                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-13-00421-CR


EX PARTE JUAN MANUEL PICENO




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         FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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                       MEMORANDUM OPINION 1

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                                  Introduction

     This is an accelerated appeal from an order denying relief on a pretrial writ

of habeas corpus, through which Appellant Juan Manuel Piceno sought to have

his bail reduced from $500,000. 2 We reverse and remand.




     1
      See Tex. R. App. P. 47.4.
                                      Facts

      Appellant’s criminal history included adjudications as a juvenile for

terroristic threat 3 and two burglaries of a habitation. As an adult, Appellant was

convicted in 2010 for possessing marihuana and evading arrest or detention.

The next year, he was arrested for another burglary of a habitation but pled guilty

to a reduced charge of Class A misdemeanor theft.

      Appellant was nineteen years old when, on July 6, 2012, a fifteen-year-old

girl told authorities that she had engaged in sexual contact and sexual

intercourse with him the previous morning. When he was questioned in March

2013 about the allegations, Appellant denied having had sexual contact or

intercourse with the girl. Laboratory testing of DNA samples collected during the

girl’s sexual-assault examination, however, linked Appellant to the offense.




      2
       We have jurisdiction over this appeal because it is an appeal from an
order denying habeas relief and not an interlocutory appeal from an order setting
bail. Compare Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim. App. 2014)
(holding that courts of appeals lack jurisdiction to consider interlocutory appeals
from pretrial orders denying motions for bail reduction), with Ex parte Gray, 564
S.W.2d 713, 714 (Tex. Crim. App. [Panel Op.] 1978) (“The proper method for
challenging the denial or excessiveness of bail, whether prior to trial or after
conviction, is by habeas corpus.”); see Ex parte Okere, 56 S.W.3d 846, 850–51
(Tex. App.––Fort Worth 2001, pet. ref’d) (holding that the court had jurisdiction
over appeal of denial of habeas application when the trial court considered and
resolved the merits of the application).
      3
        Appellant’s criminal history, admitted at the writ hearing without objection
as State’s Exhibit 8, indicates that this terroristic threat was reduced from an
original charge of aggravated assault with a deadly weapon.


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Based on the girl’s report and the DNA results, Appellant was finally arrested for

sexual assault of a child sometime toward the end of July 2013.

      Before his arrest on that charge, Appellant was arrested in January 2013

for possessing marihuana and tampering with evidence, and he was released on

a $25,000 bond. That summer, while still on bond and before his arrest for the

sexual assault, Appellant was arrested again for another burglary, which was

alleged to have been committed in January 2013; for possession of marihuana,

alleged to have been committed in June 2013; and for state-jail-felony

possession of a controlled substance, alleged to have been committed in July

2013. Again, the trial court released Appellant on bond for each of these cases.

      When Appellant was arrested on the sexual-assault-of-a-child charge in

late July 2013, the trial court set his bail at $500,000, and Appellant sought relief

on habeas corpus.

       At the time of the hearing on the writ, Appellant had been in jail on the

sexual-assault-of-a-child case for forty-five days but had still not been formally

charged on the burglary or drug cases for which he had been arrested and

released earlier.

      Appellant testified at the writ hearing that he could not make the $500,000

bail but thought that with help from his family he could come up with enough if

the trial court lowered the bail to $10,000. He testified that a bail bondsman had

told him he would need $50,000 to post a $500,000 bond but that he thought

$300 to $400 would cover a $10,000 bond.


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      Appellant also testified that he had lived in Wichita Falls for all his twenty

years, the last ten of which at the same address with his parents, sister, and

brother-in-law. He said that his sister had helped transport him to and from all

his court dates and that he had never missed one. Appellant further testified that

he had other arrests for other offenses but that he had surrendered himself upon

learning that he had warrants out for his arrest.

      Appellant had no assets and was currently unemployed but believed that

Whataburger or McDonald’s would hire him because he had worked for those

businesses in the past.

      In refusing to lower the bail, the trial court judge stated that he had taken

“into account the nature of the alleged offense and the other matters contained in

the criminal record and the convictions” and found “it to be in the best interest of

the community and of the safety of the community to deny the application for Writ

of Habeas Corpus and the bond shall remain where it is at the [$]500,000.”

                               Standard of Review

      Setting bail is committed to the sound discretion of the trial court, but the

exercise of that discretion is governed by law. See U.S. Const. amend. VIII; Tex.

