## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

________ ___________________ No. 02

- 20

- 00 143

- CR

___________________________

On Appeal from the 78th District Court Wichita County, Texas Trial Court No. DC78

- CV2020

- 1864
Before Sudde rth, C.J.; Bassel and Womack, JJ. M emorandum Opinion by Chief Justice Sudderth 

### Ex parte Trevor Royce Sells2 MEMORANDUM OPINION Appellant Trevor Ro yce Se lls stands charged with s ix counts of the aggravated sexual assault of his ne phew and one count of indecency with a child by exposu re. See Tex. Penal Code Ann. §§ 21.11( a)(2)( A ) , 22.021
. Initially, a magistrate set bail a t $25 0,000 for each aggr avated

- se xual

- assault charge and $50,000 for the indecency charge : $1 ,550,000 total
. Sells applied for habeas relief seeking a bail reducti on; his request was granted and bail was lowered to $930,000
. Sells now ap peals, ar guing that the reducti on was not enough and remains oppressive
. Because we c annot conclude that the trial court a cted o utside the zone o f reasonable disagreement w hen we v iew the evidence in the l

ight most favorable to its ruling , we affirm the t rial cour t ’ s order
.

Backg round Accordin g to arrest warrant affidavits entered into evidence at the habeas hearing, Se lls ’s seven

- year - old nephew made a n outcry in August 20 19 that Sells had, in the course of one day, sexually abus ed him multiple times. The affid avits a ver that the child described in graphic deta il Sells ’s masturbating in front of the child, rubbing his genitals on the child ’s gen itals, t wice per for ming oral sex on the child and forcing the child to rec ipr ocate, and pe netrating the chil d ’s anus with his penis. In addition to relying on the disturbing and serious nature of the se charged offenses to support a high bail amount, the State al so pointed to Sell s ’ s lengt h y criminal history , beginni ng with his 2003 juvenile convicti on for aggravated sexual assault and reckless serious bodily injury to a child , for which he received probation. W hen he violated probation,3

he was sent to Grayson County B oot C amp, which he fai led to c omplete
. He was later tran sferred t o adult probation with a ten

- year sex - offender

- registration requirement. He then failed to comply with the registration requirement twice: in 2008, he was sentenced to ten months in state j ail , a nd in 20 1 1 , he was sentence d to

one year in state jail
. Also in 2011, he was convicted of three counts of misdemeanor criminal trespass. In 2013, he failed to appear for a court date
. In 2014 , he was convicted of misde meanor theft. And in 2 017, he was again booked fo r failing to app ear for a misdemeanor court date. For his part, Sells ’ s e vidence at the ha beas hearing centered upon his limited fina ncia l resources and his 22 years of r e sidence in Wichita Falls
. Sells reported that when he had inquired about a bond, a bondsman had q u oted him $1 00 ,000

— an amount he could not raise, because h e , his sp ouse , and his mother (with whom they lived) exi s ted paycheck

- t o - paycheck
. And t hose paychecks were spar se . Sells lost his fast

- food job in February for re asons relat ed to the C OVID

- 19 pan demic , and he claimed that he had been prevented from applying for unemployment benefits because of his i n carceration
. H i s spouse had just obtained a job at Little Ca esar ’ s th e
we ek before trial. And his mothe r was unemployed due to a d is ability. He an d his spouse had no assets
— o nly his mother owned a v ehicle , a 2014 Kia Ri o — and no bank a ccounts . He kn ew of no family me mbers or friends from whom he could raise

mo ney for the bond.4

Sells testified that, if released, he would file for un employment co mpe nsation

— he expected to obtain $5,000 to $6,000

— and would a pply for work at restaurants. H e agreed to comply with bond conditions , including those prohibiting his contac t with any person under the age of 18, imposing reporting requiremen ts, and re quiring an

a nkle monitor. At the conclusion of t he hearing, Se l ls reques ted that the trial cou rt lower the bail amount to $100,000 t otal. The trial cour t agreed to lower th e bail but only to $930,000

— $150,000 on each aggravated

- se xual

- assau lt cou nt and $30,000 on the i n decency count

— explaining tha t it was consid ering Sells ’s “ex t ensive c riminal history, ” including a similar aggravated

- sexual

- assault charge and multiple failures to appear. Discussion Setting bail is a fact

- d riven determination th at must be judged on a c ase ’ s own unique facts. Ex p arte Cook , No. 02

- 1 8

- 00537

- CR, 2 019 WL 2 323643, at *3 (Tex. App.

