Case Number: 03-17-00879-CR
Judge: Cindy Olson Bourland
Court: TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
Plaintiff's Attorney: The Honorable Stacey M. Soule
Mr. Rene B. Gonzalez
Defendant's Attorney: Ms. Kristen Jernigan
Description: Appellant Bryan Christopher Everage is charged in three cause numbers with evading
arrest with a vehicle, aggravated robbery with a deadly weapon, and aggravated assault on a public
servant. The trial court set bail at $7,500 on the evading-arrest charge in cause number
17-1384-K26; $500,000 on the aggravated-robbery charge in cause number 17-1385-K26; and
$500,000 on the aggravated-assault charge in cause number 17-1386-K26. Appellant filed a pretrial
application for a writ of habeas corpus asserting that the bail totaling $1,007,500 in the three causes
is excessive. Following an evidentiary hearing, the trial court denied relief. For the following
reasons, we will affirm the trial court’s order in cause number 17-1384-K26 and reverse and remand
the trial court’s orders in cause numbers 17-1385-K26 and 17-1386-K26.
In his sole issue, Everage argues that the bail set in these causes is excessive and
violates his rights under the Eighth and Fourteenth Amendments of the United States Constitution;
article I, sections 11, 13, and 19 of the Texas Constitution; and articles 1.09 and 17.15 of the Texas
Code of Criminal Procedure.
I. Applicable law
Both the United States and Texas Constitutions prohibit excessive bail. See
U.S. Const. amends. VIII, XIV; Tex. Const. art. I, §§ 11, 13. The primary purpose of bail is to secure
the presence of the defendant in court to answer the accusations against him. Ex parte Ivey,
594 S.W.2d 98, 99 (Tex. Crim. App. 1980). While bail should be sufficiently high to give
reasonable assurance that the defendant will appear, it should not be used as an instrument of
oppression. Id. In setting bail, the trial court must strike a balance between the defendant’s
presumption of innocence and the State’s interest in assuring the defendant’s appearance at trial.
Ex parte Beard, 92 S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref’d).
Article 17.15 of the Texas Code of Criminal Procedure provides that the setting of
bail is within the discretion of the trial court, but it also limits that discretion by requiring that the
court’s decision be governed by the following rules:
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. art. 17.15. The Texas Court of Criminal Appeals has held that the trial court
may also consider the defendant’s work record, family and community ties, residency, criminal
record, and conformity with previous bond conditions. See Ex parte Rubac, 611 S.W.2d 848, 849
(Tex. Crim. App. 1981). The defendant has the burden of proof to show that the bail set is excessive.
Id. at 849.
We review a trial court’s ruling in setting bail for an abuse of discretion. Beard,
92 S.W.3d at 573. We view the evidence in the light most favorable to the trial court’s ruling. Id.
We will not disturb the ruling if it is within the zone of reasonable disagreement. Id. We must
measure the ruling against the relevant criteria by which the ruling was made and not merely decide
whether the ruling was arbitrary or capricious. Id.
In the present case, the trial court entered a single order denying Everage’s request
for habeas relief in all three causes. Everage has included all three cause numbers in his appeal
and has briefed the causes together. However, his arguments focus exclusively on the
aggravated-robbery and aggravated-assault causes. Therefore, to the extent he intended to challenge
the order setting bail in the evading-arrest cause, he has failed to provide argument or authority in
support of that issue and so has waived that issue. See Tex. R. App. P. 38.1(i) (“The brief must
contain a clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record.”); see also Bohannan v. State, ___ S.W.3d ___, ___, No. PD-0347-15,
2017 WL 5622933, at *10 (Tex. Crim. App. Nov. 22, 2017) (“It is incumbent upon Appellant to cite
specific legal authority and to provide legal arguments based upon that authority.”). Even in the
absence of waiver, based on our review of the record and applicable authority, we conclude that the
trial court did not abuse its discretion in setting bail at $7,500 in the evading-arrest cause.
