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Ex parte Mohamed

Court of Appeals of Texas, Sixth District, Texarkana
Aug 25, 2021
No. 06-21-00040-CR (Tex. App. Aug. 25, 2021)

Opinion

06-21-00040-CR

08-25-2021

EX PARTE MOHAMMED S. MOHAMED


Do Not Publish

Date: Submitted: August 9, 2021.

On Appeal from the 338th District Court Harris County, Texas Trial Court No. 1717783

Before Morriss, C.J., Burgess and Stevens, JJ.

MEMORANDUM OPINION

Josh R. Morriss, III Chief Justice

Mohammed S. Mohamed was indicted for solicitation of capital murder, a first-degree felony, and the 338th Judicial District Court of Harris County reduced his bail from $1,000,000, first to $855,000, and later to $750,000. See TEX. CODE CRIM. PROC. ANN. art. 17.15. On appeal, Mohamed complains that the trial court abused its discretion when it refused to further reduce his bail. Because we find that the trial court did not abuse its discretion, we affirm the trial court's order.

Originally appealed to the First Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001. We follow the precedent of the First Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.

We review an order denying a petition for a writ of habeas corpus under an abuse-of-discretion standard. Ex parte Gibson, Nos. 01-20-00503-CR, 01-20-00505-CR, 2021 WL 1181200, at *3 (Tex. App.-Houston [1st Dist.] Mar. 30, 2021, no pet.) (mem. op., not designated for publication) (citing Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981)); see In re Hulin, 31 S.W.3d 754, 755 (Tex. App.-Houston [1st Dist.] 2000, no pet.). We examine the record to determine whether the trial court considered the relevant statutory and common-law factors and set a bail amount that was not excessive. See Gibson, 2021 WL 1181200, at *3. We will find an abuse of discretion if the trial court applies "an erroneous legal standard, or when no reasonable view of the record could support the trial court's conclusion under the correct law and facts viewed in the light most favorable to its legal conclusion." DuBose v. State, 915 S.W.2d 493, 497-98 (Tex. Crim. App. 1996), overruled on other grounds by Guzman v. State, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997). "It is the defendant's burden to show that bail is excessive." In re Hulin, 31 S.W.3d at 759.

"Although unpublished opinions have no precedential value, we may take guidance from them 'as an aid in developing reasoning that may be employed.'" Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.-Texarkana 2017, pet. ref'd) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.-Amarillo 2003, pet. ref'd)).

Article 17.15 of the Texas Code of Criminal Procedure gives the trial court discretion in setting bail and provides that it should consider the following factors:

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. ANN. art. 17.15; see In re Hulin, 31 S.W.3d at 758-59. In addition,
case law provides that courts may also consider the following factors in setting bail: (1) the defendant's work record; (2) the defendant's family and community ties; (3) the defendant's length of residency; (4) the defendant's prior criminal record; (5) the defendant's conformity with previous bond conditions; (6) the existence of other outstanding bonds, if any; and (7) the aggravating circumstances alleged to have been involved in the charged offense.
Gibson, 2021 WL 1181200, at *3 (citing Rubac, 611 S.W.2d at 849-50). "The primary purpose for setting bail is to secure the presence of the defendant in court at his trial." Id. at *2 (citing Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977); Cooley v. State, 232 S.W.3d 228, 234 (Tex. App.-Houston [1st Dist.] 2007, no pet.)).

"The nature of the offense and the punishment that may be imposed are the primary factors considered in assessing the reasonableness of bail." Id. at *5 (citing Rubac, 611 S.W.2d at 849; In re Hulin, 31 S.W.3d at 759). If the nature of the offense is serious and a lengthy sentence is probable, bail 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." In re Hulin, 31 S.W.3d at 761.

The nature of the charged offense is serious. Mohamed is charged with solicitation of capital murder, a first-degree felony with a minimum sentence of five years and a maximum sentence of ninety-nine years or life imprisonment, plus a fine of up to $10,000. See TEX. PENAL CODE ANN. §§ 12.32, 15.03(d)(1).

The State accused Mohamed of "request[ing], command[ing] and attempt[ing] to induce F. Haselberger, hereafter called the solicitee, to engage in specific conduct, namely, the murder for remuneration of F. Salazar," while having "intent that the offense of capital murder be committed." The State further alleged that "the circumstances surrounding the conduct of the solicitee as the Defendant believed them to be[] would constitute and make the solicitee a party to the offense of capital murder."

The State moved for a high bond because Mohamed hired an undercover officer who posed as a hitman to murder a peace officer, was believed to have over two million dollars in assets, and was considered a possible flight risk due to his close ties to Egypt.

