### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00717- CR NO. 03-13-00718- CR

Danny Rosas Vasq uez, Appellant

v. State of Texas, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 427 TH JUDICI AL DISTRICT

NOS . D-1 -DC- 13- 1000 79 & D-1 -DC- 13- 1000 78 HO NORAB LE JIM CO RONADO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Danny Rosas Vasquez was arr ested and char g ed with the assault and ag g rava tedsexual assault of his g irlfriend Hortenc ia Morales. See Tex. Penal Code §§ 2 2

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. After 1
the amount of bail was set for eac h char g e, Vasque z filed applications fo r wr i t s o f habea s corpus seeking to be rele ased from confine ment or to have the amount of bail for each char g e reduc ed. Shortly afte r rec eiving the applications, the d i s trict court ref err ed the matter to a mag istrate, and the mag istrate convene d a hear ing. At the conclusion of the hear ing, the mag istrate rec ommended deny ing Vasque z’s reque st to be rele ased on persona l bond but also rec ommended reduc ing the amount of b ail set for the ag g rava ted-sexual-assa ult char g e and for the assault char g e from $150,000 to $100,000 and from $75,000 to $25,000, respe ctively

. Upon rec eiving the mag istrate’s

Hortenc ia Morale s is the pseudony m that the State used to ref er to Va squez’s g irlfriend. 1rec ommendations, the district c ourt adopted them. Once the district c ourt made its de termination,

Vasque z filed this appea l. See Tex. R. App. P. 31. We will aff irm the district court’s order deny ing 2 Vasque z’s application for wr it of habea s corpus.

DISCUSSIO N On appea l, V asquez contends that the district c ourt “a bused its discretion in f

ailing
to lower [hi s] bail sufficie ntly high to ensure [hi s] appea ranc e, but not so high as to be an instrument of oppression.” Acc ording ly , Vasque z as k s t h i s Court to reduc e the bail set for the ag g rava tedsexual-assault char g e to $25,000 and f or the a ssault char g e to $10,000.

Rece ntly , the court of cr i m i nal appea ls issued an opinion in which it deter mined that 2 appellate courts do not have jurisdiction over pretrial motions for bond re duction. See R agston v. State , 424 S.W .3d 49, 50, 52 (Tex. Crim. App. 2014). That ca se involved an interlocutory appea l from an order setting bail. Id. at 52. W h en interpre ting the holding in Ragston , various courts of appea ls have conclude d that althoug h appellate courts do not have jurisdiction over interlocutory appea ls of motions for bond reduc tions, they do have jurisdic t i o n over denials of applications for writs of habea s corpus asser t i n g t h at t h e amount of bail set was excessive. See Ex parte Piceno, N o
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. L E X I S 6 4 2 8 , a

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. — F o r t Wo r th Ju n e 1 2 , 2 0 1 4 , no pet. h.) (mem. op., not de signa ted for publica tion) (dete rmining that court had jurisdiction ove r challeng e to amount of ba il set beca use it was “an appeal from an order deny ing ha beas r elief a

nd not an interlocutory appea l from an order setting bail”); In re Herrera, No. 05-14-00394- CV, 2014 Tex. App. L EXI S 4053, at *2-3 (Tex. App.—Dallas Apr. 14, 2014, no pet.) (mem. op.) (explaining that althou g

h c o u r ts o f appea ls do not have jurisdiction “to hear interlocutory appea ls reg arding bail,” bail deter minations may be challeng ed by writ of habeas corpus in trial co u rt and that “re lief on a p r e - trial writ of habea s corpus may be appea led immediately ”); Cloninger v. State , No. 05-1 3

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- CR, 2014 Tex . App. L EXI S 3806, at *1 n.1 (Tex. App.—Dallas Apr. 8, 2014, pe t. dism’d) (mem. op. , not desig nated for publication) (conc luding that court had jurisdiction over bail challeng e beca use it was appea l “fr om the trial court’s final order deny ing habea s corpus relief rathe r than an interlocutory appea l deny ing a motion to reduc e bail”); see also Ex parte Ragston , 422 S.W .3d 904, 906, 907-08 (Te x . App.—Houston [14th Dist.] 2014, no pet.) (noting that althoug h it had initially deter mined that it did not have jurisdiction over Rag ston’s appea l of his pretria l motion for bond reduc tion and that this deter mination was aff

irmed by court of criminal appea ls, co u rt did have jurisdiction over those same challeng es when made in application for writ of habe as cor pus). We ag ree with the rea soning of our sister courts and conclude that we have jurisdiction over Vasque z’s appea l challeng ing the denial of his applica tion for writ of ha

beas c orpus. 2The Code of Criminal Procedur e lists the following fac tors for trial courts to consider

when se tting bail:

1. The bail shall be sufficie ntly high to gi v e re as onable assura nce that the underta king w ill be complied with.
2. The power

to r equire bail is not to be so used as to make it a n instrument of oppression.
3. The nature of the offe nse an d the circ umstances under which it was committed are to be consider ed.
4. The ability to make bail is to be reg arde d, and proof may be taken upon this point.
5. The future safe ty of a victim of the alleg ed offe nse and the community shall be conside red.

