Affirmed as Reformed and Opinion filed April 2, 2015.




                                       In The

                       Fourteenth Court of Appeals

                                NO. 14-14-00926-CR

                           EX PARTE RIKU MELARTIN

                       On Appeal from the 339th District Court
                               Harris County, Texas
                           Trial Court Cause No. 1444950

                                    OPINION

      The sole question in this case is whether the trial court abused its discretion
by setting bail at the aggregate amount of $7.2 million. Based on the unique facts
and circumstances of the case, we conclude that the trial court’s assessment of bail
is excessive. We reform the trial court’s judgment and set bail at $900,000, per
appellant’s request.

                                  BACKGROUND

      Appellant is currently awaiting trial on nine separate felony charges. In five
of the charges, appellant was indicted for sexually assaulting a child under the age
of seventeen. In the remaining charges, he was indicted for indecency with a child,
compelling prostitution, sexual performance by a child, and tampering with a
witness. Each offense is alleged to have occurred in Harris County between August
and December of 2012.

      The trial court initially set bail at $30,000 on two of the charges and $50,000
on the rest, for a total of $410,000. By July of 2013, appellant had posted bail
bonds in each of his cases.

      Shortly after his release, appellant was cited for violating several conditions
of his supervision. One condition required him to report to supervisors in two
separate offices. Appellant reported to just one supervisor, apparently unaware of
the other responsibility. After the condition was fully explained to him, appellant
was never cited again for a failure to report.

      Appellant was cited on other occasions for violating his curfew, which
required him to be at home between the hours of 10:00 p.m. and 7:00 a.m. In
connection with this condition, appellant was equipped with a GPS monitoring
device. The device reported that, on July 5, 2013, appellant left his home early at
6:39 a.m. On October 2, 2013, he left home two minutes and fifteen seconds too
soon, at 6:57:45 a.m. On November 11, 2013, he arrived home late at 10:05:17
p.m. And finally, on December 3, 2013, he arrived home ten seconds late, at
10:00:10 p.m. On all but the first occasion, the trial court admonished appellant
about following the conditions of his pretrial release.

      Appellant received additional citations for failing to pay certain fees and
failing to charge his GPS device as directed. Frequently, the device was not
holding a full charge, and there were periods in which it was unable to account for
appellant’s location. The durations in which the device was inactive ranged from a
few minutes to a few hours.


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      On January 21, 2014, after a series of alleged charging violations, the trial
court revoked appellant’s bail and ordered him to be held without bond. No
advance notice was ever given, and no hearing was ever held.

      Appellant filed an application for writ of habeas corpus on January 23, 2014,
which the trial court denied that same day. Four days later, the court reconsidered
its decision and reinstated appellant’s bail. The court also permitted appellant to
obtain a new GPS device from a different vendor, following appellant’s complaints
that his original device was defective.

      Appellant complied with the conditions of his supervision for nearly five
more months, until June 17, 2014, when he was arrested in Galveston County for
driving while intoxicated. There, he was also indicted for offering a bribe to his
arresting officer.

      Appellant returned to Harris County on June 20, 2014, where he reported to
his bond officer that he had been arrested in Galveston County. Appellant did not
advise the trial court of his arrest, even though he had appeared in court earlier that
day. On June 23, 2014, the State moved to deny bail in the Harris County cases
because appellant had been charged with a felony while out on bond for a different
felony. The trial court summarily granted the motion that same day, without ever
conducting a hearing.

      Appellant filed another application for writ of habeas corpus, complaining
again that the trial court had unreasonably held him without bail. A hearing was
held, and the State presented its evidence first. A supervision officer opined that
appellant could not behave himself, based on his recent charges in Galveston
County. The officer testified about appellant’s previous bail violations, but she
acknowledged that these violations had not been major. The officer explained that
some curfew violations could have been attributed to the defective GPS device.
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The officer also recognized that appellant was subject to many conditions with
which he had “absolutely” complied.

