Opinion
01-20-00312-CR
10-12-2021
EX PARTE LESLEY RENAY MORENO, Appellant
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 391st District Court Tom Green County, Texas Trial Court Case No. D-19-0168-SA
Pursuant to its docket equalization authority, the Supreme Court of Texas transferred this appeal to this Court. See Misc. Docket No. 20-9048 (Tex. Mar. 31, 2020); see also Tex. Gov't Code Ann. § 73.001 (authorizing transfer of cases).
Panel consists of Justices Kelly, Guerra, and Farris.
MEMORANDUM OPINION
April Farris Justice
Appellant, Lesley Renay Moreno, is charged with the felony offense of capital murder of a child under ten years of age. The trial court set Moreno's bail at $1,000,000. Moreno filed an application for a writ of habeas corpus seeking a reduction of her bond amount, and further contending that the trial court erred in its failure to set an individual bond for Moreno. The trial court denied Moreno's application for writ of habeas corpus. In her single issue on appeal, Moreno challenges the trial court's order denying her pretrial application for writ of habeas corpus, contending that the trial court abused its discretion in denying the reduction in bail amount sought in her habeas application.
See Tex. R. App. P. 31.
We affirm.
Background
At the hearing on Moreno's application for writ of habeas corpus, Rebecca Stuart, a detective with the San Angelo Police Department, testified that on March 8, 2018, she responded to a call at Shannon Medical Center regarding a deceased twenty-one-month-old child, N.Q., Moreno's biological son. At the time of his death, N.Q. was living with Moreno, her six older children, and her husband, Andrew Fernandez. Det. Stuart testified that, based on her investigation, at the time of his death, there were two adults who were responsible for the care and safety of N.Q.: Moreno and Fernandez.
Notably, while N.Q. was twenty-one months old at the time of his death, Moreno told investigators that N.Q. was largely immobile. The trial court also heard testimony from Shawn Ybarra, Fernandez's brother, that N.Q. was not walking, crawling, or even able to sit himself up under his own power.
Det. Stuart testified that when she first observed N.Q. on March 8, 2018 at Shannon Medical Center, she "noticed several different bruises" on his body. Included among these external injuries, Det. Stuart testified that she observed an L-shaped bruise on N.Q.'s forehead, bruising on either side of his pelvis near his hips, and "other little bruises," though Det. Stuart did not recall exactly where on the body these bruises were found.
Based on these external injuries, Det. Stuart "initially . . . thought that what may have caused his death was some type of traumatic injury to his head." However, Det. Stuart testified that after an autopsy was performed, the medical examiner determined N.Q.'s cause of death was due to "extensive injuries to his spinal cord," including "broken vertebrae in his back" making it "hard for [cerebral spinal fluid] to get into [N.Q.'s] brain, which then caused the brain to swell and . . . hemorrhage." The autopsy revealed three spinal cord injuries. Through "histological examination of the spinal cord," it was determined that these were three separate and distinct injuries to N.Q.'s spinal cord, likely caused "in different time frames."
Det. Stuart testified that the injuries sustained by N.Q. were comparable to "something that would happen in a vehicle crash." However, based on interviews with Moreno and Fernandez, Det. Stuart learned that N.Q. was not involved in any accident that would have "explain[ed] how he got these injuries that killed him." Further, because N.Q. was immobile, Det. Stuart testified that "there was no way he could cause those injuries to himself, running, playing, [or] falling off of something."
Moreno's Connections to the Community
The State called Martha Muro, an investigator in the Tom Green County District Attorney's Office, to testify at the hearing on Moreno's habeas application. Investigator Muro testified that Moreno moved from Arizona to the San Angelo, Texas area, on or around March 25, 2017. This date was determined by a text message sent by Moreno to Francis Chaves in which Moreno told Chaves she would be "leaving on the 25th." Chaves is the mother of Joseph Quezada, the father of some of Moreno's children, including N.Q. According to text messages between Moreno and Chaves reviewed by Investigator Muro, Moreno did not have contact with her mother or siblings and did not "want to be a burden to others . . . in Arizona."
After moving to San Angelo in March 2017, Moreno lived in several residences with Fernandez and her children. Investigator Muro testified that Moreno and Fernandez were evicted from at least two properties for failure to pay rent. Moreno and Fernandez ultimately moved in with Fernandez's mother, Violet Ybarra ("Ybarra"), living in her home until the time of their arrest on February 28, 2019.
Ybarra was called to testify by Moreno at the hearing on Moreno's habeas application. Ybarra testified that her home is a three-bedroom home. At the time of the hearing, Ybarra, her son Shawn Ybarra, and her granddaughter all lived in the home. Before their arrests, Moreno and Fernandez lived in the dining room of the home, where there is a bed.
Investigator Muro also testified about Moreno's work history, both in Arizona and since moving to Texas. Through assistance provided by the Maricopa County Attorney's Office, Investigator Muro was able to obtain details regarding Moreno's Arizona employment history. Investigator Muro testified that Moreno was employed by an entity called "Mobile Quest" for a short time in 2015. However, that employment lasted less than three months, from September 23, 2015 to December 6, 2015, at which time Moreno abandoned the position.
