Ex Parte Teddy Berry ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-14-00519-CR
NO. 09-14-00520-CR
_________________
EX PARTE TEDDY BERRY, Appellant
__________________________________________________________________
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause Nos. 14-20471, 14-20474
__________________________________________________________________
MEMORANDUM OPINION
Appellant Teddy Berry appeals from the trial court’s denial of relief on his
pretrial applications for writ of habeas corpus seeking a bond reduction in two
cases. In two issues, Berry contends that the bond set in each case is excessive and
oppressive in violation of the Eighth and Fourteenth Amendments to the United
States Constitution; article I, sections 11, 13, and 19 of the Texas Constitution; and
articles 1.09 and 17.15 of the Texas Code of Criminal Procedure. We affirm the
trial court’s orders denying habeas relief.
1
I. Background
Berry was charged by two indictments with the offense of aggravated
robbery. Bail in each case was initially set at “no bond.” On September 24, 2014,
Berry filed an application for writ of habeas corpus in each case, asking the trial
court to set reasonable bail for the charged offenses.
On September 29, 2014, the trial court conducted a hearing on Berry’s
applications for writ of habeas corpus. Berry presented testimony from three
witnesses at the hearing. First, Berry’s fiancé testified that she and Berry reside in
Little Rock, Arkansas. She testified that Berry manages a powder coating business
in Arkansas and that Berry is the family’s main provider. She testified that she
would personally bring Berry to court whenever he had a court appearance.
Berry’s daughter also testified at the hearing. His daughter testified that she
lives in Arkansas and is currently a stay-at-home mother. She stated that she has a
good relationship with her father, and when asked what assurances she could
provide to the court that Berry would show up for court appearances if released on
bond, she testified that she would “have to get him here.”
Berry also called his older brother as a witness at the hearing. His brother
testified that he has resided in Jefferson County since 1979 and currently lives in
Port Arthur, Texas, where he owns a remodeling company. He testified that if
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Berry was released on bond, he would allow Berry to stay with him at his home in
Port Arthur whenever he needed. In addition, he testified that since he would “have
to put up some of the money” and “some property” to secure any bond set by the
trial court, he would ensure that Berry would show up for his court appearances
because he did not want to lose anything he put up as collateral for the bond.
In addition to the testimony of the three witnesses, Berry presented evidence
at the hearing showing that he had served in the United States Air Force for over
three years and was honorably discharged in 1983. Further, in response to an
inquiry from the trial court about Berry’s criminal record, Berry’s counsel
informed the trial court that Berry had previously been convicted for misdemeanor
theft in Arkansas. The State confirmed that its records for Berry showed a prior
arrest for theft of property, but stated that it was unaware of the disposition of that
charge. It was also undisputed at the hearing that Berry was in Louisiana at the
time he was arrested for the charged offenses.
At the conclusion of the hearing, the trial court set bail at $150,000 in each
case. As a condition of bail, the trial court required that a GPS monitor be installed
on Berry’s ankle.
On October 14, 2014, Berry posted bond in both cases in the aggregate
amount of $300,000. On October 24, 2014, the State filed a motion to increase and
3
modify the conditions of bond in both cases. In its motions, the State alleged that
“new information” warranted an increase in Berry’s appearance bonds.
Specifically, the State alleged that on September 9, 2014, while Berry was in jail
for the charged offenses, Berry made a threat against the complaining witnesses
during a recorded telephone conversation with a third party. On October 24, 2014,
the trial court, without a hearing, increased bail in each case to $500,000, and a
warrant was issued for Berry’s arrest based on the increased bond amounts.
On November 7, 2014, Berry filed a second application for writ of habeas
corpus in each case. In both applications, Berry argued that the increased bond
amounts were excessive, oppressive, beyond his financial means, and in violation
of his rights under the Eighth and Fourteenth Amendments to the United States
Constitution; article 1, sections 11, 13, and 19 of the Texas Constitution; and
articles 1.09 and 17.15 of the Texas Code of Criminal Procedure. Berry also
argued that the trial court erred by increasing bail in each case based solely on the
State’s allegation that Berry had made a threat against the complaining witnesses.
