Opinion issued May 2 7 , 2021

In The 

## Court of Appeals
For The 

## First District of Texas

———————————— NO. 01
- 20
- 00841
- CR NO. 01
- 20
- 0084 2
- CR NO. 01
- 20
- 0084 3
- CR

——————————— EX PARTE MATTHEW JAMES LEACHMAN

MEMORANDUM OPINION

Appellant Ma tthew James Leachman i s facing thr ee counts of aggravated
sexual assault of a nine

- year
- old boy. He challenges the trial court ’ s denial of his application for writ of habeas corpus, asserting he should have be en granted a2

perso nal bond rather than the $75,000 bond imposed for each of the thr ee aggravated

- sexual

- assau lt

- of

- a
- child charges

. 1 We affir m
. Background
This case has a long and multifaceted history, much of wh ich is not relevant

to Leachman ’ s petit io n
. 2 In 1999, Leachm an pleaded guilty to three charges of
inde cency w ith a child , involving three different boys rang ing in age s from ten to
fifteen

. He was sentenc e d to twenty y ear s ’ confinement in the Texas Departme nt
of Crim inal Ju stice ( “ TDCJ ” ) f o r each c ase and release d t o parole on mandatory supervision on Octob er 1, 2020. 3 Separately, and r elevant to this case, Leachma n
is aw aiting trial on t hre e counts of aggr avated sex ual assaul t of a ni ne
- year
- old boy , a first

- degree felony th at has a pun ishment ran ge of five to n i nety

- nine y ears or life. 4 T EX

. P EN AL C ODE § § 12. 32, 22.021 (a)(1)(B)

. On Octobe r 14, 2020,

1 The un derl ying case is St ate v. Leachman , C ause Nos. 169 4181 , 1694180, and 1694 182 , pen ding in the 248th District Court of Harr is C o unty, Texas, the Ho norable H ilary Unger pres iding.
2 See Ex p art e Le achman , 554 S

. W

. 3 d 73 0 , 733

- 3 6 ( T ex. App.

— Houston [1 st Dist.] 2018 , pet. r e f ’ d ) ( summari zing pro cedural h istory of L eac hman ’ s criminal convic t ions and appeals ) ; Leachm an v. St ephens , No. 4:11

- CV

- 212, 2015 W L 5730378, at *1 (S. D

. T e x. Sept. 30, 2015) (mem. and order, no t design ated for pu blica tion) ( s a me )

. 3 He was no t actually r el eased fro m custody because of the three pending c harges that are the subject of this appeal

. 4 In 1998, Leachm a n was indict ed on t hre e counts of aggravated s exual assault of a ni ne
- y ear
- old boy

. Lea chman wa s t r ied and convicted of one of th e charges i n 1 9 9 8 (unde r C ause No . 786224) and sentenced to for ty year s ’ im p risonment

. Afte r exhaustin g all direct app eals and applications for w rit of habe as corpus through th e state , Leachma n filed a federal h ab eas cor p us p etition based on the3

Leachm an filed a n application for writ of habeas corp u s, asser ting that no bond had
been se t f

or the thre e pending cases. H e a sked to b e released o n a personal bon d
and requested a hearing on his application. Th e court initially fixed bail at $100,000 per charge pending the hearing on th e writ. The co urt conducted a
he a ring on t h e w ri t applicati on and redu c ed bail t o $75, 000 for each ca se. Durin g
the hearing , t he trial court judge explained t ha t in setting the bond, she considered ,

amon g other things:
T he seriousness of the crime , the nat ure of the offense and circumstances , [ L eachman ’ s] past recor d, [h i s ] t i es to the communit y, risk to public safe t y, potential fl ight r isk.
Leachman asserts the trial court abus ed its discretion by setting a $ 75,000
bond for each of the three cases rather than releasin g him on pers onal bond, 5 and in

deni al of his Sixth A me ndment ri gh t to sel f

- representation. A federal c ourt co nditio nally grant ed Leachman ’ s petition in 2015 , based on his self

representat ion claim, order ing hi s release unless the St ate mov ed to grant h im a n ew t ria l for his conviction in Ca u s e N o. 786224

. L e a chman v. G onzalez , No. 4:19

- CV

- 2943, 2020 WL 6 1 52537, at * 1 (S.D. Tex. Oct. 20 , 2020) . The St ate timely moved f

or a new trial in that cause , s ubsequently s ever ing t he original indic t ment into separate cause numbe rs. I d. at *2. Th e se ar e the charges th at a re subj ec t of L eachman ’ s present pe tition

. 5 Leachman doe s n ot as k this Cour t t o lower the am ount of the bond; he o nly se e ks a pe rson al bond. H e states in h is brie f: T he Cour t should take n ot e that the pro blem is not the bai l a mount but r ather the re qu i r ement of a ba il bon d rather th an a personal bond

. . . . My n otice of appeal . . . may not have m ade c lear that setting a $75 , 000 b ai l am ount was objectiona ble only in co mbi n ati on with the den ia l of my req ue s t fo r p ersonal bond , b ut th ere we re no misu nd er s t and ings at th e writ hearing.

. . . [A]s the he ar ing made cle ar, my r equest was no t that the tria l court reduce bail but rath e r all ow a p ersonal bond.4

exclu d ing evi de n c e relevant to the issue of setting bon d during the bond hearing

. 6
The S tate contends the denial of personal bond i s discretionary and no t reviewab le.
In the al ternative, t he State assert s the trial court di d not abuse i ts discretio n in

s etting the $75 ,0 00 bonds and that Leachm an w a s not harme d because th e trial

court to ok not ice of the evidence Leachman c onte nd s the c ourt improperly

ex cluded during the b ond hearing

. Standard o f Revie w We review a trial court ’ s decisio n on the g rant or denial o f habeas corpus
relie f for abuse of discretion. K niatt v. Sta t e , 206 S.W.3d 6 57, 66 4 (Tex. Crim. App. 2006); se e Ex parte Ruba c , 611 S.W.2d 848, 849

– 50 (Tex. Crim. Ap p. 1981) (reviewing bail pending appeal for abuse of discretion ); Montalvo v. Stat e , 315
S.W.3d 5 88, 592 (Tex. A pp.

