Ex Parte: Charles Edward Turner--Appeal from 70th District Court of Ector County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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) No. 08-02-00355-CR

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) Appeal from the

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EX PARTE: CHARLES EDWARD TURNER ) 70th District Court

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) of Ector County, Texas

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) (TC# W2540-A)

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O P I N I O N

Appellant Charles Edward Turner is charged with murder and his bail was set at $250,000. Appellant petitioned for a writ of habeas corpus, complaining of excessive bail and lack of probable cause for his detention. The writ issued and after a hearing, the trial court found probable cause existed to detain Appellant and that bail was excessive, reducing Appellant=s bail to $100,000. On appeal, Appellant asserts that bail is still unduly excessive and requests that this Court reverse the trial court=s order and reduce his bail to $25,000. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At the habeas corpus hearing, State witness Detective Buzzy Abalos of the Odessa Police Department testified that he was the lead investigator of the homicide, which is the basis of this prosecution. According to Detective Abalos, on July 29, 2002 at about 10:30 p.m., Appellant shot eighteen-year-old Christopher Blair in the chest during a confrontation between the two in the parking lot between buildings in the Spanish Oaks Apartments complex. The victim died in route to the hospital.

Detective Abalos conducted interviews with several witnesses at the scene. The victim=s fourteen-year-old brother, Dexter Drennan, told Detective Abalos that he, his mother, and a family friend went to his brother=s apartment after receiving a telephone call from Blair and that either Blair or his mother were concerned that something was going to happen that night. They were in Blair=s apartment when Appellant knocked on the door. Blair=s brother witnessed the confrontation between Appellant and Blair and saw Appellant shoot his brother with a semiautomatic gun. Another witness, Daniel Morgan, saw Appellant and Blair arguing outside the apartment complex and observed Appellant push Blair. According to this witness, Blair put his arms up and Appellant shot him one time in the chest. Mr. Morgan also saw Appellant standing over Blair=s body and then heard Appellant say, AI just killed his ass.@ The police apprehended Appellant in Octavia Moseley=s apartment in the complex. The officers saw Appellant in the apartment and the female who had opened the door told the officers that Appellant did not belong in the apartment. From that information, Detective Abalos gathered that Appellant was attempting to hide from the police. Appellant refused to tell the officers where the gun was, but they were able to locate it in Appellant=s apartment behind one of the doors in his apartment.

Apparently, there were two confrontations between Appellant and Blair that day. Detective Abalos testified that in additional witness interviews, he learned that sometime prior to the shooting, Blair allegedly burglarized Appellant=s apartment and had taken $300. Witnesses also told the detective that Blair was doing drugs throughout that day and had threatened an eleven-year-old girl with a knife. In the first confrontation, Appellant confronted Blair about taking the money. Blair was armed with a butcher knife and a smaller butterfly knife, which is an illegal weapon. After this initial confrontation, Appellant left the apartment complex with his friend Marquett Wilburn and went to the house of another friend, J.J. Jones, to get the gun. When Appellant came back the second confrontation occurred, which resulted in Blair=s death. At the time of the shooting, Appellant was twenty-two years old.

Connie Turner, Appellant=s mother, testified that her son had lived in Ector County all his life, except for the year he spent in the Job Corps Program. Appellant had attended Permian High School, completing the tenth grade. Appellant went into the Job Corps to try to earn his G.E.D. and obtain job training. While in the Job Corps, he was living in Roswell, New Mexico for a little while, before being transferred to McCamey, Texas. While attending Job Corps in McCamey, Appellant worked part-time with his mother=s uncle cleaning offices in Dallas. Appellant left the Job Corps program at age twenty. Appellant worked for a few months in Dallas and then decided to return to Odessa, Texas. Since returning, Appellant had been looking for full-time regular employment. In the meantime, Appellant had been doing some maintenance work for his apartment complex, cutting yards to make money, and watching his five-month-old son while his girlfriend, the baby=s mother, worked at a daycare center.

Regarding Appellant=s family ties in the community, Ms. Turner testified that she lived and worked in Odessa. Both sets of Appellant=s grandparents live in Ector County. Appellant=s two brothers still live at home and Appellant has uncles and aunts who live in Ector County.

Ms. Turner stated that to her knowledge, Appellant has no assets that can be sold or used as collateral in raising money for a bond. Appellant does not own a vehicle nor any real estate. Appellant has no stocks or bonds and has nothing of value to pawn or sell. Any ability to make bond would come from his family members. Ms. Turner works as a correctional officer at the Civigenics Ector County Correction Center and earns $8.65 per hour, with net pay of $590 biweekly. Appellant=s paternal grandparents live on Social Security and his maternal grandmother works at Medical Center Hospital and earns about $600 biweekly. Ms. Turner did not know how much money Appellant=s girlfriend earns at the daycare center. Assuming that most bonding companies would require a 10 percent bond fee, Ms. Turner believed that the family could probably raise enough money for a $25,000 bond.

Before resting, the State introduced into evidence Appellant=s two prior convictions for misdemeanor offenses. In August 2001, Appellant pled guilty to the offense of interfering with the public duties of an officer and was sentenced to three days= confinement in the county jail, time served, and was fined $500. In March 1998, Appellant pled guilty to the offense of evading arrest or detention and was sentenced to three days= confinement in the county jail, time served, and was fined $350.

