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

at Fort Worth

___________________________ No. 02

- 24

- 00025

- CR

_____ ___ ________ ___________

On Appeal f

rom the 89t h District Court Wichita County, Texas Trial Court No. DC89

- CV2023

- 2307

Before Birdwell, Basse l, and Wa lker, JJ. M emorandum Opinion by Justice Walker 

### Ex parte Adan Chavez2 MEMORANDUM OPINION
In this appeal from the denial of a pretrial application for habeas relief , Appellan t Adan Chavez challenges the tri al co urt ’ s denia l of his request to lowe r the
bail amounts for his pen di ng murd er and deadly

- conduct char ges , set at $275,000 and $25,000 , respectively.
Chavez has complained before to this court that the bail amou nt on his murder charge

— previously set by the trial court at $1,000,000

— was e xcessive. See Cha vez v . St at e , 671 S.W.3d 775, 779 (T ex. App.

— Fort Worth 2023, no pet.)

. We agreed with
Chavez , rever sed the trial court ’ s de nial of hi s bail

- reduction request, and remanded
the case fo r the trial court to set a reasonable bail

. Id . at 791. On remand, C h avez agre ed to have his bail se t at $275,000 on the murder charge. His deadly

- conduct bai l amount remained unchanged at $25,000. Chavez
the n filed another ha beas petiti on to further reduc e his b ail amo unts so that they
totaled no more than $20 0,000 together

. After a bail

- reduction hear ing, t he trial court
denied hi m his requested habeas relief

. Chavez appeals thi s de n ia l. We will affirm.
I. B ACKGROUND
Chavez is accus ed of shooting and ki lling Jorge Gonz alez in a conv enience store parking lot in October 2022 , us ing a high

- ca liber, high

- capacity , semi

- automatic
rifle

. 1 The State has also alleged that , p ri or to Gonzale z ’s killing, Chav ez had used the

1 The medical

- examiner ’ s report admitted at the b a il

- reduc tion hearing showed that Gon z alez had suffered eight gunshot wounds to his head, tor so, and arm

.3

same weapon to shoot at the outsi de of Gonza le z ’ s hom e. We refer the reader to the background section of our pr evi ous opinion for a more in

- depth discussion of the
facts t hat precipi tate d Chavez ’ s b eing charged with murder and deadly conduct

. See id

. at 779

– 81. Here, we will con centrat e on the facts relevant to our current determin ation

— chiefly , the evidence adduced at the instant bail

- reducti on hearing. 2
Chavez testified that after th is court remanded the case on the issue of his $1,000,000 mur der

- charge bail , he agreed to have t h at a mo unt reduced to $27 5,000 , making his total bail on both charges $300,000

. He sai d that a bond company had

r equest ed a $12,000 down payment an d $400 per week to cover th is new b ail amount.
Acco r ding to Chavez, this amount was s till to o high, as he and his family could only
afford about $8,000 in total

— “ t he same as last time. ” 3 Chavez t estifi ed , if relea sed from jail , that he coul d earn up to $1,200 per week a s a roofer. Chavez testified t hat he had no money or o ther asse ts that he could use to pay for his bail.
Obta ining release was important to Chavez because he desired t o work an d
supp ort his three small chi ldren. His mother, five sisters, and five cousins all live in
the area and have said that they w ould help to ensure that Chavez meets the

2 Th is evid ence include s Chavez ’ s testim ony and sixteen exhibits admitted by the State , which include probable

- cause affidavits, medical

- exam iner rep orts, documents related to a pending federal charge against Chavez, and incident rep orts from t he jail. Chavez was th e on ly witne ss at the hearing

.