— Houston [1st Dist.] 201 0, no pet.) (same)

. When a
habea s appeal pertains to pretrial bail, we “ meas ure the trial court ’s ruling against
the relevant criteria b y which the ruling was m ade. ” Id. at 59 3 ; see als o Ex parte
Dixo n , No. P D

- 0398

- 15, 2015 WL 5453313, at *2 (Tex. Crim. App. Sept. 1 6,
20 15) ( not de signated for publication) (“Habeas courts determi ne the bearing of the

(Emphasis in original. ) Leachman asked the trial cou rt duri ng the writ hear ing “ to gr an t [ him ] a p erso na l bond

. ”
6 Leac hman al so initially app ea led t he bond co ndi tio n th at he be d en ied access to th e internet. During a second writ h earing, however, the judge agreed to allow L e achman t wenty

- f

ive ho urs per week o f inter net tim e with mo nito ri ng softwar e , a nd Leachman agr ee d to the conditions

. Ther ef o re, tha t portion o f h i s petition is moot.5

e vidence on the rele v ant bail criteria onl y in the first instanc e. On appellate review, i t is the duty of the r ev iewing court to measure the ultimate ruling of the
habe as cou rt ag ainst the relevant bail factors to ensure that the cou rt did not abuse
its dis cretion.”) ( emphasi s in original) (citing T EX

. C ODE C RIM

. P ROC

. 17.15; T EX

. C ONST

. art. 1 , §11

- 11 a, 13).
Th is Court will only disturb the trial court ’s ruling if it is “ o utsid e the zone of reasonable disagreement

. ” Ex parte Nimn icht , 467 S.W.3d 64, 66 (Tex. App.

— San Anto n io 2015, no pet.)

. “ The mere fact that a tr ial court may decide a ma t ter
with in its discre ti on differently than an appellate cour t wou ld in a simi lar
cir c umst ance does not dem onstrate that an ab us e of discretion has occurred. ” Montgome ry v. State, 810 S. W .2d 372, 380 (Tex. Cr im. App. 1991) ( quoting
Downer v. Aquamarine Ope r ators, I nc. , 701 S.W. 2d 238, 241

– 242 (Tex.19 85 ) )

. It is the app ellant ’ s bur den of p roof to show that the trial cour t abused its discretion
i n its bail determination. Ex p arte Nimnicht , 467 S .W.3d at 66 (citing Rubac , 611
S.W

. 2d at 84 9).
A pplicable Law
A rt i c l e 17.03 o f the Texa s C od e of Criminal Pr oced ure provides tha t “ a magistr ate may, in h is o r her discretion , release the defendant on perso nal bond
without sureties or ot her security. ” T EX

. C ODE C RIM

. P RO

. a rt. 17.03(a)

. As noted

a bove , “ [t] he granting o f a persona l bond is a m at ter within the d iscr etion of the6

cou rt before wh om the case i s p e nding. ” Ex parte Trillo , 540 S.W.2d 728, 732 (T ex. Crim. App. 1976), overruled on other grounds b y Aguilar v. State , 621
S.W.2d 781 (Tex. C ri m. A pp. 1981)

. Texas C o de of Cri minal Proc edu re art. 17.15 enum erates rules for set t ing a
defen dant ’ s amount of bail:

1. The bail shall be sufficiently high to give reasonable assurance that the undertaking wi l l be complie d with. 2. The powe r to requ ir e bail is not to be so u s ed as to make i t an in st rument of oppres sion. 3. The nature of the offe nse and the c irc u mstances under which it was committed are to be considered. 4. The ability to make bail is to be r egarded, and proof may be taken upon this p oint. 5. The future s a f

e ty of a v ictim of t he al leged offense an d the community shal l be conside red.
T EX

. C O DE C RIM

. P RO

. art. 1 7

. 15. T rial courts also conside r t hese rules in
consider ing whethe r to grant pers o nal bond to a defendant. In Ex parte Ni mnicht , for example, the d efendant so ught “ re duction of bail , pa rti cu larly release on a personal bon d. ” 467 S.W

. 3d a t 66

. In considering whether the trial court ab used
its discretion in denying personal bond and s e tting bond at $7,500, the cou rt
consider ed the fi ve rules in artic le 17.15. Id. at 6 7

– 70 ; s ee al so E x p ar te Perez , No s
. 02

- 10

- 0 0450

- CR, 02

- 10

- 00451

- CR, 201 1 WL 255292, a t *1

– 4 (Tex. App.

— Fort Worth Jan. 2 7, 2011, no pet.) ( mem. op., not designated for publication) ( considering artic l e 17.15 ’ s rules when defendant reque sted rele ase on per sonal7

bond or, alterna t iv ely a reduction in bai l) ; Ex p a rte Barn es , No. 2

- 10

- 260

- C R,
2010 WL 3433 800, at *1

- 3 (Tex. App.

— Fort Worth Aug. 31, 2 010, no pet.) ( mem.
op., not designated for publication) (same) ; Ex p a rte Gomez

- Herrada , No. 07

- 20

- 00177

- C R, 2020 WL 7214293 , at *5 (Te x. App.

