Summary
upholding a capital murder pretrial bond that was set at $1.5 million
Summary of this case from Ex parte CardenasOpinion
No. 04–11–00447–CR.
2012-06-13
Ex parte Mark Anthony GONZALEZ.
From the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2011CR5289; Andrew W. Carruthers, Judge Presiding. 1 Michael C. Gross, Law Office Of Michael C. Gross, San Antonio, TX, for Appellant. Jay Brandon, Assistant District Attorney, San Antonio, TX, for Appellee.
From the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2011CR5289; Andrew W. Carruthers, Judge Presiding.
Michael C. Gross, Law Office Of Michael C. Gross, San Antonio, TX, for Appellant. Jay Brandon, Assistant District Attorney, San Antonio, TX, for Appellee.
Sitting: KAREN ANGELINI, Justice, REBECCA SIMMONS, Justice, MARIALYN BARNARD, Justice.
This cause is pending in the 175th Judicial District Court, Bexar County, Texas, in which the Honorable Mary Roman is the presiding judge. However, the hearing on the application for writ of habeas corpus was conducted by the Honorable Andrew W. Carruthers, Criminal Law Magistrate, pursuant to an order of referral.
OPINION
Opinion by: MARIALYN BARNARD, Justice.
This is an accelerated appeal from the trial court's order denying Mark Anthony Gonzalez's application for writ of habeas corpus seeking a reduction in bail. We affirm.
Background
Gonzalez is charged with capital murder, specifically the murder of Sergeant Kenneth Vann of the Bexar County Sheriff's Department. Gonzalez's bail was set at $1,500,000.00. Gonzalez filed an application for writ of habeas corpus, seeking to reduce the amount of his bail. After an evidentiary hearing, the trial court denied the request for bail reduction and Gonzalez perfected this appeal.
Analysis
On appeal, Gonzalez raises three issues, contending the trial court erred in refusing to reduce his bail and that the refusal violated his constitutional right to reasonable bail. More specifically, he claims the trial court's refusal to reduce his bond violated his rights under Article I, sections 11 and 13 of the Texas Constitution and the Eighth and Fourteenth Amendments of the United States Constitution.
Standard of Review
A trial court's pretrial bail determination is reviewed for an abuse of discretion. Ex parte Rubac, 611 S.W.2d 848, 850 (Tex.Crim.App. [Panel Op.] 1981); Ex parte Anunobi, 278 S.W.3d 425, 428 (Tex.App.-San Antonio 2008, no pet.). A trial court abuses its discretion when it acts without reference to any guiding rules or principles, i.e., in an arbitrary and unreasonable manner. Ex parte Hunt, 138 S.W.3d 503, 505 (Tex.App.-Fort Worth 2004, pets., ref'd) (citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990)). Merely because we might decide a matter differently than the trial court did does not demonstrate an abuse of discretion. Id. It is the appellant's burden to demonstrate the bail set by the trial court is excessive. Rubac, 611 S.W.2d at 849;Anunobi, 278 S.W.3d at 428.
The purpose of pretrial bail is to secure the defendant's appearance at trial. Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex.Crim.App. [Panel Op.] 1980); Anunobi, 278 S.W.3d at 427. Bail should not be used as an instrument of oppression, and excessive bail is prohibited by our state and federal constitutions, as well as the Texas Code of Criminal Procedure. Ex parte Ivey, 594 S.W.2d 98, 99 (Tex.Crim.App. [Panel Op.] 1980); U.S. Const. amends. VIII, XIV; Tex. Const. art. I, §§ 11, 13; Tex.Code Crim. Proc. Ann. art. 17.15 (West 2005). Bail determinations are “bounded and guided by our state and federal constitutions and state law.” Ex parte Estrada, ––– S.W.3d ––––, ––––, 2008 WL 4958370 (Tex.App.-San Antonio 2008, no pet.). The Texas Legislature has provided a framework for pretrial bail considerations:
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. Other relevant factors include: (1) the nature of the offense and possible sentence; (2) the defendant's ties to the community—including family ties, (3) length of residency; (4) employment history; (5), prior criminal record; (6) the existence of other bonds against the defendant and his compliance with conditions of those bonds; and (7) aggravating factors involved in the alleged offense. Rubac, 611 S.W.2d at 849–50.
