Travis Lee Sherman v. State

Opinion issued January 9, 2007 In The Court of Appeals For The First District of Texas NO. 01-06-00466-CR ____________ TRAVIS LEE SHERMAN V. THE STATE OF TEXAS On Appeal from the 262nd Judicial District Court Harris County, Texas Trial Court Cause No. 1066355 MEMORANDUM OPINION ON MOTION FOR REHEARING Appellant, Travis Lee Sherman, requests that we rehear his appeal. We deny appellant's motion for rehearing, but we withdraw our opinion and judgment that issued October 30, 2006. We substitute the following opinion for the October 30, 2006 opinion. Appellant, Travis Lee Sherman, appeals the trial court's judgment setting his pretrial bail at an aggregate of $280,000 for four alleged felony offenses. We affirm. Pursuant to a homicide investigation, authorities arrested appellant on January 7, 2006. The State charged appellant with the murder of Patricia Kay Evans on January 7, 2006, case number 1052876, and possession of a controlled substance on January 7, 2006, case number 1052874. The magistrate set appellant's bond at $30,000 for the murder charge and $2,000 for the possession of a controlled substance charge. A bonding company posted appellant's bond in these two cases, and the State released him. On January 26, 2006, appellant took his car to a locksmith to have the locks changed. In appellant's car, locksmith employees found what they believed to be traces of narcotics and called the police. Police rearrested appellant, leading to the State charging appellant with committing, on January 26, 2006, two additional offenses, possession of cocaine weighing less than one gram, case number 1055323, and possession of oxycodone weighing more than one gram and less than four grams, case number 1055324. The trial court set bail for these two offenses at "no bail" and revoked the bail on the murder and original cocaine charge. Appellant applied to the trial court for habeas corpus relief, asserting that the setting of bail at "no bond" for the four alleged offenses is excessive and is being used by the State as an instrument of oppression in violation of his right to reasonable bail. Appellant requested the trial court set his total bail at $100,000. On May 3, 2006, the trial court changed the bail to $250,000 for the murder charge and $10,000 each for the three possession of controlled substance charges. Issues This appeal followed. In two issues, appellant appeals the trial court's judgment, asserting that the trial court abused its discretion in not setting his total bail at $100,000, and in setting excessive bail in violation of U.S. Constitution amendment VIII; Texas Constitution, article I, sections 11 and 13; and Texas Code of Criminal Procedure articles 1.07 and 1.09 (Vernon 2005). Evidence at the Habeas Hearing 1. Appellant's Evidence In support of his assertion that a bail of "no bond" was unreasonable, appellant presented the testimony of his son, Keith Sherman; a neighbor, Michael Scott; a friend, Greg Ohmer; and a bail bondsman, Andy Glenn. a. Appellant's Son, Keith Sherman Keith Sherman testified that appellant, his father, started working for Spring Independent School District in 1970 as an English teacher, progressing in his career to a high school counselor, high school assistant principal, and assistant director of transportation when he retired in 2000. Appellant currently resides with his friend, Greg Ohmer in Magnolia. Before that, he lived in an apartment. If allowed out on bond, appellant has ties to the community that would keep him here, including two granddaughters and good friends in the educational community. Before appellant's arrest in January, appellant had never been charged with a felony or a misdemeanor, except, perhaps, a traffic ticket. After his arrest in January, appellant made bond and appeared in court as required by the bond. Keith does not think appellant poses a threat to anyone in society. Appellant divorced three and one-half years ago, but he retained ownership of the home he lived in before the divorce. Since appellant's re-arrest, Keith has been responsible for helping appellant manage his funds. About five years ago, appellant inherited a sizable amount of money. At one time, Keith's mother believed appellant had about a million dollars in assets. However, after Keith examined the records back to the time of the inheritance, its value was more in the area of $400,000, of which about $120,000 remains. Keith has discussed with Andy Glenn posting a bond should the trial court set one. If the court set the total bond at $100,000, appellant could make it. Because of the collateral situation, such a bond would be a huge strain on appellant's assets, leaving appellant little or no assets to support his defense. b. Appellant's Friends: Michael Scott and Greg Ohmer Michael Scott testified that in March 2006, he met appellant when appellant moved into the property owned by Greg Ohmer. He has met appellant on five or six occasions, and he "seemed like a nice enough fellow." Scott has never known appellant to use cocaine, and did not see him in possession of crack cocaine when he followed him to the locksmith shop or thereafter when they went to eat. Greg Ohmer testified that he knew appellant as a friend for three to