Bail

Question 1

a. Texas Constitution Sec. 11

Answer 1

All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law.

Question 2

i. An appearance before a magistrate per CCP 15.17 is

Answer 2

not an arraignment. An arraignment relates to the time when a defendant has an opportunity to make a plea (26.03).

Question 3

ii. Bail is the first point of

Answer 3

contact for both the defense attorney and the prosecutor.

Question 4

1. In Re Tharp

Answer 4

Judge sets bail for a certain amount of money OR 10% in cash. DA files a writ of mandamus because the court essentially created a differential bond. The court holds bail can be in ONLY two forms – bail bond or personal recognizance bond. CCP 17.01

Question 5

a. CCP 17.01 – Bail = a security given by

Answer 5

the accused that he will appear and answer before the proper court the accusation brought against him. An officer having the defendant in custody can set the amount of bail (generally if a magistrate is unavailable

Question 6

b. CCP 23.05 – if the defendant has jumped bail, the judge can

Answer 6

require subsequent bail to be posted in cash and ONLY in cash.

Question 7

c. In cases of speeding and open container

Answer 7

a person MUST be allowed to be released on a PR bond for instances of speeding or open liquor container.

Question 8

d. Writ of mandamus

Answer 8

when there is no other legal avenue and the person seeking the writ has the right to relief.

Question 9

2. Milner v. State

Answer 9

Suspect shot and killed his wife, shot and severely injured his mother-in-law. Suspect had been arrested on 2 previous cases. Bail was set at $500K. In setting bail, the court can look at: sufficiently high to give reasonable assurance undertaking will be complied with, bail is not an oppressive instrument, nature of the offense, ability to make bail, and future safety of victim and community (CCP 17.15)

Question 10

a. Other factors considered

Answer 10

defendant’s work record

i. Family ties and ties to community
ii. Defendant’s length of residency
iii. Prior criminal record
iv. Defendant’s previous compliance with bail
v. Other outstanding bonds
vi. Aggravating factors in the charge offense

Question 11

b. Defendant has burden of proof to

Answer 11

show bail is excessive

Question 12

c. The defendant must also show that

Answer 12

efforts were made to meet the bail amount but that funds were exhausted. There is no reason given as to why the court would require the suspect to exhaust family assets as an independent adult.

Question 13

3. Ex Parte Vance

Answer 13

suspects enters Marine recruiting office and attempts to rob them of $1,200. During the attempted robbery he takes a hostage. The court set bail at $250,000 for each offense.

a. Defense is not entitled to an Interllocutory appeal on denial of a writ of habeas corpus. Defense can bring it up on appeal after trial.
b. On appeal the court reduced bail to $20,000.
c. The indictment can serve as evidence in a bond hearing
d. Defendant can testify at the hearing relating to the questions relating to bail. Prosecution cannot ask questions relating to offense itself.

Question 14

4. Kernahan v. State

Answer 14

Suspect arrested on felony theft of over $200. Suspect filed a motion to be released on personal bond per CCP 17.151 which says a defendant who is detained in jail pending trial of an accusation against him must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial of the criminal action for which he is being detained within: 90 days (30 for class A, 15 for class B, 5 for class C) from the commencement of his detention if he is accused of a felony. The court lowered the suspect’s bail due to the state’s violation of 17.151. Appeal court over turned the trial court because the suspect should have been released on PR bond because he could not afford the $2500. He could no more make the $2500 bond as he could the $5000

Question 15

a. The statute starts to count on

Answer 15

the date of arrest

Question 16

b. Motion to be released on personal bond is not self-executing. It only goes into effect if

Answer 16

the defense attorney files.

c. When dealing with article 17.151 violation, 17.15 considerations to be considered have no application. The judge MUST be released on PR or reduced bond.
d. A judge can put conditions on the release.
e. Article 32.01 – another method a suspect can get out of jail without paying bail. Relates to 180 days or the end of the term of court, which ever date is later (no indictment or no information). This is a double edged sword because it can get a suspect out or cost him extra money if he is indicted and arrested again after his release on the charge. Compare to 17.033

Question 17

5. Espinoza v. State

Answer 17

committed murder in the course of robbing a gas station. Suspect says trial court errered in denying him bail.

a. A person has a right to bail except in cases of capital murder where there is proof evident.
b. Proof evident = substantial showing offense of capital murder had been committed, the accused is the guilty party, the jury will both convict the accused and return findings of a death sentence.
c. The state bears the burden of proof evident
d. Substantial showing is a lesser burden than beyond a reasonable doubt.

Question 18

6.Art. 1 Sec 11a has 4 ways a person can be held without bail. If in jail on a felony and have been convicted twice of felonies and those felonies were sequential (Habitual Felon rule). The court set aside the order denying bail.

Answer 18

a. In order to be denied bail under 11a the state must substantial show the defendant had been charged with the crimeb. Substantially show = clear and convincing evidence the suspect committed the crime.
c. This strict standard upheld by the court is because a person has a constitutional right to bail so the presumption is always for bail.
d. There must be a hearing 7 days subsequent to the date of arrest (and the order from the judge).
e. The trial must be started within 60 days or the no bond hold is set aside.

Question 19

7. CCP 32.01

Answer 19

if indictment or information has not been filed by last day of court or 180 days after arrest, the defendant is entitled to be released on bail. (Tarrant Co. has 4 terms of court. Start on 1st Monday of each quarter and end on last day of quarter.)