Ex Parte Richard Marvin McFarland

No. 04-03-00154-CR EX PARTE Richard Marvin MCFARLAND From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 002759 Honorable Sid L. Harle, Judge Presiding Opinion by: Paul W. Green, Justice Sitting: Catherine Stone, Justice Paul W. Green, Justice Phylis J. Speedlin, Justice Delivered and filed: July 16, 2003 REVERSED AND RENDERED Richard McFarland is charged with the murder of his wife. The trial court set pre-trial bail on the murder charge in the amount of $500,000. McFarland claims the bail is excessive and seeks a reduction to $250,000. We agree. We reverse the trial court's order and reduce McFarland's bail on the murder charge to $250,000. BACKGROUND In a high profile case, McFarland is charged with murdering his wife. The State says McFarland took the body to a remote location and set it on fire. McFarland allegedly transported the body in a vehicle he pretended to test-drive for possible purchase. In addition to the murder charge, McFarland is charged with unauthorized use of a vehicle, tampering with a witness, and tampering with physical evidence. He was not cooperative with police during the several months of investigation that lead to his arrest; however, he did not leave town. McFarland has not confessed to the crime. At the bail hearing, McFarland's father testified that his son has only about $700 in cash. McFarland's home is in receivership and he cannot obtain the equity in that residence. (1) Additionally, it appears the value of the home will not exceed the family's debt. (2) McFarland's father testified that only McFarland's parents can contribute to the fee for a bond, and the most they can raise is $30,000, enough to pay the fee for a $300,000 bond. In addition, they will be required to offer their home as collateral. McFarland has two young sons who are currently in the custody of the State. His father and a long-time friend testified that McFarland is devoted to his children. Before his wife's death, he was a stay-at-home parent, working out of the house and taking care of the boys. McFarland earned about $21,000 per year in the two years prior to the murder. If released on bail, McFarland would be able to have visitation with his sons and continue his previous work from home. STANDARD OF REVIEW We review the trial court's decision on bail for abuse of discretion. See Ex parte Dueitt, 529 S.W.2d 531, 532 (Tex. Crim. App. 1975); Ex parte Wood, 952 S.W.2d 41, 42 (Tex. App.-San Antonio 1997, no pet.). The defendant challenging the amount of bail has the burden to show the amount is excessive in light of the five factors listed in article 17.15 of the Texas Code of Criminal Procedure. See Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. 1981); Wood, 952 S.W.2d at 42; Tex. Code Crim. Pro. Ann. art. 17.15 (Vernon Supp. 2003). DISCUSSION First, bail must be sufficiently high to reasonably assure the completion of the undertaking, that is, the defendant's appearance at trial. Tex. Code Crim. Pro. Ann. art. 17.15(1). McFarland and his family moved to San Antonio approximately five years ago for Mrs. McFarland's employment. McFarland owns a home in San Antonio and has been active in church. More significantly, at the bail reduction hearing, McFarland's father and a long-time friend testified that McFarland is devoted to his children, who are in the State's custody in San Antonio. McFarland's flight would end any opportunity for him to see his boys or to regain custody. Second, bail should not be used as an instrument of oppression. Tex. Code Crim. Pro. Ann. art. 17.15(2). The amount of bail must necessarily maintain that delicate balance between the presumption of innocence and the need to ensure the presence of the defendant at trial and the protection of the community. See Ex parte Beard, 92 S.W.3d 566, 573 (Tex. App.-Austin 2002, pet. ref'd). It is difficult to make any overall characterization of the amount of bail approved in other cases because the facts of each case are so varied, both with respect to the risk factors and the defendants' financial ability. The largest pretrial bail allowed by this court, $750,000, was assessed in a capital murder case where the crime was particularly violent, the defendant had a history of violence, and little or no evidence was presented on the defendant's ability to make bail. See Ex parte Chavfull, 945 S.W.2d 183, 187 (Tex. App.