      Appellant did not testify at the writ hearing, but he called three supporting
witnesses. The first witness was the operator of an alcoholic treatment center, who
testified that he was ready and able to immediately accept appellant into his facility
should the trial court authorize appellant’s release. The second witness was
appellant’s bail bondsman, who testified that appellant had a good reputation for
following the rules and making timely and regular reports. The last witness was
appellant’s close friend and civil attorney, who said that he was prepared to deposit
$25,000 in cash to the registry of the court if that were required to ensure
appellant’s release on bond.

      Appellant requested that the trial court reinstate his bail or set bail at a
reasonable amount. The State argued that appellant had flagrantly disregarded the
court’s orders and that bail should be increased to $1 million in each case. The trial
court granted the application for writ of habeas corpus, but in its order, the court
set bail in each of the nine cases from Harris County at $800,000, for an aggregate
amount of $7.2 million.

                                    ANALYSIS

I.    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



                                          4
reasonable disagreement. See Ex parte Castillo-Lorente, 420 S.W.3d 884, 887
(Tex. App.—Houston [14th Dist.] 2014, no pet.).

      Under Texas law, once a defendant has been given bail, “he shall not be
required to give another bond in the course of the same criminal action.” See Tex.
Code Crim. Proc. art. 17.09, § 2. There is one exception to this rule. Upon a
showing of “good and sufficient cause,” the trial court may increase the
defendant’s bail and require him to give another bond. Id. art. 17.09, § 3.

      We consider whether good and sufficient cause was shown in conjunction
with several rules and factors that generally govern the reasonableness of bail.
First, Article 17.15 of the Code of Criminal Procedure imposes the following rules:

      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.

      5.     The future safety of a victim of the alleged offense and the
             community shall be considered.
Tex. Code Crim. Proc. art. 17.15.

      In addition to these rules, case law provides that courts may consider the
following set of factors: (1) the defendant’s work record; (2) the defendant’s
family and community ties; (3) the defendant’s length of residency; (4) the
defendant’s prior criminal record; (5) the defendant’s conformity with previous
bond conditions; (6) the existence of other outstanding bonds, if any; (7) the
aggravating circumstances alleged to have been involved in the charged offense;
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and (8) whether the defendant is a citizen of the United States. See Ex parte
Rodriguez, 595 S.W.2d 549, 550 n.2 (Tex. Crim. App. [Panel Op.] 1980); Ex parte
Castellanos, 420 S.W.3d 878, 882 (Tex. App.—Houston [14th Dist.] 2014, no
pet.).

II.      Nature and Circumstances of the Alleged Offenses
         When assessing the reasonableness of bail, the Court of Criminal Appeals
has instructed that the “primary factors” are the punishments that can be imposed
and the nature of the offenses. See Rubac, 611 S.W.2d at 849. In this case,
appellant has been accused of committing nine felonies of varying degrees. There
is one first-degree felony charge for compelling prostitution. See Tex. Penal Code
§ 43.05(b). There are seven second-degree felony charges: five are for sexual
assault of a child, id. § 22.011(f); one is for indecency with a child, id. § 21.11(d);
and one is for tampering with a witness, id. § 36.05(d). Finally, there is one third-
degree felony charge for sexual performance by a child. Id. § 43.25(e).

         If convicted, appellant would face lengthy prison sentences. First-degree
felonies are punishable between five and ninety-nine years’ or life imprisonment.
Id. § 12.32. Second-degree felonies are punishable between two and twenty years’
imprisonment. Id. § 12.33. Third-degree felonies are punishable between two and
ten years’ imprisonment. Id. § 12.34. And for each offense, the trial court could
assess a fine of up to $10,000. The court could also cumulate, or “stack,” the
sentences for sexual assault and indecency with a child, which would greatly
extend appellant’s incarceration. Id. § 3.03(b)(2).

         Appellant incorrectly asserts that he would be eligible for community
supervision in all nine of his cases. Under the law that was applicable at the time of
the alleged offenses, a jury could not recommend community supervision if
appellant was convicted of sexual performance by a child. See Tex. Code Crim.

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Proc. art. 42.12, § 4(d)(7) (West 2012). Likewise, if appellant elected for the court
to assess punishment, the judge could not grant community supervision in any of
the charged offenses, except for tampering with a witness. Id. § 3g(a)(1)(C), (H),
(J), (L).

