Affirmed and Opinion filed December 31 , 2019

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00711

- CR

EX PARTE DAVID MARK TEMPLE

On Appeal from the 178th District Court

Harris County, Texas Trial Court Cause No. 1642706

OPINION
Applicant appe als t h e judgment in the underlying habeas corpus action

. Tex. R. App. P. 33.1. The trial court set bond at $1,000,000 after a jury found applicant guilty but was unable to reach an agreement on punis hment. The trial court
declared a mistrial as to the punishmen t phase of trial. Applicant is currently incarcerated awaiting the new punishment phase of trial. On appeal, applicant contends the amount of bond set by the trial court is exc essive.

B ACKGROUND On August 6, 2019, a jury convicted applicant of murdering h is pregnant2

wife in 1999, a first

- degree felony. 1 On August 9, 2019, the jury was unable to reach an agreement on applicant ’s punishment during their deliber ations after the punishment phase of trial. Over applicant ’s objection, the trial court declared a
mistrial as to the punishment phase only

. Applicant was taken into custody.
On August 14, 2019, applicant filed an application f or writ of habeas corpus requesting that bond be set in the amount of $30,000. On August 30, 2019, the trial
court held a hea r ing on the habeas corpus request

. Before either side presented evidence, the trial court stated that it believed applican t was entitled to bond and that it should be set at $1,000,000. The defense presented testimony of five witnesses. The State requested that the court take judicial notice of the State’s evidence presented during the trial and did not present additional evi dence at the hearing. After listening to testimony and arguments by counsel , the trial court ruled that bond would be set at $1,000,00 0

. During the hearing, applicant presented the testimony of (1) the bail
bondsman who secured applican t ’s bond pending trial, (2) applicant ’s brother, and (3) three of applicant ’s friends.

John Burns , the bail bondsman , testified that applicant ’s bond p e nding trial

was $30,000. Applicant attended all his pretrial hearin gs and complied with conditions of his bond. Burns testified his company was willing to post a
“reasonable bond” for applicant a second time.
Applicant ’s brother, Darin Temple, testifie d that applicant was caring for
their eld erly parents while he was out on bond pending trial. According to Darin, applicant has been a “massive help” because both of their parents have failing health requiring substantial care. While out on bail pending tr i al, applicant started a

1 For the history and background o f this case see Ex parte Temple , No. WR

- 78,545

- 02, 2016 WL 6903758 , at *1 (Tex. Crim. App. Nov. 23, 2016).3

non
- profit called Freedom Rising. Darin testified that the maximum he believed his family could raise for applicant ’s bond would be enough to secure a $50,000 bond. According to Darin, applicant has no assets other than a vehicle, w hich he estimated to be worth about $12,000.
Bonnie Taylor testified that through her prison outreach ministry, she
worked with applicant while he was incarcerated and after he was released and on bond pending trial. She described applicant as “a man of integrity.” Taylor explained that applicant drew a small stipend from Freedom Rising . She estimated the stipend to be between seven hundred and eight hundred dollars a month. Shay Tidwell testified that she has been friends with applicant for twenty

yea r s. According to Tidwell, applicant is not a threat to the community. Tidwell
would trust her children and her life with applicant . Tidwell opined that applicant is not a flight risk and would abide by any condition of bond imposed upon him.

A NALYSIS
The S tate does not argue that the jury’s finding of guilt deprives applicant of
his right to bail , thus we do not address that issue. We will address only whether
the trial cour t abused its discretion in setting the amount of bail

. I. Standard of Review

The r i ght to be free from excessive bail is protected by the United States and
Texas Constitutions. See U.S. Const. amend. VIII; Tex. Const. art. I, § 11. We review a challenge t o the excessiveness of bail for an abuse of discretion. See Ex parte Rubac , 611 S.W

. 2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981). Under this standard, we may not disturb the trial court ’ s decision if it falls within the zone of reasonable disagreement. S ee Ex parte Castillo

–

Lorente , 420 S.W.3d 884, 887 (Tex. App.

