Ex Parte Billie Warren Smith--Appeal from 75th District Court of Liberty County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-06-104 CR
NO. 09-06-105 CR
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EX PARTE BILLIE WARREN SMITH
On Appeal from the 75th District Court
Liberty County, Texas
Trial Cause Nos. CR508, CR509
MEMORANDUM OPINION

Billie Warren Smith appeals the trial court's reduction of bail in two separate but related cases. The appellate record before us is devoid of any details of the underlying offenses alleged. Appellant was arrested under warrants issued by a Justice of the Peace for the felony offenses of Aggravated Sexual Assault of a Child, and for Indecency with a Child. Bail was set in the Aggravated Sexual Assault cause at $250,000, and in the Indecency cause at $200,000. Appellant then filed with the trial court separate petitions for writ of habeas corpus alleging the amounts set for his bail were unreasonable, and were a violation of Tex. Const. art. I, 11 and Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon 2005).

The trial court conducted an evidentiary hearing on the merits of the petitions and ultimately issued orders reducing the bail amounts to $125,000 and to $75,000, respectively. Because the trial court ruled on the merits of appellant's petitions following an evidentiary hearing, we have jurisdiction over the appeals. See Ex parte Hargett, 819 S.W.2d 866, 869 (Tex. Crim. App. 1991). Appellant's brief combines the argument for his separate appeals and we will likewise combine our analysis in a single opinion.

Bail shall not be excessive. Tex. Const. art. I, 13. "All prisoners shall be bailable by sufficient sureties" in non-capital offenses. Tex. Const. art. I, 11. "'Bail' is the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or a personal bond." Tex. Code Crim. Proc. Ann. art. 17.01 (Vernon 2005). The primary purpose of an appearance bond is to secure the presence of the accused at trial on the offense charged. See Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. 1980) (citing Ex parte Vasquez, 558 S.W.2d 477 (Tex. Crim. App. 1977)). Bail should be set high enough to give reasonable assurance that the defendant will appear at trial, but it should not operate as an instrument of oppression. See Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. 1980)(citing Ex parte Bufkin, 553 S.W.2d 116 (Tex. Crim. App. 1977)).

The burden is on the person seeking the reduction to demonstrate that the bail set is excessive. See Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. [Panel Op.] 1980). The decision regarding a proper bail amount lies within the sound discretion of the trial court. See Ex parte Green, 940 S.W.2d 799, 801 (Tex. App.--El Paso 1997, no pet.). Article 17.15 of the Texas Code of Criminal Procedure sets forth the criteria a trial court must consider in setting bail:

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). The trial court may also consider: "(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; (5) the accused's conformity with previous bond conditions; (6) the existence of outstanding bonds, if any; and (7) aggravating circumstances alleged to have been involved in the charged offense." Maldonado v. State, 999 S.W.2d 91, 93 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd) (citing Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex. Crim. App. [Panel Op.] 1981)).

In the instant case, appellant called three witnesses in support of his petitions. The State presented no witnesses nor submitted any evidence to the trial court in an attempt to controvert the testimony of appellant's witnesses. Jody Lyn Marie Goodwin, an attorney licensed in Texas with a practice in Harlingen, testified that appellant is her maternal grandfather. She further testified that, at the time of the hearing (February 28, 2006), appellant was two-weeks shy of his eightieth birthday. Her testimony further indicated that appellant resided in Ozark, Arkansas, for the past thirteen to fifteen years, that he had no prior criminal history, that his employment history included working as a construction contractor and a police officer, and that at one time appellant ran for the office of sheriff of Liberty County, Texas. Goodwin stated that she thought it unlikely appellant would flee if he were free on bond because he spent most of his life in Liberty and has many contacts in the area and family members who reside in Liberty County. Goodwin was aware of the two pending criminal charges against appellant and that the charges were based on events alleged to have taken place approximately nine years ago. During the intervening nine-year period, Goodwin was unaware of any other allegations of wrongdoing or criminal behavior on the part of appellant. Goodwin also testified that appellant was presently married, and had been married for some sixty years to his wife.

