Mitchell Ray Rodgers v. State ( 2000 )

NO. 07-00-0026-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

FEBRUARY 10, 2000

______________________________



MITCHELL RAY RODGERS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE CRIMINAL DISTRICT COURT NO. 4 OF DALLAS COUNTY;

NO. F93-43098-RK; HONORABLE J. ZIMMERMAN, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

ON ABATEMENT AND REMAND

On September 24, 1999, appellant Mitchell Ray Rodgers pled guilty to burglary of a building. Appellant filed a timely notice of appeal on October 15, 1999. To date we have not received a clerk's and reporter's record, nor have we received an appellant's brief. This sequence of events requires us to call for a hearing as provided in Texas Rule of Appellate Procedure 38.8(b)(3). Accordingly, this appeal is abated and the cause is remanded to the Criminal District Court No. 4 of Dallas County.

Upon remand, the judge of the trial court shall immediately cause notice to be given of, and to conduct, a hearing to determine whether appellant has abandoned his appeal or still desires to pursue his appeal. In the event appellant still desires to prosecute his appeal, the court shall further determine whether appellant is now indigent, and if so, whether counsel should be appointed to represent him, and the name, address, and State Bar of Texas identification number of any counsel appointed. Finally, the court should consider whether any further steps need to be taken to facilitate the provision of an appellate record and the completion of the record for appellate review.

In support of its determination, the trial court shall prepare and file findings and orders and cause them to be included in a supplemental clerk's record and the transcription of the hearing should be submitted to the clerk of this court not later than March 9, 2000.

It is so ordered.

Per Curiam

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e, 81 S.W.3d 920, 924 (Tex.App.-El Paso 2002, pet. ref'd). The record indicates a hearing was held and after testimony was given, the court ruled on the merits of appellant's application. As a result, we have jurisdiction to hear an appeal of the trial court's order and appellant's first issue is sustained.

In her second issue, appellant contends that the trial court abused its discretion in failing to set a reasonable bail. She argues that bail is excessive and unreasonable in violation of the Eighth Amendment to the U.S. Constitution, Article 1, Section 13 of the Texas Constitution and Article 1.09 of the Texas Code of Criminal Procedure.

The trial court has discretion in determining the amount of bail. Ex parte Penagos, 810 S.W.2d 796, 798 (Tex. App.-Houston [1^st Dist.] 1991, no pet.). The exercise of that discretion will not be disturbed unless clearly abused. Ex parte Pipkin, 935 S.W.2d 213, 215 (Tex.App.-Amarillo 1996, pet. ref'd).

The trial court is to determine the amount of bail, in part, 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; and (5) The future safety of a victim of the alleged offense and the community shall be considered. Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon Supp. 2004-2005).

The trial court may consider other factors, identified by the Court of Criminal Appeals to include: the accused's work record; her family and community ties; her length of residency; prior record; conformity with the conditions of any previous bond; the existence of outstanding bonds, if any; and the alleged aggravating circumstances involved in the offense. Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex.Crim.App. [Panel Op.] 1981). ⁽²⁾ The burden of showing bail to be excessive is on appellant. Id. at 849.

Appellant presented evidence at the hearing that she had been living and working in Dallas for several months prior to her arrest. A former employer testified appellant had worked successfully in Lubbock with "at risk youth" through the local YMCA and Lubbock Housing Authority for a number of years. Appellant was unemployed due to a back injury at the time she moved to Dallas. She has relatives in Lubbock, which indicates that she has ties to the community.

The parties stipulated that in Lubbock County a party would have to pay a fee of ten to fifteen percent for a bond. The testimony indicated that appellant would be able to raise only $500 which would allow her to obtain bail in the amount of $5000. There is no information in the record regarding appellant's current assets other than references in the police reports to a vehicle owned by appellant at the time of the murder.

The State argues that the nature of the offense and appellant's previous convictions for felonies are factors the court considered in setting bail at $50,000. Appellant has been convicted three times for possession of a controlled substance and has additional convictions for theft and forgery. She has been convicted of felonies in Texas and New Mexico and has used various aliases in the past, indicating she could be a flight risk.

The future safety of the victim is not an issue since the victim was murdered. The safety of the community is relevant, given appellant's prior felony record and the circumstances surrounding the murder. The murder investigation conducted by the Lubbock Police Department identified several witnesses who were reluctant to discuss the homicide due to alleged involvement of the "Texas syndicate prison gang." Witnesses expressed a concern for their own safety and indicated that the murder was a "contract killing" ordered by members of the gang. Appellant's boyfriend, who has also been indicted for the murder, is a member of the gang.

Appellant was seen in the area where the murder occurred and with the murder weapons shortly afterwards. The State alleges that she has either hidden or disposed of knives used in the commission of the murder. The State argues that to release appellant prior to trial would provide her with an opportunity to dispose of the murder weapons, if they are still in her control, and would put the lives of witnesses in jeopardy.

Given all the evidence presented to the trial court, and the severity of the alleged offense, we find it was not unreasonable for the court to set bail at $50,000. It is sufficiently high to provide assurance appellant will appear for trial but does not appear, under the circumstances, to be an instrument of oppression. The trial court did not abuse its discretion in setting appellant's bail at $50,000. Appellant's second issue is overruled. The order of the trial court is affirmed. Per Curiam

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