Opinion
No. 07-20-00177-CR
12-07-2020
EX PARTE SERGIO GOMEZ-HERRADA
On Appeal from the 460th District Court Travis County, Texas
Trial Court No. D-1-DC-19-301517; Honorable Geoffrey Puryear, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and DOSS, JJ.
On August 5, 2019, an arrest warrant was issued charging Appellant, Sergio Gomez-Herrada, with the murder of his girlfriend. The warrant was executed on August 8, 2019, and that same date, a magistrate set bond at $300,000. Without any notice or hearing, a different magistrate increased Appellant's bond to $800,000. Appellant sought a reduction in bail via an application for a writ of habeas corpus which the trial court denied. He filed this expedited appeal challenging the trial court's decision. By the first two of three issues, Appellant contends the trial court erred in increasing the amount of bail without good cause and without notice or a hearing. By his third issue, he maintains the trial court erred by not reducing the amount of the original bail of $300,000 to ensure his return to court or by not granting him a personal bond. We affirm the trial court's order.
Originally appealed to the Third Court of Appeals, sitting in Austin, this appeal was transferred to this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV'T CODE ANN. § 73.001 (West 2013). Should a conflict exist between precedent of the Third Court of Appeals and this court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3.
BACKGROUND
Following his arrest, Appellant was incarcerated at the Travis County Sheriff's Office. The warrant reflected a bond of $300,000 and that amount was entered into the inmate reporting system. Appellant's counsel met with a sheriff's office employee who prepared the personal bond application reflecting the amount of $300,000, entered it into the database, and then issued the relevant documents to counsel. Later that day, counsel accessed the jail information computer system and noticed the bond had been increased to $800,000 without notice or explanation by a different magistrate than the one who had initially issued the arrest warrant and set the bond at $300,000. The arrest warrant and order of commitment reflected that the "3" in $300,000 had been manipulated to look like an "8."
On September 20, 2019, Appellant was indicted for first degree murder. Specifically, he was charged with stabbing and cutting his girlfriend in the neck with a sharp object on August 4, 2019. The victim's daughter had expressed concern that her mother had not been returning her calls and texts and eventually reported her missing. The victim was later discovered in her bathtub with multiple stabs and wounds in her neck.
Months later, on April 3, 2020, Appellant filed an Application for Writ of Habeas Corpus Seeking Bail Reduction alleging violations of his constitutional rights under the Sixth and Eighth Amendments to the United States Constitution. In his application, he acknowledged that he lacked funds to make bail and alleged the bond was excessive when originally set at $300,000 and even more so when raised to $800,000 without notice, a hearing, or good cause. He also sought pretrial release due to a history of an upper respiratory illness and the impact of the COVID-19 pandemic.
Due to the pandemic, a hearing on his application was held via Zoom on April 14, 2020. Under time limitations of the virtual hearing, the trial court heard testimony from Mary Gallo, a nurse and the director of inmate medical services for the Travis County Sheriff's Office. She was questioned thoroughly on protocols, testing, and procedures in the jail as they relate to the pandemic. Essentially, her testimony established that the sheriff's office was following the CDC guidelines, and as of the date of the hearing, there had been no positive tests among the inmates. To the best of her knowledge, only one staff member had tested positive after returning from vacation and did not return to work.
The witness acknowledged that records indicated only eleven of 163 inmates in quarantine had been tested to date.
The only other witness to testify at the hearing was Appellant. He confirmed that he has been a citizen of the United States since 2000 and has no prior arrests. His testimony was limited to establishing that he suffers from an upper respiratory illness, specifically, asthma. He testified that in the nine months he had been incarcerated, he had observed unsanitary jail conditions and had not been provided with a mask or with hand sanitizer. According to Appellant, the availability of soap had been reduced. He claimed he has difficulty breathing when sleeping but admitted his last asthma attack had occurred over a year ago. He became concerned about his health when another inmate in a neighboring cell became ill with "bad breathing" and was taken to the clinic but was then allowed to return to the neighboring cell.
During cross-examination, Appellant confirmed that he came to the United States from Mexico in 2000 with his parents. Two of his siblings also accompanied him but a sister remains in Mexico. He and his parents have lived in Austin continuously.
With the time constraints placed on the Zoom hearing, Appellant's counsel proffered that Appellant's mother would have testified and confirmed Appellant's upper respiratory illness. She would have also testified that Appellant had a place to stay if released pending trial. Counsel advised the court that the family had raised $10,000 toward posting bail.
