Ex Parte Desmond Dwayne Jackson ( 2008 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-08-00042-CR ______________________________





EX PARTE: DESMOND DEWAYNE JACKSON

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On Appeal from the 188th Judicial District Court Gregg County, Texas Trial Court No. 1539-H

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Before Morriss, C.J., Carter and Moseley, JJ. Opinion by Chief Justice Morriss

O P I N I O N

By his pretrial writ of habeas corpus, Desmond Dewayne Jackson sought to have his $750,000.00 bail ⁽¹⁾ reduced in connection with his pending charge of murder during the course of a robbery. After a brief hearing, the trial court denied Jackson's motion without altering its bond requirement. We affirm that denial.

"The primary purpose or object of an appearance bond is to secure the presence of a defendant in court for the trial of the offense charged." Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. [Panel Op.] 1980). Bail should not be set so high as to be oppressive, guaranteeing the defendant's appearance, but should be high enough to provide reasonable assurance the defendant will appear at trial. Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. [Panel Op.] 1980). Bail operates to balance the "presumption of innocence of the accused and 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) (Clinton, J., dissenting in part / concurring in part). Nevertheless, the burden of proof is on the defendant to show that the bail is excessive. Rodriguez, 595 S.W.2d at 550.

In reviewing bond settings on appeal, we are guided by Article 17.15 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon 2005). We will reverse the trial court's decision only if the court abused its discretion, that is, if the decision was made without reference to any guiding principles or was, in other words, arbitrary or unreasonable. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Even if we would have reached a different result, we should not intervene if the trial court's ruling is within the zone of reasonable disagreement. Id. at 391 (op. on reh'g). Under Texas law, the amount of bail required in any case is within the discretion of the court, judge, magistrate, or officer taking the bail, subject to 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 and the community shall be considered.

Tex. Code Crim. Proc. Ann. art. 17.15. In addition, courts are to consider the accused's work record, family and community ties, length of residency, prior criminal record (if any), and any aggravating circumstances alleged to have been involved in the offense the accused is charged with committing. Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex. Crim. App. [Panel Op.] 1981).

In this case, Jackson argues that the trial court abused its discretion in refusing to lower bail, because the State presented no evidence about the nature and circumstances of the offense that could justify setting such an excessively high level of bail, $750,000.00. Citing this Court to our case of Ex parte Henson, 131 S.W.3d 645 (Tex. App.--Texarkana 2004, no pet.), in which we held bail of $750,000.00 for each of three counts of capital murder was excessive, Jackson argues that his bail should be lowered to no more than $100,000.00. ⁽²⁾ The State responds by pointing out that this is a capital murder prosecution, as was Henson, and that, in line with that case, the amount required here was not excessive.

At the beginning of the hearing, the court, before hearing any evidence, stated that it was taking judicial notice of the complaint, the arrest warrant, and the attachments. There was little testimony given at the hearing. ⁽³⁾ Jackson testified that he owned nothing, that he had three children, and that his wife was employed, but her expenses exceeded her income. He testified that he could not post bond, either personally or through efforts of family and friends, and that even the requested $100,000.00 bond would be very difficult to work out even through a bondsman. The State questioned Jackson, eliciting testimony that he had not been employed for several months before his arrest and that his wife was living with friends and relatives because the Jacksons had lost their house. After a flurry of questions by the State, to most of which defense counsel either objected or instructed his client not to answer based on Fifth Amendment grounds, ⁽⁴⁾ Jackson testified, again, that he owned nothing.

The question before us is whether, based on the information before the trial court, it properly exercised its discretion in setting bail in this case.

The court had before it the complaint and an affidavit prepared by Brinkley, which contained a detailed and lengthy description of the charged crime and of another similar robbery that involved an apparently accidental discharge of a pistol but with no one shot. ⁽⁵⁾

The court had information before it setting out the nature of the offense, a murder during a robbery--significantly, with Jackson alleged to be the shooter--and of the circumstances surrounding its commission. It had evidence about Jackson's ability or inability to make a particular level of bail. Significantly, it had evidence that, after the shooting, Jackson had departed Texas and was arrested in Georgia and returned to Texas. Further, the court had information about another armed robbery committed only a week later, allegedly by the same person, with details outlining the State's case against him for both allegations. That addresses the circumstances surrounding the original offense and community safety considerations. The amount set is high, but is within the ranges of bail set by other courts for similar types of crimes. See id. at 648-49.

We also note that the possible punishment was suggested as being life imprisonment and that Jackson apparently had not had gainful employment for six months before the crimes. Cf. Clemons v. State, 220 S.W.3d 176, 178 (Tex. App.--Eastland 2007, no pet.). We recognize that the inability to make this level of bail is one of a number of factors to be considered, but that factor neither controls the amount of bail set nor automatically renders the amount excessive. Id.

