No. 10-07-00304-CR
Opinion delivered and filed December 12, 2007. DO NOT PUBLISH.
Appeal from the 361st District Court Brazos County, Texas Trial Court No. 07-002188-CV-361.
Before Chief Justice, GRAY, Justice VANCE, and Justice REYNA. Chief Justice GRAY dissenting with a note.
We are way out of bounds on what we are considering and the weight we are giving it. Even if we determined the bail was established in an excessive amount, what gives us the authority to make the decisions necessary to set the amount of bail? I realize we have set the amount of bail in prior proceedings, but really, where is our authority derived to do any more than to say the amount set is excessive, set the order aside, and remand for a new determination by the trial court? I would not modify the amount of bail, so I will dissent. I dissent.
BILL VANCE, Justice.
Helen Mayfield is charged by indictment with a total of fifty counts of "forgery financial instrument" in twelve causes, according to the State's brief. Bail was originally set at $20,000 per count on sixteen counts ($320,000) and at $5,000 per count on the thirty-four other counts ($170,000), for total bail of $490,000. Mayfield filed an application for writ of habeas corpus, alleging that the $490,000 bail was excessive and requesting the trial court to lower bail to $500 per count on each count. The trial court reduced bail on the sixteen counts from $20,000 per count to $5,000 per count but denied relief on the other sixteen counts, thus reducing total bail from $490,000 to $250,000 with the condition that she wear an ankle monitor if released on bond. Mayfield appeals, complaining in her first issue that the trial court abused its discretion in refusing to further reduce bail and that the $250,000 remains excessive. Because most of the evidence supports a reduction of bail and Mayfield's bail is excessive when compared to other cases, we will reverse the trial court's ruling judgment and reduce her bail to $50,000 (or $1,000 per count).
Standard of Review
We review a trial court's pretrial bail determination under an abuse-of-discretion standard. Ex parte Rubac, 611 S.W.2d 848, 850 (Tex.Crim.App. [Panel Op.] 1981); Ex parte Davis, 147 S.W.3d 546, 548 (Tex.App.-Waco 2004, no pet.). A habeas applicant bears the burden of proving that her bail is excessive. Rubac, 611 S.W.2d at 849; Davis, 147 S.W.3d at 548. Article 17.15 lists five factors to be considered in determining what bail is appropriate: 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 (Vernon 2005). Other pertinent factors include family and community ties, work history, length of residence in the county, prior criminal record, conformity with conditions of prior bonds, and any aggravating circumstances of the offense. Rubac, 611 S.W.2d at 849-50; Davis, 147 S.W.3d at 548. We will review the trial court's decision in light of the above factors. Sufficiently High to Give Reasonable Assurance of Appearance
"[B]ail should be set high enough to give reasonable assurance that the defendant will appear at trial." Ex parte McCullough, 993 S.W.2d 836, 837 (Tex.App.-Waco 1999, no pet.) (quoting Ex parte Brown, 959 S.W.2d 369, 371 (Tex.App.-Fort Worth 1998, no pet.)). A defendant's ties to the community and work history bear on the adequacy of bail to give reasonable assurance he will appear. See McCullough, 993 S.W.2d at 837-38. Mayfield is a 59-year-old self-employed attorney. She is unmarried and has been sharing an apartment in College Station for about two years with her 35-year-old son who suffered a closed-head injury in an auto accident and is disabled. Mayfield is her son's sole support. She is a Texas native, and her parents are retired teachers. After getting her undergraduate degree from the University of Texas, she appears to have worked and taught in the social worker field in Michigan for over twenty years. She returned to Texas and received her law degree from the University of Houston and has practiced law for seven years. She has also been living in Houston with a friend, and she has had a law office in Houston for seven years. She claims to have several pending cases in and around Houston. If released on a bail bond, she intends to return to Houston. Around the time of her arrest and incarceration, she had received word that she was going to be offered a federal government job as a social worker in a Texas military hospital. Her passport has been seized by police. The State contends that because Mayfield failed to appear in court as an attorney when she challenged her removal from the Brazos County appointment list, she is a risk to not appear. Mayfield responded that she failed to appear because she was in a jury trial. The evidence on this factor weighs in favor of a lower bail. Not So High as to Constitute an Instrument of Oppression
