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EX PARTE David RAMIREZ-HERNANDEZ
Appellant, David Ramirez-Hernandez, was arrested on three counts of aggravated sexual assault of his step-daughter (“M.”). His bail was set at $500,000 for one count and $250,000 per count for the other two counts. He filed a pre-trial application for writ of habeas corpus asserting his bail is excessive and asking that bail be reduced to $50,000. The trial court denied the writ of habeas corpus and this appeal ensued. In three issues on appeal, Ramirez-Hernandez asserts his cumulative bail of $1 million is excessive and in violation of the Texas Code of Criminal Procedure, the Texas Constitution, and the United States Constitution. We reverse and remand.
Ramirez-Hernandez was charged with three counts of aggravated sexual assault of the child M., who is the daughter of his common-law wife or girlfriend (hereinafter, “Jeanette”). At the hearing on Ramirez-Hernandez's application for writ of habeas corpus, the evidence admitted was the State's Probable Cause Affidavit, the testimony of three witnesses who testified on Ramirez-Hernandez's behalf, and a letter from Ramirez-Hernandez's employer. The State presented no witnesses or any evidence to the trial court in an attempt to controvert the testimony of Ramirez-Hernandez's witnesses.
A. Details Taken From Probable Cause Affidavit
The police contacted Jeanette who reported M. made an outcry to her that she had been molested by Ramirez-Hernandez. Jeanette stated she and Ramirez-Hernandez have lived together for six years, he is from Mexico, is in the United States illegally, and he does not have a Texas Driver's License or Texas Identification Card. M. stated the sexual assaults occurred at night when Ramirez-Hernandez came into her room while she was sleeping. Jeanette also reported she would find Ramirez-Hernandez awake at night near M.’s room.
M. said Ramirez-Hernandez had been touching her breasts and vagina for two years prior to the sexual assaults and he sexually assaulted her by vaginal penetration on three different occasions. M. was not certain of the exact dates the sexual assaults occurred, but she knew the first assault occurred during the last week of April 2021, the second occurred during the first week of May 2021, and the last occurred approximately the second week of May 2021. The nurse who performed the SANE examination reported M. “was having lower abdomen/pelvic area pain.” She stated, “there are a few things that can cause this pain, and one of them is Pelvis Inflammatory Disease (PID), which is caused from having sex at a young age.”
B. Witness Testimony
Sandra M. testified she lives with her four sons and her husband who is Ramirez-Hernandez's brother. She stated Ramirez-Hernandez has lived in Seguin, Texas for fourteen years with Jeanette, her four children, and his two biological children.1 M. is thirteen and the other step-children are eleven, ten, and five years old. His biological children are five and two years old. She also said he had many friends. At the time of his arrest, Ramirez-Hernandez had been working for a landscaping company for more than ten years. Sandra M. said she has known Ramirez-Hernandez for fourteen years and described him as an amazing person, a good-hearted man who would always help people, and a very good father. She was aware of the charges against him and understood that he could be charged with three consecutive life sentences.
She had never witnessed anything improper between Ramirez-Hernandez and his step-children. She said he has been around everyone in her family and he never disrespected anyone or gave anyone any sense of danger. Prior to his arrest, she was aware he had only one or two traffic tickets. She stated that if Ramirez-Hernandez was released on a lower bond, she did not believe he would be a threat to the community and she believed he would have other places to stay if he was not allowed to go back to his residence. She also said he would be allowed to go back to his job upon release.
Sandra M. said she had reached out to family and friends to try to raise money for Ramirez-Hernandez's bond, but no one had the ability to pay for a $1 million bond and neither Ramirez-Hernandez nor Jeanette had disposable income they could put towards the bond. She said they had raised $5,000 from family members and others wanting to help. As for collateral, she and her husband had only two vehicles they would sell to help but doing so would leave them with no vehicles. She believed Ramirez-Hernandez would comply with any bond requirements.
Sandra M. knew Ramirez-Hernandez was a citizen of Mexico with no lawful permanent residency or visa to stay in the United States. When asked if she thought he was a flight risk, she responded,
A. I honestly don't think he would. I think if he was a flight risk he would have done it the day all this happened, and he didn't. He –
Q. You can continue.
A. He, that day – he was told to leave, and he said, “I'm not leaving because I have my two children” –
[objection based on lack of personal knowledge]
A. And he said, “I'm not leaving because I have my two children here. I have my whole life here, and if I didn't do anything, why would I run away?”