       The criminal allegations against appellant are just as serious as the penal
consequences of conviction. The charging instruments allege that appellant
sexually abused two teenage girls. As to one of the girls, there are no specific
allegations regarding the circumstances of her abuse beyond the bare language of
the indictments. However, as to the other girl, the case files contain a supporting
affidavit, which was attached to the complaint, reflecting that the abuse happened
near closing time at appellant’s place of business. The girl was in the office waiting
on her mother, who had a cleaning contract with the business. Appellant allegedly
fondled the girl’s breasts, masturbated in front of her, and had sexual intercourse
with her. He also allegedly paid the girl $500, and he offered to confer a benefit to
the girl’s family in exchange for withholding testimony.

       Appellant is entitled to a presumption of innocence on all of these charges.
When setting bail, the trial court must strike a balance between this presumption
and the State’s interest in assuring that appellant will appear for trial. Because the
charges and their consequences in the event of conviction are so serious, the trial
court could have reasonably determined that bail should be set at a high amount.

       However, the trial court’s original assessment of bail was already quite high.
The guidelines in Harris County recommend a bail of $30,000 for “any 3g
offense.” See Bail Bond Schedule, https://www.justex.net/BailBondSchedule.aspx
(referring to offenses enumerated under Article 42.12, Section 3g of the Texas
Code of Criminal Procedure). The only higher amounts on the guidelines are listed
for situations that do not apply here, such as when the defendant is charged with

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murder, is undocumented, or has a history of deportation. Id. Appellant’s original
bail amounts exceeded these guidelines, though not by much.

       Neither side presented any new evidence during the writ hearing regarding
the nature and circumstances of the charged offenses. When viewed alone, this
factor would not support the trial court’s decision to increase bail to $800,000 in
each case.

III.   Sufficient Bail to Assure Appearance

       The next factor addresses whether the defendant is a flight risk. Here, the
record suggests that appellant is not a citizen of this country. He has an
immigration attorney who, in April of 2013, applied for the renewal of appellant’s
visa. There is no indication that appellant has naturalized since then.

       The record of the writ hearing does not affirmatively show appellant’s
country of origin. On the day of oral argument, appellant supplemented the record
with the transcript from an earlier bond hearing, and in that record, the evidence
established that appellant is a citizen of Finland. The State contends that appellant
may have citizenship in another country as well, possibly one that has no
extradition treaty with the United States. However, no evidence was ever presented
on this point.

       The record shows that appellant has surrendered his passport, which greatly
limits his ability to travel. The record also shows that appellant did not attempt to
flee the jurisdiction when he was previously released on bond. When his GPS
device was functioning properly, his location was monitored and he was never
shown to venture outside the geographic limitations of the trial court’s bail order.

       A supervision officer testified that appellant attended every one of his
pretrial appearances. Appellant’s bail bondsman also testified that appellant

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regularly reported to him, both in person and over the phone. This uncontroverted
evidence would not support a finding that appellant presents an unusual flight risk.
Accordingly, this factor would also weigh against an increase in bail. See Ex parte
King, 613 S.W.2d 503, 504 (Tex. Crim. App. 1981) (holding that a continuance
does not warrant an increase in bail, especially where the record also shows that
the defendant has been present at every pretrial appearance); Ex parte Beard, 92
S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref’d) (rejecting the suggestion
that the defendant was a flight risk after noting that the defendant did not flee the
jurisdiction despite having the opportunity to do so); see also Ex parte Durst, 148
S.W.3d 496, 498 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (concluding that
bail may be set at a high amount—just $450,000 in that case—where the defendant
jumped bail, disguised himself, fled the jurisdiction, and mentioned that he had
great sums of money secreted in a non-extradition country).

IV.   Future Safety of the Victims and the Community

      As a condition of bail, the trial court entered an order prohibiting appellant
from contacting the two girls whom he allegedly abused, including their families.
To further protect the community, the court also ordered that appellant abide by a
curfew, participate in electronic monitoring, and abstain from alcohol.