Const. art. I, § 13; Tex. Code Crim. Proc. Ann. art. 17.15 (West 2005). In setting

bail, the trial court must strike a balance between the defendant’s presumption of

innocence and the State’s interest in assuring the defendant’s appearance at

trial. Ex parte Beard, 92 S.W.3d 566, 573 (Tex. App.––Austin 2002, pet. ref’d).

Both the federal and state constitutions prohibit excessive bail. See U.S. Const.


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amend. VIII; Tex. Const. art. I, § 13. Bail is excessive if it is “set in an amount

greater than is reasonably necessary to satisfy the government’s legitimate

interests.” Beard, 92 S.W.3d at 573. In addition to the constitutional prohibition

against excessive bail, the Texas Legislature has imposed the following statutory

requirements:

      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. Ann. art. 17.15.

      In setting the amount of bail, the trial court may also give consideration to

such factors as (1) the accused’s work record, (2) his family and community ties,

(3) length of residency, (4) prior criminal record, (5) conformity with previous

bond conditions, (6) the existence of any other bonds outstanding, and (7)

aggravating circumstances alleged to have been involved in the charged offense.

See Maldonado v. State, 999 S.W.2d 91, 93 (Tex. App.––Houston [14th Dist.]

1999, pet. ref’d) (citing Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim.

App. [Panel Op.] 1981)).



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      We review the trial court’s ruling on a request to reduce bail under an

abuse-of-discretion standard. See Rubac, 611 S.W.2d at 850; Clemons v. State,

220 S.W.3d 176, 178 (Tex. App.––Eastland 2007, no pet.). To determine

whether the trial court abused its discretion, we must decide whether the trial

court acted without reference to any guiding rules or principles; in other words,

whether the act was arbitrary or unreasonable. Ex parte Hunt, 138 S.W.3d 503,

505 (Tex. App.––Fort Worth 2004, pet. ref’d) (citing Montgomery v. State, 810

S.W.2d 372, 380 (Tex. Crim. App. 1990)). We must not disturb the trial court’s

ruling if it was within the zone of reasonable disagreement.      Clemons, 220

S.W.3d at 178.

                                   Analysis

Statutory factors

Sufficient bail to assure appearance but not oppress

      The first two statutory factors are interrelated. The primary purpose of an

appearance bond is to secure the presence of the accused at trial on the offense

charged. Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. 1980).

Thus, the amount of bail must be high enough to give reasonable assurance that

the accused will appear as required. Ex parte Charlesworth, 600 S.W.2d 316,

317 (Tex. Crim. App. 1980). However, while bail should be sufficiently high to

give reasonable assurance that the accused will appear, the power to require bail

should not be used as an instrument of oppression. Ex parte Ivey, 594 S.W.2d

98, 99 (Tex. Crim. App. 1980). This occurs when the trial court sets bail at an


                                       6
amount “for the express purpose of forcing appellant to remain incarcerated”

pending trial or appeal. See Ex parte Harris, 733 S.W.2d 712, 714 (Tex. App.––

Austin 1987, no pet.).

      There are several older cases involving different offenses in which the

reviewing courts reduced the bail amounts after finding that the trial courts’ bail

amounts were excessive. See, e.g., Ludwig v. State, 812 S.W.2d 323, 325 (Tex.

Crim. App. 1991) (reducing bail amount in a murder case from $1,000,000 to

$50,000); Ivey, 594 S.W.2d at 100 (aggravated robbery, reducing bail amount

from $250,000 to $50,000); Ex parte Vasquez, 558 S.W.2d 477, 480 (Tex. Crim.

App. 1977) (capital murder, reducing bail from $100,000 to $20,000); Ex parte

Bufkin, 553 S.W.2d 116, 118 (Tex. Crim. App. 1977) (conspiracy to commit

capital murder, reducing bail from $150,000 to $15,000); Smithwick v. State, 880

S.W.2d 510, 512 (Tex. App.––San Antonio 1994, no pet.) (murder and injury to

child, reducing bail from $500,000 to $100,000); Ex parte McDonald, 852 S.W.2d

730, 735–36 (Tex. App.––San Antonio 1993, no pet.) (capital murder case,

reducing bail from $1,000,000 to $75,000). As commentators as well as one of

our sister courts have observed, however,

      ‘Case 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.’




