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observing that bail cases involve "the difficult task of weighing the specific facts of a case against many, often contravening factors, and often in the face of scant evidence"
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NO. 03-17-00879-CR NO. 03-17-00880-CR NO. 03-17-00881-CR
04-13-2018
Ex parte Bryan Christopher Everage, Appellant
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
NOS. 17-1384-K26 , 17-1385-K26, 17-1386-K26
HONORABLE DONNA GAYLE KING, JUDGE PRESIDING MEMORANDUM OPINION
Appellant Bryan Christopher Everage is charged in three cause numbers with evading arrest with a vehicle, aggravated robbery with a deadly weapon, and aggravated assault on a public servant. The trial court set bail at $7,500 on the evading-arrest charge in cause number 17-1384-K26; $500,000 on the aggravated-robbery charge in cause number 17-1385-K26; and $500,000 on the aggravated-assault charge in cause number 17-1386-K26. Appellant filed a pretrial application for a writ of habeas corpus asserting that the bail totaling $1,007,500 in the three causes is excessive. Following an evidentiary hearing, the trial court denied relief. For the following reasons, we will affirm the trial court's order in cause number 17-1384-K26 and reverse and remand the trial court's orders in cause numbers 17-1385-K26 and 17-1386-K26.
DISCUSSION
In his sole issue, Everage argues that the bail set in these causes is excessive and violates his rights under the Eighth and Fourteenth Amendments of the United States Constitution; article I, sections 11, 13, and 19 of the Texas Constitution; and articles 1.09 and 17.15 of the Texas Code of Criminal Procedure.
I. Applicable law
Both the United States and Texas Constitutions prohibit excessive bail. See U.S. Const. amends. VIII, XIV; Tex. Const. art. I, §§ 11, 13. The primary purpose of bail is to secure the presence of the defendant in court to answer the accusations against him. Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. 1980). While bail should be sufficiently high to give reasonable assurance that the defendant will appear, it should not be used as an instrument of oppression. Id. In setting bail, the trial court must strike a balance between the defendant's presumption of innocence and the State's interest in assuring the defendant's appearance at trial. Ex parte Beard, 92 S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref'd).
Article 17.15 of the Texas Code of Criminal Procedure provides that the setting of bail is within the discretion of the trial court, but it also limits that discretion by requiring that the court's decision be governed 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.Tex. Code Crim. Proc. art. 17.15. The Texas Court of Criminal Appeals has held that the trial court may also consider the defendant's work record, family and community ties, residency, criminal record, and conformity with previous bond conditions. See Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. 1981). The defendant has the burden of proof to show that the bail set is excessive. Id. at 849.
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.
We review a trial court's ruling in setting bail for an abuse of discretion. Beard, 92 S.W.3d at 573. We view the evidence in the light most favorable to the trial court's ruling. Id. We will not disturb the ruling if it is within the zone of reasonable disagreement. Id. We must measure the ruling against the relevant criteria by which the ruling was made and not merely decide whether the ruling was arbitrary or capricious. Id.
II. Application
In the present case, the trial court entered a single order denying Everage's request for habeas relief in all three causes. Everage has included all three cause numbers in his appeal and has briefed the causes together. However, his arguments focus exclusively on the aggravated-robbery and aggravated-assault causes. Therefore, to the extent he intended to challenge the order setting bail in the evading-arrest cause, he has failed to provide argument or authority in support of that issue and so has waived that issue. See Tex. R. App. P. 38.1(i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."); see also Bohannan v. State, ___ S.W.3d ___, ___, No. PD-0347-15, 2017 WL 5622933, at *10 (Tex. Crim. App. Nov. 22, 2017) ("It is incumbent upon Appellant to cite specific legal authority and to provide legal arguments based upon that authority."). Even in the absence of waiver, based on our review of the record and applicable authority, we conclude that the trial court did not abuse its discretion in setting bail at $7,500 in the evading-arrest cause. Accordingly, we overrule Everage's sole issue in his appeal from the trial court's order in cause number 17-1384-K26. Our analysis herein thus examines whether the trial court abused its discretion in setting bail at $500,000 in both the aggravated-robbery cause and in the aggravated-assault cause.
