## NOS

. 12

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- 00165 -CR 12

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- 00166 -CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

CURTIS TRAYLOR

- HARRIS , APPELLANT

V.

THE STATE OF TEXA S, APPELLEE §

§

§ APPEAL S FROM THE 241ST

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION Curtis Traylor

- Harris appeals the trial court’s denial of his application s for writ of habeas corpus seeking bail reduction. We reverse an d remand.

B ACKGROUND In February 2022, Appellant, a Smith County Constable, was charged by indictment with thef t by a public servant and official oppression. The trial court set his bond at $10,000 for each offense. Appellant posted bond and was releas ed with conditions. On May 12, the trial court received a bond violation report. The report alleged Appellant

at tended the 2022 Navarro County Police Academy graduation dressed in full uniform and in possession of a fir earm . Appellant’s bond included conditions that he not leave Smith County without permission and that he not possess a firearm

. The trial court is s ued a warrant and increased the bond to $500,000 in the theft case but did not set a new bond on the oppres sion case. Appellant filed a motio n for a bond reduction. Following a hearing, the trial court denied the request to reduce the bond in the theft c ase and set bond at $500,000 in the oppression case. Appellant filed applications for writ of habeas corpu s alleging that the bonds are exces sive. Following a hearing, the trial court denied the writs. This proceeding followed.2 A MOUNT OF B OND In two i ssues, Appellant urges the trial court abused its discretion in declining to reduce the amount of his bail bonds. In his first issue, Appellant contends the bonds are oppressive on their face. In his second issue, he argues the trial court ignored t he s t atutory factors for setting bond. Because these issues are interwoven, we address them together.
Standard o f Review The decision regarding a proper bail amount lies within the sound discretion of the trial
court. T EX

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. A NN

. art. 17.15 (W e st Supp. 2021 ). Accordingly, we review the trial court ’ s ruling on a request to reduce bail under an abuse of discretion standard. See Ex
par te Rubac , 611 S.W.2d 848, 850 (Tex. Crim. App. 1981); Clemons v. State , 220 S.W.3d 176, 178 (Tex. App. —Eastland 2 007, no pet.) (per curiam). In determining whether the trial court abused its discretion, we do not sub stitute our judgment for that of the trial court. Montgomery v. State , 810 S.W.2d 372, 379

- 80 (Tex. Crim. App. 1990). The purpose of our review is to determine whether the trial court ’ s decision was made without reference to any guiding rules or principles of law, or in other words, whether the decision was arbitrary or unreasonable. Id . at 380. An abuse of discretion occurs when a trial court ’ s deci s ion is so clearly wrong as to lie outside the zone of reasonable disagreement. Id . at 391 (op. on reh’ g). Ap plicable Law The primary purpose of setting a pretrial bond should be to secure Appellant ’ s presence at trial. See Ex parte Rodriguez , 595 S.W.2d 549, 550 (Tex. Crim. App. [Panel Op.] 1980); Ex parte Rincon , Nos. 04 -13-00715- CR –04-13-00718- CR, 2014 WL 2443870, at *1 (Tex. App.

– San Antonio May 28, 2014, no pet.) (mem. op., not designated for publication). The amount of the bond necessary to achieve that purpose is committed to the trial court ’ s sound discretion, although its discretion is bounded and 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 consti tution, our state constitution, and our state laws prohibit “excessive” bail. U.S. C ONST

. amend. VIII; T EX

. C ONST . art. I, § 13; T EX

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. A NN . art. 1.09 (West 2005 ). Article 17.15 of the Texas Code of Criminal Procedure provides that “bail s h all be sufficiently high to give reasonable assurance that the undertaking will be complied with[;]” however, “[t]he power to require bail is not to be so used as to make it an instrument of oppression.” T EX

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. A NN

. art. 17.15(1), (2). Al t hough a defendant ’ s ability to3 make bail must be considered, it is not a controlling consideration. See id . art. 17.15(4); Rodriguez , 595 S.W. 2d at 550. The trial court also must consider the nature of the defendant ’ s offenses and the circumstances unde r which he allegedly committed them as well as the future safety of the community if the defendant is released on ba il. See T EX

