Ex Parte Parker

7H This is remanded the trial court matter proceedings

for consistent with further

this opinion. Chad PARKER.

No. 10-00-131-CR.

Waco.

Aug. Keathley, Keathley Keathley, &

Steve Corsicana, appellant. Watkins, H. Asst. Crim. Dist.

Damara Corsicana, for Atty., appellee. DAVIS, Justice Before Chief Justice VANCE, and Justice GRAY. 712 4. ability

OPINION to make bail is to be regarded, proof may be taken GRAY, Justice. point. charged aggra- Chad Parker is with an 5. The future safety of a victim of the vated sexual assault of a child under four- alleged offense and the community years age. teen of pretrial His bail was shall be considered. $75,000. set at a writ Parker filed of ties, Family community length of corpus habeas to reduce his bail. The trial county, prior residence criminal rec- $50,000. court reduced his After ord, conformity previous with conditions of securing findings of fact and conclusions bond, aggravating circumstances of court,

law from appealed Parker the offense should also be considered. the reduction to this Court. The Rubac, 849-850; 611 at S.W.2d McCul- judgment court’s is affirmed. lough, 993 S.W.2d at 837. The accused’s Applicable bail, inability point to make even to the Law indigence, does not control the other over We review a trial court’s decision Charlesworth, parte factors. Ex pretrial defendant’s bail under S.W.2d 317 (Tex.Crim.App. [Panel an abuse of discretion standard. Ex 1980); Op.] McCullough, 993 (Tex.Crim. Spaulding, 612 S.W.2d 837. App.1981); parte McCullough, Evidence pet.). A applicant habeas has the burden Parker contends that he cannot af proving to the trial court that his bah is bail, ford even the reduced has no criminal Rubac, excessive. Ex parte 611 S.W.2d record, community, has ties to the and is 1981); (Tex.Crim.App. Op.] [Panel flight Although testimony not a risk. McCullough, 993 S.W.2d at 837. presented concerning to make bail, the trial findings, court’s which were The Code of Criminal Procedure record, supported by the were contrary provides the rules for fixing the amount of remaining Parker’s contentions. Parker is bail. Tex.Code Ceim. PROC.Ann. art. 17.15 degree felony accused of the first (Vernon Supp.2000). Whoever sets a de aggravated sexual assault. Tex. Pen. fendant’s it judge, mag be (Vernon § Supp.2000). Ann. Code istrate, officer, governed or other is years age victim while is 13 following rules: years age. Parker is 19 Parker fled to sufficiently high The bail shall be to Louisiana when he became aware of the give reasonable assurance that allegations against him and after he undertaking will with. agreed polygraph to take a examination. require 2. The bail is not to help investiga Parker’s mother declined be so it an used as to make instru- charge tors locate him.1 He has a DWI oppression. ment of juvenile history him pending against and a job pros 3. The nature of the offense and the Louisiana. He has pects step- circumstances under which was Louisiana. His mother and grandmother only committed are to be considered. lived in Navarro victim, concurring dissenting opinions age 1. The and exact were also con- However, report. sharp disagreement regarding only have a whether tained the offense properly finding the trial court could consider the the absence of this and the immaterial fact, thus, opinion. whether the alter this details would not prepared properly part parties were of the record before us. This is both briefed and findings argue one reference to the of- trial court's the case without supported solely by report. amply fact that is the offense fense The trial court’s order is report. supported by Some of the immaterial details in- received at dates, findings, regard report. hearing cluded in the such as times without to the offense Antonio year. less than one County, — San is no of how There evidence resided Navarro Coun- has At the conclusion of ty- that, in its deci- reaching announced sion, facts contained it had considered the nature The trial court concluded that trial court’s Find- report. The an offense offense, possible consequences the con- of Law of Fact and Conclusions ings conviction, history of a and Parker’s the trial request tain a written the absenting himself from State include the offense that the district clerk

avoiding investigators contact with re- report in the clerk’s record. The report The tri- quired a substantial bail amount. by the contains a notation initialed itself also in the al court concluded it had “con- indicating that been trial $50,000 amount of was not unreasonable The by agreement.” document’s sidered under circumstances. in the record ob inclusion clerk’s without Conclusion proper component it a jection renders and the After record appeal. on See Killion record factors, necessary the trial did not court (Tex.Crim.App.1973); 503 S.W.2d in refusing abuse its discretion to reduce Pitts 916 S.W.2d cf. $15,0002 requested. Parker’s bail to as he State, 17 (Tex.Crim.App.1996); Daw v. The order of the trial court is affirmed. (Tex.App . —Waco may contents We thus consider its pet.).