— Fort Worth 2019 , no pet. ) (per cu riam) (mem. op., not designated for publication)
. We review the trial court ’ s decision in setting a b ail amount for an abuse of discretion , viewing the evi de nce in the lig ht most favorable t o the trial court ’ s ruling
. See Ex parte Peterson , 11 7 S.W.3d 804, 819 (Tex. Crim. App. 2003) , overruled on other grounds by Ex parte Lewis , 2 19 S .W.3d 335, 371 (Tex. Cr im. App. 2007); Ex p arte Rubac , 611 S.W.2d 848, 850 (

Tex . Crim. App . [Panel Op.] 1 981 ). We will not disturb5

the decision if it was within t h e zone o f reasonable disagreement. Ex parte Wood , 308 S.W.3d 550, 552 (Tex. App.

— Beaumont 2010, no pet.). Bai l i s primarily intended to assure the defendant ’ s pres en ce for tr ial. See Tex. Code Crim. Proc. Ann. art. 17.01; Ex parte Vasquez , 558 S. W.2d 4 77, 479 (Tex. C rim. App. 1977). In setting bail, the trial court must strike a balance between the defendant ’ s pre sumption of innocence an d the State ’ s interest in a ss ur i ng the defe ndan t ’ s presence at trial. See Ex part e Simpson , 77 S .W
. 3d 894, 896 (Tex
. App.

— Ty ler 2002, no pet. ) (per curiam); Ex parte Brown , 959 S.W.2d 369, 371 (Tex. App.

— Fort Worth 1998, no pet. ). The accused has the bur den to show that the bail a mo unt is excessi ve. See Ex parte Rodriguez , 595 S.W.2d 549, 550 (Tex. Crim. App. [Panel O p.] 1980 ). The court ’ s discretion in setting a bail amount is statutor ily governed by the following rules: 1. T he bail shall be suffici ently high to give reasonab le as surance tha t the un derta king will be complied with. 2. The power to require bail is not t o be used as to make it an instrument of oppression. 3. The nature of the offe nse and the circumstanc es under which it was commi tted ar e to be considered. 4. The abilit y to make bail is to be regarded, and proof may be taken upon this point. 5. Th e fut ure safety of a victim of the alleged offense and the community shall be considered.6

Tex. Co de Cr

im. Proc. Ann. art. 17.15
. Other circums tances t o be co nsi dered inclu de the accused ’ s work record, family and community ties, length of reside n cy, prio r criminal record, and conformity with the conditions of any previous bond, as well as the existence of any outstanding bonds and a ggravating circum st ances in vo lve d in the ch arged offense. See Rubac , 611 S .W.2d at 849

– 50. The uncontroverted evi d ence con veys that Sells is unable to post a $ 930,000 bail. He is indigent and represented by a public defend er , ha s been unemployed since February, and has no famili al fi nancial res ources from which to pull
. This factor weighs in favor of a reduced bail amount , but it is not dispositive
. See Ex parte Jone s , 803 S.W.2d 712, 716 (Tex. Crim. App. 1991). In deed , t hi s i s the only factor w eig hi ng in favor of a lower bail a mount. Sells is , of course , entitled to the presumption of innocence until proven other w ise
. B ut bail is not set in a vac uum , and we must consider the nature and
surroun ding circumstances of the cha rge s against him. See Tex. Code Crim. Proc. A nn. art. 1 7.15(3); Rubac

, 611 S.W
. 2d at 849; Ex parte Davila , 623 S.W.2d 408, 409 n.2 (Tex. Crim. A pp. [Pa nel Op.] 1981 ). Sells ’ s seven - year - old nephew has accused Sells of perpetrating multiple sexual assault s i n a single day , providin g a detailed account of the v arious acts in a forensic interview
. The charges are serious and dis turbing
. I f

co nvicted of any one of the aggravated

- sexual

- assault charges enhanced by his ju venile conviction , Sells faces a manda tor y life sentence
. See Te x. Penal Code A nn . § § 12.42 (c)( 2)(A) , 22.021(e)
. If convi ct ed of the indecency charge, he faces up to 107

years ’ incarceration. Id. §§ 12.34(a), 21.11(d). Both t he grav ity of the allegations against him and the potential senten ces he faces weigh in favor of affirming t he tria l
court ’ s decision
. See Ex parte Nimnic ht , 467 S.W.3d 64 , 67 (Tex. App.