Bail set in a particular amount becomes "oppressive" when it is "based on the `assumption that [the accused cannot] afford bail in that amount and for the express purpose of forcing [the accused] to remain incarcerated pending [trial].'" McCullough, 993 S.W.2d at 837 (quoting Ex parte Harris, 733 S.W.2d 712, 714 (Tex.App.-Austin 1987, no pet.)). In considering this factor, we have looked to bond amounts in other cases. See Ex parte Emery, 970 S.W.2d 144, 145-46 (Tex.App.-Waco 1998, no pet.). In Emery, we held that a $100,000 bond was excessive for a defendant accused of delivering a controlled substance within 1,000 feet of a school and would be reduced to $35,000, even though defendant tested positive for marijuana and amphetamines after bond was initially set at $25,000, where the defendant was a 59-year-old woman who relied on a walker and wheelchair for mobility, had resided in the same city for 29 years, had significant ties to the community, had contacted her bondsman two or three times a week, her daughter testified that $35,000 was largest bond that could be afforded, there was no cognizable victim of crime, and the defendant had no prior arrests or convictions. See id. In a more recent case, the appellate court held that $360,000 bail on a second-degree felony theft was excessive and reduced bail to $10,000, consistent with trial court's bail schedule, where a woman was accused of stealing $183,214.50 from her husband's employer, she posed no threat to the victim, she had no prior convictions, and she had been jailed without trial for six months. See Ex parte Bogia, 56 S.W.3d 835 (Tex.App.-Houston [1st Dist]. 2001, no pet.); see also Richardson v. State, 181 S.W.3d 756 (Tex.App.-Waco 2005, no pet.) (trial court did not abuse its discretion in reducing bail from $500,000 to $200,000, instead of to $50,000 in case of woman accused of murder); Ex parte Sabur-Smith, 73 S.W.3d 436 (Tex.App.-Houston [1st Dist.] 2002, no pet.) ($150,000 bail was excessive in sexual assault case and was reduced to $30,000); Ex parte Parker, 26 S.W.3d 711 (Tex.App.-Waco 2000, no pet.) (trial court did not abuse its discretion in reducing bail from $75,000 to $50,000 where defendant charged with aggravated sexual assault of child under 14 years of age). The evidence and case law relevant to this factor weigh in favor of a lower bail. Nature and Circumstances of the Offenses
Mayfield is accused of forgery of financial instruments, including $6,000 in traveler's checks that she cashed at her bank, as a result of her involvement in one or more "e-mail scams" in which she received counterfeit checks from Africa for apparent money-laundering type purposes. Police found numerous stale counterfeit checks in Mayfield's apartment, along with evidence of numerous bank accounts (including one in Spain), and numerous international wire transfer receipts. Forgery of a financial instrument is a state jail felony punishable by up to two years' incarceration. TEX. PEN. CODE ANN. §§ 32.21(d), 12.35(a) (Vernon Supp. 2007). The charged offenses, while serious, are nonviolent and do not appear to warrant a particularly high bail. Ability to Make Bail
Although a defendant's ability to make bail is a factor for consideration, inability to make bail, even to the point of indigence, does not control over the other factors. Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex.Crim.App. [Panel Op.] 1980); Davis, 147 S.W.3d at 548. Mayfield testified that she had no money, was bankrupt, had lost clients as a result of her incarceration, was unable to make a livelihood while in jail, and is unable to make the $490,000 bail. Her retired parents cannot help her financially. Mayfield does own some real estate that she inherited but it is in poor condition, and she indicated that she had recently won two big cases but had not been paid on them yet. Mayfield has requested release on a personal recognizance bond, and at the bond reduction hearing, she sought bail reduction to $500 per count. The evidence on this factor weighs in favor of a lower bail. Future Safety of the Community
As noted, Mayfield is charged with nonviolent crimes. The State posits that Mayfield is a flight risk (because of trips to Canada and Spain in connection with the underlying scheme and her international contacts) and that she poses a danger to "any unsuspecting, gullible person with an e-mail account and to their financial institution." But if released, Mayfield will be wearing an ankle monitor and police have her passport, and the trial court can impose other reasonable conditions with respect to her potentially engaging in the same conduct that she has been accused of. The evidence and other information pertinent to this factor tend to support bail in a lower amount. Other Factors
Other pertinent factors include prior criminal record, conformity with conditions of prior bonds, and any aggravating circumstances of the offense. Rubac, 611 S.W.2d at 849-50; Davis, 147 S.W.3d at 548. Mayfield said that she had been pardoned for a $12 hot check conviction that happened thirty years ago. At the time of her arrest, she was out on bond for felony theft charges in Burleson County relating to two vehicles; Mayfield claims in her brief that she gave a dealer a post-dated check for the vehicles pending a settlement, but the settlement fell through. The vehicles were returned to the dealer, who nevertheless pressed charges. Since her incarceration in Brazos County, Mayfield has been indicted on two felony theft charges in Burleson County. There is no evidence that Mayfield violated her bond in the Burleson County case. A final factor in Mayfield's favor is that she has been jailed without trial for about four months, and lengthy pretrial detention should not be a substitute for a trial — the purpose of our constitutional and statutory law on bail is to guarantee that it is not. Bogia, 56 S.W.3d at 840. After considering the factors of article 17.15, relevant case law, and the record before us, we hold that the trial court abused its discretion in reducing Mayfield's bail from $490,000 to $250,000, but not in requiring Mayfield to wear an ankle monitor if released. We sustain Mayfield's first issue in part and order a reduction in her bail to $50,000 (or $1,000 per count).