Smith v. State, 01-92-00068-CR

• Decision Date: 09 April 1992
• Docket Number: No. 01-92-00068-CR,01-92-00068-CR
• Citation: 829 S.W.2d 885
• Parties: Charles William SMITH II, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 885

829 S.W.2d 885

Charles William SMITH II, Appellant, v. The STATE of Texas, Appellee.

No. 01-92-00068-CR.

Court of Appeals of Texas Houston (1st Dist.).

April 9, 1992.

Discretionary Review Refused June 3, 1992.

Stanley Schneider, Marshall Arnold, Houston, for appellant.

John B. Holmes, Dist. Atty., Calvin Hartmann, Asst. Dist. Atty., for appellee.

Before OLIVER-PARROTT, C.J., and DUNN and DUGGAN, JJ.

OPINION

DUGGAN, Justice.

This is an appeal from the denial of appellant's application for a writ of habeas corpus. Appellant is presently in custody pending trial on the charge of interference with child custody in violation of TEX.PENAL CODE ANN. § 25.03 (Vernon Supp.1992). In a single point of error, appellant contends that the trial court's order, denying him bail or conditioning his admission to bail upon his payment of the amount of a civil judgment, violates TEX. CONST. art. I, § 11. In its brief, the State agrees the order is invalid. Both parties ask this Court to set bail "as a matter of judicial economy."

In 1984, appellant allegedly fled the United States with two of his minor children, whose custody had been granted to his ex-wife. During his absence from the U.S., appellant was indicted for interference with child custody. After seven years evidently spent in various countries, appellant was deported from Mexico to the United States and was arrested immediately. He is presently in the custody of the sheriff of Harris County, awaiting trial.

On January 14, 1992, appellant filed an application for writ of habeas corpus; the trial court held a hearing on January 16, 1992. Appellant did not testify about his ability to make bond. FBI Special Agent Andrew Tully testified that a warrant for unlawful flight to avoid prosecution was filed against appellant on March 8, 1985, and that attempts to locate him were unsuccessful until 1991. Then, as a result of the airing of a television program, "Unsolved Mysteries," the FBI received over 400 telephone calls alleging the "spotting" of appellant. Based on information received, the FBI office in Mexico City was contacted, and appellant and his two sons were located around December 13, 1991. Appellant was unable to show proper proof of entry into Mexico, and was deported. Appellant's 13-year-old son, Charles Smith III, testified that he, his father, and his brother had travelled extensively for the last six and one-half years in Mexico, Brazil, Scotland, Switzerland, Greece, and Turkey, and that appellant would move with his two sons whenever his ex-wife's pursuit got close. For the last five years, the three had lived in Mexico.

At the conclusion of the habeas hearing, the trial court orally ordered appellant released on a $20,000 bond on each of the two counts of the indictment, conditioned that appellant first deliver to the court two cashier's checks, in the amount of $26,500,000 each, payable to his ex-wife, Carolyn Smith, as trustee, for the benefit of two of his minor children. Although the parties did not fully develop the record on this point, the $53 million total apparently represented the amount of a civil judgment in favor of the children in cause number 85-04736 in the 295th District Court of Harris County. After making that oral order, the trial court then stated:

I need to change something for the record. I've been told that it's logistically impossible. What I'm going to do is deny the writ of habeas corpus. If you come up with the conditions I stated, I will sign the bond upon the delivery of the checks. It will have the same effect, and the same right of appeal, I assume.

The trial court's action either denies bond completely, or sets a $20,000 bond on each count, but conditions the bonds upon appellant's payment, prior to his release from custody, of a total of $53 million to satisfy the civil judgment in the 295th District Court. With either construction, the order cannot stand.

With narrow exceptions, the Texas Constitution provides all prisoners a right to bail pending trial. TEX. CONST. art. I, § 11. Denial of bail is authorized only when:

1. the prisoner is charged with a capital offense and the proof of such offense is evident;

2. any of the exceptions embodied in article I, section 11a applies; ¹ or 3. when other extraordinary circumstances are present, e.g., Mills v. State, 626 S.W.2d 583 (Tex.App.--Amarillo 1981, pet. ref'd) (defendant who has been returned to Texas pursuant to the Interstate Agreement on Detainers, TEX.CODE CRIM.P.ANN. art. 51.14 (Vernon 1979), and is serving in Texas a sentence imposed by another state has no right to bail under article I, section 11).

Appellant is charged with a third degree felony, not a capital offense, and none of the exceptions listed in article I, section 11a applies. Finally, the Mills exception does not apply, and the parties have neither cited any other authority for another already existing "extraordinary circumstances" exception, nor have they directed the Court to any indication in the record of novel extraordinary circumstances warranting a departure from the existing general rule embodied in article I, section 11. Thus, appellant has a right to pretrial bail under the Texas Constitution, and the trial court's order denying bail was error and must be vacated.

The outcome is no different if the trial court's order is regarded not as a denial of bail but as a setting of bond conditioned upon appellant's satisfaction of a civil judgment rendered in a sister court. As a general rule, trial courts have discretion to set conditions upon bail. That discretion is not unlimited, however. The conditions must bear a rational relationship to the purpose of bail--namely, to secure the appearance of the accused before the court. Valenciano v. State, 720 S.W.2d 523, 525 (Tex.Crim.App.1986). Although Valenciano itself involved bail pending appeal of a conviction, we find that the requirement it articulated with respect to bail pending appeal is equally applicable to pretrial bail. The Valenciano court's decision ultimately relied upon Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951), which concerned pretrial bail. The satisfaction of a civil judgment in a sister court bears no rational relationship to the objective of securing appellant's appearance before the trial court hearing appellant's pending felony case.

In the further alternative, if the $53 million was set as the bail amount alone, then the amount is excessive ² and is violative of TEX.CODE CRIM.P.ANN. art. 17.15(2) (Vernon Supp.1992). Although the setting of...