four years, and that appellant lived with Ohmer for three months after his arrest for the murder case. Ohmer also spent time with appellant in appellant's apartment before appellant came to live with Ohmer. He never saw appellant possess or use drugs and does not think appellant has a drug problem. Ohmer saw appellant with Pat Evans, for whom appellant cared a lot, and around whom he never appeared threatening. According to Ohmer, Evans had a drug problem, and appellant tried to help her deal with it. Evans drove appellant's Honda automobile, and appellant drove his truck. Both Scott and Ohmer testified they did not think appellant would pose a threat to society if he were released on bond. c. Bail Bondsman Andy Glenn of Andy Glenn Bail Bondsman testified that his company posted the original $30,000 and $2,000 bonds for appellant. Pursuant to the bonds, there were conditions placed on appellant to appear in court. Appellant complied with those conditions, as well as Glenn's conditions that appellant report to Glenn's office Wednesdays and Saturdays to sign in. The information appellant gave Glenn verified his residential history. Glenn had no information indicating that appellant is a flight risk. Glenn talked to Keith Sherman about posting another bond, and, in his opinion, appellant has sufficient assets to make a $100,000 bond. Glenn acknowledged that his opinion about the amount of bond that appellant could make is based solely on appellant's son's statements and only those assets that have been disclosed to Glenn. Glenn did not talk to appellant's former spouse or appellant's co-heirs, his cousins, about appellant's assets. 2. State's Evidence a. State's Documents The State introduced each of the defendant's indictments and the return of the writ into evidence. The indictments showed that they were filed with the district clerk on March 3, 2006. The State also introduced a certified copy of the results of a drug test showing that appellant tested positive for opiates on January 24, 2006. Appellant did not object to the admission of the test results, but requested that the court take judicial notice that appellant had a prescription for the opiates. The court denied appellant's request and admitted the State's report. Finally, the State requested that the court take judicial notice that appellant was out on bond when the new offenses were allegedly committed, which the court did. b. Deputy Detective Clegg Harris County Deputy Detective Clegg testified that he found the cocaine mentioned in the indictment for case number 1052874 in appellant's apartment, along with a few items belonging to Evans. Evans's husband and appellant's wife (1) provided Clegg with sworn statements saying that appellant paid Evans in money and crack cocaine for sexual favors. Clegg further testified that about three weeks after the State released appellant on bond on the murder and drug charge, appellant was arrested in Tomball on two possession of controlled substance charges, one of which was for cocaine possession. Clegg had concerns about appellant's association with prostitutes. Clegg believes that if appellant were released on bond again, he would endanger the community by committing further offenses. Trial Court's Decision The trial court announced from the bench that it set appellant's bond at $250,000. The written judgment, signed on May 3, 2006, ordered bail for the murder charge to be $250,000 and bail for each of the drug possession charges to be $10,000, a total of $280,000. Standard of Review The standard for reviewing bail settings is whether the trial court abused its discretion. See Ex parte Rubac, 611 S.W.2d 848, 849, 850 (Tex. Crim. App. 1981) (holding that trial court abused its discretion in setting appeal bond at twice the amount of pretrial bond); Ex parte Ruiz, 129 S.W.3d 751, 753 (Tex. App.--Houston [1st Dist.] 2004, no pet.). In the exercise of its discretion, a trial court should consider the following factors in setting a defendant's 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 (Vernon 2005); see Ludwig v. State, 812 S.W.2d 323, 324 (Tex. Crim. App. 1991) (noting that court is "to be governed in the exercise of [its] discretion by the Constitution and by the [article 17.15 factors]"). The burden of proof is upon a defendant who claims bail is excessive. Rubac, 611 S.W.2d at 849; Ex parte Martinez-Velasco, 666 S.W.2d 613, 614 (Tex. App.--Houston [1st Dist.] 1984, no pet.). The primary purpose for setting bond is to secure the presence of the defendant in court at his trial. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977); Ex parte Bonilla, 742 S.W.2d 743, 744 (Tex. App.--Houston [1st Dist.] 1987, no pet.). The amount of bail should be set sufficiently high to give reasonable assurance that the accused will comply with the undertaking, but should not be set so high as to be an instrument of oppression. Ex parte Bufkin, 553 S.W.2d 116, 118 (Tex. Crim. App. 1977); Ex parte Willman, 695 S.W.2d 752, 753 (Tex. App.