Affirmed and Opinion Filed March 4, 2024 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-23-01013-CR 

CALEB DONYE BURNS, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 366th Judicial District Court 

Collin County, Texas 

Trial Court Cause No. 366-83846-2023 

MEMORANDUM OPINION 

Before Justices Partida-Kipness, Reichek, and Breedlove 

Opinion by Justice Partida-Kipness 

Appellant Caleb Donye Burns was arrested and charged by indictment for the 

first-degree felony offense of burglary of a habitation with intent to commit murder. 

TEX. PENAL CODE § 30.02(d). After bond was set at $500,000, appellant filed an 

application for a writ of habeas corpus requesting to be released on a personal 

recognizance bond pursuant to Texas Code of Criminal Procedure article 17.032. 

TEX. CODE CRIM. PROC. art. 17.032. On the day of the article 17.032 hearing, 

appellant amended his writ application to include his request for a bond reduction. 

After conducting a hearing, the trial court denied relief. On appeal, appellant asserts 
 –2– 

the trial court abused its discretion by denying habeas relief. We affirm the trial 

court’s order denying relief. 

STANDARD OF REVIEW

We review a trial court’s ruling on a pretrial application for writ of habeas 

corpus for an abuse of discretion. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. 

Crim. App. 2006). An abuse of discretion occurs when a trial court acts without 

reference to any guiding principles or acts in arbitrary or unreasonable manner. 

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). In conducting 

our review, we view the evidence in the light most favorable to the trial court’s ruling 

and defer to the trial court’s fact findings supported by the record. Ex parte Wheeler, 

203 S.W.3d at 324. 

HABEAS CORPUS RELIEF 

Pretrial habeas relief is an extraordinary remedy. Ex parte Perry, 483 S.W.3d 

884, 895 (Tex. Crim. App. 2016). To be entitled to relief, an applicant or petitioner 

must establish that he was either “confined” or “restrained” unlawfully. Ex parte 

Limberger, No. 01-21-00532-CR, 2023 WL 2655749, at *1 (Tex. App.—Houston 

[1st Dist.] Mar. 28, 2023, no pet.) (mem. op., not designated for publication) (first 

citing TEX. CODE CRIM. PROC. art. 11.01, and then citing State v. Collazo, 264 

S.W.3d 121, 125–26 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d)). In general, 

relief is available only for “jurisdictional defects and violations of constitutional and 

fundamental rights.” Ex parte Johnson, 541 S.W.3d 827, 829 (Tex. Crim. App. 
 –3– 

2017) (quoting Ex parte Moss, 446 S.W.3d 786, 788 (Tex. Crim. App. 2014)). The 

purpose of an application for pretrial habeas relief is to remove an illegal restraint 

on the applicant’s liberty. See TEX. CODE CRIM. PROC. art. 11.01. Thus, pretrial 

habeas relief is appropriate only when resolution of the question presented, if 

resolved in the petitioner’s favor, results in the petitioner’s immediate release. See 

Ex parte Hammons, 631 S.W.3d 715, 716 (Tex. Crim. App. 2021) (holding a pretrial 

application for writ of habeas corpus is appropriate only when granting relief would 

result in the applicant’s release). 

BACKGROUND 

The trial court held a hearing on appellant’s writ. Although appellant amended 

his application to include a request for a reduction of his bond, the testimony at the 

hearing addressed only his request for a personal recognizance bond. Appellant’s 

mother, appellant’s sole witness, testified she hired a psychologist to provide an 

updated mental health assessment for appellant. The psychologist reported appellant 

suffers from major depressive disorder with mood-congruent psychotic features. The 

psychologist recommended appellant receive treatment from a psychiatrist and 

participate in an intensive outpatient program. Appellant’s mother explained 

appellant had the family’s support, and the family had the financial resources for 

appellant to be enrolled in a treatment program and remain supervised at home. The 

State objected to appellant’s release on a personal recognizance bond based on the 

seriousness of the offense. The trial court denied the requested relief stating, “I don’t 
 –4– 

think this is the best type of case to have on one of our bonds, because it requires 

more of an intensive supervision.” 

ANALYSIS 

In this proceeding, appellant contends the trial court abused its discretion by 

denying his request for a personal bond and denying his request for a bond reduction. 

We will address each issue in turn. 