When asked about the circumstances that led to the police being called and the investigation started, Sandra M. said:
Well, this started because I was missing a phone, and I let my husband know where the phone was, because on an iPhone you can take pictures and if you have the same iCloud you can find your phone and the pictures come up; and I just mentioned to my husband, I know who took my phone, which was the – which was [M.]; and my husband actually that night told [Ramirez-Hernandez], “Hey, [S.M.] asked about her phone. She says [M.] has it. She doesn't want it back. She just – she just wants her to delete the iCloud,” and that was why the confrontation started.
She said she knew M. had taken her phone because photos M. had taken were uploaded to Sandra M.’s iCloud. She said Ramirez-Hernandez was the one who confronted M. about taking the phone and he told M. she should not take things that did not belong to her, M. got mad, and denied everything. She said this all happened on the same day the police were called.
The next witness, Reyes H., is Jeanette's sister. Reyes H. has lived in Seguin for five years and has an eleven-year-old daughter, a ten-year-old son, a nine-year-old daughter, a six-year-old daughter, a three-year old son, and a two-month-old daughter. She has known Ramirez-Hernandez for six years. She described Ramirez-Hernandez as caring, loving, and one of her best friends. She was frequently around Ramirez-Hernandez and his family and never saw anything that troubled her about how he related to any of the children.
She said that about a week before everything happened, she attended M.’s thirteenth birthday party and “everything was going good.” She said M. did not display any reluctance around Ramirez-Hernandez, and M. threw cake at him starting a cake fight amongst everyone. She said M. called Ramirez-Hernandez “papi.” When asked whether she saw Ramirez-Hernandez around other people's children, she responded:
Yes, I have. I have a sister who has four other children, and I have – we have – we're a big family, so I have tons of nieces and nephews, and he's always been – he's a family person. Every function we have with the family, he's around us, helping in some kind of way, whether it be with holding the piñata or helping with the bouncy castle. I mean, he's a family person.
She said Ramirez-Hernandez and Jeanette lived in a two-bedroom house that he rebuilt for the family. M. did not have her own bedroom. She slept in one of the bedrooms that had bunkbeds with three other children. When asked what she knew about the circumstances that led to the police investigation, she responded:
The night of this, that this had happened, my brother-in-law, [D.R.], called me and told me to come to the house. I got to the house, and before anything could even – before I even knew anything, [J.H.], my sister, had told me what was being said, and I right away asked if there was a fight between them. And she told me, yes, that there was a fight, because there was a – they had caught her with a stolen iPhone.
She knew about the charges against Ramirez-Hernandez, that he faced up to three life sentences, and that he had no legal status in the United States. She did not believe he would be a flight risk or a danger to the community if released on bond. She said she would trust him with her own children and was willing to have her children interviewed at the Child Advocacy Center to determine whether they had been sexually assaulted.
The last witness to testify on Ramirez-Hernandez's behalf was his next-door neighbor, Maria B. Maria B. has an eighteen-year-old daughter, a fifteen-year-old daughter, a twelve-year-old son, a five-year-old son, and a four-year-old daughter. She and her children spent a lot of time around Ramirez-Hernandez at barbecues and family gatherings. She has known him for “a couple of years,” and described him as a family-man, respectful, and hard-working.
When she first heard about the arrest, she asked her children if they ever felt uncomfortable around Ramirez-Hernandez and when she told them about the charges, they said:
[N]o, no, never felt uncomfortable. Never. I mean, like my oldest, she was really hurt when she found out, when she saw his mugshot. She was crying and really hurt. She felt very hurt, like she believes it's a lie․.
She said one of her daughters told her she wished she had a father like Ramirez-Hernandez.
She was aware of the charges against him, knew he was not a United States citizen, and did not believe he would be a danger to the community. She was also willing to have her children interviewed at the Child Advocacy Center. When asked if she thought he might flee to Mexico or run away, she said, “I think if he would have wanted to, he probably would have got scared or anything, he would have left a long time ago, like when it first happened. But, no, he turned himself in.” On cross-examination, when told Ramirez-Hernandez did not actually turn himself in, she responded:
A. Well, I mean, like not turn himself in, but like he was – he didn't flee. He was there at the house where they got him. Like he didn't run.
Q. And you're aware that he was actually at the house to get his belongings in order to leave whenever he was arrested on the warrants; is that correct?