--Houston [1st Dist.] 1985, no pet.). Courts should also consider the defendant's work record, family ties, residency, criminal record, and conformity with previous bond conditions. See Rubac, 611 S.W.2d at 849. Discussion 1. Nature of the Offense a. Judicial Notice In discussing the nature of the offense, appellant maintains that the trial court abused its discretion by complying with the State's request to take judicial notice that appellant's new offenses (January 26th) occurred while he was out on bond for the previous offenses. Appellant contends that even though Detective Clegg stated that appellant was arrested about three weeks after the charges he had filed against appellant, the State did not proffer any evidence that connected the arrests to the January 26th allegations. Appellant asserts that because the indictments in each of the offenses were not filed until March 2nd and because the statute of limitations for drug offenses is three years, the alleged January 26th offenses may have occurred before the January 7th offenses. Appellant contends that the absence of "credible evidence" demonstrating that appellant was out on bond when the January 26th offenses were committed, demonstrates that the trial court abused its discretion. Appellant's judicial admissions in his own application for habeas corpus relief undermine this argument. Under a part of the application entitled "Circumstances of the Offenses," appellant acknowledges that he was released on bond after his January 7, 2006 arrest and then recounts: On January 26, 2006, [appellant] took [his] vehicle to a locksmith and requested that the locks be changed. Police were called when employees of the business found what they believed were traces of narcotics in the vehicle. . . . Petitioner tested negative for marihuana and cocaine immediately after his arrest on January 26, 2006. Based on appellant's application, it was reasonable for the trial court to infer, especially with no countervailing evidence, that when the police arrested appellant on January 26, 2006, it was for possessing the trace narcotics the locksmith employees found in appellant's car on January 26, 2006. Viewing the evidence in a light most favorable to the trial court's ruling, the trial court did not abuse its discretion in concluding that appellant's new charged offenses occurred while he was out on bond for previous offenses. b. Nature of the Offense In considering the nature of the offense, it is proper to consider the possible punishment. Vasquez, 558 S.W.2d at 479-80. The murder charge is a first degree felony offense, carrying a punishment range of five to 99 years or life imprisonment and a fine not to exceed $10,000. See Tex. Pen. Code Ann. § 12.32(a) (Vernon 2003), Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003). The possession of 1-4 grams of oxycodone is a third degree felony offense, carrying a punishment range of two to 10 years and a fine not to exceed $10,000. See Tex. Health & Safety Code Ann. § 481.102(3)(A) (Vernon Supp. 2006), Tex. Health & Safety Code Ann. § 481.115(c) (Vernon 2003); Tex. Pen. Code Ann. § 12.34 (a)-(b) (Vernon 2003). The two possession of cocaine, weighing less than 1 gram, charges are state jail felony offenses, carrying a punishment range of 180 days to two years and a fine not to exceed $10,000. See Tex. Health & Safety Code Ann. § 481.102(3)(D) (Vernon Supp. 2006);Tex. Health & Safety Code Ann. § 481.115(b) (Vernon 2003); Tex. Pen. Code Ann. § 12.35 (a)-(b) (Vernon 2003). Thus, if convicted of all charges, and given concurrent sentences, appellant could be imprisoned for a maximum of 99 years or life. Appellant would have no possibility for parole for at least 30 years. See Tex. Gov't Code Ann. § 508.145(d) (Vernon Supp. 2006). If convicted of murder, the least punishment appellant could receive is five years of community supervision, assuming the charges were tried to a jury and the jury recommended community supervision to the judge for five years. Tex. Code Crim. Proc. Ann. art. 42.12 § 4 (a), (b) (Vernon Supp. 2006). The nature of the alleged offenses is serious, carrying substantial penalties. Therefore the determination of whether to reduce the bond amount should be carefully evaluated based on the likelihood of flight upon release. Furthermore, the evidence that appellant committed the latest possession offenses while on bond for his previous offenses suggests that a lower bond amount may not pose a sufficient deterrent to prevent appellant from engaging in criminal acts. We conclude that the trial court may have reasonably decided that the nature of the offense did not favor a further bond reduction. 2. Sufficient Bail to Assure Appearance But Not Oppress Bail set in a particular amount becomes "oppressive" when it is "based on the 'assumption that [the accused cannot] afford bail in that amount and for the express purpose of forcing [the accused] to remain incarcerated pending [trial].'" Ex parte McCullough, 993 S.W.2d 836, 837 (Tex. App.--Waco 1999, no pet.) (quoting Ex parte Harris, 733 S.W.2d 712, 714 (Tex. App.