Opinion
NO. 01-20-00503-CR NO. 01-20-00505-CR
03-30-2021
EX PARTE SEAN GIBSON
On Appeal from the 174th District Court Harris County, Texas
Trial Court Case Nos. 1678548 and 1678550
MEMORANDUM OPINION
Appellant, Sean Gibson, appeals the trial court's order denying his pretrial application for a writ of habeas corpus seeking release on personal bond or bail reduction. We affirm.
Background
Gibson is charged with the felony offenses of compelling prostitution (first degree) and trafficking of persons (second degree). The trial court set Gibson's bail for each offense at $50,000, thus totaling $100,000. Gibson filed a pretrial application for writ of habeas corpus (1) asserting that the bond amount is "excessive, oppressive and beyond [his] financial means," and (2) requesting to reduce bail to a reasonable amount.
TEX. PENAL CODE §§ 20A.02 (trafficking of persons); 43.05 (compelling prostitution).
Specifically, aside from noting the charges and bail amount, the entirety of Gibson's challenge to the bail amount in his habeas application consists of a single sentence reading as follows:
SEAN DOMINIC GIPSON's confinement and restraint is illegal because bond is excessive, oppressive and beyond the financial means of SEAN DOMINIC GIPSON, in violation of the Eighth and Fourteenth Amendments to the United States Constitution, Article I, §§ 11, 13 and 19 of the Texas Constitution, and Articles 1.09 and 17.15 of the Texas Code of Criminal Procedure.No other argument, discussion, or support for challenging the bail amount was provided in the application.
The trial court held a hearing on Gibson's application for writ of habeas corpus. At the hearing, Gibson testified that he could not afford any amount of bail and requested to be released on a personal recognizance bond for both offenses. Gibson's counsel, at the conclusion of his closing argument, requested that if the court decides not to grant a personal recognizance bond, the court reduce the bond to no more than $5,000. Counsel, however, stated that he was uncertain whether Gibson could afford that amount but requested the reduction merely because it would be more affordable than $50,000.
In the course of testifying that he could not afford bail, Gibson briefly noted concerns about COVID-19 and being unable to support his teenage son while in jail.
In opposing Gibson's habeas application, the State introduced evidence that Gibson has an extensive criminal record, including convictions for violent offenses; is a registered sex offender; and was on probation for the felony offense of compelling prostitution of a minor when he was charged with these two new felony offenses of compelling prostitution and trafficking of persons. The trial court record includes judgments of conviction against Gibson for the felony offenses of assault of family member-second offender (State's Exhibit 1), compelling prostitution of a minor (State's Exhibit 2), possession of a firearm by felon (State's Exhibit 3), and burglary of habitation (State's Exhibit 9). The record also includes judgments of conviction against Gibson for three separate misdemeanor offenses of assault (State's Exhibits 4, 6, and 10) and two separate misdemeanor offense of assault of family member (State's Exhibits 5 and 7).
At the conclusion of the habeas hearing, the trial court denied Gibson's request for a personal recognizance bond but stated that it would consider reducing the bond amount if Gibson provided some information as to what amount of bond he could afford.:
If for some reason there's information that defense gets that there is an actual bond that he can make, he can reapproach on the issue. At this
time, I'm not going to reduce the bond. I think it's sufficient as it's set based on all of the evidence the Court reviewed and the factors to be considered.The trial court subsequently signed an order denying Gibson's application for writ of habeas corpus. Gibson filed a notice of appeal. We did not request briefing. See TEX. R. APP. P. 31.1, 31.2.
Applicable Law and Standard of Review
"'Bail' is the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or a personal bond." TEX. CODE CRIM. PROC. art. 17.01. The primary purpose of setting bail is to secure the presence of the defendant in court at his trial. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977); Cooley v. State, 232 S.W.3d 228, 234 (Tex. App.—Houston [1st Dist.] 2007, no pet.). The amount of bail should be sufficiently high to give reasonable assurance that the accused will appear but should not be set so high as to be an instrument of oppression. Nguyen v. State, 881 S.W.2d 141, 143 (Tex. App.—Houston [1st Dist.] 1994, no pet.).
The right to be free from excessive bail is protected by the United States and Texas Constitutions, as well as the Texas Code of Criminal Procedure. See U.S. CONST. amend. VIII; TEX. CONST. art. I, §§ 11, 13; TEX. CODE CRIM. PROC. art. 1.09, 17.15. When faced with excessive bail, an accused has the right to assert his or her constitutional right to reasonable bail by way of a pretrial writ of habeas corpus. See TEX. CODE CRIM. PROC. art. 11.24 (providing that defendant may challenge excessiveness of bail by petition for writ of habeas corpus). An applicant for habeas corpus relief must prove his factual allegations by a preponderance of the evidence. See Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995). The burden of proof is on the defendant to show that the amount of bail set is excessive. Ex parte August, 552 S.W.2d 169, 170 (Tex. Crim. App. 1977).
