Ex parte Jorge Mazuera Possession of child pornography

Houston, Texas – Criminal Defense lawyer represented defendant with challenging the trial court's orders denying in part his pretrial applications for writ of habeas corpus.

Appellant is charged with ten separate felony offenses of possession of child

pornography.2



Pretrial Applications for Writ of Habeas Corpus

Appellant filed pretrial applications for writ of habeas corpus in his ten trial

court cases, arguing that his confinement and restraint were illegal because he was

"entitled to bail that he c[ould] make.”3



According to appellant, he had "significant ties to the community and [had] been a resident of Harris County, Texas for

[thirty-three] years.” Before his arrest in August 2021, appellant was living with his

mother in Spring, Texas. Appellant had "no ties outside of the [United States] and

[had] only been overseas while he was enlisted in the United States Marine Corps.”

Appellant was honorably discharged from the United States Marine Corps in 2014

and then "served an additional [four] years in the Army National Guard” before

receiving an honorable discharge in 2018. Since that time, appellant had "attended

college and . . . started a job working as a ramp attendant for FedEx.” Appellant

asserted that he had "no prior criminal history and all charges [against him arose]

out of the same transaction.” Because appellant had "no criminal history and ha[d]

strong ties to the community,” he argued that he was "not a danger to the community

or a flight risk.” According to appellant, the trial court could "set conditions of [his

release on] bond . . . such as [a] curfew, electronic monitoring, and restriction on

3 See TEX. CODE CRIM. PROC. ANN. art. 17.15; see also id. art. 1.08 ("The writ of

habeas corpus is a writ of right and shall never be suspended.”); Ex parte Weise, 55

S.W.3d 617, 619 (Tex. Crim. App. 2001) (when faced with excessive bail, defendant

has right to assert his constitutional right to reasonable bail through use of

application for pretrial writ of habeas corpus).

4

access to the internet.” Appellant requested that the trial court set bail at $10,000

for each of the ten felony offenses with which he is charged for a total bail amount

of $100,000. Appellant attached a declaration to his pretrial applications for writ of

habeas corpus "declar[ing] under penalty of perjury” that the statements made in his

applications were "true and correct.”

Hearing

The trial court held a hearing on appellant's pretrial applications for writ of

habeas corpus. At the hearing, Corina Camarillo, appellant's former girlfriend and

friend, testified that she had known appellant for "at least[] three years.” Appellant

was from Houston, Texas and was thirty-four years old. Appellant graduated from

high school in Spring and had attended "some college” in the area. Appellant did

not have any significant ties to foreign countries.

According to Camarillo, appellant served in the United States Marine Corps

for four years before being honorably discharged. He then served in the Army

National Guard for four years before being honorably discharged.4

Appellant did

not have a criminal history. Before being taken into custody, appellant worked at

FedEx "for a good amount of time.” Camarillo stated that appellant was "a

4 The trial court admitted into evidence at the hearing on appellant's pretrial

applications for writ of habeas corpus documents reflecting appellant's honorable

discharges from the United States Marine Corps and the Army National Guard.

5

law-abiding citizen.” Appellant was employed when Camarillo initially met him

three years ago.

In Camarillo's opinion, appellant was not a "flight risk,” and she believed that

he would "abide by” any bond conditions that the trial court imposed. Camarillo

stated that she had talked to appellant's family and the family could not afford the

current bail amount that was set. Camarillo stated that appellant's family was a "blue

collar family” and "income is kind of a set issue.” Camarillo believed that bail set

in the amount of $10,000 in each of appellant's ten cases would be more affordable

for appellant's family.

In his closing argument at the hearing, appellant's trial counsel noted that he

and the State had agreed for bail to be set at $15,000 for each of the ten felony

offenses with which appellant is charged, and counsel requested that the trial court

set bail in accord with the agreement. The State, in its closing argument, stated that

it had agreed with appellant's trial counsel for bail to be set at $15,000 for each of

the ten felony offenses with which appellant is charged and also requested that the

trial court set bail in accord with the agreement. The State explained that it based

its request on appellant's lack of criminal history, his employment with FedEx, "his

community ties with this family being in Spring,” his military history, and the fact

that appellant had been in custody since August 2021. At the conclusion of the

hearing, the State "ask[ed] for $15,000 for each bond – for each case.”

6

Trial Court's Ruling

After the hearing on appellant's pretrial applications for writ of habeas corpus,

the trial court granted appellant's applications in part and denied appellant's

applications in part. The trial court set appellant's bail at $75,000 for each of the ten

felony offenses of possession of child pornography with which appellant is charged

for a total bail amount of $750,000.

Standard of Review

In a habeas proceeding for a claim of excessive bail, we review a trial court's

decision about the amount of bail for an abuse of discretion. See Ex parte Rubac,

611 S.W.2d 848, 850 (Tex. Crim. App. 1981); Montalvo v. State, 315 S.W.3d 588,

592 (Tex. App.—Houston [1st Dist.] 2010, no pet.). A trial court abuses its

discretion if it acts without reference to any guiding rules or principles. Ex parte

Hunt, 138 S.W.3d 503, 505 (Tex. App.—Fort Worth 2004, pet. ref'd). A reviewing

court will not disturb a decision of the trial court if that decision is within the zone

of reasonable disagreement. Ex parte Tata, 358 S.W.3d 392, 397 (Tex. App.—

Houston [1st Dist.] 2011, pet. dism'd). We acknowledge that an abuse-of-discretion

review requires more of the appellate court than simply deciding that the trial court

did not rule arbitrarily or capriciously. Montalvo, 315 S.W.3d at 593. An appellate

court must instead measure the trial court's ruling against the relevant criteria by

which the ruling was made. Id. It is not an abuse of discretion for the trial court

7

merely to decide a matter within its discretion in a different manner than the

appellate court would under similar circumstances. Ex parte Miller, 442 S.W.3d

478, 481 (Tex. App.—Dallas 2013, no pet.).

