Affirmed and Memorandum Opinion filed August 4, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00916-CR

           EX PARTE VASTIE SHAKIRA COLEMAN, Appellant

                    On Appeal from the 178th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1426185

                 MEMORANDUM                       OPINION


      Appellant was charged with serious bodily injury to a child, while on
deferred adjudication community supervision for the felony offense of theft.
Appellant’s bond is set at $100,000 in the injury to a child count, and $5,000 in the
adjudication of the theft count. Appellant filed a petition for writ of habeas corpus
in the trial court in which she requested a reduction in bail to $30,000 in the injury
to a child count, but did not argue for a reduction of the $5,000 bond in the
adjudication. After conducting an evidentiary hearing, the trial court denied
appellant’s application, and ordered the bonds to remain the same. We affirm.
                                  BACKGROUND

      Appellant is awaiting trial on the offense of injury to a child by striking him
with a cord, which occurred while appellant was on deferred adjudication
community supervision for the felony offense of theft. Appellant was arrested on
July 15, 2012, one day after the injury to her child occurred. Appellant was
originally held without bond, but upon application for bond, the trial court set bond
at $150,000 with the condition that appellant have no contact with any children
unless under the supervision of Child Protective Services. Subsequently, appellant
entered into an agreement in which she agreed to a reduced bond of $100,000. On
April 23, 2014, appellant filed a petition for writ of habeas corpus seeking
reduction of bail to $30,000.

      At the hearing on appellant’s petition, her husband, Frankie Waters, testified
that he was attempting to save enough money to post appellant’s bond. He testified
that he did not own a house or car, and had no assets through loans, stocks, bonds,
or a bank account. Because appellant had been incarcerated since July 15, 2012,
she had no assets. Waters asked family and friends to help pay the bond, but they
were also unable to help. If the bond were reduced to $30,000, Waters believes he
could pay the bond.

      On cross-examination, Waters admitted that he knew appellant was charged
with beating her four-year-old son, and that he died from the injuries sustained in
the beating. The prosecutor asked Waters whether he was aware that “an
aggravating factor with the charge that your wife currently has, is that she tied up
[the complainant] to the bathroom tube [sic] while she injured him.” Waters
responded, “Ma’am, I’m not answering that. I plead the fifth.”

      Following argument of counsel, the trial court found:


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      Based on the state of the record, and the evidence adduced and
      arguments of counsel here at this writ hearing, the Court finds that the
      nature of this offense and the circumstances under which it was
      committed, extremely violent, and that in the interest of the
      community safety, and defendant’s record of not complying with
      conditions of community supervision, the aggravating factors in the
      charged offense, the Court finds that the bonds currently set, $100,000
      in this case and 5,000 in the Motion to Adjudicate case, are sufficient
      — are sufficient amount to protect the interest of the community and
      guarantee the appearance in court of the defendant in trial, given the
      nature of the case, weighing the punishment defendant could pose a
      flight risk.

      Appellant appeals the trial court’s denial of her application for writ of
habeas corpus.

                                    ANALYSIS

      In a single issue, appellant contends the trial court abused its discretion in
denying habeas relief. Appellant contends the bail, as reduced, is unreasonable, and
the trial court should have reduced it further because appellant cannot meet the
bond amount, and the State failed to present any evidence regarding appellant’s
danger to the community or circumstances surrounding the offense.

                                BOND AGREEMENT

      The State initially argues that appellant should be estopped from
complaining about her bond because she agreed to a $100,000 bond. The State
points to a bond agreement in the record signed by the prosecutor, the judge,
defense counsel, and appellant, agreeing that bond be set at $100,000. Our court
rejected a similar argument in Ex parte Gallegos, No. 14-03-00590-CR; 2003 WL
21940257 (Tex. App.—Houston [14th Dist.] Aug. 14, 2003, no pet.) (not released
for publication). We determined that contrary to the State’s argument, the record
did not reflect that Gallegos requested a lower bond, but that he agreed to that

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amount as opposed to a much higher bond. Id. at *1.

      This case is distinguishable from Gallegos in that the record reflects
appellant and the State filed a motion in which they agreed that the bond would be
set at $100,000. Under the doctrine of equitable estoppel, a party may be estopped
from asserting a claim that is inconsistent with that party’s prior conduct. Arroyo v.
State, 117 S.W.3d 795, 798 (Tex. Crim. App. 2003); State v. Yount, 853 S.W.2d 6,
9 (Tex. Crim. App. 1993). In Yount, the court held that the appellee, who had been
indicted for involuntary manslaughter but who had requested and received a jury
charge on the lesser included offense of driving while intoxicated, was estopped
from complaining that his conviction of that lesser included offense was barred by
limitations. 853 S.W.2d at 9. The court explained that “appellee cannot benefit
from the lesser included offense instruction and then attack his conviction of that
lesser included offense on limitations grounds.” Id. Similarly, in Prystash v. State,
3 S.W.3d 522, 532 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1102 (2000), the
court held that the appellant, who had affirmatively requested that the trial court
not submit to the jury one of the special issues statutorily required for capital
sentencing, was estopped from arguing on appeal that the trial court had erred by
failing to submit the special issue. The court explained that “we will not permit
[an] appellant to complain of the trial court’s deleting a jury charge as he
requested.” Id.