Goodwin stated that appellant did not have the financial ability to make a $450,000 bond as his source of income was mainly from social security as he has no pension, and that his assets consist of his home in Arkansas, approximate value of $30,000, and two older vehicles, a Dodge van, and a Lincoln automobile. She further testified that appellant has health problems including a prior back surgery, a prior diagnosis of cancer, liver problems, and stomach ulcers, and that he receives Medicare. She was also of the opinion that, if released on bond, appellant would present no danger to the community. Goodwin indicated that she could assist appellant with "maybe five thousand dollars" for his bail, but not $450,000. When asked by the State if she was aware of an unrelated twenty-year-old allegation that appellant "was accused of molesting a granddaughter," Goodwin replied that she was not. Goodwin was aware that appellant was a long-time friend of the family of the complainant in the instant cases. Goodwin stated that, should appellant be released on bond, she would make every effort to ensure appellant had no access to any children under seventeen years of age.

The next witness was appellant's forty-five-year-old son, Brian Ward Smith. Except for living in Baytown, Texas, for a "few months," Smith has resided in Liberty County since approximately 1968 or 1969. He stated he has been a fire fighter for twenty-two years, with the last twenty years with the City of Baytown Fire Department. Smith is married and has two adult daughters and a teenage son. Smith described his relationship with appellant as "very close" because he is appellant's only son. He stated that he visits with appellant three or four times a year, and confirmed appellant's lack of any criminal history. He opined that appellant was not a flight risk because appellant has "always been a man of his word. He will be there." As the complainant in the instant offenses was eight years old at the time the offenses were alleged to have been committed, Smith replied to the question regarding appellant's danger to the community in the following way:

A. I understand the allegations. I have never, to my knowledge, seen him be inappropriate with children, or even adults of any age. I don't believe that he would be a danger to any one of my children. Like I said, my youngest is 13 and he resides with his mother. He wouldn't be around much at all. I'd have no problems at all.

 

Smith also agreed that he would assist in complying with any reasonable conditions of bond including ensuring that appellant is not permitted to be around children under seventeen years of age. Smith further stated that his intention was to see that appellant made court appearances as necessary. Smith stated that he had no savings, but that he would be willing to take early retirement and use what retirement money becomes available to assist appellant in making bond. Smith also testified that in addition to social security income, appellant did receive between five hundred and six hundred dollars per month for working as a museum curator in Ozark, Arkansas.

Smith confirmed that appellant had no passport or ties to any communities outside the United States, and that appellant had one sister living in Harlingen, Texas, one sister living in Kaufman, Texas, and two sisters living near Ozark, Arkansas. Smith also clarified that appellant's cancer was in his kidney, necessitating its removal, and that appellant suffered a broken back in the late 1960's. Also, because appellant had significant hearing impairment, he had missed some of his medications during his confinement in the county jail.

Smith testified that the bail bond offices he contacted require a minimum ten percent of the total bail amount, and require collateralization of the remaining amount, and that no one in appellant's family has property of sufficient value to collateralize a $400,000 bail.

Although he testified he had no previous criminal convictions, Smith admitted on cross-examination that he had been accused of indecency with a child, and would consider anyone who sexually molested a child under seventeen years of age to be a danger to the community. Smith was also aware that appellant had been friends with the complainant in the instant cases and with her family. Smith further stated that his father lived in Liberty County for approximately twenty-six or twenty-seven years before moving to Arkansas in about 1996. Smith was also aware that appellant had a credit card with a limit of less than $20,000, and that appellant used a portion of the available credit on the card to retain his trial counsel. Smith testified that his father owned no other property than the home in Ozark, Arkansas. He also stated that appellant had no bonds or stocks, had a checking account, but Smith was unaware of any savings account. When asked for specifics about the amount he would ultimately realize from his retirement account, Smith stated that after taxes, and after paying his two ex-wives their respective shares of his retirement, he expected the final cash amount to be approximately $20,000. As he concluded his testimony, Smith stated that he was informed by appellant that two inmates had threatened to kill appellant by slitting his throat, but Smith did not know if appellant had complained to jail personnel about the threats.

Appellant's final witness was Edd C. Blackwood, Jr., a licensed bail bondsman, who resided in Houston. As a licensed bail bondsman for approximately twenty-six years, Blackwood evaluates defendants and their families and makes risk assessments in deciding whether or not to make a bond on a daily basis. Blackwood stated that he also assisted families in gathering assets to collateralize and pay bond fees in the process of making a surety bond. For purposes of the instant charges, Blackwood testified he met with members of appellant's family and engaged in his normal risk-assessment process. Blackwood learned that while appellant and his family are "really good hard-working people with good[,] strong community ties[,]" the family had no assets he could use to collateralize the bonds needed. Blackwood stated that while he could possibly place a lien on appellant's real property in Arkansas, he could not use Brian Smith's retirement and the family mentioned no other assets. With regard to Blackwood's assessment of appellant as a flight risk, Blackwood responded:

A. I don't mean to be flip, but the man is 80 years old. He's in bad health. All of his family is local except for the Arkansas community that he lives in. He's on - - he gets his money from the government.