The Eighth Amendment of the U.S. 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. The Eighth Amendment's prohibition on excessive bail is made applicable to the states through the Due Process Clause of the Fourteenth Amendment. See Schilb v. Kuebel, 404 U.S. 357, 365 (1971); Robinson v. California, 370 U.S. 660, 666 (1965). The Texas Constitution guarantees that "[a]ll prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident." TEX. CONST. art. I, § 11. The Texas Constitution and Texas Code of Criminal Procedure both provide that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted." TEX. CONST. art. I, § 13; TEX. CODE CRIM. PROC. art. 1.09. Additionally, the Texas Code of Criminal Procedure provides that "[t]he power to require bail is not to be so used as to make it an instrument of oppression." TEX. CODE CRIM. PROC. art. 17.15(2).
We review the trial court's denial of a bail-reduction request under an abuse of discretion standard. See Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. 1981); Montalvo v. State, 315 S.W.3d 588, 592 (Tex. App.—Houston [1st Dist.] 2010, no pet.). Under this standard, we may not disturb the trial court's decision if it falls within the zone of reasonable disagreement. See Cooley, 232 S.W.3d at 234. But an abuse-of-discretion review requires more of the appellate court than simply deciding that the trial court did not rule arbitrarily or capriciously. Id. The appellate court must instead measure the trial court's ruling against the relevant criteria by which the ruling was made. Id.
The amount of bail required in any case is within the discretion of the trial court subject to the following rules:
1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.TEX. CODE CRIM. PROC. art. 17.15. In addition to these statutory rules, case law provides that courts may also consider the following factors in setting bail: (1) the defendant's work record; (2) the defendant's family and community ties; (3) the defendant's length of residency; (4) the defendant's prior criminal record; (5) the defendant's conformity with previous bond conditions; (6) the existence of other outstanding bonds, if any; and (7) the aggravating circumstances alleged to have been involved in the charged offense. Rubac, 611 S.W.2d at 849-50.
2. The power to require bail is not to be so used as to make it an instrument of oppression.
3. The nature of the offense and the circumstances under which it was committed are to be considered.
4. The ability to make bail is to be regarded, and proof may be taken upon this point.
5. The future safety of a victim of the alleged offense and the community shall be considered.
Discussion
Gibson's habeas application asserts that the amount of bail is excessive and, therefore, in violation of the Eighth and Fourteenth Amendments to the United States Constitution; Article I, sections 11, 13, and 19 of the Texas Constitution; and Articles 1.09 and 17.15 of the Texas Code of Criminal Procedure. Gibson's sole argument for habeas relief was his alleged inability to make bail at the amounts set by the court. As discussed below, Gibson fails to meet his burden of demonstrating that the trial court abused its discretion in denying habeas relief because (1) inability to make bail is only one factor considered in a habeas petition for bail reduction and does not alone render bail excessive; (2) Gibson failed to demonstrate his alleged inability to make bail; and (3) Gibson does not address any of the other factors, including several that weigh in favor of upholding the bail amount set by the court.
Gibson does not provide any discussion of these provisions. With the exception of Article I, Section 19 of the Texas Constitution, these provisions are discussed in footnote 4 above. Article I, Section 19 of the Texas Constitution provides that "[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land." TEX. CONST. art. I, § 19.
A. Inability to Make Bail Alone Does Not Render Bail Excessive
Gibson's sole challenge to the bail amounts set by the trial court is that he lacks the ability to make bail. But a defendant's ability to make bail is only one factor to be considered in determining the appropriate amount of bail. See TEX. CODE CRIM PROC. art. 17.15(4); Ex parte Vance, 608 S.W.2d 681, 683 (Tex. Crim. App. 1980) ("It is established that the ability or inability of an accused to make bail does not alone control in determining the amount of bail."). Merely because a defendant cannot make the bail set by the trial court does not automatically render the bail excessive. See Vance, 608 S.W.2d at 683; Ex parte Scott, 122 S.W.3d 866, 870 (Tex. App.—Fort Worth 2003, no pet.); Maldonado v. State, 999 S.W.2d 91, 96 (Tex. App.— Houston [14th Dist.] 1999, pet. ref'd). "It is well settled that the ability of an accused to make bail does not itself control the amount of bail, even if the accused is indigent." Wright v. State, 976 S.W.2d 815, 820 (Tex. App.—Houston [1st Dist.] 1998, no pet.); see Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. 1980) ("Although the ability to make bail is a factor to be considered, ability alone, even indigency, does not control the amount of bail.").
