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explaining that although a PSRS report "appears to be confidential information," an appellate court "can review it through the proper channels" and holding that if a trial court considers the report, it is error for the appellate court to not review it
Summary of this case from Gonzalez v. StateOpinion
NO. PD-0513-23
03-27-2024
EX PARTE Guillermo GAYOSSO, Appellant
William Paul Mewis, katy, for Appellant.
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS, WALLER COUNTY
William Paul Mewis, katy, for Appellant.
Keller, P.J., delivered the opinion for a unanimous Court.
The Damon Allen Act requires that a "public safety report" with certain information be prepared when a magistrate is considering the release on bail of a person charged with a Class B misdemeanor offense or higher. The magistrate is required to "consider" the report "before setting bail." The court of appeals appears not to have reviewed the public safety report. We conclude that this was error.
Tex. Code Crim. Proc. art. 17.022(a), (c); see Acts 2021, 87th Leg. 2nd C.S., ch. 11 (S.B. 6), §§ 1, 5 ("Damon Allen Act").
Ex parte Gayosso, No. PD-0513-23, 2023 WL 8440099, *2 (Tex. Grim. App. December 6, 2023).
Tex. Code Crim. Pro. Ann. art. 11.24 ("Where a person has been committed to custody for failing to enter into bond, the person is entitled to the writ of habeas corpus, if it be stated in the application that there was no sufficient cause for requiring bail or that the bail required is excessive. If the proof sustains the application, it will entitle the person to be discharged or have the bail reduced.").
A report run by an appellate court might be different from the report run by a lower court (for instance if a new offense has been added). But a reviewing court ought to be able to tell which offenses were on the report when it was run by the lower court.
Tex. Code Crim. Pro. Ann. art. 17.151 § 1(1) ("A defendant who is detained in jail pending trial of an accusation against him must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial of the criminal action for which he is being detained within: (1) 90 days from the commencement of his detention if he is accused of a felony[.]").
See Ex parte Gayosso, 2023 WL 3530828, *3 n.3, 2023 Tex. App. LEXIS 3356, *7 n.3 (Tex. App.—Houston [14th Dist.] May 18, 2023).
Ex parte Gayosso, No. 14-22-00448-CR, 2023 WL 3530828, at *6 (Tex. App.—Houston [14th Dist.) May 18, 2023, pet. granted) (mem. op., not designated for publication).
The Damon Allen Act applies to "a person who is arrested on or after the effective date" of the Act. The effective date for the relevant parts of the Act is January 1, 2022. But the Act also has an exemption period. A magistrate is exempt from having to consider the public safety report during a bail consideration that takes place before April 1, 2022.
Damon Allen Act § 24 (emphasis added).
Tex. Code Crim. Pro. Ann. art. 17.15 (listing rules for setting amount of bail: bond must be sufficient to give reasonable assurance that defendant will comply with bond conditions; bond should not be used as instrument of oppression; nature and circumstances of the offense; ability of defendant to make bond; future safety of victim and community; defendant’s criminal history; and defendant’s citizenship status).
Id. § 25(a).
Appellant also argued that the State did not make a prima facie case that it was ready for trial within the statutory ninety-day time period. Tex. Code Crim. Pro. Ann. art. 17.151 § 1(1).
Tex. Code Crim. Proc. art. 17.15(a-1).
Ex parte Gayosso, 685 S.W.3d 100, 102, No. PD-0513-23 (Tex. Crim. App. Dec. 6, 2023). We refused Appellant’s petition without prejudice and granted review on our own motion to determine whether the magistrate considered Appellant’s public safety report when making its bail consideration and whether the court of appeals reviewed that report when analyzing Appellant’s abuse of discretion claim. Id. We held that, under the Damon Allen Act, magistrates must consider public safety reports when making bail considerations and that report must be included in the "complete record" for appellate courts to review abuse of discretion claims. Id. We vacated the court of appeals’ decision and remanded to it for further proceedings consistent with our opinion. Id.
[1] The court of appeals says that it is unclear whether the Damon Allen Act applies to Appellant’s case because the "record does not indicate when appellant was arrested." The court of appeals is mistaken about that. During the bail habeas hearing, Appellant testified that he turned himself in by walking into the courtroom on February 15, 2022:
Cayosso, 2023 WL 3530828, at *3 n.3, 2023 Tex. App. LEXIS 3356, at *7 n.3.
Gayosso, 2023 WL 3530828, at *3 n.3.