T e x. Co d e Cr im

. Pr o c
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r t. 1 7

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. Si mi la

r ly , c o u r ts h a v e a ls o id e n ti f

ie d f a c to r s th a t ma y b e c o n s id e r e d when setting bail, in c lu d in g “ th e exis tence of outstanding bonds, if any ,” “ag g rava ting circ umstances alleg ed to have been involved in the char g ed offe nse,” and the defe ndant’s work rec ord, family and community ties, leng th of residenc y , prior criminal rec ord, and “conf ormity with the conditions of
any previous bond.” Brown v. State , 11 S.W .3d 501, 503 (Tex. App.—Houston [14t h Dist.] 2000, no pet.). When revie wing a trial court’s deter m i nation reg arding the amount of bail set, appellate courts apply an abus e-of-discre tion standard. Maldonado v. State , 999 S.W .2d 91, 93 (Tex. App.—Houst on [14t h Dist.] 1999, pet. ref ’d); see also Tex. Code Crim. Proc. art. 17.15 (stating that trial courts have discretion when s et t i n g bail). Under this standard, a trial court’s decision will only be reve rsed if the court acte d without ref ere nce to any g uiding rules or principles

3or if t h e d ec ision is unrea sonable or arbitra ry
. Ex parte Hunt , 138 S.W .3d 503, 505 (Tex. App.—For

t Worth 2004, pet. ref

’d). Stated differ ently , the trial court’s decision wi l l not be

overr uled if it lies within the zone of rea sonable disag ree ment. Clemons v. State , 220 S.W .3d 176,
178 (Tex. App.—Eastland 2007, no pet.). Moreove r, in a habea s proce eding , the applicant bear s the burden of proving that the am o u n t of b a il is e xc e s s iv e
. E

x parte Beard , 92 S. W. 3 d 5 6 6 , 5 6 8 ( T e x. A p p
. — A u s ti n 2 0 0 2 , p e t. r e f

’ d )

. I n challeng ing the district court’s order , Vasque z contends that the fac tors identified above do not support the amount of bail set and arg ues, ins t ea d , t h at the amount of bail require d,

even afte r the reduc tions, was oppressively high and was set with the intent of forc ing him to rema in incar cer ated befor e trial. As support for his contentions, Vasque z points to the testimony from his 3 mother, Marg arita Vasque z, who was the only person to testify during the hear ing. I n her testimony , Marg arita state d that her son ha s lived in Travis County for 21 y ear s, has lived with her the whole time, does not own any proper ty that could be sold to raise money for bail, would appea r in court if order ed to, would continue to live with her if he wer e release d on bail, and would not be a dang er
t o t h e co m m u n ity or to Morales if he wer e rele ased. Moreove r, Marg arita rela ted that she woul d

As support for this proposition, Vasque z re fe rs to opinions by this Court and another 3 appellate court in which the amount of bail was reduc ed in lig ht of the fac tors outlined above. See Ex parte Cooper , No. 03-03-00085- CR, 2003 Tex. App. L EXI S 7440, at *7-8 (Tex. App.—Austin Aug

. 29, 2003, no pet.) (mem. op., not desig nat ed fo r publication) (re ducing bail from $150,000 to $75,00 0); Ex parte Sabur-Smith , 73 S.W .3d 436, 441 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (per curia m) (lower ing bail from $150,000 to $30,000). Howeve r, case law can provide littl e g uidance for evalua ting the amount of bail set in a particula r case beca

use bail deter

minations are so fac t specific , Ex parte Beard , 92 S.W .3d 566, 571 (Tex. App.—Austin 2002, pet. ref ’d), and beca use “[t] here is no prec ise standard for revie wing bond settings on appea l,” E x p a r te S a b u r -Smith , 73 S.W .3d at 439. I n any event, we find those ca ses to be distinguishable

.

4do all that she could t o en s u re t hat Vasque z complied with any conditions of rele ase, including

allowing the S tate to install equipment t o monitor him. Fur thermore , she ex plained that althoug h

s h e wo u l d be willing to help pay his bail, she could not cover the amounts as orig inally set an d did not own pro p er t y t hat could be used to help pay the bail; howeve r, she did admit that she might be able to cover a bond if the total amount of the bail was reduc ed to $35,000. I n addition
to rely i n g o n t h e testimony of hi s mother, Vasquez also points to a st atement from the prosecutor
at the hear ing in which she stated that probation was not “ out of the rea lm of possibili ty ” g iven his prior cr iminal hist ory
.