3 At the previous ba il

- reduct ion heari ng, Chavez ’ s mother testified that the most that she an d the re st of Chavez ’ s family coul d afford to pay a bail bondsman was $8,000

. See Chavez

, 6 71 S.W.3d a t 780.4

conditions of his bon d. Chavez assured the trial court that he would follow all bon d

re quirements, would have no contact wit h Gonzalez ’ s family, and that he di d not own

a ny firearms.
On cross

- examination, Chavez exp lain ed that he had a prior con viction for
misdemeanor assault of a famil y member

. When asked if the bondin g company in
that c ase had gone “ off [his] bond , ” Chavez replied that he cou ld not reme mber but
would not be su rprised i f that had occurred

. The State then entered into evidence an affidavit from Chavez ’ s former bonding agent who attested tha t Chave z had failed to comply wi th their bond agreement and who had requested th at a warran t be issued for
his arrest. Chavez then testified that he had a pending federal charge for “ smuggling a
human [:]

. . . [i] llegal aliens. ” 4 He conceded that he had v iolated his bond in the
federal case by failing to report a change of addr ess and tha t a warrant w as

outsta nding for his arrest

. Chavez also testified about mul tiple write

- ups that he had received for violating jail rules

. Thes e incidents, d etailed in exhibits entered by the State, i ncluded
infraction s for throw

ing a chess piece at a jai l officer , un authorized use of another
inmate ’ s informat

ion to access a tablet, destruction of jail property for breakin g h is
in mate ID card, and refus ing to comply with jail

- staff directives

.

4 Hearing exhibits relat ed t o this c ha rge show that C havez was indicted in July 202 1 for tra nsportation of aliens within the United States. See 8 U.S.C. A. § 1324 (a)(1)(A)(ii), (B)(ii).5

II. S TANDARD OF RE VIEW AND APPL ICABLE LA W
We review the trial court ’ s decision in setting a bail amount for an abuse of discretion, viewing the evidence in th e light most fa vorable to the t rial court ’ s ruling. Ex parte Gomez

, 624 S.W.3d 573, 576 (Te x. Crim. Ap p . 2021). We will not dist urb the
d ecision if it was within the zone of reasonable disagreement. Ex parte Estrada , 640 S.W.3d 246, 256 (Tex. App.

— Housto n [14th Dist.] 2021, pet. ref ’ d ). The accused
has the burden to show that the bai l amount is excessiv e . Gomez , 624 S.W.3d at 57 6.
Bail ’ s primary purpose is to assure the defendant ’ s presence for trial. See Tex. Code Crim. Proc. Ann. art. 17.01; Ex parte Vasquez , 558 S .W.2d 477, 479 (

Tex. Crim. App. 1977). In setting bail, the trial cou rt bal ances the d e fendant ’ s presumption of
i nnocence and the State ’ s interest in assuring the defendant ’ s presence at trial. See Ex parte Simpson , 77 S.W.3d 894, 896 (Tex . App.

— Tyler 20 02, no pet.) (pe r curiam); Ex parte Brown , 959 S.W.2d 369, 371 (Tex. Ap p.

— Fo rt Worth 19 9 8, no pet.).
The trial cou rt ’ s disc retion in setting a bail amount is governed by the following statutory criteria:
1. B ail shall be sufficiently high t o give reasonab le assurance tha t the undertaking will be complied with.
2. The power to r equire bail is not to be used to make bail an i nstrument of oppression.
3. The nature of the offense and the circumstances under which it was committed are to be c onsidered, incl uding whether th e offense: (A) is an offense involving violence as defined b y Texas Cod e of Criminal Procedure Art icle 17.0 3 ; or (B) involves violence directed against a peace officer.6

4. The ability to make bail shall be considered, and p roof may be tak en upon this poi nt.
5. The future safety of a victim of the alleged offens e, law enfo r cement, and the community shall be considered.
6. The criminal history record information for the defendant, including information obtained through the statewide tele communications s ystem maintained by the Department of Public Safety and thro ugh the pub l ic safety report system de veloped u nder Article 17.021, shall be considered, including any acts of f

amily violence, other pending criminal charges, and a ny instances in which the defen dant failed to appear in court following release on bail.
7 . The citiz e nship status of the defend ant shall be considered.
Tex. Code Crim. Proc. Ann. art. 17.15 (a)

. Other circu mstances to be considered
include the defendant ’ s w ork record, family and commu nity ties, length of residency , and conformity with the cond itions of a n y previous bond, as well a s the exi stence of any outstanding bonds and aggravating c ircumstances involved in the charged offense.
Ex parte Rubac

, 611 S.W.2d 848, 849 (

Tex. Crim. App. 1981).
A defendant ’ s inability to meet the bail set by the t rial court d oes not automatically make the bail amount excessive; “[i]f the ability to make bond in a specified amount controlled, then the role of the trial court in setting bond would be complet ely eliminated, and the accused would be in the unique postu re of deter m ining
what his bond should be.” Ex parte Scott , 122 S.W.3d 866, 870 (Tex. App.