Application
Gonzalez, who bore the burden of proof to establish he was entitled to a reduction in bond, presented one witness, his cousin, Gloria Medrano. Medrano testified Gonzalez was born and raised in San Antonio and has lived in San Antonio his whole life. She stated Gonzalez, before his arrest, was employed as an aircraft mechanic. Medrano claimed to be unaware of any plans by Gonzalez to leave Bexar County, but knew Gonzalez had no passport. Medrano testified, as far as she knew, that when Gonzalez was in trouble before, he “never had a problem showing up” for court.
As to his ability to make the $1,500,000.00 bail in this case, Medrano testified the bonding company required a payment of $150,000.00 before it would post bail. Medrano stated family attempted to come up with the money requested by the bonding company, but the family did not have the money “that she [knew] of.” She testified the family would only be able to make a bond of $50,000.00. Medrano did not know whether Gonzalez's wife was employed, nor did she have information about the assets owned by Gonzalez and his wife. She did state, however, she was sure the family could not afford the bail as currently set.
On cross-examination by the State, Medrano admitted she had no idea how much money Gonzalez and his wife had in their accounts, and did not know how much money Gonzalez's wife earned. She also did not know whether Gonzalez and his wife owned their home, but stated they had lived there at least fifteen years. She stated she was unfamiliar with the finances of the immediate family and just assumed they would not be able to make the current bail because she did not know them to have “a lot of money,” no “nice cars or fancy house[s].” Medrano's testimony does not establish Gonzalez could not afford the bail set by the trial court. Rather, this evidence merely showed Gonzalez did not have bond money “that she [knew] of.” In actuality, the witness was wholly unaware of the Gonzalez family finances. Accordingly, it cannot be said the trial court abused its discretion when in an attempt to meet his burden, Gonzalez presented evidence from someone that actually was unfamiliar with his family's financial situation.
Medrano admitted she did not know whether Gonzalez might flee or not. Medranodid state she knew Gonzalez's grandmother had owned a home in Mexico and that upon her death, the house passed to Gonzalez's mother and that he had helped his mother work on the house. She did not know, however, if Gonzalez's mother still owned the house.
After presenting Medrano as his sole witness, Gonzalez rested. The State then noted its objection to any reduction in the amount of bail, and introduced several documents into evidence. The first document was the arrest warrant affidavit, which describes the events leading up to Sergeant Vann's death. The affidavit avers that Sergeant Vann was in uniform, sitting in his marked patrol car at a red light. While sitting at the red light, Sergeant Vann was shot numerous times and killed. A witness, John Vrzalik, told officers that he heard shots being fired and it lasted for approximately thirty seconds. He saw the patrol car slowly pass into the intersection after the shots, and saw a blue 2010 or 2011 Ford F150 “speed away.”
The affidavit also contains information from a confidential informant, who told officers he has known Gonzalez for more than twenty years, and on the night Sergeant Vann was killed, he met with Gonzalez at a rural location where Gonzalez was having another individual “do some tire work” on his truck, which the informant identified as a blue Ford F150. While the tire work was being done, the informant saw Gonzalez remove an M & P 15 from his truck-Gonzalez and the person performing the “tire work” proceeded to fire the weapon at a fence post. Gonzalez was noted to have a one hundred round magazine for the weapon. After the tire work was completed, there was a minor vehicle collision between informant and Gonzalez—after the collision, they planned to meet at a Denny's restaurant. However, when they were approaching the restaurant, the informant turned into the parking lot, but Gonzalez pulled up next to Sergeant Vann's patrol car. Thereafter, the informant heard “several pops.” Gonzalez never showed up at the restaurant, but while the informant was still at the restaurant, Gonzalez called him and stated, “I killed a cop. Don't tell no one, not even your wife.”
The informant was also able to identify Gonzalez's home, which is owned by Gonzalez's wife and consists of 2.5 acres. He also saw two vehicles parked at the location that he knew Gonzalez owned—a Mustang Cobra and a tractor trailer. The informant also told officers that in addition to the M & P 15, Gonzalez has numerous other weapons in a gun safe in his bedroom. The affiant stated the ammunition used to kill Sergeant Vann was identified as .223 caliber ammunition, and the affiant is aware that the M & P 15 “shoots .223 caliber ammunition.”
The State also introduced into evidence documents establishing Gonzalez had been arrested multiple times during his life for offenses including: (1) unlawfully carrying a weapon (twice), (2) resisting and evading arrest, (3) driving while intoxicated, (4) burglary of a vehicle, (5) carrying a fictional driver's license, and (6) driving with an invalid license. All of these cases were ultimately closed—they were either dismissed, Gonzalez was found not guilty, or Gonzalez completed deferred adjudication or probation.