We may consider the probable cause statement, which was sworn to by T. Seagler, an officer with the Houston Police Department (HPD). See Ledet v. State, No. 01-09-01040-CR, 2010 WL 1840251, at *4 (Tex. App.-Houston [1st Dist.] May 6, 2010, no pet.) (mem. op., not designated for publication); Munoz v. State, No. 01-08-00223-CR, 2009 WL 214505, at *1 (Tex. App.-Houston [1st Dist.] Jan. 29, 2009, no pet.) (mem. op., not designated for publication).Seagler swore that a confidential informant (CI) told him that Mohamed asked him to find someone to kill a peace officer who had issued Mohamed municipal citations for violating city codes at his business. Seagler said that his research led him to believe that HPD Officer F. Salazar was Mohamed's possible target. After the CI agreed to assist Seagler with the investigation, he met with Mohamed on several occasions while carrying a camera that recorded their conversations. Seagler swore that his review of the recording demonstrated that Mohamed asked the CI to help him find someone to kill Salazar after Ramadan and told him that he would pay the hitman a $500 down payment and the balance after proof of the kill. Francisco Haselberger, an undercover HPD officer, was introduced to Mohamed by the CI as the purported hitman. Seagler averred that Mohamed paid Haselberger $500 on camera and told him he would receive $1,500 after providing photos of Salazar's dead body. Seagler staged photos of Salazar's "body" in a ditch and provided them along with a staged police identification card to the CI to show to Mohamed. According to Seagler, Mohamed agreed to meet Haselberger to pay him the balance after seeing the photographs and was arrested at the meeting while carrying $1,500 in his pocket.

Although unpublished cases have no precedential value, we can be guided by them as aids "in developing reasoning that may be employed." Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.-Amarillo 2003, pet. ref'd).

After the trial court found probable cause, it set bail at $1,000,000, but later reduced it twice, first to $855,000 and then to $750,000. On September 21, 2018, the grand jury returned an indictment against Mohamed for solicitation of capital murder.

A $750,000.00 bail amount "is within the range of bail amounts that have been upheld for other first-degree felonies." Ex parte Goodson, No. 01-15-00288-CR, 2015 WL 1868771, at *3-4 (Tex. App.-Houston [1st Dist.] Apr. 21, 2015, no pet.) (mem. op., not designated for publication) (citing O'Brien v. State, No. 01-12-00176-CR, 2012 WL 2922545, at *1-5 (Tex. App.-Houston [1st Dist.] July 5, 2012, no pet.) (mem. op., not designated for publication) (no abuse of discretion in refusal to reduce bail set at $750,000 for first-degree felony charge of theft of property valued at over $200,000); Tran v. State, No. 01-06-00035-CR, 2006 WL 1771815, at *1-5 (Tex. App.-Houston [1st Dist.] June 29, 2006, no pet.) (mem. op., not designated for publication) (upholding bail set at $800,000 for cocaine possession and $500,000 for marihuana possession)); see Ex parte Pulte, No. 2-03-202-CR, 2003 WL 22674734, at *2 (Tex. App.-Fort Worth Nov. 13, 2003, no pet.) (mem. op., not designated for publication) ($1,000,000 bail not excessive for solicitation of murder).

See Carillo, 98 S.W.3d at 794.

The probable-cause statement showed that Mohamed, on camera, solicited an undercover HPD officer to commit the capital murder of another officer. At this early stage regarding this alleged first-degree offense, probable video evidence of solicitation and the nature of the alleged intended victim suggest that Mohamed may very well be looking at a first-degree sentence.Although the bail is high, the Houston First Court of Appeals, from which this case was transferred, has determined that such a bail is within the range for first-degree felonies. As a result, a review of the primary factors considered in assessing the reasonableness of bail leads us to conclude that the trial court did not abuse its discretion in setting a $750,000 bail.

Even though solicitation of capital murder is an offense with or without an actual murder, Mohamed argues that the fact that Salazar was never murdered mitigates his crime. While this could be a factor in the jury's determination of the appropriate punishment, the fact that Salazar is a HPD officer could also affect the jury's determination.

Even so, Mohamed argues that the evidence showed he would be unable to make this bail. "A defendant's ability to make bail is only one factor to be considered in determining the appropriate amount of bail." Gibson, 2021 WL 1181200, at *3 (citing TEX. CODE CRIM. PROC. ANN. art. 17.15(4); Ex parte Vance, 608 S.W.2d 681, 683 (Tex. Crim. App. 1980) ("It is established that the ability or inability of an accused to make bail does not alone control in determining the amount of bail.")). "Merely because a defendant cannot make the bail set by the trial court does not automatically render the bail excessive." Id. (citing Vance, 608 S.W.2d at 683; Ex parte Scott, 122 S.W.3d 866, 870 (Tex. App.-Fort Worth 2003, no pet.); Maldonado v. State, 999 S.W.2d 91, 96 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd)).

