Jeff Doyal Robertson v. The State of Texas--Appeal from 294th District Court of Van Zandt County

NO. 12-05-00288-CR

NO. 12-05-00289-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JEFF DOYAL ROBERTSON, APPEAL FROM THE 294TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE VAN ZANDT COUNTY, TEXAS

MEMORANDUM OPINION

Jeff Doyal Robertson appeals the trial court s denial of his motions to reduce bond. In three issues, Appellant contends the trial court abused its discretion in affirming the amount of bail in light of the evidence presented. We reverse and remand.

Background

On June 13, 2005, Appellant was indicted on one count of aggravated assault against a public servant with a deadly weapon, a first degree felony. // On the same date, Appellant was also indicted on one count of places weapons prohibited, a third degree felony. // The trial court set Appellant s bonds at $1 million for the aggravated assault charge and $100,000 for the weapons charge. Appellant moved for reduction of both bonds, contending that the bail was excessive, inappropriate under the circumstances, and punitive in nature. Appellant claimed that he was indigent, although he was represented by retained counsel. Appellant suggested that a bond of $50,000 for the aggravated assault charge and $5,000 for the weapons charge would be sufficient to secure his presence before the court to answer these charges.

The trial court conducted a hearing on both bond reduction motions. Appellant s wife, Carol, was the sole witness. For the hearing only, the trial court admitted, as one exhibit, sixty-one letters to Appellant or in support of Appellant. The trial court found that Appellant failed to meet his burden of proof and that his bond was not excessive on either charge. This appeal followed.

Reduction of Bond

In three issues, which are identical in substance, Appellant contends that the trial court abused its discretion in affirming the bail amount of $1,100,000 in light of the evidence properly before it. Appellant argues that he carried his burden of proof that a reduction of his bail was required after applying the appropriate factors and that the evidence was insufficient as a matter of law to support the trial court s decision. Additionally, Appellant contends that the trial court s error was in violation of various federal and state protections and rights. We will consider these issues together.

Standard of Review

The decision regarding a proper bail amount lies within the sound discretion of the trial court. Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon 2005). Thus, we review a trial court s refusal to reduce pretrial bail under an abuse of discretion standard. Ex parte Wood, 952 S.W.2d 41, 42 (Tex. App. San Antonio 1997, no pet.). In determining whether the trial court abused its discretion, we do not substitute our judgment for that of the trial court. Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). The purpose of our review is to determine whether the trial court s decision was made without reference to any guiding rules or principles of law, or in other words, whether the decision was arbitrary or unreasonable. Id. at 380. An abuse of discretion occurs when a trial court s decision is so clearly wrong as to lie outside the zone of reasonable disagreement. Id. at 391 (op. on reh g).

Applicable Law

With few exceptions, all persons accused of a crime in this state have a right to bail pending trial. Tex. Const. art. I, 11; Tex. Code Crim. Proc. Ann. art. 1.07 (Vernon 2005). The right to bail is based on the presumption of innocence. Nguyen v. State, 881 S.W.2d 141, 143 (Tex. App. Houston [1st Dist.] 1994, no pet.). Excessive bail is prohibited by the Eighth Amendment to the United States Constitution and by article I, section 13 of the Texas Constitution. U.S. Const. amend. VIII; Tex. Const. art. I, 13. The primary purpose of an appearance bond is to secure the presence of the accused at trial on the offense charged. Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. 1980). While bail should be sufficiently high to give reasonable assurances that the accused will appear, the power to require bail should not be used as an instrument of oppression. Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. 1980). The burden is on the appellant to show the bond amount is excessive. Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. 1980).

The Texas Legislature has established the following factors to be considered by the trial court in setting pretrial 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 nature of the offense and the circumstances of its commission should be considered, and this necessarily involves the punishment authorized by law. Ex parte Ivey, 594 S.W.2d at 99. Moreover, the ability of an accused to post bond is merely one factor to be considered in determining the appropriate bail. Brown v. State, 11 S.W.3d 501, 504 (Tex. App. Houston [14th Dist.] 2000, no pet.). A defendant s inability to meet the bond set by the trial court does not automatically render the bail excessive. Id.