The State introduced, and the trial court admitted into evidence, the firearms transaction record establishing Gonzalez's wife purchased the M & P 15 in 2007. This record established Gonzalez's wife was born in Mexico. The State also introduced the forensic firearms report that showed four weapons and a large quantity of ammunition had been seized from Gonzalez's home. That report also established that bullets from an M & P 15 were used to kill Sergeant Vann.
The State also introduced documents showing Gonzalez's work history. The documents show Gonzalez has worked in Alabama, Georgia, Kansas, Arizona, and in two other cities in Texas, Dallas and Port Isabel. A resume prepared by Gonzalez was included, showing his address in Laredo, Texas, not San Antonio. Additionally, a personal information sheet lists an address for Gonzalez in South Carolina.
An affidavit from Stephen Starling revealed him to be the confidential informant mentioned in the arrest warrant affidavit, and in his affidavit Starling averred he knew Gonzalez had worked out of town and outside Texas over the years. It was his understanding Gonzalez had been out of the state since 2009. Starling expressed fear that he and his family would be in “grave danger” if Gonzalez were released given that Starling was the individual who reported Gonzalez to authorities. Starling stated his fear of Gonzalez, given his love of guns and the murder of Sergeant Vann, kept Starling from reporting what he knew for an entire week. He advised that Gonzalez knows where he lives, and that even his eleven-year-old daughter is worried Gonzalez might come to their house.
Finally, the State presented an affidavit from one of the investigators in the case. The investigator stated in his affidavit that during the course of his investigation he had learned Gonzalez had “recently applied for a job in Mexico and also applied for an expedited passport through the [I]nternet.” Gonzalez never obtained the passport because he failed to provide all the necessary information. The investigator stated he had spoken to Gonzalez's mother and she told him she owns a home in Mexico, which she currently rents out, and she still has family in Mexico.
Having determined the relevant factors to be considered, and having reviewed the evidence adduced at the habeas corpus hearing, we must now determine if the trial court abused its discretion in refusing to reduce Gonzalez's bail.
This court has considered whether bail of $1,000,000.00 in a capital murder/burglary case was excessive. Estrada, ––– S.W.3d at ––––. In our review, we noted an absence of reported Texas cases sustaining bail in the amount of $1,000,000.00 “even in the most egregious capital murder cases.” Id. at –––– (citing Ex parte Beard, 92 S.W.3d 566 (Tex.App.-Austin 2002, pet. ref'd) ($8,000,000.00 bail reduced to $500,000.00); Ex parte Henson, 131 S.W.3d 645 (Tex.App.-Texarkana 2004, no pet.) ($750,000.00 bail for each of three counts of capital murder reduced to $500,000.00 for each count); Ex parte Simpson, 77 S.W.3d 894 (Tex.App.-Tyler 2002, no pet.) ($1,000,000.00 bail reduced by trial court to $600,000.00 held not excessive); Ex parte McDonald, 852 S.W.2d 730 (Tex.App.-San Antonio 1993, no pet.) ($1,000,000.00 bail reduced to $75,000.00)). We did recognize, however, bail in the amount of $1,000,000.00 was appropriate when circumstances established such bail was justified. Estrada, ––– S.W.3d at –––– (citing Ex parte Saldana, No. 13–01–00360–CR & 13–02–00361–CR, 2002 WL 91331 (Tex.App.-Corpus Christi Jan. 24, 2002, no pet.) (not designated for publication) (upholding $1,000,000.00 bail where defendant had numerous prior convictions and arrests for violent crime, defendant demonstrated ability to post $500,000.00 bond before indictment, defendant's gang ties, and danger to key witness), overruled in part on other grounds, Ramos v. State, 89 S.W.3d 122, 126 (Tex.App.-Corpus Christi 2002, no pet.); Ex parte Brown, 2000 WL 964673 (Tex.App.-Dallas 2000, no pet.) (not designated for publication) (upholding $1,000,000.00 bail when uncontrovertedevidence showed defendant posed threat to estranged wife and failed to produce any evidence of ties to community or ability to make bail).
