Affirmed and Memorandum Opinion filed March 19 , 202 4
.

In The 

## Fourteenth Court of Appeals

____________ NO. 14

- 2 3

- 00 3 08

- C R

_ ___________ EX PARTE GERMAN SEBASTIAN NUNEZ
On Appeal from the 1 82nd District Court

Harris Count y , Texas Trial C ourt Ca u se N o . 1806206

M EMORA N DUM O PINIO N Appellant German Sebastian Nunez brings this habeas appeal from from the trial court’s h abeas

- co rpus judgmen t mai n taining bail at $ 600,000 in association with a felony murder c harge

. We affirm.

B A CKGROUND
Accordin g to appe l lant ’ s August 15, 2022 indic tment for felony murder , he

com mitted the offense of driving while intoxicated on or about June 30, 2022 by operating a moto r vehicle and striking a vehicle occup ied by Eric Krueger, thus causing Krueger ’ s death. The ind ic t ment also alle ges he committed that offense2

after having been convicted o n two prior occasions of driving while into xicated

. On August 16, 2022, the court set appellant ’ s bond at $600,000. Appellant has not provided bail in that a mount t o the trial co urt at a ny time.
On February 7 , 2023, appellant filed a n application for a writ of habeas
corpus , r equesting that the trial court reduce his bond to $50,000 on the basis that his $600,000 bond was excessi ve and thus unreasona ble

. 1 The writ was granted on February 7, 2023 , and t he tr ial cour t held a hear ing on appel lant ’ s requested relief

on the 1 2th and 2 7th of April, 20 23

. T he trial court signed a habeas

- corpus judgment on A pril 27th , den y ing the reque s ted relief

. This appeal followed.
A NAL YSIS
We rev iew a cha l lenge to the e xcessivenes s of bail for an ab use of d isc retion. See Ex parte Ru ba c , 61 1 S.W. 2d 848, 850 ( Tex. Crim. App

. [Panel Op.] 1981). Un der this st andard, w e may n ot distur b the t rial court ’ s decision if it falls w ithin the zone o f reasonable disa g r eement

. See E x parte Du

puy , 498 S.W.3d 220, 2 30 (T ex. App.

— Houston [14th Dist

. ] 2016 , no pet.). The rig ht to be free from excessive bail is pr otec ted by the Unite d St a te s and T exa s C on sti tutions. See U.S. C onst. amend. VII I; Tex. Const

. a rt . I, § 11. The

amo unt of b ail require d in any case is withi n the tr ial court ’ s d iscretion, su bject to the following r ules :
1. Bail and any conditions of bail shal l be suff icient to give reasonable assurance that the undertaking will be complied with. 2. The power to require bail is not to be used to make bail an instrument of oppression.

1 A lthough the petition is styled as appellant ’ s “ second petition for writ of habeas corp u s , ” the record d oes not contain a c opy of the fir st such d ocument appellant fil ed with the trial court.3

3. The nature of the offense and the circumstances under which the offense was comm itted are to be considered, including whether the offense: (A) is an offense involving violence as defined by Article 17.03; o r (B) involves violence directed against a peace officer. 4. The ability to make bail shall be considered, and proof ma y be taken on this point. 5. The future safety of a victim of the alleged offense, law enforcement, and the community shall be considered. 6

. The criminal history record information for the defendant, including information obtained through the statewid e tel ecommunications system maintained by the Department of Public Safety and through the public safety report system developed under Article 17.021, shall be considered, including any acts of family violence, other pending criminal charges, and any instan ces i n which the defendant failed to appear in court following release on bail. 7. The citizenship status of the defendant shall be considered.
Tex. C od e Cri m. Proc. Ann

. art

. 17 .15
In addition to those rul es, case law p rovides that co urts ma y consider the fol lowing fa ctor s: (1) the de fen dant ’ s work record ; (2) the defendant ’ s famil y and

commu n ity ties; (3) the defendan t ’ s length of re sidency ; (4 ) the d efendant ’ s pr i or

cr iminal record; (5) the defendant ’ s conf ormi ty with previous bon d c on ditions; (6) the existenc e of ot her outstan ding b ond s, if any; and (7 ) the aggravating circumstan c e s alleged to have been involved in t he charged offen se. Rubac , 6 11 S. W .2d at 8 49

