Opinion
No. 04-20-00396-CR
03-17-2021
EX PARTE Tommie CARTER
Vincent D. Callahan, Attorney at Law, San Antonio, for Appellant. Jennifer Rossmeier Brown, Assistant Criminal District Attorney, San Antonio, for Appellee.
Vincent D. Callahan, Attorney at Law, San Antonio, for Appellant.
Jennifer Rossmeier Brown, Assistant Criminal District Attorney, San Antonio, for Appellee.
Sitting: Luz Elena D. Chapa, Justice, Beth Watkins, Justice, Liza A. Rodriguez, Justice
Opinion by: Liza A. Rodriguez, Justice
Tommie Carter is charged with four felonies. He appeals from two separate orders signed by the trial court: (1) the June 18, 2020 ex parte order increasing the amount of his bail from $15,000 to $400,000; and (2) the August 10, 2020 order granting Carter partial relief on his pretrial application for writ of habeas corpus and reducing his bail to $200,000. Because we have no jurisdiction to consider Carter's appeal of the June 18, 2020 ex parte order, we dismiss that part of his appeal for lack of jurisdiction. With respect to Carter's appeal of the trial court's August 10, 2020 order that granted him partial habeas relief, we affirm. BACKGROUND
On May 22, 2019, Carter was indicted by a Bexar County grand jury for (1) securities fraud in the amount of $100,000 or more; (2) theft of property in the amount of $200,000 or more; (3) misapplication of fiduciary property of the elderly in the amount of $200,000 or more; and (4) money laundering in the amount of $200,000 or more. The indictment alleges that Carter took over a million dollars from thirty-nine individuals, most of whom are classified as elderly. Carter is alleged to have directly sold or offered to sell investments to these complainants, and committed fraud in connection with the sales of these securities. Bail was originally set at $15,000.
Carter was not arrested until June 17, 2020, over a year after he had been indicted. The next day, on June 18, 2020, the State moved to hold his bail insufficient. That same day and without notice to Carter, the trial court granted the State's motion and increased Carter's bail to $400,000 with electronic monitoring. On June 29, 2000, Carter filed an application for habeas corpus, arguing that bail had been set at an unreasonable amount and he had been deprived of due process because the trial court had granted the State's motion ex parte. On July 10, 2020, the trial court held a hearing on Carter's application for writ of habeas corpus. After hearing testimony, the trial court granted Carter relief in part by lowering his bail to $200,000 with electronic monitoring. Carter appeals.
DISCUSSION
Carter brings two issues on appeal. First, Carter argues that he was denied due process because (1) the State filed its motion to hold his bail insufficient without serving him and (2) the trial court granted the motion without giving him an opportunity to respond. Second, Carter argues that even though the trial court granted him partial habeas relief by lowering his bail, the reduced amount of $200,000 is still unreasonable.
A. No Jurisdiction to Consider Trial Court's June 18, 2020 Ex Parte Order
With respect to Carter's first argument that he was denied due process when the trial court granted the State's motion ex parte , we have no jurisdiction to consider his complaint. "Jurisdiction must be expressly given to the courts of appeals in a statute." Ragston v. State , 424 S.W.3d 49, 52 (Tex. Crim. App. 2014). The court of criminal appeals has explained that "[t]he courts of appeals do not have jurisdiction to review interlocutory orders unless that jurisdiction has been expressly granted by law." Id. (quoting Apolinar v. State , 820 S.W.2d 792, 794 (Tex. Crim. App. 1991) ). Accordingly, this court has previously held that we do not have jurisdiction to consider an appeal from an interlocutory pretrial order granting a motion to increase bail because such jurisdiction has not been expressly granted by statute. Ex parte Herrera , 04-18-00020-CR, 2018 WL 1733123, at *2 (Tex. App.—San Antonio Apr. 11, 2018, no pet.) (not designated for publication) ; see also Sanchez v. State , 340 S.W.3d 848, 852 (Tex. App.—San Antonio 2011, no pet.) ("There is no statutory provision that authorizes a direct appeal of an interlocutory order on a motion to reduce bail."); Ex parte Shockley , 683 S.W.2d 493, 495 (Tex. App.—Dallas 1984, pet. dism'd) (explaining that defendant's remedy in response to an ex parte order is to file application for writ of habeas corpus alleging excessive bail where he will be granted his constitutional rights to notice and a hearing). We therefore conclude we have no jurisdiction to address Carter's complaint that he was denied due process when the trial court in its June 18, 2020 order granted the State's motion and increased his bail to $400,000. B. Application for Writ of Habeas Corpus for Excessive Bail
However, we do have jurisdiction to address Carter's complaint regarding the trial court's August 10, 2020 order granting him partial habeas relief. "A habeas corpus proceeding is a separate and distinct proceeding, independent of the cause instituted by an indictment." Sanchez , 340 S.W.3d at 852 n.6. "A trial court order granting or denying habeas relief is therefore a final order, and an appeal from such an order is not interlocutory." Id. Accordingly, we turn to the merits of his habeas appeal.
