Opinion
05-22-01229-CR
06-20-2023
EX PARTE DAMON GOOD
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-05643-2022
Before Justices Molberg, Reichek, and Breedlove
MEMORANDUM OPINION
KEN MOLBERG JUSTICE.
Appellant Damon Good was arrested for the offense of indecency with a child by contact. Good filed an application for writ of habeas corpus seeking, among other things, to be released from a bond condition requiring him to wear a GPS monitoring device. The trial court denied Good this relief and, here, he appeals the denial. We affirm in this memorandum opinion.
Background
In September 2022, Good was arrested for the offense of indecency with a child by contact. See Tex. Penal Code § 21.11(a)(1). On October 11, 2022, Good filed an application for writ of habeas corpus seeking to modify his conditions of bond. He alleged the conditions prohibited him from using computers or the Internet, possessing a firearm, and traveling outside Collin County and counties contiguous to it. He was also required to have an electronic ankle monitor. Good argued he had a "right to engage in protected First Amendment activity," challenged the firearm possession prohibition on Second Amendment grounds, and "demand[ed] proof as to why his travel must be restricted." Finally, he "request[ed] proof the ankle monitor served a legitimate government purpose," and asserted it constituted a "continuous search without probable cause." Good requested he be released from the ankle monitor bond condition.
Two weeks later, Good filed a brief in support of his habeas application. He argued he was prevented from attending church services by a bond condition prohibiting him from being around minors or at places where they might congregate. He requested this condition be modified to allow him to attend church "as long as he is chaperoned by another adult." Good argued he needed to use computers and the Internet for work, shopping, banking, and accessing medical services, and he argued the First Amendment protected his right to use social media. Good requested the State to show "some minimal nexus between the allegations against him and why he should not be allowed to exercise his Second Amendment right to possess a firearm." Finally, as pertinent here, Good contended regarding the ankle monitor:
[A] GPS tracking device is a continuous search by any legal definition without probable cause a particular offense has or even would occur. The State can further not show how any person is safer because [Good]
is being tracked. The GPS device[] is further cumbersome, embarrassing, and violates [Good's Eighth] Amendment right from being free from cruel and unusual punishment. The GPS device alone could cost [Good] his job because it is, in essence, notification to any person observing [Good] he is a criminal not to be trusted.
In support of this argument, Good cited an affidavit attached to the brief, in which, concerning the monitor, he stated:
The leg monitor is cumbersome, embarrassing, and tracks my every movement. I don't understand how I can be tracked at all times and how it would make anyone any safer. I work in Downtown Dallas but would like the ability to go elsewhere and not be arbitrarily tracked by the government. If my employer ever saw my leg monitor they would fire me on the spot.
The State responded in opposition, noting Good was charged with committing the second-degree felony of indecency with a child by sexual contact against his adopted daughter. The State referred to the investigating detective's probable cause affidavit, which was included in its entirety with its response, in stating that Good admitted to touching the fifteen-year-old complainant's breasts under her clothes. The State alleged Good afterwards called the complainant and asked her to keep the incident secret, and the "[complainant] felt scared and as though [Good] had threatened her after this call." The State argued the application should be denied given the nature of the offense and the relationship between Good and the complainant, noting it was particularly opposed to removing the electronic leg monitor condition because Good was "the adoptive father and knows where the [complainant] resides and has had contact with [her] post offense."
On November 7, the trial court granted Good's application in part and amended the bond conditions, but kept in place the requirement for Good to "maintain a GPS leg monitor." The trial court ordered the following be Good's "exclusive and sole bond conditions":
1. Not have direct or indirect contact with the complainant including oral, written, telephonic, or personal communication. He is not to be within 500 feet of complainant, complainant's residence, school, playground, employment, or any facility that provides instruction for minor children. He shall not initiate, maintain, or establish direct or indirect contact with any minor child 17 years of age or younger, related or unrelated to him;
a. [Good] shall be allowed to attend church service or study group so long as he is accompanied by another adult;
2. Not engage in conduct directed toward the complainant or any member of complainant's family or household, including following the person, conduct that is reasonably likely to harass, annoy, alarm, abuse, torment or embarrass;
3. Not possess, have access to, consume any controlled substances, dangerous drugs, or other substances that have not been previously prescribed by a licensed physician;
4. Not possess, watch, make or have access to any pornographic or obscene material, including but not limited to movies, DVD's, CD's, sexual toys or any other gratification material or objects;
5. Not commit an offense against the laws of this State or any other State of the United States;
6. Work faithfully at suitable employment and support dependents, if any;
7. Remain in Collin County or Contiguous Counties;
8. Surrender any passports and shall not maintain an active passport.
9. Maintain a GPS leg monitor.
A week later, Good filed a notice of appeal, stating his intent to appeal from the trial court's denial of his request to remove the GPS monitor.