Although we found the $1,000,000.00 bond in Estrada to be excessive and reduced it to $600,000.00, we hold the facts in Estrada are distinguishable—although similarly egregious. Id. at ––––. In Estrada, the defendant, a young man with a troubled past, broke into the home of a long-time neighbor to commit burglary. ––– S.W.3d at ––––. The neighbor awoke during the burglary and Estrada shot her in the head with a bow and arrow he brought with him. Id. He then left the home, taking the victim's vehicle and credit cards. Id. Estrada drove to a gas station, filled a container with gasoline, returned to the victim's home, and set fire to the victim and her home. Id. He later used the victim's credit cards to purchase hair gel, clothing, and computer equipment. Id.
At the bond hearing, Estrada's father testified, noting his son's age and the fact that he lived with his parents before the murder. Id. The father testified that if Estrada was released on bond, he would live with his parents in the family home. Id. The father swore to the trial court that “he would do everything in his power to ensure Estrada appeared in court and meet any conditions of the bond.” Id. He went so far as to say that Estrada's mother would stop working to be at home during the day with Estrada. Id. The father noted the family had no ties to Mexico and had only left the state of Texas one time on a family vacation to Arizona and Nevada.
As to finances, the father testified his son is financially dependent on them and “could not post a bond in any amount,” owns no property, and has no assets. The father specifically stated he had contacted at least five bail bond companies and could not meet the financial conditions imposed by any of them.
Thus, in Estrada, with regard to the nature of the offense, the defendant broke into the home of someone he knew for a defined purpose, burglary. Only when the victim awoke, interrupting the burglary, did the defendant become violent. His actions after that point, while egregious, were to cover up the offense. Thus, while the nature of the offense was egregious, there was at least some explanation for the defendant's violent acts. As to appearing if bond were reduced, the father provided in-depth testimony that he would assure Estrada's appearance and how it would be done, and unlike Gonzalez, noted his son's lack of contacts with Mexico or any other jurisdiction. The father also affirmatively stated, unlike the financial witness for Gonzalez, the attempts made by the family to secure bond and definitively stated the family's inability to post the bond as set.
In this case, however, the reason for the brutal offense is seemingly inexplicable, suggesting a danger to the community that did not exist in Estrada. And although, just as in Estrada, there are factors that militate in favor of a bail reduction—Gonzalez's ties to the community and apparent compliance with probation and deferred adjudication terms for past offenses—there are many factors that did not exist in Estrada that suggest bail in the amount of $1,500,000.00 is not excessive and is justified under the circumstances, such as a paucity of testimony of Gonzalez's ability to make the bond set, his clear connections to a foreign country and knowledge of other states where he has worked, and a failure of any witness to attempt to guarantee his appearance. The concurrence asserts we have distinguished Estrada based only on the fact that Estrada killed his victim when he was discovered burglarizing her home, whereas Gonzalez allegedly committed a murder at random. Concurrence at p. 3 (“But the majority's reasoning that Gonzalez's alleged unprovoked killing of a random sheriff's deputy in his car supports a bail two and one-half times greater than Estrada's—for killing his elderly neighbor in her own home with an arrow through the head—is not persuasive.”). However, this was not the sole basis for our distinction. Rather, as noted above, there are many factors that did not exist in Estrada that exist in this case, which militate against a finding that the trial court abused its discretion here. These factors include: the absence of evidence concerning Gonzalez's ability to make the bond, his connections to a foreign country and knowledge of other states where he has worked, and a failure of any witness to attempt to guarantee his appearance. Finally, it is important to note that in Rubac, the court of criminal appeals specifically advised that a factor to be included in determining the amount of bond is the aggravating factors involved in the offense. Rubac, 611 S.W.2d at 849–50. Accordingly, the random and inexplicable nature was a factor to be considered by the court, and does provide a valid distinction from the Estrada decision. For these reasons, our distinction of Estrada is compelling.
The concurrence seems to find Gonzalez's connections to Mexico of little import. However, we find it significant that Gonzalez's mother still owns the house in Mexico, Gonzalez worked on the house, has relatives in Mexico, and applied for an expedited passport.
In addition to placing little reliance on the evidence concerning Gonzalez's ties to Mexico, his extensive out-of-state work history, and his possession of firearms, the concurrence does not address the testimony of the confidential informant, Starling, a former friend of Gonzalez's who was with him on the night of the murder. Starling provided evidence that Gonzalez had been out of the state since 2009. Moreover, he expressed fear that he and his family would be in “grave danger” if Gonzalez were released. Starling specifically stated that his fear of Gonzalez, given his love of guns and the murder of Sergeant Vann, kept Starling from reporting what he knew for an entire week. He advised that Gonzalez knows where he lives, and that even his eleven-year-old daughter is worried that Gonzalez might come to their house. Starling's fear about his future safety is another valid and important factor to be considered by the trial court. SeeTex.Code Crim. Proc. Ann. art. 17.15.