Accordingly, we overrule Everage’s sole issue in his appeal from the trial court’s order in cause
number 17-1384-K26. Our analysis herein thus examines whether the trial court abused
its discretion in setting bail at $500,000 in both the aggravated-robbery cause and in the
A. Evidence admitted at the habeas hearing
Several courts have observed that bail amounts such as those in the present case are
justified only under exceptional circumstances. See, e.g., Ludwig v. State, 812 S.W.2d 323, 324
(Tex. Crim. App. 1991) (reducing bail in capital-murder case from $1,000,000 to $50,000, noting
that the Court had “yet to condone a bail amount even approaching seven figures, even in a capital
case”). We therefore review carefully the evidence admitted at the habeas hearing against the 1
See also Ex parte Murray, No. 03-07-00590-CR, 2008 WL 744564, at *4 (Tex.1 App.—Austin Mar. 20, 2008, no pet.) (mem. op., not designated for publication) (observing that bail amounts since Ludwig have “tended to increase generally, but seven-figure bail amounts are still rare”); Ex parte Beard, 92 S.W.3d 566, 571 (Tex. App.—Austin 2002, pet. ref’d) (observing that Ludwig has been cited by commentators as suggesting that “bail in amounts of $250,000 or higher reflect at least questionable exercises of the considerable discretion left to magistrates and trial 4
factors enumerated in Texas Code of Criminal Procedure article 17.15 and Ex parte Rubac to
determine whether the trial court acted within its discretion in setting bond at $500,000 in each of
the aggravated-robbery and aggravated-assault causes. See Tex. Code Crim. Proc. art. 17.15; Rubac,
611 S.W.2d at 849.
1. Nature and circumstances of offense
Aggravated robbery with a deadly weapon and aggravated assault of a public servant
are both first-degree felonies. See Tex. Penal Code §§ 22.02(b)(2)(B), 29.03(b). Everage faces
punishment of a term of imprisonment for five to 99 years or life and a fine of up to $10,000. See
id. § 12.32. Furthermore, because he allegedly used or exhibited a deadly weapon during the
commission of the offenses, if convicted, he will not be parole eligible until he has served half of his
sentence or 30 years, whichever is less. See Tex. Gov’t Code § 508.145(d).
Regarding the circumstances of the offenses, the probable-cause affidavits show the
following: On July 12, 2017, Everage and another man, Elkanah Emmanuel Hendrix, entered a
jewelry store at approximately 11:00 a.m. Their faces were concealed, and “[b]oth males brandished
what appeared to be semi-automatic handguns.” They ordered everyone in the store to the floor and
demanded that the clerk open the safe. One of the robbers removed property from the safe and then
discharged his firearm into the safe. That robber instructed everyone to remain on the floor “because
judges in setting bail” and that “amounts in the area of $50,000 are generally appropriate for even extremely serious cases”) (internal quotation marks omitted); Ex parte Bogia, 56 S.W.3d 835, 840 (Tex.App.—Houston [1st Dist.] 2001, no pet.) (“At the $360,000 level, bail is oppressive unless justified by unusual circumstances. Such an amount totally displaces the presumption of innocence and replaces it with a guaranteed trial appearance assured by incarceration without trial.”). 5
there was a bomb,” then both robbers fled the store. A witness to the incident had informed police, 2
who arrived as Hendrix and Everage were fleeing on a motorcycle driven by Everage. As the police
pursued the men, Hendrix pointed a firearm in the direction of a pursuing officer’s patrol car. The
pursuit continued until the motorcycle eventually collided with a patrol car. Both men were
apprehended. Found at the scene of the crash was property stolen from the jewelry store and one
semi-automatic handgun, which was registered to Everage’s father.