A. Evidence admitted at the habeas hearing
Several courts have observed that bail amounts such as those in the present case are justified only under exceptional circumstances. See, e.g., Ludwig v. State, 812 S.W.2d 323, 324 (Tex. Crim. App. 1991) (reducing bail in capital-murder case from $1,000,000 to $50,000, noting that the Court had "yet to condone a bail amount even approaching seven figures, even in a capital case"). We therefore review carefully the evidence admitted at the habeas hearing against the factors enumerated in Texas Code of Criminal Procedure article 17.15 and Ex parte Rubac to determine whether the trial court acted within its discretion in setting bond at $500,000 in each of the aggravated-robbery and aggravated-assault causes. See Tex. Code Crim. Proc. art. 17.15; Rubac, 611 S.W.2d at 849.
See also Ex parte Murray, No. 03-07-00590-CR, 2008 WL 744564, at *4 (Tex. App.—Austin Mar. 20, 2008, no pet.) (mem. op., not designated for publication) (observing that bail amounts since Ludwig have "tended to increase generally, but seven-figure bail amounts are still rare"); Ex parte Beard, 92 S.W.3d 566, 571 (Tex. App.—Austin 2002, pet. ref'd) (observing that Ludwig has been cited by commentators as suggesting that "bail in amounts of $250,000 or higher reflect at least questionable exercises of the considerable discretion left to magistrates and trial judges in setting bail" and that "amounts in the area of $50,000 are generally appropriate for even extremely serious cases") (internal quotation marks omitted); Ex parte Bogia, 56 S.W.3d 835, 840 (Tex.App.—Houston [1st Dist.] 2001, no pet.) ("At the $360,000 level, bail is oppressive unless justified by unusual circumstances. Such an amount totally displaces the presumption of innocence and replaces it with a guaranteed trial appearance assured by incarceration without trial.").
1. Nature and circumstances of offense
Aggravated robbery with a deadly weapon and aggravated assault of a public servant are both first-degree felonies. See Tex. Penal Code §§ 22.02(b)(2)(B), 29.03(b). Everage faces punishment of a term of imprisonment for five to 99 years or life and a fine of up to $10,000. See id. § 12.32. Furthermore, because he allegedly used or exhibited a deadly weapon during the commission of the offenses, if convicted, he will not be parole eligible until he has served half of his sentence or 30 years, whichever is less. See Tex. Gov't Code § 508.145(d).
Regarding the circumstances of the offenses, the probable-cause affidavits show the following: On July 12, 2017, Everage and another man, Elkanah Emmanuel Hendrix, entered a jewelry store at approximately 11:00 a.m. Their faces were concealed, and "[b]oth males brandished what appeared to be semi-automatic handguns." They ordered everyone in the store to the floor and demanded that the clerk open the safe. One of the robbers removed property from the safe and then discharged his firearm into the safe. That robber instructed everyone to remain on the floor "because there was a bomb," then both robbers fled the store. A witness to the incident had informed police, who arrived as Hendrix and Everage were fleeing on a motorcycle driven by Everage. As the police pursued the men, Hendrix pointed a firearm in the direction of a pursuing officer's patrol car. The pursuit continued until the motorcycle eventually collided with a patrol car. Both men were apprehended. Found at the scene of the crash was property stolen from the jewelry store and one semi-automatic handgun, which was registered to Everage's father.
Other than the aggravated-robbery probable-cause affidavit, which indicated that one of the robbers had made a threat regarding a bomb, no other evidence was introduced showing the use or existence of a bomb, and the indictment did not allege use of a bomb.
2. Everage's ability to make bail
The only witness who testified at the habeas hearing was Everage's mother, Antoinette Everage ("Toni"). She testified as follows: Everage is a licensed nurse and psychiatric technician. He previously worked at a nearby hospital but is currently unemployed. He has no assets and no real property. Toni and Everage's father, Charles, are divorced and are both retired aerospace engineers. Toni lives in California where she owns a home subject to a mortgage. Charles owns 20 acres of land in Thrall, Texas, on which he and Everage live. Charles also owns a rental house in Hutto.
Toni further testified that the family was unable to post 10 percent collateral on a $1,000,000, which she characterized as "[w]ay too high." She explained that bondsmen were unwilling to use her home as collateral because it is located in California, but would be willing to collateralize Charles's land in Thrall. She explained that "there's a limit to what they would allow and it's in the 100 to 150,000 dollar range" based on the estimated value of the Thrall property.
The record also contains Everage's sworn affidavit for a court-appointed attorney dated July 21, 2017, in which he indicated that he and his wife have no income, no cash in checking, $200 in savings, and no other assets. The trial court entered an order granting his request and appointing him an attorney.