I. Denial of Article 17.032 Personal Bond 

Article 17.032(b) of the Texas Code of Criminal Procedure provides for a 

personal bond when five prerequisites are met, stating: 

[A] magistrate shall release a defendant on personal bond unless good cause 

is shown otherwise if: 

(1) the defendant is not charged with and has not been 

previously convicted of a violent offense; 

(2) the defendant is examined by the service provider that 

contracts with the jail to provide mental health or 

intellectual and developmental disability services, the 

local mental health authority, the local intellectual and 

developmental disability authority, or another qualified 

mental health or intellectual and developmental disability 

expert under Article 16.22; 

(3) the applicable expert, in a written report submitted to 

the magistrate under Article 16.22: 

(A) concludes that the defendant has a mental 

illness or is a person with an intellectual 

disability and is nonetheless competent to 

stand trial; and 

(B) recommends mental health treatment or 

intellectual and developmental disability 

services for the defendant, as applicable; 
 –5– 

(4) the magistrate determines, in consultation with the 

local mental health authority or local intellectual and 

developmental disability authority, that appropriate 

community-based mental health or intellectual and 

developmental disability services for the defendant are 

available in accordance with Section 534.053 or 534.103, 

Health and Safety Code, or through another mental health 

or intellectual and developmental disability services 

provider; and 

(5) the magistrate finds, after considering all the 

circumstances, a pretrial risk assessment, if applicable, 

and any other credible information provided by the 

attorney representing the state or the defendant, that 

release on personal bond would reasonably ensure the 

defendant’s appearance in court as required and the safety 

of the community and the victim of the alleged offense. 

TEX. CODE CRIM. PROC. art. 17.032(b). 

As a prerequisite to the trial court releasing a defendant on a personal bond 

under article 17.032, the trial court must find “release on personal bond would 

reasonably ensure the defendant’s appearance in court as required and the safety of 

the community and the victim of the alleged offense.” See id. art. 17.032(b)(5). Here, 

the trial court failed to make such a finding. Moreover, the record does not reflect 

appellant asked the trial court to make that finding. Because the trial court did not 

find a personal bond would ensure appellant’s appearance in court or the safety of 

the community and the victim of the alleged offense, the prerequisites for a personal 

bond were not met. See id. Accordingly, the trial court did not abuse its discretion 

by denying relief on this ground. We overrule appellant’s first issue. 
 –6– 

II. Denial of Bond Reduction 

The trial court set appellant’s bail at $500,000 for the first-degree felony 

offense of burglary of a habitation with intent to commit murder. See TEX. PENAL 

CODE § 30.02(d). On appeal, appellant argues the trial court erred in setting his bail 

at $500,000 and denying his request for habeas relief to reduce the bail amount 

because (1) a “litany of evidence was presented by Appellant to show why he did 

not pose a threat to the future safety of the community,” and (2) the $500,000 bond 

amount is oppressive. 

At the hearing on appellant’s pretrial application for writ of habeas corpus 

seeking a reduction in bond, however, the only testimony heard by the trial court 

was from appellant’s mother regarding appellant’s desire to obtain a personal 

recognizance bond pursuant to article 17.032. During the hearing, appellant never 

argued his bond was excessive or oppressive. Nor did he argue his bail should be 

reduced or his bail was unreasonable. Moreover, appellant admits he never presented 

any testimony that he did not have the ability to pay his bond. Even on appeal, 

appellant does not pray for a reduction in his bond; he merely prays for a remand “to 

the trial court with order to release him on a personal recognizance bond.”. 

Because appellant never presented his excessive bond argument to the trial 

court, he failed to preserve this issue for appellate review. See Neal v. State, 150 

S.W.3d 169, 180 (Tex. Crim. App. 2004). However, even if appellant had preserved 
 –7– 

this issue for review, we would still overrule appellant’s second issue because the 

bond amount set is not excessive. 

Before conviction, every citizen accused of a criminal offense has a “strong 

interest in liberty.” United States v. Salerno, 481 U.S. 739, 750 (1987). Thus, the 

Eighth Amendment to the United States Constitution provides that “[e]xcessive bail 

shall not be required, nor excessive fines imposed, nor cruel and unusual 

punishments inflicted.” U.S. CONST. amend. VIII; see also Schilb v. Kuebel, 404 

U.S. 357, 365 (1971) (holding Eighth Amendment’s prohibition of excessive bail 

applies to states). The Texas Constitution also guarantees “[a]ll prisoners shall be 

bailable by sufficient sureties, unless for capital offenses, when the proof is evident.” 

TEX. CONST. art. I, § 11; see also id. art. I, § 13 (“Excessive bail shall not be required 

. . . ”); TEX.CODE CRIM. PROC. art. 1.07 (“Any person shall be eligible for bail unless 

denial of bail is expressly permitted by the Texas Constitution or by other law.”). 