2. Everage’s ability to make bail
The only witness who testified at the habeas hearing was Everage’s mother,
Antoinette Everage (“Toni”). She testified as follows: Everage is a licensed nurse and psychiatric
technician. He previously worked at a nearby hospital but is currently unemployed. He has no assets
and no real property. Toni and Everage’s father, Charles, are divorced and are both retired aerospace
engineers. Toni lives in California where she owns a home subject to a mortgage. Charles owns
20 acres of land in Thrall, Texas, on which he and Everage live. Charles also owns a rental house
Toni further testified that the family was unable to post 10 percent collateral on a
$1,000,000, which she characterized as “[w]ay too high.” She explained that bondsmen were
unwilling to use her home as collateral because it is located in California, but would be willing to
Other than the aggravated-robbery probable-cause affidavit, which indicated that one of2 the robbers had made a threat regarding a bomb, no other evidence was introduced showing the use or existence of a bomb, and the indictment did not allege use of a bomb. 6
collateralize Charles’s land in Thrall. She explained that “there’s a limit to what they would allow
and it’s in the 100 to 150,000 dollar range” based on the estimated value of the Thrall property.
The record also contains Everage’s sworn affidavit for a court-appointed attorney
dated July 21, 2017, in which he indicated that he and his wife have no income, no cash in checking,
$200 in savings, and no other assets. The trial court entered an order granting his request and
appointing him an attorney.3
3. Rubac factors
Toni testified that Everage had lived in Williamson County twice in the past two years
for a total of about 16 months. He is married, and he and his wife live in Thrall on the land owned
by Charles. He has two cousins, who have lived in the area with their families for 10 to 15 years.
Toni testified that Everage and his wife had many viable living options available to them if Everage
made bail, including residing with his cousin in Georgetown, where he lived when he first moved
to Texas; with his cousin who lives in Taylor, who is a pastor; or in Charles’s rental house in Hutto,
which is currently unoccupied. Everage previously worked at a local hospital and had prospective
employment with UPS through one of his cousins. Toni testified that she frequently visited Everage
and had planned to move to the area once Everage and his wife had children. She “plan[ned] to
accelerate that move” due to the present case and agreed to help Everage comply with bond
conditions. She further testified that Everage has no criminal history.
We note, however, that the attorney named in the appointment order was not the attorney3 who filed Everage’s habeas application or represented him at the hearing. The record contains an order granting a motion for substitution of counsel but does not indicate whether the attorney substituted was appointed or retained. 7
4. Future safety of the community
Ostensibly for the purpose of demonstrating that Everage constituted a threat to the
future safety of the community, the State cross-examined Toni about Everage’s affiliation with a
group known as the “Hebrews.” She described it as a group of “individuals that [Everage]
fellowshipped with in California before he moved to Texas” who held “Christian beliefs.” She
confirmed that the group now lives on Charles’s property in Thrall and that Hendrix, Everage’s
accomplice, was a member of the group. The State introduced a letter written by Everage while
incarcerated that was addressed to a childhood friend, Vontrey Allen, who was also a member of the
group living in Thrall. The letter included several drawings, some of which depicted men wearing
turbans carrying guns. At the top of the first page was handwritten “some drawings in boardness
lol.” The letter is several pages long and contains, in addition to drawings, handwritten text of what
appears to be prayer and religious scripture.
The transcript of the hearing indicates that, after the hearing concluded, the trial court
admitted, as Court’s Exhibit Number 1, a collection of recordings and summaries of jail calls and
visits involving Everage and Hendrix. The record contains approximately 15 hours of recordings
of nearly 60 calls and approximately three hours of recordings of six jailhouse visits. The recordings
were not played or discussed at the hearing.
