Ex Parte: Kirby Lovell ( 2022 )

NO. 12-21-00206-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEAL FROM THE 145TH
EX PARTE:
§ JUDICIAL DISTRICT COURT
KIRBY LOVELL
§ NACOGDOCHES COUNTY, TEXAS
MEMORANDUM OPINION
Appellant Kirby Lovell appeals the trial court’s denial of his application for writ of
habeas corpus seeking bail reduction. We affirm.
BACKGROUND
On April 12, 2019, while Appellant was out on bond for possession of a controlled
substance, he was arrested for the offense that is the subject of this appeal—driving while
intoxicated (DWI), third or more offense. He was subsequently released on a preindictment
bond. 1 While out on bond, Appellant was arrested twice more for DWI. In 2021, he was charged
by indictment with the present offense. His bond was set at $250,000.00.
Appellant filed an application for writ of habeas corpus seeking reduction of his bond to a
“reasonable amount.” After a hearing on the application, the trial court entered an order
continuing Appellant’s bail amount at $250,000.00. This appeal followed.
BOND REDUCTION DENIAL
In Appellant’s sole issue, he argues that the trial court erred by denying his request for a
bond reduction.
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We find no indication in the record of the amount of this bond, other than the fact that it was not
$250,000.00.
Standard of Review
Bail settings are reviewed under an abuse of discretion standard. See Ex parte Rubac,
611 S.W.2d 848, 849-50 (Tex. Crim. App. 1981). The reviewing court will not disturb the trial
court’s decision if that decision is within the zone of reasonable disagreement. Ex parte Beard,
92 S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref’d).
Applicable Law
“Bail” is the security given by the accused that he will appear and answer before the
proper court the accusation brought against him and includes a bail bond or personal bond. TEX.
CODE CRIM. PROC. ANN. art. 17.01 (West 2015). The primary purpose in setting bail is to secure
the defendant’s presence at trial. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App.
1977). The Texas Constitution guarantees that “[a]ll prisoners shall be bailable by sufficient
sureties, unless for capital offenses, when the proof is evident[.]” TEX. CONST. art. I § 11.
Excessive bail shall not be required. Id. § 13.
“The amount of bail to be required in any case is to be regulated by the court, judge,
magistrate or officer taking the bail[.]” TEX. CODE CRIM. PROC. ANN. art. 17.15 (West Supp.
2021). The exercise of this discretion is governed by the Constitution and the following rules:
1. Bail and any conditions of bail shall be sufficient to give reasonable assurance that the
undertaking will be complied with.
2. The power to require bail is not to be used to make bail an instrument of oppression.
3. The nature of the offense and the circumstances under which the offense was
committed are to be considered, including whether the offense:
(A) is an offense involving violence as defined by Article 17.03; or
(B) involves violence directed against a peace officer.
4. The ability to make bail shall be considered, and proof may be taken on this point.
5. The future safety of a victim of the alleged offense, law enforcement, and the
community shall be considered.
6. The criminal history record information for the defendant, including information
obtained through the statewide telecommunications system maintained by the
Department of Public Safety and through the public safety report system developed
under Article 17.021, shall be considered, including any acts of family violence, other
pending criminal charges, and any instances in which the defendant failed to appear in
court following release on bail.
7. The citizenship status of the defendant shall be considered.
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Id.; Golden v. State, 288 S.W.3d 516, 518 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). In
determining the amount of a defendant’s bail, the following factors should also be considered:
(1) work record, (2) family and community ties, (3) length of residency, (4) conformity with
conditions of previous bonds, and (5) existence of outstanding bonds. Smith v. State, 829 S.W.2d
885, 887 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). Although the accused’s ability to
make bail is a factor to consider, that factor alone does not control the amount of bail even if the
accused is indigent. Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. 1980). The
burden is on the defendant to show that the amount of bail is excessive. Id.Analysis
Appellant argues that his bond is “oppressively high,” the trial court considered only the
nature and circumstances of the charged offense in setting it, and the importance of the evidence
related to that factor is outweighed by that of factors supporting a bond reduction, specifically his
inability to make the bond, work record, and long residency in the community. We disagree.
First, the record does not support Appellant’s assertion that his bond is “oppressively
high.” A bail amount is oppressive when it is set based on the assumption that the accused cannot
afford bail in that amount and for the express purpose of forcing the accused to remain
incarcerated. Ex parte Nimnicht, 467 S.W.3d 64, 70 (Tex. App.—San Antonio 2015, no pet.).
Nothing in the record before us indicates that the trial court set bail in this case for such a
purpose. Based on the record here, we cannot conclude that the trial court used its power to make
bail an instrument of oppression. See id.; TEX. CODE CRIM. PROC. ANN. art. 17.15.
Second, the record does not support Appellant’s assertion that the trial court considered
only the nature and circumstances of the charged offense in setting bail. In addition to a report
based on the charged offense, the court admitted into evidence three other offense reports offered
by the State. The court also heard the testimony of Appellant’s wife, Melanie Wilkinson,
regarding several other factors relevant to its bail decision, as well as the arguments of the
parties. The court then stated that it would take the matter under advisement, review the State’s
exhibits, and likely rule on the matter later that day. At no time did the court indicate that it
would consider only the nature and circumstances of the charged offense in making its ruling.
Finally, even if the evidence of Appellant’s inability to make the bond, work record, and
long residency in the community weigh in favor of a bond reduction, it does not compel a
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reduction in this case considering the evidence related to other factors. We now discuss the
relevant factors.