— Ama r il lo Dec. 7 , 2020 , no p e t. ) ( mem. op., not designate d for publication ) (same)

. I n ad di t ion to the rules or factor s enumerated in article 17. 15 , tri al courts
also may consider the follow ing factors in s etting the amo u n t of bail o r granting a request for personal b ond :
1

. the a ccused ’ s work re cord; 2

. the accused ’ s fa m i ly and co mmun ity tie s; 3

. t he accused ’ s lengt h of residency; 4

. the a ccused ’ s prior criminal record; 5

. t he accus ed ’ s conformity with previous bond conditions; 6

. t he existence of other ou t stan ding bonds , if any; and 7

. aggravating circumstance s alleged t o ha ve been i n vo lved in the cha rged of fe nse. Smith v. S tate , 82 9 S.W.2d 885 , 887

– 88 (Tex. App.

— Houston [1st D ist.] 1992,
pet. ref’d) (citing E

x parte Rubac, 611 S .W.2d at 849

– 50 )

.8 D i sc ussion 7
The tr ial cour t was ch ar ged wit h consideri ng the se fac tors and the rule s in
articl e 17.15 in its bon d determination. W e review the sam e b ail criteria to ensure
the court did not abuse it s discretion

. “ On appell ate review, it is the duty of the

re viewing court to measu re the u ltimate r u ling of t he habeas court against t he

re levant bail facto rs to ensure that the court did not abuse its d iscretion. ” Ex parte
Dixon , No. PD

- 0398

- 15, 2015 WL 5453313, at *2 (Tex. Cri m. A pp. Sept. 16, 2015) (not designa ted for public ation ) ( ci ti ng T EX

. C ODE C RIM P ROC

. a rt. 17.15;
T EX

. C ONST

. art. I, § 11

– 11a, 13 ).
A. S ufficient ly H igh B ail
The first fa ctor we consider is whether the bail i s “ sufficiently high to g ive

reasona ble assurance that the undertaking w ill be complie d with

. ” We b elieve in

t h is c i rcumstance, the $75,000 b ail per charge is suffi c iently high to give th is

assuranc e
. Regardless, this factor is neutral in as m uch as it does not weigh in

7 The State arg ues that t he trial court ’ s ruling denying personal bond is not re viewabl e b ecause it is a discret i onary deci sion

. We disagree. A number of appel late c o urts have re viewed a t rial cour t ’ s rulin g on a request for perso nal bond under an abuse of discretion standard

. See, e.g., Ex parte Nimnicht , 467 S.W .3d 64, 66 (Tex. App.

— San Antonio 2015, no pe t.) ; E x p ar te Pe rez , No. 02

- 10

- 00450

- C R, 2011 WL 255 2 9 2 , at *1 (Tex. App.

— Fort Worth Jan. 27, 2011, no pet.) ( mem. op., not designated for pub lication ) ; Ex p arte Barn e s , No. 2

- 10

- 260

- CR, 2010 WL 3433800, at *1 (Tex. App.

— Fort Worth Aug. 31 , 2 010, no pet.) ( mem. op., not d e signated for publicat ion) ; E x parte G omez - Herrada , N o. 0 7

- 20

- 00177

- CR, 2020 WL 721429 3 , at *5 (Tex. App.

— Ama r il lo Dec. 7, 2020 , no pe t. ) ( mem. op., not designate d for pub lication)

.9

favor of or against the impositi on of the personal bond Leachman requests.
B. W h ether B ail is O pp r e ssi ve and the A bility to P ay I t
T he second fac tor , t he requirement that bail is not used as “ an instr ument of oppression , ” and the fourth factor , the ability to make b ail, are re lated. Th ere fore,

we c onsi der t hem t ogether. L eachm an arg ued in h is origin a l ap plication f or writ of
ha beas corpus that a ny bail requirin g a sure ty w ould be “ excessive ” under the Eighth Amendment to the U.S

. Constitution and will constitute “ un lawful

oppr ession ” i n v iolati on o f artic le 1, s ection 11 of the Tex a s Con st itut i on and
arti cle s 1

. 07 and 17.15(2) of the Te xa s Code of Crimi nal P rocedure. He argues here, similarly, tha t the judge ’ s c omment that s he “ underst [ood ] and [ ha d ] no
doub t ” t hat Leachm a n canno t “ af ford m uch of a nything ” in th e wa y of bai l is

“ prim [a] fa cie evide nce tha t the tri al court in tend ed the requireme nt of sec ured
bond [ i n any amount ] as an effective pret rial detention order. ”
Leachman ’ s dependence on t he court ’ s comment is mispla ced. T h e judge ’ s

su pposition that Leac hman c annot afford any ba il does not preclud e her fr om
refusi ng to grant personal b ond. Leac hman relies on Ex parte Harris , 733 S

. W.2d
712 , 713 (Tex. Ap p.

— A ust in 1987, no pet.), a case in which the t rial court set
bo nd at $ 50, 000 for the defend ant ’s convi ction of driving while intox icat e d.
Refusin g to r educe th e bail amount, the tri al cour t stat e d:
I think because of his bad record, I just wouldn ’ t feel right in lowering the bond any. I ’ d hate to put that u pon the ci ti ze ns of Travis County.10

Maybe the Co urt of App eals will, but at least t hat won ’ t be on m y back. I just feel a duty to the commun ity to protect the community. If he ’ d get out and kill someone, I ’ d never get over it. I ’ d rather see him in j ail tha n to see s om eo ne ’ s life tak en, so I ’ m going to deny the w rit and let yo u go on up to the Court of A ppeal s a nd see what they do ab out it. I just wouldn ’ t feel right with thi s horrible record.
733 S

. W. 2d at 714. The court of appeals found the lo wer cou rt abused it s
dis cretion in setting the amount of bail:
I t is clear tha t th e distr ict court ’ s refu s al to re du ce bail was not base d on a dete rmi nation tha t $50,000 bail is n ecessary to assure appellant's presence should his c onviction be affirmed, no r was i t based on a f ind ing that a ppellant had not mad e an adequ ate effort to make bail i n t he amo unt set

. . . . Rath er , the district court elected to se t bail, bu t in an amount calc ulated to be beyond appellant ’ s means and to assure appellant ’ s c ontinued inc arcerat ion. The d is tr ict court, by so doing, used bail as an ins trument of opp ression in vio la tion of the constitu ti on and statutes of t his Sta te.
Id

. Here, alth ough the trial court acknowledged the diffic ulty Leachman would
have in paying the bond, th ere is nothing in the judge ’ s st atement th at indicates s he was attemptin g to e nsure Le achman r ema ine d in confinem e nt

. See E x parte Bell , No. 0 3

- 09

- 00037

- CR, 2009 WL 1 364355, at *3 (Tex. App.