As we noted above, we consider the random, inexplicable, and excessively violent murder of a police officer in his patrol car stopped at a stoplight to be egregious. Then, there is Gonzalez's penchant for guns, and his wife's apparent willingness to purchase guns for him. Gonzalez's family has strong connections to Mexico, and he recently applied for work in Mexico and for an expedited passport. Gonzalez has a long, but sporadic, out-of-state work history. He also has several prior criminal offenses. Importantly, there is an absence of evidence as to Gonzalez's financial condition—other than his cousin's broad statements that she believed the family could not make bail as currently set, which were undermined by her admission on cross-examination that she really had no knowledge of the family's financial condition. Moreover, in this case there is an informant who, along with his young daughter, fears reprisal in the event Gonzalez is released.
The concurrence reviews numerous other cases, to “show[ ] the bail amount in this case could be called into question had there been more evidence of Gonzalez's resources.” However, we simply apply the standard of review, we do not conduct a comparative analysis, but strictly review the evidence in light of the statutory and case law factors and determine if the trial court acted without reference to guiding principles of law. Given the evidence in this case and that the burden was on Gonzalez, we cannot say the trial court acted without reference to the legal framework governing decision on bond reductions.
Based on our analysis, and strictly adhering to the proper standard of review, we hold the trial court did not abuse its discretion in refusing to reduce Gonzalez's bond in the amount of $1,500,000.00. Gonzalez did not meet his burden of proof to establish the amount of bond is excessive.
Conclusion
Based on the foregoing, we hold the trial court did not abuse its discretion in refusing to reduce Gonzalez's bond. We therefore affirm the trial court's order denying Gonzalez's request for a bail reduction. Concurring Opinion by: REBECCA SIMMONS, Justice.
REBECCA SIMMONS, Justice, concurring.
The $1,500,000.00 bail amount in this case is fifty percent higher than any bail amount previously upheld for a single capital murder charge in the State of Texas and twice as high as any amount previously upheld by this court. Nevertheless, I concur in the court's judgment because Gonzalez failed to meet his evidentiary burden to show his bail was excessive. However, because the amount far exceeds amounts we have previously upheld for a single capital murder charge, I feel compelled to caution against imposing exceedingly large bail amounts that violate the Constitution's prohibition against excessive bail.
The pretrial right to a reasonable bond arises from the presumption of innocence and is protected by the United States Constitution, the Texas Constitution, and the Texas Code of Criminal Procedure. SeeU.S. Const. amend. VIII; Tex. Const. art. I, § 13; Tex.Code Crim. Proc. Ann. art. 1.07 (West 2005). In capital cases bail may be denied “when the proof is evident” that the accused committed the offense. Tex. Const. art. I, § 11; Tex.Code Crim. Proc. Ann. art. 1.07. In this case, however, the State did not seek to deny bail but sought such a high bail that its constitutionality would be called into question but for Gonzalez's failure to meet his burden to establish his lack of financial resources. The trial court only has discretion to set a bail amount that is reasonably calculated to give reasonable assurance that Gonzalez will appear for trial. The limited evidence before the court showed that Gonzalez had a spotty employment history and most recently was working a minimum wage job, a relative believed his family could only afford to pay for a $50,000.00 bond, and Gonzalez had appeared as required for his previous legal proceedings.
Further, the court found he was indigent, presumably in accordance with the procedures set forth in its local rules, yet it set his bail at $1,500,000.00. Despite this evidence, the majority correctly points out that there was no evidence regarding the value of any vehicles or Gonzalez's home and the trial court could have inferred that Gonzalez was of more substantial means than his cousin—his sole witness at the hearing—represented.
The State introduced evidence of Gonzalez's previous arrests: unlawfully carrying a weapon, attempting to elude a police officer, and DWI (1988); burglary of a vehicle and burglary of vehicle parts (1989); unlawfully carrying a weapon (1992); and possession of a fictitious driver license and driving while license invalid (2000).
