Brown, Darrin Keith v. State

Opinion issued August 30, 2002

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00507-CR

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EX PARTE DARRIN KEITH BROWN, Appellant

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 908471

O P I N I O N

Appellant, Darrin Keith Brown, appeals the trial court's refusal to grant him

habeas corpus relief when it declined to reduce his $125,000 bail.

Facts

Appellant is charged with possession of more than four grams and less than

200 grams of cocaine, enhanced by two alleged prior felony convictions. The

punishment range for such an offense is confinement for twenty-five years to ninety-nine years or life. See Tex. Pen. Code Ann. §12.42 (d) (Vernon Supp. 2002). At the

April 2002 bail reduction hearing, the State introduced appellant's indictment and

rested.

Appellant put on two witnesses, his mother and himself. His mother testified

that she had contacted four bonding companies and could not make the $125,000 bail.

She is disabled and her husband is a carpenter. They have monthly income of about

$1,000, and, after expenses, they could pay about $200 a month toward a bond. They

do not own a house, a car, or have cash in a bank account. She has jewelry worth

about $2000. She thinks her friends and relatives could raise $10,000. They have no

other assets to pledge as collateral for a bond.

Appellant's mother testified that appellant has lived in Harris County all his

life. Before this incident, he was living with his mother and his step-father, who are

also life-long Harris County residents. If released on bond, he would continue to live

with them. Appellant also has aunts, uncles, and siblings living in Harris County.

None of her son's prior crimes, or the one currently charged, have involved violence.

Appellant testified that he has been in jail for four months. He cannot make the

$125,000 bail. He has no money in the bank, no car, no house, nor other assets,

except some jewelry that is worth $400 to $500, to help make the bail. Before he was

arrested, he made $550 to $600 a month, and, if released on bail, he could and would

go back to the refinery waterblasting work he was doing.

In August 2001, in connection with a prior offense, appellant successfully

completed parole, complying with all its conditions.

Appellant has never been married and has no children. He attended school

through the 11th grade. If released on bail, he intends to appear for all the trial

settings, as well as the trial, to which he is looking forward so that he can present his

case.

The trial court refused to reduce appellant's bail.

Appellant contends that $125,000 bail is excessive.

Analysis

There is no precise standard for reviewing bond settings on appeal. Ex parte

Pemberton , 577 S.W.2d 266, 267 (Tex. Crim. App. 1979). A reviewing court is

guided by article 17.15 of the Texas Code of Criminal Procedure. Id . Article 17.15

provides:

The amount of bail to be required in any case is to be

regulated by the court, judge, magistrate or officer taking

the bail; they are to be governed in the exercise of this

discretion by the Constitution and by the following rules:

(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 Supp. 2002).

A defendant has the burden to show that bail is excessive. Ex parte Rubac , 611

S.W.2d 848, 849 (Tex. Crim. App. 1981); Ex parte Willman , 695 S.W.2d 752, 754

(Tex. App.--Houston [1st Dist.] 1985, no pet.). The primary factors to be considered

in determining what constitutes reasonable bail are the punishment that can be

imposed and the nature of the offense. Rubac , 611 S.W.2d at 849 ; Hughes v. State ,

843 S.W.2d 236, 237 (Tex. App.--Houston [14th Dist.] 1992, no pet.). Other

circumstances and factors to be considered in determining the amount of bail include:

family ties, residency, ability to make bond, aggravated factors involved in the

offense, the defendant's work history, prior criminal record, and previous outstanding

bonds. Rubac , 611 S.W.2d at 849 ; Willman , 695 S.W.2d at 754 . The ability to make

bail, alone, does not control the amount of bail. Ex parte Charlesworth , 600 S.W.2d

316, 317 (Tex. Crim. App. 1980).

Regarding such factors as family ties and residency, appellant produced

evidence weighing in favor of bail reduction. Appellant's evidence on work history

was inconclusive, showing that he had a job before he was arrested, but not indicating

how long he had held such a job. With respect to previously outstanding bonds,

appellant introduced no evidence of whether he had made bonds in connection with

his prior criminal offenses, and, if so, whether he complied with such bonds by

making all his court appearances. However, appellant did introduce evidence of

successfully completing parole. On the subject of future safety of the victim and the

community, appellant produced evidence that there were no allegations of violence

for the charged offense or in his prior offenses.