      There is no evidence that appellant has ever attempted to contact the two
girls or their families while he was out on bond. Thus, an increase in bail cannot be
justified by a perceived danger to the victims or their families.

      The State did produce evidence of other violations. The State showed, for
instance, that appellant broke his curfew on at least four occasions. However, the
State’s own witness testified that these violations were not major. Indeed, under
this court’s own precedent, those violations could not justify an increase in bail.
See Meador v. State, 780 S.W.2d 836, 836–37 (Tex. App.—Houston [14th Dist.]
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1989, no pet.) (reversing an increase in bail after concluding that the defendant’s
three- or five-minute tardiness did not constitute good and sufficient cause).

      The State’s witness also observed that the alleged curfew violations may
have been attributed to a defective GPS device. Even if the curfew violations had
been accurately reported, there is no evidence that appellant posed a threat to the
community during the times of the violations. Similarly, there is no evidence that
appellant broke his curfew or failed to adhere to the rules of electronic monitoring
since he received a new GPS device.

      The State emphasizes that appellant received a misdemeanor charge for
driving while intoxicated. Without question, drunk driving does endanger the
community at large, and the State has a valid interest in preventing such dangers.
We must be mindful, however, that appellant has not yet been convicted of that
offense, and it is possible that the trial court in Galveston County has already
calculated such risks in its assessment of bail. Furthermore, the record reflects that
bail is often set at just $500 for a first-time DWI offender. There is no evidence
that appellant has a history of drunk driving convictions, or any convictions for
that matter.

      Appellant elicited testimony that an alcoholic treatment center was available
to him should he be released on bond. Appellant would have been admitted to the
center as an in-patient, and his treatment would have lasted between thirty and
ninety days. The center does not lock its doors, but appellant’s attendance could
have been assured through GPS monitoring, a condition that appellant is capable of
complying with. Altogether, the evidence supports a finding that a moderate
increase in bail, at most, would be sufficient to protect the interests of the
community.



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V.      Instrument of Oppression

        The State has cited to only a single case where bail in excess of one million
dollars has been affirmed on appeal. See Maldonado v. State, 999 S.W.2d 91, 97
(Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). But that case is easily
distinguishable on its facts. There, the defendant was arrested with a substantial
amount of cocaine in his possession, having a street value of more than $72
million. Id.   at 94. Testimony from the defendant’s friends and families also
demonstrated that the defendant had very little ties to Texas and that he may in fact
flee the jurisdiction if released on bond. Id. Our record, by contrast, has no
evidence of aggravating circumstances or a suggestion that appellant is a flight
risk.

        Far more numerous are the cases in which appellate courts have disapproved
of high bail amounts. E.g., Ludwig v. State, 812 S.W.2d 323, 325 (Tex. Crim. App.
1991) (per curiam) ($2 million bail reduced to $50,000); Ex parte Estrada, 398
S.W.3d 723, 728 (Tex. App.—San Antonio 2008, no pet.) ($1 million bail reduced
to $600,000); Durst, 148 S.W.3d at 501 ($3 billion bail reduced to $450,000);
Beard, 92 S.W.3d at 574 ($8 million bail reduced to $500,000); Ex parte Milburn,
8 S.W.3d 422, 427 (Tex. App.—Amarillo 1999, no pet.) ($2 million bail reduced
to $100,000); Ex parte McDonald, 852 S.W.2d 730, 736 (Tex. App.—San Antonio
1993, no pet.) ($1 million bail reduced to $75,000). The reason for the dichotomy
should be obvious. Very few people can post a bond that approaches seven figures.
Many bondsmen cannot even approve such amounts. See Ex parte Miller, 442
S.W.3d 478, 481 (Tex. App.—Dallas 2013, no pet.).

        When bail is set so high that a person cannot realistically pay it—and an
aggregate amount of $7.2 million would certainly qualify under that standard—the
trial court essentially “displaces the presumption of innocence and replaces it with

                                          11
a guaranteed trial appearance.” See Ex parte Bogia, 56 S.W.3d 835, 840 (Tex.
App.—Houston [1st Dist.] 2001, no pet.). That is clearly not the function of bail.
See Tex. Code Crim. Proc. art. 17.15(1) (providing that bail should be high enough
to give just “reasonable assurance” that the defendant will appear at trial); see also
Ex parte Benefield, 403 S.W.3d 240, 241 (Tex. Crim. App. 2013) (Cochran, J.,
concurring) (noting that bail should not be used to keep a person “off the streets,”
or worse, to coerce a plea).