Excessive Bail

In his sole issue, appellant argues that the trial court erred in partially denying

him habeas relief because the trial court should have reduced and set a reasonable

bail amount in each of appellant's ten cases. Appellant asserts that "[s]ufficient

evidence was presented to the [trial] court to show that [he was] not a flight risk,

[was] not a danger to the community, and [had] sufficient ties to the community.”

The $75,000 bail amount set by the trial court for each of appellant's ten felony

offenses combines for a total bail amount of $750,000 and "acts as an instrument of

oppression.” And appellant notes that the State, at the hearing on his pretrial

applications for writ of habeas corpus, requested that the trial court set appellant's

bail at $15,000 for each of appellant's ten cases.5

Before conviction, every citizen accused of a criminal offense has a "strong

interest in liberty.” United States v. Salerno, 481 U.S. 739, 750 (1987). Thus, the

Eighth Amendment to the United States Constitution provides that "[e]xcessive bail

shall not be required, nor excessive fines imposed, nor cruel and unusual

5 We note that the State has taken a different position in its appellee's brief filed in

this Court.

8

punishments inflicted.” U.S. CONST. amend. VIII; see also Schilb v. Kuebel, 404

U.S. 357, 365 (1971) (Eighth Amendment's prohibition of excessive bail applies to

states). The Texas Constitution also guarantees that "[a]ll prisoners shall be bailable

by sufficient sureties, unless for capital offenses, when the proof is evident.” TEX.

CONST. art. I, § 11; see also TEX. CONST. art. I, § 13 ("Excessive bail shall not be

required . . . .”); TEX. CODE CRIM. PROC. ANN. art. 1.07 ("Any person shall be

eligible for bail unless denial of bail is expressly permitted by the Texas Constitution

or by other law.”).

A defendant's right to pretrial bail, however, may be subordinated to the

greater needs of society. Salerno, 481 U.S. at 750–51; see also Ex parte Beard, 92

S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref'd) (noting "a balance must be

struck between the defendant's presumption of innocence and the State's interest”).

In balancing the liberty interest of a defendant and the safety interest of society, the

Texas Legislature has adopted rules and guidelines for determining when a

defendant should obtain pretrial release through the posting of adequate bail. See

TEX. CODE CRIM. PROC. ANN. art. 17.01 ("'Bail' is the security given by the accused

that he will appear and answer before the proper court the accusation brought against

him . . . .”); Ex parte Jefferson, No. 07-20-00123-CR, 2020 WL 4249743, at *2

(Tex. App.—Amarillo July 23, 2020, no pet.) (mem. op., not designated for

publication). The primary purpose of pretrial bail is to secure a defendant's

9

appearance at trial on the offenses with which he is charged. See TEX. CODE CRIM.

PROC. ANN. art. 17.01; Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App.

[Panel Op.] 1980); Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977).

In exercising its discretion in setting the dollar amount of bail and any

conditions of bail, a trial court must consider the following statutory factors:

1. Bail shall be sufficiently high to give reasonable assurance that a

criminal defendant will appear at trial and comply with other court

orders and conditions of the bond;

2. The power to require bail is not to be used as an instrument of

oppression;

3. The nature of the offenses and the circumstances of their commission;

4. The ability to make bail is to be regarded, and proof may be taken on

this point; and

5. The future safety of a victim of the alleged offenses and the community.

See TEX. CODE CRIM. PROC. ANN. art. 17.15; see also Ludwig v. State, 812 S.W.2d

323, 324 (Tex. Crim. App. 1991); Golden v. State, 288 S.W.3d 516, 518 (Tex.

App.—Houston [1st Dist.] 2009, pet. ref'd). In determining an appropriate amount

of bail, the trial court may also consider a defendant's work record, his family and

community ties, his residence, his prior criminal record, his conformity with

previous bond conditions, and the aggravating factors alleged to have been involved

in the charged offenses. See Ex parte Rubac, 611 S.W.2d at 849–50; Montalvo, 315

10

S.W.3d at 593. The burden of proof is on the defendant who claims that his bail is

excessive. See Ex parte Rubac, 611 S.W.2d at 849; Montalvo, 315 S.W.3d at 592.

The trial court has set appellant's bail at $75,000 for each of the ten felony

offenses of possession of child pornography with which appellant is charged for a

total bail amount of $750,000. We review the factors used by the trial court to set

the amounts of appellant's bail to determine whether bail is excessive.

A. Sufficiency of Bail

The primary purpose of pretrial bail is to secure a defendant's appearance at

trial on the offenses with which he is charged. See TEX. CODE CRIM. PROC. ANN.

art. 17.01; Ex parte Rodriguez, 595 S.W.2d at 550; Ex parte Vasquez, 558 S.W.2d

at 479. Appellant's work history and ties to the community bear on the amount of

bail that will suffice to ensure that appellant will appear at trial. See Ex parte Tata,

358 S.W.3d at 400; Richardson v. State, 181 S.W.3d 756, 759 (Tex. App.—Waco

2005, no pet.). Here, there is nothing in the record that would suggest that appellant

would fail to appear for trial. See, e.g., Ex parte Williams, No. 12-21-00032-CR,