Specifically, Berry argued that the State possessed a police report and an audio
recording containing information regarding the alleged threat when the first habeas
hearing took place, but that the State failed to disclose this information to the trial
court at that time. Berry argued that because the State did not disclose this
4
information to the trial court when it set his bonds at the first habeas hearing, the
information could not properly form the basis for a subsequent bail increase.
On November 10, 2014, the trial court conducted a hearing on Berry’s
applications. At the hearing, the trial court, at the request of Berry’s counsel, took
judicial notice of the bond history contained in the court’s file and the evidence
presented during the September 29, 2014 hearing. Thereafter, Berry presented one
witness, Keith Day. Day testified that he is a bail bondsman and that he posted the
two $150,000 bonds for Berry on October 14, 2014. He testified that Berry made a
$10,000 down payment in order to secure Day’s services for those bonds. Day
testified that he required Berry to check in with his bonding company twice per
week and to notify Day’s company of any changes in Berry’s address, phone
number, or employment or if he was rearrested. Day also testified that he required
Berry to wear an electronic ankle monitor and that the ankle monitor was
programmed to notify the monitoring facility if Berry came within ten miles of the
complaining witnesses’ residence. Day testified that during the time period that
Berry was released on the two $150,000 bonds, Berry did not violate the
requirements imposed by Day and, to the best of his knowledge, Berry did not go
within ten miles of the complaining witnesses’ residence. Day further testified that
Berry was aware that there was a warrant issued for his arrest based on the
5
increased bond amounts, yet Berry voluntarily appeared in court for the second
habeas hearing.
At the conclusion of the hearing, the trial court denied Berry’s requested
relief and ordered that bail remain at $500,000 in each case. Berry timely filed this
appeal.
II. Increase in Bail
Berry’s brief on appeal challenges the trial court’s decision to increase bail
and its subsequent denial of his request for a reduction in bail. We first address
Berry’s argument that the trial court erred in increasing his bail from $150,000 to
$500,000 in each case.
Article 17.09 of the Texas Code of Criminal Procedure provides that once a
defendant has “given bail for his appearance in answer to a criminal charge, he
shall not be required to give another bond in the course of the same criminal
action[.]” Tex. Code Crim. Proc. Ann. art. 17.09, § 2 (West 2015). However, as
an exception to this rule, article 17.09 provides that “whenever, during the course
of the action, the judge or magistrate in whose court such action is pending finds
that the bond is defective, excessive or insufficient in amount, or that the sureties,
if any, are not acceptable, or for any other good and sufficient cause,” the judge or
magistrate may “require the accused to give another bond in such amount as the
6
judge or magistrate may deem proper.” Id. art. 17.09, § 3; see also Ex parte Wood,
308 S.W.3d 550, 553 (Tex. App.—Beaumont 2010, no pet.). “No precise standard
exists for determining what constitutes ‘good and sufficient cause’ under [a]rticle
17.09.” Miller v. State, 855 S.W.2d 92, 93-94 (Tex. App.—Houston [14th Dist.]
1993, pet. ref’d). Therefore, each case must be reviewed on a case-by-case basis.
Id. at 94. Because the trial court has considerable discretion under article 17.09 to
increase bail, we will not disturb its decision unless we find that the trial court has
abused its discretion. Id. at 93.