– 5 0

. The defendant be ars the burden to prove th e ba il set is

excess ive. I

d. at 849. In his sole issue on appeal, appellant asserts the trial court abuse d its d iscretion by decli n ing to reduce his bail

. The statutory factors , particularl y the second, fourth , and fifth fa ctors, involve the most significant dis putes the parties have on app eal. There is no disagreement between the parties that the $600,000 bond is ensuring appellant ’ s appearance at trial as he has not sa tisfied i t, and it is4

indisputabl e that a ppellant ’ s charge is very seri ous, involving the death of another
per son , and whi ch could subject him to a very length y prison sentence and significant fine if he is con victed

. See Tex. Pen al Code Ann. § § 19.02 ( punishment for first

- degree felony), 12.32 ( individual adjudged guilty of first

- degree felon y

s hall be punish ed by im p ris o nment of not more than 99 y ear s or l e ss than 5 years , and in addition to imprisonment , may be p unished b y a fine not to exceed $10,000) , 12.42(c)(1) ( on trial of first

- degree felon y when defendant has previously been fi na lly convic t ed of felony other than a state jail felony , on convic t ion defendant shall be punish ed by imprisonment for life or for a ny term of
not more than 99 years or less than 15 , a n d in addition to imprisonment , may be punished by a fine of up to $10,000). M oreover, the parties do not dispute that appellant ’ s criminal history fav ors a larger bail amount, and no part y h as contended appellant ’ s ci tizenship impacts the bail analysis here

. However , appellant con tends the bail amount is being use d as an instrument of oppressio n for reasons connected wit h the other two substantially dispute d fact ors . F irst , appellant claims the evidence presented to the trial court sufficiently demonstrates i t is im possible f or hi m and his family to provide bail in the amou nt of $600,000, but r ather that they can sa t isfy a $50,000 bond. Second, appellant

c on tends the evidenc e provided a bout his health and physical condition demonstrates that regardless of whether appe llan t c a used K rueger ’ s d ea th b y operating a vehicle while intoxic ated, he cannot do so now, thus m eaning he cannot be a threat to the commun ity

. Tu rning f irst to the issue of w hat bond appel lant and his family c an a ffor d, testimony from appellant ’ s sis ter at the trial court ’ s hearing indicated that appellant and his fam ily had neither the cas h nor the assets to satisfy a $600,0 00 bond, but tha t they did hav e funds available to satisfy a $50,000 bond. As for whatever5

additional ass ets are availab le, ap pell ant ’ s sister ans wered “ No ” as to whether appellant ’ s family had a ny assets at all, and the family did not have the financial ability to sat isfy a bo nd over $50,000. We acknowledge that the evidence of fin ances provided at the bail hearing does favor a lo wer bail amount as it indicates $600,000 bail is unaffordable for defendant , but that factor is not controlling

. See Milner v. S t at e , 263 S.W.3d 146, 150 (Tex. App.

— Houston [ 1 st Dist.] 2006, no pe t. ) ( “ The ability or inability of an accused to make bail , h ow ever, ev e n indigency, does not alone cont rol in d etermining the amount of bail. ” )

. We turn our attention to the safety of the com munit y and law enforcement ( Krueger ’ s death m eans victim safety does not influence the fifth statutory factor here )

. Looking solely at the c i rcumst ances c ontemporaneous with and preceding the offense, there can be little doubt tha t dri ving while intoxicated, which pl aces persons on and near roa ds at significant risk, itself co nstitutes a threat to the community and law enforcement

. See Ex parte Shires , 508 S.W .3d 85 6 , 861 (Tex. App.

— Fort Worth 2016, no pet.). Furthermore, the f act that appellant ’ s cri minal history demonstrates he has driv en while intoxicated o n multiple occasions prior to his instant alleged offense makes the risk appellant poses in this rega rd sign ificant ly higher. Cf. Ex parte Ellio t , 950 S.W.2d 714, 717 (Tex. App.

