Opinion
14-22-00813-CR
08-15-2023
EX PARTE COTY ROMEL KELLY, Appellant
Do Not Publish - Tex.R.App.P. 47.2(b)
On Appeal from the 412th District Court Brazoria County, Texas Trial Court Cause No. 94557-CR
Panel consists of Chief Justice Christopher and Justices Jewell and Spain.MEMORANDUM OPINION
KEVIN JEWELL JUSTICE
In this appeal of the denial of an application for writ of habeas corpus, we consider whether the trial court abused its discretion in setting appellant's pretrial bail at $1,000,000. We affirm the trial court's order.
Background
A grand jury indicted appellant Coty Romel Kelly for the offense of murder. Appellant is alleged to have shot and killed Andrew Young on September 8, 2021. At the hearing, the trial court admitted without objection a probable cause affidavit from another offense related to this arrest. That affidavit states that appellant informed police that Young confronted appellant outside his home with a gun and threatened to kill him. Young fired multiple times toward appellant, eventually shooting him in the arm. After Young dropped the firearm, appellant picked it up and fatally shot Young. Based on the injuries and gunfire exchange, police procured a search warrant for appellant's home. Once inside, they discovered ten ounces of marijuana divided into small plastic bags and 338 MDMA pills. Police arrested appellant on January 28, 2022, and his bond was set at $1,000,000.
Appellant filed a pretrial application for writ of habeas corpus to reduce his $1,000,000 bond. Appellant presented two witnesses at the habeas hearing: his mother and a friend.
Mother - Kathy Reynolds
Reynolds testified that they are from Mississippi but appellant and his six siblings have lived in Brazoria County since 2008. According to Reynolds, appellant was renting a home and working at his own auto-mechanic business at the time of the underlying offense. Reynolds testified that she was unaware of appellant's financial situation and had no knowledge of his bank accounts or "ready" cash, but she knows that he owns multiple vehicles. She had no knowledge of any other property appellant owned. Reynolds had not consulted a bail bondsman but testified that she and appellant's siblings have been working to save money for appellant's bond. Reynolds thought that she and her family could raise enough money to pay a 10% premium on a $100,000 bond. She said that two of appellant's siblings and two of his friends were at the hearing supporting appellant. Reynolds denied having knowledge that her son had been arrested in Mississippi for possession of a controlled substance and was not aware whether he had previously been arrested in Texas.
Friend - Tasha Davis
Davis testified that she has lived in Brazoria County her entire life and has known appellant for five years. Since appellant was arrested, Davis has been working with appellant's family to gather funds for his bond. Davis testified that she listed appellant's vehicles for sale in order to pay for the bond. Davis testified that she believes she can get between $7,000 and $8,000 for the vehicles. However, upon cross-examination, Davis specified that there were five vehicles for sale totaling $17,500. She knew that appellant did not own the shop where he worked, but she did not know whether appellant owned any other property or if he had any bank accounts or savings. Davis said that she has called several bail bond companies and believes the family can afford a 10% premium on a $100,000 bond. As of the time of the hearing, she had raised $5,000.
Davis knew that appellant was acquitted of a previous criminal charge. She was not aware of any other criminal charges. Davis testified that she does not believe appellant is a danger to anyone.
The State did not present witnesses but offered the probable cause affidavit for a related drug offense, summarized above.
After both sides presented closing arguments, the court declined to reduce appellant's bond amount. We have jurisdiction over an appeal challenging a trial court's order in a habeas proceeding regarding a complaint of excessive pretrial bail. See Tex. R. App. P. 31; Ex parte Lanclos, 624 S.W.3d 923 (Tex. Crim. App. 2021).
Standard of Review and Applicable Law
The right to be free from excessive bail is protected by the United States and Texas Constitutions. See U.S. Const. amend. VIII; Tex. Const. art. I, § 11. We review a challenge to the excessiveness of bail for an abuse of discretion. See Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981); Ex parte Dupuy, 498 S.W.3d 220, 230 (Tex. App.-Houston [14th Dist.] 2016, no pet.). A defendant carries the burden of proof to establish that bail is excessive. Ex parte Rubac, 611 S.W.2d at 849. Under this standard, we may not disturb the trial court's decision if it falls within the zone of reasonable disagreement. See Ex parte Castillo-Lorente, 420 S.W.3d 884, 887 (Tex. App.-Houston [14th Dist.] 2014, no pet.).