Q. Okay. How long have you been in jail? Were you put in jail February 15th, around Valentine’s Day?
A. When I had the accident?
Q. No, here in this case.
A. I got -- when I walk in this courtroom it was February the 15th.
Q. Now, did you know there was a warrant out for your arrest before you walked into this courtroom?
A. Yes.
Q. And did you know it was a one million dollar bail bond on that
A. Yes.
Q. -- on that warrant?
A. Yes.
Q. How long before you walked in the courtroom were you aware that that warrant had been issued? Approximate days or weeks?
A. Approximately a week, a week or so.
Q. So you had every opportunity to flee for a full week before you walked into the court?
A. Yes, I have the opportunity but I didn’t because I knew I was -- I was doing the right thing to come over here in front of a judge and show him that I was not going anywhere because I know that I haven’t committed any crime in almost 20 years I have been living in this country.
So, Appellant was arrested after the effective date of the Act.
[2] The next question is whether the exemption applies. It did apply to the initial setting of bail at $500,000 that occurred on February 15, 2022, as it preceded April 1, 2022. But when the trial court reconsidered its bail decision and ultimately lowered bail to $250,000, it did so on June 16, 2022, which was after the April 1, 2022 exemption date.
There is also an "expiration date" of June 1, 2022 within the exemption provision, see Art. 17.15(a-1), though its effect seems less than clear. In any event, the bail hearing on June 16, 2022 was after this expiration date.
Id. at *3 n.3 (citing Damon Allen Act, 87th Leg., 2nd C.S., ch. 11 (S.B. 6) (eff. Jan. 1, 2022) (codified as Tex. Code Crim. Pro. Ann. arts. 17.021, 17.022)).
[3, 4] The court of appeals contends that it need not concern itself with whether the Damon Allen Act applies to Appellant’s case because the "trial court considered appellant’s criminal background history, which would have been drawn in part from the public-safety-report system," and that there was "no argument on appeal that the trial.court did not consider all the circumstances or factors required by law." But an appellate court must consider the complete record that was before the trial court in determining whether the bail determination was an abuse of discretion. If the trial court did not consider the public safety report required by statute, then it erred, though the court of appeals might be able to consider the issues of preservation and harm. If the trial court did consider the public safety report required by statute, it was error for the court of appeals to not review the report.
Cayosso, 2023 WL 3530828, at *3 n.3, 2023 Tex. App. LEXIS 3356, at *7 n.3.
Id.
See Ex parte Henderson, 565 S.W.2d 50, 56-57 (Tex. Crim. App. 1978) (op. on reh’g) (appellate court considers the complete record before the trial court to determine whether there was an abuse of discretion in the amount of bail set).
Id. at *1 ("Appellant Guillermo Gayosso was indicted for continuous sexual assault of a child and arrested on February 15, 2022.").
The public safety report appears to be confidential information, but a court of appeals can review it through the proper channels.
See Tex Gov’t Code §§ 411.083, 411.084.
Id. at *3 n.3 ("It is unclear whether the recently passed Damon Allen Act applies to appellant’s case … Assuming the Damon Allen Act applies to appellant’s case, the record does not refer to or address the public safety report.").
We refuse Appellant’s petition without prejudice. We grant review on our own motion, vacate the court of appeals’s decision, and remand the case to it for further proceedings consistent with this opinion.
Keller, P.J., filed a concurring opinion.
In its motion for rehearing, the State expresses concern that statements in the Court’s opinion "may imply that the public safety report will be added … to the appellate record should either party later seek discretionary review" and that they "may imply that a trial court must sua sponte include a copy of the public safety report … in the record." No such implications should be drawn from the Court’s opinion. The Court’s opinion observed that the report "appears to be confidential information" but can be reviewed "through the proper channels."1a This statement is a recognition that the public safety report that the trial court reviews will not be in the appellate record. Reviewing the report through the proper channels will entail the report being re-run in accordance with the requirements of the Damon Allen Act.2a A report re-run by an appellate court would also not be made a part of the appellate record, so it will not be before us on discretionary review, but this Court can re-run the report itself in conformity with the Act. And such a re-run report by this Court would also not be a part of the appellate record.
I join the Court’s decision to deny the State’s motion for rehearing.
Newell, J., filed a dissenting opinion in which Hervey, Richardson and Slaughter, JJ., joined.
