EX PARTE BENNETT v. << (2025)

OPINION

In this appeal from the denial of appellant's applications for writ of habeas corpus, we consider whether the trial court abused its discretion in setting appellant's pretrial bail in the aggregate of $1,605,000. The State has charged appellant by indictment with five felonies: (1) possession with intent to deliver 400 grams or more of fentanyl; (2) possession with intent to deliver 400 grams or more of methamphetamine; (3) unlawful possession of a firearm by a felon; (4) possession of more than four grams, but less than 200 grams of fentanyl; and (5) possession of a criminal instrument. We affirm the trial court's rulings.

Background

 Underlying offenses

The records on appeal contain a summary of facts prepared by Officer Shane Michael Wyrick who was one of the officers that arrested appellant. The summary explains that on October 29, 2024, Officer Wyrick was working as a part of a multi-agency narcotics operation targeting a residence in Harris County. Undercover officers observed appellant enter the target residence and leave shortly thereafter. After leaving the residence, appellant got into his vehicle and drove off. Undercover agents maintained a visual on appellant in his vehicle. Upon observing appellant failing to signal a right turn, officers initiated a high-risk traffic stop. Officers detected a strong odor of marijuana emanating from appellant and his vehicle. The officers noted a clear plastic bag of blue Xanax pills lying in plain view. Upon a search of appellant's vehicle, officers determined that there were over 300 pressed pills of fentanyl in the vehicle. Officers also discovered a loaded compact handgun underneath the driver's seat of appellant's vehicle. The officers arrested appellant.

After appellant's arrest, the undercover investigators confirmed that no one had entered or exited the target residence since appellant left. All investigating units returned to the target residence and executed a search warrant previously obtained though the Department of Public Safety. Inside of a bedroom at the target residence, law enforcement discovered five assembled pill press machines secured to tables. The machines were covered in fentanyl powder and pill binder. There was organized shelving throughout the bedroom containing fentanyl and methamphetamine. The total weights of the narcotics identified by Office Wyrick was 142 kilograms of pressed pill form methamphetamine, 34 kilograms of pressed pill form fentanyl, and 8 kilograms of crystal methamphetamine.

 The Public Safety Report and Criminal History

This court has reviewed the public safety report prepared pursuant to article 17.021 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 17.021; see Ex parte Gayosso¸ 685 S.W.3d 100, 102 (Tex. Crim. App. 2023) (“If the trial court did consider the public safety report required by statute, it was error for the court of appeals to not review the report.”).

The State provided appellant's criminal history in its motion for sufficient bail, showing as follows:

• September 2016: Conviction for Possession of a Controlled Substance Penalty Group 1, greater than 4 grams, less than 200 grams; sentenced to 3 years' confinement;

• July 2005: Conviction for Possession of a Controlled Substance Penalty Group 1 greater than 4 grams, less than 200 grams; sentenced to 10 years' confinement;

• June 2000: Conviction for Aggravated Robbery with a deadly weapon; sentenced to 5 years' confinement;

• July 1998: Conviction for Manufacturing/ Delivering a Controlled Substance Penalty Group 1 greater than 1 gram less than 4 grams; probation revoked, sentenced to 3 years' confinement;

• August 1996: Conviction for Possession of a Controlled Substance Penalty Group 1 greater than 1 gram less than 4 grams; sentenced to 180 days' confinement.

 Application for Writ of Habeas Corpus

The State charged appellant with 5 offenses stemming from appellant's October 29, 2024 arrest. The bail amounts were set as follows:

Appellant filed an application for a writ of habeas corpus in each of the underlying cases requesting a reduction of the bond amounts. The trial court held a single hearing on appellant's applications. During the hearing, appellant called his fiancé Lesley Jones to testify on his behalf. Jones testified that she has known appellant approximately 5 years and that the couple lives together in a home that she rents. Jones explained that the couple has only traveled out of Texas once and that appellant was born in Houston. According to Jones, appellant has never had stable employment in the 5 years she has known him, but he does “odds and ends” for income. Jones is employed as a truck driver and works 12 to 14 hours a day. Appellant assists Jones by taking her granddaughter to school while Jones is working. Additionally, Jones testified that appellant assists his parents who are facing medical issues.

Jones further testified that she financially supports her children and grandchildren and would not be able to help appellant secure his bonds at the present amount. According to Jones, appellant has two financial accounts, one of which is negative and the other of which has “maybe $20.” Jones testified that if appellant is released on bond, she would assist him with following the conditions of his bond. Upon cross-examination, Jones testified that she was unaware of appellant's previous felony convictions. Nor was Jones aware of the specificities of appellant's current charges. Jones further confirmed that she was unaware that appellant had access to or any relation to the target resident associated with appellant's arrest. After Jones' testimony concluded, the State moved for the trial court to take judicial notice of its own file, and the court confirmed it would.