--Austin 1987, no pet.)). Here, there was no evidence that the trial court set appellant's bail in an amount the accused cannot afford for the express purpose of forcing appellant to remain incarcerated pending bail. First, appellant did not prove that he could not afford bail of $280,000. Bail bondsman, Andy Glenn, testified that, in his opinion, the highest bail appellant could make was $100,000. Glenn acknowledged, however, that his opinion was based solely on the statements of appellant's son and those assets that had been disclosed to him. Appellant's son testified that under appellant's divorce, appellant retained the house. Appellant offered no evidence of the value of the house. Appellant's application for habeas corpus relief states that appellant owns 12.8 acres in Freer, Texas. Appellant has put on no evidence of the value of that property. Greg Ohmer's testimony revealed that appellant owns a Honda and a truck, yet no evidence was adduced as to their value. Glenn did not testify whether the house, the land in Freer, Texas, or the vehicles were among those assets disclosed to him. Finally, appellant, himself, did not tell Glenn about his assets. Next, to show that the bail set is oppressive, appellant states that bail of $250,000 for the murder case is substantially above that set in various violent first degree felony cases. First appellant cites Ludwig, 812 S.W.2d at 325 (bail reduced from $1,000,000 to $50,000 when accused charged with capital murder of two individuals). Although there are many similarities between Ludwig and the present case, several factors in Ludwig favor a lower bond in that case over the present case: (1) Ludwig had several close relatives, who were long-time Texas citizens and were willing to sign a bond to assure Ludwig's appearance at trial; (2) Ludwig was involved in a child custody proceeding in conjunction with a divorce, which would require Ludwig's presence in the jurisdiction, and (3) Ludwig's ability to make bond was limited because his assets were frozen by a temporary court order in conjunction with the divorce action. See id. at 324. Next, appellant cites Montalvo v. State, 786 S.W.2d 710 (Tex. Crim. App. 1989), a case in which the San Antonio Court of Appeals had reversed Montalvo's murder conviction and remanded the case to the trial court. Id. Without discussing any of the relevant criteria for setting bail, the Court of Criminal Appeals set bail at $25,000. Id. at 711. Without a basis for comparison of the relevant bail setting factors, this case is unpersuasive. In Ex parte Hellenguard, 622 S.W.2d 875 (Tex. Crim. App. 1981), a murder case, the Court of Criminal Appeals lowered Hellenguard's bail from $100,000 to $25,000. Id. at 876. While there were aggravating factors in Hellenguard not present in the case under consideration, such as circumstantial evidence of Hellenguard's guilt of the underlying offense, and a statement of Hellenguard's intention to flee, there are also distinguishing factors between Hellenguard and the present case: (1) Hellenguard turned himself in, whereas appellant was arrested and (2) Hellenguard was indigent, whereas appellant has significant assets of unestablished value. Id. at 875. In Ex parte Ivey, 594 S.W.2d 98 (Tex. Crim. App. 1980) the State charged appellant with the first degree felony offense of aggravated robbery. Id. at 99. The Court of Criminal Appeals lowered the bail from $250,000 to $50,000. Id. at 100. As in Hellenguard there are aggravating factors in Ivey not present in this case, such as direct evidence of appellant's culpability for the underlying offense, id. at 98, and that appellant's release would endanger the complaining witness, id., but there are also distinguishing factors in that (1) the charged offense in this case involves the loss of life rather than the loss of property, (2) appellant was charged with additional offenses while on bail; and (3) in this case, there is sketchy information about the extent of appellant's assets, but even that sketchy information shows substantial assets. Appellant cites Ex parte Walton, 583 S.W.2d 786 (Tex. Crim. App. 1979) in which the Court of Criminal Appeals lowered the bail in a murder case from $25,000 to $15,000. Id. at 787. Factors favoring a lower bail in Walton than in this case include evidence that: (1) Walton voluntarily surrendered to the police after the shooting, (2) Walton cooperated with the police to the extent of confessing to shooting the deceased, and (3) Walton was indigent. Id. Additionally, appellant's possession of substantial assets and his being charged with additional offenses allegedly committed while on bail, distinguish this case from Walton as well. In Ex parte McDonald, 852 S.W.2d 730 (Tex. App.--San Antonio 1993, no pet.), a capital murder case, the San Antonio Court of Appeals lowered McDonald's bail from one million dollars to $75,000. Id. at 736. There are distinguishing factors in McDonald that tend to support a lower bail in that case than in this case: (1) McDonald turned himself in to police before they knew an offense had been committed, (2) appellant testified regarding his assets, and (3) appellant testified that if he were able to make bail he would appear in court when required. Id. at 735. There are factors in this case, not present in McDonald, that tend to support a higher bail in this case than in McDonald, including evidence that appellant has $120,000 cash remaining from an inheritance, evidence that appellant owns real estate and vehicles of unestablished values, and factors as set out in the discussion of Ivey above. Finally, appellant cites Vasquez, a capital murder case in which the Court of Criminal