We note, however, that the attorney named in the appointment order was not the attorney who filed Everage's habeas application or represented him at the hearing. The record contains an order granting a motion for substitution of counsel but does not indicate whether the attorney substituted was appointed or retained.
3. Rubac factors
Toni testified that Everage had lived in Williamson County twice in the past two years for a total of about 16 months. He is married, and he and his wife live in Thrall on the land owned by Charles. He has two cousins, who have lived in the area with their families for 10 to 15 years. Toni testified that Everage and his wife had many viable living options available to them if Everage made bail, including residing with his cousin in Georgetown, where he lived when he first moved to Texas; with his cousin who lives in Taylor, who is a pastor; or in Charles's rental house in Hutto, which is currently unoccupied. Everage previously worked at a local hospital and had prospective employment with UPS through one of his cousins. Toni testified that she frequently visited Everage and had planned to move to the area once Everage and his wife had children. She "plan[ned] to accelerate that move" due to the present case and agreed to help Everage comply with bond conditions. She further testified that Everage has no criminal history.
4. Future safety of the community
Ostensibly for the purpose of demonstrating that Everage constituted a threat to the future safety of the community, the State cross-examined Toni about Everage's affiliation with a group known as the "Hebrews." She described it as a group of "individuals that [Everage] fellowshipped with in California before he moved to Texas" who held "Christian beliefs." She confirmed that the group now lives on Charles's property in Thrall and that Hendrix, Everage's accomplice, was a member of the group. The State introduced a letter written by Everage while incarcerated that was addressed to a childhood friend, Vontrey Allen, who was also a member of the group living in Thrall. The letter included several drawings, some of which depicted men wearing turbans carrying guns. At the top of the first page was handwritten "some drawings in boardness lol." The letter is several pages long and contains, in addition to drawings, handwritten text of what appears to be prayer and religious scripture.
The transcript of the hearing indicates that, after the hearing concluded, the trial court admitted, as Court's Exhibit Number 1, a collection of recordings and summaries of jail calls and visits involving Everage and Hendrix. The record contains approximately 15 hours of recordings of nearly 60 calls and approximately three hours of recordings of six jailhouse visits. The recordings were not played or discussed at the hearing.
5. Sufficient bail to assure appearance but not oppress
Courts may consider whether the trial court set bail in an amount "for the express purpose of forcing appellant to remain incarcerated" pending trial or appeal. See Ex parte Harris, 733 S.W.2d 712, 714 (Tex. App.—Austin 1987, no writ) (striking down bail as excessive where trial judge stated on the record, "I'd rather see him in jail than to see someone's life taken"). Here, the record contains no statements by the trial judge indicating that she expressly set bail in these causes for the sole purpose of ensuring that Everage remains incarcerated pending trial. At the conclusion of the November 7, 2017 hearing, the trial judge took the matter under advisement, stating that she would follow applicable law. She further noted that her decision was "not about race. It is not about religion. I'm not considering any of that. I'm looking at the facts that are before me, and I'm trying to figure out what's fair to the State and to you, Mr. Everage, all right? So that's what I'm going to do." On December 18, 2017, she entered the order denying relief in all three causes.
B. Analysis
The State argues that the nature and circumstances of the offenses with which Everage is charged support the bail set in these causes. The record shows that Everage is charged with two violent first-degree-felony offenses and a third-degree-felony offense of evading arrest with a vehicle. There is evidence that he and an accomplice robbed a jewelry store at gunpoint in the middle of the day, threatened multiple civilians with firearms and a bomb threat, discharged a firearm into a safe, and led police officers on a vehicular chase. That evidence shows that Everage deliberately endangered the lives of numerous individuals in the community and law enforcement for his own financial gain. But the evidence also shows that the charges arise from a single criminal episode and resulted in no physical injuries. The evidence further supports Everage's guilt of the aggravated-assault charge only as a party, as police reported that it was Everage's passenger who pointed his gun at a pursuing officer, which was uncontroverted.
The aggravated-robbery probable-cause affidavit indicated that "the shorter male" removed property from the safe, fired the gun into the safe, and announced that there was a bomb. The record contains no evidence as to whether Everage or Hendrix matches that description.