The Maricopa County Attorney's Office records do not reflect any other employment until February 21, 2017, when Moreno became employed by United Movers. The Maricopa County Attorney's Office records do not reflect an end date. However, as noted above, based on her investigation, Investigator Muro concluded that Moreno moved from Arizona to the San Angelo area on or around March 25, 2017.
Investigator Muro obtained information regarding Moreno's employment history in Texas by reviewing records provided by the Texas Workforce Commission (the "TWC"). According to TWC records, Moreno's first employment in Texas was "with Melrose," where she was hired on or around August 4, 2017.
However, "she was terminated" from that position on "[h]er first day," August 7, 2017, because "she did not show." Then, beginning on September 11, 2018, Moreno "worked for Healthcare Services." Investigator Muro testified that Moreno was employed there for "less than a month," because her last paycheck was October 4, 2018. According to TWC records reviewed by Investigator Muro, Moreno has held no other employment in Texas.
Investigations of Prior Injuries
Roger Spearman, a detective with the San Angelo Police Department, was called to testify by Moreno. Det. Spearman testified that, prior to N.Q.'s death, he investigated a separate CPS report related for an injury to N.Q. Specifically, Det. Spearman testified that on August 22, 2017, N.Q. was taken to Shannon Medical Center and treated for a "transverse fracture to his left femur." In connection with his investigation, Det. Spearman interviewed Moreno regarding the events that led to the injury to N.Q.'s femur.
According to Det. Spearman, Moreno stated on the morning of the injury, N.Q. was napping in his bed, and she had gone to lay down in her own bedroom. At approximately 10:00 a.m., Moreno "heard a distressed cry," ran to N.Q.'s room, and "found him in bed with his left leg caught in the bars of the bed." At that time, Moreno removed N.Q. from his bed, comforting him "for a couple of minutes," then gave him some milk and took him back to her room, where they napped together.
Then, at approximately 11:30 or 11:45 a.m., Moreno woke from her nap and noticed that N.Q.'s left leg was swollen. Moreno stated that when she touched the swollen area of N.Q.'s left leg, he woke up and started crying. Moreno became concerned and took N.Q. to Shannon Medical Center to obtain medical treatment. Det. Spearman testified that Moreno stated she was the only adult home with N.Q. at the time of the injury to his left femur.
While receiving treatment for his broken femur at the Shannon Medical Center, physicians ran several tests on N.Q. "to determine his physical health." Det. Spearman testified that the result of these tests was a conclusion by physicians that N.Q. suffered from osteopenia, a bone disorder causing low bone density. Det. Spearman testified that he was told by the doctors treating N.Q. that this bone disorder could have caused N.Q.'s bones to be more brittle and break more easily. Based on that finding, Det. Spearman did not feel he had sufficient evidence to pursue charges against Moreno, or anyone else, for abuse or neglect related to N.Q.'s broken femur. At that time, Det. Spearman closed the case.
However, not long after Det. Spearman closed the case regarding N.Q.'s broken femur, the San Angelo Police Department received another CPS report related to N.Q. Because of his familiarity with N.Q., Det. Spearman also investigated the new report, which involved bruising on N.Q.'s back. Because of the previous osteopenia diagnosis, and "some other concerns" about N.Q.'s health, Det. Spearman testified that he was "cautious in moving forward with criminal" charges against Moreno for abuse or neglect. Det. Spearman testified that there were "a lot of questions about [N.Q.'s] health and what could be affecting it." For that reason, the medical professionals treating N.Q. ordered additional tests.
At the time N.Q. was being examined for the bruising to his back, he was still in the full-length leg cast due to his broken left femur. Det. Spearman testified that a CPS investigator who met with Moreno noted that, because of the cast, Moreno was holding N.Q. in an "awkward" position. The CPS investigator concluded that it was possible this was the cause of the bruising to N.Q.'s back. While there was uncertainty surrounding N.Q.'s "fail[ure] to thrive," because of the conclusion of the CPS investigator, Det. Spearman determined he did not have sufficient evidence to pursue criminal charges related to the bruising on N.Q.'s back.
Notably however, as a result of N.Q.'s autopsy, Det. Spearman testified that the medical examiner determined that N.Q. did not suffer from osteopenia. Given that, Det. Spearman testified, "it suddenly became very concerning as to how the largest bone in [N.Q.'s] body was broken, because he did not have brittle bone disease or osteopenia."
Investigation of N.Q.'s Injuries and Death
After N.Q.'s death, authorities conducted interviews of Moreno's other children. According to Det. Stuart, in initial interviews in March 2018, the other children "talked a lot . . . said they were happy at home . . . [and] got everything they wanted." However, Det. Stuart testified that when the children were asked questions about Moreno or Fernandez, "the interviews were kind of all over the place and you couldn't get answers" from the children. Det. Stuart testified that the nature of the answers led her to believe the children had been coached because "the things that they would say didn't make sense, or they would be one thing and then directly changed to something else."
In a second set of interviews with the children in November 2018, Det. Stuart testified that the children provided answers that were inconsistent with answers provided in the March 2018 interviews. According to Det. Stuart, in the November 2018 interviews, the children "more freely talked about what went on in their household" and their answers "made more sense." In these interviews, Det. Stuart testified that the children described the way N.Q. was treated by Moreno and Fernandez prior to his death.