Analysis
Gonzalez is charged with capital murder for the violent murder of a deputy sheriff with whom he had no apparent previous interaction. Yet even though the crime is heinous, no court may vitiate the Eighth Amendment protections against excessive bail and allow the power to set bail to become an instrument of oppression. SeeTex.Code Crim. Proc. Ann. art. 17.15. There is a tension between the desire to retain someone accused of such an egregious crime behind bars and the prohibition against excessive bail. The question before this court is whether a $1,500,000.00 bail, an amount at least fifty percent higher than any bail amount I have found for a single capital murder charge that has been reviewed and upheld in Texas, violates the Eighth Amendment and the Texas Constitution's protections against excessive bail. Because Gonzalez inadequately presented his financial condition, we must uphold the trial court's determination that Gonzalez failed to meet his burden. In other words, the trial court could have inferred that Gonzalez had more resources, and thus did not merit a reduction in bail. Had there been more evidence of Gonzalez's lack of resources, the setting of such a high bail amount would be questionable based on our previous decision in Estrada.
1. Comparing Estrada
The majority distinguishes Estrada in part because Estrada only killed the victim after she discovered Estrada burglarizing her home. See Ex parte Estrada, ––– S.W.3d ––––, –––– (Tex.App.-San Antonio 2008, no pet.). But the majority's reasoning that Gonzalez's alleged unprovoked killing of a random sheriff's deputy in his car supports a bail two and one-half times greater than Estrada's—for killing his elderly neighbor in her own home with an arrow through the head—is not persuasive. The key difference between Estrada and this case is the evidence of financial resources present in Estrada and the lack of financial evidence in this case. A comparison of the facts of both cases reveals little else to support the bail set in this case.
Estrada was on bond for felony theft when he committed the burglary and murder, and he had been “indict[ed] for two other felonies committed against a family member.” Id. at ––––. According to the evidence, Gonzalez's last arrest was in 2000. Further there is no evidence Gonzalez violated his bond conditions or failed to comply with the requirements of his previous legal proceedings. The victim in this case was shot an overwhelming number of times without apparent provocation, but Estrada shot an elderly neighbor he knew through the head with an arrow. Estrada was considered a possible danger to the community; here the majority repeatedly emphasizes the random nature of the crime, and implies that a random act poses a risk to the community that justifies a bail amount two and one-half times greater than Estrada's. But the trial court imposed home confinement and electronic bracelet monitoring for Gonzalez as a condition of bond to reduce that risk.
The majority describes other factors in this case that distinguish it from Estrada: (1) Gonzalez's connection to a foreign country, (2) Gonzalez's knowledge of other states where he worked, and (3) Gonzalez's failure to have anyone else guarantee his appearance. The foreign connection is limited: Gonzalez's wife was born in Mexico, his mother has a house in Mexico, and Gonzalez had considered applying for a job that would require him to work in Mexico—but he has no passport to travel to Mexico. As far as knowledge of other states, there is no evidence that Gonzalez has any strong connections to other states. His employment records merely reflect he sometimes worked out of state for extended periods, but he always returned to San Antonio. There is no evidence in the record that shows Gonzalez had someone else guarantee his appearance before, and yet he appeared as ordered for his previous proceedings. These facts provide little support for a bail amount of more than two and one-half times greater than that in Estrada. Rather, the only distinguishing feature is the evidence relating to financial resources. In Estrada both of Estrada's parents had full-time jobs and were willing to help him post bail, and there was evidence that they could pay significant sums to support the bail amount, while Gonzalez's evidence of financial resources was lacking.
2. Other bail amounts
A review of other cases also shows the bail amount in this case could be called into question had there been more evidence of Gonzalez's resources.
In Ludwig, the defendant killed two people and had threatened each of them before he killed them. Ludwig v. State, 812 S.W.2d 323, 324–25 (Tex.Crim.App.1991) (plurality opinion) (per curiam). He also threatened to kill his mother-in-law. Id. at 325. There was little evidence of the circumstances of his crime before the court, but even considering Ludwig's threat against his mother-in-law, the court reduced his bail to $50,000.00. See id.