Both sides presented closing arguments. The defense argued that the current aggregate bond amount of $1,605,000 was oppressive and requested that it be set at $500,000 in the aggregate. The State requested that the trial court maintain the current bond in light of the risk presented to the community and appellant's criminal history. The trial court denied appellant's applications and this appeal followed.

Law and Standard of Review

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 Castillo–Lorente, 420 S.W.3d 884, 887 (Tex. App.—Houston [14th Dist.] 2014, 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 and any conditions of bail shall be sufficient 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, including whether the offense:

(A) is an offense involving violence as defined by Article 17.03(b-3)(2); or

(B) involves violence directed against a peace officer.

4. The ability to make bail shall be considered, and proof may be taken on this point.

5. The future safety of a victim of the alleged offense, law enforcement, and the community shall be considered.

6. The criminal history record information for the defendant, including information obtained through the statewide telecommunications system maintained by the Department of Public Safety and through the public safety report system developed under Article 17.021, shall be considered, including any acts of family violence, other pending criminal charges, and any instances in which the defendant failed to appear in court following released on bail.

7. The citizenship status of the defendant shall be considered.

Tex. Code Crim. Proc. Ann. art. 17.15. Rule number three's “nature and circumstances” of the case implicate the range of punishment. Ex parte Gomez, 624 S.W.3d 573, 576 (Tex. Crim. App. 2021). Other relevant factors include the defendant's employment history, family ties, length of residency, criminal history, previous bond compliance, other outstanding bonds, and aggravating facts of the charged offense. Id. (citing Rubac, 611 S.W.2d at 849-50).

Analysis

1. Sufficiently high to assure appearance but not oppress

Bail needs to be in an amount sufficient to give reasonable assurance that the defendant will appear. When bail is set so high that a person cannot realistically pay it, however, the trial court essentially “displaces the presumption of innocence and replaces it with a guaranteed trial appearance.” Ex parte Bogia, 56 S.W.3d 835, 840 (Tex. App.—Houston [1st Dist.] 2001, no pet.). Bail may not be used as an instrument of oppression. See Ex parte Guerra, 383 S.W.3d 229, 233–34 (Tex. App.—San Antonio 2021, no pet.). Bail set in a particular amount becomes oppressive when it assumes the defendant cannot afford bail in that amount and when it is set for the express purpose of forcing the defendant to remain incarcerated. See Ex parte Durst, 148 S.W.3d 496, 499 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (where bail amount set “solely to prevent [defendant] from getting out of jail,” “bail [was] being used as an instrument of oppression”).

Appellant's primary argument is that bail is being used as an instrument of oppression. In his brief, appellant argues that the $1,605,000 amount is akin to no bail at all. Appellant cites to Ex parte Melartin, in which this court held that bail set at $7.2 million was being used as an instrument of oppression. Ex parte Melartin, 464 S.W.3d 789, 796 (Tex. App.—Houston [14th Dist.] 2015, no pet.). In Melartin, this court noted that the trial court embraced “the State's implicit suggestion that appellant should be punished for his behavior” in setting bail. Id. We focused on the trial court's statement “that she was increasing bail because ‘appellant has shown no respect for this court.’ ” Id. The trial court's statements in the context of the State's “hyperbole”-filled arguments provided sufficient evidence to this court that bail was being used as an instrument of oppression. See id. No such evidence exists in this case. While we agree with our statement in Melartin, that “very few people can post a bond that approaches seven figures;” we will not hold that a bond in excess of a million dollars is a de facto instrument of oppression. See Ex parte Temple, 595 S.W.3d 825, 830 (Tex. App.—Houston [14th Dist.] 2019, pet. ref'd) (concluding that there was no evidence that bail in the amount of $1 million was being used as an instrument of oppression); Ex parte Ramirez-Hernandez, 642 S.W.3d 907, 920 (Tex. App.—San Antonio 2022, no pet.) (in affirming a $1 million bail amount the court stated, “Nevertheless, our review of the record does not reveal any comment or suggestion by the trial court indicating it refused to reduce Ramirez-Hernandez's bail for the express purpose of forcing him to remain in jail pending trial.”). On this record, we find no indication that the trial court set the bail amount with the express purpose of keeping appellant incarcerated.