You know, he's a smart enough man that if he wanted to run and hide, I suppose he could, until the end of his life. I suppose he could do that. But I'd be professionally surprised that he could do that. I think he would be foolish to even attempt it, and he doesn't strike me as being a foolish man. He seems to have been a man that's, aside from the charge, but for the rest of his life he's been a very stable community-minded individual.

 

Blackwood testified that a defendant charged with aggravated sexual assault in Harris County, Texas, would typically have a $30,000 bond, and a typical second-degree felony charge would have a $20,000 bond. Blackwood stated that from all the information he had on appellant and his family, the family could not collateralize a $50,000 bond, but Blackwood added that if each family member signed a promissory note to cover a percentage of the amount necessary to collateralize the entire bond amount he could possibly get approval from his insurer to write a bond no higher than $50,000. On cross-examination, the State attempted to have Blackwood clarify his position:

Q.[State] But you haven't explored the option of going - - with having them co-sign or taking any kind of promissory note from family members in order to make up the amount?

 

A.[Blackwood] I'm sorry? Oh, to make the half a million dollar bond?

 

Q. Yeah.

 

A. It's impossible. It's not going to happen.

 

Q. Did you try? Did you try seeing what it was about?

 

A. They don't have the wherewithal to co-sign for half a million. I mean, if they were to make payments on it for the rest of their lives they couldn't do it.

 

Q. How many of the family members have you discussed this option, co-signing the promissory note?

 

A. Just the members of the family that are here in the courtroom.

 

Q. We've heard from Ms. Goodwin, we've heard from Mr. Smith, that's the granddaughter and son of the Defendant?

 

A. That's correct.

 

Q. Are there any other family members?

 

A. No, ma'am.

 

Q. You know there are other family members?

 

A. Yes, I do. And I have visited with the family that's here about the family that's not here. And none of them are - -

 

Q. Now, let me ask you this: You're saying that - - well, you're saying that all the family are local. . . .

 

At that point, the State focused the questioning away from the appellant and his family's financial condition. With the conclusion of Blackwood's testimony, appellant rested his case, and the State offered no witnesses and "[n]o rebuttal."

Appellant's trial counsel urged the trial court to set bail on the aggravated sexual assault at $30,000, and $20,000 on the indecency case. The State countered with the argument that the court must "look at the threat to the complaining witness, the threat to the community." The State also urged the trial court to "look at the nature of the offenses," but only added "[i]t's a first degree felony offense, possible range of imprisonment for this Defendant, if found guilty, would be a life sentence." The State reminded the trial court that appellant was not a Liberty County resident, and further argued "[w]e have a set of circumstances here where he has children that are in our County but he also has children out of our County. He has family out of this State." While not contained in the written orders re-setting appellant's bail amounts following the hearing, the trial court orally pronounced conditions on appellant should he be released on bond, viz:

THE COURT: These are the conditions: Is that Mr. - - if Mr. Smith makes bond, he will be required to personally contact my office by telephone every other Friday. He will be enjoined from contacting, either directly [or] indirectly, the complainant in this case, which has been identified as J747843, or any female under the age of 17 years. He is not to come into contact with any female under the age - - 17 or under.

. . . .

 

THE COURT: In the event that I'm not contacted every (sic) Friday, or my staff, then the bond will be automatically revoked.

 

[Trial Counsel]: Every other Friday?

 

THE COURT: Every other Friday. Correct.

 

The State had argued for bond conditions and appellant joined in that request.

Upon the record before us, we find the evidence produced by appellant satisfies his burden to demonstrate that the combined bail amounts are excessive. Significant is the fact that the State produced no evidence to controvert or rebut appellant's evidence. The only evidence presented to the trial court is uncontroverted that any amount above $50,000 would result in a significant hardship for appellant to be able to make bond. While the $200,000 bail amount would certainly assure appellant's appearance, there is no evidence to the contrary that, if released, appellant would not appear as required by the trial court. Being four-times the amount the uncontested evidence indicates appellant could hope to accumulate for a bond, the $200,000 amount is violative of article 17.15 as being more of "an instrument of oppression." Blackwood stated that $50,000 would be the maximum amount for which he could attempt to write a bond, with such an amount requiring appellant's family to sign promissory notes for collateral. While his testimony is not wholly determinative, it is some evidence. We decline the opportunity to allow bail bondsmen the right to effectively set bail amounts for defendants. Under factors one, two, and four of article 17.15, appellant's evidence favors a significantly lower bail amount. The fifth factor, "future safety of a victim . . . and the community," is of paramount concern in cases of this nature. However, there was no evidence before the trial court that in the nine intervening years between commission of the alleged offenses and the date of the bond-reduction hearing appellant had any contact with the victim or her family in any way, or that appellant had attempted to contact the victim or her family after the allegations were brought to light.

