Ex Parte: Damarcus Hearn ( 2010 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00149-CR
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EX PARTE DAMARCUS HEARN
On Appeal from the 402nd Judicial District Court
Wood County, Texas
Trial Court No. 21,068-2010
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
In Wood County, a county in which he has no family or significant ties, Damarcus Hearn
stands accused of a gang-related murder, a first degree felony punishable by a term of
imprisonment for life or for any term of not more than ninety-nine years or less than five years and
a fine not to exceed $10,000.00. See TEX. PENAL CODE ANN. § 12.32 (Vernon Supp. 2010),
§ 20.04 (Vernon 2003).
Hearn has been incarcerated, pending trial, since his arrest May 12, 2009. His bond was
set at $370,000.00. On August 2, 2010, Hearn properly applied for a writ of habeas corpus
seeking to have his pretrial bond reduced. After a hearing, the trial court entered an order denying
Hearn’s application and refusing to reduce the bond. Hearn filed this appeal.
Hearn argues that the trial court abused its discretion by denying the bond reduction
because the bail set was excessive in violation of Article 17.15 of the Texas Code of Criminal
Procedure and the United States and Texas Constitutions. Finding no abuse of discretion, we
affirm the trial court’s order.
―The primary purpose or object of an appearance bond is to secure the presence of a
defendant in court for the trial of the offense charged.‖ Ex parte Rodriguez, 595 S.W.2d 549, 550
(Tex. Crim. App. 1980). Bail should not be set so high as to be oppressive, guaranteeing the
defendant’s appearance, but should be high enough to provide reasonable assurance the defendant
will appear at trial. Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. 1980). Bail operates to
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balance the ―presumption of innocence of the accused and the compelling interest of the State that
the accused appear to answer the accusation against him.‖ Balboa v. State, 612 S.W.2d 553, 557
(Tex. Crim. App. 1981). Nevertheless, the burden of proof is on the defendant to show the bail is
excessive. Rodriguez, 595 S.W.2d at 550.
In reviewing bond settings on appeal, we are guided by Article 17.15 of the Texas Code of
Criminal Procedure,1 and we are to reverse a lower court’s determination only if we find an abuse
of discretion. TEX. CODE CRIM. PROC. ANN. art. 17.15 (Vernon 2005). That is, we will reverse
the trial court’s decision only if it was made without reference to any guiding principles or was, in
other words, arbitrary or unreasonable. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.
App. 1990) (op. on reh’g). Even if we would have reached a different result, we should not
intervene if the trial court’s ruling is within the zone of reasonable disagreement. Id. at 391.
Under Texas law, the amount of bail required in any case is within the discretion of the court,
judge, magistrate, or officer taking the bail, 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.
1
We make no opinion regarding the applicability of Article 17.151 of the Texas Code of Criminal Procedure.
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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. ANN. art. 17.15. In addition, the Texas Court of Criminal Appeals has
directed courts to consider the accused’s work record, family and community ties, length of
residency, prior criminal record (if any), and any aggravating circumstances alleged to have been
involved in the offense the accused is charged with committing.2 Ex parte Rubac, 611 S.W.2d
848, 849–50 (Tex. Crim. App. 1981).
With these principles in mind, we address the pertinent factors.
Nature of the Offense
The primary factors to be considered in determining what constitutes reasonable bail are
the punishment that can be imposed and the nature of the offense. Id. at 849. ―Where the nature
of the offense is serious and involves aggravating factors, the likelihood of a lengthy prison
sentence following trial is great.‖ In re Hulin, 31 S.W.3d 754, 760 (Tex. App.—Houston
[1st Dist.] 2000, no pet.). Bond in such cases should be set sufficiently high to secure the
defendant’s presence at trial because his ―reaction to the prospect of a lengthy prison sentence
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Although Rubac dealt specifically with whether a trial court abused its discretion in refusing to reduce an appeal
bond, appellate courts have generally applied these additional considerations in determining whether there was an
abuse of discretion in the original setting of an appearance bond. See Gonzalez v. State, 996 S.W.2d 350, 352–53
(Tex. App.—Houston [14th Dist.] 1999, no pet.) (citing Ex parte Emery, 970 S.W.2d 144, 145 (Tex. App.—Waco
1998, no pet.); Ex parte Brown, 959 S.W.2d 369, 371 (Tex. App.—Fort Worth 1998, no pet.); Smith v. State, 829
S.W.2d 885, 887 (Tex. App.—Houston [1st Dist.] 1992, pet. ref'd)). We agree these factors are appropriately
considered when reviewing either appeal or appearance bonds.
