EX PARTE DARLENE CORNELIUS PHILLIPS

AFFIRM; Opinion issued September 14, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-10-00616-CR
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EX PARTE DARLENE CORNELIUS PHILLIPS
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On Appeal from the 429th Judicial District Court
Collin County, Texas
Trial Court Cause No. 429-01887-2010
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OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice FitzGerald
        Darlene Cornelius Phillips appeals the trial court's order denying her application for habeas corpus seeking a reduction of her pretrial bond. In one issue, appellant asserts the trial judge abused her discretion by denying the bond reduction because the bail set is excessive in violation of the Texas Code of Criminal Procedure and the United States and Texas Constitutions. We affirm the trial court's order.
 
Background
 
        Appellant is charged with the murder of her grandson Gerren Isgrigg. Her bond was set at $500,000. Appellant filed a pretrial application for writ of habeas corpus seeking a reduction of the bond. The trial court conducted a hearing on the application.
        Patrick Phillips testified he and appellant have been married for twenty-eight years. They moved to Texas in August 2009. When they first arrived in Texas, Phillips and appellant rented a place that was “really expensive,” but they had “a bunch of people” living with them. When these other people returned to Tennessee, Phillips and appellant moved into a small Budget Suites. Phillips testified he and appellant were thinking of returning to Tennessee. After appellant was arrested on the charged offense, they were evicted from the Budget Suites. Phillips and his adult son, David Martinez, then moved into an apartment in Farmers Branch.
        Phillips testified he works as an RV technician for Blue Moon Mobile RV. Phillips earns about $2500 per month. He has worked for his employer about six months. Phillips's son does not work. Phillips and appellant do not have any other family in Texas.
        Phillips testified that their grandson Gerren had lived with them for about three years. Phillips did not know where Gerren's mother was, but she was in Oklahoma the last time he spoke with her about five months previously. Gerren had West's syndrome and did not move unless he was having a seizure. Gerren did not look at people or talk, and he ate through a feeding tube. Appellant was Gerren's primary caregiver. She learned how to mix his food and medicine precisely and gave it to him through the feeding tube. She also taught Phillips how to do this. Appellant frequently got up two to three times a night because Gerren would have seizures that resulted in his being in a position where he could not breathe. The family did not receive any financial assistance from Gerren's mother, nor did they receive supplemental social security insurance. They did, however, receive some assistance through Gerren's father's insurance.
        Phillips testified he understands the charge against appellant and that her bond was set at $500,000. Phillips contacted several different bondsmen. One required $40,000 “down”; the others required $45,000 to $50,000. He attempted several ways to raise the funds to post the bond, but was not able to do so. He and appellant own a home in Tennessee they have been trying to sell. The home was appraised for tax purposes of having a value of $65,000, but an outstanding lien of $58,000 is on the home. The home has been on the market for more than a year without a contract for sale. Additionally, Phillips contacted everyone in his family, except his elderly mother,   See Footnote 1  to try to obtain the funds, and sought title loans on his vehicles and the sale of some of appellant's jewelry. Phillips estimated that, at most, he would be able to raise $5000 to $7500 to apply towards appellant's bond. Phillips and appellant have a checking account with $200 and a credit card that has a $300 limit. They have no retirement plans or life insurance from which they could borrow the funds. Finally, Phillips testified they have no other property in either Texas or any other state he could sell or use to collateralize a loan.
        Phillips testified he did not believe appellant is a flight risk. They have no plans to travel out of Texas. Rather, they intend to remain in Texas “however long it takes.” Phillips also testified that appellant's health is “below average,” and she is not in any condition to try to flee to avoid prosecution. Further, Phillips does not believe appellant is a suicide risk.   See Footnote 2  Phillips knew appellant was on blood pressure medication, but did not know which psychotropic medication had been prescribed for her. He testified he would buy the medication she needed if she was released from jail. Phillips did not believe appellant was a risk to others, and he said there would be no children in the home. Finally, Phillips testified that as far as he knows, appellant has never before been charged with a criminal offense. And, if appellant was released, Phillips would do what he could to help her abide by the conditions of her bond. Phillips asked to have the bond reduced to an amount of $50,000 to $100,000.
        Collin County Sheriff's deputy Billy Lanier testified he specializes in child abuse investigations. On April 15, 2010, he was assigned to investigate the suspicious death of a child found by Lake Lavon. He received a call about 9:00 that morning regarding the body of a child who had been found. The child was estimated to be about three to six years old. The child's body was found in a wooded area on property belonging to the Corp of Engineers. The child was found wrapped in a blanket behind a pile of brush in a weed-overgrown area, and was not easily visible from the road. A maintenance worker who was trimming weeds around the fence found the child when the maintenance worker walked directly up to the brush pile. The maintenance worker did not realize what he had found until he saw the child's foot sticking out from the blanket. He then called his boss, who responded to the scene.
        The police set up a command center at the Children's Advocacy Center and implemented a tip line to try to determine who the child was. They received over 200 tips. One tip finally led to the identification of the child as Gerren Isgrigg, the names Mr. and Mrs. Phillips and Mr. Martinez, and an address in Garland. Officers conducting surveillance realized the Garland house had been “emptied out.” Based on their investigation, the officers determined the move took place the weekend after Gerren's body was found. Lanier did not, however, know when the move was planned. They were able to track the Phillipses to The Colony where they found them at the Extended Stay Suites. The officers knocked on the door of the Phillipses' room and spoke with them. They then went to the Children's Advocacy Center for interviews.
        Lanier testified appellant told the officers that on Monday, April 12, 2010, she had taken Gerren to the place where he was found. He was found on Thursday, April 15, 2010. Appellant further told Lanier that Gerren was alive when she took him there. Her explanation to Lanier for her actions was that “she felt like she was being punished by having to take care of the child.” Lanier's information was that Gerren was at the location longer than twenty-four hours. Additionally, Gerren's feeding tube had been removed. Gerren was believed to be alive at the location for two days. He did not have the ability to move or to call out for help. Moreover, despite the intense media attention given the case, neither appellant, Phillips, nor Martinez contacted the police to identify Gerren.
        Lanier further testified appellant has no family ties in Texas; most of her family is in Tennessee. Lanier did not have a criminal history for appellant. However, a family member had indicated to Lanier both that appellant had a history of drug abuse and had stolen from the family member. Finally, Lanier testified appellant had told Phillips she left Gerren with a social worker.
        At the conclusion of the hearing, the trial judge denied the bond reduction.
Applicable Law
 