A. No, I didn't know.
Finally, a letter from Ramirez-Hernandez's employer (“Phillip”) was admitted into evidence. In the letter, Phillip stated he was aware of the charges against Ramirez-Hernandez and knew him as a caring, trustworthy, and honorable man. Phillip has operated a landscaping and irrigation business in New Braunfels, Texas since 1999 and met Ramirez-Hernandez through Ramirez-Hernandez's brother about ten years ago. Both brothers worked for him as subcontractors doing various landscaping, masonry, and irrigation work. He said Ramirez-Hernandez was his “go-to” whenever he needed anything done right, he never missed a day's work without calling in, and he was always eager to do more. He stated that in his twenty years as a landscape contractor Ramirez-Hernandez was the most dependable subcontractor he had worked with, he was always respectful towards other subcontractors, and had the respect of those with whom he worked. Most of his clients knew Ramirez-Hernandez by name and would praise him and his work ethic when a project was finished. He knew Ramirez-Hernandez cared deeply about his family and their well-being, which was always apparent from the way Ramirez-Hernandez spoke about them, and why Ramirez-Hernandez put his family first by working so hard to provide them with whatever they needed.
STANDARD OF REVIEW & APPLICABLE LAW
We review a trial court's pretrial bail determination for an abuse of discretion. See Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981); Ex parte Gonzalez, 383 S.W.3d 160, 161 (Tex. App.—San Antonio 2012, pet. ref'd). A trial court abuses its discretion when it acts without reference to any guiding rules or principles, i.e., in an arbitrary and unreasonable manner. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (citation omitted). Merely because we might decide a matter differently than the trial court did does not demonstrate an abuse of discretion. Id. We afford “almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor.” Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
The purpose of pretrial bail is to secure the defendant's appearance at trial to answer the accusation against him. Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. [Panel Op.] 1980); see also Ex parte Williams, 12-21-00032-CR, 2021 WL 2816404, at *1 (Tex. App.—Tyler June 30, 2021, no pet.) (mem. op., not designated for publication) (“ ‘Bail’ is the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or a personal bond.”). Although bail should be sufficiently high to give reasonable assurance that the undertaking will be complied with, the power to require bail is not to be used so as to make it an instrument of oppression, and excessive bail is prohibited by our state and federal constitutions, as well as the Texas Code of Criminal Procedure. See Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. [Panel Op.] 1980); U.S. Const. amend. VIII; Tex. Const. art. I, §§ 11, 13; Tex. Code Crim. Proc. arts. 1.09, 17.15. Bail determinations are “bounded and guided by our state and federal constitutions and state law.” Ex parte Estrada, 398 S.W.3d 723, 724 (Tex. App.—San Antonio 2008, no pet). The defendant bears the burden to demonstrate the bail set by the trial court is excessive. Rubac, 611 S.W.2d at 849; Gonzalez, 383 S.W.3d at 161.
Article 17.15 of the Texas Code of Criminal Procedure implements the constitutional right to bail. That Article provides the setting of bail is within the discretion of the court, judge, or magistrate setting it, but it also specifies that that discretion is limited by the Texas Constitution and the following five factors delineated in Article 17.15:
(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,
(4) The ability to make bail is to be regarded, and proof may be taken upon this point, and
(5) The future safety of a victim of the alleged offense and the community shall be considered.
Tex. Code Crim. Proc. art. 17.15.
Other relevant factors include: (1) the nature of the offense and possible sentence; (2) the defendant's ties to the community—including family ties, (3) length of residency; (4) employment history; (5) prior criminal record; (6) the existence of other bonds against the defendant and his compliance with conditions of those bonds; and (7) aggravating factors involved in the alleged offense. Rubac, 611 S.W.2d at 849-50.
Ramirez-Hernandez argues his bail is oppressive because the bonds set by the trial court are incommensurate with the offenses. He acknowledges the offense of aggravated sexual assault is a serious offense; however, he contends the bonds set are unobtainable for anyone especially someone such as himself, a man of modest means, and his family and friends who can gather only five to seven thousand dollars. He asserts the State's argument consisted largely of hyperbole and speculation concerning his lack of citizenship with no evidence offered to show he was a flight risk or that there would be any effect on the community's safety in the event he was released on a lower bail.
We analyze article 17.15 and the Rubac factors individually and weigh them as a whole to arrive at an appropriate and reasonable bail that will serve to assure the defendant's presence in court. Ex parte Nimnicht, 467 S.W.3d 64, 67 (Tex. App.—San Antonio 2015, no pet.). Appropriate bail is a fact-driven determination and each case must be judged on its own unique facts. Id. With these principles in mind, we now apply these factors to ascertain whether the trial court abused its discretion by denying Ramirez-Hernandez's application to reduce his cumulative bail of $1 million.