2021 WL 2816404, at *2 (Tex. App.—Tyler June 30, 2021, no pet.) (mem. op., not

designated for publication); Ex parte Hernandez, Nos. 14-18-00955-CR,

14-18-00957-CR, 14-18-00958-CR, 14-18-00959-CR, 14-18-00960-CR,

14-18-00961-CR, 14-18-00962-CR, 2019 WL 1388640, at *5–7 (Tex. App.—

Houston [14th Dist.] Mar. 28, 2019, no pet.) (mem. op., not designated for

11

publication) (reducing bail amount where "[t]here [was] no evidence that [defendant

had] ever failed to appear in court, or that he [had] a history of fleeing the

jurisdiction”); Ex parte Smith, Nos. 09-06-104-CR, 09-06-105-CR, 2006 WL

1511480, at *5, *7 (Tex. App.—Beaumont May 31, 2006, no pet.) (mem. op., not

designated for publication) (noting there was "no evidence . . . that, if released,

[defendant] would not appear as required by the trial court”); see also Ex parte

Ramirez-Hernandez, No. 04-21-00340-CR, --- S.W.3d ---, 2022 WL 218770, at *4–

11 (Tex. App.—San Antonio Jan. 26, 2022, no pet.) (concluding trial court erred in

denying defendant's application for writ of habeas corpus to reduce his cumulative

bail where State presented no evidence showing defendant ever failed to appear for

court appearance and "there [was] no evidence that, if released, [defendant] would

not appear as required by the trial court”).

Camarillo, appellant's former girlfriend and friend, testified, at the hearing on

appellant's pretrial applications for writ of habeas corpus, that appellant was

thirty-four years old and from Houston. Appellant graduated from high school in

Spring and attended "some college” in the area. Appellant did not have any

significant ties to foreign countries. Before being taken into custody in August 2021,

appellant worked at FedEx "for a good amount of time.” Appellant was employed

when Camarillo initially met him three years ago. In Camarillo's opinion, appellant

was not a "flight risk.” See Ex parte Nimnicht, 467 S.W.3d 64, 68 (Tex. App.—San

12

Antonio 2015, no pet.) ("A defendant's ties to the community in which he lives can

be an assurance he will appear in court for trial. A court's review of this factor

includes an assessment of the defendant's residence history, family's ties to the

community, and work history.” (internal citations omitted)); see, e.g., Ex parte

Flores, Nos. 12-21-00079-CR, 12-21-00080-CR, 2021 WL 3922919, at *1, *5–6

(Tex. App.—Tyler Sept. 1, 2021, no pet.) (mem. op., not designated for publication)

(holding total bail amount of $825,000 excessive where defendant charged with

offenses of aggravated sexual assault of child, "sexual performance by a child,” and

"indecency with a child” because "there [was] no specific evidence that [defendant]

intend[ed] to flee”).

In his pretrial applications for writ of habeas corpus, appellant stated that he

had "significant ties to the community and [had] been a resident of Harris

County . . . for [thirty-three] years.” Before his arrest in August 2021, appellant was

living with his mother in Spring. Appellant had "no ties outside of the [United

States] and [had] only been overseas while he was enlisted in the United States

Marine Corps.” Appellant was honorably discharged from the United States Marine

Corps in 2014 and then "served an additional [four] years in the Army National

Guard” before receiving an honorable discharge in 2018. Since that time, appellant

13

had "attended college and . . . started a job working as a ramp attendant for FedEx.”6



See Ex parte Nimnicht, 467 S.W.3d at 68; Ex parte Sabur-Smith, 73 S.W.3d 436,

441 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (where defendant charged with

second-degree felony offense of sexual assault, appellate court held $150,000 bail

amount to be excessive and reduced bail to $30,000, while noting defendant "had

lived in the community for three years, had extensive family ties to the area,” and

had good work record); see also Ex parte Smith, 2006 WL 1511480, at *1–7 (where

defendant charged with offenses of aggravated sexual assault of child and indecency

with child, appellate court held $250,000 bail amount for aggravated sexual assault

offense and $200,000 bail amount for indecency with child offense to be excessive

and reduced bail to $50,000 and $25,000, respectively, while noting defendant had

excellent work record, no criminal history, and significant ties to prosecuting

county).

The Certificate of Release or Discharge from Active Duty from the United

States Marine Corps, a copy of which the trial court admitted into evidence at the

hearing on appellant's pretrial applications for writ of habeas corpus, states that

appellant entered active duty in 2010 and was released from active duty in 2014. As

to appellant's "Place of Entry into Active Duty,” the certificate lists Houston, and as

6 Appellant attached a declaration to his pretrial applications for writ of habeas corpus

"declar[ing] under penalty of perjury” that the statements made in his applications

were "true and correct.”

14

to appellant's "Home of Record at Time of Entry,” the certificate lists Spring. As to

appellant's nearest relative at the time of appellant's release from active duty, the

certificate lists appellant's mother and her address in Spring.

At the hearing on appellant's pretrial applications for writ of habeas corpus,

the State presented no witnesses and failed to submit any evidence to the trial court

in an attempt to controvert appellant's evidence presented to the trial court. See Ex

parte Smith, 2006 WL 1511480, at *5 (holding bail amounts set by trial court were

excessive when State failed to produce evidence to controvert or rebut defendant's

evidence). And the State and appellant's counsel told the trial court at the hearing

on appellant's pretrial applications for writ of habeas corpus that they had agreed

that appellant's bail should be set at $15,000 for each of the ten felony offenses with

which appellant is charged. The State, in its closing argument at the hearing,

"ask[ed] for $15,000 for each bond – for each case” based on appellant's

employment with FedEx, "his community ties with his family being in Spring,” his

military history, and the fact that appellant had been in custody since August 2021.