Accordingly, because inability to afford bail is not sufficient to demonstrate that the $50,000 bail amounts in this case are excessive, Gibson's failure to address the other factors considered in setting bail precludes him from meeting his burden of demonstrating that the trial court abused its discretion. On this basis alone, we must affirm the trial court's denial of Gibson's request for habeas relief.
B. Gibson Failed to Demonstrate His Alleged Inability to Afford Bail
Not only is inability to make bail insufficient by itself to warrant habeas relief for bail reduction, but it was within the trial court's discretion to conclude that this factor weighed against granting habeas relief because Gibson failed to meet his burden of demonstrating inability to make bail.
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. Milner v. State, 263 S.W.3d 146, 149 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Ex parte Willman, 695 S.W.2d 752, 754 (Tex. App.—Houston [1st Dist.] 1985, 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 effort to furnish bail before bail can be determined to be excessive. Id. (citing Willman, 695 S.W.2d at 754 and Ex parte Williams, 467 S.W.2d 433, 434 (Tex. Crim. App. 1971)).
Bail reduction is not favored when the defendant makes vague references to inability to make bail without detailing his specific assets and financial resources. See Cooley, 232 S.W.3d at 236 ("This factor will not favor bond reduction, however, when the defendant makes vague references to inability to make bond without detailing his specific assets and financial resources."); see also Scott, 122 S.W.3d at 870 (in affirming trial court's refusal to lower $100,000 bond, court cited absence of evidence regarding defendant's ability to make bond when defendant's evidence consisted of his testimony that "he and his family lacked sufficient assets or financial resources to post the $100,000 bond, but he did not detail either his or his family's specific assets and financial resources, nor did he explain what efforts, if any, were made to furnish the bond.").
Here, Gibson testified that he does not have a savings account, checking account, or any property that he could sell to make bail. Although Gibson testified that he was employed at a "family-owned company" at the time of his arrest and that he would be able to return to his job if released on bond, Gibson did not provide any details as to his income. Nor did Gibson provide details about any expenses preventing him from applying his income toward a bond.
Gibson testified in general terms that his family could not help him make bail but did not testify or offer any other evidence (such as testimony from family members) detailing his family's assets and financial resources. See Scott, 122 S.W.3d at 870. Specifically, Gibson testified that he is not in contact with any family members and, if he were to contact them, he did not believe that they could help him make bail. Gibson did not testify as to whether he made any attempts to contact his family to help with bail nor did he discuss the basis for his belief that they were unable to help him make bail. Further, we note that Gibson's statement that he lacks contact with any family members conflicts with his testimony later in the hearing that his family, although not able to help with his bail, would help him with transportation and "financial resources" if he were released on bond. Gibson's reference to his family being able to help him with "financial resources" also undercuts his assertion that he cannot afford bail at any amount.
Finally, there was no evidence of any efforts by either Gibson or his family to make bail. See Montalvo, 315 S.W.3d at 595 ("No evidence was presented about any discussions with bondsmen or the maximum amount of bail that [defendant] believed he could satisfy."); Milner, 263 S.W.3d at 150 (concluding that trial court could have determined that evidence supported maintaining bail amount when "no attempt had been made to determine whether appellant could obtain a bond on the basis of his family's resources.").
In denying Gibson's habeas application, the trial court noted that it would consider reducing the bail amounts if Gibson provided information as to an actual amount he could afford. As discussed above, Gibson failed to provide such information. Because Gibson offered little evidence supporting his claimed inability to make bail and no evidence regarding efforts to secure bond, the trial court could properly have concluded that the amount of bail was reasonable under the circumstances. See Scott, 122 S.W.3d at 870. Accordingly, this factor weighs in favor of denying bail reduction.
C. Other Factors Weigh Against Habeas Relief
Because Gibson's failure to address any of the other factors considered in determining the reasonableness of bail precludes him from meeting his burden of demonstrating that the trial court abused its discretion, we need not consider these other factors to affirm the trial court's denial of habeas relief. Nevertheless, we note that it is clear on the face of the record that several factors weigh against Gibson's request for habeas relief.
Nature and Circumstances of Offenses
The trial court must consider the nature and surrounding circumstances of the charges against defendant in setting his bail amounts. See TEX. CODE CRIM PROC. art. 17.15(3). Consideration of the nature of the offense requires consideration of the range of punishment permitted by law in the event of a conviction. See Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. 1980) ("Taking into consideration the 'nature of the offense' necessarily involves the punishment permitted under the law."); Montalvo, 315 S.W.3d at 593 ("Our consideration of the nature and circumstances of the offense requires that we take note of the range of punishment permitted by law in the event of a conviction.").
