Ex Parte Simpson
77 S.W.3d 894
Tex. App.
2002
Check Treatment
PER CURIAM.

Lionel Simpson (“Appellant”) appeals the setting of his bond at $600,000.00. In cause number 12-00-00357-CR, styled Ex parte Lionel Simpson, we delivered an opinion which held that a previous $1,000,000.00 bond was excessive. We remandеd the matter back to the trial court for a hearing to reconsider the issue of bail. This appeal is from that hearing. Appellant raises three issues. We affirm.

Background

Appellаnt was indicted, along with others, for capital murder. At the time of the alleged offense, Appellant was a minor. He was certified as an adult for purposes of trial. He hаs been in custody for approximately eighteen months.

At the original writ of habeas corpus hearing, there was evidence that his family could possibly raise $3,000.00. Also, there was testimony that he was a life-long resident of Anderson County and would live with his mother if released on bond. At the hearing that is before us now, Appellant testified that his financial condition had not changed and that he had no financial resources. Further, Appellant’s counsel advised the trial court, upon request, that his client had attended school through the ninth grade. The State introduced copies of letters that Appellant had written in jail to his girlfriends, sisters, and his brother, who previously received the death penalty for the same offеnse. The purpose of the evidence was to show that Appellant was a member of a violent gang, a danger to the community, and a flight risk. Appellant denied any gang membership.

As noted by the trial court, the letters are incredibly shocking. They portray an individual with a violent and unrepentant nature. Appellant wrote only of violence, sex, drugs and partying, and bragged about his bad reputation. A Palestine police officer testified that Appellant admitted to him that he was a member of a gang in Palestine known as the “Southside Crips,” a gang known for a wide range of ‍​‌‌‌​​​‌​​​​‌‌‌‌‌‌​​‌‌​‌‌​​‌​​‌‌‌​‌​‌‌‌‌​​​‌‌‌​​‍violent crimes against the community.

Applicable Law

We will review the trial court’s decision based on an abuse of discretion standard. Tex.Code Crim. Proc. ÁNN. art. 17.15 (Vernon Supp.2001); Ex parte Milburn, 8 S.W.3d 422, 424 (Tex.App.-Amarillo 1999, no pet.). A trial court abuses its discretion when it either renders an arbitrary and unreasonable opinion, or acts without referenсe to any guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990). The primary purpose of an appearance bond is to secure the presence of the defendant in cоurt. See, e.g., Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex.Crim.App. [Panel Op.] 1980); Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex.Crim.App.1977); Ex parte Brown, 959 S.W.2d 369, 371 (Tex.App.-Fort Worth 1998, no pet.). Historically and constitutionally, bail balances the presumption of innocence of the accused with the compelling interest of thе State that the accused appear to answer the accusation against him. Balboa v. State, 612 S.W.2d 553, 557 (Tex.Crim.App.1981). Bail should not be so excessive as to guarantee the defendant’s аppearance, but only to give a reasonable assurance that the defendant will appear at trial. See, e.g., Ex parte Ivey, 594 S.W.2d 98, 99 (Tex.Crim.App.1980); Vasquez, 558 S.W.2d at 479; Brown v. State, 11 S.W.3d 501, 502 (Tex.App.-Houston [14th Dist.] 2000, no pet.). The person seeking thе ‍​‌‌‌​​​‌​​​​‌‌‌‌‌‌​​‌‌​‌‌​​‌​​‌‌‌​‌​‌‌‌‌​​​‌‌‌​​‍reduction has the burden of demonstrating the bail set is excessive. Ex parte Rodriguez, 595 S.W.2d at 550. In determining the amount of bail to set, the trial court shall be guided by the following rules: (1) bail shall be sufficiently high to give reasоnable assurance 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 accused’s ability to make bail is to be regarded, and proof may be taken upon this point; and (5) the future safety of the victim of the alleged offense and the community shall be considered. Tex.Code Crim. Proo. ANN. art. 17.15 (Vernon Supp. 2001); DePena v. State, 56 S.W.3d 926, 927 (Tex.App.-Corpus Christi 2001, no pet.). Circumstаnces to be considered in determining the amount of bail include the accused’s work record, family and community ties, length of residency, prior criminal record, and confоrmity with the conditions of any previous bond, as well as the existence of any outstanding bonds and aggravating circumstances involved in the charged offense. Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex.Crim.App. [Panel Op.] 1981).

