## NO S

. 12

- 21

- 00079

- CR 12

- 21

- 00080

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

EX PARTE:

BAUDELIO FLORES § § § APPEAL S FROM THE 2 73RD

JUDICIAL DISTRICT COUR T

SABINE COUNTY, TEXAS

MEMORANDUM OPINION Baudelio Flores appeals from a trial court order denying relief o n his application for writ of habeas corpus seeking a reduction in bail. We reverse and remand.

B ACKGROUND On Mar ch 3 , 2021, Appellant was a rrested and charged by indictment with aggravated sexual assault of a minor , his seventeen

- year
- old daughter . Th e trial court originally set his bail at $35 0,000. Appellant filed a pretrial application for writ of habeas corpus see king a bail reduction t o $75,000. Following a hearing, the trial court reduced Appellant’s bond to $175,000 and included additional con ditions for protection of the victim and the public. Appellant posted bond and was released on March 12. Appellant aga in was arrested on Apri l 1 and charged with additional charges of sexual performance by a child and indecency with a child. The alleged victims of those charges are his
seventeen

- year
- old daughter and eleven

- year
- old daughter, respectively. The trial cou rt set Appellant’s bail at $300,000 for the sexual performance charge and $350,000 for the indecency charge or a total bail amount of $6 50,000 . When combined with the previous bon d, the total bail amount is $825,000. Appellant filed a pretrial applic atio n for writ of habeas co rpus seeking bail reduction in each case. Following a hearing, the trial court denied the applications and left the2 bonds intact. The trial court also ruled that, if Appellant were to post bond in the future, he must wear an ankle monitor and remain in Sabine County. This proceeding followed.

A MOUNT OF B OND In his sole issue, Appellant argues th at the trial court abused its discretion by de clining to reduce the amount of his bail bonds for the sexual performa nce and indecency ch arges , which he contends are excessive and oppressive in light of his economic circumstances and the nature of the alleg ed offenses. Standard of Review The decision r egarding a proper bail amount lies within the sound discretion of the trial
court. T EX

. C ODE C RI M

. P ROC

. A NN

. art. 17.15 (West 2019 )

. Accordingly, we review the trial
court ’ s ruling on a request to reduce bai l under an abuse of discretion standard. See Ex parte Rubac
, 611 S.W.2d 848, 850 (Tex. Crim. App. 1981) ; Clemons v. State
, 220 S.W.3d 1 76, 178 (Tex. App.

— Eastland 2007, no pet.) (per curiam). In determining whether the trial court abused its discretion, we d o not substitute our judgment for that of the trial court. Montgomery v. State
, 810 S.W.2d 372, 379

- 80 (Tex. Cr im. App. 1990)

. The purpos e of our review is to determine whether the trial court ’ s decision was made without reference to any guiding rule s or p rinciples of law, or in other words, whether the decision was arbitrary or unreasonable. Id

. at 380. An abus e of discretion occu rs when a trial court ’ s decision is so clearly wrong as to lie outside the zone of reasonable disagreement. Id

. at 391 (op. on r eh ’ g). Applicable Law The primary purpose of setting a pretrial bond should be to secure Appellant ’ s prese nce at trial. See E x parte Rodriguez , 595 S.W.2d 549, 550 (Tex. Crim. App. [Panel Op.] 1980); Ex parte Rincon , Nos. 04

- 13

- 00715

- CR

– 04

- 13

- 00 718

- CR, 20 14 WL 2443870, at *1 (Tex. App.

– San Antonio May 28, 2014, no pet.) (mem. op., not designated for publicati on). The amount of
t he bond necessary to achieve that purpose is committed to the trial court ’ s sound discretion, although its discretion is bounded a nd guided by constitutional and statutory provisions. See Ex parte Estrada , 398 S.W.3d 723, 724 (Tex. App

. – San Antonio 2008, no pet. ). The federal constitution, our state constitution, and our state laws prohibit “excessive” bail. U.S. C ONST

.
a mend. VIII; T EX

. C ONST

. art. I, § 13; T EX

. C ODE C RIM

. P ROC

. A NN

. art. 1.09 (West 2019 ).3 Article 17.15 of the Texas Code of Criminal Pro cedure provides that “bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with[;]” h o wever, “[t]he power to requ ire bail is not to be so used as to make it an instrument of oppression.” T E X

. C ODE C RIM

. P ROC

. A NN

. ar t. 17.15(1), (2). Although a defendant ’ s ability to make bail must be considered, it is not a controlling consid eration. See i d

