Ex Parte Mike Edgar Dossett--Appeal from 226th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00875-CR
EX PARTE Mike Edgar DOSSETT
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CR-7652
Honorable Andrew W. Carruthers, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: April 7, 2004

AFFIRMED

Mike Edgar Dossett was arrested and charged with the 1983 murder of Rachel Kosub. Dossett filed an application for writ of habeas corpus seeking a reduction of his pretrial bail from the original amount of $500,000 to $100,000. After a hearing, the trial court denied Dossett's application. Dossett appealed. Because the trial court did not abuse its discretion in denying Dossett's requested relief, we affirm the trial court's order.

Background

At the hearing on Dossett's application, his wife of ten years, Linda Dossett, and an associate pastor at his church, Fernando Ronci, were the only two witnesses. Linda Dossett testified that she met Dossett shortly after he was released from prison for aggravated sexual assault. She knew that there were at least two victims and that "there was some robbery involved, too." A year after she met Dossett, she married him, and they have been married for ten years. According to Linda Dossett, Dossett has close ties to his family in the area, has been employed continuously since his release from prison, speaks no foreign languages, has no ties to other countries, and does not have a passport. Moreover, Linda Dossett testified that Dossett has had "three major surgeries on his neck to have a titanium bar put in." According to Linda Dossett, Dossett limps because of the pressure on his spinal column. With regard to their financial condition, Linda Dossett testified that they do not have enough money to meet the $500,000 bond, but she believes they could meet a $100,000 bond. Linda Dossett testified that she owes $50,000 on her house, but that the house is worth $80,000. She testified that she owns a Honda Accord, but still owes money on it. And, Dossett has a pick-up truck, but that they still owe $5,000.

Fernando Ronci testified that Dossett has been an active member of Communion Chapel, an evangelical free church, for three years. Dossett and his wife, Linda, attended church regularly. According to Ronci, the congregation is supportive of Dossett and although there had not been discussions about raising money for Dossett's bail, such a possibility existed. Ronci was certain that members of the church would contribute, but he was not sure how much could be collected. Additionally, Ronci was aware of Dossett's previous two "rape" convictions but was not familiar with his convictions for aggravated robbery.

In addition to Ronci's and Linda Dossett's testimony, the State introduced three exhibits in evidence. The first exhibit is Dossett's arrest warrant and supporting affidavit. In the affidavit, Detective George Saidler details the allegations against Dossett with regard to the 1983 murder of Rachel Kosub. Detective Saidler affirms that he read the preliminary investigation report prepared by Officer B. Morales. According to Saidler, the report describes the events surrounding Kosub's murder. Because Kosub's family members had been unable to reach her, they asked the police to accompany them to her place of business, Sandra Murphy Interiors. Upon arrival at Sandra Murphy Interiors, Officer Morales found Kosub's vehicle parked outside and the business locked. The owner of Sandra Murphy Interiors arrived, unlocked the door, and allowed Officer Morales and Kosub's family inside. Once inside, Officer Morales heard a loud scream from one of Kosub's sisters who had walked into a back office. When he went inside the office, Officer Morales found Kosub "lying face down, nude, with a red flowered dress wrapped around her waist and panty hose wrapped around her neck."

Detective Saidler also affirms that he read the autopsy report issued by Susan Dana, M.D. and Vincent Di Maio, M.D. of the Bexar County Medical Examiner's Office. According to Saidler, the report concludes that Kosub "died as a result of ligature strangulation." The ligature "consisted of a pair of nylon panty hose knotted tightly around the neck." Additionally, sperm was found in the vagina and rectum.

Additionally, Detective Saidler affirms that he has read the written statement that Dossett gave to Detective T. Britt on March 2, 1995. In the statement, Dossett states that he "used to have a lot of dreams where I would tie up women and rape them." In some of his dreams, Dossett would "use their underwear to tie them up." While most of Dossett's dreams would consist of Dossett "just tying these women up S&M style and raping them," some of them would end with Dossett killing them. And, Dossett describes seeing himself "standing by a banister that curves and looking out a window." Detective Saidler affirms that he had obtained and viewed the photographs taken on June 6, 1983 by the Medical Examiner of Kosub's body. According to Saidler, one of the photographs depicts Kosub lying on the floor by a banister. The photographs also show Kosub with her panty hose tied around her neck and her clothes ripped and pulled above her waist.

Detective Saidler also affirms that on April 17, 2003, he requested Dossett's DNA to be compared with DNA obtained from the rape kit performed on Kosub's body. On June 26, 2003, he received a "CIL report from Garon Foster, a DNA Technical Leader at the Bexar County Crime Lab." According to the report, Dossett's "DNA has been identified on the vaginal swabs obtained from [Kosub] during the autopsy."