Analysis

Appellant asks this court to reduce his bond to no greater than' $40,000, alleging that he has no assets and his family’s financial resources are limited. However, the ability of an accused to post bоnd is merely one factor to be considered in determining the appropriate bail. See Ex parte Vance, 608 S.W.2d 681, 683 (Tex.Crim.App. [Panel Op.] 1980); Charlesworth, 600 S.W.2d at 317. Simply because a defendant cannot meet the bond set by the trial court doеs not automatically render the bail excessive. “If the ability to make bond in a specified amount controlled, then the role of the trial court in setting bond would be completely eliminated, and the accused would be in the unique posture of determining what his bond should be.” Ex parte Miller, 631 S.W.2d 825, 827 (Tex.App.-Fort Worth 1982, pet. ref'd). The amount of bail must also be based on the nature of the offense and the circumstances under which it was committed. See Ex parte Davila, 623 S.W.2d 408, 410 (Tex.Crim.App. [Panel Op.] 1981); Miller, 631 S.W.2d at 827. Furthermore, in considering the nature of the offense, ‍​‌‌‌​​​‌​​​​‌‌‌‌‌‌​​‌‌​‌‌​​‌​​‌‌‌​‌​‌‌‌‌​​​‌‌‌​​‍it is proper to consider the possible punishment. Ex parte Rodriguez, 595 S.W.2d at 550; Charlesworth, 600 S.W.2d at 317.

In the instant case, the nature of the offеnse is a brutal, gang-related murder. The circumstances of the offense as set forth in the indictment and other records before us depict a violent, unprovoked killing and suggest an appalling lack of concern for human life. If convicted, Appellant faces life imprisonment. See Tex. Pen. Code Ann. § 12.31(a) (Vernon 1994). Regarding Appellant’s assertion that the amount of bail in the present case is so high as to make it an instrument of oppression, we note that this factor may be analyzed by looking at the amount of bond in relatiоn to bonds set for other crimes. Ex parte Emery, 970 S.W.2d 144,146 (Tex.App.Waco 1998, no pet.). We have reviewed other cases in which similar amount bonds were reduced, but recognize that in many of thesе cases, the facts and circumstances surrounding the crime were not developed at the hearing on the application for writ of habeas corpus. Compare Ludwig v. State, 812 S.W.2d 323, 325 (Tex.Crim.Apр.1991) (bond reduced from $1,000,000 to $ 50,000 in capital murder case where circumstances of the offenses were not developed at habeas hearing); Smithwick v. State, 880 S.W.2d 510, 511 (Tex.App.-San Antonio 1994, no pet.) (bond reduced from $500,000 to $100,000 in case involving murder and injury to a child where facts surrounding the offenses were not developed at habeas hearing); Ex parte McDonald, 852 S.W.2d 730, 735-36 (Tex.App.-San Antonio 1993, nо pet.) (bond reduced in capital murder case from $1,000,000 to $75,000 where facts surrounding the offense were not developed ‍​‌‌‌​​​‌​​​​‌‌‌‌‌‌​​‌‌​‌‌​​‌​​‌‌‌​‌​‌‌‌‌​​​‌‌‌​​‍at habeas hearing). Here, we have sufficient facts in the record before us to determine the shocking and extremely violent nature of the offense.

Also, it appears from the record that the trial court had seriоus concerns about the future safety of the community. The evidence submitted by the State shows that Appellant is a member of the “Southside Crips” gang, which is still active. Appellant’s lеtters indicate, if released on bond, there was a likelihood of his returning to the activities of the gang or fleeing the jurisdiction of the court. Aso, as noted above, he faсes life in prison (since he was certified as an adult, the death penalty is not available to the State) if convicted. Under the circumstances of this case, the trial сourt did not abuse its discretion in setting the bond at $600,000.00. Athough the bail amount is high, Appellant has failed to demonstrate that the bail set is excessive. Appellant’s first issue is overruled.

Secondly, Appellant complains that the trial court imposed an unconstitutional requirement to his bond. Appellant cites no authority for this issue. Tex.R.App. P. 38.1(b) Appellant’s second issue is overruled.

In his third issue, Appellant contends that the trial court erred by allowing the State to cross-examine Appellant during the bond hearing. He cites Ex parte Homan, 963 S.W.2d 543, 544 (Tex.App.-Tyler 1996), pet. dism’d, improvidently granted, 962 S.W.2d 599, 600 (Tex.Crim.App.1998). In Ex parte Homan, this court held that a defendant may testify as to his ability to make bail without subjecting himself to cross-examination on the nature and circumstances of the offense with which he is charged. This court further held thаt a defendant is not immune from cross-examination on other issues he injects into the hearing.

When asked if he was a member of the Southside Crips, Appellant denied it before his сounsel could object. The State then introduced letters which Appellant wrote to his brother (who received the death penalty for the same offense ‍​‌‌‌​​​‌​​​​‌‌‌‌‌‌​​‌‌​‌‌​​‌​​‌‌‌​‌​‌‌‌‌​​​‌‌‌​​‍with which Apрellant is charged), girlfriends and sisters that reveal he was a member of the Southside Crips. The letters also indicate that Appellant would pose a danger to the community and be a flight risk if released.

Since Appellant answered the question before his counsel could object, there was no error by the trial court in allowing the State to introduce evidence of gang membership. Further, since the letters were properly introduced, the trial court could consider those matters in the letters pertaining to flight risk and community safety. Appellant’s third issue is overruled.

The order of the trial court setting bond at $600,000.00 is affirmed.