Opinion
14-22-00448-CR
11-19-2024
EX PARTE GUILLERMO GAYOSSO, Appellant
On Appeal from the 506th Judicial District Court Waller County, Texas Trial Court Cause No. 22-02-17997.
Panel consists of Justices Spain, Poissant and Wilson.
ABATEMENT ORDER
PER CURIAM
This court previously concluded that the trial court did not err in denying habeas-corpus relief and setting appellant's bail at $250,000. Although this court noted the record was silent as to whether the trial court reviewed the public safety report required by the Damon Allen Act, this court did not review a public safety report, seek clarification from the trial court, or consider error preservation or harm. The court of criminal appeals held that this court erred in that respect and remanded the case back for further consideration. Ex parte Gayosso, 685 S.W.3d 100, 102-03 (Tex. Crim. App. 2023).
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 Damon Allen 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). A magistrate shall "consider the public safety report before setting bail." Damon Allen Act, Tex. Code Crim. Proc. Ann. art. 17.022(d)(1).
The court of criminal appeals made clear that a trial court must review the report in making decisions about a defendant's bail: "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." Gayosso, 685 S.W.3d at 102-03. However, the record below does not reflect whether the trial court reviewed and considered the public safety report required by the Damon Allen Act.
On remand from the court of criminal appeals, we are faced with three options: (1) assume that the trial court considered the report; (2) assume the trial court did not consider the report and consider preservation and harm; or (3) ask the trial court for clarification about whether it considered the report. Although silence in the record would normally call for this court to assume that the trial court followed the statutory requirements and considered the report, the court of criminal appeals in its Gayosso opinion clearly signaled that intermediate appellate courts should determine whether the trial court reviewed the public safety report or erred. Gayosso, 685 S.W.3d at 102-03; but see Word v. State, 206 S.W.3d 646, 651 (Tex. Crim. App. 2006) (when record is silent, appellate court presumes trial court complied with statutory requirements). Therefore, we abate this appeal so that the trial court can provide clarification.
As one of our sister courts, which already confronted similar silence in a trial court record, has explained, there is another concern we must consider: "[U]nder the security policies that govern access to the public safety report system, a judge must destroy a public safety report within a short time after its preparation, and it thus may be difficult-if not impossible-for the report to be included in the appellate record." Ex parte Delong, Nos. 02-23-00322-CR & 02-23-00323-CR, at *2 (Tex. App.-Fort Worth Dec. 18, 2023, order) (per curiam).
If the public safety report is not part of the appellate record, then an appellate court can only create a new report, which might materially differ from the report viewed by the trial court. It is thus not possible for this court to properly "consider the complete record that was before the trial court in determining whether the bail determination was an abuse of discretion." Gayosso, 685 S.W.3d at 102. Therefore, to avoid having to make assumptions about the trial court's ruling or substituting our judgment for that of the trial court, we order the trial court to make the findings described below.
We abate this appeal and order the trial court to file findings as follows: (1) whether the trial court considered the public safety report and if so (2) whether the report still exists, and, if the report does not exist, (3) when it was destroyed. The trial court's findings shall be completed by November 29, 2024. The trial court shall order the clerk of the trial court to prepare, certify, and file a supplemental clerk's record containing the findings of fact with the clerk of this court by December 6, 2024.
The appeal is abated, treated as a closed case, and removed from this court's active docket. The appeal will be reinstated on this court's active docket when the supplemental clerk's record is filed.