The amount of bail required in any case is within the discretion of the trial court subject to the following rules:
1. Bail and any conditions of bail shall be sufficient to give reasonable assurance that the undertaking will be complied with.
2.The power to require bail is not to be used to make bail an instrument of oppression.
3.The nature of the offense and the circumstances under which the offense was committed are to be considered, including whether the offense:
(A) is an offense involving violence as defined by Article 17.03; or
(B) involves violence directed against a peace officer.
4.The ability to make bail shall be considered, and proof may be taken on this point.
5. The future safety of a victim of the alleged offense, law enforcement, and the community shall be considered.
6. The criminal history record information for the defendant, including information obtained through the statewide telecommunications system maintained by the Department of Public Safety and through the public safety report system developed under Article 17.021, shall be considered, including any acts of family violence, other pending criminal charges, and any instances in which the defendant failed to appear in court following release on bail.
7.The citizenship status of the defendant shall be considered.Tex. Code Crim. Proc. art. 17.15(a).
In addition to the factors listed in article 17.15(a), courts may consider the following additional factors: (1) the accused's work record; (2) the accused's family and community ties; (3) the accused's length of residency; (4) the accused's conformity with previous bond conditions; (5) the existence of other outstanding bonds, if any; and (6) the aggravating circumstances alleged to have been involved in the charged offense. See Ex parte Rubac, 611 S.W.2d at 850; Ex parte Melartin, 464 S.W.3d 789, 792 (Tex. App.-Houston [14th Dist.] 2015, no pet.).
Analysis
Appellant contends the trial court abused its discretion in denying habeas relief. He argues that because there was no evidence he presents a danger to the community and cannot raise funds for $1,000,000 bail, the bail amount is excessive and oppressive.
A. Nature and circumstances of alleged offense
When determining reasonable bail, a trial court shall give the most weight to the nature of the offense and the length of possible sentence. See Ex parte Rubac, 611 S.W.2d at 849; Ex parte Nimnicht, 467 S.W.3d 64, 67 (Tex. App.-San Antonio 2015, no pet.). It is appropriate to consider whether the offense alleged to have been committed involved violence in setting the amount of bail. Nimnicht, 467 S.W.3d at 67.
Appellant is charged with murder, a violent crime that carries a long sentence. See Tex. Code Crim. Proc. art. 17.03(b-3)(2)(A). Murder is a first-degree felony that is punishable by confinement of 5 to 99 years or life in prison. See Tex. Penal Code § 12.32(a). The potential of life imprisonment provides incentive to flee. See Ex parte Temple, 595 S.W.3d 825, 829-30 (Tex. App.- Houston [14th Dist] 2019, pet. refd) (affirming a $1,000,000 bond where defendant's murder charge and conviction provided a strong incentive to flee); Ex parte Bowman, No. 14-17-00736-CR, 2017 WL 6545099, at *2 (Tex. App.- Houston [14th Dist.] Dec. 21. 2017, no pet.) (mem. op., not designated for publication). Because murder is a violent offense a high bail amount is reasonable. See Ex parte Bowman, 2017 WL 6545099, at *2; Ex parte Chavfull, 945 S.W.2d 183, 187 (Tex. App.-San Antonio 1997, no pet.) (affirming $750,000 bail for defendant charged with murdering individual with firearm given violent nature of crime).
B. Amount sufficiently high to assure appearance but not oppress
Bail must be in an amount sufficient to give reasonable assurance that the defendant will appear. But bail may not be used as an instrument of oppression. Tex. Code Crim. Proc. art. 17.15(a)(2); see Ex parte Guerra, 383 S.W.3d 229, 233-34 (Tex. App.-San Antonio 2021, no pet.). Bail set in a particular amount becomes oppressive when it assumes that the defendant cannot afford bail in that amount and when it is set for the express purpose of forcing the defendant to remain incarcerated. See Ex parte Durst, 148 S.W.3d 496, 499 (Tex. App.- Houston [14th Dist.] 2004, no pet.) (when bail amount set "solely to prevent [defendant] from getting out of jail," "bail [was] being used as an instrument of oppression").