Other factors that may be considered include (1) work record; (2) family and community ties; (3) length of residency; (4) prior criminal record; (5) conformity with previous bond conditions; (6) other outstanding bonds; and (7) aggravating factors involved in the offense. Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex. Crim. App. 1981); Ex parte Milburn, 8 S.W.3d 422, 425 (Tex. App. Amarillo 1999, no pet.). These considerations are also designed to gauge a defendant s flight risk potential. Ex parte Hulin, 31 S.W.3d 754, 761 (Tex. App. Houston [1st Dist.] 2000, no pet.). The factors to be considered in our review of a trial court s decision are those that are to be considered by the trial court in its initial determination of bail. Smith v. State, 829 S.W.2d 885, 887 (Tex. App. Houston [1st Dist.] 1992, pet. ref d).

Analysis

First, we note that Appellant does not separately argue his state and federal constitutional claims or argue that the Texas constitutional protections differ in any significant way from those protections or rights in the United States Constitution. To adequately brief a state constitutional issue, Appellant must proffer specific arguments and authorities supporting his contentions under the state constitution. Moore v. State, 935 S.W.2d 124, 128 (Tex. Crim. App. 1996); Lawton v. State, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995). Because Appellant failed to do so, we consider Appellant s federal constitutional claim only. See Jackson v. State, 992 S.W.2d 469, 475 n.8 (Tex. Crim. App. 1999); Johnson v. State, 853 S.W.2d 527, 533 (Tex. Crim. App. 1992).

An appellant s brief must contain a clear and concise argument for the contentions made, with appropriate citation to authorities and to the record. Tex. R. App. P. 38.1(h). However, Appellant s argument regarding the violation of his federal constitutional protections and rights is brief and conclusory and contains no citations to authorities. Appellant also fails to describe any justification or reason for a determination that the trial court violated his federal constitutional protections and rights by imposing the bond amounts. Accordingly, Appellant has waived this issue. See Tex. R. App. P. 38.1(h). We therefore turn to the factors to be considered in setting pretrial bail and set out the evidence in this case that relates to each factor.

1. Reasonable assurance of appearance

Carol testified that Appellant has lived the majority of his life in Canton, that she and Appellant have been married for twenty-two years, that he is a partner in a business located near his home, that he owns a home, and that he has family and friends in the community. Carol testified that, if Appellant were released, he could live at home. She stated that Appellant s father lives in West Texas, but no evidence was presented showing that Appellant might flee to West Texas. Carol also stated that Appellant has no relatives in Mexico or anyone willing to assist him in fleeing the jurisdiction of the court. Carol testified that she would do whatever was necessary to ensure Appellant s appearance in court for any hearings or trial. This evidence does not support a finding that Appellant is a flight risk. Therefore, this factor favors a bond reduction.

2. Use of bail as an instrument of oppression

As a general rule, bail is oppressively high if the amount is more than necessary to provide reasonable assurance that the accused will appear in court. Ex parte McDonald, 852 S.W.2d 730, 732 (Tex. App. San Antonio 1993, no pet.). Appellant was charged with aggravated assault against a public servant with a deadly weapon. More specifically, the indictment alleged that Appellant intentionally, knowingly, or recklessly (1) caused serious bodily injury to Gary Joe Kinne, Jr. (2) by shooting him with a firearm (3) when Appellant knew that Kinne was a public servant, i.e., an employee of the Canton Independent School District; (4) that Kinne was lawfully discharging his official duties of Athletic Director by being present on the campus of the high school when school was in session; and (5) that Appellant used or exhibited a deadly weapon, a firearm, during the commission of the offense.

