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02-05-08 WFP Bail
02-05-08 WFP Bail
02-05-08 WFP Bail
Article 1, Section 11, of the Texas Constitution extends the right to bail to
all defendants except those charged with capital offenses. This constitutional
provision is buttressed by Article 1, Section 13, of the Texas Constitution
which prohibits excessive bail.
Several general principles of law have been clearly established by the state’s
appellate courts in bail cases.
• The burden of proof rests with the defendant who claims bail is
excessive. See: Ex parte Rubac, 611 S.W.2d 848, 849
(Tex.Crim.App.1981); Ex parte Martinez-Velasco, 666 S.W.2d 613,
614 (Tex.App.-Houston [1st Dist.] 1984, no pet.)
• The primary purpose for setting bond is to secure the presence of the
defendant in court at his trial. Ex parte Vasquez, 558 S.W.2d 477, 479
(Tex.Crim.App.1977); Ex parte Bonilla, 742 S.W.2d 743, 744
(Tex.App.-Houston [1st Dist.] 1987, no pet.).
• 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; Ex parte
Willman, 695 S.W.2d 752, 753 (Tex.App.-Houston [1st Dist.] 1985,
no pet.)
• Courts should also consider the defendant's work record, family ties,
residency and past criminal record. See: Rubac, 611 S.W.2d at 849;
Martinez-Velasco, 666 S.W.2d at 14-15.
In Ludwig v. State, supra, the court dealt with a case where the defendant
had been charged with two murders. Bond was set at $2,000,000. At a bail
hearing the defendant presented evidence of a limited ability to make bond
because his assets were frozen by court order. Id., at 324. The defendant’s
family members testified that the most they could contribute to bond was
$10,000. Id., 324-25. With a license to practice veterinary medicine in Texas
and an established practice in Katy, the defendant had extensive ties to the
community. Id. The lower court record was void of any evidence that the
defendant had a prior criminal record, had ever failed to comply with terms
of a bond in the past, or had ever attempted to flee police custody. Id. The
appeals court found the two million bond excessive and ordered it reduced to
$50,000. Id., at 326.
These cases reflect that the courts of appeals have consistently over the past
three decades struck down excessive bonds, particularly in Harris County.
The appeals courts, however, have upheld “excessive” bail in some extreme
circumstances. For example, in Maldonado v. State, 999 S.W.2d 91
(Tex.App.-Houston [14th Dist.] 1999, pet. ref’d) the appeals court held that it
is “a matter of common sense that those who possess illegal drugs with the
intent to deliver in quantities present in this case effect [sic] the community
in which they live,” and that “[p]ossession and distribution of narcotics
cannot be ignored in analyzing the safety of the community relevant to bail
determinations.” Id., at 96-97.
See also: Ex parte Prelow, 929 S.W.2d 54, 56 (Tex.App.-San Antonio 1996,
no pet.)[excessive bail upheld because defendant had access to assault rifles
and frequently engaged in shootouts with others]; Esquivel v. State, 922
S.W.2d 601, 604 (GTex.App.-San Antonio 1996, no pet.)[excessive bail
required because of “the brutality of the crime, the duplicity involved in
perpetrating a kidnapping scheme to account for the disappearance of the
child, the evasion appellant bragged about to the detective when he was
arrested, concern for the safety of other witnesses who have been
interviewed during the investigation, and a history of violence toward other
members of his family”].
But in Perez v. State, 897 S.W.2d 893 (Tex.App.-San Antonio 1995, no pet.)
(per curiam) the court of appeals, while acknowledging that numerous DWI
convictions are potentially dangerous to the community, they cannot be used
as a pretext to justify excessive bail where the only purpose is to keep a
defendant incarcerated pending appeal. Id., at 898. See also: Smith v. State,
829 S.W.2d 885, 887 (Tex.App.-Houston [1st Dist.] 1992, pet ref’d)
[rejecting a condition which required the defendant to pay a $53 million
judgment obtained him in a separate civil suit].
Two days later the police questioned Khalid Sabur-Smith who told officers
that he victim consented to have sex with him. He said she performed oral
sex on him and then masturbated him to ejaculation. The defendant denied
having sexual intercourse with the victim. Id.
