Opinion
No. 06-20-00127-CR
03-30-2021
EX PARTE SHAUN LUCAS
On Appeal from the 196th District Court Hunt County, Texas
Trial Court No. 33479CR Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Shaun Lucas appeals from the trial court's order denying his application for a writ of habeas corpus that sought a reduction of his bail. After Lucas was indicted for murder, a first-degree felony, the 196th Judicial District Court of Hunt County set his bail at $1,000,000.00. See TEX. CODE CRIM. PROC. ANN. art. 17.15. On appeal, Lucas complains that the trial court abused its discretion when it refused to reduce his bail. Because we find that the trial court did not abuse its discretion, we affirm the trial court's order.
I. Standard of Review
A trial court's decision "at a habeas proceeding regarding the imposition or reduction of bail 'will not be disturbed by [a reviewing court] in the absence of an abuse of discretion.'" Ex parte Gill, 413 S.W.3d 425, 428 (Tex. Crim. App. 2013) (quoting Ex parte Spaulding, 612 S.W.2d 509, 511 (Tex. Crim. App. 1981)). We will find an abuse of discretion if the trial court applies "an erroneous legal standard, or when no reasonable view of the record could support the trial court's conclusion under the correct law and the facts viewed in the light most favorable to its legal conclusion." DuBose v. State, 915 S.W.2d 493, 498 (Tex. Crim. App. 1996), overruled on other grounds by Guzman v. State, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997). It is the petitioner's burden to show that the amount of bail is excessive. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977).
A. Bail
The Texas Code of Criminal Procedure gives the trial court discretion in setting bail. Article 17.15 provides that the trial court should consider these factors:
1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.TEX. CODE CRIM. PROC. ANN. art. 17.15. Additionally, "courts are to consider the accused's work record, family and community ties, length of residency, prior criminal record (if any), and any aggravating circumstances alleged to have been involved in the offense the accused is charged with committing." Ex parte Jackson, 257 S.W.3d 520, 522 (Tex. App.—Texarkana 2008, no pet.) (citing Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex. Crim. App. [Panel Op.] 1981)).
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.
"Ultimately, the appropriate amount of bail must be determined on a case-by-case basis." Ex parte Henson, 131 S.W.3d 645, 650 (Tex. App.—Texarkana 2004, no pet.).
II. Analysis
A. Nature and Circumstances of the Offense
"The accused's potential sentence and the nature of the crime are also primary factors to be considered." Ex parte Hunt, 138 S.W.3d 503, 506 (Tex. App.—Fort Worth 2004, pet. ref'd). If the nature of the offense is serious and a long sentence is probable, bail "should be set sufficiently high to secure the presence of the accused at trial because the accused's reaction to the prospect of a lengthy prison sentence might be not to appear." Ex parte Hulin, 31 S.W.3d 754, 761 (Tex. App.—Houston [1st Dist.] 2000, no pet.).
Lucas is accused of murder, one of the most serious criminal offenses in Texas, and faces a sentence of up to ninety-nine years' or life incarceration. See TEX. PENAL CODE ANN. § 12.32. The affidavit for the arrest warrant for Lucas is in the appellate record. Lucas was a police officer dispatched to a "possible fight" at a convenience store. He encountered a man named Jonathan Price, who "greeted" Lucas, "came very close" to Lucas, and asked if Lucas was "'doing good' multiple times while extending his hand in a handshake gesture." According to the affidavit, Price "apologized for broken glass on the ground and stated someone had tried to 'wrap [Price] up.'" Lucas told the investigating Texas Ranger that he believed Price was intoxicated, and when Lucas tried to detain him, Price told him, "I can't be detained." Lucas's attempts to detain Price failed. Price then began to walk away, at which time Lucas fired his Taser at Price. This "was not fully effective," and "Price appeared to reach out and grab the end of Officer Lucas' taser." Lucas then shot Price four times with his sidearm. Price was pronounced dead at a local hospital.
The investigation was conducted and the affidavit was prepared by a Texas Department of Public Safety Texas Ranger.
The affidavit concludes, "Based on video evidence, physical evidence and eyewitness testimony, it is clear that Officer Lucas did then and there intentionally and knowingly cause the death of Price by discharging a firearm causing the death of Price."
