Ex parte McDonald, 04-93-00056-CR

• Decision Date: 22 April 1993
• Docket Number: No. 04-93-00056-CR,04-93-00056-CR
• Citation: 852 S.W.2d 730
• Parties: Ex parte Charles Ray McDONALD.
• Court: Texas Court of Appeals

Page 730

852 S.W.2d 730

Ex parte Charles Ray McDONALD.

No. 04-93-00056-CR.

Court of Appeals of Texas San Antonio.

April 22, 1993.

Michael Bernard, San Antonio, for appellant.

Steven C. Hilbig, Crim. Dist. Atty., Patrick Hancock, Alan E. Battaglia, Asst. Crim. Dist. Attys., San Antonio, for appellee.

Before CHAPA, BIERY and GARCIA, JJ.

OPINION

PER CURIAM.

This is an appeal from the denial of habeas corpus relief. Appellant, indicted for capital murder, challenged the $1,000,000 pretrial bail amount as being excessive. Following a hearing the court did not reduce the bail, denying the relief sought by appellant.

In three points of error appellant contends the bail is excessive and the court abused its discretion by refusing to lower the amount of bail required. ¹

I. Bail in general.

First, we review the rights of an accused to bail and the nature and purpose of bail.

"All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law." TEX. CONST. art. I, § 11 and TEX.CODE CRIM.PROC.ANN. art. 1.07. ²

The interpretive commentary to article I, section 11, of the Texas Constitution, authored by Professor A.J. Thomas, Jr., and Ann Van Wynen Thomas, states:

Bail functions as a complement to the Anglo-American presumption of innocence by permitting a person charged with a criminal offense to regain his liberty with some assurance of his presence at the trial, by requiring him to give security, subject to forfeiture, if he fails to appear and answer before the proper court on the accusation brought against him.

On the supposition that it was not unreasonable to believe that if punishment could not exceed in severity the forfeiture of a large sum of money, it became usual at common law to take security sufficient to assure the attendance of the accused in misdemeanor cases; responsible parties, often friends of the accused, agreeing that a sum of money should be levied from certain of their properties should he make default. However, in felonies the privilege of giving bail was not generally permitted, particularly where there was strong evidence of guilt, or in a capital offense after indictment. As to the latter it was thought that a man subject to the most extreme punishment, would not be likely to appear at a trial to suffer judgment for a mere monetary consideration.

Section 11 incorporates much of the common law on this subject, but at the same time it is more liberal. It recognizes the right to bail by sufficient securities in all criminal offenses with the exception of a capital offense when the proof is evident of commission thereof which renders possible the imposition of the death penalty. Ex parte Tindall, 111 Tex.Cr.R. 444, 15 S.W.2d 24 (1929). This constitutional provision does not mean that bail will be refused simply because a capital offense is involved. Ex parte Russell, 71 Tex.Cr.R. 377, 160 S.W. 75 (1913). There must in addition be proof evident of a capital offense before bail can be refused. In defining "proof evident" it has been asserted that "bail is a matter of right, unless the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that an offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered." Ex parte Donohoe, 112 Tex.Cr.R. 124, 14 S.W.2d 848 (1929).

The Texas Constitution by express words permits bail after indictment which is not deemed to be proof that the accused is guilty of a capital crime or one in which the proof is evident thereof. Ex parte Newman, 38 Tex.Cr.R. 164, 41 S.W. 628 (1897). The test of non-bailable offense is a capital offense with proof evident, and, either before or after the indictment, the burden is upon the state to show that by proof evident the accused is guilty of such an offense for which the death penalty will probably be inflicted. If such is demonstrated, the accused is not entitled to bail. Ex parte Tindall, supra; Ex parte Newman, supra.

TEX. CONST. art. I, § 11 interp. commentary (Vernon 1984).

"Excessive bail shall not be required...." U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13; and TEX.CODE CRIM.PROC.ANN. art. 1.09.

The constitutional provision forbidding excessive bail can be traced to the English Declaration of Rights of 1689. TEX. CONST. art. I, § 13 interp. commentary (Vernon 1984). "The object of prohibiting excessive bail was to prevent recurrence of certain instances during the arbitrary Stuart period in England, when a demand for enormous bail was often made against persons offensive to the court, and when such persons failed to procure this, they were incarcerated." Id.

"If bail is excessive then the right to bail extended by Section 11 is effectively nullified. On principle, bail should be sufficient only to assure the appearance of the accused at his trial." GEORGE D. BRADEN, THE CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS 47 (1977).

In a federal context the United States Supreme Court discussed bail as follows:

This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.

The right to release before trial is conditioned upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty. Like the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is "excessive" under the Eighth Amendment.

Stack v. Boyle, 342 U.S. 1, 4-5, 72 S.Ct. 1, 3, 96 L.Ed. 3 (1951) (citations omitted). In a concurring opinion Justice Jackson, joined by Justice Frankfurter, stated:

The practice of admission to bail, as it has evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty. Without this conditional privilege, even those wrongly accused are punished by a period of imprisonment while awaiting trial and are handicapped in consulting counsel, searching for evidence and witnesses, and preparing a defense....

Admission to bail always involves a risk that the accused will take flight. That is a calculated risk which the law takes as the price of our system of justice....

In allowance of bail, the duty of the judge is to reduce the risk by fixing an amount reasonably calculated to hold the accused available for trial and its consequence. But the judge is not free to make the sky the limit, because the Eighth Amendment to the Constitution says: "Excessive bail shall not be required...."

Id. at 7-8, 72 S.Ct. at 5 (Jackson, J., concurring) (citations omitted).

The primary purpose of an appearance bond is to secure the defendant's presence in court for trial. Ex parte Vance, 608 S.W.2d 681, 683 (Tex.Crim.App. [Panel Op.] 1980); Ex parte O'Clare, 136 Tex.Crim. 123, 124 S.W.2d 141 (1939); Ex parte Thomas, 91 Tex.Crim. 49, 237 S.W. 302, 303 (1922). The amount of bail must be high enough to give reasonable assurance that the accused will appear as required, but the amount should not be oppressively high. Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex.Crim.App. [Panel Op.] 1980); TEX.CODE CRIM.PROC.ANN. art. 17.15(1), (2). The amount of bail should not be fixed at a sum that would be oppressive or result in a denial of bail, but should be fixed at an amount that will insure the presence of the defendant to answer to the indictment. Ex parte Mathews, 151 Tex.Crim. 60, 204 S.W.2d 992 (1947).

The Texas Legislature has provided guidelines for determining bail:

The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and 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.

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 may be considered.

TEX.CODE CRIM.PROC.ANN. art. 17.15.

When seeking a reduction in bail, the burden is on appellant to show that the bail is excessive. Ex parte Charlesworth, 600 S.W.2d at 317. Although the ability to make bail alone does not control the amount of bail, it is to be considered. Id. In considering the nature of the offense, it is proper to consider the possible punishment. Id.

II. Bail amounts in capital cases.

This leads us to an examination of bail in capital cases. The following bail amounts have been authorized by the court of criminal appeals in cases involving capital offenses:

Ludwig v. State, 812 S.W.2d 323 (Tex.Crim.App.1991)

Capital murder--reduced $1,000,000 bail to $50,000;

Ex parte Vasquez, 558 S.W.2d 477 (Tex.Crim.App.1977)

Capital murder--reduced $100,000 bail to $20,000;

Ex parte Green, 553 S.W.2d 382 (Tex.Crim.App.1977)

Capital murder--reversed denial of bail and set bail at $25,000;

Ex parte Cevallos, 537 S.W.2d 744 (Tex....