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. art. 17.15(3), (5). Apart from these statutory considerations, the trial court also may consider the defe ndant’ s links to the community, including his family ties, employment history, prior criminal record, the existence of other bonds against him, and his compliance with the conditions of those bonds. See Estrada , 398 S.W.3d at 724. The Hearing At the hear i ng on the application, neither Appellant nor the State presented any new evidence. However, the trial court took ju dicial notice of all eviden ce admitted at the prior bond reduction hearing. At that hearing, the trial court heard evidence that Appellant committed three bond condition violations. Cesar Berrum, Jr. testified that he is employed by the Smith County Prob ation Office as a pretrial supervision officer and that Appellant was assigned to his caseload. Berrum did not investigate any bond violat ions or submit the bond violation report because he was out of the office. He further testified that Appellant’s bond conditions required him t o receive permission before leaving Smith County. Appellant had received such permission on three prior occasio n s. However, Appellant neither sought nor received permission to travel to Navarro County for the police academy gra duation. Berrum further te stified that he was aware of a police report involving Appellant at Southwestern Christian College in Kaufman Co unty on March 12. According to Berrum, Appellant did not have permission to go to Kaufman County on that day.
Berru m further testified that he viewed a video showing Appellant carrying a firearm on his belt.
He also s aw Facebook pictures showing Ap p ellant in uniform as a Smith County Constable with a gun, ammunition magazines, and a taser on his belt. The video and photographs from the
po lice academy graduation in Navarro County were admitted into evidence. Terrie Lindsey , Berrum’s supervisor , tes t ified that she received an anonymous tip about a YouTube video depicting Appellant at Navarro College with his weapon. Lindsey viewed the video and filed a violation report after confirming a bond condition violation had occurred. Lindsey further testif i ed that she never gave Appellant permission to travel to either Navarro County or Kaufman County.4 Rebekah Massey testified that she is an admi nistr ative assistant in the Smith County Constable’s Office. According to Massey, she had worked for Appellant s ince January 1, 2021. Appellant attended the police academy graduation at Navarro College because Massey was graduating as a peace officer. M assey further testified that Appellant was “not in the habit” of carrying a firearm, even when discharging his d u ties as constable. She could not recall whether Appellant was wearing his firearm at her graduatio n. Roy Logan is a deputy in the Precinct On e Smi th County Constable Office. According to Logan, Appellant did wear his firearm prior to the bond condition s

. Logan traveled with Appellant to Navarro College but did not notice whether he carried his firea rm that day. Sabion Traylor

- Harris testifie d tha t he is Appellant’s husband and that they have lived together in Tyler for six years. According to Sabion, there are no firearms in their home and Appellant possesses no gun other than his service weapon. Sabion also attended the graduation, but he could not recall whether Appellant carried a firearm. He further testified that Appellant has no arrests prio r to his current charged offenses and has never been violent. Sabion stated that he does not have t he $50,000 necessary to post Appellant’s $50 0,000 bond. However, he believed he could raise between $2,000 and $3,000 to post bond for Appellant. Sabion w a s unaware of any bond condition violations except those discussed at the hearing. According to Sab ion, the couple currently rents their home , but t hey were in the process of closing on a house when Appellant was arrested. Sabion testified that he

w orks at Ace Cash Express and that there should be no reason Appellant would need to travel outside Smith County. He further stated that he was previously unaware of Appellant’s travel restrictions

. Sabion and Appellant own two cars together; however, Sa b ion was unaware of what they are worth. Sabion also testified that he was told by someone that a “teacher” gave Appellant a fake gun to carr y to the gr aduation so that he could appear in full uniform. However, he did not see anyone give Appellant the g un and did not know how the gun got into the holster. Sabion was