5. Sufficient bail to assure appearance but not oppress
Courts may consider whether the trial court set bail in an amount “for the express
purpose of forcing appellant to remain incarcerated” pending trial or appeal. See Ex parte Harris,
733 S.W.2d 712, 714 (Tex. App.—Austin 1987, no writ) (striking down bail as excessive where trial
judge stated on the record, “I’d rather see him in jail than to see someone’s life taken”). Here, the
record contains no statements by the trial judge indicating that she expressly set bail in these causes
for the sole purpose of ensuring that Everage remains incarcerated pending trial. At the conclusion
of the November 7, 2017 hearing, the trial judge took the matter under advisement, stating that she
would follow applicable law. She further noted that her decision was “not about race. It is not about
religion. I’m not considering any of that. I’m looking at the facts that are before me, and I’m trying
to figure out what’s fair to the State and to you, Mr. Everage, all right? So that’s what I’m going to
do.” On December 18, 2017, she entered the order denying relief in all three causes.
The State argues that the nature and circumstances of the offenses with which
Everage is charged support the bail set in these causes. The record shows that Everage is charged
with two violent first-degree-felony offenses and a third-degree-felony offense of evading arrest with
a vehicle. There is evidence that he and an accomplice robbed a jewelry store at gunpoint in the
middle of the day, threatened multiple civilians with firearms and a bomb threat, discharged a
firearm into a safe, and led police officers on a vehicular chase. That evidence shows that Everage 4
deliberately endangered the lives of numerous individuals in the community and law enforcement
for his own financial gain. But the evidence also shows that the charges arise from a single criminal
episode and resulted in no physical injuries. The evidence further supports Everage’s guilt of the
The aggravated-robbery probable-cause affidavit indicated that “the shorter male” removed4 property from the safe, fired the gun into the safe, and announced that there was a bomb. The record contains no evidence as to whether Everage or Hendrix matches that description. 9
aggravated-assault charge only as a party, as police reported that it was Everage’s passenger who
pointed his gun at a pursuing officer, which was uncontroverted.
The evidence of Everage’s ability to pay is limited. Everage indicated in his sworn
affidavit in support of his request for appointed counsel that he has no significant assets. Toni also
testified that Everage’s family lacked the resources necessary to post bail totaling $1,000,000, but
she provided minimal detail regarding those resources and no supporting documentary evidence.
However, this Court has observed that “[f]ew individuals can afford bail of $1,000,000 or more, and
it is therefore difficult to justify bail in such an amount in light of the constitutional and statutory
admonitions that bail is not to be excessive or used as an instrument of oppression.” Ex parte
Murray, No. 03-07-00590-CR, 2008 WL 744564, at *4 (Tex. App.—Austin Mar. 20, 2008, no pet.)
(mem. op., not designated for publication). Furthermore, even assuming that Everage can afford to
post $1,000,000 in bail, just as a defendant’s inability to afford bail does not alone demonstrate that
bail is excessive, a defendant’s ability to afford bail in the amount set does not in itself justify bail
in that amount. See Beard, 92 S.W.3d at 573.
There is some evidence that Everage poses a flight risk. Specifically, Everage is
alleged to have led police on a vehicular chase after he and Hendrix fled the jewelry store, which
ended only when they collided with a patrol car. Furthermore, Everage has only lived in Texas for
about 16 months and is not currently employed. But the trial court also heard evidence that Everage
has long-standing family ties to the community, viable post-release living arrangements, multiple
health-care licenses, prospective employment, no criminal record, and no history of violating bond
conditions, none of which was controverted by other evidence.
The State points to evidence of Everage’s involvement with the “Hebrews.” In its
brief, it argues that the recordings of jail phone calls and visitations involving Hendrix and Everage
show that Everage’s association with that group may constitute a safety concern for the community.
The State highlights statements made by Hendrix, contending that “[t]he phone and visitation
recordings reflect that [Hendrix] was actively recruiting persons in the jail to ‘link up’ with their
organization after their release. [Hendrix] stated that as soon as he gets out of jail he is going to start
‘banging’ on everybody, that it will be time to ‘gang bang,’ and it will be game over.” The State
further contends that Everage and his wife and father “have a conversation wherein Everage states
that the clan needs to come together and fight. His father also states that there has been talk of
gathering up the troops like North Korea.” However, we have found no evidence that Everage made
specific or general threats of violence while incarcerated or prior to commission of the offenses or
that Everage planned or intended to commit future criminal acts if released on bond. Cf. Berry,
No. 09-14-00519-CR, 2015 WL 4760187, at *8 (Tex. App.—Beaumont Aug. 12, 2015, no pet.)