— Houston [14th Dist.] 2 0 14, no pet.).4

The amount of bail required in any case is within the discretion of the trial court subject to the following rules:

1. The bail shall be sufficiently high to give reasonable assurance of compliance with the undertaking

. 2. The power to requi r e bail is not to be so used as an instrument of oppression. 3. The nature of the offense and the circumstances under which it was committed are to be considered. 4. The abi lity 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.
In addition to these rules, case law provides that courts may consider the following set of factors: (l) the defendant ’ s work record; (2) the defendant ’ s family and community ties; (3) the defendant ’ s length of residency; (4) the defendant ’ s prior criminal record; (5) the defendant ’ s conformity with previ ous bond conditions; (6) the existence of other outstanding bonds, if any; (7) the a ggravating circumstances alleged to have been involved in the charged offense; and (8)
whether the defendant is a citizen of the United States. See Ex parte Rodriguez , 595 S.W.2d 549, 550 n. 2 (Tex. Crim. App. [Panel Op.] 1980); Ex parte Melartin , 464 S.W

. 3d 789, 792 (Tex. App.

— Houston [14th Dist.] 2015, no pet.)

. II. Nature and Circumstances of the Alleged Offense When assessing the reasonableness of bail, the Court of Crim inal Appeals has instructed that the “primary factor s ” are the punishment that can b e imposed
and the nature of the offense. See Rubac , 611 S.W.2d at 849. In this case, applicant
has been found guilty of first

- degree murder , which , at maximum, is punishable by
a life sentence. See Tex. Penal Code §§ 19.02, 12.32 (a) (murder in the first d e gree5

carries a maximum penalty of life imprisonment). When a lengthy prison sentence is probable, the pretrial bail must be set sufficiently high to secure the pre sence of the accused at trial because the accused’s reaction to the prospect of a lengthy

se n tence might be to flee and fail to appear. Ex parte Hulin , 31 S.W.3d 754, 760

- 61 (Tex. App.

—

Houston [1st Dist.] 2000, no pet.). This case is procedurally and subst antively unique, not only because applicant has already been found guilty, but also because t he trial court had the benefit of hearing five weeks of evidence on the circumstances surrounding the
offense when the trial court set applicant ’ s bail. This court, however, does not have
the benefit of that record because it was not brought fourth on app e al and is not a part of the underlying habeas application. Accordingly, we presume that record supports the trial court’s decision in setting applicant ’s bail. 2
Furthermore, under the unique circumstances at hand, the likelihood of applicant fleeing is i ncreased because he has already been found guilty of a crime carrying a life

- long maximum sentence

. Moreover, applican t is not afforded the presumption of innocence which would ordinarily temper a high bond amount

. Given the serious nature of the crime of first

- degree murder, the jury’s finding o f guilt, and the potential for a lifetime sentence, the trial court could hav e properly
concluded that the amount of bond was reasonable. See Ex parte Hunt , 138 S.W.3d 503, 506 (Tex. App.

— Fort Worth 2004, pet. ref’ d ).

III. Ability to Make Bond

When determining the appropriate amount of bond, the trial court may also
consider th e accused’s ability to make bond. Tex. Code Crim. Proc. art. 17.15(4);

2 In making its ruling, the trial c ourt stated, “[i ]n considering I was the judge presiding over the five

- week trial, to ensure safety to the commun i ty and your presence in Court, and considering all the factors for the Court to consider under the law, I set your bond at $1,000,000.”6

Hunt , 138 S.W.3d at 506. At the habeas hearing, applicant ’s brothe r testified that the family could raise enough money to secure a $50,000 bond. According to testimony at the b ond hearing, applicant ’s only asset is a $12,000 vehicle and money he may have from the monthly stipend of $800 which he draws from his

non
- profit

. The bail bondsman testified that he could post a reasonable bond for applicant but gave no indication of what amount that might be. The ability or inability of an accused to make bail does not alone control in determining the amount of bail. Ex parte B r anch , 553 S.W.2d 380, 382 (Tex. Crim. App. 1977). If the ability to make bond in a specifie d amount controlled, then the role of the trial court in setting bond would be completely eliminated, and the accused would be in position to determine what his bon d should be. Id .; Ex parte Miller , 631 S.W.2d 825, 827 (Tex. App.

— Fort Worth 1982, pet. ref’ d). Instead, the ability to make bond must be weighed against the other article 17.15 factors, including the nature and circumstances of the offense and the possibl e punishment. See Ex parte Davila , 623 S.W.2d 408, 410 (Tex. Crim. App. [Panel Op.] 1981); E

x parte Carednas , 557 S.W.3d 722, 734 (Tex. App.