      In this case, appellant entered into an agreed motion with the State
requesting that the trial court set bond at $100,000. Having affirmatively requested
bond of $100,000, she is estopped from arguing on appeal that the trial court erred
in setting bond at $100,000. See Arroyo, 117 S.W.3d at 798.

      Even if appellant were not estopped from challenging the bond to which she
agreed, we hold the trial court did not abuse its discretion in denying appellant’s

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request for a reduced bond. We review the applicable factors below.

                                  STANDARD OF REVIEW

      The right to be free from excessive bail is protected by the United States and
Texas Constitutions. See U.S. Const. amend. VIII; Tex. Const. art. I, § 11. We
review a challenge to the excessiveness of bail for an abuse of discretion. See Ex
parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981). Under this
standard, we may not disturb the trial court’s decision if it falls within the zone of
reasonable disagreement. See Ex parte Castillo–Lorente, 420 S.W.3d 884, 887
(Tex. App.—Houston [14th Dist.] 2014, no pet.).

      The amount of bail required in any case is within the discretion of the court
subject to 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 considering the factors in article 17.15, the courts have added
seven other factors that can be weighed in determining the amount of bond: (1) the
accused’s work record; (2) the accused’s family and community ties; (3) the
accused’s length of residency; (4) the accused’s prior criminal record; (5) the
accused’s conformity with previous bond conditions; (6) the existence of other

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outstanding bonds, if any; and (7) aggravating circumstances alleged to have been
involved in the charged offense. Ex parte Rubac, 611 S.W.2d at 849–50.

               Nature and Circumstances of the Charged Offense

      When assessing the reasonableness of bail, the Court of Criminal Appeals
has instructed that the “primary factors” are the punishment that can be imposed
and the nature of the offense. See Rubac, 611 S.W.2d at 849. Appellant was
indicted for intentionally and knowingly causing serious injury to a child, while on
deferred adjudication community supervision for theft. The offense is punishable
by imprisonment for five to ninety-nine years or life, and a fine not to exceed
$10,000. Tex. Penal Code §§ 12.32 & 22.04. The defendant’s potential sentence
and the nature of the crime are significant factors for us to consider when assessing
the reasonableness of a bail amount. Ex parte Hunt, 138 S.W.3d 503, 506 (Tex.
App.—Fort Worth 2004, pet ref’d); see also Montalvo v. State, 315 S.W.3d 588,
593 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (noting that consideration of
nature and circumstances of offense requires us to consider range of punishment in
event of conviction). When the offense is serious and involves aggravating factors
that may result in a lengthy prison sentence, bail must be set sufficiently high to
secure the defendant’s presence at trial. See Ex parte Hulin, 31 S.W.3d 754, 761
(Tex. App.—Houston [1st Dist.] 2000, no pet.). Because of the seriousness of this
offense and the potential lengthy sentence, the trial court could have concluded that
appellant has a strong incentive to flee the jurisdiction and a high bail amount is
reasonable.

      Appellant argues that the State failed to offer evidence regarding the nature
of the offense or its circumstances. The record contains the indictment in this case
in which appellant is indicted for “intentionally and knowingly caus[ing]
SERIOUS BODILY INJURY to [the complainant], . . . , a child younger than

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fifteen years of age, by STRIKING THE COMPLAINANT WITH A CORD.”
Appellant is alleged to have committed this offense while on deferred adjudication
community supervision for felony theft. Waters admitted that the complainant was
four years old at the time of his death, and that his death resulted from the beating
alleged to have been perpetrated by appellant. The trial court found that the
circumstances of the offense were “extremely violent.” Keeping in mind that it is
the defendant’s burden to show bail was excessive, we conclude the trial court had
sufficient evidence in the record to support a finding that the nature of the offense
and its circumstances in addition to the severity of the potential sentence, may give
appellant incentive to flee the jurisdiction. See Rubac, 611 S.W.2d at 849
(defendant carries the burden of proof to establish that bail is excessive).

