Ronald David Ludwig v. The State of Texas--Appeal from 40th District Court of Ellis County

REFORMED & AFFIRMED

AUGUST 23, 1990

NO. 10-90-118-CR

Trial Court

# 90-017

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

RONALD DAVID LUDWIG,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 40th Judicial District Court

Ellis County, Texas

* * * * * * * * * * * * *

Appellant Ronald David Ludwig has been charged with the murders of Matthew David Trojacek and Joseph David Trojacek. Appellant faces three indictments, one for the crime of capital murder and the other two for the crime of non-capital murder. The penalty upon conviction for non-capital murder is confinement in the Texas Department of Corrections for up to 99 years or life and the penalty upon conviction for capital murder is death.

Appellant brought a habeas corpus action in the 40th Judicial District Court of Ellis County, Texas, seeking a reduction in bond. The district court denied appellant relief and issued an order continuing bond at $2,000,000 for all three indictments. This appeal resulted. Appellant asserts that the bail is excessive and that the trial court abused its discretion by refusing to reduce the bail.

The burden of proof falls upon the party requesting the bail reduction; therefore, the party must prove that the bail is excessive under the circumstances. Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex.Cr.App. 1980). Vernon's Ann.C.C.P. art. 17.15 provides the following guidelines which are to be considered when setting bail:

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 the victim of the alleged offense may be considered.

None of the above statutory guidelines is controlling on the issue of setting the amount of bail. For example, the defendant's "ability or inability to make bail does not in and of itself control that amount, that factor must be considered along with the other statutory elements." Ex parte Gentry, 615 S.W.2d 228, 231 (Tex.Cr.App. 1981). Other relevant factors and considerations to be used in setting bail include the appellant's work record, family ties, length of residency, ability to make bond and prior criminal record. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex.Cr.App. 1981).

At the habeas corpus proceeding there was evidence presented that appellant made verbal threats to his wife against the safety and lives of appellant's brother-in-law, nephew and mother-in-law. The brother-in-law, Joseph David Trojacek, and nephew, Matthew David Trojacek, are now deceased and his mother-in-law fears for her safety because of the prior threats made by appellant. The State's only other evidence was a description of the crime scene by the investigating peace officer and the indictments against appellant.

Appellant's evidence showed that he is a long-time resident of Texas, the owner of real property in the state, is licensed to practice veterinary medicine in Texas and has such a practice in Katy. Appellant has several close relatives who are also long-time Texas citizens and are willing to sign a bond insuring appellant's appearance at trial. Appellant is involved in a child custody proceeding, in conjunction with his divorce, in Harris County, Texas, which will require his presence in the jurisdiction. Appellant's ability to make bond is limited because his assets, both community and separate, have been frozen by a temporary court order made in the divorce action. Additionally, appellant has no prior criminal record.

The crimes charged against appellant, including the capital offense, are bailable offenses since the State did not prove or even attempt to prove "clear and strong evidence which would lead a well guarded judgment to the conclusion that an offense was committed, that the accused is the guilty agent and that he would probably be punished by death penalty if the law is administered." Beck v. State, 648 S.W.2d 7, 9 (Tex.Cr.App. 1983). The consideration of safety to the victim is just one factor and does not justify the detention of a presumptively innocent defendant by the use of excessive bail.

After considering the foregoing under the applicable rules, we find that the bail set is excessive, and we reduce the bail to $1,000,000 for all three indictments.

The judgment is reformed to show bail to be $1,000,000. As reformed, the judgment is affirmed.

VIC HALL DO NOT PUBLISHJustice