. art. 17.15(4); Rodriguez , 595 S.W.2d at 550. The trial court also must consider the nature of the defendant ’ s offense s and t he circumstances under which he allegedly committed them as well as the future safety of the community if the def endant is relea s ed on bail. See T EX

. C ODE C RIM

. P ROC

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. art. 17.15(3), (5). Apart from these statutory consider ations, the trial co urt als o may consider the defendant ’ s links to the community, including his family ties, employment history, prior crimi nal record, the e x istence of other bonds agai nst him, and his compliance with the conditions of those bonds. See Es trada , 398 S.W.3d at 724. H earing on Application At the second bond reduction hearing, Joseph MacDonough , an investigator with the Sabine C ounty Sheriff’s Of f ice, testified that he worked the initial case involving the aggravated sexual assault of a child . In that case, the outcry was made by Appellant’s oldest daughter. She claimed the assaults began when she was fourteen years old, and sh e was seventeen at the time of the outcry. She has two younger sisters, ages fourteen and eleven, and a younger bro ther. MacDonough te stified that after the previous bond reduction hearing, he learned of further allegat ions against Appellant. MacDonough stated:

During h e r interview she made an outcry that

– at the request of the defendant, she made a video of her ma sturbating

-- she di dn't us e that word, of course

-- Q. Was it

--
A.

-- we were able to locate the actual recording device, the original iPo d that recorded it

. They turned it over to me. In the text messages area there was a video, somewhere around two, tw o and a half minutes of

– w ould show that victim naked, exposed, exposing her genitals and her brea sts, fingering herself in her private are a. That message wa s sent to dad, listed in the phone as dad, and that was in May of 2013, if I remember the date bac k

– on the date corr ectly. But as I figured it up, she would have been 13 years, 9 months when she made that video and sent it to dad.
Q. So she would have be e n younger than 14 at that time?

A. That is correct.4 MacDonough then obtained a search warrant fo r the rest of the de vice an d files and an arrest warrant. MacDonough also testified that Appellant’ s eleven

- year
- old daughter outcried “a w eek or two after t h e initial interview of” the seventeen

- year
- old. In that outcry, Appellant was “grabbing her brea sts in the kitchen

. . . w ith his fingertips.” That outcry led to an additional charge against App ellant. MacDonough testified that he de termined Appellant is a legal, permanent resident of the United States. This means Appellant is permitted to work a nd reside in the Uni ted Sta tes but he is not a United States citizen. MacDonough testified that App ellant c ould go to Mexico wit hout showing a pas s port. MacDonough further opined that, due to the nature of the charges against him and his legal status, Appellant is a “fl ight risk” if released on bond. He further opined that Appellant is a danger to the victims and/or commu nity if released. MacDonough testified that the seventeen

- year
- old told him that she is afraid of App ellant and that “she honest ly thought that he was goi ng to kill her.” At the hearing, the trial c ourt took judicial notice of the testimo ny and evidence ad m itted in the bond reduction hearing on the aggravated sexual assault charge. Therefore, we inclu de it in our analysis as we ll. At that first bond re duction hearing, David Chance testified that he is the owner of Chance Construction. H e further testified that Appellant has been an employee for more than twenty

- five years and is currently the lead fo reman/superintendent. Chan ce described Appellant

as dependable and reliable . According to Chance, Appellant runs a crew and is es sential to the

cons t ruction company’s operations. He further stated that the charges against Appellant are “out of character.” Chance stated that he does not believe Appellant to be a flight risk and that he would d o his part to ensure Appellant sho ws up for court whe n required. Tom Cryer, the vice president for Chance Construction, also testified at the first hearing. Cryer testified that he works with Appellant daily and h as known him for more than twenty

- five years. He characterized Appellant as “one of the mos t dependable people.” He further opined that Appellant would not pose a danger to the victim or the public and would not be a flight risk. Maria Flores, Appella nt’s sister

- in

- law, testified that the family tried to raise the money
to hire a bail bondsm a n for the original $350,000 bond. Maria stated that the bondsman quoted her a $35,000, or ten p ercent, fe e. She testified that they would be able to secure Appel lant’s release if the bond were reduced to $75,000. Maria said that Appe llant would stay wi t h her and5 her family upon release, which meant he would not present a danger to the victim. The re was no evidence of Appel lant having a criminal h istory. MacDono ugh al so testified at the first bond reduction hearing. He testified tha t the victim indicat e d in her interview that “activities” with her and Appellant “h ad been occurring since she was f ourteen ,” and even discusse d penetration. In her interview, she to ld the investigator that it happened “more than twenty times.” MacDonoug h further testified a s follows:

