611 849 50 558 477 479 80 1977 122 866 869 2003 595 549 550 1980 22 02 36 06 2011 25 07 42 072 2011 12 42 2011 12 34 2011 1988 1999 v. << (2012)

Court of Appeals of Texas, Waco.

III. Bail Reduction In his only issue, Benzer argues that the trial court abused its discretion by not reducing what he contends are excessive and unconstitutionally oppressive bail amounts that were set in each of the causes pending in the trial court.  He contends that the bail is not only calculated to ensure his continued detention, but that he will be prevented from receiving effective assistance of counsel at trial due to the “inherent complexities of untangling numerous hours of video.”  Benzer prays that we lower the total amount of bail to an amount that will assure his presence at trial.  We review the trial court's denial of a bond-reduction request for an abuse of discretion.  See Ex parte Spaulding, 612 S.W.2d 509, 511 (Tex.Crim.App.1981);  Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex.Crim.App. [Panel Op.] 1981);  see also Tex.Code Crim. Proc. Ann. art. 17.15 (West 2005) (giving trial court discretion to set bail amount).  To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles;  in other words, we must decide whether the act was arbitrary or unreasonable.  Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1991) (op. on reh'g).  Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred.  Id. In general, all persons accused of noncapital crimes have the right to bail pending trial.  Tex.Code Crim. Proc. Ann. art. 1.07 (West 2005).  But excessive bail is prohibited by both the federal and state constitutions.  See U.S. Const. amend.  VIII;  Tex. Const. art.  I, § 13.  The primary purpose of an appearance bond is to secure the defendant's presence in court.  Ex parte Vance, 608 S.W.2d 681, 683 (Tex.Crim.App. [Panel Op.] 1980).  The code of criminal procedure requires trial courts to consider the following criteria in setting bail: 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. Ann. art. 17.15.  Although an accused's ability or inability to make bail is considered, ability to make bail alone, even indigency, does not control the amount of bail.  Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex.Crim.App. [Panel Op.] 1980);  Ex parte Milburn, 8 S.W.3d 422, 427 (Tex.App.—Amarillo 1999, no pet.)  (“The amount of bail appellant can post or have posted, however, is not determinative of the amount that should be set, any more than any one of the other factors to be considered is determinative of a reasonable amount to be set.”). Other factors that the court of criminal appeals has directed courts to consider include the accused's work record;  the accused's family ties;  the accused's length of residency;  the accused's prior criminal record, if any;  the existence of outstanding bonds, if any;  aggravating circumstances alleged to have been involved in the charged offense;  and the range of punishment for the charged offense.  Rubac, 611 S.W.2d at 849–50;  see Ex parte Vasquez, 558 S.W.2d 477, 479–80 (Tex.Crim.App.1977) (“And when considering the nature of the offense in setting bail, the punishment permitted by law may be considered.”);  Ex parte Scott, 122 S.W.3d 866, 869 (Tex.App.—Fort Worth 2003, no pet.)  (“When the nature of the offense is serious and involves aggravating factors, a lengthy prison sentence following trial is probable.”).  An accused seeking reduction of bail has the burden of demonstrating that the bail is excessive.  Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex.Crim.App. [Panel Op.] 1980).  Benzer has been indicted for aggravated assault with a deadly weapon, two stalking offenses, violating a protective order, and retaliation.  See Tex. Penal Code Ann. §§ 22.02(a)(2), 36.06(a)(1) (West 2011), 25.07, 42.072(a)(1)(A) (West Supp.2011).  The aggravated assault allegation contains two enhancement paragraphs, potentially exposing Benzer to a punishment range of life in prison or twenty-five to ninety-nine years' confinement if convicted.  See id. § 12.42(d) (West Supp.2011).  The earlier stalking allegation also contains two enhancement paragraphs, potentially exposing Benzer to a higher range of punishment if convicted.  Each of the remaining three offenses expose Benzer to up to ten years' confinement if convicted.  See id. § 12.34(a) (West 2011).  The enhancement paragraphs contained in both the aggravated assault and the stalking offenses allege that Benzer was convicted of aggravated assault against a peace officer in 1988 and retaliation in 1999, both felonies.  Benzer downplays the circumstances surrounding each of the offenses, contending that they are “not based on credible facts” and even suggesting that they were fabricated by his neighbors and by employees of the City of Carrollton.  But the aggravated assault offense does allege that Benzer used or exhibited a deadly weapon, a knife;  and each of the offenses appear to relate to some ongoing conflict or dispute involving Benzer and one or more individuals who live in the same neighborhood as him.5  The circumstances of the offenses are not frivolous but, rather, quite serious.  The record shows that after his arrest for aggravated assault, Benzer was arrested three more times for additional offenses alleged to have been committed against individuals who live in his neighborhood.  Thus, each time Benzer posted bail, he reoffended;  and not against some random person, but against a member of his neighborhood.  The trial court even indicated its concern for the safety of the 6 complainants when in regard to Benzer's reoffending, it commented that “it's obvious that it's a continuing course of action.”  One police officer opined that Benzer posed a danger to the community;  Diana Swadley indicated that it “scares [her] to death” if Benzer were to make bail;  and Alexandra Shanafelt, another neighbor of Benzer who lives in a house that shares an alley with Benzer's residence, described Benzer as “scary” and “crazy.” 6

NO. 02–11–00284–CR

Decided: February 02, 2012