As part of his first issue, Berry argues that the trial court erred by granting
the State’s motion to increase bond and raising his bail to $500,000 in each case
because the State did not establish that Berry made a threat against the complaining
witnesses. Essentially, Berry argues that the State’s allegation that Berry made a
threat against the complaining witnesses was insufficient, by itself, to support an
increase in bail and that it was an abuse of discretion for the trial court to increase
his bonds without evidence of the alleged threat. Berry, however, did not argue,
either in his second application for writ of habeas corpus or at the second habeas
hearing, that the State failed to present evidence of the alleged threat in support of
its motion to increase bail or that the trial court abused its discretion by increasing
his bail without this evidence. He also did not argue that the State failed to show
7
“good and sufficient cause” to increase bail under article 17.09. By failing to
include these grounds in his second application for writ of habeas corpus or in his
arguments to the trial court at the second habeas hearing, Berry failed to preserve
these arguments for our review. See Tex. R. App. P. 33.1(a); Hughes v. State, 16
S.W.3d 429, 431 (Tex. App.—Waco 2000, no pet.) (finding that appellant waived
argument regarding collateral estoppel for purposes of appeal by failing to present
it in his application for writ of habeas corpus or in his arguments to the trial court
during the habeas hearing); Ex parte Torres, 941 S.W.2d 219, 220 (Tex. App.—
Corpus Christi 1996, pet. ref’d) (concluding that appellant waived basis for claim
of double jeopardy by failing to include it in his application for writ of habeas
corpus); see also Ex parte Saldana, Nos. 13-01-360-CR, 13-01-361-CR, 2002 WL
91331, *5 (Tex. App.—Corpus Christi Jan. 24, 2002, no pet.) (not designated for
publication) (finding that appellant failed to preserve his argument that his bond
was improperly increased under article 17.09 because appellant failed to include
such argument in his application for writ of habeas corpus). We, therefore, do not
address the merits of these arguments on appeal.
In his second issue, Berry argues that the trial court should not have
considered the telephone conversation containing the alleged threat in determining
whether to increase bail because the State allegedly possessed a police report and
8
an audio recording containing information regarding the alleged threat when the
first habeas hearing took place, but failed to disclose this information to the trial
court at that time. Berry claims that the State instead chose to bring the telephone
conversation to the trial court’s attention only after Berry had posted the original
two $150,000 bonds. Berry argues that “[a]llowing the State to present information
it possessed but failed to disclose until after a bond hearing or, as in this case, after
[a]ppellant incurs enormous costs in posting the bond,” is oppressive and would
encourage the State to engage in those tactics in the future.
The record before us does not definitively indicate when the State came into
possession of any police report, audio recording, or other evidence of the telephone
conversation containing the alleged threat made by Berry. 1 However, during the
second habeas hearing, the prosecutor informed the trial court that regardless of
1
During the second habeas hearing, Berry’s counsel argued that a police
report containing information regarding the telephone conversation was filed on
September 17 or September 19. He then stated, “I’d like to make sure that that’s
part of the record[,] that that’s a fact.” The trial judge responded, “[t]hat will be
reflected in the record.” However, “[c]ounsel who want ‘the record to reflect’
certain facts must include those facts in the record as evidence either by sworn
testimony, exhibits, stipulations, admissions or judicial notice.” Shields v. State,
820 S.W.2d 831, 833 (Tex. App.—Waco 1991, no pet.). Berry did not present any
testimony, exhibits, stipulations, or admissions establishing the date that the State
first came into possession of the information regarding the telephone conversation.
In addition, although Berry’s counsel asked the trial court to take judicial notice of
the fact that the State possessed an audio recording of the telephone conversation at
the time of the original bond hearing, the record does not reflect that the trial court
agreed to do so.
9
when the State first received information regarding the alleged threat, the
prosecutor filed the State’s motion to increase bond as soon as he personally
became aware of this information:
[THE STATE]: And, Your Honor, regardless of when the
State came in possession of these phone calls, it was made -- as soon
as it was brought to my attention that there was a threat made by Mr.
Berry to the complaining witnesses, that’s when I acted. I felt that it
was important that the Court know that these statements were made.
All cases are different in reference to [defense counsel] comparing
this bond compared to other crimes. All crimes are different, and the
facts are different on this case because there was a threat made to the
complaining witnesses in this case. I acted upon that as soon as I
became aware of it and I brought that to the Court’s attention. I do
think it is pertinent to how these bonds should be set in order to
protect the complaining witnesses in this case.
