Suzanna L. Carlson and Travelers Indemnity Company of Rhode Island v. William P. Taylor, M.D.; Austin Back Clinic; Capital Radiology Association; J. Neil Rutledge, M.D.;Richard D. Tallman, M.D.; and A

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 3rd District Court of Appeals » 1994 » Suzanna L. Carlson and Travelers Indemnity Company of Rhode Island v. William P. Taylor, M.D.; Austin Back Clinic; Capital Radiology Association; J. Neil Rutledge, M.D.;Richard D. Tallman, M.D.; and A

State: Texas

Court: Texas Northern District Court

Docket No: 03-93-00515-CV

Case Date: 12/21/1994

Plaintiff: Tommy Lee Alcantar

Defendant: The State of Texas--Appeal from Criminal District Court No. 1 of Dallas County

Preview:Ex parte Brian Back--Appeal from 13th District Court of Navarro County
MAJORITY | MAJORITY Ex Parte Brian Back /**/ IN THE TENTH COURT OF APPEALS

No. 10-99-266-CR

EX PARTE BRIAN BACK

From the 13th District Court Navarro County, Texas Trial Court # 99-00-09156-CV MEMORANDUM OPINION This is an appeal from an order denying relief in an application for writ of habeas corpus, based on a contention of excessive bail. Brian Back was arrested for one case of sexual assault of a child and three cases of indecency with a child. See Tex. Pen. Code Ann. 22.011(a)(2), 21.11 (Vernon 1994 & Supp. 1999). The justice court magistrate set bail in the amount of $100,000 for the sexual assault and $50,000 for each indecency charge, totaling $250,000. Back filed a pretrial habeas application requesting a reduction in bail which, after a hearing, was denied. He appeals, asserting that the court erred in denying his application. We will hold the bail to be excessive, modify the court s order, and reduce Back s bail to a total of $25,000. STANDARD OF REVIEW We review the trial court s decision under an abuse of discretion standard. Ex parte McCullough, 993 S.W.2d 836, 837 (Tex. App. Waco 1999, no pet. h.); Ex parte Emery, 970 S.W.2d 144, 145 (Tex. App. Waco 1998, no pet.). The burden is on Back to show the bail amount to be excessive under Article 17.15 of the Code of Criminal Procedure. Id; see Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon Supp. 1999). Article 17.15 lists five factors to consider when determining if bail is excessive. They are: 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.
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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.

Id. Family and community ties, length of residence in the county, prior criminal record, conformity with conditions of previous bail bonds, and aggravating circumstances of the offense should also be considered. Emery, 970 S.W.2d at 145 (citing Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex. Crim. App. 1981)). APPLICATION OF FACTORS We note first that the record in this bail reduction hearing is not as well developed as we might like to see. Back testified that he has never been arrested prior to the charges for which he is requesting reduced bail. He has lived in Navarro County for most of his life, worked as a police officer, and has close ties with the community. His parents are residents of Navarro County and testified that Back could live with them pending trial on the charged offenses. Back and his parents testified that Back would appear at all court hearings. Back testified that he tried but was unable to make $250,000 in bail bonds. Back s father testified that if bail was reduced to a total of $25,000, they would be able to make the bonds. CONCLUSION Taking into consideration each factor listed in Article 17.15 and considering the amount of bail which the undisputed evidence shows Back can make, we hold that the court abused its discretion in setting bail to total $250,000. We sustain the point of error and reverse the order denying habeas corpus relief. We grant the relief sought and hereby reduce bail to $7,000 on the charge of sexual assault of a child and $6,000 on each of the three charges of indecency with a child, a total of $25,000. BILL VANCE Justice

Before Chief Justice Davis, Justice Vance, and Justice Gray (Justice Gray dissenting) Reversed and rendered Opinion delivered and filed November 24, 1999 Do not publish

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