Discussion
On appeal, Good argues the trial court abused its discretion in denying his writ application to the extent it sought to remove the bond condition requiring him to wear a GPS monitor. He argues the monitor constitutes a continuous search and must therefore be reasonable to pass muster under the Fourth Amendment.
We review a trial court's imposition of bond conditions for an abuse of discretion. Ex parte Allen-Pieroni, 524 S.W.3d 252, 255 (Tex. App.-Waco 2016, no pet.). The appellant bears the burden of demonstrating the trial court abused its discretion in imposing a specific condition. Id. In reviewing the trial court's decision, we view the facts in the light most favorable to the trial court's ruling. Ex Parte Blair, No. 05-06-01220-CR, 2006 WL 3042137, at *1 (Tex. App.-Dallas Oct. 27, 2006, no pet.) (not designated for publication).
Courts have inherent power to place restrictive conditions on the granting of bail. Ex parte Anunobi, 278 S.W.3d 425, 427 (Tex. App.-San Antonio 2008, no pet.). This power is codified in the code of criminal procedure: A magistrate may impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community. Tex. Code Crim. Proc. art. 17.40. The code also expressly authorizes electronic monitoring as a condition of bond. See id. arts. 17.43(a) (authorizing "as a condition of release on personal bond that the defendant submit to home curfew and electronic monitoring"), 17.44 (authorizing "as a condition of release on bond that the defendant submit to" "home confinement and electronic monitoring").
The fixing of bail for any defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant. Stack v. Boyle, 342 U.S. 1, 5, 72 S.Ct. 1, 4, (1951); Ex parte Cole, No. 01-20-00423-CR, 2020 WL 5823290, at *1 (Tex. App.-Houston [1st Dist.] Oct. 1, 2020, pet. ref'd) (mem. op., not designated for publication) ("primary purpose of pretrial bail is to secure the defendant's attendance at trial"). Pretrial bail conditions must also be reasonable and related to the safety of the alleged victim or the community. Anunobi, 278 S.W.3d at 427. The "fountainhead of constitutionality of bail conditions" is that they be based upon bail's purposes. See Estrada v. State, 594 S.W.2d 445, 447 (Tex. Crim. App. 1980) (plurality op.). Such conditions may not impinge unreasonably upon rights guaranteed by the constitution. Id. The term "reasonable" in relation to conditions authorized by article 17.40 encompasses these constitutional considerations. See id.
Although the court of criminal appeals later questioned Estrada, it did so with respect to its applicability to conditions on bail pending appeal. See Ex parte Anderer, 61 S.W.3d 398, 404-05 (Tex. Crim. App. 2001). Regarding pretrial bonds, the court noted Estrada "provide[d] valuable guidance for evaluating conditions . . . ." Id. at 405.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." U.S. Const. amend. IV. In arguing the ankle monitor at issue here is an unlawful search under the Fourth Amendment, Good relies on Grady v. North Carolina, 575 U.S. 306, 310 (2015) (per curiam), where the United States Supreme Court concluded North Carolina's program requiring lifelong satellite-based monitoring for recidivist sex offenders "effects a Fourth Amendment search." The court noted the program was plainly designed to obtain information, and it did so by physically intruding on a subject's body-by requiring the wearing of a tracking device. Id. A search violates the Fourth Amendment, however, only when it is unreasonable: "The Fourth Amendment prohibits only unreasonable searches. The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations." Id. The court thus reiterated the principle that reasonableness is the "ultimate touchstone of the Fourth Amendment." See Kentucky v. King, 563 U.S. 452, 459 (2011).