— Austin May 12, 2009, no p et.) (m em. op., not designated for publication) (disti nguishing Ex p art e
Harris , noting the distr ict court ’s co mments a bout t he condi tio ns that the Bell
defendan t wou ld have to satis f y if released

— such as no con tact with anyon e under eighteen and the requirement that he remain in Bell Co unty

— do not suggest the

court “was attempting to secure [th e defe ndant ’ s] cont inued i nca rcer ati on. ” )

. On11

the con trary, the trial court contemplated a nd enumerated the c o n d itions that will be imp osed shoul d Leachman m ake bond . Specific ally, if Leachman makes bond,
the court ordered that he wear a GPS monitor , be on hou se arr est, no t have co ntact with any one un der the ag e of seventeen , and be allowed to work a t only one
locati on
. Ex par te Ha r ris , whe re ther e was no such contemplat ion of the
defendant ’ s release, is inap posite

. Leach man also relies on E x p arte Bogia , 56 S.W .3 d 83 5 (Tex. App

. — Hou ston [1 st D ist.] 2001, n o p et. ) to advance hi s argument th at he should be
releas ed on personal bond. In Ex p arte Bog ia , the defendant was charged with
second

- degree fel o n y theft of more than $1 00,000 and less than $ 2 00,0 00. Id. at
836. The t rial co ur t set bond at $360,000. Id. There w a s e vidence the defendant ’ s

r elatives cou ld not hel p her make b ai l and that she had been in jail aw aiting trial
for more tha n six months. I d. at 837. Fur the r, the court r eviewe d other cases an d

con cluded the def

e nda nt ’ s bail far ex c eeded the ba il amount s a p prov e d i n other
theft a nd even capita l mu rde r c ases decided by the Court of Criminal Appeals and by this Court. 8 Id. at 837

– 38. The court of appeals reduced the defendant ’ s bond

8 Leachman d id not proffer evidence o f bail set in other ca ses for a comp arison

. A nd while thi s issue i s not d i spositive, a brief sur v ey of other cases in volvi ng aggra vated assault of a child indicate s the a mou nt of Leac hm an ’s bond is not u n r easona ble, g iv en the nature of the char ges against hi m. See , e.g., Ex p art e Campbell , No. 02

- 1 3

- 0 0313

- CR, 2 013 WL 5041031, at *1 (Tex. App.

— Fo rt W o rt h Sept. 12, 2013, no pe t.) ( mem. op., not designated for publication) ( aff irming bail set at $ 750,000 each for thr e e count s of a g g ravated sexual assault12

to $10,0 00 per the Harris Coun ty D is t ric t Courts ’ bail schedul e. 56 S

. W

. 3d at 8 40

. Ex p arte Bog ia does not support Leachman ’ s request for personal bond. Nor does
the Harri s County bail schedule apply to h is case

. 9
U sin g Leachman ’s logic, any refusal to grant personal bond when the
defen dant cannot a ffo rd to pay a bon d would be imp erm issible and oppre ssi ve
. Th at is not the la w. “ The accus ed ’ s abi lity or inabil ity to make bond is relev ant,
but not controlling. ” Ex part e Bogia , 56 S.W.3d at 837 (citing Ex parte Dueitt , 5 29 S.W. 2d 531, 53 2 (Tex. Crim

. Ap p. 1975 ) )

. As noted under art icle 17.15, th e

“ ab ility to make bail is to be regarded , and proof may be taken u pon this point ” as one of many factors to be considered by the t rial c ourt.

of a child; $500 ,000 for one c ount of a ttempted aggr a v ate d se xual assault of a child ; a nd $250,0 00 f

or one cou n t of i n decency with a chi ld ); See Ex parte Bennett , No. 02

– 07

– 0017 5

– CR , 2 007 WL 3 03790 8, at * 4 (Tex. App

. — Fo rt Worth Oct

. 18, 2007, no pet. ) (mem. o p., not desig nated for pu blicati on ) (affirming tria l c o u rt ’s refusal to lo wer $200,0 00 bonds for ea ch of three charges of a g gravated sexual assault of a ch ild); McGill v. State , No s
. 13

- 99

- 713

- CR , 13

- 9 9

- 714

- C R, 2000 WL 34415609 , * 1 (Tex. App.

— C orpus Christ i, Oct. 19, 2 000, no pet. ) (not desi gnated for publication ) (affi rmi n g t ri al court ’ s refusal to de crease bond set at $100 , 0 0 0 each for charges of a ggravate d sexual assault and indecency wi th a ch ild); Cl emons v. State , 220 S.W.3d 176, 177 (Te x. App.

— Eastla nd 2007, no p et.) (affirm in g reducti on of bond for aggrava ted

- sexual

- assau lt

- of

- a
- c hild charg es to $150,000 a nd $100,000). B ut s e e C om pian v. State , 7 S.W.3d 199 , 20 2 (Tex. App.