A. Nature and Circumstances of the Charged Offenses; Aggravating Factors
When determining reasonable bail, a trial court shall give the most weight to the nature of the offense and the length of the possible sentence. See Rubac, 611 S.W.2d at 849. In setting the amount of bail, it is appropriate to consider whether the offense alleged to have been committed involved violence. See Perez v. State, 897 S.W.2d 893, 898 (Tex. App.—San Antonio 1995, no pet.). If the offense is serious and involves aggravating factors that may result in a lengthy prison sentence, then bail must be set sufficiently high to secure the defendant's presence at trial. Ex parte Castillo-Lorente, 420 S.W.3d 884, 888 (Tex. App.—Houston [14th Dist.] 2014, no pet.). A defendant is entitled to the presumption of innocence on all charges. Ex parte Melartin, 464 S.W.3d 789, 793 (Tex. App.—Houston [14th Dist.] 2015, no pet.). When setting the amount of bail, the trial court must strike a balance between this presumption and the State's interest in ensuring the defendant will appear for trial. Id.
Ramirez-Hernandez was charged with three counts of aggravated sexual assault of M. In addition to the aggravated sexual assaults with which he was charged, the Probable Cause Affidavit stated M. alleged he had been touching her breasts and vagina for two years prior to the sexual assaults. The State alleged no other aggravating factors.
The Texas Legislature has taken various steps to demonstrate the extreme gravity with which aggravated sexual assault of children is viewed. The offense is a first-degree felony, for which the punishment range is life imprisonment or any term not more than ninety-nine years or less than five years. See Tex. Penal Code § 22.021(a)(1)(B), (a)(2)(B), (e); Tex. Penal Code § 12.32(a). Thus, aggravated sexual assault of a child under fourteen years of age is a first-degree felony regardless of whether any other violence is present. Furthermore, if convicted, he will be required to register as a sex offender in accordance with chapter 62 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. arts. 62.001-62.408. Therefore, given the seriousness of the charged offenses, the lengthy potential sentences, and the requirement that he be registered as a sex offender for the remainder of his life, this factor weighs in favor of a high bail amount.
B. Prior Criminal History and Bonds
A defendant's criminal history must be evaluated to determine whether he presents a danger to the community. Nimnicht, 467 S.W.3d at 69. “A court should also evaluate a defendant's criminal history to discern whether such would create an inference of flight risk.” Id. The State presented no evidence showing Ramirez-Hernandez had any previous or outstanding bonds, or that he ever failed to appear for a court appearance. Additionally, there was testimony he has never been charged with a previous crime. We conclude these factors weigh against a high bond amount.
C. Future Safety of Victim and Community
As noted above, Ramirez-Hernandez was charged with three counts of aggravated sexual assault of M. The record also contains M.’s allegation that he had been touching her breasts and vagina for two years prior to the sexual assaults. The State offered no evidence that M. or anyone else feared for M.’s safety if Ramirez-Hernandez was released on bail. Although his two sisters-in-law and a neighbor testified that they did not believe him to be a danger to the community and were comfortable having him around their own children, his job would require him to be out in the community and potentially around other children. See Ex parte Bordelon, 04-20-00364-CR, 2021 WL 1988259, at *5 (Tex. App.—San Antonio May 19, 2021, pet. ref'd) (mem. op., not designated for publication) (“Bordelon's job as a plumber would require him to be out in the community and potentially inside the residences of customers, giving him potential access to children. On this record, the trial court could reasonably conclude that Bordelon poses a danger to ․ members of the community at large.”). The lack of evidence regarding M.’s future safety weighs in favor of a lower bond; however, based on the record before us, the trial court could have reasonably concluded Ramirez-Hernandez posed a danger to the community at large. Therefore, this factor weighs neither for nor against a higher bond amount.
D. Community Ties, Residency, and Employment Record
“A defendant's ties to the community in which he lives can be an assurance he will appear in court for trial.” Nimnicht, 467 S.W.3d at 68. A court's review of this factor includes an assessment of the defendant's residence history, family's ties to the community, and work history. See Rubac, 611 S.W.2d at 849.
As noted, Ramirez-Hernandez relied on the testimony of three witnesses and the affidavit of his employer to show his community ties, residency, and employment record. In addition to Jeanette's four children with whom he lived, Ramirez-Hernandez has two biological children of his own; each witness has known Ramirez-Hernandez for several years; he has resided in Seguin for fourteen years in a house he rebuilt for his family; and everyone socialized together for holidays and family gatherings. One of the witnesses stated Ramirez-Hernandez could return to his job and his employer had high praise for him as a subcontractor, a job he has held for ten years. We conclude these factors weigh against a high bond.