The affidavit states that the incident was recorded on Lucas's body camera, but that recording is not in the record submitted to this Court.
This Court and other courts have affirmed bail of a similar range where criminal homicide was alleged. See Ex parte Garner, No. 10-18-00129-CR, 2018 WL 3469834, at *5 (Tex. App.—Waco July 18, 2018, no pet.) (mem. op., not designated for publication) (affirming $1,000,000.00 bail for felony murder); Ex parte Brossett, 524 S.W.3d 273, 276-77 (Tex. App.—Waco 2016, pet. ref'd) (setting bail at $1,000,000.00 in a capital murder case); Ex parte Evans, No. 06-11-00048-CR, 2011 WL 2623589 (Tex. App.—Texarkana 2011, no pet.) (mem. op., not designated for publication) (the accused was indicted for murder and his bond set at $750,000.00); Ex parte Saldana, Nos. 13-01-00360-CR, 13-01-00361-CR, 2002 WL 91331 (Tex. App.—Corpus Christi Jan. 24, 2002, no pet.) (not designated for publication) (bond for capital murder and engaging in organized criminal activity was set at $1,000,000.00).
Although unpublished cases have no precedential value, we may take guidance from them "as an aid in developing reasoning that may be employed." Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref'd).
Because of the lack of testimony at the hearing, we cannot determine whether it is probable that Lucas will be convicted and receive a long sentence. That said, the serious nature of the alleged offense, the possible punishment range, and the fact that, although high, the bail is within the range of bail that has been affirmed in other homicide cases all favor the trial court's denial of reduction of the bail amount.
B. Ability to Make Bail
"Although the ability to make bail is a factor to be considered, ability 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). "To show that he is unable to make bail, a defendant generally must show that his funds and his family's funds have been exhausted." Milner v. State, 263 S.W.3d 146, 149 (Tex. App.—Houston [1st Dist.] 2006, no pet.). "Unless he has shown that his funds and those of his family have been exhausted, a defendant must usually show that he made an unsuccessful effort to furnish bail before bail can be determined to be excessive." Id. In the absence of evidence "that an effort has been made . . . to furnish a bail in the amount[] fixed . . ., the complaint of excessive bail is not presented." Ex parte Williams, 467 S.W.2d 433, 434 (Tex. Crim. App. 1971).
Cf. Ex parte Dueitt, 529 S.W.2d 531, 532-33 (Tex. Crim App. 1975) (where there was "no showing of an effort on petitioner's part to make the reduced bail," court "will not require him to do a 'useless thing'") (quoting Ex parte Skinner, 496 S.W.2d 633 (Tex. Crim. App. 1973)).
Lucas's sole witness was his "stepfather," Mike May. May testified that he had "become limited financially" following the death of Lucas's mother a couple of years before the events at issue, but no elaboration or specifics were provided. When asked if he had tried to raise funds to secure the $1,000,000.00 bond for Lucas, May testified, "I wouldn't know how to raise that much [money.]" May also confirmed that he had made no efforts to try to raise the money for the bond. May answered in the affirmative when asked by Lucas if that was because May's "understanding [wa]s you have to have at least $100,000 cash plus collateral" to secure a bond in that amount. May said he could sell his and Lucas's trucks and that Lucas had "some outstanding paychecks" that could be cashed to raise a "couple hundred dollars" toward the bond. May earned between $3,200.00 and $4,200.00 monthly as a truck driver, and he had no monthly mortgage or lease expense. May believed he could raise around $20,000.00 toward a bond for Lucas.
May never married Lucas's biological mother but lived with her and Lucas for around sixteen years.
Even so, just because an incarcerated person cannot raise the funds to make bond does not automatically establish that the bond is excessive or what the bond should be. In Ex parte Jackson, Jackson was charged with capital murder, and his bond was set at $750,000.00. "Jackson testified that he owned nothing, that he had three children, and that his wife was employed, but her expenses exceeded her income. He testified that he could not post bond, either personally or through efforts of family and friends." Jackson, 257 S.W.3d at 522. Jackson also testified that his wife was living with friends and relatives after they had lost their house and that "he had not been employed for several months before his arrest." Id. Jackson had been arrested in Georgia. The evidence of the crime suggested that Jackson had killed the victim during a robbery, and there were allegations that he had committed another armed robbery a week after the instant crime. Id. at 523. We found no abuse of discretion in the trial court's decision not to reduce Jackson's bond. Id.
