Ex Parte Durst
Lead Opinion
MAJORITY OPINION ON MOTION FOR REHEARING
I. INTRODUCTION
This is a highly unusual bond appeal from orders denying Durst’s applications for writs of habeas corpus. It involves the highest bail ever set in Texas for a single offense — $1 billion — as well as the highest amount for three offenses — $3 billion. It involves a defendant, Robert Durst, of apparently great, but undetermined, wealth. It also involves a condition imposed by the trial court requiring Durst, who fled an earlier court date on another charge, to pay for twenty-four-hour supervision by law enforcement.
In addition to that, this is not our first opinion in this case. Originally this Court remanded the case to the trial court because the bail set was grossly and outrageously excessive — -unconstitutionally excessive. However, the majority of the panel did not set an amount for bail or state what a reasonable bail might be, other than to state that we had not found a decision in which bail had been set or approved at even one percent of the three amounts set in this case.
As one can imagine, this case defies comparison with any precedent. That is why Durst filed a motion for rehearing. Fearing that the trial court had no real guidance from this Court or the case law, Durst requested this Court issue a new opinion re-setting bail for each offense. Today, we do just that. A majority of the panel grants rehearing, orders the earlier opinion withdrawn, and sets bail for each offense at $150,000. Although this amount is a bit higher than the high end of the range of bail set for third-degree felonies, we find the amount justifiable under the very unusual circumstances of this very unusual case. We explain below.
II. IN SETTING BAIL, ARTICLE 17.15 OF THE CODE OF CRIMINAL PROCEDURE DIRECTS U.S. TO CONSIDER CERTAIN FACTORS
In three issues, Durst challenges the bail amounts as violating the constitutional and statutory prohibitions against exces
The right to release before trial is conditioned upon the accused’s giving adequate assurance that he will stand for trial and submit to sentence if convicted. Stack v. Boyle,
The burden is on the person seeking the reduction to demonstrate that bail is excessive. See Maldonado v. State,
Article 17.15 provides that bail shall be set, in the exercise of discretion, and according 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. art. 17.15.
Other circumstances and factors to be considered in determining the amount of bail include family and community ties, length of residency, aggravating factors involved in the offense, the defendant’s work history, prior criminal record, and previous and outstanding bail. Ex parte Rubac,
A. Sufficient Bail to Assure Appearance
We turn to the first factor, a sufficient bail to assure appearance. The evidence indicates that a bail of approximately $300,000 was not enough to keep Durst in Texas for his trial for murder.
B. Not to be Used as an Instrument of Oppression
Even though we are lowering the amount of bail, this record still supports a high bail. A bail set around one million dollars for all three offenses together would not be oppressive. Although the record is a little unclear as to the highest bail Durst could make, it appears that Durst could make a total bail of one million dollars. For his trial, he was able to post bail equaling approximately $300,000, apparently procuring the money in a day, and he was willing to forfeit that amount. His willingness to forfeit indicates access to more money.
C. Nature of the Offense
The third factor under article 17.15 is the nature of the offense for which the defendant is charged. In connection with this, two of the primary factors considered are (1) the length of the sentence, and (2) the nature of the offense. Ex parte Rubac,
Although the nature of the offenses and the potential lengths of their sentences are relatively minor in comparison to first- and second-degree felonies, they are, nonetheless, felonies. Two of the felonies are for fleeing in the face of an indictment charging murder and the third is for tampering with evidence — which in this case is a human body. These are serious offenses.
The bail amounts set for third-degree felonies range from $25,000 to $100,000. See, e.g., Ex parte Lopes, No. 05-04-00216-CR,
D. Ability to Make Bail
The fourth factor article 17.15 lists is the ability to make bail. Although again, the record is a little unclear as to the full extent of Durst’s wealth, we know it might be immense but we also do not know precisely how much of his wealth he can access. We do know, as we mentioned earlier, that he rapidly procured approximately $300,000 for his trial.
In addition, Durst’s civil lawyer testified that Durst has liquid assets of $2-4 million. Although he has other assets in trust, the corpus cannot be reached. The
In short, as we previously stated, although conflicting evidence exists, it appears Durst could make bail at least as high as one million dollars.