-San Antonio 1997, no pet.). The Tyler Court of Appeals upheld bail of $600,000 in a capital murder case of "brutal gang-land murder," where the defendant wrote letters from jail threatening further violence if released and indicating he was likely to flee the jurisdiction of the court. See Ex parte Simpson, 77 S.W.3d 894, 897 (Tex. App.-Tyler 2002, no pet.). In Eggleston v. State, this court reduced the amount of pretrial bail from $1,000,000 to $300,000 in a murder case where defendant allegedly killed his nine-year-old son, hid the body, and reported the child kidnapped. Eggleston, 917 S.W.2d 100, 101 (Tex. App.-San Antonio 1996, no pet.). Eggleston had lived all over the world, had only lived in San Antonio for a year, and had contacts in many other states. Id. In contrast, there are a number of cases of pretrial bail in murder cases set at or below $100,000. See, e.g., Ludwig v. State, 812 S.W.2d 323, 324 (Tex. Crim. App. 1991) (bail in capital murder case reduced from $2,000,000 to $50,000); Ex parte Milburn, 8 S.W.3d 422, 427 (Tex. App.-Amarillo 1999, no pet.) (pretrial bail reduced in capital murder of a child from $2,000,000 to $100,000); Ex parte McDonald, 852 S.W.2d 730, 734-35 (Tex. App.-San Antonio 1993, no pet.) (bail reduced from $1,000,000 to $75,000 in case where defendant allegedly kidnapped and stabbed his wife). In this case, if McFarland receives bail of $250,000 on the murder charge, his total bail would be $300,000 when combined with the bail amounts assessed for the other charges. (3) Third, we consider the nature of the offense and the circumstances under which it was committed. Tex. Code Crim. Pro. Ann. art. 17.15(3). In this case, Susan McFarland was brutally murdered and her body transported to a remote location and burned to conceal the crime. The State claims McFarland impeded the investigation in a number of ways, including tampering with witnesses and physical evidence. If convicted of the murder, McFarland faces a possible life sentence. Fourth, the defendant's ability to make bail is considered. Tex. Code Crim. Pro. Ann. art. 17.15(4). This factor is relevant but not dispositive of the issue. Esquivel v. State, 922 S.W.2d 601, 604 (Tex. App.-San Antonio 1996, no pet.). The record shows McFarland earned only about $21,000 per year, and his wife was the primary wage earner. McFarland has only about $700 in cash available. McFarland and his wife own a house in San Antonio, but it is in receivership. Although McFarland could live there while his trial is pending, he is not able to use the equity to make bail. McFarland's father testified the family could probably gather $30,000, enough to pay the fee for a total bond of $300,000. Finally, we consider the future safety of the community. Tex. Code Crim. Pro. Ann. art. 17.15(5). There is no evidence that McFarland is a danger to his remaining family, including his children and parents. Although McFarland allegedly impeded the police investigation, he did so by theft and bribery, not by threats or violence. He has no prior arrests or history of violence. In conclusion, although there is some possibility McFarland could flee, no amount of bail will completely erase that risk. Although the crime is a serious and shocking one, McFarland has ties to the community and his children that mitigate against his risk of flight. Further, other than the fact of the crime itself, there is no evidence McFarland is a danger to the community if released. Based on the foregoing, we hold the trial court abused its discretion by setting bail in the amount of $500,000 on the murder charge. We reverse the trial court's order and order that McFarland's bail be set at $250,000 on the murder charge, subject to such reasonable terms and conditions as may be determined by the trial court. Paul W. Green, Justice Do Not Publish 1. Mrs. McFarland's community interest, her sole management community property, and her separate property are all subject to the receivership. 2. McFarland's attorney in the receivership action submitted an affidavit outlining McFarland's assets and confirming his inability to make bail. 3. The bail amounts on McFarland's charges for unauthorized use of a vehicle, tampering with a witness, and tampering with physical evidence total $50,000. Therefore, if McFarland's bail on the murder charge is reduced to the $250,000 he requests, his total bail will be $300,000.