The evidence of Everage's ability to pay is limited. Everage indicated in his sworn affidavit in support of his request for appointed counsel that he has no significant assets. Toni also testified that Everage's family lacked the resources necessary to post bail totaling $1,000,000, but she provided minimal detail regarding those resources and no supporting documentary evidence. However, this Court has observed that "[f]ew individuals can afford bail of $1,000,000 or more, and it is therefore difficult to justify bail in such an amount in light of the constitutional and statutory admonitions that bail is not to be excessive or used as an instrument of oppression." Ex parte Murray, No. 03-07-00590-CR, 2008 WL 744564, at *4 (Tex. App.—Austin Mar. 20, 2008, no pet.) (mem. op., not designated for publication). Furthermore, even assuming that Everage can afford to post $1,000,000 in bail, just as a defendant's inability to afford bail does not alone demonstrate that bail is excessive, a defendant's ability to afford bail in the amount set does not in itself justify bail in that amount. See Beard, 92 S.W.3d at 573.
There is some evidence that Everage poses a flight risk. Specifically, Everage is alleged to have led police on a vehicular chase after he and Hendrix fled the jewelry store, which ended only when they collided with a patrol car. Furthermore, Everage has only lived in Texas for about 16 months and is not currently employed. But the trial court also heard evidence that Everage has long-standing family ties to the community, viable post-release living arrangements, multiple health-care licenses, prospective employment, no criminal record, and no history of violating bond conditions, none of which was controverted by other evidence.
The State points to evidence of Everage's involvement with the "Hebrews." In its brief, it argues that the recordings of jail phone calls and visitations involving Hendrix and Everage show that Everage's association with that group may constitute a safety concern for the community. The State highlights statements made by Hendrix, contending that "[t]he phone and visitation recordings reflect that [Hendrix] was actively recruiting persons in the jail to 'link up' with their organization after their release. [Hendrix] stated that as soon as he gets out of jail he is going to start 'banging' on everybody, that it will be time to 'gang bang,' and it will be game over." The State further contends that Everage and his wife and father "have a conversation wherein Everage states that the clan needs to come together and fight. His father also states that there has been talk of gathering up the troops like North Korea." However, we have found no evidence that Everage made specific or general threats of violence while incarcerated or prior to commission of the offenses or that Everage planned or intended to commit future criminal acts if released on bond. Cf. Berry, No. 09-14-00519-CR, 2015 WL 4760187, at *8 (Tex. App.—Beaumont Aug. 12, 2015, no pet.) (mem. op., not designated for publication) (evidence that, while incarcerated, defendant made a threat against the complaining witnesses during a telephone conversation with third party); Ex parte Frazier, No. 09-11-00620-CR, 2012 WL 252559, at *3-4, (Tex. App.—Beaumont Jan. 25, 2012, no pet.) (mem. op., not designated for publication) (evidence that defendant was a known member of the "5/9 Hoover Crips" and was actively planning violence against an investigator and investigator's wife while incarcerated); Cooley v. State, 232 S.W.3d 228, 238 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (upholding$250,000 bail on each of three solicitation of capital murder charges where evidence that defendant had paid six different people $24,000 to kill his long-time business partner and had considerable assets); Ex parte Simpson, 77 S.W.3d 894, 895-96 (Tex. App.—Tyler 2002, no pet.) (per curiam) (evidence that defendant sent letters from jail that were "incredibly shocking" and demonstrated that defendant was dangerous and a flight risk).
C. Bail in comparable cases
To inform our analysis of whether the trial court acted within its discretion in setting the two $500,000 bail amounts in the present case, we have reviewed numerous cases concerning charges similar to those in the present case, focusing on cases involving high bail amounts.
As the State notes, this Court observed in Ex parte Beard, a capital-murder case, that "[c]ase law is of relatively little value in addressing the ultimate question of the appropriate amount of bail in a particular case because appellate decisions on bail matters are often brief and avoid extended discussions, and because the cases are so individualized that generalization from results reached in others is difficult." 92 S.W.3d at 571 (internal quotations omitted). However, this Court then explained that, "[n]evertheless, a review of some recent capital murder bail cases is instructive" and discussed several comparable cases. Id. at 571-72. We also note that courts in nearly all of the cases we have reviewed relied heavily on case law in evaluating the reasonableness of bail.