2. Nature and circumstances of alleged offense

When assessing the reasonableness of bail, the Court of Criminal Appeals has instructed that the “primary factors” are the punishment that can be imposed and the nature of the offense. Rubac, 611 S.W.2d at 849. When a lengthy prison sentence is probable, the pretrial bail must be set sufficiently high to secure the presence of the accused at trial because the accused's reaction to the prospect of a lengthy sentence might be to flee. Temple, 595 S.W.3d at 829.

Both the nature of the offenses and the potential punishments in this case support the trial court's bail assessment. Officer Wyrick's summary of facts, which the trial court took judicial notice of, illustrates appellant's involvement in a large-scale drug operation disseminating fentanyl and methamphetamine. The delivery of fentanyl, a penalty group 1-B drug, which results in death has been codified as murder. See Tex. Penal Code § 19.02(b)(4); Tex. Health & Safety Code § 481.1022. Appellant has been charged with the possession and intent to deliver 400 grams or more of fentanyl. The dissemination of fentanyl is, by its nature, highly dangerous to the community. Moreover, the punishment range for each of the five offenses, in light of appellant's status as a habitual felon, is 25 to 99 years' or life imprisonment. See Tex. Penal Code § 12.42(d).

Appellant relies on an unpublished opinion out of this court for his contention that the nature and circumstances of the alleged offenses warrant a lower bond amount ¹ . In Ex parte Hernandez, the appellant was awaiting trial on seven separate felony charges with an aggregate bail amount of $1,825,000. Ex parte Hernandez, No. 14-18-00955-CR, 2019 WL 1388640, at *1-2 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (mem. op., not designated for publication). The State charged Hernandez with (1) unlawful possession of a firearm by a felon; (2) aggravated robbery; (3) possession of controlled substance with intent to deliver; (4) possession of controlled substance with intent to deliver; (5) tampering with evidence; (6) unlawful possession of a firearm by a felon; and (7) possession of a controlled substance with intent to deliver. Id. This court held that the record demonstrated that appellant was not an unusual flight risk and that there was no evidence that alleged victims, nor their families would be imperiled if appellant were released on bond. Id. at *6. The Hernandez panel noted that evidence regarding the nature and circumstances were not before the court. Id. at *4. Here, we have Officer Wyrick's affidavit evidencing appellant's involvement in a large-scale drug operation. When officers arrested appellant he was in possession of a firearm and of over 300 grams of fentanyl pills. Back at the target residence where appellant was seen entering and exiting, there were pill press machines, a room covered in pill binder, and large quantities of fentanyl and methamphetamine. The evidence in this case illustrates a dangerous drug operation; whereas the evidence surrounding the nature and circumstances of the offenses in Hernandez left the court with little to go by. Appellant's reliance on Hernandez is unpersuasive because the opinion is not binding precedent and the facts before the court are not analogous. See Tex. R. App. P. 47.7(a); Bleimeyer v. State, 616 S.W.3d 234, 258 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (noting that appellant's reliance on an unpublished opinion was not binding precedent).

The nature of appellant's offenses and the potential punishment of life for each of appellant's five offenses warrant a high bond amount. See Maldonado v. State, 999 S.W.2d 91, (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd) (affirming a $2,500,000 bond for one count of possession with intent to deliver a controlled substance in an amount over 400 grams).

3. Ability to make bail

To demonstrate inability to make bail, a defendant generally must establish his and his family's funds have been exhausted. Ex parte Dupuy, 498 S.W.3d 220, 234–35 (Tex.App.-Hous. 2016). The accused's ability to make bail is only one factor to be considered in determining the appropriate amount of bail. Id. “If the ability to make bond in a specified amount controlled, then the role of the trial court in setting bond would be completely eliminated, and the accused would be in the unique posture of determining what his bond should be.” Id. (quoting Ex parte Miller, 631 S.W.2d 825, 827 (Tex. App.—Fort Worth 1982, pet. ref'd)).

Appellant's fiancé Lesley Jones testified that appellant had “maybe $20” in a bank account with no stable employment history to speak of. However, Jones's testimony demonstrated a lack of knowledge about appellant's life. She testified that she unaware of appellant's criminal history, unaware of the specificities of the current charges, and testified that she was surprised to learn appellant had access to the target residence. Appellant's affidavit of financial condition reflects that appellant has no monthly income and $4,169 in monthly expenses.

While there is some evidence supporting a reduced bond amount, this factor is not determinative.

