                   In the
              Court of Appeals
      Second Appellate District of Texas
               at Fort Worth
            ___________________________

                 No. 02-18-00417-CR
            ___________________________

EX PARTE GABRIEL DELGADO A/K/A GABRIEL DELGATO




         On Appeal from the 396th District Court
                Tarrant County, Texas
              Trial Court No. 1540765D


         Before Gabriel, Kerr, and Birdwell, JJ.
        Memorandum Opinion by Justice Birdwell
                           MEMORANDUM OPINION

      Gabriel Delgado1 appeals the trial court’s order denying his pretrial application

for writ of habeas corpus seeking a bail reduction. After submitting the matter

without briefing, we affirm. See Tex. R. App. P. 31.1.

                                     Background

      A grand jury indicted appellant for murder. The indictment contained a

habitual offender paragraph alleging that appellant has a prior conviction for murder

and a prior conviction for assault on a public servant in retaliation for performing an

official duty. The trial court issued an arrest warrant, appellant was taken into custody,

and the trial court appointed appellant an attorney. The trial court set appellant’s bond

at $500,000.

      Appellant then retained an attorney, who filed an Application for Writ of

Habeas Corpus Seeking Bail Reduction. After an evidentiary hearing, the trial court

found that the bond amount was not excessive “due to the nature of the offense and

[appellant’s] criminal history” and denied relief. Appellant then filed this expedited

appeal. See Tex. R. App. P. 31.2.

                      Applicable Law and Standard of Review

      The primary purpose of an appearance bond is to secure the accused’s presence

at trial on the offense charged. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim.

      1
       Appellant’s last name is alternately spelled Delgado and Delgato in the record.
He signed his certification of the right to appeal with “Delgado.”


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App. 1977); Ex parte Hunt, 138 S.W.3d 503, 505 (Tex. App.––Fort Worth 2004, pets.

ref’d). Thus, a trial court should set bail high enough to reasonably assure that the

defendant will appear at trial, but not so high that it operates as an instrument of

oppression. Tex. Code Crim. Proc. Ann. art. 17.15 (West 2015); Hunt, 138 S.W.3d at

505. Federal and state law both prohibit the imposition of excessive bail. See U.S.

Const. amend. VIII; Tex. Const. art. I, § 13. In a habeas proceeding, the accused bears

the burden of proof to show that the bail is excessive. Id. at 505–06.

      In determining a bond amount, the trial court should consider factors such as

the accused’s ability to make bail, work record, family ties, length of residency, prior

criminal record, and conformity with the conditions of any previous bond. Tex. Code

Crim. Proc. Ann. art. 17.15; Hunt, 138 S.W.3d at 506. The trial court should also

consider the existence of outstanding bonds; any aggravating circumstances alleged to

have been involved in the charged offense; the nature of the crime, circumstances

under which it was committed, and the accused’s potential sentence; and the future

safety of a victim of the alleged offense and the community. Tex. Code Crim. Proc.

Ann. art. 17.15; Hunt, 138 S.W.3d at 506.

      We review a trial court’s ruling on a pretrial writ of habeas corpus for an abuse

of discretion. Ex parte Gill, 413 S.W.3d 425, 428 (Tex. Crim. App. 2013).

                      Facts Adduced At Evidentiary Hearing

      Appellant’s long-time friend Tammie Gonzales testified that appellant has two

children, is a great father, and “has Jesus Christ in his heart.” He had worked in

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Tarrant County at a job involving machinery for three or four years. Appellant made

around $2,000 to $2,500 per month and gave his children’s mother from $100 to $200

per week.

      Gonzales testified that appellant would live with her in Arlington, Texas, if

released on bond. Gonzales owns a construction company and would be able to

provide appellant food and necessities if he were placed on house arrest. She also said

she would take appellant wherever he needed to be.

      According to Gonzales, the most she and appellant’s family could raise for

bond is $10,000 for a $100,000 surety bond.

      Appellant’s sister, a resident of Farmington, New Mexico, testified that before

appellant was arrested, he planned on turning himself in; he went to New Mexico to

see her and the rest of his family “before he had to take care of some business.” But

she did not know what appellant meant by that. Appellant did not tell her that he was

a murder suspect. She also did not know how appellant got to New Mexico; he told

her a friend brought him there, but appellant was alone when he arrived.

      Appellant’s mother and three siblings live in New Mexico, but his father lives

in Fort Worth. According to appellant’s sister, appellant has lived in Texas since he

was 13 or 14 years old. He is very close to his children.

      Appellant’s sister confirmed that the most the family could afford to raise––

with all of them pitching in––is $10,000 for a $100,000 surety bond.



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       Fort Worth police detective Kyle Sullivan testified that he prepared the arrest

warrant for appellant, which the trial court admitted into evidence. Fort Worth police

could not locate appellant in Tarrant County. Ten days after a judge issued the arrest

warrant, U.S. Marshals arrested appellant on a Native American reservation in

Nageezi, New Mexico.