Berry presented no evidence to contradict the prosecutor’s statements, and the
record before us contains no evidence to suggest that the State intentionally
withheld information from the trial court at the original bail hearing or that the
State, with the intent to keep Berry incarcerated, waited to inform the trial court of
the alleged threats against the complaining witnesses until after Berry had posted
the original appearance bonds.
Article 17.15(5) of the Texas Code of Criminal Procedure requires the trial
court to consider the future safety of the victim of an alleged offense in setting a
defendant’s bail. Tex. Code Crim. Proc. Ann. art. 17.15(5) (West 2015). In
addition, article 56.02 gives the victim of an offense “the right to have the
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magistrate take the safety of the victim or his family into consideration as an
element in fixing the amount of bail for the accused[.]” Id. art. 56.02(a)(2) (West
Supp. 2014). In light of the trial court’s statutory duty to consider the safety of the
victims, the trial court’s broad discretion in setting bail, the absence of any
evidence that the State withheld information intentionally or for the purpose of
keeping Berry incarcerated, and the absence of any relevant case law cited by
Berry to support his argument, we find that the trial court did not abuse its
discretion by considering the alleged threat, even though the trial court received
this information after the initial bond hearing and after Berry posted his original
bonds. See id. art. 17.09, § 3 (providing that the trial court may require the accused
to give another bond “whenever, during the course of the action, the judge . . .
finds that the bond is . . . insufficient in amount . . . or for any other good and
sufficient cause”); Meador v. State, 780 S.W.2d 836, 836-37 (Tex. App.—Houston
[14th Dist.] 1989, no pet.) (finding, in the context of a bond increase under article
17.09, that the trial court “has great latitude and discretion when setting bond for a
person accused of committing a crime”). We overrule Berry’s second issue.
III. Denial of Request to Reduce Bail
In his first issue, Berry argues that the $500,000 appearance bond in each
case is excessive and violates his rights under the Eighth and Fourteenth
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Amendments of the United States Constitution; article I, sections 11, 13, and 19 of
the Texas Constitution; and articles 1.09 and 17.15 of the Texas Code of Criminal
Procedure. We review a trial court’s decision in setting bail for an abuse of
discretion. See Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel
Op.] 1981). The trial court’s ruling will not be disturbed if it is within the zone of
reasonable disagreement. Wood, 308 S.W.3d at 552. In reviewing the trial court’s
decision, we view the evidence in the light most favorable to the trial court’s
ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003),
overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App.
2007).
The primary purpose of an appearance bond is to secure the presence of a
defendant in court for trial of the offense charged. Ex parte Vasquez, 558 S.W.2d
477, 479 (Tex. Crim. App. 1977). “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 Henson,
131 S.W.3d 645, 647 (Tex. App.—Texarkana 2004, no pet.); see also Ex parte
Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. [Panel Op.] 1980). In setting bail, the
trial court must strike a balance between the defendant’s presumption of innocence
12
and the State’s interest in assuring the defendant’s appearance at trial. Ex parte
Beard, 92 S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref’d).
Both the United States and Texas Constitutions prohibit excessive bail. See
U.S. CONST. amends. VIII, XIV; Tex. Const. art. I, §§ 11, 13. Bail is excessive if it
is “set in an amount greater than [what] is reasonably necessary to satisfy the
government’s legitimate interests.” Beard, 92 S.W.3d at 573. Article 17.15 of the
Texas Code of Criminal Procedure provides rules for the court to follow in setting
bail. See Tex. Code Crim. Proc. Ann. art. 17.15. Article 17.15 provides:
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 and
the community shall be considered.