E. Amount Sufficiently High to Assure Appearance But Not Oppress
Bail needs to be set sufficiently high to provide reasonable assurance the defendant will appear for trial, but should not be used as an instrument of oppression. Tex. Code Crim. Proc. art. 17.15(1), (2); Ex Parte Dupuy, 498 S.W.3d 220, 232 (Tex. App.—Houston [14th Dist.] 2016, no pet.). “This reasonable assurance standard ‘creates and limits the risks of both sides. Any grant of bail risks the defendant's flight, but bail limits that risk by reducing the money available to fund the flight, while simultaneously creating a fund to finance an effort to re-arrest the defendant.’ ” Id. at 232-33. “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.’ ” Id. at 233. Furthermore, “our Code of Criminal Procedure does not require bail that would ‘guarantee’ a defendant's appearance, but only bail that ‘shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.’ ” Ex parte Bogia, 56 S.W.3d 835, 840 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (emphasis in original) (citation omitted).
“Courts traditionally set somewhat higher bail in cases involving offenses against children.” Ex parte Flores, 12-21-00079-CR, 2021 WL 3922919, at *5 (Tex. App.—Tyler Sept. 1, 2021, no pet. h.) (mem. op.). “However, the right to reasonable bail is a complement to and based on the presumption of innocence.” Id. “The repellent nature of the accusation does not diminish the presumption of the accused's innocence.” Id. “The provision in Article 17.15 providing that ‘[t]he power to require bail is not to be so used as to make it an instrument of oppression’ embraces a warning that bail is not to be used to insure preconviction punishment.” Id.
Here, we conclude the bail was sufficiently high to give reasonable assurance that Ramirez-Hernandez would appear for trial because, although three witnesses did not believe he was a flight risk, there is no dispute he is not a United States citizen, does not have a Texas Driver's License or a Texas Identification Card, and apparently has no other legal status here. We next address whether the cumulative $1 million bail was oppressive.
Bail is oppressive when the record indicates the trial court set the bail amount for the express purpose of forcing a defendant to remain incarcerated pending trial or appeal. See, e.g., Ex parte Harris, 733 S.W.2d 712, 714 (Tex. App.—Austin 1987, no pet.) (per curiam) (district court “elected to set bail, but in an amount calculated to be beyond appellant's means and to assure appellant's continued incarceration” and “by so doing, used bail as an instrument of oppression in violation of the constitution and statutes of this State”). Here, nothing in the record explains why bail was originally set on one of the counts at $500,000, but $250,000 on the other two counts. Although the $1 million bail amount certainly assures Ramirez-Hernandez's appearance, there is no evidence that, if released, he would not appear as required by the trial court. 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. See Montalvo v. State, 315 S.W.3d 588, 596 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (appellate court's independent review of habeas corpus record “did not suggest that the trial court deliberately set bail at an excessively high level solely to prevent Montalvo from posting bail”); c.f., e.g., Harris, 733 S.W.2d at 714 (trial judge stated on the record, “I'd rather see him in jail than to see someone's life taken.”).
F. Ability to Pay
‘The ability to make bail is to be regarded, and proof may be taken upon this point.” Tex. Code Crim. Proc. art. 17.15(4). “The inability of the accused to pay the amount of bail assessed does not render any amount of bail excessive.” Nimnicht, 467 S.W.3d at 68. In determining bail, indigence is a circumstance to be considered, but is not controlling. Ex parte Vasquez, 558 S.W.2d 477, 480 (Tex. Crim. App. 1977) (“Appellant's indigency is a circumstance to be considered, but it is not a controlling circumstance nor the sole criterion in determining the amount of bail.”). “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.” Ex parte Miller, 631 S.W.2d 825, 827 (Tex. App.—Fort Worth 1982, pet. ref'd).
A defendant should ordinarily offer evidence of his available resources and his unsuccessful attempts to post bail in the current amount. See Ex parte Dueitt, 529 S.W.2d 531, 532 (Tex. Crim. App. 1975). “To show that he is unable to make bail, a defendant generally must show that his funds and his family's funds have been exhausted.” Ex parte Castellanos, 420 S.W.3d 878, 883 (Tex. App.—Houston [14th Dist.] 2014, no pet.). “Unless he has shown that his funds and those of his family have been exhausted, a defendant must usually show that he made an unsuccessful effort to furnish bail before bail can be determined to be excessive.” Milner v. State, 263 S.W.3d 146, 149 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Ramirez-Hernandez's “inability ․ to pay the amount of bail assessed does not render any amount of bail excessive.” Nimnicht, 467 S.W.3d at 68. “If both the defendant and his family indicate a financial inability to procure a surety bond, the court will not require him ‘to do a useless thing.’ ” Milner, 263 S.W.3d at 149-50 (citation omitted).