— Houston [14th Dist.] 1999, no pet.) (red ucing bond for aggrava ted sexual a ss a ult of a child to $50,00 0 ).
9 T h e H arris County District Court s ’ b ail s c h e du le does not appl y to defendants who are charge d w i th first

- degree felo nies. The in ap plicability of the bail schedul e also distingu is hes Ex p arte Bogia.13

Like Leachm a n , t h e defendant i n Ex parte Nimnicht a rgue d that his i nability
to p ay th e bail assessed b y the court we ighed in favor of r educing his bail to a
person al b ond. I n it s analysis, the court noted, among other things, that “[t] he
inabilit y of the accused to pay the amo u n t of bail a ssessed does not render a ny

amou nt of bail ex cessi v e. ” 467 S.W.3d at 68 ( citin g Ex part e Vasquez , 558
S.W

. 2d 477, 480 (Tex

. Crim

. App. 1977) )

. 10 The court explained that indigenc e

“ is a circumstance to be co nsidered, b ut is not controlling. ” Id. We agree . Indeed,

“ [ i] f the ab ility to make bond in a s pecified amoun t controlle d, then the ro le of th e
trial court in setti ng bo nd wou ld be completely elim inated, and the accused would
be in the unique posture of d eter mining what his bond sho uld be.” Id. ( c iting Ex
parte Mill er , 631 S .W.2d 8 25, 827 (Tex. App.

— Fort Wor th 19 82, pet. re f ’ d) )

. 11

10 Se e also Ex pa r t e Campbell , No. 02

- 13

- 0031 3

- CR, 2013 WL 5041031, at *3 (Te x. App.

— Fort Worth Sep t

. 1 2, 2013, no pet. ) ( mem. op., not designa ted fo r publication ) ( “ The inability to meet the amou nt s et by the trial court does no t autom atically rend er it ex cessive. ”) (ci tin g Ex part e Scott , 122 S.W.3 d 866, 870 (Tex. App.

— Fort Worth, no p et. ) )

. 11 Leachm an att emp t s t o dist inguish Ex par te Nimnich t , ass er ting the “t r ia l court ’s lowe ring of the origi nal a mount militates against a fi nding o f intent to p rolo ng incarcer ation. ” T he trial court in this case , however, al so lower ed Leach m an ’s b o nd fro m $100,000 t o $ 75 ,000 per charg e
. Thus, acce pt ing Leachman ’ s argument, the “ tr ial court ’ s lowering of th e original bond ” in th is case also

“ militates aga inst a finding of intent to prol ong inca rceration. ” We not e again tha t L eachman did not as k f

o r a further reducti on in the am ou nt of bond. He sim ply argue d at th e trial court, a s he does here, that any amount of bond is an abuse of d is cr etion and “ an i nstrument of oppression ” under art icle 1 7.15. None of the ca ses he cite s suppo rts his position.14

I n thi s case, the trial court did consider Leac hman ’ s in di gency,

ac knowledging Leachman ’ s predicament and his potential inabil i ty to post bai l

. Thus, t he court evaluate d the “ ability to ma ke bail ” along w ith all other b ail criteria in making its f

inal d etermina tio n. There is no evidence either that t he cou rt ignored Lea chm an ’ s alleged indigency or utilized bail as mean s to o ppr e ss him and

pr olong his incar ceration.
Fur t her, the Court of C r im inal Appeals has said the Legislature , i n placing

“ a man datory duty ” o n trial courts to co nsider the safety of both t h e v ictim and of
the community when fixi ng bail, “ requires trial court s t o cons ider a fact that is not
related t o th e amount the defenda nt can afford to pay
. ” Ex Parte Kretzer , N o. PD

1279

- 11, 2 012 WL 1882245 , at *1 (Tex. Cr im. App. May 16, 2012) (n ot
des ignated for pu bl icat ion) (citation omitt ed) (emphasis added ) ; s ee also H a yden v.
Sta te , 155 S.W

. 3d 640, 648 (Tex. A p p
. — Ea st land 2005, pe t . ref ’ d) ( overr uling appellate issue re gar din g trial c ourt ’ s r ef usal to release de fendant on perso n al bond, notin g defe ndant “ presen t [ed] no argument o r a uthori ty as to why

. . . th e
trial cou rt ’ s denial of his request for personal bon d co n sti t uted using the power to

req uire bail so as to make it an instrumen t of opp re ssion ” i n violatio n of article
17. 1 5( 2) of the Te xas Co de of Crimina l Procedure).15

Because we do not believe the bail the trial court set is oppressive

—
regar dless of Leac h man ’ s ability to pa y it

— the second and fo urth factors do not weigh in favor o f L each man ’ s rel ease on person al bond.
C. T he N atu re of the O ffense
T he th i rd fa ctor contemplates “ the nature of the offense and th e
circumstances under which it wa s committ ed

. ” T he nature of the offe nse and the leng th of possible sentence are key considerat ion s in determin ing the

reason ableness of bail and whethe r to gr a nt a p ersona l bond

. Ex parte R ubac , 611
S.W.2d at 8 49 (highlighting these a s primary factors) ; see also Ex parte Nimnicht , 457 S .W

. 3 d at 67 ( “ Whe n d etermining reasonable bail, a trial c ourt sha ll g ive the

m ost weight to the natur e of the offense and the length of pos sible sentence. ” )
Leachma n was char ged with t hre e counts of aggravated sexual assa ult

aga inst a single nine

- y ear
- o l d bo y
. During the w rit hearing, t he S tate a lleg ed that
Le achma n had sexually assaulte d this nine

- y ear old boy “ regula rly, al most d aily, ” including “ anal sex with the defendant being the one penetrating the compl ainant ’ s

an us and oral sex w ith the defenda n t be ing the on e pene t rating the complainant ’ s

mo u t h with this p enis. ” Th e nine

- y ear
- old boy lived “ with his grand mother in the

same apartment complex ” as Lea chman.
Leachman testified dur ing his writ hearing t h at the abus e again st the nine

year
- old comp l aina nt occurred in L eachman ’s apar tme nt on multipl e occas ions.16

He a lso admitted that he pled guilty to or has been a ccused of s exually molesting
seven diff eren t boys between the ages o f nine and fifteen

. He pled gui lty to thre e charge s of i n de c en cy with a c h i ld invol ving t hre e different boy victims ran gin g in ages from t en t o f

ifteen

. 12 An d he is now facing three counts of aggravated sexual
assault involvi ng a nin e
- year
- old boy

.