Five months after the alleged offense police requested a DNA sample from
Khalid Sabur-Smith which matched the DNA taken from the vaginal swap
of the victim. Id., at 439. Khalid Sabur-Smith was arrested and bond was set
at $150,000. His attorney immediately requested that the amount of bail be
reduced to between $30,000 and $50,000. The court denied the request. Id.
While noting that there is “no precise standard for reviewing bond settings
on appeal,” the appeals court said that the “right to a reasonable bond is
based on the presumption of innocence …” Id. The court then noted that the
“primary factors” to be considered are punishment and the nature of the
offense. Id. The court said the offense that Sabur-Smith was charged with, a
second degree felony sexual assault, carried a penalty of imprisonment from
two to 20 years with a fine up to $10,000. Id.
The appeals court pointed out that in sexual assault cases an “excessive”
bond is justified only when the defendant has used violence during the
commission of the offense and/or has an extensive criminal history of sexual
assaults and violence. Id., 439-440.
The bond in the Balawajder case was $50,000 and in the Ruiz case it was
$100,000. These bonds were significantly lower than in the Sabur-Smith’s
case. After nothing that Sabur-Smith did not pose any future threat to either
the victim or the general public, the court found his $150,000 bond
excessive and ordered it reduced to $30,000. Id., at 441.
Harris County
District Court Bail Schedule
Offense Bail
All capital felonies ……………………………………..No Bond
All murders not particularly specified below…………...$50,000.00
All first degree felonies not particularly specified below.$20,000.00
All second degree felonies not particularly specified below
…………………………………………………………..$10,000.00
All felony DWI’s not particularly specified below ……$10,000.00
All third degree felonies not particularly specified below
…………………………………………………………..$5,000.00
All fourth degree (State Jail) felonies not particularly specified below
…………………………………………………………..$2,000.00
Repeat Offenders
Habitual …………………………………………………No Bond
First degree felony with previous conviction …………..$30,000.00
Second degree felony with previous conviction ………..$20,000.00
Felony DWI with previous felony DWI conviction
……………………………………….Double bond amount for each
………………………………………Previous felony DWI conviction.
Third degree felony with previous conviction ………….$10,000.00
Fourth degree (State Jail) with previous conviction …… $5,000.00
Four degree (State Jail) felony with more than one previous
conviction
……………………………………………………………$15,000.00
Particular Situations
Large quantities of controlled substances …….Double the value of the
or large quantities of stolen property controlled substance or
property
In Ex parte Clark, 635 S.W.2d 202 (Tex.App.-San Antonio 1982) the court
of appeals refused to be guided in determining the amount of bail by a “bond
schedule” memorandum “agreed to” by the criminal district judges as “a
guide that the judges use from which they can deviate depending on the
circumstances.” Id., at 204 n.2.
While the Harris County bail schedule is not per se unconstitutional, it does
violate the spirit of the bail process. Texas jurisprudence requires that bail be
determined by a totality of the defendant’s circumstances, not just the
offense charged and criminal history. Tex.Code Crim. Proc. art. 17.15.
‘The court should consider the factors set forth in the statute. Id. We do,
however, recognize the schedule as a guide which in a general way includes
certain factors, particularly the nature of the crime, its severity, and whether
it was committed against a specially protected class (such as children, the
elderly, and victims of domestic violence). In any event, this court does not
review the trial court's mental process in determining bail, we instead review
the appropriateness of the conclusion, i.e., whether the amount of bail is
reasonable.” Id.
The extraordinary amount of bail that the Court discussed in Bogia was
$360,000 on an alleged theft of $183,214.50. In Bogia, District Judge
Belinda Hill applied the standard Harris County District Court Bail Schedule
(attached hereto as Exhibit A) and doubled the amount of the alleged theft.
The Court of Appeals, First District of Texas, reversed Judge Hill and set the
bail at $10,000 in Bogia stating that such amount was the standard Harris
County District Court Bail Schedule for someone charged with a second
degree felony that has no criminal history. The standard Harris County
District Court Bail Schedule for someone charged with a first degree felony
that has no criminal record is $20,000. The Court in Bogia points out that
the standard Harris County District Court Bail Schedule sets bond at
$50,000 for accused murderers, $35,000 for illegal aliens, $30,000 and
$20,000 for those with prior criminal history, and $35,000 for those charged
with 3g or deadly weapon offenses. See also: Ex parte Mayfield, 2007
Tex.App. LEXIS 9758, at p. 7 (Tex.App.-Waco 2007)[followed Ex parte
Bogia].