In his brief, appellant cites cases where a $1,000,000 bond was deemed excessive. However, all three cases cited by appellant are over twenty years old, not controlling, and do not "provide useful dollar-to-dollar comparisons due to the changing value of money." Ex parte Dupuy, 498 S.W.3d 220, 233 (Tex. App.- Houston [14th Dist.] 2016, no pet). More recent cases instruct that a $1,000,000 bail amount for a murder charge is not patently excessive or oppressive. See, e.g., Ex parte Lucas, No. 06-20-00127-CR, 2021 WL 1181202, at *4 (Tex. App.- Texarkana Mar. 30, 2021, no pet.) (mem. op., not designated for publication) (affirming $1,000,000 bond amount for police officer charged with murder); Ex parte Barrera, No. 11-21-00131-CR, 2021 WL 5934626, at *3 (Tex. App.- Eastland Dec. 16, 2021, pet. ref'd) (affirming $1,000,000 bail for murder charge); Ex parte Garner, No. 10-18-00129-CR, 2018 WL 3469834, at *2-5 (Tex. App.- Waco Jul. 18, 2018, no pet.) (mem. op., not designated for publication) (affirming $1,000,000 bond for murder where appellant had local ties and no criminal history); Ex parte Green, No. 02-13-00474-CR, 2014 WL 584960, at *5 (Tex. App.-Fort Worth Feb. 13, 2014, no pet.) (mem. op., not designated for publication) (affirming $1,000,000 bond for murder).
See Ex parte Simpson, 77 S.W.3d 894, 897 (Tex. App-Tyler 2002, no pet.) (court of appeals affirmed $600,000 bond in "brutal, gang-related murder" after holding $1,000,000 to be excessive); Ex parte McDonald, 852 S.W.2d 730, 735-36 (Tex. App.-San Antonio 1993, no pet.) (court of appeals held $1,000,000 bond excessive where husband kidnapped and murdered wife); Eggleston v. State, 917 S.W.2d 100, 101 (Tex. App.-San Antonio 1996, no pet.) (court of appeals ordered bail reduced from $1,000,000 to $300,000 where father murdered son).
Although some courts have reversed orders setting bail at $1,000,000 for a murder charge, several courts have upheld a similar amount for comparable charged offenses. The question here is whether the trial court's decision falls outside the zone of reasonable disagreement. See Ex parte Castillo-Lorente, 420 S.W.3d at 887. The trial court reasonably could have concluded that bail of $1,000,000 for the charged murder offense is not higher than reasonably necessary to assure compliance with the undertaking and that bail is not unconstitutionally oppressive.
C. Ability to make bail
To demonstrate inability to make bail, a defendant generally must establish his and his family's funds have been exhausted. Ex parte Dupuy, 498 S.W.3d at 234. The accused's ability to make bail is only one factor to be considered in determining the appropriate amount of bail. Id. "'If the ability to make bond in a specified amount controlled, then the role of the trial court in setting bond would be completely eliminated, and the accused would be in the unique posture of determining what his bond should be.'" Id. at 235 (quoting Ex parte Miller, 631 S.W.2d 825, 827 (Tex. App.-Fort Worth 1982, pet. ref'd)).
Appellant's evidence of his inability to make bail was limited to the testimony of his mother and his friend. Reynolds and Davis both testified that appellant is not able to post the $1,000,000 bond or a $100,000 premium on the bond, even with the assistance of his family and friends. Appellant owns five vehicles that could be sold to raise $17,500. They believed that $10,000 was the most they could raise and pay for a bond premium. But appellant presented no documentary evidence of his assets and financial resources. Prior to his arrest, appellant operated his own business and could have savings deposited in unaccounted-for bank accounts. Reynolds and Davis testified that they did not know whether appellant had checking or savings accounts.