Counsel argued to the court that if the hearing had continued, he would have sought testimony from the magistrate who originally set bail at $300,000. He would have also sought testimony from the employee who processed Appellant's paperwork to confirm that the $300,000 bond was posted in the system prior to a different magistrate increasing the bond to $800,000. The trial court accepted the proffered testimony, and based on documents presented, the court took judicial notice that the original amount of the bond was $300,000.
After considering the evidence before it, the trial court denied Appellant's application for a writ of habeas corpus. By its order, the trial court made the following findings:
• Appellant is indigent and cannot afford to post bail on an $800,000 bond;Alternatively, the trial court found the Governor's Executive Order Number GA-13 constitutional and binding.
• twenty-four incised wounds and sixteen stab wounds inflicted on the victim is a brutal offense that weighs against a reduction in bond;
• Nurse Gallo's testimony and relevant affidavits demonstrate that the sheriff's office has taken adequate and reasonable steps to mitigate the spread of COVID-19; and
• Appellant did not establish that he is suffering from acute symptoms of his alleged asthma that would require release to protect his life.
GA-13 was issued on March 29, 2020. It addresses the unique challenges in mitigating against the spread of COVID-19 in the jail population. In relevant part, it provides "the Texas Judicial Council has recently reminded judges that individuals who pose a significant risk to the community or the victim, or who present a significant risk of flight, should be detained, and Texas judges are legally required and oath-bound to determine bail on an individualized basis after considering the factors mandated by Article 17.15 of the Texas Code of Criminal Procedure, which does not include the option of releases based solely on concerns or fears surrounding COVID-19 . . . ."
STANDARD OF REVIEW
In a habeas proceeding regarding a claim of excessive bail, we review a trial court's decision regarding the amount of bail for abuse of discretion. Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981); Ex parte Davis, 147 S.W.3d 546, 548 (Tex. App.—Waco 2004, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules or principles. Ex parte Hunt, 138 S.W.3d 503, 505 (Tex. App.—Fort Worth 2004, pet. ref'd). As such, a reviewing court will not disturb a decision of the trial court if that decision is within the zone of reasonable disagreement. Clemons v. State, 220 S.W.3d 176, 178 (Tex. App.—Eastland 2007, no pet.).
APPLICABLE LAW
Prior to conviction, every citizen accused of a crime has a "strong interest in liberty." United States v. Salerno, 481 U.S. 739, 750, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987). In order to protect that interest, the Eighth Amendment to the United States Constitution provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII. In addition, the Texas Constitution guarantees that "[a]ll prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident . . . ." See TEX. CONST. art. I, § 11. This constitutional right to reasonable bail has also been codified. See TEX. CODE CRIM. PROC. ANN. art. 1.07 (West 2005) (providing "[a]ll prisoners shall be bailable unless for capital offenses when the proof is evident"). See also TEX. CODE CRIM. PROC. ANN. art. 17.15(2) (West 2015) (providing "[t]he power to require bail is not to be so used as to make it an instrument of oppression").
The primary objective of a bail bond is to secure the defendant's appearance at trial. "'Bail' is the security given by the accused that he will appear and answer . . . the accusation brought against him . . . ." See TEX. CODE CRIM. PROC. ANN. art. 17.01 (West 2015). See also Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977). The defendant's liberty is a secondary objective and his right to pretrial bail may be subordinated to the greater needs of society. Salerno, 481 U.S. at 750-51. In balancing the liberty interest of an accused and safety interests of society, the Texas Legislature has adopted rules and guidelines whereby an accused can obtain pretrial release through the posting of an adequate bail bond. When faced with excessive bail, an accused has the right to assert his or her constitutional right to reasonable bail through the use of a pretrial writ of habeas corpus. Weise v. State, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001) (citing Ex parte Keller, 595 S.W.2d 531, 532-33 (Tex. Crim. App. [Panel Op.] 1980)). The burden of proof is on the defendant to show that the amount of bail set was excessive. Ex parte August, 552 S.W.2d 169, 170 (Tex. Crim. App. 1977).
ISSUES ONE AND TWO—INCREASE OF BOND FROM $300,000 TO $800,000
Appellant's first two issues are prefaced on the substantial increase in bail by a different magistrate without notice, a hearing, and "good or sufficient" cause. The trial court's action, he argues, violated chapter 17 of the Texas Code of Criminal Procedure which governs all bail determinations. TEX. CODE CRIM. PROC. ANN. arts. 17.01 - 17.49 (West 2015 and Supp. 2020). He requests that the original bail set at $300,000 be reinstated.