A defendant’s right to pretrial bail, however, may be subordinated to the 

greater needs of society. Salerno, 481 U.S. at 750–51; see also Ex parte Beard, 92 

S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref’d) (noting “a balance must be 

struck between the defendant’s presumption of innocence and the State’s interest”). 

In balancing the liberty interest of a defendant and the safety interest of society, the 

Texas Legislature has adopted rules and guidelines for determining when a 

defendant should obtain pretrial release through the posting of adequate bail. See 

TEX. CODE CRIM. PROC. art. 17.01 (“‘Bail’ is the security given by the accused that 
 –8– 

he will appear and answer before the proper court the accusation brought against 

him . . .”); Ex parte Jefferson, No. 07-20-00123-CR, 2020 WL 4249743, at *2 (Tex. 

App.—Amarillo July 23, 2020, no pet.) (mem. op., not designated for publication). 

The primary purpose of pretrial bail is to secure a defendant’s appearance at 

trial on the offenses for which he is charged. See TEX. CODE CRIM. PROC. art. 17.01; 

Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. [Panel Op.] 1980); Ex 

parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977). In exercising its 

discretion in setting the dollar amount of bail and any conditions of bail, a trial court 

must consider the following statutory factors: 

1. Bail shall be sufficiently high to give reasonable assurance that a 

criminal defendant will appear at trial and comply with other 

court orders and conditions of the bond; 

2. The power to require bail is not to be used as an instrument of 

oppression; 

3. The nature of the offenses and the circumstances of their 

commission must be considered; 

4. The ability to make bail is to be regarded, and proof may be taken 

on this point; and 

5. The future safety of a victim of the alleged offenses and the 

community must be considered. 

See TEX. CODE CRIM. PROC. art. 17.15. 

In determining an appropriate amount of bail, the trial court may also consider 

a defendant’s work record, his family and community ties, his residency, his prior 

criminal record, his conformity with previous bond conditions, and the aggravating 

factors alleged to have been involved in the charged offenses. Ex parte Rubac, 611 
 –9– 

S.W.2d 848, 849–50 (Tex. Crim. App. 1981). Appropriate bail is a fact-driven 

determination, and each case must be judged on its own unique facts. Ex parte 

Nimnicht, 467 S.W.3d 64, 67 (Tex. App.—San Antonio 2015, no pet.). With these 

principles in mind, we now apply these factors to determine whether the trial court 

abused its discretion by denying appellant’s application to reduce his cumulative bail 

of $500,000. The burden of proof is on the defendant who claims his bail is 

excessive. Rubac, 611 S.W.2d at 849. 

A. Sufficiency of bail to secure appearance at trial but not 

oppress 

The primary purpose of bail is to secure the presence of the accused at trial on 

the offenses charged. Ex parte Rodriguez, 595 S.W.2d at 550. Bail must be set in an 

amount high enough to give reasonable assurance that the accused will appear as 

required. Ex parte Pace, No. 03-20-00430-CR, 2021 WL 728168, at *5 (Tex. 

App.—Austin Feb. 25, 2021, no pet.) (mem. op. not designated for publication) 

However, it should not be used “as an instrument of oppression” nor “for the express 

purpose of forcing [an accused] to remain incarcerated pending appeal.” See Ex parte 

Harris, 733 S.W.2d 712, 714 (Tex. App.—Austin 1987, no pet.). In other words, 

bail is oppressive when the record indicates the trial court set the bail amount for the 

express purpose of forcing a defendant to remain incarcerated pending trial or 

appeal. Id. 

We note the bail amount set by the trial court in this case is akin to other cases 

involving a defendant charged with a first-degree felony offense. See Ex parte 
 –10– 

Mitchell, Nos. 07-20-00298-CR, 07-20-00299-CR, 2021 WL 865343, at *1–6 (Tex. 

App.—Amarillo Mar. 8, 2021, no pet.) (mem. op., not designated for publication) 

(trial court did not err in refusing to reduce amounts of defendant’s bail which were 

set at $100,000 for state-jail felony offense and $500,000 for first-degree felony 

offense); Ex parte Dupuy, 498 S.W.3d 220, 232 (Tex. App.—Houston [14th Dist.] 

2016, no pet) (holding review of bail set in other cases may be instructive); Ex parte 

Piceno, No. 02-13-00421-CR, 2014 WL 2611191, at *4 (Tex. App.—Fort Worth 

June 12, 2014, no pet.) (“When reviewing the appropriate bail for a particular 

offense, appellate courts often compare bail amounts in other cases involving 

offenses of the same degree.”); see, e.g., Ex parte Stocker, Nos. 14-20-00467-CR to 

14-20-00469-CR, 2020 WL 7711348, at *3 (Tex. App.—Houston [14th Dist.] Dec. 