— Fort Worth 1997, pet. ref ’ d) (upholding a pretrial bond condition that was s upported by

a de fendant ’ s previous DWI offense). On appe al, appellant contends his physical condition m eans h e will n ot be a danger t o the community as h is physical condition prevents him fro m ope rating a

m otor vehicle

. The appell ate record contains littl e evidence about appellant ’ s physical condition and whether he can operate a motor vehicle. Appellant ’ s sist er
test ified at his habeas h earing that he was injured in the accident underlying6

appel lant ’ s charge and was, at the time of the hearing, “ badl y hu rt ” and “ having a hard time recovering. ” The record also reflects that appellant had been in a wheel chair si nce the time of the a ccident and attended the hearing in a wheelchair. Overall, it i s difficult for this court to precisely determine how much c apacity appellant had or has to operate a motor vehic le

. The trial cour t was in the best position to weigh the evidence at the tim e of the hearing, and it is clear that the trial court felt there was an unacc eptably h igh risk that appellant would d rive a vehicle whil e intoxicated if released . At th e concl usion of the hearing, after acknowledging that the sa fety of th e comm uni ty is

o ne of the factors the trial court considered in setting bail, the trial court noted it could not gu arantee that appell ant will not be a bl e to get in to a vehicle and drive while intoxicat ed. Although appellant ’ s phy sical condition intui tively mak es i t

m ore difficult to do so , the trial cour t was the fact

- finder who observe d a ppellant directly w hile assessing how physically able he was to operate a vehi cle

. With little o ther evide nce to an alyze the issue on aside from references in the testimony of appellant ’ s si ster, we are n ot in a position to find any error by the trial court here. Cf. Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App

. 1 997) ( acknowledging that appel late court s “ shou ld afford almost total deference to a trial c ourt ’ s determin ation of the hist orical facts t hat the record supp orts especially when the trial court's fact findings are based on an evaluation of credibility and demeanor ” ). Turning to the Rub ac factors in tur n, appellant provided testimony from his

s ist er that prior to b eing charge d w ith fe lony mur der , he had been em ployed regularly since being able to work, though h is sister was u nsure what his employment was at the time of the alleged off ens e. The record also reflects that he has family in Houston, K illeen, and Honduras (thou gh tes timony indicat ed he had7

not been to Honduras for around twenty years), and that he has lived around hi s family generally for almost all of his li fe

. As mention e d abov e , appellant h as multiple prior c onvictions for DWI offe nses, and at the hearing, the St ate ’ s attorney indicated appellan t was charged in New York for larcen y and disorderly conduct around 201 0, but aside from the S tate in dicat ing the N ew York charges

were for misdemeanors, the qua ntity of and the specifics of the New York c harges

are unc lear from the recor d. There is no indication in the record that appellant has failed to com ply with bond conditions pr ev iously given in any case , nor is there any indication in the record th at appe llant is cu rrently subject to any bonds

. And

a s menti oned above, the charged offense involves a serious allegation that appellant cause d the death of another perso n.
After considerin g both the statutory and the common
- law fa ct ors , we

con clude the trial court acted within its discret ion in maintaining appellant ’ s bond at $600,000. In particular, the trial court ’ s assessment that appellant posed a significant ris k to the community both significantly favors the bail a mount and de pends h eavi ly on the trial court ’ s assessment of a ppellant ’ s phy sical ability , which is beyond this court ’ s ability to second

- guess, particularly with the relative lack of additional evidence shed ding light on ap p ellant ’ s phy sical ability. In addition , the nature of appellant ’ s charged offe nse and the substan tial punishment he may be fac ed with if convicted indicate he p oses a flight risk

. See Dupuy , 498 S.W.3d at 231 (noti ng, in a multi ple

- c harge case, “ [g] iven the seriousness of t he ch arged offenses and t he lengthy potentia l se ntences, the trial court reasonably could conclude there was a possibility that appellant would not appear for trial ” ). We accordingly overrule appellant ’ s sole issue o n appeal.
C ONCLUSI O N
We af firm the tr ial cou rt ’ s habeas

- cor p us j udgment

.8 PER CURI AM

P an el c onsists of Justi c es Jewell, Spain, and Wilson. Do Not Publish

— Tex. R. App. P. 47.2(b).