In a number of cases, courts in this state have concluded that bail of $1 million for murder or capital murder was excessive. See, e.g., Ex parte Henson, 131 S.W.3d 645, 651 (Tex. App. Texarkana 2004, no pet.) ( holding that bonds of $750,000 on each count of capital murder excessive because there was no evidence that defendant personally committed the violence, had been previously charged with other crimes, was guilty of prior violent behavior, or intended or anticipated the killings); Ex parte Davis, 147 S.W.3d 546, 553 (Tex. App. Waco 2004, no pet.) (determining that bail of $1,000,000 for each murder defendant was excessive because one defendant had a minor criminal history and both defendants lacked financial resources to make bail even though the second defendant could disregard bond conditions, posed a danger to the community, engaged in narcotics trafficking, and had a prior criminal history); Ex parte Milburn, 8 S.W.3d at 423, 426-27 (holding bail of $2,000,000 excessive even though defendant was charged with the capital offense of intentionally or knowingly causing the death of a child under six years of age because defendant had significant community and family ties in the county, there was no evidence that defendant posed a danger to the community, and he lacked the ability to post any amount of bail). Because a number of the factors that persuaded the courts in these cases predominate here, as explained more fully below, this factor favors a bond reduction on the aggravated assault charge.

Appellant was also charged with intentionally or knowingly possessing or going with a firearm, i.e., a handgun, on the physical premises of a school and without written regulations or written authorization of the school permitting this conduct. Courts have approved bail amounts between $25,000 and $150,000 for third degree felonies. See Ex parte Durst, 148 S.W.3d 496, 501 (Tex. App. Houston [14th Dist.] 2004, no pet.) (reducing bonds to $150,000 for each third degree felony charge); Ex parte Hulin, 31 S.W.3d at 758, 762 (approving bond amount of $50,000 for third degree felony offense); Ex parte McCullough, 993 S.W.2d 836, 839 (Tex. App. Waco 1999, no pet.) (approving total bond amount of $25,000 for three counts of injury to an elderly person). Considering this factor alone and giving no weight to the cumulative effect of the bond amounts, Appellant s bond of $100,000 for his third degree felony charge does not appear excessive. Thus, this factor does not support a bond reduction on the weapons charge.

3. Nature of the offense and circumstances of commission

Appellant was charged with aggravated assault against a public servant with a deadly weapon, a first degree felony. As noted above, the indictment alleges that Appellant caused serious bodily injury to Kinne by shooting him with a firearm and that Appellant knew Kinne was a public servant. The punishment for a first degree felony is imprisonment for life or for any term of not more than ninety-nine years or less than five years and, in addition, a fine not to exceed $10,000. Tex. Pen. Code Ann. 12.32 (Vernon 2003). Appellant is also charged with places weapons prohibited, a third degree felony, for possessing or going with a firearm on the premises of Canton High School without written regulations or written authorization of the school permitting this conduct. The punishment for a third degree felony is imprisonment for any term of not more than ten years or less than two years and, in addition, a fine not to exceed $10,000. Tex. Pen. Code Ann. 12.34 (Vernon 2003). We are mindful that the alleged offenses are serious. However, the circumstances under which the offenses were committed were not developed at the hearing. Thus, this factor is, at most, neutral and neither favors or weighs against a bond reduction.

4. Ability to make bail

Carol testified extensively regarding her knowledge of the couple s financial condition. Carol has worked at Wal-Mart as a pharmacist for over nine years. Her salary is approximately $2,800 every two weeks or $90,000 to $95,000 per year. Appellant is one of two partners in Priority Heating & Air, a heating and air conditioning company located in Dallas, Texas. According to Carol, Appellant is the majority breadwinner, and his income was similar to hers prior to his arrest. Carol testified that she is unfamiliar with Appellant s business, has made no effort to sell his interest in the business, and is unsure if his interest has any value.

Carol s household expenses include a home mortgage, a second mortgage, two vehicle payments, vehicle insurance, student loans, college tuition for one son, credit card debt, and living expenses, including telephone, electricity, water, and health insurance. She and Appellant own real property in Van Zandt County, including their three bedroom home on ten acres. Also located on the property are a detached two bay garage and a small unoccupied cabin. She and Appellant own two vehicles, a 2004 Dodge Durango and a Dodge Stratus. She testified that Appellant and his father share ownership of a 1997 Chevrolet pickup, but the State pointed out that the vehicle is registered in Appellant s name. Carol stated that she and Appellant own three all terrain vehicles, one old tractor, and a riding lawnmower. She admitted that Appellant leased property owned by relatives for deer hunting in West Texas, but stated that the lease was not paid this year. She admitted that her son has some hunting rifles that were gifts to him. However, Carol stated that she has not attempted to sell these rifles because she regards them as her son s property. She admitted not knowing how many firearms are in her home, although she stated that she has a gun safe that could be sold.