E.Future Safety of the Victim and the Community
The fifth factor is the future safety of the victim and the community. Although one of the felonies is based on Durst’s attempt to dispose of the body of a man Durst admitted killing in self-defense, Durst is not charged with a violent crime. The offenses involved here are, in essence, victimless crimes. In addition, Durst has never been convicted of a violent crime.
The State alleges, however, that Durst is a threat to the community at large. At the trial court hearing, the State and the trial judge referred to taped conversations of Durst in which he allegedly threatened to hurt other people, and Durst’s own lawyers acknowledged that Durst’s brother is afraid of him. Based on this, the State argued that Durst is a danger to the community. The State did not produce these tapes on appeal, so we have not listened to them. But the trial judge did listen to them and based her decision in large part on these tapes and other events also not in the record.
These taped conversations and other events obviously concerned the trial judge and made her fear for others’ safety. We cannot assume that her fears were unfounded, nor does the record discredit her fears. For these reasons, this factor supports a higher, rather than a lower bail.
F. The Remaining Factors
The remaining factors, an established work record, family ties to Galveston, length of residence, and past record of appearing for trial, also hxrrt Durst’s chances for a lower, rather than higher bail. Durst has no work record. He has no family ties to Galveston. He has not lived in Galveston long. And, he fled the last time he had a trial setting, although the charge he faced then was murder, not third-degree felonies. His lawyers argued he is less likely to flee these charges than his murder charge. However, even if we accept the argument as valid, these factors overall point to a high bail' — well over what Durst paid the first time.
G. Calculating the Damage Done by the Article 17.15 Factors
As a whole, the article 17.15 factors do not support a low bail, not even a bail of $50,000 as Durst has requested.
Only the third factor, the nature of the offense, supports a lower bail. Generally, the case law states that this is the primary factor to be considered. See, e.g., Ex parte Rubac,
III. CONDITIONS THE COURT IMPOSED
As noted above, at Durst’s urging, the trial court set conditions intended to secure Durst’s appearance and to ensure that he does not leave Galveston or Harris Counties. These are some of the conditions the judge set:
• Durst must submit to twenty-four-hour supervision by a licensed peace officer of the State of Texas and he must pay the costs of supervision;
• Durst may not leave Galveston or Harris Counties without prior written approval of the trial court;
• Durst must surrender his passport and not obtain any others;
• Durst must be home by 7:00 p.m. unless the court approves another time in advance; and,
• Durst must appear in court every Friday morning at 9:00 a.m.3
Clearly, these conditions greatly restrict Durst’s ability to flee. The question before us is how much they should impact bail. Little guides us.
In discussing bail, article 17.15 does not mention conditions. However, some cases have considered conditions as a means of assuring a defendant’s appearance or of protecting the victim and society. See Nguyen v. State,
These conditions alone are calculated to ensure that Durst appears for trial. Moreover, public safety is reinforced with the twenty-four-hour supervision by licensed peace officers. To thwart this supervision, Durst would have to conspire with others and take the high risk of injury or death. On the whole, these conditions greatly swing the balance close to the range of bail for third-degree felonies. Als a result, we hold an appropriate balance of the conditions with the article 17.15 factors supports bail of $150,000 for each offense, making the total bail $450,000.
IV. CONCLUSION
In conclusion, we reverse the trial court’s orders denying Durst’s applications for writs of habeas corpus and set bail at $150,000 in each cause number. Because Durst’s applications for writs of habeas corpus did not challenge the conditions the trial judge imposed, those portions of the trial court’s orders remain in effect.
EDELMAN, J., dissenting.
Notes
. Durst also raises a fourth issue, contending that there should be only one indictment charging bail jumping rather than two. However, we do not reach that issue because Durst did not sufficiently develop it in the nial court — presenting no evidence and little argument. It presents nothing for our review and is overruled.
. A jury later acquitted Durst of murder.
. Durst does not appeal any of the conditions imposed.
Dissenting Opinion
Justice, dissenting.
I disagree with the decision of the majority to set bail in this case rather than to