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Beard, 92 S.W.3d at 571 (citing 41 George E. Dix & Robert O. Dawson, Texas

Practice: Criminal Practice and Procedure § 16.51 (2d ed. 2001)). We note that

in none of these cases––a number of which involve murder––was any amount

upheld that was as high as in the instant case.

Nature of offense

      The third factor under article 17.15 is the nature of the offense for which

the defendant is charged and the circumstances under which it was committed.

Tex. Code Crim. Proc. Ann. art. 17.15.       Appellant is accused of committing

sexual assault of a child against a fifteen-year old when he was nineteen years

old. The probable-cause affidavit supporting the warrant for Appellant’s arrest is

in the record. It describes the allegations against Appellant, including that he

denied having sexual contact or intercourse with the underaged complainant but

that his denials were contradicted by DNA evidence collected after the

complainant underwent a rape exam.          There were no aggravating factors

alleged, such as use of threats or force or use or display of a deadly weapon;

still, the record reflects that the nature of the offense and the alleged

circumstances surrounding its commission are serious.

      When reviewing the appropriate bail for a particular offense, appellate

courts often compare bail amounts in other cases involving offenses of the same

degree. This is because such offenses carry the same punishment range, which

is a proper consideration in determining the nature of the offense charged. See




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Charlesworth, 600 S.W.2d at 317; Vasquez, 558 S.W.2d at 480; Maldonado, 999

S.W.2d at 95.

      Appellant stands charged for sexual assault of a child. As alleged, the

offense is a second-degree felony. See Tex. Penal Code Ann. § 22.011(a)(2), (f)

(West 2011). The punishment for a second-degree felony is imprisonment for two

to twenty years, plus a fine not to exceed $10,000. Id. § 12.33.

      In 2011, one of our sister courts noted that it had previously approved bail

amounts ranging from $100,000 to $600,000 for first-degree-felony offenses and

amounts ranging from $30,000 to $75,000 for second-degree felonies. Ex parte

Tata, 358 S.W.3d 392, 399 n.6 (Tex. App.––Houston [1st Dist.] 2011, pet.

dism’d). Cases from our sister courts are generally consistent within this range.

See, e.g., Ex parte Garcia, 100 S.W.3d 243, 245 (Tex. App.––San Antonio 2001,

no pet.) ($50,000 for indecency with a child); Briones v. State, 76 S.W.3d 591,

592 (Tex. App.––Corpus Christi 2002, no pet.) ($75,000 for possession of 950

pounds of marihuana); Ex parte Sabur-Smith, 73 S.W.3d 436, 437 (Tex. App.––

Houston [1st Dist.] 2002, no pet.) (reducing bail from $150,000 to $30,000 for

sexual assault); Ex parte Bogia, 56 S.W.3d 835, 836 (Tex. App.––Houston [1st

Dist.] 2001, no pet.) (reversing and reducing bail from $360,000 to $10,000 for

second-degree-felony theft); Esquivel v. State, 922 S.W.2d 601, 602 (Tex. App.–

–San Antonio 1996, no pet.) (affirming $150,000 bond on fifteen counts of sexual

assault, indecency with a child, and prohibited sexual conduct); Ex parte Bell,

784 S.W.2d 577, 579 (Tex. App.––Houston [1st Dist.] 1990, pet. ref’d, untimely


                                         9
filed) (reducing $50,000 bond to $10,000 for burglary of a habitation with intent to

commit sexual assault).

      As previously noted, the bail assessed in this case is above or within the

range of bail amounts approved for first-degree felonies. See, e.g., Ex parte

Carson, 215 S.W.3d 921, 924 (Tex. App.––Texarkana 2007, no pet.) (setting bail

at $1,000 in case involving first-degree-felony drug possession); Gonzalez v.

State, 996 S.W.2d 350, 353 (Tex. App.––Houston [14th Dist.] 1999, no pet.)

(approving $90,000 bail set in aggravated robbery case); Pharris v. State, No.

14–06–00788–CR, 2006 WL 3313323, at *1, *2 (Tex. App.––Houston [14th Dist.]

Nov. 16, 2006, pet. ref’d) (mem. op., not designated for publication) (approving

$500,000 bail set in case involving first-degree-felony theft); Tran v. State, No.

01–06–00035–CR, 2006 WL 1771815, at *1, *5 (Tex. App.––Houston [1st Dist.]

