Opinion
NO. 09-11-00620-CR
01-25-2012
EX PARTE TOYE DWAYNE FRAZIER
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. (2349) 11-12745
MEMORANDUM OPINION
Appellant, Toye Dwayne Frazier, appeals the trial court's order setting bail at $1.9 million. In a single issue, Frazier argues that his bail is excessive under article 17.15 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 17.15 (West 2005). We affirm the trial court's judgment.
Frazier was charged by indictment with aggravated robbery. See Tex. Penal Code Ann. § 29.03(a)(2) (West 2011). Initially, the court fixed Frazier's bond at $50,000. However, the court later changed Frazier's bond on this charge and ordered him to be held without bond. The court then fixed Frazier's bond at $2 million. On October 14, 2011, Frazier filed an application for habeas relief seeking bail reduction. Following the habeas hearing, the trial court reduced the bail and set it at $1.9 million. Frazier timely filed notice of appeal.
Frazier argues that his bail is excessive and that the trial court abused its discretion in setting his bail at $1.9 million. The burden of proof is on the defendant who claims bail is excessive. Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. 1980). The primary purpose for setting an appearance bond is to secure the presence of the defendant in court for trial. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977). The trial court should set the bail sufficiently high to give reasonable assurance that the accused will comply with the undertaking, but not set it so high as to be an instrument of oppression. Id.; see also Ex parte Bufkin, 553 S.W.2d 116, 118 (Tex. Crim. App. 1977). An appellate court reviews a trial court's decision in setting the amount of a bond under an abuse of discretion standard. See Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. 1981).
Excessive bail is prohibited by both the United States and Texas Constitutions. U.S. CONST. amends. VIII, XIV; Tex. Const. art. I, §§ 11, 13. Article 17.15 provides rules for the court to follow in fixing bail amounts. Tex. Code Crim. Proc. Ann. art. 17.15. In exercising its discretion in setting a bail amount, the trial court must consider: (1) whether the bail is sufficiently high to give a reasonable assurance that defendant will attend trial; (2) that the bail amount cannot be used as an instrument of oppression; (3) the nature of the offense and the circumstances under which it was committed; (4) the defendant's ability to make bail; and (5) the future safety of a victim of the alleged offense and the community. Id. The court may consider other factors and circumstances in determining the amount of bail including: family and community ties, length of residency, aggravating factors involved in the offense, the defendant's work history, prior criminal record, and conformity with previous outstanding bonds, if any. Ex parte Rubac, 611 S.W.2d at 849-50; see also Ex parte Wood, 308 S.W.3d 550, 552 (Tex. App.— Beaumont 2010, no pet.).
A. Nature of the Offense
Appellant was charged with the offense of aggravated robbery. See Tex. Penal Code Ann. § 29.03(a)(2). The offense is a first-degree felony and carries a sentence of not less than 5 years or not more than 99 years, and a fine not to exceed $10,000. Id. § 29.03(a)(2), (b); § 12.32 (West 2011).
Here, the nature of the offense reflects that appellant allegedly was one of three suspects that participated in a home invasion. The armed suspects attacked the victim in her garage. Two of the suspects left the home, but the victim stated that Frazier stayed behind armed with a handgun. The handgun the victim identified as being in Frazier's possession and used during the aggravated robbery was stolen a week before in another aggravated robbery also involving three suspects.
Based on the serious nature of the crime and the possibility of a substantial penalty if convicted, the trial court could have reasonably concluded that the nature of the offense did not favor a greater bail reduction than given.
B. Sufficient Bail to Assure Appearance But Not Oppress
The record contains no evidence indicating that the trial court rendered its decision for the purpose of forcing appellant to remain incarcerated pending trial. Compare Ex parte Harris, 733 S.W.2d 712, 714 (Tex. App.—Austin 1987, no pet.) (trial judge stated, "I'd rather see him in jail than to see someone's life taken....").
C. Ability to Make Bail
Although not controlling, the defendant's ability or inability to make bail is also relevant. Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. 1980). For a defendant to show that he is unable to make bail, he must generally show that his funds and his family's funds have been exhausted. Ex parte Willman, 695 S.W.2d 752, 754 (Tex. App.—Houston [1st Dist.] 1985, no pet.) (citing Ex parte Dueitt, 529 S.W.2d 531, 532 (Tex. Crim. App. 1975)). Unless a defendant has shown that his funds have been exhausted, he must usually show that he made an unsuccessful effort to furnish bail before bail can be determined excessive. Id. If the defendant indicates his financial inability to procure a surety bond, the court will not require him to do something useless. Ex parte Dueitt, 529 S.W.2d at 532.