Det. Stuart testified that one of Moreno's children, A.M., stated that Fernandez "would throw N.Q. on to the bed and . . . the couch." In the interview, A.M. demonstrated how Fernandez would throw N.Q., and Det. Stuart described it as Fernandez "actually holding N.Q. up over his head and then slamming hi[m] down on to a bed." According to Det. Stuart, A.M. also described an instance where Fernandez "squeeze[d] N.Q. really tight" to the point where A.M. "saw blood come out of . . . N.Q.'s mouth." After witnessing this incident, A.M. told Det. Stuart that Fernandez told A.M. "to 'shh, '" and asked another child, L.M., to "go get either tissues or baby wipes . . . to clean the blood up."
L.M. was also interviewed in November 2018. Based on that interview, Det. Stuart testified that L.M. did not witness this incident, however, L.M. "did recall a time where [L.M.] saw N.Q. was already placed in his crib and [Fernandez] had blood on him and asked [L.M.] to go get wipes to clean the blood off of [Fernandez's] hands." Det. Stuart further testified that both A.M. and L.M discussed "the fact that N.Q. wasn't allowed out of his bedroom," and that "most of the time N.Q. was kept in his bedroom in his crib." A.M. and L.M. also noted that they were not "allowed to go in [N.Q.'s] bedroom when [Fernandez] was gone."
In the November 2018 interviews, another of Moreno's children, J.M. brought up N.Q.'s August 2017 broken femur. J.M. stated that Fernandez "tested" the children. Based on answers provided by J.M. and A.M. in their interviews, Det. Stuart concluded that the children were coached by Moreno and Fernandez on how to answer questions about N.Q.'s injuries. According to Det. Stuart, Fernandez said that J.M. "did bad on the test because [J.M.] didn't answer the questions correctly." However, J.M. told Det. Stuart that J.M. did not want to answer questions as instructed by Fernandez and Moreno "because [J.M.] didn't want to tell lies."
Det. Stuart testified that, based on her interviews of the children, "[w]hen it came to the injuries, or the things that [the children] saw physically being done to N.Q., it sounded like it was only [Fernandez]." As to Moreno, the children "couldn't relate where [she] was during" the instances where N.Q. was being physically abused. However, Det. Stuart also testified that based on her interviews of the children, "it sounded as though it was both [Fernandez] and [Moreno]" coaching the children regarding how to answer questions from investigators related to N.Q.'s injuries, and eventual death.
Beyond efforts to coach the children on how to answer questions from investigators, Det. Stuart also testified regarding Moreno's untruthfulness with investigators. For example, Det. Stuart testified that, throughout her investigations, Moreno "continually said that Nathanial was premature." However, medical records obtained from Arizona indicated that N.Q. was not born premature.
Also, in August 2017, when N.Q. was taken to Shannon Medical Center with a broken femur, Det. Stuart and Det. Spearman were attempting to locate Moreno's children to conduct interviews regarding the household. Moreno first indicated to Det. Stuart and Det. Spearman that the children were at school. However, Det. Stuart testified that she went to the school and "[t]he kids were not there at school." Then, Moreno said the children were with a family member or friend but was "unwilling to tell [investigators] where that person lived."
Det. Stuart also testified about what her investigations revealed about Moreno's "parental responsibility." As a part of this testimony, Det. Stuart discussed the children's school attendance records since moving to Texas. After moving to Texas in 2017, Moreno enrolled her children in school in April 2017, but "then [they] were taken out early," and withdrawn from school on or around May 18, 2017, prior to the end of the school year. During the following school year, Det. Stuart also found that the children missed an excessive amount of school. For example, in February 2018, Moreno's school aged children missed eleven out of twenty days of school for the month, with one child, A.M., missing twelve of the twenty days of school.
Det. Stuart also testified that after the August 2017 broken femur, N.Q. was referred to West Texas Rehabilitation for follow-up treatment related to his broken femur. However, Moreno "missed multiple medical appointments" for N.Q., and had to request a new referral "because she was a no-show" for the appointments. Det. Stuart also noted that Moreno also canceled several "Early Childhood Intervention" appointments for N.Q., despite the fact that these appointments were "done in the household, so it's not something where [Moreno] needed a car to transport N.Q."
Application for Writ of Habeas Corpus
Moreno and Fernandez were both arrested on February 28, 2019 and charged with the offense of capital murder of a child under ten years of age. Moreno remains in custody for this offense. On February 10, 2020, Moreno filed a writ of habeas corpus, asserting that she has been "unlawfully restrained" because the "bond amount . . . set in this case far exceeds that necessary to ensure" Moreno's appearance at future proceedings. Moreno further argued that she was entitled to a reduction in bond or released on personal bond because the State failed to announce "ready for trial" within ninety days of her arrest. Finally, Moreno contended that she was entitled to an "individualized [bond] amount based on her circumstances, and no other."
