Ex Parte Welch
Lаrry Douglas Welch appeals from an order denying his applications for writs of habeas corpus to reduce the $150,000 bail presently set in each of his two pending solicitation of capital murder cases. He contends in a single point of error that the trial court abused its discretion by refusing to lower this amount. His counsel additionally urged at oral argument that the State failed to present evidence establishing probable cause for his continued detention. For the reasons discussed below, we affirm the decision of the trial court.
Applicant did not testify at the bail reduction hearing, but offered instead the testimony of several relatives, his employer, and a family friend. These witnesses discussed applicant’s life-long family and community ties to Collin County, where the charges are pending. Aрplicant has worked there as a superintendent for a custom home builder for approximately two years. Each of these witnesses voiced confidence that applicant will appear for trial.
Portions of the testimony elicited from these witnеsses revealed a history of domestic violence between applicant and his wife, Oleta Welch. The couple separated “this last time” in May or June, 1986; Ole-ta has filed for a divorce. The record discloses virtually nothing of what occurred from the filing of thе divorce petition until applicant’s alleged acts of solicitation. It is undisputed, however, that sometime during this period applicant was indicted for an aggravated assault against his wife, and that he was out of jail on bond when he allegedly committed the two solicitation offenses.
The first solicitation indictment alleges that on August 27, 1986, applicant attempted to induce Tommy Conn, also known as Willis Gordon Conn, to become a party to capital murder.
1
Conn, a self-employed
Conn asked how applicant’s marital problems could have become serious enough to warrant this action. Applicant responded that he did not know, but advised Conn never to let а woman “get the upper hand.” Applicant then said that he was about to get two years in the penitentiary the next day, August 28, 1986, when applicant was scheduled to appear in court on the aggravated assault charge. Applicant said he “needed her gone, to disappear.” He wanted Oleta’s body “singed” — meaning burned — and said that without a body, the police would have no case. Applicant entered the house and obtained a gun which he said Conn could have to do the job.
Conn subsequently relayed appliсant’s offer to the authorities. Officers Steve Diffenbaugh and Mike Nelson 2 informed Conn that they needed applicant to speak to Nelson over the telephone. Conn arranged for Nelson to call the number of a pay-phone outside a local grоcery store at an agreed time, and for applicant to be there to answer. Although an audio tape, possibly recording this telephone conversation, was offered to the trial court for in camera inspection, the judge declined to review it and the taрe is not in the record. Conn, who overheard part of the discussion, testified that Nelson identified himself as having come here “out of Florida.” This corresponds with Conn’s background, as he has a criminal history in that state. Applicant seemed reluctant to talk over the tеlephone, but did say that he needed “it” done by “the ninth.” This referred to applicant’s next court date set for September 9, 1986.
Nelson directed Conn to arrange a meeting with applicant in a hotel room selected by Nelson, but a mutually convenient time could nоt be arranged. However, an afternoon meeting in a ballpark was subsequently scheduled. This meeting is the basis of the second solicitation indictment, which alleges that applicant attempted to induce Nelson to become a party to capital murdеr on September 5, 1986. Again, the only evidence of this conversation presented at the bond-reduction hearing was Conn’s testimony about the portion that he was present to hear. Applicant said that he would deal only with Conn, but Nelson told him, “No. From now on, you’re deаling with me because I am here to do the job.” Conn was then ordered back inside the car, and heard none of the remaining discussion except when Nelson called him out to ask whether applicant could pay the money to Conn, instead of paying Nelson directly. A few minutes later, Nelson arrested applicant.
Applicant is presently being held for trial on the two solicitation charges with bail set at $160,000 in each case. Counsel advises that applicant also has a pending indictment for attempted capital murder with bond set at $100,000. 3 Applicant has posted bond on one of the solicitation charges, and is incarcerated in lieu of bond on the other solicitation count and the attempted capital murder charge.
We will first address applicant’s assertion, madе in reliance on
Ex parte
Applicant claims in his brief that the trial court abused its discretion by denying the request to reduce bail. The setting of bail is a matter resting within the sound discretion of the trial court, and there is no precise standard for reviewing its determination.