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Id. Other factors and circumstances that the trial court may consider in determining
the amount of bail include: (1) the defendant’s work record; (2) the defendant’s
family and community ties; (3) the defendant’s length of residency; (4) the
defendant’s prior criminal record; (5) the defendant’s conformity with previous
bond conditions; (6) the existence of outstanding bonds, if any; and (7) aggravating
circumstances alleged to have been involved in the charged offense. See Rubac,
611 S.W.2d at 849-50; Wood, 308 S.W.3d at 552. The burden of proof is on the
defendant to prove that bail is excessive. Rubac, 611 S.W.2d at 849.
A. Nature and Circumstances of the Alleged Offense
We first consider the nature of the alleged offenses and the circumstances of
their commission. See Tex. Code Crim. Proc. Ann. art. 17.15(3). In considering
this factor, it is proper to consider the potential punishment for the offense that is
permitted by law. Ex parte Hunt, 138 S.W.3d 503, 506 (Tex. App.—Fort Worth
2004, pet ref’d). Berry has been charged in two cases with aggravated robbery, a
first-degree felony. See Tex. Penal Code Ann. § 29.03(a)(1), (b) (West 2011). The
punishment range for a first-degree felony is imprisonment for five to ninety-nine
years or life, and a fine of up to $10,000. Id. § 12.32. To the extent the two
aggravated robbery offenses arise from the same criminal episode, which the
record seems to suggest, Berry may be sentenced to concurrent, rather than
14
consecutive, sentences if he is convicted of both offenses. See id. § 3.03(a) (West
Supp. 2014). Nevertheless, Berry faces a potentially lengthy prison sentence if he
is convicted of one or both charges. See id. § 12.32. Further, the indictments allege
that Berry, while in the course of committing theft of property belonging to the
complainants, and with the intent to obtain and maintain control over the property,
intentionally and knowingly caused serious bodily injury to the complainants by
hitting them with his hand and kicking them with his foot. “‘Serious bodily
injury’” is defined by the Penal Code as “bodily injury that creates a substantial
risk of death or that causes death, serious permanent disfigurement, or protracted
loss or impairment of the function of any bodily member or organ.” Tex. Penal
Code Ann. § 1.07(a)(46) (West Supp. 2014). Thus, the indictments, on their face,
indicate that the crimes with which Berry is charged are both serious and violent in
nature. Therefore, the trial court could have reasonably concluded that this factor
weighs in favor of a high bail.
B. Sufficient Bail to Assure Appearance
We next consider whether bail is sufficiently high to give a reasonable
assurance of appearance at trial. See Tex. Code Crim. Proc. Ann. art. 17.15(1). A
defendant’s ties to the community and work history are relevant to whether the
amount of bail is adequate to give reasonable assurance that the defendant will
15
appear. See Ex parte Tata, 358 S.W.3d 392, 400 (Tex. App.—Houston [1st Dist.]
2011, pet. dism’d). A defendant’s compliance with the conditions of any prior
bonds also bears on this issue. Ex parte Davis, 147 S.W.3d 546, 548 (Tex. App.—
Waco 2004, no pet.).
During the second habeas hearing, Berry presented evidence that he
complied with the requirements of the two $150,000 bonds while released on bail.
Specifically, Berry’s bail bondsman testified that he imposed several reporting
requirements on Berry, including requirements that Berry check in with the
bondsman twice per week, that Berry report any changes in his address, phone
number, or employment, and that Berry notify the bondsman if he was rearrested
or subsequently incarcerated. The bondsman testified that during the time period
that Berry was released on bond, Berry complied with each of these requirements.
Because Berry’s bonds were set high, the bonding company independently
required Berry to wear an electronic ankle monitor while he was released on bond.
The bondsman testified that Berry’s ankle monitor was programmed to alert the
monitoring facility if Berry came within ten miles of the complaining witnesses’
residence and that, to his knowledge, Berry did not personally violate the ten-mile
restriction while he was released on bond. The bondsman also testified that Berry
16
voluntarily appeared in court for his second habeas hearing despite knowing that a
warrant for his arrest had been issued based on his increased bonds.