We conclude that the court had the discretion to set bail at this level and had adequate information before it to allow it to make a reasoned determination. Under these facts, the trial court did not abuse its discretion by declining to reduce bond as requested.

We affirm the order.

Josh R. Morriss, III

Chief Justice

Date Submitted: June 4, 2008

Date Decided: June 27, 2008

Publish

1. Initially, the trial court denied bond. Following a hearing on Jackson's first petition for writ of habeas corpus, the court set his bond at $750,000.00. Jackson then filed this second petition seeking a reduction of that amount.

2. In Henson, we reduced the bail from $750,000.00 per count to $500,000.00 per count, in light of proof of the unprovoked murder of three individuals but under evidence suggesting that Henson was not the shooter and had strong community ties. See Henson, 131 S.W.3d 645. Here, Jackson is accused of being the shooter and having already traveled to Georgia, from which state he was returned after his arrest on this charge.

3. Jackson called to the stand Detective Doug Brinkley of the Longview Police Department, but the trial court did not let him testify, ruling that such testimony was contrary to traditional procedures and would constitute improper pretrial discovery. Presumably, this was influenced by Jackson's expressed desire to test through Brinkley the sufficiency of the evidence of the alleged crime. Jackson mentions this refusal in his statement of facts, but does not make it a point of error or an argument on appeal.

4. We do not see how Fifth Amendment considerations would apply to questions about whether the house the Jacksons lived in was rented or owned or had been foreclosed on.

5. In this case, the manager of a Cash America Pawn Shop was attacked outside the business, robbed of approximately $8,000.00 and shot to death. A month later, a Krogers was robbed of approximately $14,000.00 by a similarly armed individual. The affidavit reflects that Jackson was identified as the robber in both instances.

;      Even if the issue had been preserved, the record shows Perry did not file a report from a medical expert within the required time limit. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d) (plaintiff has 180 days with possibility of one thirty-day extension to file report from medical expert for each health care provider defendant). The Legislature, in its efforts to reduce frivolous lawsuits, has imposed strict requirements for providing expert reports early in the litigation. Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001); Gill v. Russo, 39 S.W.3d 717, 719 (Tex. App.‒Houston [1st Dist.] 2001, pet. denied). If a plaintiff fails to abide by these time limits, then the trial court shall, on the motion of any affected health care provider, enter an order sanctioning the plaintiff by dismissing the plaintiff's action against that defendant with prejudice. Tex. Rev. Civ. Stat. Ann. art 4590i, § 13.01(e). At the January 27, 2003, hearing, Perry admitted he had failed to file an expert report for each defendant within the time frame allowed. Accordingly, the trial court was required to dismiss Perry's case with prejudice. See, e.g., Gill, 39 S.W.3d at 719 (trial court had mandatory duty to dismiss inmate's medical malpractice suit when, after 180 days, no expert report had been filed for each defendant). Once the case was dismissed, Perry's motion for sanctions was moot.

II. Denial of Access to Courts

            In his second point of error, Perry contends the defendants' alleged failure to disclose relevant documents during discovery effectively denied him access to the judicial system. Perry's argument assumes the defendants intentionally withheld information which Perry intended to file as his report from a medical expert.

            "All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law." Tex. Const. art. I, § 13. "The open courts provision acts as an additional due process guarantee granted in the Texas Constitution, prohibiting legislative bodies from arbitrarily withdrawing all legal remedies from anyone having a well-defined, common-law cause of action." Perry v. Stanley, 83 S.W.3d 819, 825 (Tex. App.‒Texarkana 2002, no pet.). A litigant who wishes to prosecute an alleged violation of the Texas Constitution's open courts provision must first show he or she "has a cognizable common law cause of action that is being restricted." Sax v. Votteler, 648 S.W.2d 661, 666 (Tex. 1983). The litigant then must demonstrate "the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute." Id.

            As we previously discussed in Perry, Texas appellate courts, including this one, have held that, because a plaintiff raising a claim of negligent medical care cannot win at trial or at summary judgment absent competent expert testimony, "the statutory requirement of an expert report is a reasonable restriction directly related to the statute's purpose of discouraging frivolous lawsuits. [citation omitted]. Other courts, including this one, have applied similar reasoning in upholding the statute in the face of an open courts challenge." Perry, 83 S.W.3d at 825. Perry has failed to satisfy the second prong of the open courts analysis.

            Today, we reaffirm our previous holding that the statute is not unconstitutional as applied to Perry. For the reasons stated, we affirm the trial court's judgment.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          November 12, 2003

Date Decided:             November 14, 2003