The third factor, the "nature of the offense and the circumstances under which it was committed," naturally has some negative implications against appellant's plea for a lower bail amount. However, the record contains no facts even hinting at the type of sexual contact the complaining witness has alleged appellant engaged in under either offense. The record does indicate that at the time of the offenses alleged, the complainant was approximately eight or nine years of age, a female, and that appellant was a friend of her family. It also appears that both offenses took place on one occasion and were perpetrated on the same complainant. Nevertheless, appellant's excellent work record, lack of any prior criminal history, lack of evidence of any "aggravating circumstances" involved in the charged offenses, and significant personal and family ties to Liberty County substantially mitigate in appellant's favor. The fact that appellant resides in Arkansas is attenuated by the evidence that he is also eighty years of age and in poor health and, therefore, not a significant risk for flight from prosecution.

As noted above, the amount of bail should be set sufficiently high to give reasonable assurance that the accused will comply with the undertaking, but should not be set so high as to be an instrument of oppression. See Ex parte Bufkin, 553 S.W.2d 116, 118 (Tex. Crim. App. 1977). However, the assertion, or true fact, that a defendant would not be able to make a bond of a certain amount is not, in and of itself, oppressive. The test for reasonableness is not simply a question of whether or not the appellant can actually make bail. "Although the ability to make bail is a factor to be considered, ability alone, even indigency, does not control the amount of bail." Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. [Panel Op.] 1980)

All of the record evidence indicates that appellant would appear for any scheduled court date and would have the assistance of his son, Brian Smith, who is a resident of Liberty County. Furthermore, a trial court may impose reasonable conditions upon setting bail for a pre-trial accused that is related to the safety of the alleged victim and of the community. See Tex. Code Crim. Proc. Ann. art. 17.40(a) (Vernon 2005); Ex parte Anderer, 61 S.W.3d 398, 405-06 (Tex. Crim. App. 2001). The trial court in the instant case recognized the need for reasonable conditions and appellant was in agreement with such conditions. Indeed, in In re Durst, 148 S.W.3d 496, 501 (Tex. App.--Houston [14th Dist.] 2004, no pet.), the Houston Court of Appeals included the conditions imposed by the trial court in its analysis of whether or not Durst's bail was excessive. The Court found that "[t]hese conditions alone are calculated to ensure that Durst appears for trial." Id. There, the trial court's conditions for release were particularly tailored to Durst's checkered history of court appearance while on bond as well as to his affluence. (e.g., "Durst must submit to twenty-four-hour supervision by a licensed peace officer of the State of Texas and he must pay the costs of supervision."). Id. at 498-501. We have no doubt the trial court in the instant cases could further tailor conditions of release should appellant make bond on the pending charges to fully ensure appellant's attendance for any scheduled court proceedings.

Therefore, considering the record before us in light of the applicable law, we find that the trial court abused its discretion in setting appellant's bail in both causes at a combined total of $200,000. We reverse the trial court's order in Cause No. 508 setting bail at $125,000, and render judgment that appellant is entitled to the relief sought to the extent that his bail is reduced to $50,000, subject to such reasonable terms and conditions as may be determined by the trial court. Likewise, we reverse the trial court's order in Cause No. 509 setting bail at $75,000, and render judgment the appellant is entitled to the relief sought to the extent that his bail is reduced to $25,000, subject to such reasonable terms and conditions as may be determined by the trial court.

REVERSED AND RENDERED.

 

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CHARLES KREGER

Justice

Submitted April 28, 2006

Opinion Delivered May 31, 2006

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Before McKeithen, C.J., Gaultney and Kreger, JJ.

DISSENTING OPINION

I respectfully dissent. Given the nature of the charged offenses, the punishment that could be imposed, and appellant's few ties to the community, I do not see an abuse of discretion by the trial court. See Ex parte Hulin, 31 S.W.3d 754, 759-62 (Tex. App.--Houston [1st Dist.] 2000, no pet.).

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DAVID GAULTNEY

Justice

 

Dissent Delivered

May 31, 2006

Do Not Publish