In Ex parte Ivey, 594 S.W.2d at 98, Ivey was charged with aggravated robbery, and the trial court set bail at $250,000. There was evidence that Ivey and an accomplice robbed an armored car at gunpoint, from which they stole $631,000. Id. One of the car's occupants, Billy Davis, testified that he saw Ivey "for a short time before the men taped his eyes." Id. There was evidence that Ivey would pose a danger to Davis if released. Id. There was also evidence that Ivey had strong ties to the community and that he could only post a $25,000 bond. Id. at 99. The Texas Court of Criminal Appeals held that the $250,000 bond was excessive and reduced it to $50,000. Id. at 100.
In Ex parte Wright, No. 14-09-00805-CR, 2010 WL 1609235, at *1 (Tex. App.—Houston [14 Dist.] Apr. 22, 2010, no pet.) (per curiam) (mem. op., not designated for publication), Wright was charged with capital murder, two counts of aggravated robbery, and two counts of burglary of a habitation. The trial court set bail at $750,000 in the capital-murder case and $200,000 in each of the other cases, which were upheld on appeal. Id. There was evidence that Wright and two other men robbed a victim in his home at gunpoint. Id. Wright fired his weapon four times, hitting the victim once in the leg. Id. The assailants fled the home, then followed four other people into an apartment. Id. Wright held a gun on one victim while an accomplice fired a gun, injuring one victim and killing another. Id. A week later, he entered another victim's apartment and robbed him at gunpoint. Id. Wright confessed to committing 13 robberies in total. Id.
In Ex parte Douglas, No. 04-03-00153-CR, 2003 WL 21221732, at *1 (Tex. App.—San Antonio May 28, 2003, no pet.) (mem. op., not designated for publication), Douglas was indicted for aggravated robbery, and bail was set at $100,000. Douglas was accused of firing a handgun at an employee while stealing cash from a pawn shop. Id. There was evidence that Douglas had multiple prior felony convictions, including assault causing bodily injury to a family member and felony unlawful use of a weapon. Id. The trial court reduced bail to $75,000 and imposed ordered full-custody electronic monitoring, which would allow Douglas to leave his house to go to work. Id. The bail amount was upheld on appeal. Id. at *2.
In Ex parte Simpson, 77 S.W.3d at 895, Simpson was charged with capital murder, and bail was initially set at $1,000,000, which the appellate court struck down. On remand, the trial court set bail at $600,000, which was upheld on appeal. Id. The offense was a "brutal, gang-related murder." Id. at 897. There was evidence that Simpson had admitted to a police officer that he was a member of the "Southside Crips," a gang known for a wide range of violent crimes against the community. Id. at 895-96. The State introduced letters that Simpson had written while in jail to various people, including his brother, who had received the death penalty for the same offense. Id. at 895. Both the trial court and appellate court described the letters as "incredibly shocking." Id. "[Simpson] wrote only of violence, sex, drugs and partying, and bragged about his bad reputation." Id. The letters showed that, if released on bond, Simpson was likely to resume his gang activities or flee the jurisdiction of the court. Id. at 897.
In Wright v. State, 976 S.W.2d 815, 820-21 (Tex. App.—Houston [1st Dist.] 1998, no pet.), the court of appeals upheld a $500,000 bond on an aggravated-assault charge where there was evidence that Wright (1) planned to flee the jurisdiction and avoid capture by submitting to an operation to change gender identity and attempting to secure fake identity papers to leave the country, (2) held a person at gunpoint, threatening to kill him if he did not obtain the fake identity papers, (3) faced a murder charge and had admitted to shooting the victim, (4) faced a wrongful-death suit seeking $13,000,000 in damages, (5) was likely to obtain considerably more assets that she could use to accomplish her goal of fleeing the jurisdiction, and (6) had no significant ties to the area.
In Nguyen v. State, 881 S.W.2d 141, 142 (Tex. App.—Houston [1st Dist.] 1994, no pet.), Nguyen was charged with aggravated robbery with a deadly weapon, burglary of habitation, and engaging in organized criminal activity. Bail was initially set at $50,000, $50,000, and $250,000, respectively. Id. At the reduction hearing, the facts of the offenses were not developed, but there was evidence that Nguyen was not a Texas resident, was returning to California when he was arrested, and had booked a flight to Vietnam. Id. at 142-43. However, Nguyen's brother, David, who lived in Houston and worked as an interpreter, testified that Nguyen and his wife would move in with his parents, who also lived in Houston. Id. at 144. David further testified regarding his efforts to make bail and testified that his family could only afford bail totaling $30,000. Id. After the hearing, the trial court reduced bail in the criminal-activity cause to $150,000. Id. at 142. The court of appeals held that the bail was excessive and further reduced it to $20,000 in each cause. Id. at 144.
