Ex Parte Christine Marie Paolilla ( 2007 )

Affirmed and Memorandum Opinion filed November 29, 2007

Affirmed and Memorandum Opinion filed November 29, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00483-CR

____________

EX PARTE CHRISTINE MARIE PAOLILLA

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 1114191

M E M O R A N D U M   O P I N I O N

Appellant is charged with capital murder.  On April 20, 2007, appellant filed a writ of habeas corpus requesting bail.  On May 9, 2007, the trial court set bail at $500,000.  Appellant filed a motion to reconsider.  The trial court denied the motion, and appellant filed a notice of appeal.

Appellant claims the trial court abused its discretion in setting the amount of bail at $500,000 and requests it be reduced to no greater than $150,000.  The burden of proof is on the defendant to show bail is excessive.  Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App.1980).  In reviewing bond settings on appeal, we reverse a lower court's determination only if we find an abuse of discretion.  Tex. Code  Crim. Proc. Ann. art. 17.15.  The amount of bail required in any case is within the discretion of the court subject to 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.

Id.    In addition, we consider the accused=s work record, family and community ties, length of residency, prior criminal record (if any), and any alleged aggravating circumstances.  Ex parte Rubac, 611 S.W.2d 848, 849‑50 (Tex. Crim. App.1981).

Appellant did not testify at the hearing.  Her stepfather, Tom Dick, was the only witness.  He works as a project manager at Belknap Plumbing Systems. His wife, appellant=s mother, is the administrative assistant to the Dean of Human Sciences and Humanities for the University of Houston at Clear Lake.  No evidence was given as to their earnings.  They own a three-bedroom home in Friendswood, Texas.  Tom Dick stated that if appellant is released on bond, she would reside with them.  Tom Dick had visited appellant in jail between forty and fifty times in the past ten months and his wife had visited appellant two to three times that much. Appellant has a therapist, Dr. Pesikoff, and is currently taking Adderall, Trileptal, Trazodone, and Zoloft.  Tom Dick testified that if released on bond, appellant would be under his and his wife=s supervision as well as that of Dr. Pesikoff.  He believes appellant understands her medical condition and how to deal with it.  Tom Dick testified that if appellant violated any conditions of her release, he would bring it to the court=s attention.  He believes appellant will follow all conditions if released on bond.

Tom Dick testified appellant has no money and no income.  She had a trust fund of $400,000, but all the funds have been expended.  At the time of her arrest, she had approximately $140,000 in the trust fund, and it was turned over to her attorney for legal fees.  Tom Dick has $3,000 in the bank and owns his homestead.  No estimation of the equity in the homestead was given.  Tom Dick also owns a condominium he bought from appellant, who purchased it with money from the trust fund.  Appellant also paid cash for a car and furniture.  Tom Dick paid appellant $80,000 for the condominium, and the money went to her attorney for legal fees.  The condominium appraised at $85,000, and Tom Dick estimated the equity in the condominium to be approximately $5,000 to $6,000.  They are looking for someone to rent the condominium.  Tom Dick testified he did not have the collateral to cover a bond greater than approximately $50,000.

Tom Dick testified he is familiar with the fact the charges include the Akilling execution of four young kids.@  When appellant was arrested, he knew she was in San Antonio but did not know her exact location.  He lost contact with her specific location about one month after she went to San Antonio.  Tom Dick assisted the district attorney=s office in finding appellant=s location through a bank statement.  Appellant was with her husband at the time of her arrest and was found in a hotel room with heroin syringes, used and full; they were using heroin.  Tom Dick=s testimony revealed that, as a minor, appellant had once run away from home.  She was in drug recovery three times from August 2004 until August 2005, when she and her husband went to San Antonio. Appellant was arrested ten months later, in July 2006.  Because both Tom Dick and his wife work, appellant would not be supervised by an adult during work hours.  Appellant=s husband is somewhere in the Clear Lake area and they have not had contact since her arrest.  Tom Dick admitted he cannot preclude the possibility of appellant=s having contact with her husband.  No evidence was given regarding the husband=s assets.

