Reversed and Rendered and Memorandum Opinion filed March 28, 2019.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-18-00955-CR
                              NO. 14-18-00957-CR
                              NO. 14-18-00958-CR
                              NO. 14-18-00959-CR
                              NO. 14-18-00960-CR
                              NO. 14-18-00961-CR
                              NO. 14-18-00962-CR

                     EX PARTE JUAN M. HERNANDEZ


                  On Appeal from the 180th District Court
                           Harris County, Texas
    Trial Court Cause Nos. 1607513, 1607514, 1607515, 1607516, 1607517,
                            1607518, & 1607519

                         MEMORANDUM OPINION


      The sole question in this case is whether the trial court abused its discretion
by setting bail at the aggregate amount of $1,825,000. Based on the unique facts and
circumstances of this case, we conclude that the trial court’s assessment of bail is
excessive. We reverse the trial court’s order denying writ of habeas corpus and lower
bail to an aggregate amount of $630,000.

                                   BACKGROUND

      Appellant is currently awaiting trial in seven separate felony charges. In three
of the charges, appellant was indicted for possession of a controlled substance with
intent to deliver. In two of the charges, appellant was indicted for unlawful
possession of a firearm by a felon. Appellant was also indicted for aggravated
robbery and tampering with evidence. Each offense is alleged to have occurred
between January and August 2018.

      In January appellant was indicted for unlawfully possessing a firearm after
being convicted of the felony offense of possession of a controlled substance four
years earlier. Because appellant had been previously convicted of possession of a
controlled substance and aggravated robbery, the State requested a high bail amount.
The trial court set bail at $20,000, which appellant posted.

      While out on bail, appellant was indicted for aggravated robbery alleged to
have occurred in March 2018. In April when appellant was arrested on the
aggravated robbery warrant he was also charged with two counts of possession of a
controlled substance with intent to deliver. The State requested that appellant be held
with no bail because he was alleged to have committed these offenses while on bond
for the offense alleged to have occurred in January. The trial court initially ordered
appellant held without bail. Subsequently, the trial court revoked appellant’s bond
on the January possession of a firearm charge, and increased appellant’s bail amount
on that charge to $40,000. The trial court further set appellant’s other bail amounts
at $100,000 each for the aggravated robbery charge and the two possession charges
for a total of $340,000. The court also modified the conditions of appellant’s bond
regarding travel. Appellant was given permission to travel from his residence to his
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attorney’s office for scheduled meetings. Appellant was required to wear a GPS
monitor to show compliance with this condition. Appellant posted the $340,000 bail.

      While appellant was under house arrest police executed a search warrant at
his house. After execution of the search warrant appellant was indicted for another
count of possession of a controlled substance with intent to deliver, another count of
possession of a firearm by a felon, and tampering with evidence. The trial court
subsequently set appellant’s bail amounts as follows:

 Charge                                   Bail Amount

 Unlawful possession of a firearm by      $150,000
 a felon
 Aggravated robbery                       $350,000

 Possession of controlled substance       $350,000
 with intent to deliver
 Possession of controlled substance       $350,000
 with intent to deliver
 Tampering with evidence                  $150,000

 Unlawful possession of a firearm by      $150,000
 a felon
 Possession of a controlled substance     $350,000
 with intent to deliver

The aggregate amount of the bail amounts set was $1,825,000.

      Appellant subsequently filed applications for writ of habeas corpus in each
case complaining that the aggregate amount of the bail set was unreasonable. The
trial court held a hearing at which the parties agreed to offer evidence through the
use of written affidavits rather than live testimony.

      Appellant attached two affidavits to his applications for writ of habeas corpus.

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Those same affidavits were admitted into evidence at the writ hearing. The first
affidavit, signed by Marcos Antonio, a bail bondsman, stated that Antonio had
reviewed the financial records of appellant and appellant’s immediate family.
Antonio averred that appellant was incapable of posting a $1,825,000 bond. Antonio
stated that appellant could afford a $250,000 bond.