This factor, particularly Lucas's failure to demonstrate specific, unsuccessful attempts to post bond, weighs in favor of the trial court's decision not to reduce the bond.
C. Safety of the Victim and the Community
Lucas's victim is deceased. There was no evidence of Lucas being a danger to the community. Lucas also turned himself in when the arrest warrant issued. As a result, this factor slightly favors a reduction of the bail amount.
D. Community and Family Ties, Work Record, and Other Factors
May testified that Lucas lived with him at the time of Lucas's arrest. Lucas had no criminal convictions and had worked steadily since he was a teenager. Lucas was twenty-two-years old at the time of the hearing. Lucas completed the police academy and worked as a jailer until his employment as a Wolfe City police officer. May described family friends in Poetry, Texas, with whom Lucas could live if he bonded out of jail. Alternatively, May said he would lease a place for Lucas to live. All of Lucas's family lived in the areas of Rockwall, Hunt, and Hopkins Counties. Lucas did not possess a passport, according to May.
Lucas had another witness, who would have testified to Lucas's good work ethic at the witness's pizza parlor, where Lucas had worked up to a management position. But because of technological problems, the witness could not appear, and the State stipulated to the substance of the testimony.
May also testified that Lucas had been leasing a house in Greenville, but "it was not" "feasible to maintain that residence anymore" "due to the facts and circumstances and the publicity" apparently following Lucas's arrest.
No further explanation for this situation was given.
There was also no evidence that Lucas had any prior convictions or that he had any previous bonds. As a result, these factors would slightly favor a reduction of the bail amount.
III. Discussion
While some factors and considerations favor a reduction in bond for Lucas, it was within the trial court's discretion to find that Lucas failed to carry his burden of establishing that the $1,000,000.00 bond was excessive. The only testimony Lucas presented about his ability to post the extant bond was from May, who acknowledged that he had contacted no bonding company and that he did not think he could raise what he assumed would be the bond fee, though he did not go in depth as to assets that he or Lucas could access. While perhaps the assets May discussed were all that was available, he did not establish that he or Lucas had exhausted their financial capabilities.
And significantly, Lucas has not shown that the trial court abused its discretion in denying Lucas's motion. When making its ruling, the trial court told the parties, "[I]n looking at the Rubac factors, obviously, I think [defense counsel] is right that the Rubac factors seem to, you know, militate in favor of a reduction of some kind. The problem is the [Code of Criminal Procedure Article] 17.15 factors don't. . . . [I]f you look at the 17.15 factors, Rubac, you know, is a list of additional factors that the Court can consider." The trial court knew and framed its decision on applicable statutes and caselaw. Thus, it cannot be said that the trial court "acted without reference to any guiding rules and principles." Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
The trial court also explicitly stated that it considered "the nature and circumstances of the offense" as well as "the safety of the community" and "the ability to make bond." Yet, based on "the testimony . . . about the ability to make bond," the trial court found that it "would not consider" a bond of $200,000.00. The trial court concluded, "[C]onsidering all of the factors, not just Rubac but Rubac and 17.15, the Court believes that a million dollars is consistent with what the Court believes . . . . is -- it's a sufficient amount to secure [Lucas's appearance at trial]."
IV. Conclusion
Based on this record, we find that Lucas has not carried his burden to establish that the bail amount was excessive. See Vasquez, 558 S.W.2d at 479. Further, while the bail amount may be on the outer edges of what would constitute an appropriate amount of bail, we cannot say that the trial court did not consider the relevant statutory and common law factors and set the bail amount accordingly. As a result, we cannot find in this record that the trial court abused its discretion when it set Lucas's bail at $1,000,000.00 in this murder case.
For the reasons stated, we affirm the trial court's judgment.
Scott E. Stevens
Justice Date Submitted: February 16, 2021
Date Decided: March 30, 2021 Do Not Publish