In Ex parte Brown, No. 01-03-00597-CR, 2003 WL 22146394, at *1 (Tex. App.—Houston [1st Dist.] Sept. 18, 2003, pet. ref'd) (mem. op., not designated for publication), Brown was charged in three causes with aggravated assault on a public servant arising from two separate criminal episodes, and bail was set at $250,000 in each cause, which was upheld on appeal. There was evidence that, in the first episode, Brown attempted to sell drugs to an undercover officer. Id. When the raid team moved in to arrest him, he repeatedly rammed a patrol car that was blocking his path and then attempted to run over a police officer. Id. He was arrested and posted bail, which was revoked when he failed to appear for trial. Id. In the second episode, Brown attempted to flee from an officer during a traffic stop, and a high-speed chase ensued, during which he fired shots at pursuing police officers. Id. He was apprehended years later and again fought the arresting officers. Id. Brown was arrested in a different case for interfering with a police officer and again his bond was revoked when he failed to appear for court. Id. at *4.
In Ex parte Ruiz, 692 S.W.2d 192, 193 (Tex. App.—Austin1985, no writ), Ruiz was charged with four counts of aggravated robbery, one count of aggravated assault with a deadly weapon, and one count of aggravated sexual assault. Bail was set at $100,000 on each of the aggravated-robbery and aggravated-assault charges and $50,000 on the aggravated-sexual-assault charge. Id. The trial court heard evidence that appellant, while armed, robbed four people and sexually assaulted one of them. Id. at 194. There was evidence that Ruiz was a habitual offender and had "spent virtually his entire adult life in prison for various robberies. When released on parole, he left the state without knowledge or permission of the parole authorities." Id. However, because five of the six charges stemmed from a single criminal episode, this Court held that bail was excessive and reduced each of the aggravated-robbery and aggravated-sexual-assault bonds to $70,000 and reduced the aggravated-assault bond to $35,000. Id.
In addition to the foregoing cases, we have found other cases involving more serious charges and aggravating facts than the present case, yet in which bail was set in an amount comparable to or less than the bail set in the present case. See, e.g., Ex parte Tata, 358 S.W.3d 392, 403 (Tex. App.—Houston [1st Dist.] 2011, pet. dism'd) (upholding bail totaling $1.1 million where defendant was charged with nine offenses, including four counts of felony murder; evidence showed that she deliberately left seven children alone in a house while the stove remained on with cooking oil heating on top of it, resulting in a fire that killed four young children and seriously injured two others; she had strong family ties to Nigeria and had traveled there immediately after the offense, and her family had interfered in authority's attempts to locate her there); Ex parte Henson, 131 S.W.3d 645, 646 (Tex. App.—Texarkana 2004, no pet.) (reducing bail from $750,000 to $500,000 on each of three charges of capital murder where evidence showed that defendant participated in "brutal triple homicide"); Ex parte Milburn, 8 S.W.3d 422, 426 (Tex. App.—Amarillo 1999, no pet.) (per curiam) (reducing bail in capital murder of child from $500,000 to $100,000; evidence showed that two-year-old victim suffered intentional hard blows to his abdomen, and that the abdominal bruises were consistent with appellant's knuckle prints); Eggleston v. State, 917 S.W.2d 100, 101 (Tex. App.—San Antonio 1996, no pet.) (reducing bail from $1,000,000 to $300,000 in murder case in which defendant was accused of beating his nine-year-old son to death, hiding his body, and then reporting him kidnapped; had contacts all over the country; and had lived in Texas for only a month); Ex parte McDonald, 852 S.W.2d 730, 735-36 (Tex. App.—San Antonio 1993, no pet.) (per curiam) (reducing bail from $1,000,000 to $75,000 in capital-murder case, in which defendant was accused of kidnapping ex-wife then stabbing her to death and attacking his son, who testified that he would feel threatened if defendant was released).
We conclude that these cases support a conclusion that bail set at $500,000 on each of the two first-degree-felony charges in the present case is excessive.
D. The cases on which the State relies are distinguishable
The State cites several cases in support of its argument that the bail set in this case is not excessive. However, we conclude that those cases contained substantially more aggravating facts than the present case.