Hearing and Trial court Ruling
The trial court held a hearing on Moreno's application for writ of habeas corpus on February 25, 2020, hearing testimony from witnesses called by Moreno and the State. After the hearing on Moreno's application for writ of habeas corpus, the trial court denied Moreno's application by written order dated February 25, 2020. On March 26, 2020, Moreno timely filed her notice of appeal of the trial court's February 25, 2020 order.
Excessive Bail
In her sole issue, Moreno argues that the trial court abused its discretion in denying the reduction in bail amount sought in her habeas application. Moreno argues that, "[alt]hough this is a [c]apital [m]urder charge," the bail amount set by the trial court, $1,000,000, is excessive, because she does not "have sufficient funds to provide for a $1 million bond," she "has ties to the community, though she [is] from Arizona originally," and the bail set by the trial court "is clearly an instrument of oppression . . . as [Moreno] is completely indigent without any funds," "the safety of any of [Moreno's] other children is not at risk because the other children in [her] home are under the care, custody, and control of the Department of Family and Protective Services," and finally because the State has no evidence "that the crime of [c]apital [m]urder was committed by [Moreno]."
As noted above, in her habeas application, Moreno argued that she was entitled to a reduction of bond because the State failed to announce "ready" for trial within ninety days of her arrest. See Tex. Code. Crim. Proc. Ann. art. 17.151. At the hearing on Moreno's habeas application, the trial court heard arguments from counsel on this issue and made an oral ruling that the State met its burden. Moreno's brief notes the trial court's ruling, and states that the trial court then "permitted [Moreno] to move forward with the remainder of her evidence and argument as to her writ application." However, Moreno's brief does not address the trial court's ruling on this issue as a point of error for consideration by this Court on appeal.
In a habeas proceeding regarding a claim of excessive bail, we review a trial court's decision regarding the amount of bail for an abuse of discretion. 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.); Ex parte Davis, 147 S.W.3d 546, 548 (Tex. App.-Waco 2004, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules or principles. Ex parte Hunt, 138 S.W.3d 503, 505 (Tex. App.-Fort Worth 2004, pet. ref'd). As such, a reviewing court will not disturb a decision of the trial court if that decision is within the zone of reasonable disagreement. Ex parte Tata, 358 S.W.3d 392, 397 (Tex. App.-Houston [1st Dist.] 2011, pet. dism'd); Clemons v. State, 220 S.W.3d 176, 178 (Tex. App.-Eastland 2007, no pet.).
We acknowledge that an abuse-of-discretion review requires more of the appellate court than simply deciding that the trial court did not rule arbitrarily or capriciously. Montalvo, 315 S.W.3d at 593. An appellate court must instead measure the trial court's ruling against the relevant criteria by which the ruling was made. Id. It is not an abuse of discretion for the trial court to decide a matter within its discretion in a different manner than the appellate court would under the circumstances. Ex parte Miller, 442 S.W.3d 478, 481 (Tex. App.-Dallas 2013, no pet.).
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) (applying Eighth Amendment's prohibition of excessive bail to states). The Texas Constitution also 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; see also Tex. Const. art. I, § 13 ("Excessive bail shall not be required . . . ."); Tex. Code Crim. Proc. Ann. art. 1.07 ("All prisoners shall be bailable unless for capital offenses when the proof is evident.").
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 interests of society, the Texas Legislature has adopted rules and guidelines whereby a defendant can obtain pretrial release through the posting of adequate bail. See Tex. Code Crim. Proc. Ann. art. 17.01 ("'Bail' is the security given by the accused that 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 with which she is charged. See Tex. Code Crim. Proc. Ann. art. 17.01; Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. 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 offense and the circumstances of its commission;
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 offense and the community.See Tex. Code Crim. Proc. Ann. art. 17.15 ; see also Ludwig v. State, 812 S.W.2d 323, 324 (Tex. Crim. App. 1991); Golden v. State, 288 S.W.3d 516, 518 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd).
The Texas Legislature has amended Article 17.15 of the Texas Code of Criminal Procedure, with the amended language to take effect for individuals arrested on or after December 2, 2021. See Damon Allen Act, 2021, 87th Leg., 2d C.S., S.B. 6, § 10 (to be codified as an amendment to Tex. Code. Crim. Proc. art. 17.15). Because Moreno was arrested on February 28, 2019, our inquiry is not governed by the amended language taking effect December 2, 2021.
In determining an appropriate amount of bail, the trial court may also consider a defendant's work record, her family and community ties, her residency, her prior criminal record, her conformity with previous bond conditions, and the aggravating factors alleged to have been involved in the charged offense. See Ex parte Rubac, 611 S.W.2d at 849-50; Montalvo, 315 S.W.3d at 593. The burden of proof is on the defendant who claims her bail is excessive. See Ex parte Rubac, 611 S.W.2d at 849; Montalvo, 315 S.W.3d at 592.
Currently, the trial court has set Moreno's bail at $1,000,000. We review the statutory factors identified above to determine whether bail is excessive.
Sufficient Bail to Assure Appearance
The primary purpose of pretrial bail is to secure a defendant's appearance at trial on the offense with which she is charged. See Tex. Code Crim. Proc. Ann. art. 17.01; Ex parte Rodriguez, 595 S.W.2d at 550; Ex parte Vasquez, 558 S.W.2d at 479. "A defendant's ties to the community and work history bear on the adequacy of the bail to give reasonable assurance [she] will appear." Richardson v. State, 181 S.W.3d 756, 759 (Tex. App.-Waco 2005, no pet.).