unaware that possessing a firearm violat ed Appellant’s bond conditions.
Sa bion testif ied that Appellant had always been employed since he had kn own him. He stated Appellant has a sister , grandmother, and aunt that live in the Tyler area. The trial court explained that it was “well aware of all the cases, case law and decisions of the cou rts on several factors the Court can take into consideration in setting a bond or granting5 a motion t o reduce bond.” The trial court found that Appellant committed “flagrant violations” and no ted that he is a “sworn law enforcement officer swor n to uphold the law.” The trial court also stated that it was not “going to cut [Appellant] any slack.” The tr i al court found that Appellant violated the bond conditions relating to unauthorized travel and possession of a firearm. The trial court then d enied the r equest to reduce the $500,000 bond and increased the other bond from $10,000 to $500,000. At the hea r ing on the application for writ of habeas corpus , the trial court took notice that Appellant and his family had been unable to raise the funds necessary t o post the $1,000,000 bond for both charges. It also took under advisement that a petition to remove Appellant from office had been filed. The trial court denied both writs and refused to reduce the bonds. Analysis The record in this case s upports the trial court ’ s decision to increase the amount of the ori ginal bond . The record demonstrates that Appellant violated his bond con d itions no less than three times . Appellant’s history of non- compliance with his bond conditions weighs against a determinati on that the bail amounts set by the trial court were excessive. See Ex parte Watkins , Nos. 01 -21-00450- CR, 01 -21-00451- CR, 2022 W L 839427, at *7 (Tex. App.

— Houston [1st Dist.] Mar. 22, 2022, no pet.) (mem. op., not designated for publication). However, that is not the sole consideration. Even if an increase in b ail is warranted, the increase must compl y with both A rticle 17.15 and the primary purpose of securing Appellant ’ s presence at trial. See T EX

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. A NN . § 17.028 (a), (b) (W est Supp. 2 021 ). The record is silent to whether the trial court considered any of the A rticle 17.15 factors in determining the amount of the increased bail amount.
T he nature of the offense and the circumstances under which it was allegedly committed

a re fact o rs to be considered, and this necessarily involves the punishment permitted by law. Ex parte Clark , 537 S.W.2d 40, 42 (Tex. Crim. App. 19 76 ). Appellant is charged with theft by a public servant, a state jail felony

. See T EX

. P ENAL C ODE A NN . § 31 .03(f) ( Wes t 2019 ). According to the indictment, Appellant

did then and there pursuant to one scheme or conti nuing course of conduct, unlawfully appropriate, by acquiring or otherwise exercising control over, property, namely watches and sunglasses and electro n ics and currency and cosmetics and jewelry and perfume, of the aggregated value of $750 or more but less than $2,500, from Brittany Poster and Raleigh Poster and Brittany6 Poster and Arianna Poster; the owner thereof, without the effective consent o f the o w ner , and with intent to deprive the owner of the property

.
Should he be convicted, Appellant would be subject to confinement for a term of no more than two year s and no less than 180 days as well as a fine not to exceed $10,000. Id. § 12.35 (West
2 019 ). A ppellant is also charged with official oppression, a class A misdemeanor. Id. 39.03( d) (West Supp. 2021 ). The indictment alleges Appellant subjected Brittany Poster to mistreatment that he knew was unlawful, namely theft of property, and that he was act i ng under color of his office as a public servant. If Appellant were convicted , he wo uld be subject to c onfinement for a term not to exceed one year and/or a fine not to exceed $4,000. Id. § 12.21 (West 2019 ). The record also demonstrates that w hile Ap p ellant is employed, he and his family lack the monetary funds to post the $1,000,000 bond. While the ab ility or inability of an accused to make bail is not dispositive, it is a factor to be considered. Rodriguez , 595 S.W.2d at 550. Although the e vidence showed Appellant and his husband owned two vehicles, it was unclear how much they were worth. Evidence at the hearing demonstrate d that Appellant could pay $2,000 or $ 3,0 00 toward a bond. Yet, the trial court increased the bond f ifty times higher than ori ginally set and approximately forty tim e s higher than what Appellant could pay toward the bonds , which con stit utes a de facto setting of no bond when the bond was increas ed from $10,000 to $500,000 in each case

. 1 See DePena v. State , 56 S.W.3d 926, 92 9 (Te x. App.

