Durst, Robert v. State

Reversed and Remanded and Majority and Concurring Opinions filed June 1, 2004 Reversed and Remanded and Majority and Concurring Opinions filed June 1, 2004. In The Fourteenth Court of Appeals _______________ NO. 14-03-01421-CR NO. 14-03-01423-CR NO. 14-04-00194-CR _______________ EX PARTE ROBERT DURST, PETITIONER _________________________________________________________________ On Appeal from the 212th District Court Galveston County, Texas Trial Court Cause Nos. 01CR1900 & 01CR2007 & 04CR0323 _________________________________________________________________ M A J O R I T Y   O P I N I O N Robert Durst appeals three orders, each denying an application for writ of habeas corpus, on the grounds that his bail amounts are excessive and two of his indictments are contradictory and double the bail amount. We reverse and remand. Appellant was charged in three indictments with the third degree felonies of jumping bail, failing to appear,[1] and tampering with evidence.[2] After bond was set in each case at one billion dollars, appellant filed applications for writs of habeas corpus, challenging the bond amounts. The applications were denied, and appellant=s appeals of those decisions have been consolidated in this proceeding. Appellant=s first three issues challenge the bail amounts as violating the constitutional and statutory prohibitions against excessive bail.[3] The right to release before trial is conditioned upon the accused=s giving adequate assurance that he will stand trial and submit to sentence if convicted. Stack v. Boyle, 342 U.S. 1, 4 (1951). Bail set at an amount higher than reasonably calculated to fulfill this purpose is excessive under the Eighth Amendment. Id. Factors relevant to this determination include: the nature of the offense; the accused=s ability to make bail; the safety of a victim and the community;[4] and the appellant=s work record, family ties, length of residence, prior criminal record, conformity with previous bond conditions, and other outstanding bonds. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. 1981). Bail set at an amount greater than is usually affixed for charges of serious crimes must be supported by evidence in order to protect the constitutional rights of the accused. See Stack, 342 U.S. at 6. In this case, appellant is charged with three non-violent offenses, each of which is punishable by up to ten years imprisonment and a $10,000 fine. See Tex. Pen. Code Ann. '' 12.34, 37.09(c), 38.10(f) (Vernon 2003). In addition, it is undisputed that appellant=s past conduct demonstrates a clear flight risk and that his family possesses tremendous (but unspecified) wealth. However, the State has not cited, and we have not found, a decision in which bail has ever been set, let alone upheld, at even one percent of any of the three amounts set in this case, regardless of the underlying offense, wealth of the defendant, or any other circumstance.[5] Moreover, in addition to the monetary amounts of bail (and other conditions imposed), each of the bond orders requires appellant to: (1) surrender his passport; (2) not leave Galveston or Harris Counties without prior written court approval; (3) appear weekly in the trial court; and, most importantly, (4) be kept (at his own expense) under twenty-four hour supervision by a licensed peace officer of the State. Considering the unprecedented enormity of the bail amounts and that any flight risk has been abundantly addressed by other bond conditions, we can find no conceivable justification for bail amounts remotely approaching the order of magnitude of those imposed in this case. We therefore conclude that they are unconstitutionally excessive and sustain appellant=s first three points of error. Appellant=s fourth point of error contends that the indictments charging two acts of bail jumping are contradictory and, in effect, unlawfully double the amount of bail imposed. However, because this issue was not adequately brought before the trial court, it presents nothing for our review in this appeal, and is overruled. Accordingly, we reverse the orders of the trial court, denying appellant=s applications for writ of habeas corpus, and remand the case for further proceedings.[6] /s/ Richard H. Edelman Justice Judgment rendered and Majority and Concurring Opinions filed June 1, 2004. Panel consists of Justices Fowler, Edelman, and Seymore. (Fowler, J., concurring). Publish C Tex. R. App. P. 47.2(b). [1] See Tex. Pen. Code Ann. ' 38.10(a), (f) (Vernon 2003). [2] See id. ' 37.09(c), (d)(1). [3] See U.S. Const. amend. VIII ; Tex. Const. art. I, ' 13; Tex. Code Crim. Proc. Ann. art. 1.09 (Vernon 1977). [4] Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon Supp. 2004). [5] See Carlisle v. Landon, 73 S. Ct. 1179, 1182 (1953) (ARequirement of bail in an amount that staggers the imagination is obviously a denial of bail. It is the unreasoned denial of bail that the Constitution condemns.@) [6] We refrain from setting new bond amounts in order to afford the trial court and parties flexibility in determining whether to present further evidence, modify the non-monetary bond conditions, and the like.