      The second affidavit was signed by Yesenia Yepez, appellant’s girlfriend.
Yepez stated that she lived with appellant and they have a four-month-old child.
Yepez was not working at the time she signed the affidavit. If she returned to work,
she could earn $2500 to $3000 per month. Yepez owns a vehicle valued at
approximately $10,000. Yepez does not own a home. Before appellant’s arrest he
worked as a delivery driver delivering parts for an “auto shop.” Appellant does not
own a vehicle or a home. Appellant’s mother can make a minimal contribution to
bail, but also does not own a home. Yepez echoed that appellant could not pay a
$1,825,000 bond but could afford a $250,000 bond.

      At the hearing appellant’s counsel argued that, according to Harris County
Pretrial Services, while originally out on bond appellant complied with the
conditions of bond requiring him to wear a GPS monitor and maintain negative drug
test results. Counsel stated that the original aggravated robbery charge involved
multiple defendants, which would most likely lead to unusual delay in bringing that
charge to trial. Counsel stated that appellant had never missed a court date.

      The State offered no evidence but argued that the trial court should not reduce
the bond, emphasizing that appellant stands indicted for seven felony offenses from
four different transactions. The State argued that the alleged aggravated robbery
involved the shooting of several individuals including small children “during an
alleged drug raid.” The State argued that a high bond was necessary because
appellant was facing a punishment range of fifteen years to life in prison on three of

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the seven charges. The State alleged that when executing the search warrant officers
recovered 89 grams of methamphetamine, and approximately $70,000 in cash.

      The trial court denied appellant’s applications for writ of habeas corpus and
declined to reduce appellant’s bail amount.

                                        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
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 trial
court subject to the following rules:

      1.     The bail shall be sufficiently high to give reasonable assurance
             of compliance with the undertaking.
      2.     The power to require bail is not to be so used as 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

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following set of factors: (l) 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; 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 Melartin, 464 S.W.3d 789, 792 (Tex.
App.—Houston [14th Dist.] 2015, 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 seven felonies of varying degrees. Four of the charges
are for first-degree felonies. See Tex. Health & Safety Code Ann. § 481.112
(possession of controlled substance with intent to deliver); Tex. Penal Code Ann.
§ 29.03 (aggravated robbery). The remaining three alleged offenses are third-degree
felonies. See Tex. Penal Code Ann. §§ 37.09 (tampering with evidence); 46.04
(unlawful possession of weapon).

      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. 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. Appellant’s prior felony convictions raise the minimum
punishment for first-degree felonies from five to twenty-five years. Id. § 12.42. The
court could also cumulate, or “stack,” the sentences if appellant is convicted in two
or more cases. See Tex. Code Crim. Proc. Ann. art. 42.08(a).

                                          6
      Appellant is entitled to a presumption of innocence on all 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.

      In balancing the nature and circumstances of the alleged offenses against
appellant’s presumption of innocence we are instructed by review of other cases in
which courts found much lower bail amounts sufficient.

      In Ludwig, the defendant was alleged to have killed two people and to have
threatened each of them before he killed them. Ludwig v. State, 812 S.W.2d 323,
324–25 (Tex. Crim. App. 1991). Ludwig also was alleged to have threatened to kill
his mother-in-law. Id. at 325. There was little evidence of the circumstances of the
alleged offenses before the court, but even considering Ludwig’s threat against his
mother-in-law, the court reduced his bail to $50,000.00. See id.

      In Martinez, the defendant was charged with killing four people, two under
six years of age, by shooting them multiple times. Martinez v. State, No. 14–96–
01339–CR, 1997 WL 197897, at *3 (Tex. App.—Houston [14th Dist.] Apr. 24,
1997, no pet.) (not designated for publication). Martinez allegedly shot one victim
six times: three shots were to the back of the victim’s head and body. Id. This court
found that the $2,000,000 bail set was excessive and remanded the case to the trial
court to either deny bail or set bail in accordance with the law. Id.

      In Simpson, cited by appellant in his brief, the defendant was an alleged gang
member charged with capital murder for a “brutal, gang-related murder.” Ex parte
Simpson, 77 S.W.3d 894, 897 (Tex. App.—Tyler 2002, no pet.). The court described
the circumstances of the alleged offense as “a violent, unprovoked killing [that]
suggest[s] an appalling lack of concern for human life.” Id. The court described
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Simpson as “an individual with a violent and unrepentant nature,” and affirmed the
trial court’s setting of bond at $600,000, less than half the amount set in this case.
Id. at 895, 897.