(mem. op., not designated for publication) (evidence that, while incarcerated, defendant made a
threat against the complaining witnesses during a telephone conversation with third party); Ex parte
Frazier, No. 09-11-00620-CR, 2012 WL 252559, at *3–4, (Tex. App.—Beaumont Jan. 25, 2012,
no pet.) (mem. op., not designated for publication) (evidence that defendant was a known member
of the “5/9 Hoover Crips” and was actively planning violence against an investigator and
investigator’s wife while incarcerated); Cooley v. State, 232 S.W.3d 228, 238 (Tex. App.—Houston
[1st Dist.] 2007, no pet.) (upholding$250,000 bail on each of three solicitation of capital murder
charges where evidence that defendant had paid six different people $24,000 to kill his long-time
business partner and had considerable assets); Ex parte Simpson, 77 S.W.3d 894, 895–96 (Tex.
App.—Tyler 2002, no pet.) (per curiam) (evidence that defendant sent letters from jail that were
“incredibly shocking” and demonstrated that defendant was dangerous and a flight risk).
C. Bail in comparable cases
To inform our analysis of whether the trial court acted within its discretion in setting
the two $500,000 bail amounts in the present case, we have reviewed numerous cases concerning
charges similar to those in the present case, focusing on cases involving high bail amounts.5
In Ex parte Ivey, 594 S.W.2d at 98, Ivey was charged with aggravated robbery, and
the trial court set bail at $250,000. There was evidence that Ivey and an accomplice robbed an
armored car at gunpoint, from which they stole $631,000. Id. One of the car’s occupants, Billy
Davis, testified that he saw Ivey “for a short time before the men taped his eyes.” Id. There was
evidence that Ivey would pose a danger to Davis if released. Id. There was also evidence that Ivey
had strong ties to the community and that he could only post a $25,000 bond. Id. at 99. The Texas
Court of Criminal Appeals held that the $250,000 bond was excessive and reduced it to $50,000.
Id. at 100.
As the State notes, this Court observed in Ex parte Beard, a capital-murder case, that5 “[c]ase law is of relatively little value in addressing the ultimate question of the appropriate amount of bail in a particular case because appellate decisions on bail matters are often brief and avoid extended discussions, and because the cases are so individualized that generalization from results reached in others is difficult.” 92 S.W.3d at 571 (internal quotations omitted). However, this Court then explained that, “[n]evertheless, a review of some recent capital murder bail cases is instructive” and discussed several comparable cases. Id. at 571–72. We also note that courts in nearly all of the cases we have reviewed relied heavily on case law in evaluating the reasonableness of bail. 12
In Ex parte Wright, No. 14-09-00805-CR, 2010 WL 1609235, at *1 (Tex.
App.—Houston [14 Dist.] Apr. 22, 2010, no pet.) (per curiam) (mem. op., not designated for
publication), Wright was charged with capital murder, two counts of aggravated robbery, and two
counts of burglary of a habitation. The trial court set bail at $750,000 in the capital-murder case and
$200,000 in each of the other cases, which were upheld on appeal. Id. There was evidence that
Wright and two other men robbed a victim in his home at gunpoint. Id. Wright fired his weapon
four times, hitting the victim once in the leg. Id. The assailants fled the home, then followed four
other people into an apartment. Id. Wright held a gun on one victim while an accomplice fired a
gun, injuring one victim and killing another. Id. A week later, he entered another victim’s apartment
and robbed him at gunpoint. Id. Wright confessed to committing 13 robberies in total. Id.
In Ex parte Douglas, No. 04-03-00153-CR, 2003 WL 21221732, at *1 (Tex.