Carter argues that his bail, although lowered, was set in the unreasonable amount of $200,0000. Excessive bail is prohibited by our federal and state constitutions, as well as the Texas Code of Criminal Procedure. See U.S. CONST. amends. VIII, XIV ; TEX. CONST. art. I, §§ 11, 13 ; TEX. CODE CRIM. PROC. art. 17.15. The primary purpose of bail is to secure the defendant's appearance at trial. See Ex parte Rubac , 611 S.W.2d 848, 849 (Tex. Crim. App. [Panel Op.] 1981) ; Ex parte Gonzalez , 383 S.W.3d 160, 161 (Tex. App.—San Antonio 2012, pet. ref'd) (citing Ex parte Rodriguez , 595 S.W.2d 549, 550 (Tex. Crim. App. [Panel Op.] 1980) ). The amount of bail should be set sufficiently high to provide reasonable assurance the defendant will appear for trial, but should not be set so high that it becomes an instrument of oppression. Ex parte Bufkin , 553 S.W.2d 116, 118 (Tex. Crim. App. 1977). "It is the appellant's burden to demonstrate the bail set by the trial court is excessive." Ex parte Gonzalez , 383 S.W.3d at 161 (citing Ex parte Rubac , 611 S.W.2d at 849 ).
We review a trial court's pretrial bail determination for an abuse of discretion. Id. A trial court abuses its discretion by acting arbitrarily or unreasonably, without reference to any guiding rules or principles. Id. We will reverse the trial court's order only if it is outside the zone of reasonable disagreement. Id. Merely because we may have decided the matter differently than the trial court does not constitute an abuse of discretion. Id.
The Texas legislature has provided a guideline for courts to follow in setting pretrial bail:
1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
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.
TEX. CODE CRIM. PROC. art. 17.15. In determining what constitutes reasonable bail under the circumstances, courts also consider the following: (1) the nature of the charged offense and length of the potential sentence; (2) the defendant's ties to the community, including family ties; (3) the defendant's length of residency; (4) the defendant's employment history; (5) the defendant's criminal history; (6) the existence of previous bonds against the defendant and his compliance with conditions of those bonds; and (7) any aggravating circumstances involved in the charged offense. See Ex parte Rubac , 611 S.W.2d at 849-50 ; Gonzalez , 383 S.W.3d at 162. On appeal, Carter bears the burden to demonstrate his bail is excessive in light of these considerations. See Ex parte Nimnicht , 467 S.W.3d 64, 66 (Tex. App.—San Antonio 2015, no pet.).