       Here, neither side presented any new evidence during the writ hearing
regarding the nature and circumstances of the charged offenses. The State argued
that children were harmed during the aggravated robbery offense but did not present
any evidence that appellant shot the children. Both parties argued that multiple
individuals were charged in the aggravated robbery case. When viewed alone, this
factor would not support the trial court’s decision to increase bail to an aggregate
amount of over $1.8 million.

III.   Sufficient Bail to Assure Appearance

       The next factor addresses whether the defendant is a flight risk. Here, neither
the record of the writ hearing or the attached affidavits affirmatively show
appellant’s citizenship. At the hearing and in his brief appellant’s counsel averred
that appellant is a lifelong resident of Harris County and does not have a passport or
relationships outside of Harris County. Yepez’s affidavit states that she lives with
appellant and that appellant was working as a delivery driver before his arrest.

       In appellant’s application for writ of habeas corpus, appellant averred that he
had “faithfully appeared to every court appearance” and had been wearing a GPS
monitoring device for approximately four months. Appellant’s uncontroverted
statements would not support a finding that appellant presents an unusual flight risk.
Accordingly, this factor would also weigh against a bail amount over $1 million Cf.
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—$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).
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IV.   Future Safety of the Victims and the Community

      The trial court set conditions of bail requiring appellant to use a GPS
monitoring device and limiting appellant’s travel to a direct route between his
residence and his attorney’s office. There is no evidence that appellant violated these
conditions. Thus, an increase in bail cannot be justified by a perceived danger to the
alleged victims or community.

      Drug related cases sometimes justify higher bail amounts where the
defendants are foreign nationals with no local ties, or are residents of other states, or
were persons who were extradited to Texas before bail was set. See Maldonado v.
State, 999 S.W.2d 91, 97 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)
(affirming $2.5 million bond for defendant arrested with cocaine having a street
value of $72 million in addition to evidence that defendant may flee the jurisdiction);
see also Balleza v. State, 858 S.W.2d 545, 546 (Tex. App.—Texarkana 1993, no
pet.) (affirming $250,000 bond because detainee was charged with possessing large
amount of cocaine and did not produce any evidence that he could not make bail).

      The State emphasizes that appellant allegedly committed further drug offenses
while out on bond. This evidence supports a finding that a moderate increase in bail,
at most, would be sufficient to protect the interests of the community. There is no
evidence that appellant has ever failed to appear in court, or that he has a history of
fleeing the jurisdiction.

V.    Instrument of Oppression

      The State has not cited any cases where bail in excess of one million dollars
has been affirmed on appeal. This court affirmed a bail amount of $2.5 million in a
drug case under circumstances distinguishable from this case. See Maldonado, 999
S.W.2d at 97. In Maldonado, the defendant was arrested with a substantial amount


                                           9
of cocaine in his possession, having an alleged street value of more than $72 million.
Id. at 94. Testimony from the defendant’s friends and family members also
demonstrated that Maldonado lived in Texas for only a short time, had very few ties
to Texas, as well as testimony that Maldonado might flee the jurisdiction if released
on bail. Id. In this case, appellant has been charged with possession of large amounts
of a controlled substance. Our record, however, contains no evidence of aggravating
circumstances or a suggestion that appellant is a flight risk.

       In Ex parte Gonzales, 383 S.W.3d 160, 167 (Tex. App.—San Antonio 2012,
pet. ref’d), the court found that a $1.5 million bail, $300,000 less than the bail set in
this case, was not excessive. Gonzalez is distinguishable from this case on its facts.
In Gonzalez, the court emphasized the random nature of the “brutal offense”
allegedly committed by Gonzalez and the fact that Gonzalez had worked in several
states and his mother owned a home in Mexico. Id. at 166. The court noted that,
“Gonzalez’s mother still owns the house in Mexico, Gonzalez worked on the house,
has relatives in Mexico, and applied for an expedited passport.” Id.

       Far more numerous are the cases in which appellate courts have disapproved
of bail amounts in excess of $1 million. See Melartin, 464 S.W.3d at 795 ($7.2
million bail reduced to $900,000).1 “The reason for the dichotomy should be
obvious. Very few people can post a bond that approaches seven figures.” Id. Many
bondsmen cannot even approve such amounts. See Ex parte Miller, 442 S.W.3d 478,


       1
         In Melartin, the court listed the following examples of reversal of high bail amounts. 464
S.W.3d at 795. Ludwig, 812 S.W.2d at 325 ($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); Ex parte Beard, 92
S.W.3d 566, 574 (Tex. App.—Austin 2002, pet. ref’d) ($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).