Q. Okay. And what happened the last time? What bro ught it to the point to where now she made the outcry?

A. Fe bruary 28th of this year she was out hun ting wi th her father, the defendant, in the woods, right off of 83 East c lose to 3121. She in d icated that that is where half the assaults would occur, the o ther half being at the home when mom and the other kids were gone. But she was the only one that wou ld go h unting with him. They went out there to hog hunt. She indicated th at he attempted to g r ab her breasts, and she fled off into the woods. She called he r sister. Took off her pink

-- sh e had her pink jacket, she threw that in the woods because she want ed to b e able to hide. The sister and the mother pulled up to this fire s ervice Road 151, I b e lieve, it is. But anyway, she
comes out of the woods. They get his shotgun and his cell phone o ut of his truck, get in the car with the mother, and her mother dri ves str aight to the sheriff ’ s office. Q. Okay. So based on your investiga tion, you obtained a warrant, or warrants, for

– A. A warrant for aggravated sexual assault of a child. It’s aggrava ted because during the cour se of the assaults he would tell the vic tim tha t if she told anyone he would either kill her or start doing the s ame thing to her y ou nger sister.

Analysis The record in this case does contai n some evidence supporting a higher bail amount. For instance, the nature of the offense and the circu mstances under which it was allegedly committed are factors to be conside red, and this nec e ss arily involves the punish ment permitted by law. E x parte Cl ark , 537 S.W.2d 40, 42 (Tex. Crim. A pp. 19 76 ). Appellant is ch arged with indecency with a child and se xual performance by a child. The indecency charge is a second degree fel ony punishable by im prisonment of no more than twenty years but no less than two years. T EX

. P ENAL C ODE A NN

. §§ 21. 11(d) (West 2019), 12.33 (W est 2019). The sexual performance charg e, because the alleged victim was younger than fourteen years old at the tim e of the offense,6 is a first degree felony punishable by impris onment for no less than five years but no more tha n ninety

- nine years or life in prison

. Id. §§ 43.25 (c) (West Supp. 2020), 12.32 (West 2019 ). 1 T he record also demonstrates that while A ppe l lant is employed , he is re lying on family for help paying any bail bond. But his family lacks the ability to po st the current bonds. Whil e the ability or inability of an accused to make bail is not dispositive, it is a factor to be considered. Rodri gue z , 595 S.W.2d at 550. The evidence at the hearing demonstrates Appellant was able to post the $17,500 toward the previous $175,000 bond and that he previously could not raise the $35,000 toward the original $350,000 bond. Yet, the trial court set the cur r en t bond s at a

c ombined $650,000, which is more than three times higher tha n the previous bond , which Appellant has posted. In addition, t he first hearing included evidence that Appellant could post a total of $7,500 toward a $75,000 bond. In sum, th e t ota l of all three b o nds is $825,000, which is eleven times higher than what App ellant could reasonably provide, w hich constitutes a de facto setting of no bond. See DePena v. Stat e , 56 S.W.3d 926, 929 (Tex. App.

— Corpus Christi 2001, no pet.). B ail app roa chi n g seven figures is almost never required even i n capital cases. Ludwig v. State , 812 S.W.2d 323, 323 (Tex. C rim. App. 1991). Moreover, a comparison of the bail amount in this case to the amounts in other cases leads us to conclude that the bail is to o h igh

. In Clemons v. State , the defendant was charged with two cases of aggravated assault of a child and two c ases of indecency with a ch ild. Clemons , 220 S.W .3d at 177. Initia lly, total bail was set at $600,000. Id

. A fter hearing, the trial
court re duced tot al bail for al l cases to $400,000 ($75,000 in each of the indecency cases and $150,000 and $100,000 in t he aggravated sexual assaul t cases). On appeal, the Eastland Court of Appeals affirmed. Id . at 179. However, in Clemons , the defendant ha d a ttempted to persuade his w ife to flee to Mexico with him. See id

. He had also told several persons that he woul d kill himself rather than go to prison. See id

. There are no suc h circumstances present in the instant

case. In Ex parte Smith , No. 09

- 06

- 00 104

- CR, 2006 WL 1511480 (Tex. App.