At the time of the hearing, Ramirez-Hernandez had been in confinement for less than three months and he demonstrated his family could not raise enough money in that time to post a $1 million bail. Ramirez-Hernandez did not provide any specific information regarding his personal finances and assets. Instead, the witnesses stated they had attempted to raise bail, but only in the amount of $5,000. Sandra M. testified she reached out to family and friends to try to raise money for Ramirez-Hernandez's bond, but no one had the ability to pay for a $1 million bond and neither Ramirez-Hernandez nor Jeanette had disposable income they could put towards the bond. She said they had raised $5,000 from family members and others wanting to help. As for collateral, she said she and her husband had two vehicles they would sell to help but doing so would leave them with no vehicles. We conclude Ramirez-Hernandez did not provide evidence of his personal finances, but he did show that his family and friend's resources have been exhausted.
G. Guidance From Other Caselaw
“ ‘[C]ase law is of relatively little value in addressing the ultimate question of the appropriate amount of bail in a particular case’ because appellate decisions on bail matters are often brief and avoid extended discussions, and because the ‘cases are so individualized that generalization from results reached in others is difficult.’ ” Ex parte Beard, 92 S.W.3d 566, 571 (Tex. App.—Austin 2002, pet. ref'd) (citation omitted). Nevertheless, to inform our analysis of whether the trial court acted within its discretion by denying Ramirez-Hernandez's application to reduce his cumulative bail of $1 million, we have reviewed numerous cases concerning charges similar to those in the present case, focusing on cases involving offenses against children.
In Ex parte Flores, 12-21-00079-CR, 2021 WL 3922919, at *1 (Tex. App.—Tyler Sept. 1, 2021, no pet. h.) (mem. op., not designated for publication), Flores was arrested and charged by indictment, on March 3, with aggravated sexual assault of his seventeen-year-old daughter. The trial court originally set his bail at $350,000, but after a hearing, reduced the bond to $175,000 and included additional conditions for protection of the victim and the public. Flores posted bond and was released on March 12. He again was arrested on April 1 and charged with additional charges of sexual performance by a child and indecency with a child. The alleged victims of those charges were his seventeen-year-old daughter and eleven-year-old daughter, respectively. The trial court set bail at $300,000 for the sexual performance charge and $350,000 for the indecency charge or a total bail amount of $650,000. When combined with the previous bond, the total bail amount was $825,000. The trial court denied his bail reduction request, left the bonds intact, and ruled that, if he were to post bond in the future, he must wear an ankle monitor and remain in Sabine County. Id.
On appeal, the court acknowledged the nature of the offenses and the circumstances under which they were allegedly committed supported a higher bail amount. Id. at *3. However, the total of all three bonds was $825,000, which was eleven times higher than what Flores could reasonably provide, which the court concluded constituted “a de facto setting of no bond.” Id. at *4. The State argued that because of the severity of the charges and the nature of the offenses, there was both a risk to the community and victims and a risk of flight. The court agreed these factors supported a higher bail but disagreed they supported a bail in the amount set. Id. at *5. The court noted the new charges had punishment ranges less than the charge for which the court set the lower $175,000.00 bond. The court also noted that, “[w]hile being a legal, permanent resident of the United States may allow [Flores] to go to Mexico without showing a passport,” there was no evidence he intended to travel to Mexico to escape prosecution. Id. Furthermore, he had no past criminal history, had lived in Sabine County for many years, had worked for the same employer for more than twenty-five years where he held a position of responsibility and supervision, his employer described his role with the company as “essential,” he did not believe Flores was a flight risk, and he testified he would ensure Flores appeared for court. Id. The court held, “[t]his constitutes significant ties to the prosecuting county.” Id.
Flores's sister-in-law testified he would stay with her and her family upon release; therefore, he would remain in the area, return to work, and be able to avoid contact with the alleged victims of the cases filed against him. While there was evidence Flores threatened the alleged victims during the occurring time period, there was no evidence he attempted any contact with the victims while incarcerated or while on bond or that the court could not impose bond conditions to protect the victims until trial. The court was “mindful that the filing of these additional very serious charges may give [Flores] a greater incentive to flee, but absent evidence that he is planning on doing so, [the court could not] assume he [would] do so or that bond conditions could not be imposed to reduce any flight risk.” Id.
Although the court agreed there were factors that supported a higher bail amount, the court did not agree these factors supported bail as currently set. Id. Accordingly, the court concluded the trial court abused its discretion in denying Flores's request for reduction of his bail and held the amount of bail was unsupported by the evidence and therefore excessive. Id. at *6. The court remanded the case for further proceedings.
