reduction; therefore, the rules of evidence did not apply to the proceeding. See id. Thus, the trial court did not abuse its discretion in taking judicial notice of the evidence presented at appellant's previous trial. Cf. also Moreno, 22 S.W.3d at 488 (judge presiding over revocation proceeding may take judicial notice of evidence presented at criminal trial over which judge also presided); Anderson v. State, 99 S.W.3d 650, 652 (Tex.App.-Waco 2003, no pet.) (in addressing appeal bond issue, judge could take judicial notice of court's file and underlying proceedings). We resolve appellant's sixth issue against him.

Denial of Bond Reduction

In issues one through five, appellant asserts the trial court abused its discretion in denying his motion to reduce bond. Appellant contends the $500,000 bonds are higher than necessary to secure his appearance and are so high as to be instruments of oppression. Appellant also argues the nature of and circumstances surrounding the offenses do not warrant the high bonds, he is unable to make the bonds, he has strong ties to the community, and there is no danger to the complainant or the community. The State responds that the trial court properly denied the bond reduction based on the evidence before it. Appellant is charged with two aggravated sexual assault of a child offenses, alleged to have been committed in 1991, when C.W. was younger than fourteen.⁴ C.W. reported the offenses when he was in his twenties. Aggravated sexual assault of a child is a first-degree felony. See Act of May 29, 1983, 68^th Leg., R.S., ch. 977, § 3, 1983 Tex. Gen. Laws 5312, 5315 (subsequent amendments omitted) (current version at Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2004-05)). Each indictment also alleges a prior conviction for sexual assault of a child. If convicted and the enhancement paragraph is found true, the punishment range for each offense is imprisonment for fifteen to ninety-nine years or life and up to a $10,000 fine. See Act of May 23, 1985, 69^th Leg., R.S., ch. 582, § 1, 1985 Tex. Gen. Laws 2201, 2201 (subsequent amendments omitted) (current version at Tex. Pen. Code Ann. § 12.42(c)(1) (Vernon Supp. 2004-05)). Thus, appellant faces the possibility of two life sentences and two $10,000 fines. In such situations, the pretrial bond should be sufficiently high to secure the accused presence at trial because the accused's reaction to the possibility of a lengthy prison sentence may be not to appear. See Compian v. State, 7 S.W.3d 199, 201 (Tex.App.-Houston [14^th Dist.] 1999, no pet.). Appellant has three prior convictions for sexual assaults against children. The victims of the prior sexual assaults were students at the school appellant co-owned with Hazel at the time of those offenses. Hazel still owns that school, but testified the children do not come to her house. The record also reflects that appellant was on parole for the prior convictions at the time these pending offenses allegedly occurred. Corden believed that appellant, based on his record, was a threat generally to other children although no evidence indicated that appellant made any threats to C.W. or had any contact with C.W. regarding theses cases. There was evidence that no one else had come forward to accuse appellant of additional offenses, nor had any other complainants been sought by the police. Appellant is a lifelong resident of Dallas and would be able to live with his mother if released on bond. Hazel promised that no children, including her own grandchildren, would be permitted in her home if that is what was necessary to secure appellant's release. Hazel also testified that she believed appellant would listen to her. Hazel also testified, however, that she did not believe appellant was a threat to anyone, or that he had ever committed any sexual assault offenses, including those for which he was convicted. She also questioned whether she would have to agree to a possible condition of release involving electronic monitoring. Appellant was employed with the same company from 1993 to 2004 and his employer sent a letter stating that a job was available for appellant if he is released on bond. Appellant's prior position was as a regional sales manager, which required some travel. Although Hazel testified generally that appellant would be in a different position, there was no evidence as to what appellant's new job would be or what it would require. Corden believed appellant was a flight risk based on appellant's job as a traveling salesman and the outcome of the earlier sexual assault trial, which resulted in a conviction. There was evidence that the bond in the earlier case was set at $50,000 and the judge judicially noticed that appellant appeared for all of the hearings. However, appellant has been charged with two very serious offenses, and has already faced a conviction (before the motion for new trial was granted) regarding the same complainant. In light of this, appellant may now have a greater incentive to flee. Cf. Compian, 7 S.W.3d at 201. Finally, Hazel testified she was unable to make the two $500,000 bonds, but she was able to raise the money for two $50,000 bonds. However, just as a defendant's inability to afford a bond does not in itself demonstrate the bail is excessive, neither does a defendant's ability to afford a bond in a specific amount justify setting the bond in that amount. See Ex parte Beard, 92 S.W.3d 566, 573 (Tex.App.-Austin 2002, pet. ref'd). In setting bail, the court must strike a balance between the defendant's presumption of innocence and the State's interest in assuring the defendant's presence at trial. See id. Viewing the evidence presented under the appropriate standards, we conclude the $500,000 bonds set in these cases strikes that balance. Accordingly, we resolve appellant's issues against him. We affirm the trial court's order denying the bond reductions.