At the hearing on her habeas application, evidence was presented that Moreno had few ties to the community. Investigator Muro testified that Moreno moved from Arizona to the San Angelo on or around March 25, 2017, less than a year prior to N.Q.'s death on March 8, 2018. Notably, other than the family of Fernandez, her husband and co-defendant, and her children, who are in the custody and care of the Texas Department of Family and Protective Services (the "DFPS"), Moreno has no family ties in the San Angelo area.
Prior to her arrest in February 2019, Moreno lived in the San Angelo area for less than two years. During this short time, Moreno lived in a series of locations and was evicted from multiple properties for failure to pay agreed upon rental amounts. Ultimately, Moreno and Fernandez moved in with Violet Ybarra in San Angelo, where they resided until the time of their arrests in February 2019.
The trial court also heard evidence regarding Moreno's work history, both in Arizona and Texas. Investigator Muro testified that she obtained records from the Maricopa County Attorney's Office related to Moreno's Arizona work history. These records revealed that Moreno was employed by "Mobile Quest" for a period of less than three months, from September 23, 2015 to December 6, 2015, at which time Moreno abandoned the position. The Maricopa County Attorney's Office records do not reflect that Moreno held any other employment until February 21, 2017, when Moreno became employed by United Movers. The Maricopa County Attorney's Office records do not reflect an end date. However, according to Investigator Muro's testimony, Moreno moved from Arizona to the San Angelo area on or around March 25, 2017.
From TWC records, Investigator Muro was able to determine Moreno's employment history in Texas. According to TWC records, Moreno's first employment in Texas was "with Melrose," where she was hired on or around August 4, 2017. However, "she was terminated" from that position on August 7, 2017, which was "[h]er first day of work [because] she did not show." Then, beginning on September 11, 2018, Moreno "worked for Healthcare Services." Investigator Muro testified that Moreno was employed there for "less than a month," because her last paycheck was October 4, 2018. Other than these two jobs, which totaled less than a month of employment, TWC records did not reflect that Moreno held any other employment in Texas.
At the hearing, Moreno presented evidence regarding potential living situations if she were released on bail pending trial. First, Ybarra testified that, if Moreno was released on bail pending trial, she would allow Moreno to live in her home, and ensure Moreno attended all required court appearances. Ybarra also testified that she would also welcome all of Moreno's six living children into her three-bedroom home. In addition to the three bedrooms, Ybarra noted that she has "a dining room that [she] combine[s] into a bedroom." However, at the time of the hearing, each of the three bedrooms were occupied, as Ybarra's son and granddaughter were also living in Ybarra's home.
Ybarra also testified that if Moreno were released on bail pending trial, she would ensure Moreno attended all required meetings and court appearances. While Moreno does not have a driver's license, Ybarra testified that either she or her son would drive Moreno to any required meetings or court appearances and assist Moreno in obtaining a driver's license. However, Ybarra testified that her son worked at a restaurant from 11:00 a.m. to 4:00 p.m., limiting his ability to drive Moreno to any such meetings or appearances.
The trial court also heard evidence of potential limits to Ybarra's ability to ensure Moreno appeared for all required meetings and appearances. Ybarra testified that she is diabetic and had both her legs amputated approximately seven years prior. The amputations were necessary because of infections related to Ybarra's diabetes. Ybarra also testified that she had recently been hospitalized for two weeks, suffering from kidney failure.
The trial court also heard testimony from Cecily Miller, the Director of Fresh Start Ministries ("Fresh Start") in San Angelo. Miller testified that Fresh Start is "a long-term restoration home for women and their children," and that Fresh Start would welcome Moreno into its program in the event she was released on bail pending trial. Miller testified that the program offered by Fresh Start requires a one-year commitment and aims to provide woman and their children with the tools to "get them standing on their feet."
Miller testified that she met Moreno at the Tom Green County Jail, where she conducts Bible studies with the incarcerated women. Miller testified that Moreno was an active participant in her Bible study, and through those meetings, determined that Moreno would be a good candidate for the Fresh Start program. Miller testified that, at the time of the hearing, Fresh Start had space available for Moreno immediately, and the program would be no cost to Moreno. Miller testified that if Moreno were released to the Fresh Start program pending trial, the program would provide all housing needs, transportation to and from any required appointment, hearing, meeting, or employment, and would assist Moreno in finding employment. While Moreno offered evidence of potential living options if she were released pending trial, we cannot conclude that this evidence was sufficient to overcome the failure to present evidence of community, family, or employment ties to the San Angelo area. The lack of evidence of community, family, or employment ties weighs against a determination that the bail amount set by the trial court was excessive. See Richardson, 181 S.W.3d at 759 ("A defendant's ties to the community and work history bear on the adequacy of bail to give reasonable assurance [she] will appear.").