In Ex parte Williams, 12-21-00032-CR, 2021 WL 2816404, at *1 (Tex. App.—Tyler June 30, 2021, no pet.) (mem. op., not designated for publication), Williams was charged with ten counts of indecency with a child and sexual assault of a child. The trial court initially set bail at $100,000 for each violation, a total bail amount of $1,000,000. The grand jury later returned an indictment charging him with eight of the original ten counts. After a hearing at which the State and Williams agreed to a total bail of $100,000 for all the charges with a “no contact order,” the trial court set bail at $75,000 per count or a total bail amount of $600,000. Id. On appeal, Williams asserted the trial court erred by ignoring the agreed request of the State and him that bail be set at a total of $100,000. The court of appeals noted Williams had been in jail several months since his arrest; the bail set was far beyond his means; he apparently had a good work record and no prior criminal history; he had family living in the prosecuting county; and nothing in the record indicated he would not appear as ordered or that his release put the safety of the alleged victim at risk. Id. at *4. The court concluded the trial court abused its discretion in setting bail at $75,000 per count or a total bail amount of $600,000, and reversed and remanded for further proceedings. Id.
In Ex parte Hammond, 10-15-00424-CR, 2016 WL 454971, at *1 (Tex. App.—Waco Feb. 4, 2016, no pet.) (mem. op., not designated for publication), Hammond was charged with two counts of sexual assault of a child and indecency with a child by sexual contact, and his bail was set at $3,500,000. After a hearing, the trial court reduced bail to $1,000,000. On appeal, he requested a further reduction to $200,000. The court of appeals noted Hammond was arrested for sexually assaulting a minor from Arkansas; he posted bond and within the next month, sexually assaulted another minor in Johnson County; and after he posted a $650,000 cash bond, he violated his conditions of bond by contacting his son and trying to contact the Johnson County victim. Id. at *2. Although Hammond had ties to the community, he did not have a steady work history. The testimony showed that, “at the very least, the community and the victim needs protection from Hammond.” Id. Moreover, prior bail in the amount of $650,000 and related conditions of bail were insufficient. The court of appeals held the trial court did not abuse its discretion in failing to reduce bail to $200,000 as requested and in setting bail at $1,000,000. Id.
In Clemons v. State, 220 S.W.3d 176, 177 (Tex. App.—Eastland 2007, no pet.) (per curiam), Clemons was charged with the aggravated sexual assault of two children: his biological daughters ages six and three. He was also charged with indecency with two children: one of his daughters and a seven-year-old who was the daughter of a family friend. His bail was set at $100,000 in each of the indecency cases, at $250,000 in one of aggravated sexual assault cases, and at $150,000 in the other aggravated sexual assault case, for a total of $600,000. Id. After a hearing, the trial court reduced the amounts of bail to $75,000, $75,000, $150,000, and $100,000—respectively—for a total of $400,000. On appeal, the court held the trial court did not act arbitrarily or unreasonably in setting bail in light of Clemons's failure to show any effort on his part to secure a bond, the serious nature of the alleged crimes, the potential for a lengthy sentence, the future safety of the victims (based upon Clemons's expressed desire to flee to Mexico with his wife and daughters), and Clemons's apparent lack of regard for his community ties (as expressed by his desire to flee to Mexico and his thoughts of suicide). Id. at 179.
In Ex parte Smith, No. 09-06-00104-CR, 2006 WL 1511480, at *1 (Tex. App.—Beaumont May 31, 2006, no pet.) (mem. op., not designated for publication), Smith was charged with aggravated sexual assault of a child and indecency with a child. The magistrate set bail at $250,000 in the aggravated sexual assault case and $200,000 in the indecency case. Id. After a hearing, the trial court set bail at $125,000 in the aggravated sexual assault case and $75,000 in the indecency with a child case. Id.
The court of appeals concluded the evidence produced by Smith satisfied his burden to demonstrate the combined bail amounts were excessive. Regarding the nature of the offense and the circumstances under which it was committed, the court acknowledged this factor “naturally has some negative implications against [Smith's] plea for a lower bail amount.” Id. at *6. “However, the record contain[ed] no facts even hinting at the type of sexual contact the complaining witness has alleged [Smith] engaged in under either offense.” Id. The record indicated that at the time of the alleged offenses, the female complainant was approximately eight or nine years of age, Smith was a friend of her family, and both offenses took place on one occasion and were perpetrated on the same complainant. Id. However, the court also concluded Smith's excellent work record, lack of any prior criminal history, lack of evidence of any “aggravating circumstances” involved in the charged offenses, and significant personal and family ties to Liberty County substantially mitigated in his favor. Id. The fact that he lived in another state was attenuated by the fact that he was eighty years old and in poor health and, therefore, not a significant risk for flight from prosecution. Id.