Regarding Appellant’s ability to make the bond, Wilkinson testified that she called seven
bondsmen. One bondsman refused her because the bond amount was too high. Another required
four cosigners and payment of $25,000.00. The remaining bondsmen required down payments of
$18,500.00, $12,000.00, $12,000.00, $8,000.00, and $2,000.00, respectively. Wilkinson worked
at a hospital and had only $1,000.00 and no additional assets or ability to borrow money to make
the $250,000.00 bond. She asked the court to reduce the bond to $10,000.00. Wilkinson’s
testimony tends to show that she could not make the bond. However, although a defendant’s
ability or inability to make bail must be considered by the trial court, it does not control the
court’s determination. See TEX. CODE CRIM. PROC. ANN. art. 17.15; Ex parte Vance, 608 S.W.2d
681, 683 (Tex. Crim. App. [Panel Op.] 1980). Furthermore, although Wilkinson’s testimony
shows that she personally lacked the ability to make the bond, it does not show that Appellant
and his other family members lacked that ability. See Milner v. State, 263 S.W.3d 146, 149 (Tex.
App—Houston [1st Dist.] 2006, no pet.) (defendant generally must establish his and his family’s
funds have been exhausted to show inability to make bail). We conclude that this factor weighs
only slightly in favor of a bail reduction.
Regarding Appellant’s work record and residency, Wilkinson testified that Appellant
lived locally with her for the previous thirteen years. He worked at the same job for almost seven
years. His job was being held for him, and he planned to return to work there if he made bond.
These factors weigh in favor of a bond reduction.
On the other hand, the evidence related to the nature and circumstances of Appellant’s
offense, community safety, criminal history, and conformity with conditions of previous bonds
weighs against a bond reduction. Felony DWI has the potential to result in serious consequences.
Perez v. State, 897 S.W.2d 893, 898 (Tex. App.—San Antonio 1995, no pet.). A trial court may
reasonably find that a defendant poses a danger to the community based on a history of drunk
driving and consider it a compelling factor in setting his bail. See Ex parte Williams, Nos. 12-
18-00174-CR, 12-18-00175-CR, 2018 WL 5961309 at *3 (Tex. App.—Tyler Nov. 14, 2018, no
pet.) (mem. op., not designated for publication) (court could consider evidence of two prior DWI
convictions and current allegation of intoxication manslaughter compelling factor in continuing
bail at $100,000.00 in each of two counts). When considering the nature of the offense in setting
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bail, the punishment permitted by law may be considered. Vasquez, 558 S.W.2d at 480. A
history of noncompliance with bond conditions weighs against a determination that the bail
amount is excessive. See Ex parte Anderson, Nos. 01-20-00572-CR, 01-20-00573-CR, 01-20-
00574-CR, 2021 WL 499080 at *12 (Tex. App.—Houston [1st Dist.] Feb. 11, 2021, no pet.)
(mem. op., not designated for publication).
In this case, Wilkinson testified that Appellant has four prior DWI convictions. He went
to prison for DWI in 1994 and 2009. In 2003, Appellant went to prison for unlawful possession
of a firearm by a felon. In 2018, he was arrested for possession of a controlled substance and
bonded out. While out on bond, Appellant was arrested for DWI in April 2019 (resulting in the
present charge), November 2019, and October 2020, and for a traffic offense in February 2021.
Based on the evidence of Appellant’s lengthy DWI history, including his persistence in
committing that behavior even while out on bond, the trial court reasonably could have found
that Appellant posed a danger to the community and considered that a compelling factor in
continuing his bail at $250,000.00. See Williams, 2018 WL 5961309 at *3; Ex parte Rincon,
Nos. 04-13-00715-CR, 04-13-00718-CR, 2014 WL 2443870 at *3 (Tex. App.—San Antonio
May 28, 2014, no pet.) (mem. op., not designated for publication) (court could consider evidence
of prior DWI related convictions and current DWI related allegations a compelling factor in
continuing combined bail of $275,000.00). Furthermore, because of Appellant’s prior felony
convictions, he faces habitual offender punishment of imprisonment for twenty-five to ninety-
nine years. See TEX. PENAL CODE ANN. § 12.42(d) (West 2019). This lengthy potential sentence
also weighs against a bond reduction. See Vasquez, 558 S.W.2d at 480; Williams, 2018 WL
5961309 at *3 (more severe punishment range associated with deadly weapon allegation
weighed in favor of court’s decision not to reduce bond amount).
After considering all the relevant factors, we cannot conclude that the trial court erred by
denying Appellant’s application for writ of habeas corpus and continuing his bail amount of
$250,000.00. See TEX. CODE CRIM. PROC. ANN. art. 17.15; Smith, 829 S.W.2d at 887.
Accordingly, we overrule Appellant’s sole issue.
DISPOSITION
Having overruled Appellant’s sole issue, we affirm the trial court’s order denying habeas
relief.
5
GREG NEELEY
Justice
Opinion delivered February 28, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
FEBRUARY 28, 2022
NO. 12-21-00206-CR
EX PARTE: KIRBY LOVELL
Appeal from the 145th District Court
of Nacogdoches County, Texas (Tr.Ct.No. F2125526)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
trial court’s order denying habeas relief.
It is therefore ORDERED, ADJUDGED and DECREED that the trial court’s
order denying habeas relief below be in all things affirmed, and that this decision be certified to
the court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.