When asce rtaining Vasque z’s bail, the mag istrate wa s aided by the testimony from Marg arita but also by the seriousness of the alleg ed offe nses as set out in the Penal Code as well as Morales’ s descr iption of the crimes, which was contained in the aff idavits for th e arr est war

rants issued for Vasque z. See Ex parte Sabur-Smith , 73 S.W .3d 436, 439 (Tex. App.—Houston [1st Dist.]
2 0 0 2 , n o p e t. ) ( e xp la in in g th a t a lt h o u g h le g is la tu r e a n d c o u r ts h a v e e s ta b li s h e d f a c to r s to b e c o n s id e r e d when setting bail,“[t] he primary fac tors to be considere d in deter mining what constitutes rea sonable bail are the punishment that can be imposed and the nature of the offe nse”) ; see also Ex parte Beard , 92 S.W .3d at 568 (stating that “[t] he def endant’ s ability to make bail also must be considere d, but is not of itself controlling ”). I n this case , Vasque z was char g ed with ag g rava ted-sexual assault and with assault. See Tex. Penal Code §§ 22.01, .021. Ag g rava ted-sexual assault is a first-deg ree felony , id. § 2 2

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n is h me n t r a

n g e o f 5 y e a

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t, id

. § 1 2

. 3 2 , and assault, as char g ed in this case , is a third-deg ree felony , id. § 2 2 .01(b)( 2)(B ) (explaining that
person commits third-deg ree offe nse if he assaults person with whom he has rela tionship g overne d

5by Family Code and i f “o ff ense is committed by intentionally , knowing ly , or recklessly impeding the normal brea thing or circ ulation of the blood of the per son by

apply ing pr essure to the person’ s throat or neck or by

blocking the per son’s nose or mouth”), which has a punishment rang e of 2 to 10 y ear s, id. § 12.34. Both crimes also car ry the possibili ty of the impo s i t i o n o f a fine of up to $10,000. Id. §§ 12.32, .34.

Reg arding the particula

r alleg ati ons ag ainst Vasque z, the aff idavits rela ted that Morales told the police the following :

• The a ssault occur

red in the home that she and V asquez wer e living in.

• Vasque z “plac ed two hands ac ro s s ” h er throat and “squee zed her throat to the point that [ she] could not breath.”

• Vasque z threatene d her by say ing that if she did not have se x with him, she would never

“see her pa

rents ag ain.”

• Altho u g h she pleade d for him to stop, Vasque z pulled off her clothes and sexually assaulted he r.

• After the assault, Vasque z drag g ed her down a rocky hill and then ran at her and slammed into he r with his body , causing her to “ fall into a flower bed.”

• When she tried to esc ape, V asquez “punc hed her on the hea d.”

• Vasque z had assaulted her on previous occa sions, including additional strang ulation attempts.

• Vasque z sexually assaulted her a month befor e the police wer e called to their home, and when she tried to flee that assault, Vasque z caug ht up with her and punched he r on her

fac e and he ad.

• She d i d not repor

t the prior incidents beca

use she was scar ed that Vasque z would reta liate.

6I n addition, the State informed the mag istrate that Vasque z had previously been

arr ested for theft and for driving while intox icated and t hat t hose cr imes were pending at t he ti me of the he aring

. At the conc lusion of the he aring , the mag istrate dete rmined that the a mount of bail shoul d b e reduced to $25,000 for the assault char g e and to $100,000 for the ag g rava ted-sexualassault char g e. When discussing the rea soning behind t h e reduc tions, the mag istrate explained that he thought that setting “two high bo n d s” was inappropria te due to the fac t that the char g ed offe nses resulted from one extended incident. For that rea son, he signific antly reduc ed the bail set for the assault char g e. How ev er , t h e m agi strate also explained that he did not believe that it was
appropr iate to simil arly reduc e the bail for the char g e of ag g rava ted-sexual assault beca

use more than one sexual assault had been alleg ed. Moreove r, the mag istrate surmised that h e d i d n o t fe el that monitoring would be an appropr iate means of protec ting the public and the victim in this c ase
g iven the ser iousness of the alleg ations and the ty pes of c rimes involved.
I n light of the rec ord befor e this Court, including the mag istrate’s decision to reduc e the amount of bail orig inally set for e ach c harg e, we cannot conclude that the district c ourt abused its discr etion by adopting the bail re commendations propose d by the mag istrate. Ac cording ly , we

overr ule Vasque z’s sole issue on appea l.

CONCLUSION Having overr

uled Vasque z’s sole issue on appea l, we aff irm the district court’s order

.

7__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Goodwin, and F ield
Affir med Filed: Jul y

25, 2014 Do Not Publish

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