29, 2020, pet. ref’d) (mem. op., not designated for publication) (holding recent 

opinions from our sister courts support a finding that $500,000 is reasonable bail in 

a first-degree charged offense); Ex parte Tata, 358 S.W.3d 392, 399 n.6 (Tex. 

App.—Houston [1st Dist.] 2011, pet. dism’d) (“[T]his Court has previously 

approved bail amounts ranging from $100,000 to $600,000 for first degree felony 

offenses . . . ”). 

Our review of the record does not reveal any comment or suggestion by the 

trial court indicating it refused to reduce appellant’s bail for the express purpose of 

forcing him to remain in jail pending trial. See Montalvo v. State, 315 S.W.3d 588, 

596 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (appellate court’s independent 
 –11– 

review of habeas corpus record “did not suggest that the trial court deliberately set 

bail at an excessively high level solely to prevent Montalvo from posting bail”); c.f., 

e.g., Harris, 733 S.W.2d at 714 (trial judge stated on the record, “I’d rather see him 

in jail than to see someone’s life taken.”). This factor weighs in favor of finding the 

amount of bail was sufficient to secure appellant’s appearance at trial and weighs 

against a finding the amount of bail was set for the express purpose of preventing 

appellant from posting bail. 

B. The nature of the offense and the punishment that may be 

imposed 

Another primary factor to be considered in assessing the reasonableness of 

bail are the nature of the offense and the punishment that may be imposed. Rubac, 

611 S.W.2d at 849; see also Ex parte Sells, No. 02-20-00143-CR, 2020 WL 

7639574, at *3 (Tex. App.—Fort Worth Dec. 23, 2020, no pet.) (mem. op., not 

designated for publication) (noting “bail is not set in a vacuum” and courts “must 

consider the nature and surrounding circumstances of the charges against” 

defendant); Ex parte Nimnicht, 467 S.W.3d 64, 67 (Tex. App.—San Antonio 2015, 

no pet.) (“When determining reasonable bail, a trial court shall give the most weight 

to the nature of the offense and the length of the possible sentence.”). The firstdegree felony offense of burglary of a habitation with intent to commit murder with 

which appellant is charged is an offense serious and violent in nature. See 

Blankenship v. State, 780 S.W.2d 198, 207 (Tex. Crim. App. 1989) (op. on reh’g) 

(holding burglary of a habitation is a serious offense because it increases the chances 
 –12– 

of violent confrontations); Lopez v. State, 643 S.W.2d 436, 438 (Tex. App.—Corpus 

Christi–Edinburg 1982, pet. ref’d) (holding attempted murder is a serious offense). 

Moreover, a first-degree felony offense has a range of punishment of confinement 

for life or for any term not less than five years, but no more than ninety-nine years 

and a fine not to exceed $10,000. See TEX. PENAL CODE ann. § 12.32 (“First Degree 

Felony Punishment”); see also O’Brien v. State, No. 02-12-00176-CR, 2012 WL 

2922545, at *5 (Tex. App.—Houston [1st Dist.] July 5, 2012, no pet.) (mem. op., 

not designated for publication) (holding possibility of substantial sentence supported 

setting of high bail amount). 

The serious and violent nature of the first-degree felony offense of burglary 

of a habitation with intent to commit murder with which appellant is charged and the 

potential sentence appellant faces related to the charged-felony offense weigh 

against a determination that the bail amount set by the trial court was excessive. See 

Ex parte Williams, Nos. 12-18-00174-CR, 12-18-00175-CR, 2018 WL 5961309, at 

*2 (Tex. App.—Tyler Nov. 14, 2018, no pet.) (mem. op., not designated for 

publication) (“The more severe punishment ranges to which [defendant] may be 

subjected weighs in favor of the trial court’s decision not to reduce the amount of 

his bonds.”). 

