Summary
holding that reduction of bail from $500,000 to $100,000, instead of to $20,000, on charges of aggravated assault with deadly weapon, was not abuse of discretion
Summary of this case from Ex Parte ShieldsOpinion
Nos. 10-05-00147-CR, 10-05-00148-CR, 10-05-00149-CR
Opinion delivered and filed February 15, 2006. DO NOT PUBLISH.
Appeal from the 85th District Court, Brazos County, Texas, Trial Court Nos. 05-000460-CV-85, 05-01101CRF-85, 04-03577-Crm-85, and 04-03872-Crm-85. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
Joseph Leon Jenkins appeals the trial court's denial of his request to reduce his bail to $20,000. We will affirm. Jenkins was charged with committing three offenses. In cause number 04-03577-CRM-85, Jenkins was charged with theft of service, allegedly occurring on August 5, 2003. In cause number 04-03782-CRM-85, Jenkins was charged with marihuana possession, allegedly occurring on January 28, 2004. When Jenkins failed to appear in court in these two cases, a capias was issued and bail was reset at $4,000 in each case. After being re-arrested, Jenkins made bail in each case by posting bail bonds on December 23, 2004. On January 6, 2005, Jenkins allegedly committed aggravated assault with a deadly weapon (cause number 05-01101-CRF-85), and he was arrested three days later. Bail was set at $500,000. On January 12, Jenkins's bail bondsman filed affidavits seeking to be relieved as Jenkins's surety in the misdemeanor causes. The trial court released the surety and reset bail at $4,000 in each case. Jenkins filed an application for writ of habeas corpus, seeking a bond reduction. Jenkins filed his application for writ of habeas corpus in the 85th District Court because he was already on deferred adjudication community supervision in that court (for misdemeanor assault that had been originally filed as a felony). Jenkins sought a bail reduction in the felony aggravated assault case to $20,000. The trial court granted relief in the felony case (cause 05-01101-CRF-85), reducing bail from $500,000 to $100,000. The trial court denied relief in the two misdemeanor cases. Jenkins appeals, claiming the trial court abused its discretion in not lowering bail to $20,000. We have jurisdiction of an appeal of a trial court's denial of habeas corpus relief. E.g., Ex parte Davis, 147 S.W.3d 546 (Tex.App.-Waco 2004, no pet.). 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); Davis, 147 S.W.3d at 548. A habeas applicant bears the burden of proving that his 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. "[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. A defendant's compliance with the conditions of any prior bonds likewise bears on this issue. Jenkins has lived in Brazos County his entire life. All of his family lives in Brazos County. No evidence of Jenkins's work history was presented. The State offered evidence of Jenkins's failure to appear in court on his two misdemeanor cases and of his surety's request to be relieved on the two misdemeanor bonds. 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.)). The record contains nothing to indicate that the trial court rendered its decision on this basis, especially with the trial court having reduced bail from $500,000 to $100,000. In considering this factor, appellate courts 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.). Jenkins's brief offers no contemporary cases that would suggest $100,000 bail in this case is oppressive. In the felony case, Jenkins is charged with aggravated assault with a deadly weapon for allegedly shooting Samuel Holmes. According to the State, Jenkins walked up to a house and knocked on the door. When Holmes answered, Jenkins fired five shots into the house from a pistol, hitting Holmes in the hand, chest, abdomen, and leg. Others were in the house. On the way to the hospital, Holmes identified Jenkins as the assailant. Aggravated assault with a deadly weapon carries a potential maximum sentence of life imprisonment and a fine of up to $10,000. See TEX. PEN. CODE ANN. §§ 12.32, 22.02 (Vernon 2003 Supp. 2005). The violent nature of this alleged offense — committed while Jenkins was on deferred adjudication community supervision for misdemeanor assault — suggests that a high bail amount is appropriate. 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. Jenkins has no money in the bank, no savings accounts, or no stocks or bonds. He does not own real property or a vehicle. His family could help him pay for a $20,000 bond. The probable cause statement for the felony offense shows that the victim knew Jenkins and that Jenkins knew where the victim lived. Jenkins was on deferred adjudication community supervision and had two pending misdemeanor charges when the aggravated assault allegedly occurred. After considering the factors of article 17.15 and the record before us, we cannot say the trial court abused its discretion in refusing to reduce Jenkins's bail to $20,000. See McCullough, 993 S.W.2d at 839. Accordingly, we overrule his sole issue and affirm the trial court's ruling.