Carol stated that she has life insurance through her employer and that Appellant has a whole life policy with a cash surrender value of approximately $9,000. However, she has not attempted to borrow against that policy. Neither has she contacted any financial institution to borrow money using the couple s property as collateral because she could not assume any additional debt. Carol admitted that she did not contact a bail bond company to see if she could make Appellant s bonds. However, she understood that the bond fee would be ten percent of the amount of his bonds, or $100,000 for the aggravated assault charge alone. Carol stated that she does not have that kind of money and that there was no way to raise $100,000, even with the help of friends or relatives. Carol admitted that their savings had been spent and that, even if she sold all that she owned, she could not make the bond amounts. Carol stated that spending the money to retain counsel to represent Appellant made her financial situation precarious. She testified that she had access to approximately $7,000 in cash. The trial court reasonably could have concluded that Carol could raise approximately $16,000 if Appellant surrendered his life insurance policy for an additional $9,000. However, the evidence shows that Appellant is unable to raise the amount necessary for posting both bond amounts, even if he and Carol sold all they own. Thus, this factor favors a bond reduction.

5. Future safety of victim and community

The future safety of the victim or community was not addressed at the hearing. The existence of an indictment, without more, is insufficient to show the accused poses a threat to the victim or community, and evidence should be presented on that issue. See Ex parte Milburn, 8 S.W.3d at 426; Nguyen, 881 S.W.2d at 144. Therefore, the unproven allegations in the indictments are insufficient support for a conclusion that Appellant is a threat to the victim or the community. Moreover, the record includes no evidence supporting an inference that Appellant is a threat to either the victim or the community. Thus, this factor favors a bond reduction.

6. Work record

Carol testified that Appellant is one of two partners in a heating and air conditioning company located in Dallas, Texas. She further testified that he is the majority breadwinner of the family. No other evidence of his previous work experience is in the record. However, the fact that Appellant owns a business approximately an hour s drive from the community weighs in favor of a bond reduction.

7. Family and community ties; length of residency

Carol testified that she and Appellant have been married twenty-two years and that they have lived in Canton and Van Zandt County all their lives except from 1990 to 1996 when she attended school. She and Appellant have two sons, one of whom attends community college, and they own a home and ten acres. Further, Appellant is a partner in a business located approximately an hour s drive from the community. The exhibit admitted at the hearing shows that Appellant has many friends and substantial ties to the community. Because Appellant has substantial family and community ties and has resided in the community the majority of his life, this factor favors a bond reduction.

8. Prior criminal record, conformity with previous bond conditions,

and other outstanding bonds

Although the probable cause affidavit indicated Appellant had been charged with four previous offenses, none of these charges, circumstances of the offenses, or bond conditions, if any, were introduced or developed at the hearing. Thus, this factor favors a bond reduction.

9. Aggravating factors involved in the offense

Carol admitted that approximately four hundred children were present on the campus of Canton High School during the average school day. However, any danger Appellant may have posed to these students was not addressed during the hearing. Because no aggravating factors of these alleged offenses were developed at the hearing, this factor favors a bond reduction.

Conclusion

After reviewing the record in this case and considering the factors in article 17.15, we hold that the amount of Appellant s bonds is unsupported by the evidence and therefore excessive. Consequently, we further hold that the trial court abused its discretion in denying Appellant s motions to reduce bond. Appellant s first, second, and third issues are sustained.

Having found that the trial court abused its discretion in denying Appellant s motions to reduce bond, we reverse and remand these cases for further proceedings consistent with this opinion.

DIANE DEVASTO

Justice

Opinion delivered December 30, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)