Chief Justice concurring DAVIS determining the trial court’s whether dissenting. Justice VANCE an abuse of discretion. decision constituted I about continue to be concerned While DAVIS, Justice, REX D. Chief is appropriate of what parameters concurring. in a bail reduc- the trial to consider apparent It is from the Fact Findings of I hearing, concur the result reached tion filed by and Conclusions of Law opinion. by the lead in the as well the court’s statements record, that the trial court facts considered VANCE, Justice, dissenting. solely derived from an offense Today my go brethren outside of formally was into never introduced ruling a appellate record to sustain I separately evidence. write to address having hearing, been led bail-reduction propriety of the court’s actions. error who judge, into that an behalf acted as advocate on State hearing petition on for writ of into the he introduced when corpus seeking

habeas a reduction of party that no had offered required the trial court is consider trial deci- suggested. Because the court’s nature of the offense with which the defen supported by the regarding bail is not sion charged un dant is and the circumstances record, I dissent. der which was committed. Tex.CRIm. (Vernon § Supp. PROC-Code. Ann. REVIEW STANDARD

2000) It settled is well of a court’s applica agree Evidence that our review Rules of are not un- Evid. in a bail-reduction is hearings. ble such decision Tex.R. 101(d)(1)(e); Ex abuse of standard. 775 S.W.2d der an discretion Garcia requested authority we have to determine the amount 2. Parker the trial court to lower 15,000. However, $ authority bail to he asked to set bail reasonable bail. $5,000. appeal to lower it Be- requested what less than was from original appeal and cause this is an not an suspect. court is even further proceeding, question whether there is some McCullough, parte 837 listed above. The State neither pet.); nor documentary witnesses evidence.1 Emery, (Tex.App.— appeal the record on should be limit- 1998, no Waco burden on the testimony presented by ed to the defen- to show accused the bail amount to be dant and cross-examination those under article excessive 17.15 of Code by the howev- judge, witnesses State. The Id; Criminal Procedure. Tex.Code er, apparently not with the content (Vernon Supp. art. 17.15 Proc. Ann. CRim. parties evidence he had heard. After both 2000). Article 17.15 lists five factors to by way rested and made brief statements determining consider when is exces if bail argument respective positions, for their They are: sive. following place: took 1) sufficiently The bail high shall be to THE I have COURT: the benefit give that un- reasonable assurance considering some in of the circumstances dertaking will be with. based on a companion this case case and 2) to require bail is not to be just I regard that held with used so as to make it an instrument of that case which I’ve had an opportuni- oppression. ty allegations to consider the contained 3) The nature of the offense and the reports, in the offense etcetera. And circumstances under which it was com- I’m aware that mere- although those are are mitted to be considered. ly allegations point, this I believe 4) to make is to be bail considering after all the evidence will regarded, proof may and taken be That bail will bail. be reduced point. this $50,000in this case. 5) safety The future a victim community offense and the shall Thus, judge summarily announced that be considered. he as was ties, Family community length and of part of the evidence. The offense county, residence rec prior criminal hearing; was not at the it was produced ord, conformity of previous with conditions exhibit; copies not'marked as an were bonds, aggravating circumstances counsel;2 furnished document of the offense should also considered. sponsored not identified or as an exhibit Emery, (citing 970 S.W.2d at 145 by a witness whom Parker’s counsel could Rubac, (Tex.Crim. 848, 849-50 short, judge’s the trial cross-examine. 1981)). Op.] App. [Panel gave opportunity counsel no announcement object.3 THE DETERMINATION OF APPELLATE RECORD have been concerned when a Courts role. As presented that abandons his neutral evidence relates first, second, 1912, Ap- early to the factors' fourth as Criminal appeal report. is the ac 1. This second we have heard in In Killion v. the defendant relatively few months in which State has freely voluntarily knowledged that he produced no evidence to counter evidence signed stipulation agreeing facts of to the accused a bail-reduction 765, (Tex.Crim. the offense. 503 S.W.2d hearing. Ap App.1973). In Pitts "counsel pellant Appellant agreed the that announced Although the record reflect the does not signed receive written trial court could his case,” identity "companion of counsel in the judicial confession.” 916 S.W.2d parties agreed argument at oral that it And, (Tex.Crim.App.1996). in Daw represent- was not Parker's counsel who had evidence,” stipulation Daw to a "consented proceeding. ed another defendant in that found included his which we confession. (Tex.App. concurring opinion cases cited in 3. The support do not consideration of as to the suspicions exist in which the no doubts or reviewing a case peals, witnesses, court. integrity of the ex- fairness or the judge had examined cir- under this idea: decisions rendered pressed Judicial bias, suggest preju- that witness, cumstances Now, in of a the examination in- be, dice favoritism undermine however fair-minded courts, skepticism tegrity for him to breed impossible it would be almost mistrust, princi- and thwart the suggest not to in some so conduct as judicial system is ples on one side or the which the measure he is And, moreover, other. we noticed based. that, attempts thus ivhen Scheffey, CNA Ins. Co. counsel, apt he usurp the functions of — Texarkana questions leading ask that are (citations omitted). denied) writ character, objec- are otherwise Sebek, Metzger v. By attending carefully tionable. to his st writ [1 Dist.] — Houston conserving duties own own denied). he able to