Concerning appellant's ability to make bail, appellant and his mother gave

uncontroverted testimony that he could not make the $125,000 bail, but, with the help

of family and friends the family could raise $10,000. However, while the accused's

ability to make bail is relevant, it is not controlling in setting bail. See Ex parte

Sabur-Smith , 73 S.W.3d 436, 440 (Tex. App.--Houston [1st Dist.] 2002, no pet.).

The primary factors to be considered in determining what constitutes

reasonable bail are the punishment that can be imposed and the nature of the offense.

Rubac , 611 S.W.2d at 849 ; Hughes , 843 S.W.2d at 237 . The offense with which

appellant is charged is a second degree felony, enhanced with two prior felony

convictions, carrying a punishment of confinement ranging from twernty-five years

to life. See Tex. Pen. Code Ann. §12.42 (d) (Vernon Supp. 2002). The State cites

Willman for the proposition that drug cases, by their very nature, require

consideration of other factors such as the involvement of large amounts of cash and

the involvement of financial backers willing to forfeit bonds that are not sufficiently

high. See Willman , 695 S.W.2d at 753 . This case is distinguishable from Willman

and others like it, however, in that appellant is not charged with delivery of large

amounts of a controlled substance, but rather with possession of a relatively small

amount. See Willman , 695 S.W.2d at 753 (Willman charged with delivery of

approximately 2,000 grams of cocaine and $300,000 bail held not excessive);

Patterson v. State , 841 S.W.2d 534, 534-35 (Tex. App.--Houston [1st Dist.] 1992,

pet. ref'd) (Patterson charged with possession with intent to deliver , 1,262.6 grams

of cocaine involved, and $150,000 bail held not oppressive).

In considering the propriety of bail in Harris County cases, this Court has

considered the "Harris County Bail Schedule." See Ex parte Bogia , 56 S.W.3d 835,

838 (Tex. App.--Houston [1st Dist.] 2001, no pet.). The bail schedule provides for

"no bond" for cases that fit the "habitual" criteria of section 11a of the Texas

Constitution. See id . at 841. The State argues that "no bail" could have been sought

in this case, undoubtedly because appellant's offense is alleged to have taken place

after two alleged prior felony convictions. See Tex. Const. §11(a),(1). However,

this argument overlooks the second prong of §11(a), requiring that there be evidence:

"substantially showing the guilt of the accused of the offense in (1) . . . ." See Tex.

Const. §11a(a). In this case, at the bail reduction hearing, there was no evidence

substantially showing the guilt of the accused of the charged offense. Therefore, "no

bail" under the "habitual" offender provision was not, and is not, a consideration in

evaluating the propriety of bail in this case.

The bail schedule also suggests that, for cases involving large quantities of

controlled substance, the bail be set at double the value of the controlled substance.

Regardless of whether the amount of cocaine allegedly involved in this case is

considered large or small, there was no evidence of its alleged value. Therefore, this

guideline also was not, and is not, a viable consideration in evaluating the propriety

of bail in this case.

The category on the bail schedule closest to the situation in this case is for a

second degree felony with a prior conviction, for which the bail schedule suggests a

bail of $20,000. See id . Here, however, appellant's indictment for a second degree

felony contains two enhancement paragraphs alleging he has two prior felony

convictions, which appellant did not dispute at the bail reduction hearing. If

convicted, therefore, appellant faces possible confinement of twenty-five years to life

in prison. These considerations are counter-balanced by appellant's ties to the

community and past history of completing parole. Additionally, we consider the

aggravating fact that appellant was arrested for this offense less than a year after

completing parole related to one of those prior felony convictions.

Having weighed the preceding considerations, we are of the opinion that bail

of $125,000 in this case is excessive, and we lower it to $75,000.

Evelyn Keyes

Justice

Panel consists of Justices Hedges, Jennings, and Keyes.

Do not publish. Tex. R. App. P. 47.