“ S exual assault of a child is a serious of fense. ” E x Parte Bennett , No. 2

- 07

- 175

- CR, 200 7 WL 3037908 , at *2 (Tex. App.

— Fort Worth Oct. 18, 200 7, no p et. ) ( mem. op., not desi gn ate d fo r publication) ( citing E x parte Hulin , 31 S.W .3d 754,
759

- 60 (Tex. App.

— Houston [1s t Dist.] 2000, no pet.) ). A ggra v a ted sexua l assault
is a f irst

- degr ee felony tha t h as a punishment range of fi ve to ninety

- nine y ea r s or life. T EX

. P EN AL C ODE

. § § 12.32, 22. 021 ( a)(1)(B)

. T his factor weighs against a
f inding that L eachman should be released on personal bond. Leachman argues that the s e incident s are remo t e in time. The trial cou rt , h o wev er, also hea r d evidence that d uring his time in jail, as re cent as 2015 , Leac hman rec eiv ed m ail that contained “ sex ually explicit ” images. 13 Leachman

12 Leachman origi nally was charged w ith fo ur count s of indecency w ith a chil d. Th e fourth count , involv ing a different fifteen

- year
- old boy , wa s dismissed as part of Leachman ’ s plea agreemen t. L aw enfor cement se parately i nvestigated a llegatio ns that Leach ma n had sexually assaulte d two addi tional boys

. Those allegation s did not result in f

ormal charge s. 13 Tammy Shelby, d irector of the TDCJ ’ s Mail Sys tems Coordinators Panel, testifi ed tha t “ sexually explicit ” m aterial i s defined b y the TCDJ ’ s board p oli cy as “ an y image that is intended t o cause sexual excitement or a rousal by showing s ex ual17

testified that he “ secured or received ” child erotica, which Leachman a greed refers

to “ [s] hort stor ies in volv ing sexual abuse of c hildr e n
. ” He also receive d photos of young children wh o we re shirtless and photos of children in provocat ive positions

. 14 Th e trial cou rt reasonably could have conside r ed this addition al
informat ion as a factor in considering whet her to deny personal bon d to L eachman

. D. S a fety of the V i ctim and of the C om m unity
I n making its bond determination , the trial court had to c onsider the “ future

s afety of a victim of t he alleged of fen se and the communit y
. ” In addition to the prior convi ctions and allegations o f sexu al assault in v olving seve n youn g boys,
L eachman also test ified at the writ hearing that he was previously investi gated in
Mi ssou ri for “ soliciting children to take photos of their feet ” and i n Pennsy lvania
f or “ child pornograp hy

. ” He tes tified t hat h e was acqui tted of thos e charges. During the writ hearing, Leachman testified he was assigned to parole for
his e ar lier offenses in the T D C J ’s “ S u per
- Intensiv e S u pervi sion Pr ogra m ” and the

“ S ex O f fender Trea tme nt Pro gr a m ” and assigned to a ha lfway hou se. 15 He argue d

activity from any vantage point to inclu de frontal n udity, to include the nipple, the areola, the ge nitals or the anus of e ither gen der. ”
14 Leachman said he did no t keep the photo s of childr en he co nsidered to be in provocative positions.
15 Lea ch man remains in cust ody, however, because o f th e pe nding aggravated sexual

- ass au l t

- of

- a
- child charges

. S h oul d Le achman be released on pe rsonal bond , he wo uld beg in liv ing at and particip at ing in the progra ms at the halfway house

.18

that because of the stric t rules he must follow to participat e in such progr am s , including living at a halfway house with a GPS device , a personal bo nd was adequate.
Catherine Gre en, an a s sistant regi onal d i rector in the T D C J ’s P ar ole
Division , testified at the writ hearing about t he m o n i toring procedures used on parolees who live in halfway hou ses after t hei r relea se f rom inc arcer ation

. 16 S he
testified that the S u p er
- Intensiv e S u p erv is ion Program , which is “ on the highest
level of supervision, ” requires pa rolees to wear GPS ankle mo n itors that alert parole officers when parolees violate the daily schedule s th e y recei ve from th e
offi cers. She cla ri f ied, ho wever, that while s e x off enders with GPS de vices are given

m andatory travel routes when th ey check

- out of the hal fway house

— or u lt imately , their h omes upon release from the half w a y houses

— there is n o way to en sure th e y do not encounter children. She testified that the only way to ensure there is no contact between a sex offender and a c hild is to incarcer a te the offender in a jail or prison facil i ty. She als o testif ied t h at if t he re is a viol a tion invo lving the GP S
device , s uch as a n offender traveling to a prohib i ted loc ation or cutting off the GPS

16 At the conclus ion of th e writ hearing, Lea chman asked that the hearing b e continued so he could subp oe n a “ the appropriate par ol e and halfway house officials ” t o testify a bout th e halfway hou se to which he woul d be released on pa ro le and the terms by which he would be monitored t here

. The court gr anted the continuance and reconvened the writ hea ring thr ee week s later

.19

device , there w ould be a l ag time between di scovery of the violat ion and th e ti me a judge is alerted of the vio lation

. S he further testifie d that the G PS dat a they kee p

at the S u per
- Intensiv e S u pervision Program is not equally visible or shared with the county. T h us, a trial court would probably h ave t o s ubpoena the records to
have access to the moni t or ing information

. Finally, she testified that the halfw a y hou se is “ basically a t ransitional center ” where p arolees li v e , on average, from six
months to two years and t h at the goal of t h e pro gram is to “ move offenders out of
the halfw ay house as quickly as possible