We have made this case more complicated than it is, and we should fix that on rehearing. Appellant was arrested for the offense of continuous sexual abuse of a child on February 15, 2022, and the trial court set his bond at $500,000. Appellant filed a pretrial writ of habeas corpus seeking, in relevant part, to reduce his bond because he could not make his $500,000 bond and had been incarcerated for ninety days.1b The trial court denied habeas corpus relief pursuant to Article 17.1512b but re- duced Appellant’s bond to $250,000. Appellant appealed this ruling, in part, because he could not make the $250,000 bond. On this issue, the court of appeals held, in an unpublished opinion, that the trial court did not abuse its discretion in setting bail at $250,000.3b At no point before the trial court or on appeal did Appellant argue that the trial court abused its discretion in setting bail because it failed to consider a public safety report.
In a petition for discretionary review, Appellant argued, in part, that the court of appeals erred when it upheld the $250,000 bond because the relevant factors under Art. 17.15,4b Appellant argued, weighed in favor of a lower bond. Appellant’s argument has always been that the trial court improperly balanced statutory considerations, not that the trial court failed to consider all the relevant statutory factors.5bWe refused Appellant’s petition for discretionary review, and we should have stopped there. Our decision to grant and remand on our own motion has injected complications into the proceedings that could and should have been avoided.6b
In a footnote to its unpublished opinion, the court of appeals addressed the Damon Allen Act as part of its larger discussion of "applicable law":
It is unclear whether the recently passed Damon Allen Act applies to appellant’s case. See Damon Allen Act, 87th Leg., 2d C.S., ch. 11, Tex. Gen. Laws. The Act applies only to persons arrested on or after January 1, 2022. See Damon Allen Act, 87th Leg., 2d C.S., ch. 11, § 24. The record does not indicate when appellant was arrested. The act created a "public safety report system," developed and maintained by the Office of Court Administration of the Texas Judicial system, which compiles background information about defendants for use by magistrates at article 17.15 bail hearings. See Damon Allen Act, 87th Leg., 2d C.S., ch. 11, § 5, arts. 17.021, .022 (codified as Tex. Code Crim. Proc. arts. 17.021, .022). The Act clarifies a list of offenses that will preclude an individual from obtaining release on personal bond. See Damon Allen Act, 87th Leg., 2d C.S., ch. 11, § 5-7 (codified as Tex. Code Crim. Proc. arts. 17.03 (b-2), (b-3), .027). Assuming the Damon Allen Act applies to appellant’s case, the record
does not refer to or address the public safety report. However, it appears that the trial court considered appellant’s criminal background history, which would have been drawn in part from the public-safety-report system. There is no argument on appeal that the trial court did not consider all the circumstances and factors required by law. See Damon Allen Act, 87th Leg., 2d C.S., ch. 11, § 5. art. 17.028 (codified as Tex. Code Crim. Proc. art. 17.028) ("a magistrate shall order, after individualized consideration of all circumstances and of the factors require by Article 17.15(a), that the defendant be … granted surety or cash bond with or without conditions.").7b
This footnote is not necessary to the court of appeals’ decision. The court of appeals essentially said, "we’re not sure if the Damon Allen Act applies, but assuming it does, no one is saying it wasn’t followed." Had the court of appeals not included this footnote when delivering its opinion, I believe this Court would have been hard pressed to consider granting discretionary review on any matter regarding the Damon Allen Act.
In its footnote, the court of appeals noted that it was "unclear whether the recently passed Damon Allen Act" applied to Appellant’s case.8b But in the very next breath, the court of appeals noted that the Damon Allen Act applied to people arrested on or after January 1, 2022, and stated that the record did not indicate when Appellant was arrested.9b The court of appeals’ suggestion that it was unclear whether the Damon Allen Act applied to the case was clearly an oversight given that the court stated in the first sentence of its opinion that Appellant had been arrested on February 15, 2022, making the Act obviously applicable.10b
Still, this oversight should have been forgiven because, despite the court of appeals’ claimed uncertainty about whether the Damon Allen Act applied, the court of appeals nevertheless assumed that it applied and stated as much.11b It then briefly addressed whether the trial court had considered a "public safety report" as required by the Damon Allen Act when the trial court reduced Appellant’s bail.
Id.