4. Future safety of the victims and the community & Criminal history

The trial court must also consider the future safety of the victim of the alleged offenses, and the community, in setting appellant's bail amounts. See Tex. Code Crim. Proc. Ann. art. 17.15(5). A defendant's criminal history must be evaluated to determine whether he presents a danger to the community. Ramirez-Hernandez, 642 S.W.3d at 918.

It is with this factor that the court takes grave concern. Each offense with which appellant is charged presents a danger to the community. See Maldonado, 999 S.W.2d at 96 (“It is, however, a matter of common sense that those who possess illegal drugs with the intent to deliver in the quantities present in this case effect the community in which they live.”). Aside from the three drug-related charges, which present a commonsense danger to our community, appellant, a felon, possessed a loaded handgun at the time of his arrest. Additionally, the criminal instrument charge for possession of a pill press machine reflects the nature of large-scale drug operation with which appellant was involved. Drug operations at this scale producing lethal quantities of controlled substances are a threat to every member of our community. See Ex parte Chavfull, 945 S.W.2d 183, 187 (Tex. App.—San Antonio 1997, no pet.) (appellant's criminal associations suggested a danger to the community).

Appellant's criminal history demonstrates his propensity to reoffend. Appellant's first offense was in 1996 for possession of more than 1 gram, but less than 4 grams of a controlled substance. Appellant was sentenced to 180 days' incarceration. A year later, appellant was convicted of manufacturing with intent to deliver a penalty group 1 controlled substance and sentenced to three years' incarceration. Approximately two years later, appellant was convicted of aggravated robbery with a deadly weapon and sentenced to five years' confinement. Approximately five years later, appellant was convicted of possession of between 4 and 200 grams of a penalty group 1 controlled substance and sentenced to ten years' confinement. Approximately ten years later, appellant was convicted of possession of between 4 and 200 grams of a penalty group 1 controlled substance and sentenced to three years' confinement. Although there is a nine-year gap between appellant's last conviction and current charges, viewing his criminal history in totality suggests he would be a continual danger to the public while on bond. See Ex parte Estrada, 640 S.W.3d 246, 255 (Tex. App.—Houston [14th Dist.] 2021, pet. ref'd) (noting that appellant's $900,000 bond was supported by appellant's “lengthy criminal history” consisting of eight separate felonies).

5. Appellant's ties to the community

Other relevant factors a court may review are the defendant's family ties and length of residency. Rubac, 611 S.W.2d at 849. A court looks to a defendant's community and family ties to assess the likelihood that the defendant will appear for trial. See Chavez v. State, 671 S.W.3d 775, 789 (Tex. App.—Fort Worth 2023, no pet.); Ex parte Nimnicht, 467 S.W.3d 64, 68 (Tex. App.—San Antonio 2015, no pet.) (“A defendant's ties to the community in which he lives can be an assurance he will appear in court for trial.”).

Here, appellant's fiancé Lesley Jones testified that appellant was born in Houston and has lived with her in Harris County for the past three years. The couple reside in a rented home that Jones pays for. According to Jones, appellant helps her care for her 7-year-old granddaughter who lives in the home. Additionally, Jones explained that appellant has an adult daughter and elderly parents who live in Harris County. Appellant assists in caring for his aging parents who are both facing serious health issues. Jones testified that appellant's absence has been hard on the family. Aside from the family, no further community ties nor employment relationships were reflected in the record.

This factor is neutral when viewed in light of analogous cases. In Ex parte Nimnicht, the court of appeals held there was not a strong assurance that appellant would appear at trial, despite his life-long residence in San Antonio, because of “his unemployment and lack of other family or community involvement.” Nimnicht, 467 S.W.3d at 68. Whereas in Ex parte Ramirez-Hernandez, the court of appeals held that appellant's strong employment history and involvement in family functions weighed against a higher bond amount. Ramirez-Hernandez, 642 S.W.3d at 919. Here, appellant has some ties to the community, but they are more akin to those in Nimnicht than Ramirez-Hernandez.

Conclusion

Based on our consideration of the above factors and the record evidence, we hold that the trial court did not abuse its discretion in setting appellant's bail at $1,605,000 and in concluding that appellant did not demonstrate that bail in this amount is excessive. See Estrada, 640 S.W.3d at 256 (“[A]ppellant must do more than show a lower bail amount would be preferable to the amount selected for him; he must demonstrate his bail falls outside the zone of reasonable disagreement.”). Accordingly, we overrule appellant's issue and affirm the trial court's orders denying habeas-corpus relief.

FOOTNOTES

1.   Unpublished criminal opinions have no precedential value. Tex. R. App. P. 47.7(a).

Tracy Christopher, Chief Justice