Summary
In Ex parte Wren, 63 Miss. 512, 56 Am. Rep. 825, the court again reviewed the question and adopted the view that the court would not look to the journals to see whether the legislature conformed to the constitutional requirements.
Summary of this case from Witherspoon v. State ex Rel. WestOpinion
No. 05-07-00561-CR
Opinion Filed July 19, 2007. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 194th Judicial District Court Dallas County, Texas, Trial Court Cause No. F04-35595-M.
Before Justices MORRIS, FRANCIS, and MAZZANT
OPINION
DeMarcia Deontric Wren was convicted by a jury of third-degree felony assault family violence and sentenced to six years in prison. The trial court set the appeal bond at $100,000. In appellant's sole issue, he contends the trial court abused its discretion in setting the $100,000 bond. We affirm the trial judge's order. Appellant's indictment alleged a 2004 assault by causing bodily injury to Vandella Dickison, a member of the defendant's household, with an enhancement for a 1992 conviction for the assault family violence of Patricia Freeman. At the bond hearing, appellant told the trial court that while on bond for the assault of Dickison, he was charged with assaulting Nancy Sanchez. The bonding company went off his bond, and he had been in jail since that date. Appellant testified he had no prior felony convictions but did have convictions for driving with a suspended license. He stated he had job prospects, and when asked by the State whether he had been fired from several jobs in the last five to ten years, he responded "[a]bsolutely not." Appellant said he was a lifelong Dallas resident but did go to Florida in 2000 for a job. He indicated he would live with his mother if released and wanted to take care of his son and "get [his] life back right" with his children. Appellant told the court he "paid child support to the best of his ability when I wasn't being arrested for child support." He testified he could post a $2000 bond and had not forfeited a bond previously. The trial record was offered by appellant and admitted into evidence at the bond hearing. The complainant, Vandella Dickison, testified at trial that appellant came home drunk, and when she attempted to take the car to run some errands, he grabbed her neck and hair and slammed her head against the bar counter top in their apartment. After she grabbed a pair of scissors, he took them away from her, slapped and punched her with his fist on her chest and shoulder, then hit her with a telephone handset. At punishment, witness Nancy Sanchez testified that appellant moved in with her after being fired from his job as a maintenance man. Appellant was not initially abusive, but Sanchez came home one day and saw the appellant out on the patio talking on the phone. Sanchez picked up a telephone receiver, she heard appellant singing to another woman about wanting to be with her. When Sanchez said to the woman on the phone, "You can have him . . . come pick him up now," appellant hit her head against the corner of the wall and threw her across the room of their apartment. Both witnesses expressed fear of appellant and believed he posed a continuing threat. Appellant did not testify at the guilt/innocence phase of the trial but told the jury at punishment that he had been employed as a maintenance man for over twelve years. He stated although he had been fired numerous times, he obtained employment soon after being fired. Appellant said he was married and had three children and admitted having been arrested for not paying child support. He testified to having been on bond for the assault of Dickison when he was subsequently charged with assaulting Sanchez. Probation officer Mark Olson testified appellant received a probated sentence for misdemeanor assault in 1992 but was revoked after he failed to report for six months and did not attend family violence counseling. In 1996, he was placed on probation for driving with a suspended license but tested positive for marijuana and absconded. In 2000, he successfully completed his probation for driving with suspended license. Of the three times appellant had been placed on probation, he was able to successfully complete only the third probation. Appellant's eligibility for bond pending appeal is governed by article 44.04 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 44.04 (Vernon 2006). Pending the appeal from any felony conviction, a trial court may deny bail, may permit a defendant to remain at large on the existing bail, or if not on bail, may "admit him to reasonable bail until his conviction becomes final." See Tex. Code Crim. Proc. Ann. art. 44.04(c) (Vernon 2006). The code of criminal procedure treats conditions on pre-trial bond differently from conditions on bail pending appeal. Ex parte Anderer, 61 S.W.3d 398, 401 (Tex.Crim.App. 2001). A condition on a pre-trial bond must be "reasonable," must be to "secure a defendant's attendance at trial," and must be related to the safety of the alleged victim or the community while a condition of bail pending appeal must only be "reasonable." See Tex. Code Crim. Proc. Ann. arts. 17.15 (Vernon 2005) 44.04(c) (Vernon 2006); Ex parte Anderer, 61 S.W.3d at 401-02. Appellant contends the $100,000 appeal bond is excessive and unreasonable, and should be reduced to $2000. He argues that his sentence is only six years imprisonment, he has been in custody continuously since August 9, 2005, and has already served over twenty-one months in confinement. Appellant notes no testimony was presented regarding other outstanding bonds. Appellant has the burden to show his bond amount is excessive. Ex parte Rubac, 611 S.W.2d 848 (Tex.Crim.App. 1981). The setting of bonds is a matter resting within the sound discretion of the trial court and there is no precise standard for reviewing its determination. Ex parte Pemberton, 577 S.W.2d 266, 267 (Tex.Crim.App. [Panel Op.] 1979). The record in this case does not support appellant's claim that bond is excessive or that the trial court abused its discretion in setting the amount of the bond. A jury convicted appellant of assaulting Vandella Dickison after having been previously convicted of assaulting Patricia Freeman. While on bond for the Dickison assault, the evidence shows he assaulted yet another woman, Nancy Sanchez. A jury sentenced him to six years in prison. Appellant has been placed on community supervision in three separate prior offenses and has a history of non-compliance with the conditions of probation in two of those cases. His gave inconsistent testimony about his work history and his future job prospects are indefinite. Appellant has not satisfied his burden. The trial court did not abuse its discretion in setting bond at $100,000. We overrule appellant's sole issue. We affirm the trial judge's order setting appellant's appeal bond at $100,000.