The State's second exhibit shows Dossett's previous four convictions: two for aggravated robbery with a deadly weapon and two for aggravated sexual assault. On November 20, 1984, Dossett was convicted on two counts of aggravated sexual assault and two counts of aggravated robbery on unrelated cases. With regard to the aggravated sexual assault cases, he was sentenced to twenty years imprisonment. With regard to the aggravated robbery cases, he was sentenced to twenty-five years imprisonment. After serving eight years in prison, on December 31, 1992, Dossett was released on parole.

The State's third exhibit is Dossett's written statement of March 2, 1995. The statement verifies Detective Saidler's account. Dossett describes his fantasies of raping and controlling women. He states that he thinks he kills some of the women in his dreams because they fought back or would not let him control them. Nevertheless, Dossett unequivocally states in his written statement that he did not know or kill Rachel Kosub. He states that he had been to the interior decorating business to ask if the business would sponsor his softball team sometime in February or March of 1983 and that on the day the police came to arrest him, he "was supposed to go to work for the owner of the interior decorating business." However, he states that he did not know Rachel Kosub or that her daughter played tee-ball in the league in which he umpired.

Standard of Review

We review the trial court's decision regarding bail under an abuse of discretion standard. Ex parte Garcia, 100 S.W.3d 243, 245 (Tex. App.--San Antonio 2001, no pet.). In determining the amount of bail, the trial court should consider the following rules provided in article 17.15 of the Code of Criminal Procedure:

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. 2004). The defendant challenging the amount of bail has the burden to show the amount is excessive in light of these rules. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. 1981); Garcia, 100 S.W.3d at 245.

Discussion

In his sole issue, Dossett argues that the trial court abused its discretion and violated his constitutional right to reasonable bail "by refusing to reduce a $500,000 bond in light of testimony that [Dossett] is unable to raise enough money to secure the bond, has strong ties to the community, and has voluntarily cooperated in every manner with the investigators in this case for over twenty years." (1) Appropriate bail is a "fact-driven determination" and "each case . . . must be judged on its own unique facts." Esquivel v. State, 922 S.W.2d 601, 604 (Tex. App.--San Antonio 1996, no pet.).

Bail must be sufficiently high to give reasonable assurance that Dossett will appear for trial without becoming an instrument of oppression. Garcia, 100 S.W.3d at 245. Dossett's ability to make bail may be considered but is not dispositive. Id. Here, Linda Dossett testified in general terms that if the bails remains set at $500,000, she will not be able to meet it. However, she also testified that she has $30,000 worth of equity in her house. Moreover, Linda Dossett did not specify how much she earns in income or the status of her and Dossett's debts. Additionally, Dossett's pastor testified that although the members of the congregation had not been asked, he was sure that they would be willing to contribute something. As such, the trial court could have reasonably determined that the bail was not oppressive. Moreover, Dossett is facing a possible life sentence. See Tex. Pen. Code Ann. 12.32(a), 19.02 (Vernon 2003). And, because of his prior felony convictions, he is not eligible to receive probation from the jury. Tex. Code Crim. Proc. Ann. art. 42.12, 4(e) (Vernon Supp. 2004). Nor will the trial court be able to probate his sentence if a finding is made that a deadly weapon was used in the commission of the offense. Id. art. 42.12, 3g(a)(2). Although Dossett has ties to his community, the trial court could have reasonably determined that bail set at $500,000 was necessary to ensure Dossett's presence at trial.

Next, we consider the nature of the crime and the circumstances under which it was committed. The crime itself is brutal and violent. Kosub was raped and murdered by strangulation. Although Dossett has not been accused of committing a violent crime since he was released from prison, he has been convicted of two violent crimes, aggravated sexual assault and aggravated robbery. Additionally, Dossett's written statement reveals that he has a history of disturbing, violent sexual fantasies, including fantasies of murdering female victims who resist sexual aggression. Although Dossett has cooperated with the police investigation, given his criminal history and admitted disturbing fantasies, the trial court could have reasonably found that Dossett posed a threat to the community.

Conclusion

Based on the facts presented, we hold that the trial court did not abuse its discretion in refusing to reduce the amount of bail. We affirm the trial court's order.

Karen Angelini, Justice

Do not publish

1. Dossett argues that his federal and state constitutional rights were violated. However, in his application for writ of habeas corpus to reduce bond, Dossett argued only that the amount of bail violated his rights under the Texas Constitution. Thus, any violation under the United States Constitution has not been preserved for appellate review. See Tex. R. App. P. 33.1. Additionally, Dossett argues in his brief that because the State was not prepared to try this case "within ninety days from his initial detention, [Dossett] is entitled to be released from custody." Likewise, this argument was not presented in his application below. Therefore, it too is not preserved for appellate review. See id.