— Fort
W orth 2003, no pet.) (quoting Ex parte Miller , 63 1 S.W.2d 825, 827 (Tex. App.

— Fort
W orth 1982, pet. ref

’ d)) ; s ee Estrada , 640 S.W.3d at 255 (stating that evid ence of
“enor mous gap” between what bail appel lan t ’ s family said they could affor d and what7

bail the court set favored reduction in bail but did no t demonstrate that the bail was excessive). Howeve r, as noted, “[t]he power to require b ail is not to be used to make
bai l an instrum ent of oppressi on.” Tex . Code Crim . Proc. Ann. art. 17.15.
A defendant ’ s criminal history can in some cases su ggest that the defendant would be a danger to the public if re leased on bail. See, e.g. , Ex parte Lov ell , No. 12

- 21

- 00206

- CR, 2022 W L 598683, at *3 (Tex. App.

— Tyler Feb . 28, 2022, no pet.) (mem. op, not designated for publication). But t he nature of the offe nse with
wh ich the defendant is currently charged and the possible sentence are the “primary
factors” w e consider in evaluating a bail decision. Ex parte H unt , 138 S.W.3d 503, 506 (Tex. App.

— Fort Worth 2004, pets. r ef ’ d).
III. DISCUSSION
A. C HAVEZ ’ S B AIL A MOUNTS N OT E XCESSIVE As we explain belo w, Chavez has n ot carried his burden to prove th at his bail

amo unts a re excessive

.

1
. Nature of the Offense and Potentia l Sentence
C havez is charged with murder and de adly conduct

. See Tex. Pena l Code Ann. § § 19.02 (b) (murder) , 22.05(b) (deadly conduc t)

. Murder is a fi rst

- degree felon y that

car ries a poten tial sentence of imprisonment f or 5 to 99 years or life

. Id . § § 1 2.32(a) , 19.02(c). M urder is also “ an of fense involving violence as defined by Texas Code of
Criminal Procedure Article 17.03 ”

— a fact that courts are to consider whe n making
bail determ in ations

. Tex. Code Crim. Proc. An n. art s . 17.03(b

- 3)(2), 17 .15 (a)(3) (A).8

D eadly conduct as charged against Chavez is a third

- degree felony tha t carries a potential sentence of imprisonment betwe e n 2 a nd 10 years

. Tex. Penal Code Ann. §§ 12. 3 4(a) , 22.05 (e)

. Th ere is no doubt that the a lleged offenses w ere grave and violent. Ch avez is

a lleged to have used a high

- caliber, high

- capacity ri fle to shoot the vic tim ’ s hou se and then to have used that same weapon in a public setting to shoo t the victim eight
times , k illing him. And the potent ial for a life se ntence amplif ies the impor tance of setting the bail amount sufficiently hig h to secure Chavez ’ s appearance at trial. See id.
art. 17.15 (1) ; Scott

, 122 S. W.3d at 8 69 (recognizing that t he prospect of a lengthy prison sentence might le ad a defe ndant to not appe ar at trial).
Th ese factor s we igh strongly in favor of a reasonably high bail amount

.