Whether Bail is Being Used as an Instrument of Oppression
Bail may not be used as an instrument of oppression. See Ex parte Guerra, 383 S.W.3d 229, 233-34 (Tex. App.-San Antonio 2012, no pet.); see also Tex. Code Crim. Proc. Ann. art. 17.15(2). Bail set in a particular amount becomes oppressive when it is based on the assumption that the defendant cannot afford bail in that amount and when it is set for the express purpose of forcing the defendant to remain incarcerated. See Ex parte Nimnicht, 467 S.W.3d 64, 70 (Tex. App.-San Antonio 2015, no pet.); Ex parte Durst, 148 S.W.3d 496, 499 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (where bail amount set "solely to prevent [defendant] from getting out of jail," "bail [was] being used as an instrument of oppression").
We must therefore consider whether the record reflects that the trial court made its decision regarding the bail amount "for the purpose of forcing [the defendant] to remain incarcerated pending trail." Milner v. State, 263 S.W.3d 146, 149 (Tex. App.-Houston [1st Dist.] 2006, no pet.). When bail is set so high that a person cannot realistically pay for it, the trial court essentially "displaces the presumption of innocence and replaces it with a guaranteed trial appearance." See Ex parte Dupuy, 498 S.W.3d 220, 233 (Tex. App.-Houston [14th Dist.] 2016, no pet.).
Here, there is no evidence in the record that the trial court set Moreno's bail amount for the sole and express purpose of keeping her incarcerated pending trial. See Ex parte Dupuy, 498 S.W.3d at 233; Ex parte Nimnicht, 467 S.W.3d at 70; cf. Ex parte Harris, 733 S.W.2d 712, 714 (Tex. App.-Austin 1987, no pet.) (trial court stated, "I'd rather see him in jail than to see someone's life taken.").
Additionally, we note that the bail amount set by the trial court is comparable to other cases involving a defendant charged with the felony offense of capital murder. See Ex parte Dupuy, 498 S.W.3d at 233 (review of bail set in other cases may be instructive); see, e.g., Ex parte Temple, 595 S.W.3d 825, 830-31 (Tex. App.-Houston [14th Dist.] 2019, pet. ref'd) ("While a $1,000,000 bond may be high, it is within the range of bail amounts that have been upheld for first-degree felony offenses including murder and capital murder."); Ex parte Gonzalez, 383 S.W.3d 160, 167 (Tex. App.-San Antonio 2012, pet. ref'd) (affirming $1,500,000 bond for capital murder); Munoz v. State, No. 01-08-00223-CR, 2009 WL 214505, at *5 (Tex. App.-Houston [1st Dist.] Jan. 29, 2009, no pet.) (mem. op., not designated for publication) (trial court did not err in setting bail amount at $1,000,000 for felony offense of capital murder); Ex parte Brown, No. 05-00-00655-CR, 2000 WL 964673, at *1 (Tex. App.-Dallas July 13, 2000, no pet.) (not designated for publication) (affirming $1,000,000 bail for felony offense of capital murder).
The lack of evidence that the trial court used bail as an instrument of oppression weighs against a determination that the bail amount set by the trial court was excessive. See Tex. Code Crim. Proc. Ann. art. 17.15(2); Montalvo, 315 S.W.3d at 596 ("[T]he habeas corpus record . . . does not suggest that the trial court deliberately set bail at an excessively high level solely to prevent [defendant] from posting bail.").
Nature and Circumstances of the Offenses
The trial court must consider the nature and surrounding circumstances of the charges against appellant in setting her bail amounts. See Tex. Code Crim. Proc. Ann. art. 17.15(3); Golden, 288 S.W.3d at 518; 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 at 67 ("When determining reasonable bail, a trial court shall give the most weight to the nature of the offense and the length of possible sentence."). When the nature of the offense is serious, as is the case here, "a lengthy prison sentence following trial is probable." Ex parte Scott, 122 S.W.3d 866, 869 (Tex. App.-Fort Worth 2003, no pet.). "Pretrial bond in these kind of cases 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." Ex parte Hulin, 31 S.W.3d 754, 761 (Tex. App.-Houston [1st Dist.] 2000, no pet.).
Moreno is charged with the felony offense of capital murder of an individual under ten years of age. See Tex. Penal Code Ann. § 19.03(a)(8), (b) (classifying capital murder as first-degree felony). If convicted, Moreno faces a range of punishment of life imprisonment without the possibility of parole, or the death penalty. See Tex. Penal Code Ann. § 12.31 (stating punishment range for capital offense). According to the State's brief, at the time of the hearing, the State had not determined whether to see the death penalty in this case. However, if convicted, Moreno faces, at the least, life imprisonment without the possibility of parole.
In her brief, Moreno argues that there was no evidence presented in the hearing on her habeas application establishing her involvement in the offense. However, this argument ignores the totality of the evidence presented to the trial court regarding the nature of the offense. At the time of his death, N.Q. was approximately twenty-one months old, but had "very limited mobility," could not crawl, walk, or even sit up under his own power.
Despite this, the medical examiner found three separate fractures to N.Q.'s spinal cord, likely occurring over three separate occasions, indicating a pattern or history of abuse. The medical examiner and investigators also noted a large, L-shaped bruise on his forehead, and bruising on both sides of N.Q.'s pelvis near his hips and other bruises over his body. Det. Stuart testified at the hearing on Moreno's habeas application that her investigation found that, at the time of N.Q.'s death, the only adults in the home were Moreno and Fernandez.