. ” 17
Given the inabil ity to preve nt L ea chman ’ s contact with childr en while out on parole or awaiting trial , his p ast c rimi nal reco rd of in decency with a chil d and aggravated ass ault of a child , and the inabil ity of the trial court to readi ly monit or
his whereabou ts, this factor weighs aga inst t he imposition of a personal bond. I n Ex parte Kretzer , for exampl e , the prose cutio n did not d ispu t e the evidence

pr es ented by th e defe nse about the defendant ’s family , h is t ies to the community,

a nd his inability t o make bail. “ However, the prosec uto r a sked the c ourt t o
consider the nature of the charged offense and th e future safety o f th e victims of
the off ense and of the comm un ity. Appellant ’ s al lege d involvement in thr ee
of fenses of indecency wi th a child show [ed] that, i f free on bond pending trial, he

17 Gr een te stified that the Parole Board r e vi e ws eac h p a rolee in super

- int ensive super visi on annu al ly to dete rmine if t he parolee needs to continu e w ith th at progr am
.20

might endang er the futu re safety of the child victims, as well a s the future saf e ty of
the commu nity

. ” Ex parte Kr etzer , No. 09

– 11

– 00181

– C R , 201 1 WL 2732598 , *2 (Tex. A pp.

— Beaumont July 13 , 2011 ) ( mem. op., not designa ted for publication) , pet. dism ’ d imp r o vide nt ly g ranted , No. PD

- 1279

- 1 1, 2012 WL 1882245 (Te x. Crim. App. May 1 6, 201 2)

. T he trial co urt here reas onably could have concluded that the nature of
Leachman ’ s alleg ed crimes an d prior convictions involving children warranted the imposed b ail t o ensure t he saf ety of the commun i ty

. E. O ther F actors
Tria l court s ma y also c onsi d e r factors suc h a s the accused's wor k reco rd , his
fa mily and commu n ity ties , his length of reside nce, his prior criminal record, his conformity with previous bond conditio n s, the exi s tence of o t he r outstan ding bonds, if any, a nd aggravatin g ci rcum stan ces a l legedly invo lve d i n the charged
off ense. Smith , 82 9 S.W.2d at 887

– 88

. Leachman concedes that du e to his

“ lengthy incarcer ation, ” he has not had the opportunity “ to maint a in a resid e nce, to
bu i ld assets, to establish a work h istory, or to cre ate ties to a community. ”
L eachman a rgu es that these common

- law factors “can not have independent

we igh t , ” and to give them weight along with the article 17.15 factors “ viola te s
fu nda men tal fairne ss. ” ( E mp hasis in or iginal )

. Lea chman does not cite any authority for t his propositi o n
.21

W ith r e spect to the final of th ese co nsiderati ons , he assert s that t he only aggravating factor in vol ved in his pen ding charge s is the complain ant ’ s age. We agree that t he c omplainant ’ s age is an ag gravatin g facto r in the charge s against Leachman, and w e b e liev e the other of t hese factor s also weigh a gain st the imposition of personal bond , for the reasons a lready noted

. 18
Due P roc ess C o ncerns
L eachman asserts the trial court ’ s r uling viol ated h is d ue proces s by foregoing hi s presu m

ption of innoce nce , be c au s e of the delay in his trial and the questi on of whether the State can retry the case
. 19 Leachman did not brief thes e due process issues in his written appli cation for hab eas re li e f or raise them during
the habeas h ear ing

. 20 As su ch, Lea c hm a n waived the right to raise th e se argument s
in th is Court

. S ee Ex parte Cook , No. 02

- 18

- 00537

- CR, 2019 WL 2323643, at *3 (Tex . App

. — Fort Worth May 31, 2019, no pet.) ( mem. op., not designated f or

18 Se e C ombs v. State , 652 S.W

. 2d 804, 806 (Tex. Ap p
. — Houston [ 1 st Dist .] 1 983, no pet.) (hold ing tria l cour t d id not abuse d i s cret ion in deny ing d efendant ’s m o t ion for release on pe rsonal bond e ven though evidence showed (1) def end ant was Houston resident at tim e of his a rrest ; (2 ) d e fendant had lived in Ho u ston mo st of his life; and ( 3) there was no evide n c e that showed defe ndant would leav e Houst on area if re leased on person al bond. )
19 In his trial court brief in sup po rt of h is application for habeas corpus relie f , Leachman argue d that the St ate ’ s ability, if any, to retry t h e case a nd the over turn ing of t he origin al conviction are factors to be considered in setting bail, b ut he did no t make a spec ific du e process ar gu men t.
20 L e achman merely said in his trial court bri e f that “ incar cerat ion of those who cannot [prov id e cash or s ureties], wit hout meani ngful c onsi deration o f other possible alternatives , infr inges on both du e process and equ al prote ction requirements. ” ( q u oting Pu gh v. Rain wat er , 572 F.2d 1053, 105 7 ( 5 th Cir. 19 72) ).22

publi ca t i on) ( “By failing to include this [ due process] gr ound in hi s h abeas corpus applic a tion or to argue it specifi ca lly to the court, Cook failed to preserve this argument for our review

. ”) ( c iting T EX

. R. A PP

. P . 343.1(a) ) ; se e also Ex parte
Tuc ke r , 9 77 S .W.2 d 713 , 715 (Tex. App.