The court of appeals noted that the record does not refer to or address the "public safety report" required by the "recently passed Damon Allen Act." In other words, the court of appeals recognized that the record was silent regarding the "public safety report." While there is some discussion in the record of an "NCIC" report regarding a pending removal action against Appellant, no mention is made of a public safety report. The trial judge notes at one point the "types" of things he considers when making a bail decision including criminal history, but he does not specifically mention specific sources for that information. The "public safety report" itself is not in the record, but it is created for the magistrate not the parties and it is treated as confidential just like an NCIC or TCIC report. Given the confidential nature of the reports themselves, the regulations when transferring criminal history record information between criminal justice agencies, the timeline for the destruction of those reports, and the fact that they are prepared for the benefit of the magistrate and not the parties, I believe it is not only possible but likely that there would not be any indication in the record that the trial court considered a public safety report. The lack of anything in the record establishing whether the trial court considered a public safety report does not indicate to me that the trial court failed to comply with the Damon Allen Act. As the court of appeals appears to have acknowledged, the record in this case is silent with regard to whether the trial court considered the public safety report. Nothing in the record establishes that the trial court affirmatively chose not to consider a public safety report despite an obligation to do so under the Damon Allen Act. Generally, when the record is silent, we presume the trial court complied with statutory requirements. We should not have presumed otherwise.
Id.
28 C.F.R. § 20.3(n) ("National Crime Information Center or ‘NCIC’ means the computerized information system … authorized by law … for the purpose of exchanging NCIC related information"); see also Ex parte Warren, 353 S.W.3d 490, 493 (Tex. Crim. App. 2011) (recognizing a defendant’s computer criminal history, authorized for use by the Texas Department of Public Safety, consists of information from the NCIC database, which houses the "cooperative federal-state system for the exchange of criminal history records").
Tex. Code Crim. Pro. Ann. art. 17.022(a) ("A magistrate considering the release on bail of a defendant … shall order that … the public safety report prepared under Subdivision (1) be provided to the magistrate as soon as practicable but not later than 48 hours after the defendant’s arrest"); Tex. Gov’t Code § 411.083 ("Criminal history record information maintained by the department [of public safety] is confidential information … The department shall grant access to criminal history record information to … only to the extent necessary for the officer of court administration to perform a duty imposed by law, including the development and maintenance of the public safety report system as required by Article 17.021, Code of Criminal Procedure, or to compile court statistics or prepare reports. The office of court administration may disclose criminal history record information obtained from the department … in a public safety report prepared under Article 17.022 …"). There was some discussion at the hearing regarding the confidentiality of the NCIC report with the judge indicating he could look at it because he had "taken his course."
See Tex. Gov’t Code § 411.083 ("Criminal history record information maintained by the [Department of Public Safety] is confidential information for the use of the department and, except as provided by this subchapter … may not be disseminated by the department."); Tex. Gov’t Code Ann. § 411.084(b) ("criminal history record information obtained from the Federal Bureau of Investigation may be released or disclosed only to a governmental entity or as authorized by federal law and regulations, federal executive orders, and federal policy"); Tex. Gov’t Code Ann. § 411, 086 ("The [Department of Public Safety] shall provide security measures and policies that are designed to guard against unauthorized release or dissemination of criminal history record information that is maintained or disseminated by the department."); Tex. Atty. Gen. OR2020-26762 ("[I]f the requestor is acting as an authorized representative of the named individual at issue, the sheriff’s office must withhold the named individual’s FBI number under section 552.101 of the Government Code in conjunction with section 411.083 of the Government Code.").
Tex. Gov’t Code Ann. § 411.089 ("A criminal justice agency is entitled to obtain from the department any criminal history record information maintained by the department about a person. Criminal history record information obtained … may be released by the criminal justice agency: to any other criminal justice agency, if such release is for a criminal justice purpose; and through audio response terminals and radio devices, whether digital or voice, if such dissemination is in accordance with rules promulgated by the department."); Tex. Gov’t Code Ann. § 411.087 ("The [Department of Public Safety] may provide access to state and national criminal history record information to qualified entities entitled to that information under 42 U.S.C. Section 5119a. The department must follow federal law and regulation, federal executive orders, and federal policy in releasing information under this subsection.").
