Ex Parte Simpson

• Decision Date: 30 April 2002
• Docket Number: No. 12-01-00237-CR.,12-01-00237-CR.
• Citation: 77 S.W.3d 894
• Parties: Ex Parte Lionel SIMPSON.
• Court: Texas Court of Appeals

77 S.W.3d 894

Ex Parte Lionel SIMPSON.

No. 12-01-00237-CR.

Court of Appeals of Texas, Tyler.

April 30, 2002.

William M. House, Jr., Palestine, for appellant.

Douglas Lowe, Palestine, for state.

Panel consisted of DAVIS, C.J., WORTHEN, J., and GRIFFITH, J.

PER CURIAM.

Lionel Simpson ("Appellant") appeals the setting of his bond at $600,000.00. In cause number 12-00-00357-CR, styled Ex parte Lionel Simpson, we delivered an opinion which held that a previous $1,000,000.00 bond was excessive. We remanded the matter back to the trial court for a hearing to reconsider the issue of bail. This appeal is from that hearing. Appellant raises three issues. We affirm.

Background

Appellant was indicted, along with others, for capital murder. At the time of the alleged offense, Appellant was a minor. He was certified as an adult for purposes of trial. He has been in custody for approximately eighteen months.

At the original writ of habeas corpus hearing, there was evidence that his family could possibly raise $3,000.00. Also, there was testimony that he was a life-long resident of Anderson County and would live with his mother if released on bond. At the hearing that is before us now, Appellant testified that his financial condition had not changed and that he had no financial resources. Further, Appellant's counsel advised the trial court, upon request, that his client had attended school through the ninth grade. The State introduced copies of letters that Appellant had written in jail to his girlfriends, sisters, and his brother, who previously received the death penalty for the same offense. The purpose of the evidence was to show that Appellant was a member of a violent gang, a danger to the community, and a flight risk. Appellant denied any gang membership.

As noted by the trial court, the letters are incredibly shocking. They portray an individual with a violent and unrepentant nature. Appellant wrote only of violence, sex, drugs and partying, and bragged about his bad reputation. A Palestine police officer testified that Appellant admitted to him that he was a member of a gang in Palestine known as the "Southside Crips," a gang known for a wide range of violent crimes against the community.

Applicable Law

We will review the trial court's decision based on an abuse of discretion standard. Tex.Code Crim. Proc. Ann. art. 17.15 (Vernon Supp.2001); Ex parte Milburn, 8 S.W.3d 422, 424 (Tex.App.-Amarillo 1999, no pet.). A trial court abuses its discretion when it either renders an arbitrary and unreasonable opinion, or acts without reference to any guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990). The primary purpose of an appearance bond is to secure the presence of the defendant in court. See, e.g., Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex.Crim. App. [Panel Op.] 1980); Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex.Crim.App.1977); Ex parte Brown, 959 S.W.2d 369, 371 (Tex. App.-Fort Worth 1998, no pet.). Historically and constitutionally, bail balances the presumption of innocence of the accused with the compelling interest of the State that the accused appear to answer the accusation against him. Balboa v. State, 612 S.W.2d 553, 557 (Tex.Crim.App.1981). Bail should not be so excessive as to guarantee the defendant's appearance, but only to give a reasonable assurance that the defendant will appear at trial. See, e.g., Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim.App.1980); Vasquez, 558 S.W.2d at 479; Brown v. State, 11 S.W.3d 501, 502 (Tex.App.-Houston [14th Dist.] 2000, no pet.). The person seeking the reduction has the burden of demonstrating the bail set is excessive. Ex parte Rodriguez, 595 S.W.2d at 550. In determining the amount of bail to set, the trial court shall be guided by the following rules: (1) bail shall be sufficiently high to give reasonable assurance 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 accused's ability to make bail is to be regarded, and proof may be taken upon this point; and (5) the future safety of the victim of the alleged offense and the community shall be considered. Tex.Code Crim. Proc. Ann. art. 17.15 (Vernon Supp. 2001); DePena v. State, 56 S.W.3d 926, 927 (Tex.App.-Corpus Christi 2001, no pet.). Circumstances to be considered in determining the amount of bail include the accused's work record, family and community ties, length of residency, prior criminal record, and conformity with the conditions of any previous bond, as well as the existence of any outstanding bonds and aggravating circumstances involved in the charged offense. Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex.Crim.App. [Panel Op.] 1981).

Analysis

Appellant asks this court to reduce his bond to no greater than $40,000, alleging that he has no assets and his family's financial resources are limited. However, the ability of an accused to post bond is merely one factor to be considered in determining the appropriate bail. See Ex parte Vance, 608 S.W.2d 681, 683 (Tex. Crim.App. [Panel Op.] 1980); Charlesworth, 600 S.W.2d at 317. Simply because a defendant cannot meet the bond set by the trial court does not automatically render the bail excessive. "If the ability to make bond in a specified amount controlled, then the role of the trial court in setting bond would be completely eliminated, and the accused would be in the unique posture of determining what his bond should be." Ex parte Miller, 631 S.W.2d 825, 827 (Tex.App.-Fort Worth 1982, pet. ref'd). The amount of bail must also be based on the nature of the offense and the circumstances under which it was committed. See Ex parte Davila, 623 S.W.2d 408, 410 (Tex.Crim.App. [Panel Op.] 1981); Miller, 631 S.W.2d at 827. Furthermore, in considering the nature of the offense, it is proper to consider the possible punishment. Ex parte Rodriguez, 595 S.W.2d at 550; Charlesworth, 600 S.W.2d at 317.

In the instant case, the nature of the offense is a brutal, gang-related murder. The circumstances of the offense as set forth in the indictment and other records before us depict a violent, unprovoked killing and suggest an appalling lack of concern for human life. If convicted, Appellant faces life imprisonment. See Tex. Pen. Code Ann. § 12.31(a) (Vernon 1994). Regarding Appellant's assertion that the amount of bail in the present case is so high as to make it an instrument of oppression, we note that this factor may be analyzed by looking at the amount of bond in relation to bonds set for other crimes. Ex parte Emery, 970 S.W.2d 144, 146 (Tex. App.Waco 1998, no pet.). We have reviewed other cases in which similar amount bonds were reduced, but recognize that in many of these cases, the facts and circumstances surrounding the crime were not developed at the hearing on the application for writ of habeas corpus. Compare Ludwig v. State, 812 S.W.2d 323, 325 (Tex. Crim.App.1991) (bond reduced from $1,000,000 to $ 50,000 in capital murder case where circumstances of the offenses were not developed at habeas hearing); Smithwick v. State, 880 S.W.2d 510, 511 (Tex.App.-San Antonio 1994, no pet.) (bond reduced from $500,000 to $100,000 in case involving murder and injury to a child where facts surrounding...