See Ex parte Nimnicht, 467 S.W.3d at 68. It is safe to assume that the State, in

agreeing to a $15,000 bail amount in each of appellant's ten cases, believed that

amount to be sufficient to give reasonable assurance that appellant would comply

with the trial court's orders and appear at trial. See Ex parte Williams, 2021 WL

2816404, at *2 ("It is safe to assume that the State, in agreeing to a total bail of

15

$100,000, believed this amount sufficient to give reasonable assurance that

[defendant] would comply with court orders and appear for trial.”); see also Ex parte

Cravens, 220 S.W.2d 467, 468 (Tex. Crim. App. 1949) (State agreed with defendant

"that bail in sum of $1[,]500 would be reasonable and sufficient” and trial court "by

virtue of the stipulation . . . set the amount of [defendant's] bail at $1[,]500”).

This evidence weighs in favor of a determination that the bail amounts set by

the trial court were excessive and in favor of a reduction of the bail amount set in

each of appellant's ten cases. See Ex parte Tata, 358 S.W.3d at 400 (evidence of

family and community ties to area weighed in favor of reduction of bail amount).

B. Nature and Circumstances of the Offenses

The trial court must consider the nature and surrounding circumstances of the

charges against appellant in setting his bail amounts. See TEX. CODE CRIM. PROC.

ANN. art. 17.15(3); Golden, 288 S.W.3d at 518; see also Ex parte Sells, No.

02-20-00143-CR, 2020 WL 7639574, at *3 (Tex. App.—Fort Worth Dec. 23, 2020,

no pet.) (mem. op., not designated for publication) (noting "bail is not set in a

vacuum” and courts "must consider the nature and surrounding circumstances of the

charges against” defendant); Ex parte Nimnicht, 467 S.W.3d at 67 ("When

determining reasonable bail, a trial court shall give the most weight to the nature of

the offense and the length of the possible sentence.”). When the offenses charged

are serious and involve potentially lengthy sentences, a defendant may have a strong

16

incentive to flee the jurisdiction and bail must be set sufficiently high enough to

secure the defendant's presence at trial. See Ex parte Castillo-Lorente, 420 S.W.3d

884, 888 (Tex. App.—Houston [14th Dist.] 2014, no pet.); see also Compian v.

State, 7 S.W.3d 199, 200–01 (Tex. App.—Houston [14th Dist.] 1999, no pet.)

(nature of offense plays role in fixing amount of pretrial bail because "where the

nature of the offense is serious and involves aggravating factors, the likelihood of a

lengthy prison sentence following trial is great”; thus, pretrial bail in such cases

"should be set sufficiently high to secure the presence of the [defendant] at trial”).

Appellant is charged with the ten separate felony offenses of possession of

child pornography. See TEX. PENAL CODE ANN. § 43.26(a). Each offense constitutes

a third-degree felony offense. See id. § 43.26(d); see also Assousa v. State, No.

05-08-00007-CR, 2009 WL 1416759, at *4 (Tex. App.—Dallas May 21, 2009, pet.

ref'd). Generally, the felony offense of possession of child pornography is

considered to be serious in nature. See Ex parte Bentley, No. 10-15-00301-CR, 2015

WL 9592456, at *3 (Tex. App.—Waco Dec. 31, 2015, no pet.) (mem. op., not

designated for publication) ("[P]ossession of child pornography is a serious

offense.”); Savery v. State, 767 S.W.2d 242, 245 (Tex. App.—Beaumont 1989, no

pet.) ("The Texas Legislature has obviously determined that it was necessary to

prohibit possession of child pornography in order to halt sexual exploitation and

abuse of children. . . . [C]hild pornography is . . . damaging to the child

17

victim . . . inasmuch as the helpless child's actions are reduced and memorialized on

a recording or film and that type of pornography may haunt and damage the child

for many long years in the future . . . .”).

Yet, we note that there was no evidence presented at the hearing on appellant's

pretrial applications for writ of habeas corpus about the nature and circumstances of

the ten offenses with which appellant is charged. See, e.g., Ex parte Williams, 2021

WL 2816404, at *2–4 (where "[n]o . . . evidence was presented regarding the nature

or details of the” sexual assault of child offenses and indecency of child offenses

that defendant allegedly committed, appellate court concluded that trial court erred

in setting appellant's bail at $75,000 for each offense for total bail amount of

$600,000). And the trial court did not take judicial notice of the district clerk's

record in any of appellant's ten cases, which would have, at the time, contained the

complaints and the probable cause affidavits related to appellant's cases and could

have provided details as to the nature and circumstances of the offenses with which

appellant is charged.

7

Cf. Ex parte Jackson, 257 S.W.3d 520, 522–23 (Tex. App.—

7 The State, in closing argument at the hearing on appellant's pretrial applications for

writ of habeas corpus, attempted to explain to the trial court the nature and

circumstances of the offenses with which appellant is charged, but counsel's

statements during closing argument are not evidence. See Mata v. State, 1 S.W.3d

226, 228 (Tex. App.—Corpus Christi–Edinburg 1999, no pet.). The State did not

present any witnesses nor submit any evidence to the trial court as to the nature and

circumstances of the felony offenses with which appellant is charged. Further, even

if we were to consider the statements made by the State during its closing argument

that briefly discussed the offenses with which appellant is charged, as the State urges

us to do in its appellee's brief, we note that the State, with full knowledge of the

18

Texarkana 2008, no pet.) (noting although little testimony was given at hearing on

defendant's habeas application, trial court took judicial notice of complaint, arrest

warrant, and attachments and thus "had information before it setting out the nature

of the offense”).

As to the potential punishment appellant faces for the third-degree felony

offenses with which he is charged,8

each third-degree felony offense has a range of

punishment of confinement for two to ten years and a fine not to exceed $10,000.