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481 (Tex. App.—Dallas 2013, no pet.).

      The citizen who has been accused, but not convicted, has a “strong interest in
liberty.” United States v. Salerno, 481 U.S. 739, 750 (1987). Bail should not be used
to keep a person “off the streets,” or worse, to coerce a plea. Ex parte Benefield, 403
S.W.3d 240, 241 (Tex. Crim. App. 2013) (Cochran, J., concurring). As we stated in
Melartin:

      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, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). It hinders the
      person’s ability to gather evidence, contact witnesses, or otherwise
      prepare for a defense. Id. at 533, 92 S.Ct. 2182. And all the while, the
      person is “living under a cloud of anxiety, suspicion, and often
      hostility.” Id.
464 S.W.3d at 796.

      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). In this case,
appellant’s bail was increased from an aggregate of $340,000 to $1,825,000, more
than five times the original amount. Considering the high amount that was set, the
bail in this case appears to have been used as an instrument of oppression.

VI.   Other Factors

      With regard to other factors, the record reflects that appellant was working as
a delivery driver before being confined to house arrest. Appellant has lived with
Yepez for a year and has a child who also lives in Harris County. The record further
reflects appellant was able to post bonds totaling $340,000. Appellant’s bail
bondsman averred that appellant did not have the financial resources to post a $1.8
million bond.

      In considering the propriety of bail in Harris County cases, this court has

                                          11
considered the “Harris County Bail Schedule.” See Melartin, 464 S.W.3d at 793.
The bail schedule provides for “no bond” for offenses allegedly committed while an
accused is on bail for a felony charge. Despite that provision the trial court set bail
in this case.

       The bail schedule also suggests that, for cases involving large quantities of
controlled substance, the bail be set at double the value of the controlled substance.
Although the State argued that appellant was found with 89 grams of
methamphetamine, the State presented no evidence of this amount and no evidence
of its alleged value. Therefore, this guideline also was not, and is not, a viable
consideration in evaluating the propriety of bail in this case.

       The category on the bail schedule closest to the facts and testimony in this
case is for a first degree felony with a prior conviction, for which the bail schedule
suggests a bail of $30,000. Here, however, appellant’s indictments for first degree
felonies contain enhancement paragraphs alleging two prior felony convictions,
which appellant did not dispute at the writ hearing. If convicted, appellant faces
possible confinement of twenty-five years to life in prison. These considerations are
counter-balanced by appellant’s ties to the community. Additionally, we consider
the aggravating fact that appellant was arrested for the latest possession cases while
on bond for prior felony offenses.

                                     CONCLUSION

       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 $1,825,000. Although 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,
                                          12
given the concern that appellant has been charged with further offenses despite
complying with GPS monitoring. The trial court abused its discretion by increasing
appellant’s bail in excess of that consideration.

      Accordingly, appellant’s first issue on appeal is sustained, and the order of the
trial court denying appellant’s application for writ of habeas corpus is reversed.
Appellant asks this court to set an aggregate bond of $250,000 because this is the
amount he can afford. Although the State presented no evidence to dispute
appellant’s inability to afford a bond over $250,000, we are not persuaded in light
of the evidence that appellant previously posted a $340,000 bond. Having weighed
the preceding considerations, we are of the opinion that bail of a total of $1,825,000
in this case is excessive. We lower appellant’s bail amounts for an aggregate of
$630,000, as follows:

 Charge                                   Lowered Bail
                                          Amount
 Unlawful possession of a firearm by      $60,000
 a felon
 Aggravated robbery                       $150,000

 Possession of controlled substance       $100,000
 with intent to deliver
 Possession of controlled substance       $100,000
 with intent to deliver
 Tampering with evidence                  $60,000

 Unlawful possession of a firearm by      $60,000
 a felon
 Possession of a controlled substance     $100,000
 with intent to deliver

      The trial court’s bond conditions remain unchanged and continue to be


                                          13
effective until disposition of this case.

      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).




                                                 PER CURIAM



Panel consists of Justices Christopher, Hassan, and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).




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