Without a showing that available funds have been exhausted, evidence of the "largest bond" a defendant can make is generally insufficient to meet a defendant's burden to demonstrate that a bail amount is excessive. See Ex parte Ruiz, 129 S.W.3d 751, 754 (Tex. App.-Houston [1st Dist.] 2004, no pet.) (concluding that bail bondsman's testimony of "largest bond" defendant could make did not carry burden to establish inability to make bail); see also Ex parte Dupuy, 498 S.W.3d at 235 (considering appellant's failure to offer documentary evidence of assets and financial resources in holding the trial court did not abuse its discretion in declining to reduce appellant's bail).
Because appellant has offered vague and incomplete evidence supporting his claimed inability to make bail, the trial court properly could have concluded that the amount of bail was reasonable under the circumstances. See Ex parte Scott, 122 S.W.3d 866, 870 (Tex. App.-Fort Worth 2003, no pet.) (in affirming trial court's refusal to lower bail, court cited as a factor absence of evidence regarding defendant's ability to make bail when defendant's evidence consisted of his testimony that he and his family lacked sufficient assets or financial resources to post the bond, but he did not detail either his or his family's specific assets and financial resources or his efforts to furnish bond).
D. Future safety of the victims and the community
The trial court must also consider the future safety of the victim of the alleged offenses and the community in setting appropriate bail amounts. See Tex. Code Crim. Proc. art. 17.15(a)(5). Appellant is alleged to have committed a violent crime under circumstances indicating that appellant may have been engaged in drug-trafficking activity. See Milner v. State, 263 S.W.3d 146, 151 (Tex. App.-Houston [1st Dist.] 2006, no pet.) ("[T]he gravity and the nature of the charges against [defendant] indicates that he presents a risk to the safety of the community."). The nature and circumstances of the alleged offense demonstrates a potential risk to the community. See Ex parte Ragstan, 422 S.W.3d 904, 908 (Tex. App.-Houston [14th Dist.] 2014, no pet.) ("The violent nature of the offense demonstrates a potential risk to the community."). This factor weighs in favor of the trial court's finding.
E. Ex parte Rubac Factors
The trial court also may consider other factors such as the accused's work record, family and community ties, length of residency, compliance with previous bonds and existence of outstanding bonds, and aggravating circumstances. See Ex parte Castellanos, 420 S.W.3d 878, 882 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (citing Ex parte Rubac, 611 S.W.2d at 849-50).
The record shows appellant operated an auto-mechanic business. The record does not reflect how long appellant ran this business. The record shows that he rented the property where his shop was located. Appellant has lived in Brazoria County since 2008, though he moved here from Mississippi. His mother and six siblings also live in the county. There was some testimony that appellant was acquitted of a prior criminal charge, though the record does not reflect the nature of that charge or any other information about his criminal record. The record did not reflect whether appellant had ever been released on any bonds or any information regarding prior bonds. Appellant is alleged to have used a firearm to commit the murder and police found a substantial quantity of drugs in his home at the time of arrest.
The factors weighing in favor of reducing the bail amount are appellant's prior employment status, his family ties to the community, and his length of residency in Brazoria County. However, the trial court may have concluded that these factors do not overcome the violent nature of the offense, the flight risk appellant poses, evidence of appellant's additional criminal activities, potential risk to the community, and the generally inadequate nature of evidence showing an inability to make bail. See Ex parte Bowman, 2017 WL 6545099, at *4. Based on the evidence before the trial court, we conclude the trial judge reasonably could have concluded the bail amount was justified by the circumstances presented. The trial court reasonably could have concluded bail in the amount of $1,000,000 was necessary to deter appellant from fleeing the jurisdiction and to ensure his presence at trial without being unconstitutionally oppressive. Id.
Conclusion
Based on our consideration of the above factors and the record evidence, we conclude that the trial court did not abuse its discretion in setting appellant's bail at $1,000,000 and in concluding that appellant did not demonstrate that bail in this amount is excessive. Accordingly, we overrule appellant's issue and affirm the trial court's order denying habeas-corpus relief.