— Corpus Christi 2001, no pet.) ; Ex parte Barbosa , No. 12

- 19

- 00304

- CR, 2020 WL 562973, at *3 (Tex. Ap p

. — Tyler Feb. 5, 2020, no pet.) (mem. op., not designated for publicat ion). Moreover, a comparison of the bail amount in this case to the amou nts i n c ases decided by other intermediate appellate courts, leads us to conclude that the bail is too high. Al t h ough bail in excess of $1,000,000 has been upheld, such as in murder cases, these cases are distinguishable from the present case. See, e.g. , Ex p art e Saldana , No s . 13

- 01

- 00360

- CR, 13

- 01

- 00361

- CR, 2002 WL 91331, at *4

- 6 (Tex. App.

— Corpus Christi Jan. 24, 2002, no pet.) ( o p.; not designated for publication) ($1,000,000 bail for capital murde r not excessive); see also Ex parte Pulte , No. 02

- 03

- 00202

- C R, 2003 WL 2 2674734, at *2 (Tex. App.

— Fort Worth Nov. 13, 2003, no pet.) (mem. op.; not designated for publication) ($1,000, 0 0 0 bail not excessive for solicitation of murder); Ex parte Brown , No. 05

- 00

- 00655

- CR, 2000 WL 964673, at *2 (Tex.

1 We note the typical bond fee is 10% of the face amount of the bond. Assuming so, the fee to post both bonds would be at $100,000.7 App.— Dallas July 13 , 2000, no pet.) (not designated for publication) ($1,000,000 bail not excessive for murder). The record is sile nt as to whether the trial court applied the case

- specific factor s contained in Article 17.15. The trial court did not enumerate the factors, i f any, it considered and did not make any case
- spe cific fin d ings when it imposed the increased bail. T here is no sp e cifi c evidence in this case of Appellant ’ s risk of flight in terms of threats against the victim s or evidence that Appellant intends to fle e. See Ex parte Bellanger , No. 12-09-00246-CR, 2009 WL 4981457, at *3 (Tex. App.

— Tyler Dec. 23, 2009, no pet.) (in r ever sing bail of $1,725,000 in indecency with a child case, noting lack of such evidence). Rather, he has familial ties to the communit y and a history of employment. Nor does the record contain evidence of any threats against the victim s or evidence sug g esti ng that a lower bail amount would place either the victim s’ safety, o r that of the community, at risk.
A fter reviewing the record i n th is case and considering the factors in Article 17.15, we hold that the amount of Appellant ’ s bail is un suppo rted by the evidence and therefore excessive. Accordingly, the trial court abused its discretion by denying Appellant ’ s habeas applications.
We su stain Appellant’s two issue s.

D ISPOSITION Having sustained Appellant’s issue s , we reverse the orders denying Appellant ’ s habeas applications and remand th ese case s to the trial court for further proceedings consistent with this opinion.

G REG N EELE Y Just ice
Opinion delivered August 30, 2022. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 30, 2022

NO. 12-22-00165- CR

CURTIS TRAYLOR

- HARRIS , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 241st District Court of Smith County, Texas (Tr.Ct.No. 241-0335-22)

T HIS CAUSE came to be heard on the appellate record and briefs filed he re in, and the same being considered, because it is the opinion of this Court that there was error in judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this Court that

t he order denying Appellant ’ s application for a writ habeas corpus be reversed and the cause remanded to the trial cour t f or a further proceedings in accordance with the opinion o f this Court; and that this decision be certified to the court below for observance. Greg Neeley , Justice. Panel consisted of Worthe n, C.J., Hoyle, J., and Neeley, J

.

## COURT OF APPEALS

TWELFT H C OUR T OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 30, 2022

NO. 12-22-00166- CR

CURTIS TRAYLOR

- HARRIS , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 241st District Court of Smith County, Texas (Tr.Ct.No. 241-0336-22)
THIS CAUSE came to be he ard on the appellate record and briefs filed herein, and the same being considered, because it is the opinion of this Court that there was error in judgment of the court below, it is O RDERED, ADJUDGED and DECREED by this Court that the order denying Appellant ’ s application for a writ habeas corpus be reversed and the cause remanded to the trial court for a fur ther proceedings in accordance with the opinion of this Court; and that this decision be certified to the court below for observance. Greg Neeley , Justice. Panel consisted of Worthen, C.J., Hoyle, J. , a nd Neeley, J

.