        In reviewing the trial court's decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial court's ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). We uphold the ruling absent an abuse of discretion. Id. We afford almost total deference to the trial court's determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. Id. We afford the same amount of deference to the trial court's application of the law to the facts if the resolution of the ultimate questions turns on an evaluation of credibility and demeanor. Id. If the resolution of the ultimate questions turns on an application of legal standards, we review the determination de novo. Id.
        It is within the trial court's discretion to determine the proper amount of bail. See Tex. Code Crim. Proc. Ann. art. 17.15 (West 2005). In determining the amount of bail to set, the court is guided by the following rules: (1) the bail should 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 considered, and proof may be taken upon this point; and (5) the future safety of a victim of the alleged offense and the community may be considered. Id.; see Ex parte Welch, 729 S.W.2d 306, 309 (Tex. App.-Dallas 1987, no pet.). Relevant facts to be considered in determining the amount of bond include the accused's work record, family and community ties, length of residency, previous criminal record, and conformity with the conditions of any previous bond, any outstanding bonds, aggravating circumstances involved in the charged offense, and the range of punishment for the charged offense. See Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex. Crim. App. [Panel Op.] 1981).
        The person seeking the reduction has the burden of demonstrating the bail is excessive. See Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. [Panel Op.] 1980). Although the ability or inability of the accused to make bail is a factor to be considered, that factor alone does not control the amount of bail. See Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. [Panel Op.] 1980).
 
Analysis
 
        Appellant contends the trial court abused its discretion by denying the bond reduction because the bond is excessive and violates the Eighth and Fourteenth Amendments to the United States Constitution, article I, sections 11 and 13 of the Texas Constitution, and articles 1.07, 1.09, and 17.15 of the Texas Code of Criminal Procedure. The State responds that based on the evidence presented, the trial court reasonably determined that a lesser bond amount would not provide reasonable assurance of appellant's return for trial despite Phillips's claims to the contrary.
        Appellant is charged with the first-degree felony offense of murder. See Tex. Penal Code Ann. § 19.02(b)(1), (c) (West 2003). The punishment range for the offense is imprisonment for five to ninety-nine years or life, and a fine of up to $10,000. Id. § 12.32 (West Supp. 2010). The facts of the offense presented in the hearing were that appellant left Gerren, who was unable to care for himself or to cry out for help, wrapped in a blanket in a wooded area where he was not visible from the road. Gerren's death was estimated to have occurred two days after he was left by appellant. Although the circumstances surrounding the discovery of Gerren's body received extensive media coverage, neither appellant nor Phillips contacted authorities to identify him.
        Appellant has only been in Texas since August 2009. Phillips testified he does not believe appellant is a flight risk, and they intend to stay in Texas “however long it takes.” However, appellant has no family ties to Texas. Additionally, during the time they lived in Texas, appellant moved residences at least once, and was last living in an extended stay hotel. The most recent move was determined to have occurred the weekend after the discovery of Gerren's body. During the time appellant has lived in Texas, she was not employed outside the home. Rather, she was Gerren's primary caregiver.
        There was testimony that appellant is unable to raise the amount required to obtain a $500,000 bond, but could probably raise the amount necessary for a bond in the amount of $50,000 to $100,000. The only evidence regarding whether appellant would be a threat to the community came from Phillips, who testified he did not believe appellant would pose any threat. Finally, there was no evidence appellant has ever been arrested for a criminal offense or subject to conditions of a bond. There was testimony that a family member had indicated appellant had a history of drug abuse and had stolen from the family member.
        Appellant had the burden to show the $500,000 bond is excessive. See Ex parte Rodriguez, 595 S.W.2d at 550. After having reviewed the record, we conclude appellant has not met her burden. Therefore, the trial court did not abuse its discretion by denying the bond reduction. We resolve appellant's sole issue against her.
        We affirm the trial court's order denying appellant's application for writ of habeas corpus seeking the bond reduction.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
100616F.U05
 
Footnote 1 Phillips testified both that he did not want his mother to know about this situation and that she did not have the funds to assist them.
Footnote 2 The testimony reflects that after appellant was arrested, she was placed on suicide watch in the Collin County Detention Facility.