The court conducted a hearing on Frazier's application for writ of habeas corpus. During the hearing, Frazier's sister, Ebony Chambers, testified on his behalf. She testified that Frazier does not have the ability to make the $2 million bond. She testified that he is self-employed as a "jack-of-all-trades" doing handy-man-type work. She did not give any specifics regarding his income or his assets, but testified that Frazier does not have any assets he could sell to raise the funds for the bond. She further testified that he does not have the ability to borrow money from a financial institution or from any family members. She explained that Frazier had obtained a bail bondsman to post the original $50,000 bond for this case. She also explained that Frazier and his family previously obtained a $100,000 bond that the court set for Frazier in a different case. She testified that neither Frazier, nor his family could raise the funds necessary to post the $2 million bond.
To her knowledge, Frazier has never been on bond and failed to appear. She testified that if Frazier is released on bail, she believes that he will live at the family's homestead. She testified that Frazier grew up in Beaumont and has relatives on his father's side of the family who live in California. However, she asserted Frazier has no plans to leave the area. She denied that the family was seen packing up Frazier's home.
Detective Aaron Lewellyn testified for the State. He testified that he has investigated Frazier in connection with some of his cases. Lewellyn testified that he was involved in the investigation of another aggravated robbery allegedly committed earlier on August 6, 2011. Detective Lewellyn testified that in connection with his investigation, earlier during the week of the bond hearing, he received information that Frazier's family members were loading up his house "frantically." He testified that he listened to recorded conversations between Frazier and his girlfriend discussing his getting out on bond and her getting his clothes and belongings ready to go. Lewellyn testified that this conversation was suspicious regarding Frazier's flight risk.
While Frazier's sister testified that Frazier did not have the means to come up with the necessary funds, the trial court could have disbelieved this testimony. Further, the trial court could have disbelieved Frazier's sister's testimony regarding his family's funds and the court could have determined that Frazier could obtain a bond based on his family's resources. Moreover, even had appellant established that he could not make bail, this element would not control over all other considerations. See Ex parte Charlesworth, 600 S.W.2d at 317.
D. Future Safety of Victim and Community and Other Factors
The gravity and nature of the charge against Frazier indicates that he presents a risk to the safety of the community. In addition to the aggravated robbery charge, Detective Lewellyn testified that Frazier is being investigated as a suspect on numerous other charges, including the aggravated robbery/home invasion that occurred on August 13. Lewellyn explained that the suspects in the home invasion were apparently "very motivated as they waited in the victim's garage for nearly eight hours for her to get home, ambushed her in her garage, robbed her at gunpoint, made her strip down to her underwear then held her at gunpoint for another 6 or 7 hours."
Lewellyn testified that his wife is also a detective. He testified that she became concerned for his welfare during their investigation of Frazier when they listened to phone recordings of conversations between Frazier and his family while he was in jail. Those phone recordings contained cryptic messages suggesting physical violence against both Lewellyn and his wife. He testified that they did not take action regarding this information until they noticed people driving by their home conducting surveillance.
During his investigation of Frazier, Lewellyn uncovered information that suggests that Frazier is a member of a gang called the "5/9 Hoover Crips." Lewellyn testified that Frazier has numerous associates and relatives that are gang members. Lewellyn testified that during the course of his investigation other people have also informed him that Frazier is a gang member. Lewellyn discovered pictures of Frazier making gang signals with his hands. These photographs were admitted into evidence. Frazier's sister denied Frazier's involvement in gang activity.
Lewellyn testified that he believes that Frazier is a risk to the community if he is released. He testified that in consideration of his family's safety, he would like to see Frazier's bond set higher than $2 million.
Given the evidence of the violent nature of the alleged crime, appellant's potential as a flight risk, and the safety of the community, we conclude that the trial court did not abuse its discretion in setting bail at $1.9 million. We overrule Frazier's sole issue and affirm the trial court's order.
AFFIRMED.
__________________
CHARLES KREGER
Justice
Do not publish Before McKeithen, C.J., Kreger and Horton, JJ.