The trial court also heard evidence from Det. Spearman regarding his investigation of a separate injury suffered by N.Q. in August 2017. At that time, Det. Spearman received a report from CPS that N.Q. had suffered a broken left femur. In the course of his investigation of N.Q.'s injury, Det. Spearman interviewed Moreno. During this interview, Moreno stated that at approximately 10 a.m. on August 22, 2017, she heard a "distressed cry" from N.Q.'s room and found him in bed with his leg caught in the bars of the bed. According to Det. Spearman, Moreno stated that she comforted N.Q. until he calmed down, and brought him to her bedroom, where they fell asleep until "around 11:30 [or] 11:45," when Moreno woke up and noticed that N.Q.'s left leg was swollen and painful to the touch. At that point, Moreno stated that she took N.Q. to the hospital to be evaluated. Moreno further stated in the interview that she was the only adult present at the time N.Q. suffered his injury.
Det. Spearman testified that the hospital ran several tests on N.Q. to determine how it was possible for a child N.Q.'s age, with such limited mobility, to break his femur, the largest bone in the body. It was determined that N.Q. had osteopenia, a bone disorder that causes lower bone density. Given this, Det. Spearman was unable to conclusively state that the injury was due to abuse or neglect.
Det. Spearman also testified that, in addition to the broken femur, and other bruising, there was concern of a possible skull fracture. Det. Spearman, along with CPS, requested further testing, including a CAT scan done on N.Q. to gather more information on the apparent skull injury. The results of that testing were inconclusive, again leaving Det. Spearman unable to conclude that the apparent skull injury was the result of abuse or neglect. For that reason, at that time, Det. Spearman closed his investigation.
However, shortly thereafter, Det. Spearman received a new CPS report related to N.Q. The new report was in connection with a series of bruises on N.Q.'s back. At the time of this new report, N.Q. was in a large cast due to his broken femur. Moreno stated that these bruises were likely caused by the awkward way she had to hold N.Q., due to the size of his cast. Again, due to the circumstances, Det. Spearman testified that he was unable to conclude these bruises were the result of abuse or neglect.
Notably however, after N.Q.'s death, the medical examiner who conducted his autopsy concluded that N.Q. did not suffer from osteopenia. Accordingly, the injuries sustained by N.Q., who, despite being twenty-one months old, was "immobile," were not related to "brittle bones." And the trial court heard testimony that the only adults who were responsible for the care of N.Q. were Moreno and Fernandez.
The gravity of the allegations against Moreno for the first-degree felony offense of capital murder of a person under ten years of age weighs against a determination that the bail amount set by the trial court was excessive. See Ex parte Sells, 2020 WL 7639574, at *3 (gravity of allegations against defendant weighed in favor of affirming trial court's bail amount).
"[W]hen considering the nature of the offense[s] [charged] in setting [a defendant's] bail" amount, the trial court may also consider "the punishment permitted by law" for the offenses with which the defendant is charged. See Ex parte Vasquez, 558 S.W.2d at 480; see also Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. 1980); Ex parte Nimnicht, 467 S.W.3d at 67 ("When determining reasonable bail, a trial court shall give the most weight to the nature of the offense and the length of possible sentence."). As previously noted, Moreno is charged with the felony offense of capital murder of an individual under ten years of age. See Tex. Penal Code Ann. § 19.03(a)(8) (classifying capital murder as first-degree felony). If convicted, Moreno faces a range of punishment of life imprisonment without the possibility of parole, or the death penalty. See Tex. Penal Code Ann. § 12.31 (stating punishment range for capital offense). Simply stated, if Moreno is found guilty of the offense of capital murder, she faces punishment of, at the very least, life in prison. See 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) (possibility of substantial sentence supported setting of high bail amount).
The potential sentences Moreno faces related to the first-degree felony offense with which she is charged 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 . . . severe punishment ranges to which [defendant] may be subjected to weigh[] in favor of the trial court's decision [to deny defendant's habeas application and] not to reduce the amount of his bonds.").
Future Safety of the Community
The trial court must also consider the future safety of the community in setting appellant's bail amounts. See Tex. Code Crim. Proc. Ann. art. 17.15(5); Golden, 288 S.W.3d at 518. At the time of the hearing on Moreno's habeas application, her living children were under the care of DFPS. Accordingly, there was no specific evidence presented that the children were under any risk of harm from Moreno if she were released on bail pending trial.
However, the trial court also heard testimony regarding various instances in which Moreno lied to, or withheld information from, investigators, as well as testimony that Moreno "coached" the children on how to answer investigator questions. During interviews at the time N.Q. was brought to the hospital with a broken femur, Moreno told Det. Spearman and Det. Stuart that her other children were at school at the time of the incident. However, when the detectives tried to find the children at school, they were not there. When confronted with that, Moreno continued to be evasive regarding the whereabouts of the children.