At the conclusion of the hearing, the trial court found that the bail was excessive, but expressed concerned about the possibility of flight and the seriousness of the crime. The trial court lowered Appellant=s bail to $100,000. Appellant now timely appeals the trial court=s order.

DISCUSSION

In his sole issue for review, Appellant argues that the trial court erred when it reduced bond to $100,000 on Appellant=s writ of habeas corpus for bail reduction because it is still excessive and violates his right to reasonable bail under the Texas constitution. See Tex.Const. art. I, '' 11, 13; Tex.Code Crim.Proc.Ann. arts. 1.07 and 1.09 (Vernon 2003).

BAIL REDUCTION

The primary purpose or object of an appearance bond is to secure the presence of the accused in court for the trial of the offense charged. Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex.Crim.App. 1980); Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex.Crim.App. 1977); Ex parte Green, 940 S.W.2d 799, 800 01 (Tex.App. El Paso 1997, no pet.). Bail should be set in an amount sufficient to give reasonable assurance that the defendant will appear at trial, yet it should not be used as an instrument of oppression. Ex parte Ivey, 594 S.W.2d 98, 99 (Tex.Crim.App. 1980); Ex parte Vasquez, 558 S.W.2d at 479.

While there is no precise standard for reviewing bail determination, Article 17.15 of the Texas Code of Criminal Procedure serves as a guide. Ex parte Pemberton, 577 S.W.2d 266, 267 (Tex.Crim.App. 1979). 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. 2003). Circumstances to be considered in determining the amount of bail include the following seven 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 prior criminal record, if any; (5) the accused=s conformity with the conditions of any previous bond; (6) the existence of outstanding bonds, if any; and (7) aggravating circumstances alleged to have been involved in the offense the accused is charged with committing. Ex parte Rubac, 611 S.W.2d 848, 849 50 (Tex.Crim.App. 1981).

The burden of proof is on the applicant to prove that the bail set is excessive. Ex parte Rubac, 611 S.W.2d at 849. We review the trial court=s ruling for an abuse of discretion. Id. at 850.

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. Ex parte Rubac, 611 S.W.2d at 849; Ex parte Rodriguez, 595 S.W.2d at 550. In the present case, the offense charged is murder, a first-degree felony. Tex.Pen.Code Ann. ' 19.02 (Vernon 2003). If convicted, Appellant potentially faces up to ninety-nine years of imprisonment. See Tex.Pen.Code Ann. ' 12.32 (Vernon 2003). Although the complete facts of the case were not presented at the habeas corpus hearing, there was evidence that the State had probable cause to detain Appellant for the offense.

Considerations such as family ties, residency, work history, prior criminal record, and adherence to prior bonds are designed to gauge the defendant=s flight risk potential. Ex parte Hulin, 31 S.W.3d 754, 761 (Tex.App. Houston [1st Dist.] 2000, no pet.). Here, the evidence indicates that Appellant has family ties in the local community. Although Appellant has lived in Ector County most of his life, he had recently lived out-of-state and then in the Dallas area for at least some months. There is no evidence that Appellant has had regular long-term employment in Ector County, but rather, prior to his arrest, Appellant was underemployed. While Appellant does not have a serious criminal record, one of his prior convictions was for evading arrest or detention by a police officer. Further, Detective Abalos= testimony suggested that Appellant had left the immediate scene of the crime and may have been hiding from the police prior to his apprehension. This evidence is some indication that Appellant may pose a flight risk.

With regard to Appellant=s ability to make bail, Appellant=s mother testified that Appellant has no savings, real estate, or assets to sell or pawn in order to raise money for bail. Ms. Turner=s testimony clearly indicates that Appellant=s family has limited financial resources to raise the money for a $25,000 bond, let alone bail at $100,000. However, if Appellant fails to appear at trial, his family=s assets and savings are at risk, not his own, which may provide little or no incentive for him to appear. Although the ability to make bail is a factor to be considered, ability alone, does not control in determining the amount of bail. Ex parte Gentry, 615 S.W.2d 228, 231 (Tex.Crim.App. 1981); Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex.Crim.App. 1980).

The State presented no evidence with respect to any physical threat that Appellant might pose to any particular individual or to the community. In fact, on cross-examination, Detective Abalos conceded that no other members of the apartment complex community were threatened or have any fears about what might happen to them if Appellant is let out of jail. Further, Detective Abalos conceded that Appellant did not have a serious criminal history prior to his arrest.

The evidence shows that Appellant has lived most of his life in Ector County and has many family members who reside there. Appellant has no assets and his family has limited financial resources to post bond. There is no evidence that Appellant poses a threat to the community=s safety. However, in balancing these factors against evidence that suggests potential flight risk and the nature and circumstances of the offense, we cannot conclude that the trial court abused its discretion in lowering the bond to $100,000. Although the bail amount is high, Appellant has failed to demonstrate that the bail set is excessive. We overrule Appellant=s sole issue for review.

For the reasons stated above, we affirm the trial court=s order.

June 27, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 5

McClure, J., Chew, J., and Preslar, C.J. (Ret.)

Preslar, C.J. (Ret.)(Sitting by Assignment)

(Do Not Publish)