Appeals lowered the bail from $100,000 to $20,000. Vasquez, 558 S.W.2d at 480. Vasquez contains factors that would tend to support a lower bail in that case than in this case, including (1) his testimony that: (a) he did not shoot the decedent and was not implicated with the apparent trigger man, id. at 479; (b) he had no cash anywhere; (c) he owned no real estate; and (d) he could not make the $100,000 bond set; id. at 478, as well as, (2) the trial court finding that Vasquez was a pauper. Id. at 480. We conclude that by failing to produce evidence regarding known assets, a house, land, and vehicles, appellant has not demonstrated that the trial court set bail in an amount higher than appellant could afford or than necessary to assure his appearance in court, and, thus, appellant has not shown that the trial court's bail setting is oppressive. 3. Ability to Make Bail The defendant's financial ability to make bail is another factor to be considered in determining whether the bond amount is excessive. Appellant's son and the bail bondsman testified that the largest bond appellant could make is $100,000. In fact, the bondsman testified that, based on his knowledge of appellant's financial situation, he would be unwilling to post bond in any amount greater than $100,000 on appellant's behalf. During cross-examination, however, the State established that the bondsman's familiarity with appellant's finances was limited to information he was provided by Keith Sherman. The bondsman did not talk with appellant or other members of his family, such as his former spouse or his co-heir cousins about appellant's assets. Additionally, the record contained evidence of a house, 12.8 acres of land, and two vehicles for which no value was established. When this is added to evidence that appellant's son was unaware of other facets of appellant's life, the record is inconclusive regarding appellant's ability to afford the bail. 4. Safety of the Victim and the Community In determining the appropriate amount of bond, the future safety of the victim of the alleged offense and the community is to be considered. Tex. Code Crim. Proc. Ann. Art. 17.15(5) (Vernon 2005). Appellant presented three witnesses who testified that if appellant were released on bond, he would not pose a threat to society. Furthermore, appellant presented evidence that these indictments represent the first time he has been accused of criminal offenses other than traffic tickets. Contrastingly, the State presented evidence that appellant was under indictment for four felony offenses, including murder. Additionally, appellant acknowledged that he was out on bond for murder and possession of illegal drugs when he was re-arrested for two, new drug-possession charges. Further, Detective Clegg testified that he had concerns that appellant would endanger the community by committing new, extraneous offenses if released on bond again. Although appellant had not been charged with a crime before his recent charges, his four charges suggest that the trial court did not abuse its discretion by concluding that appellant is a risk to the safety of the community. 5. Other Factors Information on the indictments shows that appellant is 68 years old. Appellant produced evidence of a progressively responsible educational career in Harris County from 1970 until his retirement from the school district in 2000. Appellant has family ties in The Woodlands, consisting of his son and two granddaughters. Appellant lived in an apartment in Houston before his arrest on January 7, 2006, and lived in Magnolia before his re-arrest on January 26, 2006. Appellant offered evidence that he had no prior criminal record and that he complied with the conditions of his previous bonds as well as the bonding company's rules that he sign in with them twice a week. Conclusion With evidence in the record that appellant had $120,000 cash on hand, that appellant possessed several other significant assets of unestablished value, and with the remaining evidence of appellant's assets called into question by impeachment of appellant's witnesses, the trial court could have reasonably concluded that appellant did not show his inability to post a bail higher than $100,000. When the trial court considered this in conjunction with the serious nature of the offenses charged and the range of punishment appellant faces for the charged offenses, the trial court could have reasonably concluded that appellant represents a flight risk, even when weighed against his work history, ties to the community, and clean criminal record, previous to the four charges currently pending against him. Additionally, the trial court could have considered that while out on the $32,000 bail, there was evidence that appellant committed two drug possession offenses. Considering the totality of the circumstances surrounding the charged offenses, we cannot say that the trial court abused its discretion in setting bail at a total of $280,000. We overrule appellant's issues and affirm the trial court's judgment. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Alcala and Bland. Do not publish. Tex. R. App. P. 47.2(b). 1. Detective Clegg apparently did not know or forgot that at this time appellant was divorced.