App.—San Antonio May 28, 2003, no pet.) (mem. op., not designated for publication), Douglas was
indicted for aggravated robbery, and bail was set at $100,000. Douglas was accused of firing a
handgun at an employee while stealing cash from a pawn shop. Id. There was evidence that Douglas
had multiple prior felony convictions, including assault causing bodily injury to a family member
and felony unlawful use of a weapon. Id. The trial court reduced bail to $75,000 and imposed
ordered full-custody electronic monitoring, which would allow Douglas to leave his house to go to
work. Id. The bail amount was upheld on appeal. Id. at *2.
In Ex parte Simpson, 77 S.W.3d at 895, Simpson was charged with capital murder,
and bail was initially set at $1,000,000, which the appellate court struck down. On remand, the trial
court set bail at $600,000, which was upheld on appeal. Id. The offense was a “brutal, gang-related
murder.” Id. at 897. There was evidence that Simpson had admitted to a police officer that he was
a member of the “Southside Crips,” a gang known for a wide range of violent crimes against the
community. Id. at 895–96. The State introduced letters that Simpson had written while in jail to
various people, including his brother, who had received the death penalty for the same offense. Id.
at 895. Both the trial court and appellate court described the letters as “incredibly shocking.” Id.
“[Simpson] wrote only of violence, sex, drugs and partying, and bragged about his bad reputation.”
Id. The letters showed that, if released on bond, Simpson was likely to resume his gang activities
or flee the jurisdiction of the court. Id. at 897.
In Wright v. State, 976 S.W.2d 815, 820–21 (Tex. App.—Houston [1st Dist.] 1998,
no pet.), the court of appeals upheld a $500,000 bond on an aggravated-assault charge where there
was evidence that Wright (1) planned to flee the jurisdiction and avoid capture by submitting to an
operation to change gender identity and attempting to secure fake identity papers to leave the
country, (2) held a person at gunpoint, threatening to kill him if he did not obtain the fake identity
papers, (3) faced a murder charge and had admitted to shooting the victim, (4) faced a
wrongful-death suit seeking $13,000,000 in damages, (5) was likely to obtain considerably more
assets that she could use to accomplish her goal of fleeing the jurisdiction, and (6) had no significant
ties to the area.
In Nguyen v. State, 881 S.W.2d 141, 142 (Tex. App.—Houston [1st Dist.] 1994, no
pet.), Nguyen was charged with aggravated robbery with a deadly weapon, burglary of habitation,
and engaging in organized criminal activity. Bail was initially set at $50,000, $50,000, and
$250,000, respectively. Id. At the reduction hearing, the facts of the offenses were not developed,
but there was evidence that Nguyen was not a Texas resident, was returning to California when he
was arrested, and had booked a flight to Vietnam. Id. at 142–43. However, Nguyen’s brother,
David, who lived in Houston and worked as an interpreter, testified that Nguyen and his wife would
move in with his parents, who also lived in Houston. Id. at 144. David further testified regarding
his efforts to make bail and testified that his family could only afford bail totaling $30,000. Id. After
the hearing, the trial court reduced bail in the criminal-activity cause to $150,000. Id. at 142. The
court of appeals held that the bail was excessive and further reduced it to $20,000 in each cause. Id.
In Ex parte Brown, No. 01-03-00597-CR, 2003 WL 22146394, at *1 (Tex.
App.—Houston [1st Dist.] Sept. 18, 2003, pet. ref’d) (mem. op., not designated for publication),
Brown was charged in three causes with aggravated assault on a public servant arising from two
separate criminal episodes, and bail was set at $250,000 in each cause, which was upheld on appeal.
There was evidence that, in the first episode, Brown attempted to sell drugs to an undercover officer.
Id. When the raid team moved in to arrest him, he repeatedly rammed a patrol car that was blocking
his path and then attempted to run over a police officer. Id. He was arrested and posted bail, which
was revoked when he failed to appear for trial. Id. In the second episode, Brown attempted to flee
from an officer during a traffic stop, and a high-speed chase ensued, during which he fired shots at
pursuing police officers. Id. He was apprehended years later and again fought the arresting officers.