C. Future safety of the community 

The trial court must also consider the future safety of the community in setting 

appellant’s bail amount. See TEX. CODE CRIM. PROC. art. 17.15(5). Appellant argues 
 –13– 

he presented a “litany of evidence” to show why he did not pose a threat to the future 

safety of the community. Appellant points to his mother’s testimony that she planned 

to enroll him in an intensive outpatient program and her testimony he would be 

supervised by his relatives “day and night.” However, we note a grand jury found 

sufficient evidence to charge appellant with the offense of burglary of a habitation 

with intent to commit murder. Considering the seriousness and violence of the 

charged offense, the trial court could have concluded appellant posed a threat to the 

community and especially the surviving victim of the attempted murder. See Ex 

parte Muñoz, Nos. 05–99–00662–CR & 05–99–00666–CR, 1999 WL 391615 at *1 

(Tex. App.—Dallas June 16, 1999, no pet.); Ex parte Chavfull, 945 S.W.2d 183, 

186-87 (Tex. App.—San Antonio 1997, no pet.). This factor weighs against a 

determination the amount of bail was excessive. 

D. Ability to make bail 

A defendant should ordinarily offer evidence of his available resources and 

his unsuccessful attempts to post bail in the current amount. See Ex parte Dueitt, 529 

S.W.2d 531, 532 (Tex. Crim. App. 1975). “To show that he is unable to make bail, 

a defendant generally must show that his funds and his family’s funds have been 

exhausted.” Ex parte Castellanos, 420 S.W.3d 878, 883 (Tex. App.—Houston [14th 

Dist.] 2014, no pet.). “Unless he has shown that his funds and those of his family 

have been exhausted, a defendant must usually show that he made an unsuccessful 
 –14– 

effort to furnish bail before bail can be determined to be excessive.” Milner v. State, 

263 S.W.3d 146, 149 (Tex. App.—Houston [1st Dist.] 2006, no pet.). 

Here, appellant concedes he failed to present any evidence he was unable to 

pay his bond. And we note appellant’s mother did not provide any evidence at the 

hearing about appellant’s specific assets or financial resources, and she did not 

explain what efforts, if any, were made by appellant to furnish bail in the amount set 

by the trial court. See Ex parte Childers, No. 01-21-00493-CR, 2022 WL 2976545, 

at *7 (Tex. App.—Houston [1st Dist.] July 28, 2022, no pet.) (mem. op., not 

designated for publication) (“To demonstrate an inability to make bail, a defendant 

generally must establish that his and his family’s funds have been exhausted. Absent 

such a showing, a defendant usually must establish that he unsuccessfully attempted 

to make bail before [the appellate court] can determine that bail is excessive.” 

(internal citations omitted)); Ex parte Williams, No. 03-20-00457-CR, 2021 WL 

1583882, at *5–6 (Tex. App.—Austin Apr. 23, 2021, no pet.) (mem. op.) (defendant 

failed to meet his burden of showing amount of bail was excessive where defendant 

“presented no evidence regarding any unsuccessful attempts to pay bail or 

establishing that his funds and the funds of his family members ha[d] been 

exhausted”). Appellant’s mother did, however, testify that both she and appellant’s 

father work, and she and her family have the resources to enroll appellant in a 

treatment program. Additionally, appellant’s mother testified she could pay for 

appellant’s transportation to all court appearances and treatment program 
 –15– 

appointments. This testimony tends to support an inference that appellant’s family 

could assist him in paying his bail. 

Given the absence of specific and detailed evidence concerning appellant’s 

financial circumstances, the trial court could have concluded that appellant failed to 

demonstrate he was unable to pay his bond and thus, the bail amount set was 

reasonable. See Ex parte Castellanos, 420 S.W.3d at 883. 

E. Other factors 

The record reflects appellant has insurance and no criminal history. However, 

the record is silent on the other factors a trial court may consider when setting a 

defendant’s bail. 

Appellant had the burden to show the bail amount set by the trial court was 

excessive. See Ex parte Rubac, 611 S.W.2d at 849. Given the balance of all the 

relevant factors discussed above, we cannot conclude the trial court erred by setting 

appellant’s bail at $500,000 for the felony offense of burglary of a habitation with 

intent to commit murder. We hold the trial court did not abuse its discretion in 

denying appellant’s pretrial application for writ of habeas corpus. We overrule 

appellant’s second issue. 
 –16– 

CONCLUSION 

Having overruled both of appellant’s issues, we affirm the trial court’s order 

denying appellant’s requested relief. 

Do Not Publish 

TEX. R. APP. P. 47.2(b). 

231013F.U05 

 

/Robbie Partida-Kipness/

ROBBIE PARTIDA-KIPNESS 

JUSTICE 
 –17– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

EX PARTE CALEB DONYE 

BURNS 

No. 05-23-01013-CR 

 On Appeal from the 366th Judicial 

District Court, Collin County, Texas 

Trial Court Cause No. 366-83846-

2023. 

Opinion delivered by Justice PartidaKipness. Justices Reichek and 

Breedlove participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

Judgment entered this 4th day of March 2024.