— Beaumont May 31, 2006, no pet.) (mem. op., not designated for publication), th e defendant was charged wit h aggravated sexual assault of a child a nd indecency with a child. Smith , 2006 WL 1511480, at *1. The evidence s how ed that defend ant had a good wo rk record, no prior criminal history,

1 We also note that, with rega rd to the aggravated sexual ass au l t charge, Appellant faces a potential punishment of twenty

- five years to nin ety

- nine years o r life in prison. T EX

. P ENAL C ODE A NN

. § 22.021(f )(2) (West 20 19).7 and significant ties to the prosecuting coun ty. Id . at *2. The magist rate set bail at $250,000 in the aggrava ted assault case and $200,000 in the indecency case. I d . at *1. After a he aring on the defen dan t ’ s request fo r a bail reduction, the trial court set bail at $125,000 in the aggravated

sex ual assault case and $75,00 0 in the indecency with a child case. I d . The court of appeals held these amounts to be excessiv e and set bail a t $ 50,000 and $25,000. Id . at *7. In Ex parte Bennett , No. 02

- 07

- 00175

- CR, 2007 WL 3037908, at *4 (Tex. App.

— Fort W orth Oct. 18, 2007, no pet. ) (mem. op., not designated for publicat ion) , the defendant w as charged with m ultiple cou nts of aggravated sexual ass ault of a child. Ben ne t t , 2007 WL 303 7908, at * 4. In upholding t otal ba il of $600,000, the court noted th e seri ous nature of the offenses and defendant’s failure to maintai n con tact with his attorney when the bonds were originally set a t a lower amoun t. Id

. In this case, t he re is no evidence A ppellant failed to maintain contact with his attorney . Also, unlike Be nnett who was not currently employed and only had mini m al ties to the prosecuting county, Appellant ha s a long employment history and substa nt ial community ties t o t he prosecut ing co unty. In Ex parte Bratcher , Nos. 05

- 05

- 00634

- CR, 05

- 05

- 00635

- CR, 2005 WL 1 63497 1, at *5 (Tex. App.

— Da llas July 13, 2005, no pet.) (mem. op., not designated for publication) , the defendant was charged with two aggra va ted sexual assault o f a child offenses w ith total bonds of $1,000,000

. Bratcher , 2005 WL 163497 1, at *5

. In upho lding the trial court ’ s den ial of bond reduction, the court noted the defendant had pr evious ly been t r ied and con victed of sexual

ass ault of t h e s ame victim and had three prior convi ctions for sexual assaults against children. Id

. T he victims in those ca ses were students at a day c are that the defendant co

- o wned with hi s mother who still operated the facility and with whom defendant was going t o st ay while on bond

. I

d

. Further, the wo rk the defendant would be doing while on bond involved tr aveling , which would ma k e him a hi gher fli ght risk. Id. These fact s led the co urt to find the trial court st r uck the balance be tween the presumption of i nn ocence and the State ’ s in terest in assuring the defendant ’ s presence at t rial. Id

. In the present case, Appellan t does not have a criminal histor y , there is no evidence that bon d conditions cou ld not protect the alleged victims in this case , and his wo rk would not make him a hig her flight r isk. C ourts traditionally set somewhat higher bail in cases involving offense s against children. However , the right to reasonable bai l is a co mplement to and based on the presumption of innocence. See Nguyen v. S tate , 88 1 S.W .2 d 141, 143 (Tex. App.

— Houston [1 st Dist.] 1994, no8 pet.

. The repellent na tur e of the accusa tion does not diminish the presumption of the accused ’ s innocence. T he provis ion in Article 17. 15 providing that “[t]he power t o require bail is not to be so used as to make it an instrument of oppression” em br aces a warning that bail is not to be used
to insure preconviction punishment. Ex parte Williams , No. 12

- 21

- 00032

- CR, 2021 WL 2816404, at *3

– 4 (Tex. App.

— Tyler June 30, 202 1, no pet. ) (mem. op., not designated for publication)

. The State argues that be cause of the seve rity of the ch arges and the n ature o f the offen ses, there is both a risk to the community and vic tims and a r isk of flight. We agree the se a re factors which support a higher bail b ut disagree the y support a bail in the amount set

. T he ne w charges have punishmen t r ang e s less than the charge for which the court set a $175,000 .00 bond

. Further, there is no specif ic evidence tha t Appellant intends to flee. See Ex parte Bellanger , No. 12

- 09

- 00246

- CR, 2009 WL 4981457, at *3 (Tex. App.