The primary purpose of pretrial bail is to secure the appearance of the accused at trial on the offense charged. See Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. [Panel Op.] 1980). In a proceeding seeking a reduction in the amount of pretrial bail, the burden of proof is on the party seeking that reduction to show that the amount of bail presently being required by the trial court is excessive. Ex parte Vasquez, 558 S.W.2d at 479.
The State responds that Appellant waived a request to reinstate the original amount because he did not pursue that argument in the trial court. We agree. Appellant's application for a writ of habeas corpus did not include a request for relief in the form of reinstatement of the original amount. Also, he did not make a motion to reinstate the original amount of bail. Rather, by his application for a writ of habeas corpus, Appellant argued that the amount of the bond was excessive and violated his due process rights. He also sought pretrial release under article 11.25 of the Texas Code of Criminal Procedure which authorizes release if an accused is afflicted with a disease that may jeopardize his life. TEX. CODE CRIM. PROC. ANN. art. 11.25 (West 2015).
For the first time on appeal, he now seeks relief by having the original bond in the amount of $300,000 reinstated. Rule 33.1(a)(1) of the Texas Rules of Appellate Procedure requires most complaints to first be raised in the trial court before they can be considered on direct appeal. TEX. R. APP. P. 33.1(a)(1). By failing to raise his complaint below, Appellant denied the trial court the opportunity to rule on his request to reinstate the original bond.
Even if Appellant had preserved his complaint on reinstatement of the original bond, he concedes in his brief that "at either $300,000 or $800,000 . . . either huge sum was excessive . . . ." The record established that Appellant's parents exhausted their financial resources and were only able to raise $10,000, enough to obtain a surety bond of only $100,000. Simply because an accused cannot meet the amount of bail set by the trial court does not automatically render that amount excessive. Ex parte Vance, 608 S.W.2d 681, 683 (Tex. Crim. App. 1980); Ex parte Scott, 122 S.W.3d 866, 870 (Tex. App.—Fort Worth 2003, no pet.); Ex parte Hopkins, Nos. 03-19-00695-CR, 03-19-00715-CR, 2020 Tex. App. LEXIS 6685, at *6 (Tex. App.—Austin Aug. 20, 2020, no pet.) (mem. op., not designated for publication) (citing Lawhon v. State, Nos. 03-15-00265-CR, 03-15-00277-CR, 03-15-00288-CR, 2015 Tex. App. LEXIS 11963, at *2-3 (Tex. App.—Austin Nov. 20, 2015, no pet.) (mem. op., not designated for publication)). And the ability or inability of an accused to make bail does not alone control in determining the amount of bail. Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. 1980). If the ability to make bond controlled, the trial court's role in setting bond would be eliminated and the accused would be in the position to determine the amount of bond. Milner v. State, 263 S.W.3d 146, 150 (Tex. App.—Houston [1st Dist.] 2006, no pet.). The unexplained increase in the bond from $300,000 to $800,000 by a different magistrate became irrelevant when, as here, Appellant was unable to make bail even at the original amount set.
We also address Appellant's reliance on Ex parte Gomez, Nos. 01-20-00004-CR, 01-20-00005-CR, 2020 Tex. App. LEXIS 6261, at *6 (Tex. App.—Houston [1st Dist.] Aug. 7, 2020, pet. granted) (mem. op., not designated for publication), in support of his argument that his bail was increased without sufficient cause. In Ex parte Gomez, the appellate court reversed a trial court's unexplained increase in two bonds where no good and sufficient cause was shown for revoking Gomez's original bonds. Id. at *18. Ex parte Gomez, however, is distinguishable.