— San Antoni o 2015, no pet. ) ( “ A court may also consider the possibility an accused ’ s reaction to a potential lengthy imprisonment might be to not appear for trial
. . . . ” )
. Se ll s arg ues that, despite the seriousness of the accusations against him , the bail amount i s oppres sive in light of Wichita County ’ s recommended bail schedule, which recommend s a bail amount of $ 35,000 for a first

- d egr ee - felony charge en hance d by a prior co nv

ictio n. Contrary to the Stat e ’ s re buttal that w e ca n not con sider W ichita County ’ s recommended bail schedule because it w as not entered as an exhibit at trial, appellate courts routinely co nsider such recommendat ion s a s part of their revie w of the nature and circ umstances of the charged offense even where i t does n o t appear that the recommendati ons were admitted as an exhibit at the application hearing. Ex parte Taylor

, No. 02

- 20

- 00010

- CR , 2020 WL 196 3788, at *4 (Te x. Ap p. — Fort Worth Apr. 23, 2020 , no pet.) (per curiam) (mem. op., not designat ed for publication ) (collec ting cas es and rejecting the State ’ s ev identiary

- admissibility argument in an attempt to exclude the recommendation s from our consideration). Neve rth el ess , the
recommen datio ns are only a gu ide, are non binding, and “ are not conc lusive as each case is extre mely fac t specific. ” Id. at *5. We also may consider case law upholding simi lar amounts for first

- degree

felony offenses
. See Ex parte Murray , No s . 02

- 13

- 00151

- CR , 02

- 13

- 00 152

- CR , 02

- 13

-8

00 153

- CR , 2013 WL 5425312, at * 1, 7

– 8 (Tex. App.

— Fort Worth Sept. 26, 2013, no pet.) (per curiam) (me m. op., not designated for pub lication) ( upho lding $750,000 bail for charge of aggravated assault with a deadly wea pon where de fendant had an extensive crim inal history and trial court concluded he was “ very much a danger to society ” ) ; Brown v. State , 11 S .W.3d 50 1, 504 (Te x. App.

— Hous ton [14th Dist.] 2000, no pet.) ( upholding $500,000 bail for n onviolent first

- degr ee - felon y charge of drug
t r aff icking despite defendant ’ s strong comm unity ties, ina bility to post bond, and record of appearing for past c ourt d ates); W ri ght v. State , 976 S. W.2d 815, 820

– 21 (Tex. App.

— Houston [1st Dist.] 1998, no pet.) (upholding $500,000 ba il for first

- degree

fel o ny ag gravated ass ault whe re defendant had threatened p eople at gunpoint and posed a flight risk)
. Given the facts be fore us and the case law , we do not consider th e recommended bail schedule as a particularly p ersuasive fac tor h ere . Despite Sells ’ s argu m ent s in his brief that he “ has long standing ties to the community, ” the reco rd does not support this assertion
. Tho ugh he test ified to living in Wichita Falls most of his life and to living in his mother ’ s apartment there with h is spouse , that is the e x ten t of his commu nity ties. He was unemployed at the time he was arrested, and h is spouse had only rece ntly obtaine d employmen t at a Little Caesar ’ s. He owns no prop erty in Wi chita Falls. And the record is silent as to any
so rt of community involvemen t . His overall la ck of community ties w eighs against
revers ing the trial court ’ s conclus ion
. See Nimnic ht , 467 S.W.3 d at 68.9

Si milarly working against him is his criminal hist or y. Not only has he been previously co nvicted of ag grava ted sexual assault , b u t h e has also fai led to comply with court orders that are analogous to those which would go i nto effect upon his post ing bail. He served ten months in state jail for fail ing to reg ister as a sex offender
. S eemingly undeterred, he s e rve d another y ear whe n he f ailed to reg

ister yet again
. He has twice been convicted of failing to appear for a court date , and the trial c ourt was fr ee to disbelieve his explanations that he had not been notified of the court dates
. These failure

- to

- appe ar convictions are no dou bt concerning when considering t hat the intent of bail is to secure his appearance at trial
. T his fact or further weighs in f avor o f affirming the t rial court ’ s decision
. And finally, we must consider the safety of Se lls ’ s a ccuse r — hi s seven - year - old

n eph ew — and the com munity
. Sells testified that if released he would comply with prohibitions against a ny contact with children , but a s the factfinder a nd from the best position to judge witness credibility , the trial court was fr ee to d oubt Sells ’ s testim o ny , especially in light of Sells ’ s history of dis obeying court orders
. See Miles v. State , 343 S.W.3d 9 08, 914 (Tex. App.

— Fort Worth 2011, no pet.). C o nclusion Although $930,000 is a high b ail amount that m ight be excessive und er ot her circumstances , v

i e win g all of the r elevant factors here in the light most favorable to the trial court ’ s ruling, we cannot conclude tha t the tr ial court erred by reducing Sells ’ s bail to $150,000 on each of the six cou nts of a ggravated sexual assa ult a nd $30,000 on10

the ind e cen cy count. We therefore affirm the t rial court ’ s orde r on Sells ’ s application for writ of habeas corpus. / s/ Bonnie Sudderth Bonnie S udder th Chi ef Justice Do Not Publish Tex. R. App. P. 47.2(b) Delivered : December 23, 2020