June 29, 2006, no pet.) (mem. op., not designated for publication) (approving

$800,000 bail set for possession with intent to deliver over twenty kilograms of

cocaine and $500,000 for possession of approximately 600 pounds of

marihuana); Ex parte Cuevas, No. 11–03–00402–CR, 2004 WL 527960, at *1, *5

(Tex. App.––Eastland Mar. 18, 2004, no pet.) (not designated for publication)

(approving $1,000,000 set in organized-crime-theft case).

Ability to make bail

      The ability of an accused to post bail is a factor to be considered, but the

inability to make the bail set by the trial court does not automatically render the

bail excessive. See Ex parte Vance, 608 S.W.2d 681, 683 (Tex. Crim. App.


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1980); Sabur–Smith, 73 S.W.3d at 440. This is true even if the accused is

indigent. Charlesworth, 600 S.W.2d at 317. If the ability to make bail in a

specified amount controlled, the role of the trial court in setting bail would be

unnecessary, and the accused would be able to set his own bail. Hunt, 138

S.W.3d at 506.

      Appellant presented some evidence that he could not afford to post bail.

He testified that he had no assets and no job and that the bond company wanted

him to put up $50,000 but that “there’s no way” he could post that amount. He

also testified that if the bail were lowered to $10,000, the bond company would

expect him to put up three to four hundred dollars and that he thought he would

be able to raise enough to do that. Based on the evidence in the record, the

$500,000 bail set by the trial court is clearly above the financial resources

available to Appellant to make bail. See Sabur–Smith, 73 S.W.3d at 440.

Future safety of the victim and the community

      The final statutory factor examines the safety of the victim and the

community if the defendant were to be released on bail. See Tex. Code Crim.

Proc. Ann. art. 17.15(5). In this case, it appears that the complainant reported to

authorities that she and Appellant had engaged in sexual contact and intercourse

on a summer night when she was under seventeen years of age. Appellant

denied the allegations, but the DNA evidence went against him. There is no

evidence of any aggravating factors to suggest that Appellant presents any

danger to the complainant, and apart from Appellant’s criminal history, discussed


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below, there is little, if any, evidence that he poses a threat to the safety of the

community if allowed to make bail.

Other factors

         There is evidence in the record about Appellant’s family, work record,

length of residency, and other ties to the area. He testified that he has no house

or real property but that he has lived all his life in Wichita Falls and that he has

lived with his parents, sister and brother-in-law in the same house for the past ten

years.     There is evidence that he had worked at a Mexican restaurant, a

Whataburger and McDonald’s and thought he could reacquire employment at

one of those establishments, but there was no showing how long he had ever

held a job.

         The most troubling aspect of this case is that for such a young man,

Appellant has a significant criminal history, including charges that were still

pending at the time of the hearing on his writ. He has prior adjudications as a

juvenile for burglary of a habitation and, in fact, as an adult has been arrested

more than once since those adjudications on similar charges. He has multiple

arrests and some convictions for drug offenses and apparently continues to

attract the attention of law enforcement when he is out on bond by continuing to

commit drug-related offenses. Given his criminal history and evidence that he

continues to commit offenses after being convicted for others and while on bond,

it would not be outside the zone of reasonable disagreement for the trial court to

set a fairly high bail and to impose conditions designed to inhibit further criminal


                                        12
activity while Appellant is out on bond. However, we cannot hold that a bail set

at $500,000 is reasonable.

                                    Conclusion

      On the above record, although some factors weigh in favor of setting a bail

higher than would be set for a simple second-degree felony charge absent any

criminal history, there is nothing in the record to support the half-a-million-dollar

bail set in this case, which is far outside the range Texas courts have approved

for second-degree felonies. We hold that the trial court abused its discretion by

denying Appellant’s request to reduce bail from $500,000. See Ex Parte Brooks,

376 S.W.3d 222, 223–24 (Tex. App.—Fort Worth 2012, pet. ref’d).

      Accordingly, we reverse the trial court’s order denying habeas relief and

remand this case to the trial court to set a reasonable bail; to determine what

conditions, if any, to impose; and to allow both the State and Appellant the

opportunity to present any additional evidence or argument that the trial court

deems appropriate to assist it in determining reasonable bail and conditions, if

any. Tex. R. App. P. 43.6; see Brooks, 376 S.W.3d at 223–24.


                                                    /s/ Anne Gardner
                                                    ANNE GARDNER
                                                    JUSTICE

PANEL: GARDNER, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 12, 2014


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