Other evidence from the habeas hearings, however, establishes that Berry is
not a resident of this jurisdiction. He resides in Little Rock, Arkansas. Most of
Berry’s family members, including his fiancé, his daughter, and his daughter’s
family, also live in Arkansas. Berry has no discernable ties to Texas other than one
brother who lives in Port Arthur, Texas. The record also reflects that Berry was in
Louisiana at the time he was arrested for the alleged offenses.
With respect to his work history, the record indicates that Berry worked in
Arkansas as the manager of his powder coating business immediately before his
arrest. Berry, however, presented no evidence that he operated or worked for that
business for any meaningful amount of time or that he intended to return to that job
if released on bail. The only other evidence that Berry presented with respect to his
work history was that he served in the United States Air Force and was honorably
discharged in 1983 and that he worked for his brother building homes in Texas for
a brief period in 1986. Berry, however, presented no evidence of any recent work
history that would establish an additional tie to Jefferson County or to Texas in
general.
17
Given that Berry does not reside in this jurisdiction, has few ties to the
community, and was located out of state at the time he was arrested for the charged
offenses, and given the scant evidence in the record of a stable work history or any
meaningful employment ties to Texas, the trial court could have reasonably
concluded that Berry presents a risk of flight, particularly given that he faces a
potential life sentence if convicted of one or both of the charged offenses. Further,
although Berry presented evidence regarding his compliance with the requirements
of his two $150,000 bonds during his release on bond, the record reflects that at the
time the trial court denied Berry’s requested relief, Berry had been released on
bond for less than thirty days. In evaluating Berry’s compliance with the bonds, the
trial court could have reasonably taken into account the relatively brief duration of
this period of compliance in deciding the weight to be given to this evidence. See
Esquivel v. State, 922 S.W.2d 601, 604 (Tex. App.—San Antonio 1996, no pet.)
(noting that the trial court, as the trier of fact, is responsible for assessing the
weight to be given to the evidence in a bail reduction hearing). Viewing the
evidence in the light most favorable to the trial court’s ruling, the trial court could
have reasonably concluded that this factor weighs in favor of a high bail.
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C. Instrument of Oppression
Bail may not be used as an instrument of oppression. Tex. Code Crim. Proc.
Ann. art. 17.15(2); see Ivey, 594 S.W.2d at 99. Bail has been held to be oppressive
when the trial court sets bail at an amount “for the express purpose of forcing
appellant to remain incarcerated” pending trial or appeal. See Ex parte Harris, 733
S.W.2d 712, 714 (Tex. App.—Austin 1987, no pet.). Here, the record contains no
indication that the trial court set the current bail amounts for the sole purpose of
ensuring that Berry remains incarcerated pending trial. See Montalvo v. State, 315
S.W.3d 588, 596 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (“Our
independent review of the habeas corpus record likewise does not suggest that the
trial court deliberately set bail at an excessively high level solely to prevent
Montalvo from posting bail.”).
D. Ability to Make Bail
The trial court is also required to consider the defendant’s ability to make
bail. See Tex. Code Crim. Proc. Ann. art. 17.15(4). To show that he is unable to
make bail, a defendant generally must show that his funds and the funds of his
family have been exhausted. Ex parte Castellanos, 420 S.W.3d 878, 883 (Tex.
App.—Houston [14th Dist.] 2014, no pet.). Unless the defendant can make this
showing, a defendant usually must show that he made an unsuccessful effort to
19
furnish bail before bail can be determined to be excessive. Milner v. State, 263
S.W.3d 146, 149 (Tex. App.—Houston [1st Dist.] 2006, no pet.). However, if both
the defendant and his family indicate a financial inability to procure a bond, the
court will not require the defendant “‘to do a useless thing.’” Id. at 149-50 (quoting
Ex parte Dueitt, 529 S.W.2d 531, 532 (Tex. Crim. App. 1975)).