— Corpus Christi

Edinburgh 2018, no pet.). Thus, applicant ’s seeming inability to post $1,000,000 in
bond must be wei g hed against the fact that applicant has already been found guilty
of murd ering his pregnant wife and is facing the possibility of life

- long
incarceration.

I V. Future Safety of the Victims and the Community In making its ruling, the trial court stated tha t the $1,000,000 bond was necessary “to ensure safety to the community.” T his statement was made in consideration of the underlying facts the trial court heard at the five

- week trial on guilt or innocence. While applicant presented evidence that he has dev e loped a

non
- profit ministry assisting former prisoners integrate into the community, there7

was also evidence that upon his release from prison applicant made threats to the community. Moreover, as stated by more than one of the defense witnesses, applican t ’s ministry requires him to travel across the state, rendering applicant ’s
whereabouts uncertain. It was not outside of the zone of reasonable disagreement for the trial court to conclude a $1,000,000 bond was necessary to protect the community under the c ircumstances.

V. Instrument of Oppre ssion The amount of bail must be high enough to give reasonable assurance that the accused will appear, but the power to require bail should not be used as an instrument of oppression. Ex parte Charlesworth , 600 S.W.2 d 316, 317 (Tex. Crim. App. [Panel Op. ] 1980). This occurs when the trial court sets bail at an amount “for the express purpose of forcing applicant to remain incarcerated.” Ex parte Harris , 733 S.W.2d 712 , 714 (Tex. App.

— Austin 1987, no writ).
Applicant did not present evi dence at the habeas hearing that the trial court set bail in his case for the express purpose of forcing him to remain incarcerated.
W hile a $1,000,000 bond may be high, it is within the range of bail amounts that have been upheld for f

i rst

- degree fe lony offenses including murder and capital
murder. 3 See e.g. , Ex parte Green , No. 02

- 13

- 00474

- CR, 2014 WL 584960, at *5 (Tex. App.

— Fort Worth Feb.13, 2014, no pet.) (mem. op., not designated for publication) (affirming $1,000,000 bond for fir s t

- degree murd er); Ex parte
Gonzalez , 383 S.W.3d 160, 167 (Tex. App.

— San Antonio 2012, pet. ref’d) (affirming $1,500,000 bond for capital murder) ; Ex parte Saldana , Nos. 13

- 01

- 360

- CR, 13

- 01

- 361

- CR, 2002 WL 91331, at *6 (Tex. App.

— Corpus Christi

3 The murder of appell ant’s pregnant wife would be charged as a capital murder under the P enal C ode as written today. S e e Lawrence v. State , 240 S.W.3d 912, 915 (Tex. Crim. App. 2007) (recognizing the 2003 legislative amendment authorizing capital prosecution for the murder o f a mother and her fetus).8

Edinburgh, J an. 24, 2002, no pet.) (mem. op., not designated for publication) (affirming $1,000,000 bond for capital murder); Ex parte Brown , No. 05

- 00

- 00655

- CR, 2000 WL 964673, at *2 (Tex. App.

— Dallas July 13, 2000, no pet.) (mem. op., not designated for publication ) (affirming $ 1,000,000 bond for capital murder).

VI. Other Factors Applicant presented evidence at the habeas hearing that he was compliant
with conditions of two $30,000 bonds during the course of this case. However, applicant was out on bail under mat e rially different circumstances during those time periods. Namely, while applicant was bonded out in the past, he enjoyed the presumption of innocence. Whereas under the current circumstances, applicant has been found guilty of first

- degree murder and is a w aiting punishment on that charge. Applicant further presented evidence of strong familial and community ties
and life

- long residency in Harris County. While we do not discount that evidence,
it was not an abuse of discretio n for the trial court to find th a t the aggravating circumstances of the offense elicited during the five

- week trial outweighed the
facts in applicant ’s favor elicited at the habeas hearing.

C ONCLUSION Having considered all the pertinent factors a nd in light of the jury’s finding applica n t guilty of murder , we hold that the trial court did not act arbitrarily or unreasonably in setting applicant ’s bond at $1,000,000. Because we are unable to9

hold the trial cou rt abu se d its discretion in setting applicant ’s bond, we affirm the
trial court’ s judgment setting applicant ’s bond at $1,000,000.

/s/ Meagan Hassan Justic e

Panel cons ists of Justices Zimmerer, Spain, and Hassan Publish. Tex. R. App. P. 47.2(b).