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might be not to appear.‖ Id. at 761; see also Ex parte Scott, 122 S.W.3d 866, 869–70 (Tex.
App.—Fort Worth 2003, no pet.).
The charged offense is quite grave—gang-related murder, a first degree felony—as is the
potential punishment—a term of imprisonment for life or for any term of not more than
ninety-nine years or less than five years and a fine not to exceed $10,000.00. TEX. PENAL CODE
ANN. §§ 12.32, 20.04. Given the serious nature of the offense of murder, the gang-related
element, the allegation of the use of a deadly weapon, and the potential for a lengthy sentence, the
trial court could have properly concluded that the amount of the bond was reasonable. Milner v.
State, 263 S.W.3d 146, 149–50 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (noting serious
nature of crimes of murder and attempted murder and substantial penalty if convicted, and
affirming bond of $500,000.00); see also Ex parte Hunt, 138 S.W.3d 503 (Tex. App.—Fort Worth
2004, pet. ref’d); Hulin, 31 S.W.3d at 760.
Ability to Make Bond
A criminal defendant’s ability to make bond is ―merely one factor to be considered in
determining the appropriate amount of bond.‖ Scott, 122 S.W.3d at 870 (citing TEX. CODE CRIM.
PROC. ANN. art. 17.15(4)). Here, it is undisputed that Hearn attempted to secure a bond, but was
financially unable to do so. This factor weighs in favor of a reduced bond; however, this factor is
not controlling over the other factors. See id.
Work History and Community Ties
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Hearn was reportedly employed as a restaurant’s assistant manager for the six-to-eight
months preceding his arrest, and worked at J & M Concrete before that time, though there is no
evidence how long he worked at J & M. Hearn has no family or significant ties in Wood County.
Hearn did testify that he had lived in northeast Texas all of his life. He was raised in Daingerfield,
Morris County, Texas, and he, his mother, and fiancée and child all live in Longview, Gregg
County, Texas. If released, Hearn testified that he would, once again, live in Longview, with his
fiancée and son. Though Hearn has some work history, he has no family or significant ties in
Wood County. Accordingly, the trial court could have concluded that the bond amount was
reasonable.
Danger to the Community
A year before his arrest in this case, Hearn had pled guilty to a misdemeanor assault charge.
He has no other criminal record. According to the indictment, Hearn is accused of killing the
victim with a firearm with the ―intent to establish, maintain, or participate as a member of a
criminal street gang.‖ However, inexplicably, the State failed to proffer any evidence regarding
the circumstances of the crime. Despite the State’s failure, the trial court could have concluded
that the bond amount was reasonable because the allegation of gang-related murder raises serious
concerns about the danger to the community posed by other gang-related activities.
Here, even though the State failed to develop the circumstances of the crime, we conclude
that the violent nature of the alleged crime, the gang-related element, the possibility of life in
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prison, the potential continuing danger to the community, and the lack of ties to Wood County, all
weigh in favor of the bond amount. We conclude that the court was within its discretion to set
bail at this level and had adequate information before it to allow it to make a reasoned
determination. Under these facts, the trial court did not abuse its discretion by declining to reduce
bond as requested.
We affirm the order of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: October 12, 2010
Date Decided: October 28, 2010
Do Not Publish
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