Ex Parte James Reid Bentley ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-15-00301-CR
EX PARTE JAMES REID BENTLEY
From the 413th District Court
Johnson County, Texas
Trial Court No. F49700
MEMORANDUM OPINION
James Reid Bentley was arrested after he was indicted on six counts of possession
of child pornography. TEX. PENAL CODE ANN. § 43.26(d) (West 2011). His bail was set at
$250,000. Soon after his arrest, Bentley filed a pre-trial petition for writ of habeas
corpus, seeking a reduction in the set amount of bail. After a hearing, the trial court
denied the petition and again set Bentley’s bail at $250,000. Because the trial court
abused its discretion in setting bail at $250,000, the trial court’s Order on Writ of Habeas
Corpus is reversed. Judgment is rendered that bail for Bentley is set at $50,000, and this
case is remanded to the trial court to set conditions of bail.
BAIL
In two issues, Bentley asserts that the trial court abused its discretion in setting
bail and that the bail set is excessive. We discuss these issues together.
Law
The Texas Constitution guarantees that "all prisoners shall be bailable by
sufficient sureties, unless for capital offenses, when the proof is evident." TEX. CONST.
art. I, § 11; see TEX. CODE CRIM. PROC. ANN. art. 1.07 (West 2005). Thus, for a non-capital
offense, a defendant is entitled to reasonable bail, that is, bail that is not excessive. See
U.S. CONST. amend. VIII (excessive bail shall not be required); TEX. CONST. art. I, § 13
(same); TEX. CODE CRIM. PROC. ANN. art. 1.09 (West 2005) (same).
Texas Code of Criminal Procedure article 17.15 is a legislative effort to
implement the constitutional right to bail. TEX. CODE CRIM. PROC. ANN. art. 17.15 (West
2015); Ex parte Beard, 92 S.W.3d 566, 568 (Tex. App.—Austin 2002, pet. ref’d). Article
17.15 commits the setting of bail to the discretion of the court or magistrate, but sets
forth five rules that, together with the constitution, govern the exercise of that
discretion. Id. Bail should be sufficiently high to give reasonable assurance that the
undertaking will be complied with, but not so high as to make it an instrument of
oppression. Id. art. 17.15(1), (2); see Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim.
App. 1977) (primary purpose of pretrial bail is to secure presence of defendant); Beard,
92 S.W.3d at 568. The nature of the offense and the circumstances under which it was
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committed are factors to be considered in setting bail, as is the future safety of the
community and the victim of the alleged offense. TEX. CODE CRIM. PROC. ANN. art.
17.15(3), (5) (West 2015). The defendant's ability to make bail also must be considered,
but is not of itself controlling. Id. art. 17.15(4); Ex parte Gentry, 615 S.W.2d 228, 231 (Tex.
Crim. App. 1981).
Courts may also consider the following set of factors when assessing whether the
amount of bail is reasonable: (1) 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 previous bond conditions; (6) the
existence of other outstanding bonds, if any; and (7) the aggravating circumstances
alleged to have been involved in the charged offense. See Ex parte Rubac, 611 S.W.2d
848, 849-50 (Tex. Crim. App. [Panel Op.] 1981).
Standard of Review
We review a trial court's decision that sets a bail amount for an abuse of
discretion. See Rubac, 611 S.W.2d at 850; Ex parte Gonzalez, 383 S.W.3d 160, 161 (Tex.
App.—San Antonio 2012, pet. ref'd). We examine the record to determine whether the
trial court considered the relevant statutory and common law factors and set a bail
amount that was not excessive. See Gonzalez, 383 S.W.3d at 161-62; Montalvo v. State, 315
S.W.3d 588, 592 (Tex. App.—Houston [1st Dist.] 2010, no pet.). The appellant has the
burden to show that the amount of bail is excessive. Rubac, 611 S.W.2d at 849; Gonzalez,
Ex parte Bentley Page 3
383 S.W.3d at 161. If our review shows the trial court exercised its discretion within the
constraints of the United States Constitution, the Texas Constitution, the statutory
requirements, and the common law factors, we will not overturn its decision. See
Gonzalez, 383 S.W.3d at 161-62; Ex parte Hunt, 138 S.W.3d 503, 505 (Tex. App.—Fort
Worth 2004, pet. ref'd) (citing Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim.
App. 1990)).
BAIL REDUCTION HEARING
Bentley was charged with six counts of possession of child pornography. His
bail was set at $250,000. Bentley’s wife, Kathy, took the stand first and testified that she
had been married to Bentley for almost 30 years. They had lived in the same house for
about 25 years and had two grown daughters. Bentley’s parents and other family
members live in the area. Kathy testified that she had worked at the same job for about
18 years but only earned about $1,000 a month. She stated that Bentley was earning the
primary income for the family, making about $3,500 a month. They had less than $5,000
in checking and savings. Kathy had called eight different bonding companies and
could not afford the $25,000 required to cover the amount necessary to post bond.