functions, will best be hold the re justice The Fourteenth Court of impartially scales between a case cently considered managing the counsel who are the case and, state; lengthy record” a judge “clarified the with against and the whenev- for her inteifere, in which she relied generally er he does it is at the statement appel preceding and recollection of the events expense authority digni- own of testimony much of ty, rigidly guarded, plea which lant’s to refute the should be State, George v. 20 that he of his trial counsel. may order administer the law 130, th (Tex.App [14 S.W.3d 139 impartiality, with and . —Houston In fairness h.). 2000, the discussing authority pet. Dist.] with that no the judge, majority role of said: pertains to office. State, 282, v. 65 Drake Tex.Crim. 148 S.W. judge It is that a trial well-established (1912) 1157, 1160 may spoken the record when the clarify pro reflect the true trial word does not As the First of has ob- explanations this sort ceedings, and of served: may appellate assistance an be of One of the fundamental compo most State, Myers v. 781 court. See S.W.2d fair nents of a trial is “a neutral and 730, (Tex.App Worth 733-34 . —Fort judge.” Village detached Ward of ref'd). 1989, For a pet. example, when Monroeville, 57, 62, 80, 93 409 U.S. S.Ct. to or describes the cloth points witness (1972). 84, A judge 34 L.Ed.2d 267 trial, of worn ing the defendant at fair impartial should be not act that reflect judge may direct the record an advocate any party. Delaporte as for that identified the defendant. the witness Inc., 561, Square, v. Preston State, 822 Id. See also Martinez v. 1984, (Tex.App. 563 writ ref'd — Dallas 276, (Tex.App. Corpus S.W.2d 282 n.r.e.). A — judge any par should not be 1991, pet.) Christi no Chase v. Finn, adversary. ty’s 41, 43-44 S.W.2d 293, — Fort (Tex.Civ.App. S.W.2d — Dallas ref'd) (where 1988, pet. trial Worth writ); Delaporte, no judge by explaining the record clarified impartiality at 563. S.W.2d vagi a witness that child identified judge is not a matter constitu doll). anatomically nal correct area of law, policy, but public tional well: proper a judge “Clarification” record policy Public demands judge, acting as the tries a act with absolute where the trial who case court, makes an “eyes” appellate impartiality. It further demands explanation physical of some event or judge appear impartial so that to be phenomenon claim rebutting petitioner’s observable to those and simulta- neously pass upon credibility courtroom and about which is no of all there evidence”). Here, witnesses dispute. weighing reasonable re- much in very cited facts which were C.J., (Murphy, 143—44 dissenting). fact, dispute. carefully she rebutted one of par- Because not each made allegation impropriety ties, inserted the offense into the appellant’s trial counsel. we find record, we should not consider it. As the the comments at issue fall outside indicate, improper cases above it is for the proper “clarification” of the record. designed introduce evidence