Management Control Agreement Regarding Texas Department of Public Safety and FBI Criminal Justice Information Systems, Texas Dept. of Public Safety, https://www.dps. texas.gov/search?s=management + control + agreement ("Printed copies of criminal history data obtained from TCIC or NCIC must be afforded security to prevent any unauthorized access to or use of the data. When the printout is no longer needed, it must be filed in a secure file or destroyed."). Attached to its motion for rehearing, the State provides an unsworn declaration from an Office of Court Administration employee indicating that to comply with the Management Control Agreement Regarding DPS and FBI Criminal Justice Information Systems, the Public Safety Report System "purges the criminal history portion of every public safety report either 120 hours after the initial criminal history report is accessed or upon the submission of a completed bail form … for the individual whose criminal history was accessed, whichever occurs first." State Prosecuting Attorney’s Motion for Rehearing at 12 Exhibit 1, PD-0512-23 (filed Dec. 21, 2023); see also Ex pane Jones, No. 02-23-00164-CR, 2023 WL 7400722, at *2-3 (Tex. App.—Fort Worth Nov. 9, 2023, no pet.) (not designated for publication) ("It is this court’s understanding that under [the Office of Court Administration’s] policies for using the [Public Safety Report System], the court must destroy the report within a short time after the report’s preparation.").
Tex. Code Crim. Pro. Ann. art. 17.021 ("The Office of Court Administration of the Texas Judicial System shall develop and maintain a public safety report system that is available for use for purposes of Article 17.15."); see also Tex. Code Crim. Pro. Ann. art. 17.15 ("The amount of bail and any conditions of bail to be required in any case in which the defendant has been arrested are to be regulated by the court, judge, magistrate, or officer taking the bail …").
See, e,g., Jones, 2023 WL 7400722, at *2-3 (noting that the OCA policies for timely destruction of public safety reports may result in public safety reports no longer existing by the time that an appellate record is requested by the party appealing the denial of habeas relief on bail.).
See Word v. State, 206 S.W.3d 646, 651-52 (Tex. Crim. App. 2006) (recognizing that appellate courts should not presume error from a silent record).
That is because the court of appeals went on to observe that "[t]here is no argument on appeal that the trial court did not consider all the circumstances and factors required by law." Again, at no point before the trial court or on appeal did Appellant argue that he was entitled to a reversal of the trial court’s order because the trial court failed to consider the public safety report as required by the Damon Allen Act. Neither party made that argument on discretionary review. Even if there was some affirmative indication in the record that the trial court did not consider a public safety report, there was not only no objection in the trial court regarding its absence, there wasn’t any argument on appeal about the trial court’s failure to consider it.
Gayosso, 2023 WL 3530828, at *3 n.3 ("However, it appears that the trial court considered appellant’s criminal background history, which would have been drawn in part from the public-safety-report system, There is no argument on appeal that the trial court did not consider all the circumstances and factors required by law."). The "public safety report" is one of the factors required by law to be considered. Tex. Crim, Pro. Ann. art. 17.15(a)(6) ("The criminal history record information for the defendant, including information obtained through the statewide telecommunications system maintained by the Department of Public Safety and through the public safety report system developed under Article 17.021, shall be considered, including any acts of family violence, other pending criminal charges, and any instances in which the defendant failed to appear in court following release on bail."); see also Tex, Crim. Pro, Ann. art. 17.022(d)(1) ("The magistrate shall … consider the public safety report before setting bail[.]").
This is where we tripped over our own shoelaces. It is well-intentioned and laudable to remind the bench and bar about the Damon Allen Act. And an opinion concurring to the refusal of discretionary review but noting that the Damon Allen Act applies (as opposed to the court of appeals’ assumption that it applies) and detailing the requirements of that Act would have done the job nicely. We did not need to grant discretionary review on our own motion and remand the case for the court of appeals to consider the application of the Damon Allen Act because no one ever suggested that it had not been properly applied. Even so, the court of appeals clearly held that any possible complaint of an error regarding the Damon Allen Act was not preserved because no one argued on appeal that the trial court had not complied with the law. Indeed, in his petition for discretionary review, Appellant never mentioned the Damon Allen Act or that aspect of the court of appeals’ decision.
Gayosso, 2023 WL 3530828, at *3 n.3.
Even if the court of appeals erred by failing to formally state that error was not preserved, what is a remand going to accomplish? It is hard for me to see how any possible error could have harmed Appellant (assuming Appellant could credibly make an argument that error was preserved) as the most the public safety report might show is criminal history evidence to undercut Appellant’s argument for a lower bond. Remanding to the court of appeals for a more definitive holding on the issue of preservation or harm seems unnecessary.
See e.g., Ex parte Delong, ___ S.W.3d ___, 2024 WL 725111, at *8 (Tex. App.—Fort Worth Feb. 22, 2024, no pet. h.) (noting that any error in the trial court’s failure to consider a public safety report was harmless statutory error in part because the information presented to the trial judge in the public safety report could only hurt the defendant).