See TEX. PENAL CODE ANN. § 12.34 ("Third Degree Felony Punishment”). If

appellant is found guilty of more than one felony offense of possession of child

pornography, the trial court has the discretion to order appellant's sentences to run

consecutively. See TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (trial court vested

with discretion to order two or more sentences to run either concurrently or

consecutively); Beedy v. State, 250 S.W.3d 107, 110 (Tex. Crim. App. 2008); see

details of the alleged offenses, still asked the trial court to set appellant's bail at

$15,000 for each of the ten felony offenses. See Ex parte Williams, No.

12-21-00032-CR, 2021 WL 2816404, at *2 (Tex. App.—Tyler June 30, 2021, no

pet.) (mem. op., not designated for publication) ("It is safe to assume that the State,

in agreeing to a total bail of $100,000, believed this amount sufficient to give

reasonable assurance that [defendant] would comply with court orders and appear

for trial.”).

8

"[W]hen considering the nature of the offense[s] [charged] in setting [a defendant's]

bail” amounts, the trial court may consider "the punishment permitted by law” for

the offenses with which the defendant is charged. See Ex parte Vasquez, 558

S.W.2d 477, 480 (Tex. Crim. App. 1977); see also Ex parte Ivey, 594 S.W.2d 98,

99 (Tex. Crim. App. [Panel Op.] 1980).

19

also DeLeon v. State, 294 S.W.3d 742, 745 (Tex. App.—Amarillo 2009, pet. ref'd)

("Generally, a defendant has no right to serve sentences imposed for different

offenses concurrently . . . .”). Thus, if appellant is found guilty of all ten felony

offenses of possession of child pornography and his punishment is assessed at

confinement for ten years for each offense, then he could ultimately face

confinement for one hundred years if the trial court orders his sentences to run

consecutively. See, e.g., Ex parte Bentley, 2015 WL 9592456, at *3 (noting

possession of child pornography "is a third[-]degree felony [offense] and carries a

maximum punishment of [ten] years” and defendant's sentences could be

"stacked”). And if convicted of the third-degree felony offense of possession of

child pornography, appellant will be required to register as a sex-offender. See TEX.

CODE CRIM. PROC. ch. 62; Ex parte Castille, No. 01-20-00639-CR, 2021 WL

126272, at *4 (Tex. App.—Houston [1st Dist.] Jan. 14, 2021, no pet.) (mem. op.,

not designated for publication). Nevertheless, it is possible that if appellant is found

guilty of any of the felony offenses of possession of child pornography, his

punishment may not include confinement and instead he may be placed on

community supervision. See, e.g., Ex parte Jones, 473 S.W.3d 850, 853 (Tex.

App.—Houston [14th Dist.] 2015, pet. ref'd) (defendant convicted of three

third-degree felony offenses of possession of child pornography and placed on

community supervision); Brackens v. State, 312 S.W.3d 831, 833 (Tex. App.—

20

Houston [1st Dist.] 2009, pet. ref'd) (defendant convicted of third-degree felony

offense of possession of child pornography and placed on community supervision).

Although the seriousness of the ten third-degree felony offenses with which

appellant is charged and the potential sentences appellant faces weigh against a

determination that the bail amounts set by the trial court in appellant's ten cases were

excessive,9 we must remember that courts consider the nature and surrounding

circumstances of the charges against a defendant in setting his bail because when the

offenses charged are serious and involve potentially lengthy sentences, a defendant

may have a strong incentive to flee the jurisdiction and bail must be set sufficiently

high to secure the defendant's presence at trial. See Ex parte Castillo-Lorente, 420

S.W.3d at 888; see also Ex parte Nimnicht, 467 S.W.3d at 67 ("A court may also

consider the possibility a[] [defendant's] reaction to a potential lengthy

imprisonment might be to not appear for trial . . . .”); Compian, 7 S.W.3d at 200–01.

Here, however, the State told the trial court at the hearing on appellant's pretrial

applications for writ of habeas corpus that it believed that a $15,000 bail amount in

9 See Ex parte Williams, Nos. 12-18-00174-CR, 12-18-00175-CR, 2018 WL

5961309, at *2 (Tex. App.—Tyler Nov. 14, 2018, no pet.) (mem. op., not designated

for publication) ("The . . . severe punishment ranges to which [defendant] may be

subjected weigh[] in favor of the trial court's decision [to deny defendant's habeas

application and] not to reduce the amount of his bonds.”); see, e.g., Ex parte

Nimnicht, 467 S.W.3d 64, 67–68 (Tex. App.—San Antonio 2015, no pet.)

(considering defendant's potential sentence of confinement between two and ten

years and fine of up to $10,000 to be "a significant potential sentence” weighing

against bail reduction).

21

each of appellant's ten cases was all that was necessary to give reasonable assurance

that appellant would comply with the trial court's orders and appear at trial.10

See

Ex parte Williams, 2021 WL 2816404, at *2 ("It is safe to assume that the State, in

agreeing to a total bail of $100,000, believed this amount sufficient to give

reasonable assurance that [defendant] would comply with court orders and appear

for trial.”). Thus, we cannot conclude that the nature and circumstances of the ten

felony offenses with which appellant is charged necessarily weigh against a

determination that the bail amounts set by the trial court in appellant's ten cases were

excessive or that reduction of the bail amounts set in each of appellant's ten cases is

not warranted.