Berry presented no evidence regarding how much he regularly earns from
his powder coating business, whether that business has any assets, or how much
that business is worth. There is also no evidence in the record regarding Berry’s
personal financial resources, including whether he has any other sources of
income, whether he has any bank accounts, whether he owns any real estate or
other assets, or whether he owes any debt.
At the second habeas hearing, Berry presented testimony from his bail
bondsman that he paid the bondsman $10,000 as a down payment for his original
two $150,000 bonds. Berry, however, presented no evidence regarding whether
that payment exhausted Berry’s funds or the funds of his family members or
whether Berry can pay or borrow any additional amounts.2 There is also no
2
In his applications for writ of habeas corpus, Berry alleged that the $10,000
that he paid to his bondsman to secure his initial two $150,000 bonds “represents
more than [d]efendant’s available assets and includes indebtedness to other persons
or family members who loaned money to [d]efendant to secure his release.” Berry
also alleged that as a result of paying the $10,000 to his bondsman, he “has
20
evidence in the record to indicate the premium Berry might have to pay to obtain
two $500,000 bonds to meet the current bail amount set by the trial court, and there
is no evidence showing what efforts, if any, Berry or his family has made to obtain
two $500,000 bonds.
Berry’s brother testified at the first habeas hearing that he would be willing
“to put up some of the money” and “some property” if the trial court set bail for the
charged offenses. The record, however, contains no evidence of how much money
his brother was able or willing to contribute or the value of the property he was
willing to provide as collateral for a bond. There is also no evidence regarding
whether his brother did, in fact, provide any money or property to secure Berry’s
initial two $150,000 bonds or whether any portion of those funds or the property is
still available to secure a bond in a higher amount. Similarly, although Berry’s
fiancé testified at the initial habeas hearing that she would try to make a bond for
Berry, she provided no details regarding how much money she was able or willing
to contribute to secure Berry’s bond, and there is no evidence regarding whether
virtually no assets available to pay his attorney’s fees, investigator’s fees, and other
legal fees related to the preparation of his defense.” Berry, however, presented no
evidence to support these allegations. An application for writ of habeas corpus,
although sworn, “is but a pleading and does not prove itself.” Ex parte Wells, 332
S.W.2d 565, 565 (Tex. Crim. App. 1960); see also Ex parte Taylor, 690 S.W.2d
33, 34 (Tex. App.—Beaumont 1985, no pet.).
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she contributed any funds to the $10,000 payment made by Berry to secure his
initial two $150,000 bonds or whether she has any additional funds to contribute.
In short, the evidence shows that Berry has expended $10,000 since the first
habeas hearing to secure his initial appearance bonds. Berry, however, failed to
present any evidence regarding how, if at all, that payment impacted his ability to
make the higher bail now set by the trial court. Berry presented limited testimony
regarding his and his family’s current financial resources, and he presented no
evidence regarding what efforts, if any, he has made to furnish bail or whether his
funds or the funds of his family have been exhausted. We conclude, therefore, that
Berry did not carry his burden to show that he is unable to make the current bonds
and that the trial court could have reasonably concluded that this factor does not
support a reduction in bail. See Castellanos, 420 S.W.3d at 883; Milner, 263
S.W.3d at 149.
E. Future Safety of the Victims and the Community
The future safety of both the community and the victims of the alleged
offenses must be considered by the trial court in determining the appropriate
amount of bail. Tex. Code Crim. Proc. Ann. art. 17.15(5). Given the seriousness of
the offenses with which Berry has been charged, as well as the alleged acts of
violence that they involved, the trial court could have reasonably concluded that
22
Berry presents a risk to the safety of the community. See Milner, 263 S.W.3d at
151(considering the gravity and nature of the charged offense in determining
whether appellant presented a risk to the safety of the community).