2
. Ability to Make Bai l
Chavez t estified that his bail amounts are still too high for him a nd his family

to afford , even aft er they were red uced

— by a greement

— from $1,0 25,000 in total to $300,000. He said that a bonding company was seeking a $12,000 down payment but
that he and his family could come up wit h only $8,000

. In o ur 2023 opinion, we held that Chave z had “ offere d evidenc e that there wa s

an ‘ enormous ga p between what bail . . . he could afford a nd what bail the trial court actually set

. ’ ” Chavez

, 671 S.W.3d at 790 (cle aned up) (q uoting Estrada , 640 S.W.3d at
255 )

. At that ti me, Chavez ’ s mother testif ied that the family c ould afford to pay only $8,000 t o a bon dsman but that Chavez ’ s $1,000,000 m urder bail alone would have9

require d the m to pay $100,000

. There is little question th at $92,000 is a n enormous
gap
. But the situation has changed for Chavez

. Knowing h ow much h e and his
famil y could afford to pay a bondsman, he agreed to lower his total bai l amount to $300,000. A nd the difference between what they can afford

— $8,00 0

— and the down

payment a mount n ow needed f or the bondsman

— $12,000

— does not constitute an

e normous g ap. A t best, i n light of these new facts, Chavez ’ s stated inability to make
bail weighs only nominally in favor o f a reduced bail amount
. 3 . Future Safety of Victim , Law Enfor cement, and Commun i ty Cha v e z testified that he did not own any fi rearms an d that , if released , he
would have n o contact with the victim ’ s family

. No evid ence was adduced at the hearing to show a particular thr eat to the vic tim ’ s f amily or la w enforcement if C havez
was released. However, the nature of Ch avez ’ s vi olent offenses committed in publ ic settings
raise s a generalized concern for the comm unity ’ s safety. See Ex parte Hanson , No. 02

- 22

- 00045

- CR, 2022 WL 1496533, at *4 (Tex . App.

— Fort Worth May 12, 202 2, no pet.) (mem. op., not designat ed for publication) (not ing that a mur der charge raise s a general ized s afety concern)

. Thus, on this record, this factor does not weigh s ubstantial ly f or or agai nst a high bail amount.10 4
. Criminal History and Bail Com pliance
The e vidence sho wed tha t Chavez ha s a prior conviction for misdemeanor

assa ult o f a family member and a pending federal charge for transpor tation of illegal
aliens and that he h ad violated his bond in both of tho se case s . It also ind icated that
Chave z had vi ola ted jail rules se veral times , includ ing by throwing an object at a jail

st a ffer.
This fa ctor weighs in favor of a high b ail am ount , particularly one high enough

to ensure Chavez ’ s appearance at trial given that he has show n an inability to comply
wit h bond conditio ns in the past.

5
. Ties to the Community And Citizens hip
Ch avez has strong t ies to the community. He has many fam ily members in the area, including his mother, five sisters, numerous cousins, and th ree sm all c hildren. In our previous opinion, we noted that Chavez i s a U nited States citizen who wa s born
in Texas and has work ed lo cally since he was a teenager

. See C havez , 671 S.W. 3d at
789. No e vidence was adduced at the hearing to contradict these s trong ties or t o indicate that Chavez ha s ties elsewhere that would make him a flight risk.
Accordin gly, t his fact or weighs in favo r of a lower bail amount.

6
. Not Used As Instrument of Oppre ssion In light of the se factors, we conclude that the trial cou rt di d not abuse its discretion in denying Chavez ’ s habea s request for reduced bail . The nature of h is allege d off

enses and possibl e sentence

— which are the “ primary ” fact or s we are to11

consider

— weigh heavily in favor of a reasonably high amount

. See Hunt , 138 S.W.3d

at 506

. Additionally , his c riminal history, past bond violations, and th e recent reducti on of his bail to an agree d

- upo n amount show that his bail is not being use d as

an instrument of oppression but , rather, to ensure his appearance at trial

. Se e Tex.
Code Crim. Proc. Ann. art. 17.15 (a)(2). And Texas courts considering bail amounts in
simi la r cases have routinely uphel d amoun ts compar able to those in Chavez ’ s cas e . See Ex parte R e

yes
- Martinez , 653 S.W.3d 273 , 283 (Tex. App.

— Austin 2022, no pet.) ( af firming $50 ,000 and $300,000 bail amounts for aggravated

- assault and felony

- murder charges); Ex p arte McBr ide , No. 12

- 07

- 00 241

- CR, 2007 WL 4216370, at *2 (Tex. App.