C. Future Safety of the Victim and Community

The trial court must also consider the future safety of the victim of the alleged

offenses and the community in setting appellant's bail amounts. See TEX. CODE

CRIM. PROC. ANN. art. 17.15(5); Golden, 288 S.W.3d at 518. We note the

seriousness of the third-degree felony offenses with which appellant has been

charged. See Ex parte Bentley, 2015 WL 9592456, at *3; Savery, 767 S.W.2d at

245; but see Ex parte Williams, 2021 WL 2816404, at *4 ("The repellent nature of

10 At the hearing on appellant's pretrial applications for writ of habeas corpus,

Camarillo, appellant's former girlfriend and friend, testified that appellant was not

a "flight risk,” and she believed that he would "abide by” any bond conditions that

the trial court imposed.

22

the accusation does not diminish the presumption of the [defendant's] innocence.”).

But there is no evidence in the record as to the future safety of any victim of the

alleged offenses or that appellant, with no prior criminal history, is a danger to the

community. See, e.g., Ex parte Williams, 2021 WL 2816404, at *2–4 (where

defendant charged with felony offenses of sexual assault of child and indecency with

child, noting defendant had no criminal record and "[n]o evidence was presented

that [defendant's] release pose[d] a danger to the alleged victim”); see also Ex parte

Ramirez-Hernandez, 2022 WL 218770, at *5 (explaining "[a] defendant's criminal

history must be evaluated to determine whether he presents a danger to the

community,” but where defendant had "never been charged with a previous crime,”

it weighed against setting high bail amount).

At the hearing on appellant's pretrial applications for writ of habeas corpus,

Camarillo, appellant's former girlfriend and friend, testified that appellant is

thirty-four years old. Appellant served in the United States Marine Corps for four

years before being honorably discharged. He then served in the Army National

Guard for four years before being honorably discharged. Appellant did not have a

criminal history. And before being taken into custody, he worked at FedEx "for a

good amount of time.” Camarillo stated that appellant was "a law-abiding citizen.”

In Camarillo's opinion, appellant was not a "flight risk,” and she believed that he

would "abide by” any bond conditions that the trial court imposed.

23

1. In his pretrial applications for writ of habeas corpus,11 appellant stated

that before his arrest in August 2021, he was living with his mother in

Spring.12

Cf. Ex parte Castille, 2021 WL 126272, at *1, *6–7 (where

defendant charged with five felony offenses of possession of child

pornography, one felony offense of compelling prostitution of child,

and one felony offense of "trafficking of a child” and he "averred that

he resided with his two minor sons and [had] a minor daughter, who he

indicated [was] the complainant,” appellate court upheld bail amounts

set at $25,000 for each offense of possession of child pornography,

$100,000 for offense of compelling prostitution of minor, and $100,000

for offense of trafficking of a child). Appellant also explained that he

was honorably discharged from the United States Marine Corps in 2014

and then "served an additional [four] years in the Army National

Guard” before receiving an honorable discharge in 2018. Since that

time, appellant had "attended college and . . . started a job working as

a ramp attendant for FedEx.” Appellant asserted that he had "no prior

criminal history and all charges [against him arose] out of the same

11 Appellant attached a declaration to his pretrial applications for writ of habeas corpus

"declar[ing] under penalty of perjury” that the statements made in his applications

were "true and correct.”

12 There is no evidence that appellant lives with minor children.

24

transaction.” Because appellant had "no criminal history and ha[d]

strong ties to the community,” appellant stated that he was "not a

danger to the community or a flight risk.” According to appellant, the

trial court could "set conditions of [his release on] bond . . . such as [a]

curfew, electronic monitoring, and restriction on access to the internet.”

See Ex parte Williams, 619 S.W.2d 180, 183 (Tex. Crim. App. 1981)

(ordering bail amount reduced from $100,000 to $15,000 where

defendant "expressed a willingness to comply with whatever

reasonable conditions attending his release on bail the [trial] court

might impose in light of the nature of the offenses with which he” was

charged); Ex parte Bentley, 2015 WL 9592456, at *1–3 (where

defendant was "indicted on six counts of possession of child

pornography,” holding bail amount of $250,000 was excessive when

defendant had no criminal history, had significant ties to community,

had family living in area, and had stable work history).

At the hearing on appellant's pretrial applications for writ of habeas corpus,

the State presented no witnesses nor submitted any evidence to the trial court in an

attempt to controvert appellant's evidence presented to the trial court. See Ex parte

Smith, 2006 WL 1511480, at *5 (holding bail amounts set by trial court were

excessive when State failed to produce evidence to controvert or rebut defendant's

25

evidence). The State, in its closing argument at the hearing on appellant's pretrial

applications for writ of habeas corpus, requested that the trial court set bail at

$15,000 for each of the ten felony offenses with which appellant is charged. The

State made such a request based on appellant's lack of criminal history, his

employment with FedEx, "his community ties with his family being in Spring,” and

his military history.13

The evidence weighs in favor of a determination that the bail amounts set by

the trial court were excessive and in favor of a reduction of the bail amount set in

each of appellant's ten cases. See Ex parte Ramirez-Hernandez, 2022 WL 218770,

at *6 (where no evidence presented about lack of safety for alleged victim if

defendant released, it "weigh[ed] in favor of a lower bond”); Ex parte Williams,

2021 WL 2816404, at *2–4 (concluding trial court erred in setting total bail amount

of $600,000 where defendant had "a good work record and no prior criminal history”

and "[t]here [was] nothing in the record indicating that [defendant's] . . . release put

the safety of the alleged victim at risk”).

13 The State, in its appellee's brief, does not argue that the future safety of any victim

of the alleged offenses or the future safety of the community necessitate a bail

amount set at $75,000 for each of the ten offenses with which appellant is charged.

It does not assert that appellant is a danger to the community.