C. Evidence at the Bond Hearing
At the hearing on Carter's writ application to reduce his bail, his unsworn declaration was admitted in evidence. In the declaration, Carter claimed he had not attempted to evade arrest. According to Carter's declaration, although he was aware of the investigation before his arrest, he was not aware that a warrant had been issued for his arrest. He admitted he had been contacted by a constable on several occasions, but claimed the constable refused to say why he wanted to meet with Carter. With regard to the State's allegation that a constable had emailed him about the arrest warrant, Carter stated that "[i]f such an email was sent, [he] never saw it and it may have been after our back-and-forth exchange." "There were several back-and-forth emails, none of which indicated that [Carter] was wanted." Carter claimed to have become frustrated and stopped checking his email. Carter denied that he had ever told anyone he lived in Florida. He stated his phone number had been the same for thirty years. He stated that at the time of his arrest, he was self-employed and his monthly income was approximately $2,000. Since the COVID-19 pandemic, Carter stated that he had no type of income. He claimed to have possession of only $1,500 and suffered from poor credit. He stated his rent was $1,600 per month and that he owed unsecured creditors $50,000. He stated that the most he could borrow was $2,000. He claimed to have continuously lived in the San Antonio-Austin area since 1982. He admitted to having previously worked out of state, but claimed it was "at most five months since 1982." He stated that he had significant friendships and social ties in the San Antonio-Austin area. He characterized his criminal history as "limited," pointing to a conviction for theft of services in the 1980s.
The State called two witnesses to testify: Patrick Youngren, a deputy constable with Travis County, and Phillip Fuselier, a financial examiner with the enforcement division of the Texas State Securities Board. Deputy Constable Youngren testified that in 2019, the State Securities Board reached out to the constable's office in Travis County and requested that the constable apprehend Carter on an outstanding warrant issued out of Bexar County. Early one morning, Youngren and five other deputies attempted to arrest him at the address on his driver's license where they had reason to believe Carter was still living. At that address, the deputies made contact with a man named Enrique Pena who stated that Carter did not live at that residence. One of the deputies left a business card with Pena. Later, Deputy Constable Youngren went back to the area and talked to neighbors who recognized Carter from his driver's license photo and said they had seen Carter at the residence. In July 2019, Carter emailed one of the deputies, Deputy Dodd. After exchanging several emails, Deputy Dodd told Carter via email that he needed to meet with Carter because of an outstanding arrest warrant. Carter responded that he was talking with his attorney and needed more information. These emails were admitted in evidence. In an email dated July 12, 2019, Carter stated that he had not lived at the Austin address where the deputies had attempted to locate him in over three years. Carter instead gave the following address in Miami, Florida: 2423 S.W. 147th Street, Unit 2032, Miami, Florida 33185. In an email dated July 15, 2019, Deputy Dodd informed Carter that he had "a felony fraud warrant for your arrest." On July 16, 2019, Carter responded to the email, stating that he had discussed the warrant with his attorney who was checking public records for information about the warrant. According to Deputy Dodd, Carter did not respond to any further emails.
After hearing this testimony, Carter's attorney informed the trial court that Carter did receive an email indicating that he had a warrant. His attorney stated, "His assertion is that he checked all the records and that there was nothing reflecting that and that time had elapsed and he forgot about it so I've made that disclosure."
Almost a year later, Carter was arrested through a "sting" operation by the enforcement division of the Texas State Securities Board. Phillip Fuselier, a certified fraud examiner with the securities board, testified that he investigates suspected violations of the Texas Securities Act. According to Fuselier, he conducts undercover surveillance online and also investigates through tips and complaints received by the agency. Fuselier then prepares charts and reports based on his findings, and recommends enforcement actions if appropriate. Fuselier testified that his agency had investigated Carter and his purported company, "Incyte Equity Group." In mid-May 2020, working undercover online, Fuselier found a website operated by Carter, which "was offering to make an investment in some senior living facilities in Florida." Using a phone number on that website, he spoke with a person named "Mike Seale." Seale said that the investment on the website was no longer available, but pointed to other websites, including the website for Incyte Equity Group, which had some "offerings on it." Fuselier expressed interest in those offerings to Seale. Seale described "some house flipping projects going on in San Antonio." When Fuselier expressed interest in them, Seale responded that "they were going very fast."