The majority states that this court “simply appl[ies] the standard of review [and does] not conduct a comparative analysis.” But our jurisprudence requires such an analysis to “determine if the trial court acted without reference to guiding principles of law.” This court has often compared bond amounts in analogous cases in search of constitutional limits—to determine whether the amount set in the instant case was excessive, and therefore whether the trial court abused its discretion. Such cases include Estrada, an opinion the majority cites. See Ex parte Estrada, ––– S.W.3d –––– (Tex.App.-San Antonio 2008, no pet.) (comparing bail amounts in analogous cases to determine that the trial court's bail amount was excessive); e.g., Ex parte Harber, No. 04–10–00643–CR, 2010 WL 5141509 (Tex.App.-San Antonio Dec. 15, 2010, no pet.) (mem. op., not designated for publication); Ex parte Wilson, No. 04–08–00553–CR, 2009 WL 330994 (Tex.App.-San Antonio Feb. 11, 2009, no pet.) (mem. op., not designated for publication); Ex parte McFarland, No. 04–03–00154–CR, 2003 WL 21658599 (Tex.App.-San Antonio July 16, 2003, no pet.) (mem. op., not designated for publication). Further, at the bail reduction hearing, defense counsel offered many other bail amount cases for the court to consider; the State did not object to the court comparing the cases.
In Martinez, the defendant was charged with killing four people, two under six years of age, by shooting them multiple times. Martinez v. State, No. 14–96–01339–CR, 1997 WL 197897, at *3 (Tex.App.-Houston [14th Dist.] Apr. 24, 1997, no pet.) (not designated for publication). He shot one victim six times: three shots were to the back of the victim's head and body. Id. The appellate court reversed the trial court's order setting bail at $2,000,000.00, and remanded the case for the trial court to either deny bail or set bail in accordance with the law. Id.
In Simpson, the defendant was a gang member charged with capital murder for a “brutal, gang-related murder.” Ex parte Simpson, 77 S.W.3d 894, 897 (Tex.App.-Tyler 2002, no pet.). The court described the circumstances as “a violent, unprovoked killing [that] suggest[s] an appalling lack of concern for human life.” Id. The court described Simpson as “an individual with a violent and unrepentant nature,” and affirmed the trial court's setting of bond at $600,000.00.
Id. at 895, 897. 3. Additional evidence
In a previous appeal of the same matter, the appellate court held a $1,000,000.00 bond was excessive. On remand, the trial court set bail at $600,000.00, and the appellate court affirmed the lesser amount.
Finally, as additional evidence to support the bail amount, the majority also cites Gonzalez's “penchant for guns,” his wife's “willingness to purchase guns for him,” family connections to Mexico, a failed passport application, and an informant's subjective fear of reprisal. But a closer look at the evidence shows its weakness. In Texas, owning four guns can hardly support the inference of future criminal behavior. Absent some legal impediment (that the State has not alleged), the purchase of guns by Gonzalez's wife is of little import. As discussed above, Gonzalez has limited family connections to Mexico, expressed some interest in a job there, and initiated but failed to complete an application for a passport—which he would need for travel to Mexico. Without a passport, with no evidence of any pending employment in any other state, with home confinement and electronic monitoring, and with a history of complying with probation conditions, Gonzalez does not appear to be a significant flight risk. As noted earlier, the limited evidence of Gonzalez's financial status supports the trial court's ruling, but little else does.
Conclusion
The primary purpose of bail is to give a reasonable assurance that the defendant will appear for trial. See Stack v. Boyle, 342 U.S. 1, 9, 72 S.Ct. 1, 96 L.Ed. 3 (1951) (Jackson, J., dissenting); Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex.Crim.App.1977). Even for reprehensible, egregious offenses, if the court does not deny bail, the bail must not be excessive and it must not be used as an instrument of oppression. SeeU.S. Const. amend. VIII (prohibiting excessive bail); Tex. Const. art. I, § 13 (same); Tex.Code Crim. Proc. Ann. art. 17.15 (West 2005) (no oppression); Eggleston v. State, 917 S.W.2d 100, 102 (Tex.App.-San Antonio 1996, no pet.) (no oppression). This court cannot sustain a bail amount “higher than an amount reasonably calculated to [give reasonable assurance]” that the defendant will appear for trial. See Stack, 342 U.S. at 5, 72 S.Ct. 1. As the majority notes, Gonzalez presented little evidence of his current financial resources, and although he was found indigent for the purposes of appointed representation, the trial court could have determined that Gonzalez did not meet his burden to establish his limited financial resources that would necessitate a reduction in bail. But because bail in the amount of $1,500,000.00 marks a significant increase over any bail we have ever upheld for a single capital murder charge, I believe a cautionary concurrence is in order. Therefore, I respectfully concur.