Id. Brown was arrested in a different case for interfering with a police officer and again his bond
was revoked when he failed to appear for court. Id. at *4.
In Ex parte Ruiz, 692 S.W.2d 192, 193 (Tex. App.—Austin1985, no writ), Ruiz was
charged with four counts of aggravated robbery, one count of aggravated assault with a deadly
weapon, and one count of aggravated sexual assault. Bail was set at $100,000 on each of the
aggravated-robbery and aggravated-assault charges and $50,000 on the aggravated-sexual-assault
charge. Id. The trial court heard evidence that appellant, while armed, robbed four people and
sexually assaulted one of them. Id. at 194. There was evidence that Ruiz was a habitual offender
and had “spent virtually his entire adult life in prison for various robberies. When released on parole,
he left the state without knowledge or permission of the parole authorities.” Id. However, because
five of the six charges stemmed from a single criminal episode, this Court held that bail was
excessive and reduced each of the aggravated-robbery and aggravated-sexual-assault bonds to
$70,000 and reduced the aggravated-assault bond to $35,000. Id.
In addition to the foregoing cases, we have found other cases involving more serious
charges and aggravating facts than the present case, yet in which bail was set in an amount
comparable to or less than the bail set in the present case. See, e.g., Ex parte Tata, 358 S.W.3d 392,
403 (Tex. App.—Houston [1st Dist.] 2011, pet. dism’d) (upholding bail totaling $1.1 million where
defendant was charged with nine offenses, including four counts of felony murder; evidence showed
that she deliberately left seven children alone in a house while the stove remained on with cooking
oil heating on top of it, resulting in a fire that killed four young children and seriously injured two
others; she had strong family ties to Nigeria and had traveled there immediately after the offense, and
her family had interfered in authority’s attempts to locate her there); Ex parte Henson, 131 S.W.3d 645,
646 (Tex. App.—Texarkana 2004, no pet.) (reducing bail from $750,000 to $500,000 on each of
three charges of capital murder where evidence showed that defendant participated in “brutal triple
homicide”); Ex parte Milburn, 8 S.W.3d 422, 426 (Tex. App.—Amarillo 1999, no pet.) (per curiam)
(reducing bail in capital murder of child from $500,000 to $100,000; evidence showed that
two-year-old victim suffered intentional hard blows to his abdomen, and that the abdominal bruises
were consistent with appellant’s knuckle prints); Eggleston v. State, 917 S.W.2d 100, 101 (Tex.
App.—San Antonio 1996, no pet.) (reducing bail from $1,000,000 to $300,000 in murder case in
which defendant was accused of beating his nine-year-old son to death, hiding his body, and then
reporting him kidnapped; had contacts all over the country; and had lived in Texas for only a month);
Ex parte McDonald, 852 S.W.2d 730, 735–36 (Tex. App.—San Antonio 1993, no pet.) (per curiam)
(reducing bail from $1,000,000 to $75,000 in capital-murder case, in which defendant was accused
of kidnapping ex-wife then stabbing her to death and attacking his son, who testified that he would
feel threatened if defendant was released).
We conclude that these cases support a conclusion that bail set at $500,000 on each
of the two first-degree-felony charges in the present case is excessive.
D. The cases on which the State relies are distinguishable
The State cites several cases in support of its argument that the bail set in this case
is not excessive. However, we conclude that those cases contained substantially more aggravating
facts than the present case.
Ex parte Berry, 2015 WL 4760187, at *2, upheld a $500,000 bail on each of two
aggravated-robbery charges. However, the trial court had initially set bail at $150,000 per charge
and increased it to $500,000 only after hearing evidence that, while in custody on the charged
offenses, Berry had made threats against the complaining witness to a third party. Id. at *8. There
was also evidence that Berry had seriously injured the victims, was not a Texas resident and had no
significant ties to Texas, and was out of state when he was arrested, and there was minimal evidence
of his employment history or financial means. Id. at *6–8.