—

Tyler N ov. 30, 2007, no pet.) (mem. op. , not desig nate d for publication) (affirming $25 0,0 00 bail amo unt for murder cha rge and collecting cases); Ex parte Landry , 936 S.W. 2d 27, 28 (Tex. A pp.

— Sa n A ntonio 1996, no p et.) (affirming $300,000 bail amount for murder charge)

.

B
. C ONSIDER

ATION OF P UBLIC S AFETY R EPORT
1. Damon Allen Act and Gayos so Though neither party raised it as an issue with the trial cour t or on appeal , the
Texas Court of Criminal A ppeals (CCA) rece ntly explained t hat it is imperative for a n appellate court

— in effect uati ng its duty to consider the complete record on appeal

—

to determine whether a trial court considered an Article 17.02 1 publ ic safety report 5 in

5 An A r ticle 17.021 public safety report mus t contain a number of items for a criminal defendan t, including his identifying information ; eligibility for a persona l12

making a b ail determin a tion

. See Ex par te Gayosso , No. PD

- 0513

- 23, 2023 WL 8440099, at *2 (Tex. Crim. App. Dec. 6, 2023)

. The Damon Allen Act requires that a “ magist rate considering the release on bail of a defendant charged with an of fense punishable as a Class B misdem ean o r ” or higher must order th e preparation of a public safety report. Tex. Code Crim. P roc. Ann. art. 17.022(a). The magistra te is then required to “ consider the public safety
report before setting bail. ” Id . art . 17.022(d)(1).
In Gayos so , th e interme di ate appellate cou rt contended that it need not be
concerned with whether the Damon Allen Act applied to its case because the record
made it clear that the trial court considered the appellant ’ s criminal history and
because no argu ment had bee n r aised on ap peal that the tri al court had failed to
consider the pu blic safety report. 2023 WL 8440099, at *2

. The CCA disagreed, explaining that an appella te court must consider the compl ete record that was before the trial court in determining whether t he bail d et ermination was an abuse of discretion. If the trial court did not consider the public safety report required by statute, then it erred, though th e court of appeals mig ht be able to consider the issues of p reservation and harm. If the trial cou rt did co ns ider the public s afety report required by statute, it was error for the court of appeals to no t review the report.
Id

. bond ; “ information regarding the applicability of any required or discret ionary bond conditions ; ” and a summary of his criminal history , which includes previ ous convictions, pending charg es, previous sent ences of con finement, notation of certain violent crimes, and previous bond fail ures . Tex. Code Crim. P r oc. Ann. art. 17.021.13 2. Trial Court Erre d By Not Considering Report
Because we cou ld not determine from the record whether the trial court had
consi der ed the public saf

ety report before setting Chavez ’ s bail, we abated this appeal for the trial court to make findings of fact and conclusions of law on the is sue. See Ex parte Delong

, No. 02

- 23

- 00322

- CR, 2024 WL 725111, at *1 (Tex. App.

— Fort Wort h Feb. 22, 2024, no pe t. h.) (abating f or same reason). Specifically, we asked the trial

court to provide findings about (1) w hether it had conside r ed the public saf ety report ; (2) i f so, whether the report still exis t ed or had been d estr oyed ; ( 3) i f the repo rt had
been consid ered, any informa tion in t he report on which the trial court had relied in making it s de cision; and (4) any other inf ormation on which the trial court had relie d in making its decision

. The tr ial court responded to our a batement order , findi ng that it h ad not
considered a public safety report in determining Chavez ’ s bail. The trial court explain ed that its determination had been based on

• A l l testimony and evidence presented at the bail

- reduc tion hearing ;

• The trial court ’ s determ ination that Chavez ’ s te stimony was no t c redible regarding whether he would appear at trial, maintain employment, and follow bail conditions ;

• C havez ’ s criminal history, which included a prior family

- violence conviction and “ all of the circum stanc es relate d to his pen ding fe deral charge for smugg ling illegal al iens ” ;