Further, as noted, the State filed a motion to increase bond, asserting as its
sole basis for the increase that Berry, while in custody for the charged offenses,
made a threat against the complaining witnesses during a telephone conversation
with a third party. The State claimed that Berry’s actions “compromise[d] the
future safety of the community and the victim[s]” and warranted an increase in
bail. The record indicates that the trial court was persuaded by the State’s argument
in this respect and, finding that Berry made a threat against the complaining
witnesses, increased bail to $500,000 per case.
Thereafter, Berry filed his second application for writ of habeas corpus,
challenging the higher bond amounts. As the habeas applicant seeking a reduction
in bail, the burden was on Berry to prove that his bail was excessive in light of the
considerations set forth in article 17.15, including those outlined in article
17.15(5). See Rubac, 611 S.W.2d at 849; see generally Tex. Code Crim. Proc.
Ann. art. 17.15. In this respect, Berry presented evidence that while released on
bond, he wore an electronic ankle monitor as a requirement of his bonds, that the
monitor was programmed to alert the monitoring facility if Berry came within ten
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miles of the victims’ residence, and that he did not violate the ten-mile restriction
while he was released on bond. Berry, however, presented no evidence to refute
the trial court’s prior finding that he had threatened the complaining witnesses
while in custody for the charged offenses. Thus, he did not present any evidence to
refute the primary basis for the trial court’s decision to increase his bail. In light of
the trial court’s prior finding that Berry threatened the complaining witnesses, as
well as Berry’s failure to present evidence to refute that finding, the trial court
could have reasonably concluded that Berry’s evidence of compliance with his
bond conditions was insufficient to establish that he did not pose a danger to the
victims in this case and that a higher bail was necessary to ensure the victims’
future safety. The trial court, therefore, could have reasonably concluded that this
factor supported a higher bail.
F. Other Factors
In determining what constitutes reasonable bail, the trial court is also
permitted to consider the defendant’s criminal history and other outstanding bonds.
See Rubac, 611 S.W.2d at 849. Berry’s counsel informed the trial court that Berry
has one prior conviction for misdemeanor theft in Arkansas. The State
corroborated this statement, confirming that its records for Berry showed a prior
arrest for theft of property. No evidence was presented of any outstanding bonds.
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Berry also relies on certain data he obtained from the Jefferson County
District Clerk’s office to argue that his bonds are excessive when compared to
bonds set in other first-degree felony cases in Jefferson County. In support of this
argument, Berry relies on a computer printout from the Jefferson County District
Clerk’s office, which lists, by docket number and charged offense, the bond
amounts set in each capital murder, attempted capital murder, murder, and
aggravated robbery case pending in Jefferson County as of late October or early
November 2014. However, we note that aside from the docket number, the charged
offense, and the amount of bail set, the printout contains no information regarding
any of the cases listed. As such, we do not know if any of the cases identified in
the printout involve facts or circumstances that are similar, in light of the factors
set forth in article 17.15, to those in the present case. Therefore, we find the
printout on which Berry relies to be of relatively little value in determining the
appropriateness of the bonds set in his two cases.
G. Conclusion
The record reflects that the trial court weighed each of the relevant factors in
determining the appropriate amount of bail in these two cases. Given Berry’s
residence out of state, his few ties to Texas, the scant evidence regarding his work
history, and the fact that he was apprehended for the charged offenses out of state,
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the trial court could have reasonably concluded that Berry poses a risk of flight.
Further, given the serious and violent nature of the offenses with which Berry is
charged, the potentially lengthy prison sentence he could face if convicted, the lack
of evidence regarding Berry’s inability to pay the bonds as currently set by the trial
court, and the trial court’s concerns regarding the future safety of the victims and
the community, we find that the trial court could have reasonably concluded that
the $500,000 bond in each case was justified. We conclude that the trial court did
not abuse its discretion in denying Berry’s request for a reduction in bail. We
overrule Berry’s first issue and affirm the judgment of the trial court.
AFFIRMED.
______________________________
CHARLES KREGER
Justice
Submitted on February 18, 2015
Opinion Delivered August 12, 2015
Do not publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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