— Tyler D ec. 23, 2009, no pet.) (mem.
op., no t designated for publication) ( reversing bail of $1,725,000 in indecency wi th a child case , noting lack o f such evidence)

. While being a legal, perma nent residence of the United States
may allow Appellant to go to Mex ic o without showing a passpo rt , there is no eviden ce that he inten ds t o travel to Mexico to escap e prosecution. Ap pell ant has no past crimina l history and h as lived in S abine County for many years

. He has worked for the same employer for more than twen t y - five years where he holds a position of respons i bility and s upervis i on. His emp loyer described his role with the company as

“ essential , ” he did n ot believe Appellant was a flight risk , and he testified he would ensure Appellant appears for cour t. This co ns titutes sig nificant ties to the prosecuting count y

. Smith , 2006 WL 1511480 , at *2. We are m indfu l that the filing o f these additio nal very seri ous ch arges may gi ve Appellant a greater incentive to flee, but absent evidence that he is pl anning on doing

so , we cannot assume he will do so or that bond conditions could not be imposed to reduce any flight risk

. Appellant ’ s sister

- in

- law testified he w ould be s taying w ith h er and her fa mily upon release ; therefore, he would remain in the ar ea, retur n to wor k , and be able t o avo id contact w ith the a lleged victims of the c ases filed against him. Whi le there is evi dence that Appellan t threat ened the a lleged vic t ims during the occurring time period, there is no eviden ce he has
att empted a ny cont act with t he vic tims while incarcerat ed or wh ile on bond o r that the court could not impose bond conditions to protect the v ictims until trial.9 Again, w e agree th ere are factors in this case which support a higher bail amount , but we disagree that they support bai l as currently set

. S ee, e.g. , Williams , 2021 WL 2816404, at *3

– 4 (reversing total bail of $600,000 for ei ght counts of indecen cy wit h a child and sexual assault of a child when appellant not a flight ris k); E x part e Turner , No. 12

- 20

- 00230

- CR, 2 021 WL 191 6832 , at *1 (Te x. App

. — Tyler May 12, 2021, no pet.) (mem. op. , not des ignated for publication) (reversing t otal bail of $500,000 for t hird degree felon y of unlawful restr aint involving young children ) ; Ex part e Rean , No. 03

- 09

- 00032

- CR, 2009 WL 2 902707, at *8 (Tex. App.

— Austin Aug. 26, 2009, no pet.) (mem. op., not designated for publication) (affirming bail of $250,000 in sexual assault case )

. Accordingly, after reviewing the recor d in this case and considering t he f actors in Article 17.15, we con clude the tria l court abused its discretion in de nying Appell ant ’ s request for pre

trial redu ction and hold that the amount of Appellant ’ s b ail is unsupported by the evidence and therefore excessive. We sustain Appel la nt ’ s sole issue.

D ISPOSITION Having sustained Appel lant ’ s sole issue, we rev erse and r emand this case to the trial court for further proceedings consist ent with this opinion.

G RE G N EELEY Justice Opinion delivered S eptember 1 , 2021. Panel consisted of Wort he n, C.J., Hoyle, J., and Neeley, J

.

( DO N OT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEAL S DISTRICT OF TEXAS

JUD GME NT

SEPTEMBER 1 , 2021

NO. 12

- 21

- 00079

- CR

EX PARTE: BAUDELIO FLORES

Appe al from the 273r d District Court of Sabine C ounty, Te xas (Tr.Ct.No. CR2107961 )
THIS CAUSE came to b e heard on the appellate record and briefs filed her ein, and the same being con s ide red, because it is the opinion of this Court that there was error in judg ment of the cour t below, it is ORDERED, ADJUD GED and D ECREED by this Court that the judgment be reve rsed and the cause remanded to the trial court for f urther proceedings in

accor d anc e with the opinion of this Court; and that this decision be certified to the court below fo r observance. Greg Ne eley , Justice

. Panel consisted of Worthe n, C.J., Hoyle, J., a nd Neeley, J.

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUD GME NT

SEPTEMBER 1 , 2021

NO. 12

- 21

- 000 80

- CR

EX PARTE: BAUDELIO FLORES

Appe al from the 273r d District Court of Sabine C ounty, Te xas (Tr.Ct.No. CR21079 59 )
THIS CAUSE came to b e heard on the appellate record and briefs fi led herein, and the same being con s idered, because it is the opinion of this Court that there was error in judg ment of the cour t below, it is ORDERED, ADJUD GED and D ECREED by this Court that the judgment be reve rsed and the cause remanded to the trial cour t for further proceedings in

ac cor d ance with the opinion of this Court; and that this decision be certified to the court below fo r observance. Greg Ne eley , Justice

. Panel consisted of Worthe n, C.J., Hoyle, J., a nd Neeley, J.