Ex parte Miller,
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 reаsonable 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 аbility 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 may be considered.
Tex.Crim.Proc.Code Ann. art. 17.15 (Vernon Supp.1986). Circumstances and factors to be considered in determining the amount of bond includes: family ties, residency, ability to make bond, aggravating factors involved in the offense, the defendant’s work history, prior criminal record, and previous and outstanding bonds.
Ex parte Willman,
The circumstances surrounding the charges pending against applicant are serious. The evidence shows that while already on bond awaiting trial for aggravated assault, a violent crime directed at his wife, applicant tried to hire Conn, аnd then Nelson, to murder his wife in order to prevent her from testifying. These repeated attempts against his wife’s life, allegedly committed more than a week apart, must be viewed as an aggravating element in the bond-setting equation.
The nature of the offense also involves consideration of the punishment permitted for these offenses under the law. Id. Solicitation of capital murder and attempted capital murder are felonies of the first degree, punishable under section 12.-32(a) of the Texas Penal Code by confinement for as much as ninety-nine years, or life, and a fine not exceeding $10,000. Applicant thus faces the possibility of three life sentences.
Further, article 17.15(5) permits the trial court to consider the future safety of the victim of an alleged offense when setting the amount of bаil. Aside from the evidence of applicant’s continuing efforts to have Oleta killed, Conn’s testimony that both he and Oleta fear for their lives touches on the issue of victim safety. They both left town with their respective families when applicant was previously out of jail on bond. When asked why he left, Conn replied, “Because I am telling you now, he is capable.” Conn also testified that, after he arrived home from his first meeting with applicant, Conn was told by his seven-year-old daughter that applicant had threatened to “hurt” Conn if he did not do as applicant said.
Another factor in reviewing the trial court’s order is applicant’s ability to make bail; but ability alone, even indigen-cy, does not control the amount of bail.
Ex
Applicant’s employer testified that applicant makes $2,250 a month, and takes home approximately $1,700. He also may receive an annual bonus, but this would be less than $2,000. Applicant introduced evidence of a temporary order entered in his pending divorce case enjoining the parties from selling, mortgaging or encumbering any of their separate or community property “except as specifically authorized by order of this Court.” Although applicant’s sister testified that she has his car and his clothes at her house, she does not know whether applicant has any other assets or a bank account. She was asked whether applicant has any “separate property” through his family “other than what is tied up in the divorce” and replied that he did not. The only other testimony regarding applicant’s financial situation came during a motion for rehearing, whеn applicant’s girlfriend testified that she has control of applicant’s property “not involved in the divorce” — consisting of a boat, a pick-up truck, insurance, and a small amount of cash. The bondsman told her that she needs to pay fifteen percent оf the face amount of the bond and have collateral for the balance.
In
Ex parte Charlesworth, supra,
conflicting evidence regarding the applicants’ financial condition was a factor in determining that they had failed to discharge their burden of establishing an abuse of discretion by the trial court in setting the amount of bail. The financial evidence presented in this case is, if not conflicting, at least incomplete because applicant has not attempted to utilize his resources “involved in the divorce” to furnish bail in the amount set.
See Ex parte Willman,
The evidence presented to the trial court established the existence of a number of aggravating factors, i.e., the nature of the offenses, the circumstances under which they were committed, outstanding bonds, and victim safety. Further, the evidence regarding applicant’s financial situation is incomplete with respect to the extent of his efforts to post bond. Considering all of the evidence and factors relevant to determining the amount of bond, we hold that applicant has failed to satisfy his burden of showing that the trial court abused its discretion in refusing to lower applicant’s bond.
The decision of the trial court is affirmed.
Notes
. Both solicitation indictments in the appellate record fail to name the person to be murdered, but the evidence discloses that Oleta Welch was the intended victim. Applicant’s counsel advisеs that these indictments were quashed after the
. Although Diffenbaugh and Nelson are never identified as law enforcement officers, Conn refers to them as "the police” and applicant’s attorney told the trial court that Nelson is employed with the Department of Public Safety in Garland.
. It is unclear whether this attempted capital murder charge is merely a re-indictment of the same conduct previously giving rise to the aggravated assault indictment, or is unrelated.