26

D. Ability to Make Bail

Although the ability or inability to make bail does not control the amounts of

bail set, it is a factor that the trial court must consider in setting a defendant's bail

amounts. See TEX. CODE CRIM. PROC. ANN. art. 17.15(4); Ex parte Rodriguez, 595

S.W.2d at 550; Golden, 288 S.W.3d at 518–20. A defendant's inability to pay the

bail amounts set by the trial court does not automatically render the amounts

excessive. See Ex parte Vance, 608 S.W.2d 681, 683 (Tex. Crim. App. 1980); Ex

parte Scott, 122 S.W.3d 866, 870 (Tex. App.—Fort Worth 2003, no pet.). If the

defendant's ability to make bail controlled the amount that the defendant paid, then

the trial court's role in setting the bail amounts would be eliminated and the

defendant would be in the position to determine the amounts of bail. Milner, 263

S.W.3d at 150. But bail set in an amount that cannot be satisfied has the potential to

displace the presumption of innocence. See Ex parte Peyton, No. 02-16-00029-CV,

2016 WL 2586698, at *4 (Tex. App.—Fort Worth May 5, 2016) (mem. op., not

designated for publication), pet. dism'd, No. PD-0677-16, 2017 WL 1089960 (Tex.

Crim. App. Mar. 22, 2017) (not designated for publication); Ex parte Bogia, 56

S.W.3d 835, 840 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

Appellant has been in custody since he was arrested in August 2021.

Appellant's inability to "make bail” or post a bond since that time is a factor that

must be considered. See Ex parte Rincon, Nos. 04-13-00715-CR to

27

04-13-00718-CR, 2014 WL 2443870, at *3 (Tex. App.—San Antonio May 28, 2014,

no pet.) (mem. op., not designated for publication) (defendant's "inability to make

bail for . . . months is a factor to be considered”); Ex parte Henson, 131 S.W.3d 645,

650–51 (Tex. App.—Texarkana 2005, no pet.) (noting "[t]here [was] no evidence

[that defendant had] previously been able to post a significant bond,” when

determining amount of bail set by trial court to be excessive); Ex parte Sabur-Smith,

73 S.W.3d at 440–41 (where defendant had "remained in jail [for] more than 110

days without making bail,” holding he "established [that] he did not have access to

$15,000 to pay a bond premium, or possess $150,000 of assets to serve as security

for a bond in that amount” and $150,000 bail amount set by trial court was

excessive); Ex parte Bogia, 56 S.W.3d at 837, 840 (considering defendant was

confined in jail for six months as evidence that he could not make bail and

concluding that $360,000 bail amount was "less justifiable the longer” pretrial

detention continued). At the hearing on appellant's pretrial applications for writ of

habeas corpus, Camarillo, appellant's former girlfriend and friend, stated that she

had talked to appellant's family and the family could not afford the current bail

amount that was set. Appellant's trial counsel, in his closing argument at the hearing,

told the trial court that appellant and the State had agreed for bail to be set at $15,000

for each of the ten felony offenses with which appellant is charged.

28

While ordinarily a defendant must present evidence of his specific assets or

financial resources and explain what efforts, if any, were made by appellant to

furnish bail in the amounts set by the trial court,

14 given that appellant has been in

custody since August 2021, his inability to make bail is clear. See Ex parte Dueitt,

529 S.W.2d 531, 532 (Tex. Crim. App. 1975) (excusing absence of such evidence

because court should not require defendant to do "a useless thing” (internal

quotations omitted)); Ex parte Bellanger, No. 12-09-00246-CR, 2009 WL 4981457,

at *3 n.3 (Tex. App.—Tyler Dec. 23, 2009, no pet.) (mem. op., not designated for

publication) (not requiring defendant to show "he [had] tried and failed to make

bail”); Ex parte Bogia, 56 S.W.3d at 837. In asking the trial court to set appellant's

bail at "$15,000 for each bond – for each case,” the State, in its closing argument at

the hearing on appellant's pretrial applications for writ of habeas corpus, stated that

it based its request in part on the fact that appellant had been in custody since August

2021—apparently recognizing appellant's inability to make bail at the high dollar

amount set by the trial court.

14 See, e.g., Ex parte Bordelon, No. 04-20-00364-CR, 2021 WL 1988259, at *7 (Tex.

App.—San Antonio May 19, 2021, pet. ref'd) (mem. op., not designated for

publication) ("A defendant should ordinarily offer evidence of his available

resources and his unsuccessful attempts to post bail in the current amount. To show

that he is unable to make bail, a defendant generally must show that his funds and

his family's funds have been exhausted.” (internal citations and quotations

omitted)).

29

The evidence of appellant's inability to make bail, although not

determinative, weighs in favor of a determination that the bail amounts set by the

trial court were excessive and in favor of a reduction of the bail amount set in each

of appellant's ten cases.

E. Whether Bail is Being Used as an Instrument of Oppression

Bail needs to be sufficiently high to give reasonable assurance that a defendant

will appear at trial for the offenses charged. See Ex parte Dupuy, 498 S.W.3d 220,

232 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Yet, when bail is set so high

that a person cannot realistically pay for it, the trial court essentially "displaces the

presumption of innocence and replaces it with a guaranteed trial appearance.” Id. at

233 (internal quotations omitted). Bail may not be used as an instrument of

oppression. See Ex parte Guerra, 383 S.W.3d 229, 233–34 (Tex. App.—San

Antonio 2012, no pet.); see also TEX. CODE CRIM. PROC. ANN. art. 17.15(2). Bail

set in a particular amount becomes oppressive when it assumes that the defendant

cannot afford bail in that amount and when it is set for the express purpose of forcing

the defendant to remain incarcerated. See Ex parte Nimnicht, 467 S.W.3d at 70; Ex

parte Durst, 148 S.W.3d 496, 499 (Tex. App.—Houston [14th Dist.] 2004, no pet.)