Typical bond amounts set by the Court of Appeals and the Texas Court of
Criminal Appeals as well as United States Federal Courts are designed to
avoid excessive bail. The First District Court of Appeals in Bogia had the
following to say about their typical bond amounts:
“The bail in this case far exceeds what has been approved in theft cases, and
even in capital murder cases, by the Court of Criminal Appeals and by this
Court.
”The case law from the Court of Criminal Appeals does not support bail in
this amount. In Ex parte Keller and Ex parte Franklin, 595 S.W.2d 531
(Tex.Crim.App.1980), the defendants were charged with stealing more than
a million dollars. The trial court originally set bail at $600,000 for each
defendant ($200,000 in each of three cases against each defendant), but
reduced Keller's bond to $300,000. Id. The Court of Criminal Appeals then
lowered bail to $30,000 for each petitioner ($10,000 per case), even though
Franklin had two prior felonies theft convictions and Keller had prior
convictions for felony forgery and misdemeanor theft. Id. at 532, 533.
Appellant has no convictions and is accused of stealing less than 20% of
what Keller and Franklin were accused of, but her bail is 12 times theirs. See
also Ex parte Rubac, 611 S.W.2d 848, 850 (Tex.Crim.App.1981) (reducing
bail on appeal from $100,000 to $25,000 after conviction and 10-year
sentence for drug offense); Pemberton, 577 S.W.2d at 267 (reducing bail on
appeal from $55,000 to $25,000 after conviction and five-year sentence for
aggravated robbery).
“In capital murder cases, the Court of Criminal Appeals has repeatedly
reduced bail to amounts much lower than appellant's, ranging from $100,000
to $20,000, with most in the $20-50,000 range. See Ex parte McDonald, 852
S.W.2d 730, 733-35 (Tex.App.-San Antonio 1993, no pet.) (collecting cases)
(finding no case in which the Court of Criminal Appeals had approved a
bond as high as $300,000 and concluding “··· it would be an unusual case
which would justify such a high bail amount.” Id. at 735, n. 4); Ex parte
Delk, 750 S.W.2d 816 (Tex.App.-Tyler 1988, no pet.) (capital murder bail
reduced from $100,000 to $35,000); Ex parte Goosby, 685 S.W.2d 440
(Tex.App.-Houston [1st Dist.] 1985, no pet.) (reducing capital murder bail
from $250,000 to $100,000 and affirming bail of $25,000 for attempted
capital murder).
“This Court has frequently lowered bail in theft cases to far below the value
of the property allegedly stolen. Because these opinions are unpublished, we
do not cite them here as authority. Federal courts have apparently done the
same. The Houston Chronicle of August 4, 2001 reported that a local United
States magistrate set bail of $50,000 for a wire fraud defendant accused of
stealing $300,000.” Ex Parte Bogia, supra, 56 S.W.3d at 837-38.
In regards the Harris County District Court Bail Schedule, the Court in
Bogia declined to follow the recommendation to double the amount of the
alleged theft and instead stated:
“We consider it significant that if the Harris County District Court Bail
Schedule had been followed in the Keller case, bail would have been $2
million. Keller, 595 S.W.2d at 531 (defendant allegedly stole more than $1
million). Instead, the Court of Criminal Appeals in Keller set bail at
$30,000, a mere 1.5% of the Bail Schedule amount. Stated another way, the
Court of Criminal Appeals in Keller set bail for defendants with prior felony
convictions who were accused of a far greater theft at 3% of the amount they
allegedly stole, not 200% as the Bail Schedule provides and as the trial court
did here. We conclude that the Bail Schedule's formula for large theft cases
cannot be reconciled with Keller. If a $360,000 bail can be justified here, it
will not be because of any formula. On the contrary, it would have to be
justified by extraordinary facts in this particular case.” Id. See also: Ex parte
Khalid Sabur-Smith, 73 S.W.3d 436 (Tex.App.-Houston [1st Dist.] 2002)(per
curiam) Ex Parte Ruiz, 129 S.W.3d 751, 753-54 (Tex.App.-Houston [14th]
2004) [two reported cases from Harris County since Ex Parte Bogia
reaffirming the bail standard of review set forth in Ex parte Rubac set forth
in Bogia].