By assuming error from a silent record and remanding this case, we seem to have engrafted a "show your work" requirement into the statute without being asked to do so. Article 17.15 requires that a court setting bond shall consider the criminal history of the defendant, including a review of a public safety report. Nowhere does the statute require a recitation in the record from the trial court that it considered the public safety report. The statute does not require that the public safety report be placed in the record, and given that it is drawn from confidential criminal history reports, it seems unlikely that it would be included in the record. Indeed, it’s possible for a trial court to simply view the public safety report on a computer screen without ever even generating a physical report. Ordinarily, if a defendant wants to complain that a trial court erred, the defendant has the burden to object, present a sufficient record establishing error, and argue that error on appeal. Yet in this case, we seem to be assuming error and treating consideration of the public safety report as a structural requirement without any prompting from either party.I believe this will likely lead to sua sponte abatements by courts of appeals for findings and conclusions to clarify the record that will only result in opinions that hold the error was either harmless or not preserved.
See id. at * 1 (abating the appeal for findings of fact and conclusions of law regarding the trial court’s consideration of the public safety report); Jones, 2023 WL 7400722, at *3 (same); Cf. Ex parte Thomas, 623 S.W.3d 370, 380-81 (Tex. Crim. App. 2021) (rejecting a "show your work" requirement for case-specific fact findings in support of juvenile transfer orders where neither the Constitution nor statute governing transfer orders required such findings).
Tex. Crim. Pro. Art. Ann. 17.15(a)(6), as amended by Acts 2021, 87th Leg., 2nd C.S., ch. 11(S.B. 6) (effective Dec. 2, 2021).
See, e.g., Jones, 2023 WL 7400722, at *2-3 (recognizing the office of court administration’s policy for using public safety reports requires they be destroyed within a short time after the report’s preparation).
Tex. R. App. P. 33.1(a)(1) (As a prerequisite to presenting a complaint for appellate review, the record must show that […] the complaint was made to the trial court by a timely request, objection or motion[.]’); Saldano v. State, 70 S.W.3d 873, 886-87 (Tex. Crim. App. 2002) (recognizing that "[o]ur rules require defendants to object at trial in order to preserve an error for review on appeal" and that "objections promote the prevention and correction of errors"); London v. State, 490 S.W.3d 503, 508 (Tex. Crim. App. 2016) ("Generally, the appealing party carries the burden to ensure that the record on appeal is sufficient to resolve the issues presented. The failure to provide a sufficient appellate record precludes appellate review of claim.") (internal citations omitted).
But see Word, 206 S.W.3d at 651-52 (declining an invitation to assume error from a silent record).
See, e.g., Delong, 2024 WL 725111, at *1 (noting that the court of appeals abated the appeal for the trial court to make findings of fact and conclusions of law on the issue of whether the trial court considered the public safety report because the record was silent on that issue).
Our remand for the court of appeals to reconsider the silent record or seek out a public safety report "through proper channels" is inconsistent with this Court’s preference that complaints on appeal should be preserved in the trial court, supported by the record, and advanced by the complaining party. Further, the suggestion that the court of appeals can "re-run" a public safety report threatens to convert the standard of review for reviewing the trial court’s decision from an abuse of discretion standard to a de novo one, with the reviewing court conducting an independent review of a new public safety report to determine an appropriate bond amount. At the very least, it appears to conflict with our prohibition against appellate courts considering matters outside the record when evaluating a trial court’s order.
See, e.g., Tillman v. State, 354 S.W.3d 425, 442 (Tex. Crim. App. 2011) ("It is not for us to substitute our judgment for that of the trial court in determining abuse of discretion, but rather, we must determine whether the trial court has made a decision that is outside the zone of reasonable disagreement."). And while I acknowledge that the new report could show what was before the magistrate when it made its bail decision, it could also inject new information into the record before the court of appeals that wasn’t available to the trial court.
See Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004) ("An appellate court may not consider factual assertions that are outside the record … Moreover, an appellate court’s review of the record itself is generally limited to the evidence before the trial court at the time of the trial court’s ruling.") (emphasis added). Appellate courts re-running a public safety report would seem to controvert established appellate review principles limiting review to the record that was before the trial court. Id.
I would grant the State’s motion for rehearing, withdraw our opinion in this case, and refuse discretionary review outright. A concurring opinion to that order can highlight the requirements of the Damon Allen Act for the bench and bar. Because the Court does not choose this path, I dissent to the denial of the State’s motion for rehearing.