(where bail amount set "solely to prevent [defendant] from getting out of jail,” "bail

[was] being used as an instrument of oppression”).

30

Here, there is no direct evidence that the trial court set appellant's bail

amounts at $75,000 for each of the ten felony offense of possession of child

pornography, for a total bail amount of $750,000, to keep appellant incarcerated.

See Ex parte Dupuy, 498 S.W.3d at 233; Ex parte Nimnicht, 467 S.W.3d at 70; cf.

Ex parte Harris, 733 S.W.2d 712, 714 (Tex. App.—Austin 1987, no pet.) (trial court

stated, "I'd rather see him in jail than to see someone's life taken”). But the Texas

Code of Criminal Procedure only requires bail to be set in an amount that is

"sufficiently high to give reasonable assurance” a defendant will appear at trial. See

TEX. CODE CRIM. PROC. ANN. art. 17.15(1); see also Ex parte Dupuy, 498 S.W.3d at

232 (bail needs to be sufficiently high to give reasonable assurance that defendant

will appear at trial for the offenses charged). "It is not the purpose of bail . . . to

'guarantee' a defendant's appearance at trial.” Ex parte Bogia, 56 S.W.3d 840.

At the hearing on appellant's pretrial applications for writ of habeas corpus,

the State asked the trial court to set bail at $15,000 for each felony offense with

which appellant is charged, for a total bail amount of $150,000. Instead, the trial

court set bail at $75,000 for each of the felony offenses with which appellant is

charged, for a total bail amount of $750,000—five times higher than what the State

at the hearing believed to be an amount sufficient to give reasonable assurance that

appellant would comply with the trial court's orders and appear at trial. See Ex parte

Williams, 2021 WL 2816404, at *2 ("It is safe to assume that the State, in agreeing

31

to a total bail of $100,000, believed this amount sufficient to give reasonable

assurance that [defendant] would comply with court orders and appear for trial.”).

This evidence weighs in favor of a determination that the bail amounts set by the

trial court were excessive and in favor of a reduction of the bail amount set in each

of appellant's ten cases. See Ludwig, 812 S.W.2d at 325 (bail amount approaching

seven figures is almost never required even in capital cases).

F. Guidance from Other Caselaw

Although the appropriate amount of bail is an individualized determination, a

review of other cases can be instructive. Ex parte Dupuy, 498 S.W.3d at 233.

"Courts traditionally set somewhat higher bail in cases involving offenses against

children.” Ex parte Flores, 2021 WL 3922919, at *5. But "the right to reasonable

bail is a complement to and based on the presumption of innocence” and "[t]he

repellent nature of the accusation[s] [against a defendant] does not diminish the

presumption of [his] innocence.” Id.; see also Nguyen v. State, 881 S.W.2d 141, 143

(Tex. App.—Houston [1st Dist.] 1994, no pet.).

Here, the trial court set appellant's bail amount at $75,000 for each of the ten

felony offenses with which appellant is charged, making the total bail amount

$750,000. Cf. Ludwig, 812 S.W.2d at 325 (bail amount approaching seven figures

is almost never required even in capital cases); Ex parte Dupuy, 498 S.W.3d at 233

(noting "amounts between $500,000 and $750,000 have been upheld in murder

32

cases”). The bail amounts set by the trial court are not necessarily akin to other cases

involving a defendant charged with the third-degree felony offense of possession of

child pornography. See, e.g., Ex parte Castille, 2021 WL 126272, at *4, *7 (holding

trial court did not err in denying defendant's request for lower bail amount, where

bail was set at $25,000 for each possession of child pornography felony offense); Ex

parte Bentley, 2015 WL 9592456, at *1–3 (holding trial court erred in setting bail at

$250,000 where defendant "indicted on six counts of possession of child

pornography”; appellate court set bail at $50,000 for all "six counts of possession of

child pornography”); Ex parte Cosby, Nos. 07-02-0482-CR, 07-02-483-CR, 2003

WL 21994760, at *2 (Tex. App.—Amarillo Aug. 21, 2003, no pet.) (mem. op., not

designated for publication) (holding trial court did not err in declining to reduce bond

amount, which was set at "$100,000 for [seventeen] counts of possession of child

pornography,” which amounted to "less than $6,000 per count”); see also Ex parte

Flores, 2021 WL 3922919, at *1–6 (holding total bail amount of $825,000 to be

excessive, even though defendant charged with offenses of aggravated sexual assault

of child, "sexual performance by a child,” and "indecency with a child”).

An examination of other cases involving the same offenses with which

appellant is charged weighs in favor of a determination that the bail amounts set by

the trial court were excessive and in favor of a reduction of the bail amount set in

each of appellant's ten cases.

33

"We acknowledge that setting reasonable bail presents trial courts with the

difficult task of weighing the specific facts of a case against many, often

contravening factors, and often in the face of scant evidence.” Ex parte

Ramirez-Hernandez, 2022 WL 218770, at *11 (internal quotations omitted). We

note that there is no indication that the combined $750,000 bail amount set by the

trial court was used as an instrument of oppression and that the possible sentences

that appellant faces if convicted are not insignificant. But, given the balance of all

the relevant factors discussed above,15 we conclude that the trial court erred by

setting appellant's bail at $75,000 for each of the ten felony offenses of possession

of child pornography for a total bail amount of $750,000 because the bail amounts

were excessive. And we hold that the trial court erred in denying in part appellant's

pretrial applications for writ of habeas corpus.

We sustain appellant's sole issue.

We reverse the orders of the trial court and remand the cases to the trial court

for further proceedings consistent with this opinion.