Kathy was aware of the investigation regarding the charges against Bentley and stated
that even though Bentley was also aware of the investigation over the course of the last
11 months, Bentley did not flee the jurisdiction of the court and did not take steps to
hide. She further testified that Bentley had been in counselling for the last 11 months.
Ex parte Bentley Page 4
Bentley then took the stand and echoed many of his wife’s statements regarding
where he lived and how long he had lived there, the close proximity of his family, and
that he could not afford to post a $250,000 bond. He had no property or securities with
which to post the bond. Bentley had been aware in the last 10 to 11 months that an
investigation was ongoing regarding the charges pending against him. He stated he
had no prior felony convictions or arrests. He would agree to 1) wear a leg monitor or
remain in home confinement, 2) submit to drug testing, and 3) report daily or weekly to
a supervision officer. Bentley had worked doing graphic layouts for ads for yellow
page companies. Before that, he worked for another yellow page service doing the
same type of work. His total years in this profession was 15 or 16 years. Bentley
acknowledged that if he was released on bond, he would return to his job and would
need internet access to perform his job. He also acknowledged that the allegations
against him related to his access to the internet.
Bentley argued to the trial court that he could not raise the funds for the bail as
set and that he met other requirements, such as ties to the community and promising to
comply with bond conditions, for the purpose of lowering his bail. He asked the trial
court to lower bail to an amount that he could pay so that he could be out of jail during
the pendency of the trial. The State argued to keep bail set at $250,000 because Bentley
was indicted on six counts and the sentences could be stacked; thus, for the State, it was
Ex parte Bentley Page 5
a case with high ramifications. The State also argued that, as an aggravating factor,
Bentley hid some of his pornography in different areas of a church.
Ultimately, the trial court expressed its concern about sending Bentley home to
make a living on a computer with internet access. The bail amount was kept at
$250,000, and as conditions of bail, the trial court ordered that Bentley could not use any
computers or have any internet access in any location in which he was to reside.
Another condition was that Bentley would be on house arrest with a GPS monitor. The
trial court said it would consider a bail reduction only if Bentley could “come up with a
plan to gain employment that doesn't use the requirement of the Internet or a computer
at his house.”
ANALYSIS
We agree that possession of child pornography is a serious offense. See
Savery v. State, 767 S.W.2d 242, 245 (Tex. App.—Beaumont 1989, no pet.) (“…child
pornography is even more damaging to the child victim than sexual abuse or
prostitution, inasmuch as the helpless child's actions are reduced and memorialized on
a recording or film and that type of pornography may haunt and damage the child for
many long years in the future after the original misdeed occurred. Indeed, the effect is
devastating and of long duration on the child who has been photographed performing
certain acts. That child must go through his adult life with the knowledge that the
recording or picture or photograph or film exists and may, at some time in later years,
Ex parte Bentley Page 6
be distributed or circulated.”). In this case, possession of child pornography is a third
degree felony and carries a maximum punishment of 10 years. TEX. PENAL CODE ANN.
§§ 3.03(b)(3), 43.26(d) (West 2011). If stacked, Bentley could receive a maximum
punishment of 60 years.
That being said, the purpose of setting a bail is to make sure the defendant
appears when called to court, not to be oppressive. For this defendant, who has never
been convicted or arrested of a felony before, has significant ties to the community in
that his family lives in the area and he has lived in the community for a significant
amount of time, has a stable work history, albeit using the internet, had not fled the
jurisdiction of the court, even knowing about the investigation for at least 10 months,
and had been participating in counseling for at least 11 months, bail of $250,000 is
excessive. Further, the aggravating factor argued by the State, that Bentley kept some of
the pornography at a church, does not, on this record, appear to warrant an increase in
the amount of bail considering the purpose of bail. There was no testimony as to the
type of medium in which the pornography was hidden, whether it was printed out, on
a thumb drive, on a church computer, or whether it was easily accessible to members of
the church or others attending the church by casual observation.
Accordingly, after our review of the record pursuant to the standards set out
above, we hold the trial court abused its discretion in setting bail at $250,000. Bentley’s
issues are sustained.
Ex parte Bentley Page 7
CONCLUSION
The trial court’s order denying the writ of habeas corpus is reversed. We render
judgment setting Bentley’s bail at $50,000 and remand the case to the trial court to set
conditions of bail that would adequately address any of the trial court’s concerns,
specifically Bentley’s access to the internet through Bentley’s choice of employment.1
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Justice Davis dissents without an opinion)
Reversed and rendered in part and remanded in part
Opinion delivered and filed December 31, 2015
Do not publish
[OT06]
1 There are many methods that might satisfy the trial court’s concerns. These methods would include
restriction of internet access through one computer with key-stroke recording software and an agreement
for routine and surprise inspections. The inspections could be in person or remotely conducted.
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