Ex Parte Michael Wayne Brown ( 2021 )

Affirmed and Memorandum Opinion filed October 28, 2021.
In The
Fourteenth Court of Appeals
NO. 14-21-00348-CR
EX PARTE MICHAEL WAYNE BROWN
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 1689324
MEMORANDUM OPINION
Michael Wayne Brown brings this appeal from the trial court’s order on his
application for writ of habeas corpus. We affirm.
BACKGROUND
Appellant was charged with capital murder and pretrial bond was set at
$600,000. Appellant filed an application for a writ of habeas corpus, claiming the
bond should be reduced. Following a hearing, the trial court denied appellant’s
application and this appeal ensued.
APPLICABLE LAW
Appellant contends the bail amount is excessive. The right 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 to 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. See Ex parte Dupuy, 498 S.W.3d 220, 230 (Tex. App.—Houston
[14th Dist.] 2016, no pet.).
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 require 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 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. art. 17.15.
Courts may also consider the following factors: (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. Ex parte Rubac, 611 S.W.2d at 849-50. The defendant
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bears the burden to prove the bail set is excessive. Ex parte Rubac, 611 S.W.2d at
849.
THE EVIDENCE
Appellant’s fiancé, Atyana Stoot, testified she has known appellant for five
years. They have two children, ages seven months and twelve months. Stoot is
unemployed and collects unemployment in the amount of $790 every two weeks
($1,580 per month). Stoot resides with her mother but pays no rent. Stoot pays the
expenses for the children and her phone bill. According to Stoot, appellant has not
generated any income since September 2020, when he was placed in custody, and
appellant has no savings. Stoot testified that neither she nor appellant own a car,
any jewelry, or a home. To her knowledge, appellant does not have the cash and
property to post bond “in the amount of $1 million.”1 According to Stoot, appellant
has worked at the George R. Brown Convention Center and helped a friend do
electrical work. Stoot believes appellant was paid in cash.
Stoot testified that Adam Ramirez of Fearless Bail Bonds said she would
need three percent down ($29,300) and requirefifteen to twenty co-signers. Stoot
was told there would probably be additional conditions to post collateral and
eventually she would need $70,000 to post bond. Stoot testified there were no
family or friends who had property to post as collateral. Stoot had only spoken to
eight potential co-signers but none of them were willing to sign. According to
Stoot, if bond were reduced to $140,000, she would be able to post it.
Stoot said that if appellant were ordered to wear an ankle monitor, she would
make the necessary arrangements for the required equipment. If appellant were
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The only order on appeal denied the reduction of bond in the amount of $600,000 for the
capital murder offense. However, the evidence at the hearing and appellant’s brief refers to an
aggregate bond for three offenses in the amount of $1,000,000.
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released on bond, he would live with Stoot at her mother’s house. Prior to his
arrest, appellant did not live with Stoot. The last time appellant lived with Stoot
was January of 2020. Stoot said the longest amount of time that she has lived with
appellant is two years.
Stoot was in a relationship with appellant when he was arrested in 2019 for
being in possession of a firearm. Stoot was aware that appellant was charged with
evading arrest in September 2019. Appellant was living with Stoot when he was
charged with burglary of a habitation. Stoot knew that appellant pleaded guilty to
that charge on November 29, 2017. Stoot was aware that in connection with that
charge appellant had several bond forfeitures and missed court dates. Stoot knew
that appellant violated the terms and conditions of his deferred adjudication,
including leaving the State without permission. Stoot was aware appellant was
arrested and charged with four additional felonies in New Mexico; she had no
knowledge of appellant having family in New Mexico.
State’s Exhibit 1, admitted into evidence at the hearing, is an indictment for
four offenses committed April 4, 2019, in Bernalillo County, New Mexico:
distribution/possession with intent to distribute a controlled substance; conspiracy
to commit possession of a controlled substance; and two counts of possession of a
firearm or destructive device by a felon.
Adam Ramirez, a bail bondsman, testified the very lowest amount of
collateral he would require from appellant to post a $1,000,000 bond was
$250,000. Ramirez testified that appellant’s family did not have the $250,000 in
collateral. Ramirez said “to get started” he would go no lower than 3½ percent, or
$35,000 in cash. Ramirez testified that if appellant’s bond were reduced to
$140,000 his company would post it. According to Ramirez, the bond would be
conditioned on appellant checking in twice a week and appearing in court.
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ANALYSIS
The evidence presented at the hearing goes to only one factor: the ability to
make bail. See Tex. Code Crim. Proc. art. 17.15; Ex parte Rubac, 611 S.W.2d at
849-50. The evidence of appellant’s work record is nearly nonexistent. There is no
evidence as to appellant working anywhere other than at George R. Brown
Convention Center, but Stoot did not testify to how long appellant worked there,
what type of work he did, or how much money he earned. Although Stoot testified
appellant has helped a friend do electrical work, she did not identify the friend,
testify how long appellant worked with him, or how much money appellant earned.
The only evidence of any ties that appellant has to the community are the
fact that he and Stoot have a relationship and are parents to two children. There
was no evidence that appellant is involved with or provides for his children. Any
ties appellant has to Stoot and his children did not prevent him from violating the
terms and conditions of his deferred adjudication and leaving the state. Appellant
was not living with Stoot for nine months prior to his arrest. There was no
testimony that appellant has any other family in Harris County.
The evidence showed appellant has a prior criminal record, failed to comply
with previous bond and conditions, failed to comply with conditions of deferred
adjudication, has two other outstanding bonds, and has four pending felony charges
in another state. From this evidence, the trial court could have determined any
court-ordered conditions or restrictions would not compel appellant’s appearance
at trial.
The capital murder that appellant is charged with, as well as the pending
charges in New Mexico, are alleged to have been committed while he was on
deferred adjudication. Appellant is charged with capital murder and faces the death
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penalty or life without parole. Given that appellant has failed to appear when
charged with lesser offenses, it was not unreasonable for the trial court to conclude
appellant is a flight risk.
In light of the Rubac factors, and considering the future safety of the
community, appellant has failed to demonstrate that the bail fixed by the trial court
is excessive. See Ex parte Robles, 612 S.W.3d 142, 150 (Tex. App.—Houston
[14th Dist.] 2020, no pet.) (recognizing the accused’s ability to make bail is but
one factor to be considered). Considering the evidence relevant to the factors set
out in article 17.15 and in Rubac, supra, we hold the trial court did not abuse its
discretion in setting bail in the amount of $600,000 and refusing to reduce it.
Appellant’s issue is overruled, and the order of the trial court is affirmed.
/s/ Tracy Christopher
Chief Justice
Panel consists of Chief Justice Christopher and Justices Hassan and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).
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