              Bail Sufficient to Assure Appearance but not Oppress

      A trial court should set bail sufficiently high to provide reasonable assurance
that the defendant will appear at trial. Ex parte Tata, 358 S.W.3d 392, 400 (Tex.
App.—Houston [1st Dist.] 2011, pet. ref’d). A defendant’s ties to the community
and work history bear on the adequacy of bail to give reasonable assurance she will
appear. Richardson v. State, 181 S.W.3d 756, 759 (Tex. App.—Waco 2005, no
pet.). We also consider whether the record reflects that the trial court made its
decision regarding the bail amount “for the purpose of forcing [the defendant] to
remain incarcerated pending trial.” Milner v. State, 263 S.W.3d 146, 149 (Tex.
App.—Houston [1st Dist.] 2006, no pet.) (citing Ex parte Harris, 733 S.W.2d 712,
714 (Tex. App.—Austin 1987, no pet.) (trial judge stated, “I’d rather see him in jail
than to see someone’s life taken[.]”)). The record here contains no indication that
the trial court set the bail amounts for the sole purpose of ensuring that appellant
remains incarcerated pending trial. See Tata, 358 S.W.3d at 400. On this record,
the trial court reasonably could conclude that bail of $100,000 is not higher than

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outstanding bonds, if any; and (7) aggravating circumstances alleged to have been
involved in the charged offense. Ex parte Rubac, 611 S.W.2d at 849–50.

               Nature and Circumstances of the Charged Offense

      When assessing the reasonableness of bail, the Court of Criminal Appeals
has instructed that the “primary factors” are the punishment that can be imposed
and the nature of the offense. See Rubac, 611 S.W.2d at 849. Appellant was
indicted for intentionally and knowingly causing serious injury to a child, while on
deferred adjudication community supervision for theft. The offense is punishable
by imprisonment for five to ninety-nine years or life, and a fine not to exceed
$10,000. Tex. Penal Code §§ 12.32 & 22.04. The defendant’s potential sentence
and the nature of the crime are significant factors for us to consider when assessing
the reasonableness of a bail amount. Ex parte Hunt, 138 S.W.3d 503, 506 (Tex.
App.—Fort Worth 2004, pet ref’d); see also Montalvo v. State, 315 S.W.3d 588,
593 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (noting that consideration of
nature and circumstances of offense requires us to consider range of punishment in
event of conviction). When the offense is serious and involves aggravating factors
that may result in a lengthy prison sentence, bail must be set sufficiently high to
secure the defendant’s presence at trial. See Ex parte Hulin, 31 S.W.3d 754, 761
(Tex. App.—Houston [1st Dist.] 2000, no pet.). Because of the seriousness of this
offense and the potential lengthy sentence, the trial court could have concluded that
appellant has a strong incentive to flee the jurisdiction and a high bail amount is
reasonable.

      Appellant argues that the State failed to offer evidence regarding the nature
of the offense or its circumstances. The record contains the indictment in this case
in which appellant is indicted for “intentionally and knowingly caus[ing]
SERIOUS BODILY INJURY to [the complainant], . . . , a child younger than

                                         6
fifteen years of age, by STRIKING THE COMPLAINANT WITH A CORD.”
Appellant is alleged to have committed this offense while on deferred adjudication
community supervision for felony theft. Waters admitted that the complainant was
four years old at the time of his death, and that his death resulted from the beating
alleged to have been perpetrated by appellant. The trial court found that the
circumstances of the offense were “extremely violent.” Keeping in mind that it is
the defendant’s burden to show bail was excessive, we conclude the trial court had
sufficient evidence in the record to support a finding that the nature of the offense
and its circumstances in addition to the severity of the potential sentence, may give
appellant incentive to flee the jurisdiction. See Rubac, 611 S.W.2d at 849
(defendant carries the burden of proof to establish that bail is excessive).

              Bail Sufficient to Assure Appearance but not Oppress

      A trial court should set bail sufficiently high to provide reasonable assurance
that the defendant will appear at trial. Ex parte Tata, 358 S.W.3d 392, 400 (Tex.
App.—Houston [1st Dist.] 2011, pet. ref’d). A defendant’s ties to the community
and work history bear on the adequacy of bail to give reasonable assurance she will
appear. Richardson v. State, 181 S.W.3d 756, 759 (Tex. App.—Waco 2005, no
pet.). We also consider whether the record reflects that the trial court made its
decision regarding the bail amount “for the purpose of forcing [the defendant] to
remain incarcerated pending trial.” Milner v. State, 263 S.W.3d 146, 149 (Tex.
App.—Houston [1st Dist.] 2006, no pet.) (citing Ex parte Harris, 733 S.W.2d 712,
714 (Tex. App.—Austin 1987, no pet.) (trial judge stated, “I’d rather see him in jail
than to see someone’s life taken[.]”)). The record here contains no indication that
the trial court set the bail amounts for the sole purpose of ensuring that appellant
remains incarcerated pending trial. See Tata, 358 S.W.3d at 400. On this record,
the trial court reasonably could conclude that bail of $100,000 is not higher than

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                                    CONCLUSION

      We conclude that appellant is estopped from challenging the bond to which
she agreed. Moreover, the trial court did not abuse its discretion in setting
appellant’s bail in the agreed amount of $100,000 and in concluding that appellant
did not demonstrate that bail in this amount is excessive. Accordingly, we overrule
appellant’s issue and affirm the trial court’s judgment.



                                              PER CURIAM



Panel consists of Justices Boyce, McCally, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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