• The fact that Chavez had a history of violat ing prior bond conditions;14

• The fact that Chavez had received multiple discipli nary viola tion s while in jail;

• The “ viol ent and da ngerous c ircumstan ces ” of th e alleged offe nses; and

• The fa ct that Chavez had “ agreed to a cu mulative bail of $300,00 0 for his charges before later deciding to co ntest the agreed

- upon amount. ”
We hold that it was error for the trial court not to consider the publ ic saf ety
repor t . H owever, as w e will explain , t his error w as not preserved for our review and

was also harmless. See Gayosso , 2023 WL 8440099 , at *2 (explaining that a ppellate

court may consider the issues of preservation and harm in reviewing such e rro r) ; Delong , 2024 WL 725111, at * 8 ( holding that f

ailure to consider report was harmless

error )

. 3. Error No t Preserved To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion sufficien tly stating the spec ific grounds , if
not apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Montelongo v. State , 62 3 S.W.3d 819, 822 (Tex. Crim. App. 2021) . Further, the party must obtain an express or implicit advers e trial

- c ourt ruling or objec t to the tri al
court’s refusa l to rule. Tex. R. App. P. 33.1(a)(2); Dixon v. State , 595 S.W.3d 216, 223 (Tex. Crim. App. 20 20)

. Because it is a systemic requirement, this court should independently review error preservation, and we ha ve a duty to ensure that a claim is15

properly pre s erved in the trial court before we address its merits. D ixon , 595 S.W.3d
at 223

. Bec ause Ch avez has never complained ( in the trial court or on appeal) that the
trial court fail ed to c onsider a public safety report , we hold that the iss ue has not be en
p reserved for our review.
4. Harm less Error
Even if the error h ad been preserved and raised on appeal, it would have been
harmless to Chavez. In Delong , w e set forth the a pplicable harm an alysis : [W] e disregard the trial c ourt ’ s error if it did not af fect [the appellant ’ s] substantial rights. See Tex. R. App. P. 44.2(b). Analogizing this situa tion to one in which the trial court has failed to consider a presentence investigation report i n assessi ng punishment , we will asse ss the effec t that the trial court ’ s error had on its bail decision by considering the entire record, the nature of the evid ence supporting the bail decision, the character of the error (i.e., the failure to consider the informat ion in a mand atory report b efore making a bail decision) , and how the error might be considered in connection with other evidence in the case. See Yarb rough v. State , 57 S.W.3d 611, 619 (Tex. App.

— Texarkana 2001, pet. ref ’ d); see also Bates [ v. S t

ate ] , [No . 02

- 20

- 00114

- CR,] 2021 WL 1229962, at *3 [ (Tex. App.

— Fo rt Worth Apr. 1, 2021, n o pet.) (mem. op. , not designated for publication)]

. Delong , 2024 WL 7 25111, at * 8

. We have already discuss ed in d etail the e vidence before the trial court at the
bail

- redu ction hearing and why that e vidence supp orted it s decisio n. The tri al court
had Chavez ’ s identifying information even without the public safety report. The report would have stated to the trial court whether Chavez was eligible for a personal
bo nd , but t here was no dispute as to Ch avez ’ s bond eligibility. If Chavez had been16

ineligible for some reason, that information would have only harmed him. We kn ow that the trial court considered Chavez ’ s criminal history and prior bond failures ; the
omiss ion from the record of additional c ri minal histor y or bond failure s that might have appear ed in the report would only have benefitted him. In other words, the t rial court had from other sources most of the information
that woul d have appeared in the publi c safety report. And if there was an y informatio n missing from th e trial court ’ s consideration that would have appeared in
the report, Chavez stood only to bene fit from those om issions. See id . Accordingly,
we hold that

— even if Chavez had properly preserved the error or if it was not requi red to have been preserved

— th e trial court ’ s failure to cons ider the public saf ety report did not affect Chavez ’ s substantia l righ ts. See i d

. IV . CONCLUSION For these reasons, we affirm the trial court ’ s order denyi ng Chavez ’ s requested
habeas relief. /s/ Brian Walker
Brian Walke r Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Deliver ed : March 21 , 2024