Gomez, a full-time student, had been charged with burglary of a habitation and assault on a family member. Bail was set at $25,000 and $15,000, respectively. Id. at *3. With the help of his parents, he was able to make bail and was released into their custody. Pursuant to his bonds, Gomez appeared for a hearing the morning of his release. Without explanation, the trial court revoked his bonds and ordered that he be rearrested and remanded to custody. Id. at *4. New bonds were set at $75,000 for each offense, more than twice the original amounts, and Gomez filed an application for a writ of habeas corpus. He alleged the bonds were excessive, his parents had exhausted their financial resources, his due process rights had been violated, and the Texas Rules of Evidence had not been followed at the hearing. Id. at *7. In finding the trial court abused its discretion, the appellate court construed article 17.09, section 3 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 17.09, § 3 (West 2015). The statute requires the trial court, in making a change to a bond after a defendant has previously given bail for his appearance, to make a finding based on one of the conditions therein, e.g., "that the bond is defective, excessive, or insufficient in amount, or that the sureties, if any are not acceptable, or for any other good and sufficient cause . . . ." Id. The appellate court found the trial court failed to make any of the statutory findings and there was no showing that any circumstances had changed from the time in which the magistrate set bonds totaling $40,000 to the time they were increased to $150,000. Id. at *15.
Rule 101(e) of the Texas Rules of Evidence provides that the rules do not apply to bail proceedings other than hearings to deny, revoke, or increase bail. TEX. R. EVID. 101(e).
Accordingly, article 17.09 of the Code applies when a defendant has once given bail for his appearance in answer to a criminal charge. The statute does not apply to the circumstances present in Appellant's case where no bond has ever been given. This is not a case where Appellant was previously released on the $100,000 bail amount and then subsequently required to make another, higher bond. For these reasons, we find Ex parte Gomez to be inapplicable. Issues one and two are overruled.
ISSUE THREE—FAILURE TO REDUCE BAIL OR GRANT A PERSONAL BOND
While a magistrate has broad discretion in determining the dollar amount of bail and any conditions of bail, exercise of that discretion is governed by factors set forth in article 17.15 of the Texas Code of Criminal Procedure. Ex parte Hopkins, 2020 Tex. App. LEXIS 6685, at *2. Those factors include, but are not limited to the following:
1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.TEX. CODE CRIM. PROC. ANN. art. 17.15.
2. The power to require bail is not to be used so 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.
Whether to release an accused on a personal bond is also a matter within the trial court's sound discretion. TEX. CODE CRIM. PROC. ANN. art. 17.03 (West Supp. 2020). Hayden v. State, 155 S.W.3d 650, 648 (Tex. App.—Eastland 2005, pet. ref'd).
In addition, the Texas Court of Criminal Appeals has outlined additional relevant factors. In determining an appropriate amount of bail, the trial court may also consider factors such as (1) the defendant's work record, (2) family and community ties, (3) length of residency, (4) prior criminal record, (5) conformity with previous bond conditions, (6) the existence of any other bonds outstanding, and (7) aggravating circumstances alleged to have been involved in the charged offense. Ex parte Rubac, 611 S.W.2d at 849; Ex parte Emery, 970 S.W.2d 144, 145 (Tex. App.—Waco 1998, no pet.).
Here, Appellant did not specifically present an argument in this court, as he did below, that he should be released due to his upper respiratory illness and the COVID-19 pandemic. We note, however, that a similar argument has been recently rejected in Ex parte Robles, No. 14-20-00317-CR, 2020 Tex. App. LEXIS 8495, at *12-14 (Tex. App.—Houston [14th Dist.] Oct. 29, 2020, no pet.) (mem. op., not designated for publication) (declining to create a new Rubac factor to consider but noting that evidence of the defendant's health and jail conditions could have been considered under other Rubac factors).
In the underlying case, bond was set sufficiently high to give reasonable assurance that Appellant would appear for trial. Although the amount was beyond Appellant's financial resources because the evidence showed he could only raise $10,000, that alone did not render the amount excessive or an instrument of oppression. The trial court considered the brutal nature of the offense in deciding not to reduce the amount of bond or release Appellant on a personal bond.
The evidence showed that Appellant had been a citizen of the United States since 2000 and had lived in Austin the entire time and did not have any prior arrests. He attended high school in the Austin area and had sufficient ties to the community. His parents and some siblings also lived in Austin, but he had one sibling who still resided in Mexico. The record showed that Appellant could reside with his parents if released. Based on the evidence, we cannot say that the trial court abused its discretion in the denial of Appellant's application for a writ of habeas corpus. Issue three is overruled.
In his brief, Appellant presents a work history as a carpenter "in the booming local area" and also asserts the case against him is "entirely circumstantial." The State correctly points out that these factors are outside the record and should not be considered on appeal.
CONCLUSION
The trial court's Order Denying Application for Writ of Habeas Corpus is affirmed.
Per Curiam Do not publish.