According to Fuselier, through his agency's investigation, he knew that the phone number associated with that website was one used by Carter; thus, Fuselier suspected that Carter was using the false identity of "Mike Seale." Fuselier was able to arrange a meeting with "Mike Seale" at the location in Austin that was listed on the website for Incyte Equity Group. Fuselier also arranged for Austin police officers to be present to arrest Carter. When Carter arrived at the arranged meeting, Fuselier was able to identify him based on his driver's license photo. Fuselier messaged one of the police officers who then approached Carter and asked for his identity. Carter told the officer his name was "Mike Seale." The police officer handed Fuselier the folder Carter was carrying. It contained documents relating to an investment opportunity in San Antonio and another one in Florida. The documents were filled out with Fuselier's undercover name and detailed the return he would receive on the investments. These documents were admitted in evidence as State's Exhibit 2. Fuselier testified that (1) Carter is not registered to sell or offer for sale securities in Texas; and (2) the investments he "was prompting through this Incyte Equity Group" were not registered for sale in Texas.
Fuselier testified that this is not the first time his agency has had to deal with Carter. His agency previously sent a cease and desist order to Carter for a former company of his, "TriStar Equity."
At the end of the hearing, the trial court reduced Carter's bail to $200,000 with electronic monitoring. On August 10, 2020, the trial court signed an order reflecting the reduction of bail to $200,000. The trial court also ordered the following conditions of bond: (1) Carter was prohibited from traveling outside Texas; (2) Carter was ordered to provide a current residential address through his attorney; (3) Carter was ordered to not engage, either directly or indirectly, in any real estate investment or other investment-related promotion activities; and (4) Carter was ordered to not offer for sale or sell securities as the term "securities" is defined in The Securities Act.
D. Application
In determining whether Carter met his burden to prove the bail is excessive, a court analyzes the factors individually and weighs them as a whole in considering whether the bail is reasonable under the circumstances. Ex parte Nimnicht , 467 S.W.3d at 67. "Appropriate bail is a fact-driven determination and each case must be judged on its own unique facts." Id.
First, regarding the nature of the offense, Carter is alleged to have taken over one million dollars from thirty-nine individuals, most of whom are elderly. For his first-degree felony charges, he is facing punishment in the range of five to ninety-nine years or life. See TEX. PENAL CODE § 12.32(a). Second, Carter did not show at the evidentiary hearing that he has strong ties to the community. He points to self-serving statements in his unsworn declaration, but did not provide any other independent evidence or witness testimony to support his statements. Third, Carter claims to have resided in the San Antonio/Austin area since 1982, but when officers attempted to serve his arrest warrant at the address in Austin, which was listed on his driver's license, they could not locate him. The person living at the address told officers that Carter did not reside at that address. Further, in response to an email from Deputy Dodd, Carter claimed not to have lived at that address in Austin for the last three years and instead provided an address in Florida. That Florida address corresponds to a "Pack and Ship" store in Florida. Further, at the hearing, Carter did not provide an address in the San Antonio/Austin area that could be verified. Fourth, Carter states that he is self-employed and has suffered a decrease in income since the pandemic. The only evidence supporting his employment history were his unsworn statements. There was no other evidence corroborating his statements. Fifth, Carter has a previous conviction for theft and a history of engaging in the sale of securities without a license. There was testimony of a Cease and Desist Order issued by the Texas Securities Commissioner against Carter, ordering him to cease and desist from the offer and sale in or from Texas of unregistered securities. Carter is now accused of the same conduct after being ordered to cease and desist. Sixth, there is no evidence of any previous bonds against Carter. Seventh, there are aggravating circumstances in this case. Most of the victims are from a vulnerable victim population, and it took a "sting" operation to execute the arrest warrant on Carter who was using an alias. There was evidence that after Carter was informed of the felony warrant for his arrest, he stopped communicating with the officer. It was not until a year later that authorities were able to track Carter through his online activities attempting to sell securities under an alias. In reviewing the evidence as applied to these factors, we conclude Carter failed to meet his burden to show that the trial court abused its discretion in setting his bail in the amount of $200,000. Given the evidence at the hearing, the trial court could have reasonably concluded that the current bail amount was necessary to reasonably assure Carter's appearance at trial and to protect the community.
CONCLUSION
Because we lack jurisdiction to consider Carter's appeal from the trial court's June 18, 2020 order, we dismiss that portion of his appeal. We affirm the trial court's August 10, 2020 order granting Carter partial habeas relief.