At the hearing on the motion to reconsider, Tom Dick again was the only witness. He testified he could make a bond of Amaybe $75,000, tops.@  Prior to the hearing, Tom Dick filed an affidavit averring the highest bond he could make is $150,000. At the hearing, he testified his affidavit was based on paying ten percent of the bond, but he did not have enough collateral to cover that amount.  His last negotiation with the bondsman was for $50,000.  The trial court denied the motion Adue to the nature of the offense, the nature of the punishment, and the clear evidence that she=s a flight risk.@

Nature of the Offense

The record reflects the nature of the offense to be capital murder.  The State attached a copy of the indictment to its brief, but the indictment is not in the record.  The State asserts the trial court agreed to take judicial notice of the court=s file in the underlying case, but the record does not demonstrate the trial court took judicial notice of the record.^[1] Moreover, the record in the underlying case has not been made part of the record before this court and, as the State concedes in its brief, the appellate record does not reflect the circumstances under which the offense was committed.

The record also does not reflect whether the death penalty is being sought. In its brief, the State claims not to seek the death penalty, and appellant=s counsel made the same claim during the first hearing.  Accordingly, under the statute in effect at the time of the offense, appellant is subject to a sentence of life, with the possibility of parole.  See Act of May 27, 1991, 72^nd Leg., R.S., ch. 652, 1991 Tex. Gen. Laws 2395 (amended 1993, 1999, 2001, 2005) (current version at Tex. Code Crim. Proc. 37.071 (Vernon 2006).  Appellant would not be eligible for release on parole until the actual calendar time served, without consideration of good conduct time, equals forty calendar years.  See Tex. Gov=t Code 508.145.

In cases of capital murder, other courts of appeals have upheld bond amounts similar to this one.  See Cooley v. State, 232 S.W.3d 228, 234B39 (Tex. App. B Houston [1st Dist.] 2007, no pet.) (bail affirmed at $750,000 for three counts of solicitation of capital murder); Ex parte Henson, 131 S.W.3d 645, 650B55 (Tex. App. B Texarkana 2004, no pet.) (bail reduced from $2,250,000 to $1,500,000 for three counts of capital murder); Ex parte Beard, 92 S.W.3d 566, 571B74 (Tex. App. B Austin 2002, pet. ref=d) (bail reduced from $8,000,000 to $500,000 for capital murder); Ex parte Simpson, 77 S.W.3d 894, 895B98 (Tex. App. B Tyler 2002, no pet.) (bail reduced from $1,000,000 to $600,000 for capital murder); Ex parte Brown, 959 S.W.2d 369, 372B73 (Tex. App. B Fort Worth 1998, no pet.) (bail affirmed at $500,000 for capital murder.).

Bail Sufficient to Assure Appearance but not Oppress

The record does not reflect appellant has ever worked.  Prior to arrest, she did not live in the community, and the record does not reflect appellant had any contact with her family.  Any ability to make bond would come from appellant=s family.  If appellant fails to appear it is their assets at risk, not hers.  Appellant disposed of all her assets, and there is no evidence in the record that she would not risk the assets of her mother and stepfather.  Appellant=s lack of contact with her family in the year before her arrest suggests bail in any amount would provide little or no incentive for her to appear.

Ability to Make Bail

The record indicates that at the time of her arrest, appellant had approximately $140,000 and a condominium worth approximately $85,000, for a total of approximately $225,000.  The record does not reflect the status of the car or furniture appellant paid cash for and whether it could be used for collateral or sold.  The record also does not reflect the earnings of appellant=s stepfather and mother or the value of their home.  At the second hearing, Tom Dick testified he could post bond in the amount of $50,000.   However, the amount of bail appellant could have posted is not determinative of the amount that should be set, but is only a factor to be considered in determining if the amount set is reasonable.  See Ex parte Milburn, 8 S.W.3d 422, 427 (Tex. App. B Amarillo 1999, no pet.).

Safety of the Victim and Community

The four victims are all deceased.  The record does not indicate the existence of any witnesses to whom appellant would pose a threat.  The State presented no evidence that appellant might pose a threat to any particular person in the community.  However, the indictment for capital murder involving deaths of four members of the community shows a risk to the community.

Other Factors

The record does not reflect any prior criminal record.  Other relevant circumstances are appellant=s persistent drug use prior to arrest and current need for medication.  The record indicates that prior to her arrest, appellant abused drugs for at least two years.  Appellant is currently on prescription medication; she did not testify as to her intention to stay on this medication if released on bond. 

Conclusion

In light of all these factors, we do not find the trial court abused its discretion in setting the amount of bail at $500,000.  Accordingly, the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed November 29, 2007.

Panel consists of Chief Justice Hedges, Justices Fowler and Frost.

Do not publish - Tex. R. App. P. 47.2(b).

---

^[1]  Even if the indictment were considered, it only reflects the nature of the offense and the charges against appellant.