Even assuming, given the totality of the evidence presented to the trial court, that this factor weighed in favor of Moreno, this alone would be insufficient to establish that the trial court erred. See Ex parte Long, No. 01-07-00685-CR, 2007 WL 3227660, at *4 (Tex. App.-Houston [1st Dist.] Nov. 1, 2007, no pet.) (mem. op., not designated for publication) (affirming trial court denial of request to lower pretrial bail amount despite that "[t]here was no evidence that, if released on bail [defendant] would pose a threat to the community"). The record reflects that the trial court, as it is required to do, "considered these factors in assessing bail." See Tex. Code Crim. Proc. Ann. art. 17.15(5); see also Montalvo, 315 S.W.3d at 595.
Ability to Make Bail
Although the ability or inability to make bail does not control the amount of bail set, it is a factor that the trial court must consider in setting a defendant's bail amount. See Tex. Code Crim. Proc. Ann. art. 17.15(4); Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. 1980); Golden, 288 S.W.3d at 519-20. Nevertheless, a defendant's inability to pay the bail amount set by the trial court does not automatically render the amount excessive. See Ex parte Vance, 608 S.W.2d 681, 683 (Tex. Crim. App. 1980); Ex parte Scott, 122 S.W.3d 866, 870 (Tex. App.- Fort Worth 2003, no pet.). If the ability to make bail controlled, the trial court's role in setting the bail amounts would be eliminated and the defendant would be in the position to determine the amounts of bail. Milner v. State, 263 S.W.3d at 150.
At the hearing on her habeas application, Moreno failed to provide evidence about her specific assets or financial resources, or what efforts, if any, she made to furnish the bail amount set by the trial court. See Ex parte Goodson, No. 01-15-00288-CR, 2015 WL 1868771, at *4 (Tex. App.-Houston [1st Dist.] Apr. 21, 2015, no pet.) (mem. op., not designated for publication) (defendant did not present any documentary evidence of his assets or financial resources and because of "the dearth of evidence presented by [defendant] regarding his finances," trial court could have concluded that bail amount was reasonable); Milner, 263 S.W.3d at 149-50 (to show his inability to make bail, defendant generally must establish that his funds have been exhausted); Ex parte Scott, 122 S.W.3d at 870 (defendant did not detail his or his family's specific assets or financial resources); Ex parte Miller, 631 S.W.2d 825, 827 (Tex. App.-Fort Worth 1982, pet. ref'd) ("[I]t [is] incumbent on the accused . . . to show that he . . . made an effort to furnish bail in the amount set."). General references to an applicant's inability to make bail does not render the bail amounts set by the trial court excessive or justify a reduction of the bail amounts. See Balawajder v. State, 759 S.W.2d 504, 506 (Tex. App.-Fort Worth 1988, pet. ref'd).
However, the trial court did hear testimony from Violet Ybarra that since she met Moreno in 2016, her family has been Moreno's sole means of financial support. Ybarra also testified about her financial ability to post Moreno's bond, as Moreno's sole means of financial support, stating that she owns "no property," has no savings, and that her only income is from disability benefits. See Milner, 263 S.W.3d at 150 (trial court may consider family financial resources when considering habeas applicant's ability to make bail). Ybarra testified that she had not attempted to speak with bondsmen because she "cannot come up with that kind of money."
Shawn Ybarra also testified regarding the family's ability to assist Moreno in making bail or posting bond, testifying that while he "did call quite a few" bondsmen, he "do[esn't] recall" which bondsmen he called or what they would have required to post Moreno's bond. He also testified that he has not called any bondsmen since Moreno "first got arrested," almost a year prior to the hearing on Moreno's habeas application.
Given the lack of detail in the evidence presented about Moreno's claimed inability to make bail, the trial court could have concluded that the amount of bail it set was reasonable. See Awadalla v. State, No. 02-18-00513-CR, 2019 WL 984860, at *4 (Tex. App.-Fort Worth Feb. 28, 2019, pet. ref'd) (mem. op., not designated for publication) ("Although worth considering, inability to make bail does not control over the other factors."); Ex parte Martinez, No. 10-17-00420-CR, 2018 WL 1958016, at *3 (Tex. App.-Waco Apr. 25, 2018, no pet.) (mem. op., not designated for publication) ("In the absence of . . . evidence from [defendant] regarding his finances or assets, the trial court could reasonably have concluded that [defendant] had failed to carry his burden to prove that the bail set was excessive."); Ex parte Castillo-Lorente, 420 S.W.3d 884, 889 (Tex. App.-Houston [14th Dist.] 2014, no pet.); see also Ex parte Scott, 122 S.W.3d at 870 (affirming trial court's denial of habeas application and citing, as factor, 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 bond, but he did not detail either his or his family's specific assets and financial resources nor his efforts to furnish bond).
The lack of evidence about Moreno's purported inability to make bail weighs against a determination that the bail amount set by the trial court was excessive. See Tex. Code Crim. Proc. Ann. art. 17.15(4). Alternatively, given the testimony and evidence presented, it is possible the trial court could have concluded that Moreno lacks the financial resources to obtain a bond or pay her bail as set by the trial court. However, even if the trial court reached this conclusion, "this element would not control over all other considerations." See Milner, 263 S.W.3d at 150 .
We hold that the trial court did not err in denying Moreno's application for writ of habeas corpus and overrule appellant's issue.
Conclusion
We affirm the order of the trial court.