       In the affidavit in support of the arrest warrant, Sullivan averred that Fort

Worth police responded to a shooting call around 8:07 p.m. on April 1, 2018. When

they arrived, the complainant was lying in the hallway with a gunshot wound to his

chest; he did not survive. During an interview with police, the complainant’s wife,

Michaela Vera, identified appellant, her ex-boyfriend, as the person who had shot and

killed her husband. Vera told police that appellant sent the complainant text messages

the night before and the day of the shooting saying he wanted to fight. When the

complainant tried to leave their home the night of the shooting to go to the store,

appellant pulled up in his father’s car, got out, and approached the house. The

complainant got out of his car and told appellant to leave. Appellant fired two to three

shots in the complainant’s direction. The complainant came inside the house and

collapsed on the floor.

             Trial Court’s Findings of Fact and Conclusions of Law

       At appellant’s request, the trial court signed findings of fact and conclusions of

law:



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      Findings of Fact:
            1. The Court took judicial notice that the indictment in this case
            alleged the Defendant had committed the offense of murder. ·
            2. The Court additionally took judicial notice that the indictment
            contained allegations of the Defendant having two prior felony
            convictions.
            3. One of the prior convictions alleged in the indictment against
            the Defendant is a conviction for murder.
            4. The Court additionally took judicial notice that the
            recommended bail for the Defendant in this cause was $500,000.
            5. State’s Exhibit 1 was the warrant of arrest for the Defendant in
            this cause. The supporting affidavit of the warrant indicates that
            the Defendant murdered the current boyfriend of his ex-wife[2] at
            her house.
            6. The alleged murder of the current boyfriend by the Defendant
            occurred in the presence of one of the Defendant’s minor
            children.
            7. The Defendant fled to the State of New Mexico after the
            commission of this alleged offense.
            8. Tammie Gonzalez testified that, if the Defendant were to be
            released on bail, she would provide a place for the [D]efendant to
            live and would assist with compliance with any conditions of
            bond that the court would impose.
            9. Griselda Delgato testified that the Defendant’s family lived in
            New Mexico.
            10. The Court denied the writ and ordered that the bond amount
            previously set remain at the same amount.
      Conclusions of Law:
            1. Based upon the evidence, the court concludes that the bail
            amount is sufficiently high to give reasonable assurance to ensure
            the Defendant’s presence in court.
            2. The Defendant does not have adequate ties to the community.
            3. The Defendant’s flight to New Mexico indicates that the
            Defendant is a flight risk.


      2
       The description of the parties’ relationships in the findings of fact conflicts
with the description in the arrest warrant; the arrest warrant describes the complainant
as Vera’s husband and appellant as her ex-boyfriend. In our discussion, we will use the
descriptions from the arrest warrant.


                                           6
             4. Based upon the alleged facts of the offense and the prior
             criminal history of the Defendant[,] the safety of the community
             mandates that the bail amount remain the same.
             5. The Court denies the Defendant’s writ of habeas corpus
             seeking bail reduction.

               Denial of Bond Reduction Not Abuse of Discretion

      Appellant is a thirty-year resident of Tarrant County and at the time of his

arrest had worked at the same job for around four years. Although his father lives in

Tarrant County, his friend testified that appellant could live with her if he were

released on bond. His family could raise only 1/5 of the amount of the currently set

bond. These factors weigh in favor of a bond reduction.

      But appellant is accused of murder based on his ex-girlfriend’s eyewitness

testimony, and he has a prior criminal record, which includes two felonies, one of

them a murder conviction. Cf. Tex. Const. art. I, § 11a (authorizing denial of bail to

person accused of a noncapital felony who has two prior felony convictions if State

provides substantial evidence of guilt of charged offense). He allegedly committed the

murder here in his ex-girlfriend’s presence in the front yard of her residence. The

State informed the trial court during argument that appellant’s children3 were at home

and that the State will proffer one of them as a witness.4 Appellant has strong family

ties in New Mexico; his brother lives there on the Native American reservation where

      3
        According to the arrest warrant, Vera told the police that appellant was the
father of her two youngest children.
      4
       Appellant did not object to this assertion.


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U.S. Marshals found and arrested appellant. Appellant is facing a maximum sentence

of life in prison. Finally, appellant has an additional prior conviction for retaliation

against a public servant, which––along with his prior murder conviction and the

circumstances of this alleged murder––justifies a concern for the safety of the

community and the witnesses in this case. These factors weigh considerably in favor

of a higher bond amount.

      Therefore, we hold that the trial court did not abuse its discretion by denying

appellant’s Application for Writ of Habeas Corpus Seeking Bail Reduction. See, e.g.,

Ex parte Leos-Trejo, No. 09-18-00113-CR, 2018 WL 3556589, at *4–5 (Tex. App.––

Beaumont July 25, 2018, pet. ref’d) (mem. op., not designated for publication); Ex

parte Payten, No. 02-13-00447-CR, 2013 WL 5968449, at *3–4 (Tex. App.––Fort

Worth Nov. 7, 2013, no pet.) (mem. op., not designated for publication); Ex parte

Wright, No. 14-09-00805-CR, 2010 WL 1609235, at *3–5 (Tex. App.—Houston [14

Dist.] Apr. 22, 2010, no pet.) (mem. op., not designated for publication); Ex parte

Simpson, 77 S.W.3d 894, 895, 897 (Tex. App.––Tyler 2002, no pet.). We affirm the trial

court’s order.

                                                      /s/ Wade Birdwell
                                                      Wade Birdwell
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: November 8, 2018


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