The court found it “[s]ignificant ․ that the State produced no evidence to controvert or rebut [Smith's] evidence.” Id. at *5. The only evidence presented was uncontroverted that any amount above $50,000 would result in a significant hardship for Smith to be able to make bond. “While the $200,000 bail amount would certainly assure [Smith's] appearance, there is no evidence to the contrary that, if released, [he] would not appear as required by the trial court.” Id. The court held, “[b]eing four-times the amount the uncontested evidence indicates [Smith] could hope to accumulate for a bond, the $200,000 amount is violative of article 17.15 as being more of ‘an instrument of oppression.’ ” Id. The court concluded Smith's evidence under factors one, two, and four of article 17.15 favored a significantly lower bail amount. As to the future safety of a victim and the community, there was no evidence that in the nine intervening years between commission of the alleged offenses and the date of the bond-reduction hearing Smith had any contact with the victim or her family in any way, or that he had attempted to contact the victim or her family after the allegations were brought to light. Id. The court of appeals held the bail amounts were excessive and set bail at $50,000 and $25,000. Id. at *7.
“We acknowledge that setting reasonable bail presents trial courts with the difficult task of weighing the specific facts of a case against many, often contravening factors, and often in the face of scant evidence.” Ex parte Everage, 03-17-00879-CR, 2018 WL 1788795, at *9 (Tex. App.—Austin Apr. 13, 2018, no pet.) (mem. op., not designated for publication). “We also recognize that those determinations can turn largely on witness credibility, which trial courts are in the best position to evaluate.” Id. “Accordingly, we reiterate that trial courts should be afforded considerable discretion in making those challenging determinations.” Id.
Although there is no indication the combined $1 million bail amount was used as an instrument of oppression, and the nature of the offense, possible sentence, and concerns Ramirez-Hernandez may be a flight-risk favor a higher bond, we conclude these factors when balanced against the other factors do not warrant a combined $1 million bail amount. And, we again note the record does not indicate why three identical counts warranted two different bond amounts. The total of all three bonds is $1 million, an amount twenty times higher than what Ramirez-Hernandez could reasonably provide, which constitutes a de facto setting of no bond. See Flores, 2021 WL 3922919, at *4 (holding $825,000 total of all three bonds to be eleven times higher than what appellant could reasonably provide constituted a de facto setting of no bond); DePena v. State, 56 S.W.3d 926, 929 (Tex. App.—Corpus Christi 2001, no pet.) (“By setting the bond amount at $1,000,000.00, the trial court set bond four times higher than what appellant could reasonably provide. We conclude that this amount constitutes a de facto setting of no bond.”); see also Ludwig v. State, 812 S.W.2d 323, 325 (Tex. Crim. App. 1991) (per curiam) (bail approaching seven figures is almost never required even in capital cases).2
Therefore, after reviewing the evidence in the light most favorable to the trial court's ruling, considering the factors relevant to a bail determination, examining cases involving comparable offenses, and affording Ramirez-Hernandez the presumption of innocence to which he is constitutionally entitled, we conclude the trial court erred by denying Ramirez-Hernandez's application to reduce his cumulative bail of $1 million. See Everage, 2018 WL 1788795, at *9 (“Were we to affirm the bail amounts in this case, our decision could serve as precedent supporting bail amounts well into the seven- or even eight-figure range in cases with demonstrably more aggravating factors, such as many of the cases described herein.”).
Accordingly, we reverse the trial court's Order Denying Writ of Habeas Corpus and remand for further proceedings consistent with this opinion.
1. The record is not clear about whether Ramirez-Hernandez's two biological children live with him or with someone else in Seguin.
2. In Ludwig, the court of appeals reduced bail from $2 million to $1 million, which the Court of Criminal Appeals determined to be excessive. Ludwig, 812 S.W.2d at 324. Family members testified they were able to obtain, at best, $10,000 towards securing appellant's release. Id. at 324-25. Appellant's sister testified the many bond companies she contacted were asking for a ten percent premium, which means that at best appellant could make a bail amount of $100,000. Id. at 325. “The court of appeals set his bail at ten times that amount, far more than he is able to make, and far more than is sufficient to give reasonable assurance he will appear for trial.” Id. “While it is true that appellant is accused of grave offenses, at least one of which carries the possibility of the death penalty, the circumstances of his crimes were not developed at the habeas hearing.” Id. “In any event, this Court has yet to condone a bail amount even approaching seven figures, even in a capital case.” Id.
Opinion by: Lori I. Valenzuela, Justice
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Docket No: No. 04-21-00340-CR
Decided: January 26, 2022
Court: Court of Appeals of Texas, San Antonio.
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