The nature of the offense and the punishment that may be imposed are the primary factors considered in assessing the reasonableness of bail. See Rubac, 611 S.W.2d at 849; Ex Parte Dupuy, 498 S.W.3d 220, 230 (Tex. App.—Houston [14th Dist.] 2016, no pet.); In re Hulin, 31 S.W.3d 754, 759 (Tex. App.—Houston [1st Dist.] 2000, no pet.); see also 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."). When the nature of the offense is serious and a lengthy sentence following trial is probable upon a finding of guilt, bail should be "set sufficiently high to secure the presence of the accused at trial because the accused's reaction to the prospect of a lengthy prison sentence might be not to appear." Hulin, 31 S.W.3d at 761; see Ex parte Hunt, 138 S.W.3d 503, 506 (Tex. App.—Fort Worth 2004, pet. ref'd) ("Given the serious nature of the offenses and the potential for a lengthy sentence, the trial court could properly have concluded that the amounts of the bonds were reasonable.").
Here, Gibson is charged with a first-degree felony offense of compelling prostitution and a second-degree felony offense of trafficking of persons. See TEX. PENAL CODE §§ 20A.02(b), 43.05(b). The punishment for a first-degree felony is imprisonment for life or any term between 5 to 99 years. TEX. PENAL CODE § 12.32(a). The punishment for a second-degree felony is imprisonment for any term between 2 to 20 years. TEX. PENAL CODE § 12.33(a). Given the seriousness of the charged offenses and the lengthy potential sentences, the trial court reasonably could conclude there was a possibility that Gibson would not appear for trial. See Dupuy, 498 S.W.3d at 231. Accordingly, these factors weigh in favor of the trial court denying bail reduction.
Prior Criminal Record
In opposing Gibson's request for bail reduction, the State provided evidence that Gibson has an extensive criminal record, including crimes of violence. The record in this case contains prior judgments of conviction against Gibson for the felony offenses of assault of family member-second offender, compelling prostitution of a minor, possession of a firearm by felon, and burglary of habitation. The record also includes judgments of conviction against Gibson for three separate misdemeanor offenses of assault and two separate misdemeanor offenses of assault of a family member. Accordingly, Gibson's prior criminal record weighs in favor of the trial court denying bail reduction.
Future Safety of Complainant and Community
In reviewing the trial court's bail determination, a court must consider "[t]he future safety of a victim of the alleged offenses and the community." TEX. CODE CRIM PROC. art. 17.15(5); Milner, 263 S.W.3d at 150. The State alleges that Gibson used violence to compel the complainant to prostitute and asserted at the habeas hearing that the complainant is fearful of Gibson being released from jail. The record demonstrates that Gibson (1) has an extensive criminal history involving violent offenses; (2) was on parole for the felony offense of compelling prostitution of a minor when he was charged with these two new felony offenses; and (3) has previously violated parole in other cases. Based on the record, the trial court reasonably could conclude that Gibson remains a threat to both the complainant and the community and would not be likely to comply with conditions imposed by the court. Accordingly, this factor weighs in favor of denying bail reduction.
Sufficient Bail to Assure Appearance But Not Oppress
Although bail should be sufficiently high to give reasonable assurance that the accused will appear, bail cannot be used as an instrument of oppression. See TEX. CODE CRIM PROC. art. 17.15(3); Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. 1980). "This occurs when the trial court sets bail at an amount 'for the express purpose of forcing applicant to remain incarcerated.'" Ex parte Temple, 595 S.W.3d 825, 830 (Tex. App.—Houston [14th Dist.] 2019, pet. ref'd) (quoting Ex parte Harris, 733 S.W.2d 712, 714 (Tex. App.—Austin 1987, no pet.)). Gibson's habeas application asserts that the bail set by the court is oppressive, but nothing in the record suggests that the trial court refused to reduce the bail amounts for the express purpose of forcing Gibson to remain incarcerated pending trial. See Montalvo, 315 S.W.3d at 596 ("Our independent review of the habeas corpus record likewise does not suggest that the trial court deliberately set bail at an excessively high level solely to prevent [appellant] from posting bail."). To the contrary, the record demonstrates that the trial court expressed its willingness to reduce bail if Gibson would provide information as to the bail he could afford. Accordingly, the lack of evidence showing that the trial court used bail as an instrument of oppression weighs against a determination that the bail amounts set by the trial court were excessive.
In sum, based on the evidence before the trial court in this case, the trial court reasonably could have concluded the bail it set was justified by (1) the nature of the offenses and potential sentences, (2) Gibson's prior criminal history, and (3) the safety of the complainant and the community.
Conclusion
For the foregoing reasons, we conclude that the trial court did not abuse its discretion in setting Gibson's bail at $50,000 for each of the two charged offenses and in denying Gibson's habeas application seeking bail reduction. Accordingly, we affirm the judgment of the trial court.
Sarah Landau
Justice Panel consists of Justices Kelly, Landau, and Hightower. Do not publish. TEX. R. APP. P. 47.2(b).