Assuming the applicability of Grady here, we will consider the reasonableness of the ankle monitor bond condition under the circumstances presented in this case. We first observe that Good does not challenge on appeal the bond condition prohibiting him from being within 500 feet of the complainant or her residence or school, or the condition requiring him to remain in Collin County or the counties contiguous to it. Of course, the requirement to wear a monitoring device directly relates to these two conditions, which respectively relate to the safety of the complainant and securing Good's attendance at trial. The nature and purpose of the monitor in this case-where Good is charged with a second-degree felony allegedly committed against a vulnerable minor, whom he allegedly contacted after the offense-is to protect the complainant and the community and to secure Good's presence at trial. See Ex parte Sykes, No. 01-22-00903-CR, 2023 WL 3357672, at *4 (Tex. App.-Houston [1st Dist.] May 11, 2023, no pet. h.) (mem. op., not designated for publication) (citing Tex. Code Crim. Proc. arts. 17.40(a), 17.43(a), 17.44) (concluding electronic monitoring is a recognized means of protecting the safety of the community while an accused awaits trial); Ex parte Love, No. 02-21-00017-CR, 2021 WL 2753538, at *4 (Tex. App.-Fort Worth July 1, 2021, pet. ref'd) (mem. op., not designated for publication) (same); Ex parte DeLeon, No. 13-21-00098-CR, 2021 WL 3775657, at *3 (Tex. App.-Corpus Christi-Edinburg Aug. 26, 2021, no pet.) (mem. op., not designated for publication) ("Given the very serious nature of the charge against [the appellant] and the potential for her to flee, the GPS ankle monitor was not itself an unreasonable bond condition under these circumstances."). Thus, we conclude, on the facts of this case, the ankle monitor is a reasonable bond condition. In reaching this conclusion, we find that the ankle monitor condition does not intrude on reasonable expectations of privacy to an extent that renders the condition unreasonable. As the Supreme Court stated in Maryland v. King, "Once an individual has been arrested on probable cause for a dangerous offense . . . his or her expectations of privacy and freedom from police scrutiny are reduced." 569 U.S. 435, 463 (2013).
A magistrate shall require as a condition of bond for a defendant charged with certain offenses committed against a child younger than eighteen years old, including offenses under Chapter 21, as here, that the defendant not: (1) directly communicate with the alleged victim of the offense; or (2) go near a residence, school, or other location, as specifically described in the bond, frequented by the alleged victim. Tex. Code Crim. Proc. art. 17.41.
We also reject Good's argument that the trial court abused its discretion by requiring the ankle monitor because the State failed to put forward evidence establishing a nexus between the ankle monitor condition and the purposes of bail. It was Good's burden to show the trial court abused its discretion in imposing the ankle monitor bond condition. See Anunobi, 278 S.W.3d at 428. Further, nothing in the record before us indicates Good objected to the trial court hearing his pretrial habeas application by submission without an evidentiary hearing. Cf. Ex parte Koons, No. 09-19-00088-CR, 2019 WL 3938000, at *3 (Tex. App.-Beaumont Aug. 21, 2019, pet. ref'd) (mem. op., not designated for publication) (rejecting constitutional challenge to bond condition when habeas applicant failed to present evidence supporting the challenge).
We conclude the trial court did not abuse its discretion in imposing the ankle monitor as a condition of bond because, on the record before us, Good failed to show the monitor constitutes an unreasonable search under the Fourth Amendment. See Ex parte Buks, 654 S.W.3d 516, 523 (Tex. App.-Houston [14th Dist.] 2022, no pet.) (rejecting Fourth Amendment challenge to bond condition requiring satellite monitoring because condition served the purpose of protecting the community in case where the appellant was charged with sexual offense against child); Ex parte Herrera, No. 05-14-00598-CR, 2014 WL 4207153, at *7 (Tex. App.-Dallas Aug. 26, 2014, no pet.) (mem. op., not designated for publication) (rejecting contention that electronic monitoring, in case where the appellant was accused of sexual offenses against children, was unreasonable, excessive, or oppressive).
Conclusion
Good's sole issue on appeal is overruled. We affirm the trial court's order partially denying Good's pretrial application for writ of habeas corpus.
JUDGMENT
Based on the Court's opinion of this date, the order of the trial court is AFFIRMED.
Judgment entered.