      The time spent in jail awaiting trial is not insignificant. It often means the
loss of a job, and the disruption of family life. See Barker v. Wingo, 407 U.S. 514,
532 (1972). It hinders the person’s ability to gather evidence, contact witnesses, or
otherwise prepare for a defense. Id. at 533. And all the while, the person is “living
under a cloud of anxiety, suspicion, and often hostility.” Id.

      At the end of the writ hearing, the State argued that appellant “made a fool
out of this Court and you,” speaking to the trial judge, “and he spit in your face and
gave you the finger.” The State’s argument was pure hyperbole. No fair reading of
the record can support a literal understanding of such claims. Yet the trial judge
appeared to embrace the State’s implicit suggestion that appellant should be
punished for his behavior. The judge explained that she was increasing bail
because appellant “has shown no respect for this Court.” This reasoning runs afoul
of the rule that bail is not to be increased as a means of “sanctioning” the accused.
See Pharris v. State, 165 S.W.3d 681, 691 (Tex. Crim. App. 2005).

      The trial court’s increase was dramatic—more than 1600%. Considering the
high amount that was set, coupled with the undertones of punitive action, the bail
in this case appears to have been used as an instrument of oppression.




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VI.    Other Factors

       Our limited record does not reveal much by way of the other factors. We
know that appellant was able to post bonds totaling $410,000. If bail were
increased, appellant’s bail bondsman testified that he would waive a portion of his
fee and give appellant credit for the bonds that have already been written.
However, neither side presented evidence that appellant possessed the financial
resources for posting additional bonds totaling $7.2 million (or $9 million, which
the State had actually requested).

       The record shows that appellant worked at a car dealership. He has a wife
and children. It is unclear for how long appellant has lived in the United States, but
appellant’s civil attorney testified that they have been friends “for about ten years.”

       We are not aware of any authority for factoring the presence of exculpatory
evidence, but we do note that the State’s Brady disclosures have revealed that
appellant is excluded as a DNA contributor in at least one of the alleged assault
cases. Altogether, these other factors would caution against a significant increase
in bail.

VII. Abuse of Discretion

       Having considered all of the pertinent factors, we are not persuaded that
good and sufficient cause has been shown for increasing appellant’s bail to an
aggregate amount of $7.2 million. Even though appellant faces serious charges, the
record demonstrates that he is not an unusual flight risk, and there is no evidence
that the alleged victims or their families would be imperiled if appellant were re-
released on bond. At most, the State established that a moderate increase in bail
may be justified, given the concern that appellant’s drunk driving incident



                                          13
suggested a possible risk to the community. The trial court abused its discretion by
increasing appellant’s bail in excess of that consideration.

                                  CONCLUSION

      Appellant requests that we reinstate his original bail, or in the alternative, set
bail in each of his nine cases at $100,000. Appellant explained during oral
argument that bail is sometimes doubled when a defendant is charged with a new
offense while out on bond.

      We grant the alternative relief and reform the trial court’s judgment to
reflect that bail is set at $100,000 in each of appellant’s nine cases, for an
aggregate amount of $900,000. Appellant’s conditions of release, as stated in the
trial court’s pretrial supervision order, remain unchanged and continue to be
effective until disposition of the case. We affirm the trial court’s judgment as
reformed.

      We further direct the clerk of this court to issue the mandate immediately.
See Tex. R. App. P. 18.6; Ex parte Bowles, 166 Tex. Crim. 425, 427, 314 S.W.2d
598, 600 (1958) (reversing a judgment denying bail and issuing the mandate
immediately).




                                        /s/    Tracy Christopher
                                               Justice



Panel consists of Justices Christopher, Donovan, and Wise.
Publish — Tex. R. App. P. 47.2(b).




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