— Fort Wo r th 1998) (“An o rd er den yi n g
habea s relief on the mer its is appealable only with re gard to those matters properly raised by the pre

- trial habeas corpus p etiti o n and addressed by the trial court. ”),
pet. dism ’ d , 3 S.W .3d 5 76 (Te x. Cr im. App. 1999)

. L eac hman a sks th is C o urt to infer that a co mment by the tria l court ju dge implies the cour t already presume d his guilt

. After Leachman argued to t he tri al

court that the re is “ no specific evidence ” to show that he is “ more d angero u s t han
the r un
- of

- the

- mill person who ’ s ch ar g ed w ith aggravated s exual assault, ” the trial

cou rt said: But you und erstand this is a retrial of a case that was overturn ed b y [f]e deral court becau se of [a] Faretta issue? 21
Leac hma n argues this stat e me n t “ i ndica t es that the trial court gave w ei ght, in

se t ti ng bail, to the original conviction

. ” We decline to ascribe such meaning to this comment. In any event , given ou r anal yses of the artic le 17.15 rules and the

21 In Faretta v. Cali

fo rnia , 422 U.S. 806, 818

– 19 , 835

– 36, t he S u preme Cou rt held a comp etent criminal defenda nt has a S i xth A mendment right t o waive his rig ht t o counse l and re present him s el f at t rial. Se e Lea chm an v. St ephens , 201 5 W L 5730378, at * 4

- 5 ( hol ding trial court erred i n refu sing to allow L eachman to r epres ent hi msel f at tr ial of sexual

- assault

- of

- a
- ch ild charge )

.23

supplemental f

actor s, we find t h a t the tr ial court p roperly exe rcised i ts disc ret ion in
refusi n g to release Leac hman on personal bo nd

. The Excluded Letter
Final ly , Leachman complains th at the trial court ’s re fusal to ad mit a letter
into evidence wa s an abus e of dis cret ion

. Sp eci fica lly, Leac hm an attempt e d to
off er i nto evid ence a let ter he wrote t o the district at torney to reflect “ a n open offer [Leachman made] to the State since 2016 to [be] evaluated by any of th eir e xperts of their choosing. ” 22 Lea chma n said t he lett er w as re levant becau se i t sho wed “ t he
Sta te has had the opportunity to determ in e whether there i s some kind of dang erousness beyond just generali ti es
. ” The State ob jected to t he admission of the letter as hearsay and as ir r elevant to the issu e of bail. S us tai n ing the o bjecti o n
based on relevance and hearsay , the court said the le tte r is

n o differe nt from any other d efendants making a counteroffe r on so methin g and I don’t n ecessarily believe that that really is r elevant to the issu e her e or really relevan t to a nything. I mea n t his is ju st a counteroffer and negotiations that yo u ’ re making and anybo dy can make any off

er about anything. And the fa ct that you m igh t make an offer about something, you kno w

– I rout inel y get pe opl e ma king offe rs, countero ffers, yo u kn ow.
. . . Just b ec ause you ’ re making an offer of something doesn ’ t m e an th at it ’ s really r elevant, it ’ s just your counteroffer to try to ge t the m to off er yo u something different.

22 L eachman stated in his brief that the evaluation refe rred to in t he lette r would ha ve allowed the co urt to “ m ak e informed decisions ab out whether [he] r epre se nt[s] an ongoing danger to t he community. ”24

T h e cour t to ok judi c i a l not ice “ that M r. L eachma n has off ered himself to be

exa min e d regard ing future dangerousness. ” The only authorit ies Le ac hma n cites in suppo rt of his argument th at the
lette r shou ld ha ve be en admitted are cases in which co nviction s we re appea led

. T h e a nalys es in those cases, ho weve r, were based o n t he rules of evidence. Those

ana lys es are inapplica ble here because the ru le s o f evidence do no t govern bail
heari ngs. “ Except for p rivil eges, the rules of evidence do not app ly to pr ocee dings

re gar ding bai l, ex cept hea rings to deny , re voke, or increa se bail. ” Ex parte Garci a , No. 05

- 0 2

- 01542

- CR, 2002 WL 31546123, at *2 (Tex. Ap p.

— Dallas Nov. 18, 2002, no pet.) (not designated fo r pub licat ion) ( citing T EX

. R. E VID . 101(d) ( 1)(E ) ) ;

see a lso Ex parte Pr elow , 92 9 S.W .2d 54, 56 (Tex. App.

— Sa n Antoni o 1999, n o pet.) ( not ing rules of evidence do not apply at bon d reduction hearin g s )

. L ea chman
concedes a s much , citing Texa s Rule of Evide nce 1 01(e) (3)(C ), which says the
rules of eviden ce do no t ap ply to “ b ai l pr ocee din g s other than hearings to d eny,

rev oke, or i n crease b ail

. ” T EX

. R

. E VID

. 101 (e)(3)(C )

. Regardle ss, as the State p oints o ut , the trial cour t took judicial not ice of the
lett er. Accor dingl y , the trial court did not abuse its dis creti on in su staining the
State ’ s object ion to the let ter.25 Motion for S anctions
After the Sta te filed it s response to Leachman ’ s appellate brief, Leac hman
filed a mot ion f

or sanctions a gainst the State and the Distr ict Attorn ey. Leachman argues that the State violated the terms of his 1999 plea agreement by arguing that
he should not be released on personal bond, “even through the bargained

- for

sentenc e now calls for [his] r elease on pa role.” Leachman provides no l egal basi s
for his motion , nor does he cite any case law that precludes the trial court, or this Court, from considering his prior crimi nal record in connect ion with hi s request for personal bond. We deny h is m ot ion for sanct ions.
Conclusion
W e conclude the trial court did not abuse its discret ion in declining to
release Leachman on personal bond. An d, as Lea chman note s, he does not see k the impos ition of a l ower amou nt o f bond

. T here fore, we affirm the t rial c ourt ’s
de nial of Leachman ’s ap pl icatio n for writ of habeas corpu s
. We deny Leachm an ’ s

mot ion for sanctions

. PER CURIAM
Pane l consists of Justices Countiss, R ivas

- Molloy, and G uerra. Do not publish

. T EX

. R

. A PP

. P . 47.2(b).