Ex parte Berry, 2015 WL 4760187, at *2, upheld a $500,000 bail on each of two aggravated-robbery charges. However, the trial court had initially set bail at $150,000 per charge and increased it to $500,000 only after hearing evidence that, while in custody on the charged offenses, Berry had made threats against the complaining witness to a third party. Id. at *8. There was also evidence that Berry had seriously injured the victims, was not a Texas resident and had no significant ties to Texas, and was out of state when he was arrested, and there was minimal evidence of his employment history or financial means. Id. at *6-8.
Ex parte Murray, No. 02-13-00151-CR, 2013 WL 5425312, at *9 (Tex. App.—Fort Worth Sept. 26, 2013, no pet.) (mem. op., not designated for publication) (per curiam), upheld bail set at $750,000 on a charge of aggravated assault with a deadly weapon. Murray faced several charges for conduct arising from multiple criminal episodes, which included evidence that he had shot one person, fired a gun in the direction of four other people, and fired a gun into a car. Id. at *7. The court also relied on several other facts, including that Murray had a "substantial criminal record, which dates back to [Murray]'s adolescence and suggests a sustained and recurring propensity for violent crimes and the illegal use of firearms . . . ." Id.
Ex parte Payten, No. 02-13-00447-CR, 2013 WL 5968449, at *4 (Tex. App.—Fort Worth Nov. 7, 2013, no pet.) (mem. op., not designated for publication), upheld bail set at $750,000 in an aggravated-robbery case. There was evidence that Payten and two other men entered a home and robbed the residents at gunpoint, one of whom knew Payten. Id. at *1. Payten struck one of the victims in the head with a gun. Id. The assailants left and then fired at least eight gunshots at the house from their car. Id. One of the victims was shot twice, once in the face. Id. There was also evidence that Payten was a "known Blood Gang Member" and that he had nine prior convictions, several of which were for violent offenses and violating protective orders. Id. at *1-2. He also had a history of violating prior bond conditions. Id. at *2.
Ex parte Frazier, No. 09-11-00620-CR, 2012 WL 252559, at *4 (Tex. App.—Beaumont Jan. 25, 2012, no pet.) (mem. op., not designated for publication), upheld a $1.9 million bail set for aggravated robbery. There was evidence that Frazier and two other assailants "were apparently very motivated as they waited in the victim's garage for nearly eight hours for her to get home, ambushed her in her garage, robbed her at gunpoint, made her strip down to her underwear then held her at gunpoint for another 6 or 7 hours." Id. at *3 (internal quotations omitted). There was also evidence that Frazier was involved in a similar robbery a week earlier, was a known gang member, was actively planning physical violence against an investigator and his wife while incarcerated, and had made specific flight plans pending his release on bond. Id. at *2-4.
Because of the significant factual differences between the cases cited by the State and the present case, we do not find that those cases support the bail set in this case.
CONCLUSION
We acknowledge that setting reasonable bail presents trial courts with the difficult task of weighing the specific facts of a case against many, often contravening factors, and often in the face of scant evidence. We also recognize that those determinations can turn largely on witness credibility, which trial courts are in the best position to evaluate. Accordingly, we reiterate that trial courts should be afforded considerable discretion in making those challenging determinations.
However, after reviewing the evidence in the present case in the light most favorable to the trial court's ruling, considering the factors relevant to a bail determination, examining cases involving comparable facts, and affording Everage the presumption of innocence to which he is constitutionally entitled, we conclude the trial court abused its discretion in setting bonds totaling $1,000,000 in cause numbers 17-1385-K26 and 17-1386-K26. Were we to affirm the bail amounts in this case, our decision could serve as precedent supporting bail amounts well into the seven- or even eight-figure range in cases with demonstrably more aggravating factors, such as many of the cases described herein. We therefore sustain Everage's sole issue in those causes. Accordingly, we reverse the trial court's order denying habeas relief in those causes and order that bail be set in the amount of $250,000 in cause number 17-1385-K26 (aggravated robbery) and $150,000 in cause number 17-1386-K26 (aggravated assault) subject to reasonable terms and conditions as may be determined by the trial court. We affirm the trial court's order denying relief from the $7,500 bail in cause number 17-1384-K26 (evading arrest).
/s/_________
Cindy Olson Bourland, Justice Before Justices Puryear, Pemberton, and Bourland 03-17-00879-CR Affirmed 03-17-00880-CR Reversed and Remanded
Justice Pemberton Dissenting Without Opinion 03-17-00881-CR Reversed and Remanded
Justice Pemberton Dissenting Without Opinion Filed: April 13, 2018 Do Not Publish