Ex parte Murray, No. 02-13-00151-CR, 2013 WL 5425312, at *9 (Tex. App.—Fort
Worth Sept. 26, 2013, no pet.) (mem. op., not designated for publication) (per curiam), upheld bail
set at $750,000 on a charge of aggravated assault with a deadly weapon. Murray faced several
charges for conduct arising from multiple criminal episodes, which included evidence that he had
shot one person, fired a gun in the direction of four other people, and fired a gun into a car. Id. at
*7. The court also relied on several other facts, including that Murray had a “substantial criminal
record, which dates back to [Murray]’s adolescence and suggests a sustained and recurring
propensity for violent crimes and the illegal use of firearms . . . .” Id.
Ex parte Payten, No. 02-13-00447-CR, 2013 WL 5968449, at *4 (Tex. App.—Fort
Worth Nov. 7, 2013, no pet.) (mem. op., not designated for publication), upheld bail set at $750,000
in an aggravated-robbery case. There was evidence that Payten and two other men entered a home
and robbed the residents at gunpoint, one of whom knew Payten. Id. at *1. Payten struck one of the
victims in the head with a gun. Id. The assailants left and then fired at least eight gunshots at the
house from their car. Id. One of the victims was shot twice, once in the face. Id. There was also
evidence that Payten was a “known Blood Gang Member” and that he had nine prior convictions,
several of which were for violent offenses and violating protective orders. Id. at *1–2. He also had
a history of violating prior bond conditions. Id. at *2.
Ex parte Frazier, No. 09-11-00620-CR, 2012 WL 252559, at *4 (Tex.
App.—Beaumont Jan. 25, 2012, no pet.) (mem. op., not designated for publication), upheld a
$1.9 million bail set for aggravated robbery. There was evidence that Frazier and two other
assailants “were apparently very motivated as they waited in the victim’s garage for nearly eight
hours for her to get home, ambushed her in her garage, robbed her at gunpoint, made her strip down
to her underwear then held her at gunpoint for another 6 or 7 hours.” Id. at *3 (internal quotations
omitted). There was also evidence that Frazier was involved in a similar robbery a week earlier, was
a known gang member, was actively planning physical violence against an investigator and his wife
while incarcerated, and had made specific flight plans pending his release on bond. Id. at *2–4.
Because of the significant factual differences between the cases cited by the State and
the present case, we do not find that those cases support the bail set in this case.
Outcome: We acknowledge that setting reasonable bail presents trial courts with the difficult task of weighing the specific facts of a case against many, often contravening factors, and often in the face of scant evidence. We also recognize that those determinations can turn largely on witness
credibility, which trial courts are in the best position to evaluate. Accordingly, we reiterate that trial courts should be afforded considerable discretion in making those challenging determinations.
However, after reviewing the evidence in the present case in the light most favorable to the trial court’s ruling, considering the factors relevant to a bail determination, examining cases involving comparable facts, and affording Everage the presumption of innocence to which he is constitutionally entitled, we conclude the trial court abused its discretion in setting bonds totaling $1,000,000 in cause numbers 17-1385-K26 and 17-1386-K26. Were we to affirm the bail amounts in this case, our decision could serve as precedent supporting bail amounts well into the seven- or even eight-figure range in cases with demonstrably more aggravating factors, such as many of the
cases described herein. We therefore sustain Everage’s sole issue in those causes. Accordingly, we reverse the trial court’s order denying habeas relief in those causes and order that bail be set in the
amount of $250,000 in cause number 17-1385-K26 (aggravated robbery) and $150,000 in cause number 17-1386-K26 (aggravated assault) subject to reasonable terms and conditions as may be determined by the trial court. We affirm the trial court’s order denying relief from the $7,500 bail
in cause number 17-1384-K26 (evading arrest).