Appellant judge’s contends re- one party assist or the other or to “testimony” marks are and that ut- bolster one side’s case. tering such remarks she herself a made properly Items not in the record cannot By witness the case. her own admis- Tex.R.App. on appeal. be considered See sion, judge sought amplify 34.1, 34.5, (contents P. Appellate appellate something normally record — Record); see also Gabriel Further, reserved only witnesses. 719 (Tex.App . —Waco making the burden to reveal (letter pet.) attached to brief not dispel or parties, error rests with the not record); Kaman v. fact-finder, the court. In her role aas 131 n. 132 (Tex.App. personal consider her pet.) [1st (purport- Dist.] —Houston prior recollections present ed physically appel indictment cause, events in the but do so she must considered); transcript late Atchison silently. the judge begins Once assist- Co., Weingarten Management Realty ing constructing one side the other in — Houston record, position jrom her is altered (motion writ) [1 Dist.] st for sum one being neutral to an fact-finder judgment present in mary physically adversary. “It is difficult see to how transcript as an attachment to another the neutral role of could the court „ considered). Thus, document not when more or compromised, more blurred evaluating the trial court’s decision on Par role,

with the when prosecutor’s than bail, motion ker’s to reduce his we should judge serves as a for the witness consider state.” Brown v. Lynaugh, 843 F.2d record. (5th Cir.1988). REVIEW THE APPELLATE Id. at The OF dis- senting RECORD Chief Justice went even further: only testify,

Not did she however. on a review record proper- Based us, testimony clearly ly Her to before would find that the court adverse appellant, appear- way its it giving abused discretion resolved by complaint ance of bias irowned on Constitu- the amount of Parker’s about his Lynaugh, tion. Brown v. F.2d In its the court “Findings,” bail. found Cir.1988) (5 (“[I]t apparently th is difficult to that “The defendant has no neutral court ties which inhibit his family depar- how the role of the would community.” could compromised, be more more ture from the The record role, than prosecutor’s undisputed blurred with demonstrates otherwise. lives with when the serves as a witness for evidence shows that Parker his Sciortino, state.”); Swenson, Tyler Marie step-grandmother, [v. 427 F.2d Rose (8 Cir.1970) (“We mother, Myers, think who is th and his Darla ] Jean disability against grain say “very runs ill” and receives income. fairness they his in Navarro Coun- Although that the same consider lived testimony ty August since only own crucial and recollection Sciortino is a licensed nurse at CONCLUSION employed as vocational Regional Further- Hospital. the Navarro of the uncontroverted light sister-in-law, more, Wilma Sciortino’s bail,4 the ability make Parker’s about Frank, Corsicana, Jody” a “cousin lives the amount of court’s decision an “aunt County, lives in Navarro $50,000 $75,000 was tanta- bail from for “a Betty,” County has lived Navarro Considering no reduction at all. mount to time.” Sciortino that she and said properly in the record the evidence members of Parker’s extended above, I listed factors with help would assure that he is not that the court’s decision would find of bail that he “abides the conditions Thus, I would by the record. supported my and mother’s.” instructions his its discretion find that the abused further reduce the amount failing to testified had less than that he error, point I would sustain the bail. account, jail in his he had the clothes $10 order, habeas cor- grant aside the set on, cell. He possessions and a few his pus relief. that, if said he understood admitted required he would be in Navarro remain ap- that he all

County and would make

pearances in court He required. when he left

admitted that the state after jail

date of the offense and was on an DWI Louisiana unresolved in-

charge. He said that other his juvenile with the volvement law was WEBSTER, Appellant, Leo Vernon “dropped.” in Louisiana charge that was that he for a appear He admitted did not to, examination polygraph agreed he had Texas, Appellee. STATE it was because not to but said he was told No. 10-98-374-CR. undergo such examination without attorney being present. Waco. party

Neither introduced evidence relat- to the ing circumstances under which Aug. 2000. allegedly The in- committed. 4, 2000. Rehearing Overruled Oct. relating

formation was con- this factor report, tained which was of the record of the appeal.

should not be considered record available our review con- no evidence circumstances

tains about the offense. uncontroverted tes-

Sciortino amount

timony that the maximum bail would be

which the could afford ' $10,000 $15,000. —

The records contains no evidence factor, ie., fifth the future

relates to the community.

safety of the victim and the ability and will- family’s evidence of -their I consider evidence of his introduced making ingness him. himself to assist assist in because Parker

Case Details

Case Name: Ex Parte Parker

Court Name: Court of Appeals of Texas

Date Published: Aug 9, 2000

Citation: 26 S.W.3d 711

Docket Number: 10-00-131-CR

Court Abbreviation: Tex. App.