Mohamed's pro se motion for bond reduction claimed that he was indigent, but the record does not clarify whether that was the case or whether his counsel was appointed or retained. In any case, "[i]t is well settled that the ability of an accused to make bail does not itself control the amount of bail, even if the accused is indigent." Id. (quoting Wright v. State, 976 S.W.2d 815, 820 (Tex. App.-Houston [1st Dist.] 1998, no pet.) (citing Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. 1980) ("Although the ability to make bail is a factor to be considered, ability alone, even indigency, does not control the amount of bail."))).

At the bail reduction hearing, Brittany Glenn testified that she worked for Mohamed for almost four years in his shipping and receiving business. Glenn testified that, because Mohamed ran the business, it suffered greatly after he went to jail. Glenn testified that, while Mohamed's wife, Sara, took over the business, she struggled to pay the office rent and eventually had to terminate Glenn's employment.

Sara testified that the family could not put up $855,000 in bail despite her efforts to obtain a bond from a bonding company. Sara did say that she could make a $50,000 bail. Sara testified that she was a housewife before Mohamed went to jail, was forced to take over her husband's business, and tried to keep it running. Sara said that the office-building owner evicted the business, that she temporarily moved their "customers' belongings to a new location," and that the business was no more. Sara testified that Mohamed had the business for ten years and was a travel agent before that. According to Glenn, Mohamed's customers were loyal and had a lot of trust in him.

Cheryl Ford, a clerk at Godfather's Bail Bondsman, testified that they could not help because Mohamed's $855,000 bond was too high and that Sara did not have anything. Ford testified that she believed a $50,000 bond was all they could afford.

"To show that he is unable to make bail, a defendant generally must show that his funds and his family's funds have been exhausted." Id. at *4 (citing Milner v. State, 263 S.W.3d 146, 149 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (citing Ex parte Willman, 695 S.W.2d 752, 754 (Tex. App.-Houston [1st Dist.] 1985, no pet.))). "Unless he has shown that his funds and those of his family have been exhausted, a defendant must usually show that he made an unsuccessful effort to furnish bail before bail can be determined to be excessive." Id. (citing Milner, 263 S.W.3d at 149; Willman, 695 S.W.2d at 754; Ex parte Williams, 467 S.W.2d 433, 434 (Tex. Crim. App. 1971)).

Mohamed's second bail reduction motion acknowledged that the State had presented a witness at a prior bond hearing who testified that his business "had inventory just under one million dollars." Sara testified that the business was evicted and inventory still in her possession was moved. She also showed that she had tried but failed to obtain an $855,000 bond. Even so, Mohamed, who had a ten-year, successful business, presented no evidence about the family's personal assets. Although Ford said that Sara had nothing, Mohamed did not show that his funds had been exhausted. Moreover, Ford's testimony that she believed $50,000 was the most Mohamed could afford was insufficient under the precedent of the Houston First Court of Appeals to demonstrate an inability to post bail. Goodson, 2015 WL 1868771, at *4 (citing Ex parte Ruiz, 129 S.W.3d 751, 754 (Tex. App.-Houston [1st Dist.] 2004, no pet.) (bail bondsman's testimony of "largest bond" defendant could make did not carry burden to establish inability to make bail); Ex parte Lorente, 420 S.W.3d 884, 889 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (testimony that appellant's family and friends spoke with bail bondsman and learned largest amount they could post was insufficient to carry burden of demonstrating inability to make bail)). For these reasons, this factor also favors a finding that the trial court did not abuse its discretion in setting bail at $750,000.

Mohamed's brief indicated that his business was successful and that he supported his wife, four minor children, and mother-in-law before being jailed.

Next, there was no evidence about whether Salazar currently feared Mohamed. That said, the trial court could have reasoned that, if the allegations were true, Mohamed remained a threat to both Salazar and the community. This factor also weighs against an abuse-of-discretion finding.

The remaining factors favor Mohamed. The record reveals no prior convictions and no previous bonds. Mohamed, Sara, and his five children were all United States citizens. Mohamed and Sara had lived in Harris County for over sixteen years, and Sara's parents lived in Harris County as well. Sara's father was an Imam at a local mosque, and the evidence showed that the family had many connections with the community. Mohamed was also under the care of a doctor in Harris County for several health issues. Glenn testified that the community would be safe if Mohamed were released, and she believed him responsible enough to return to court when needed. Sara testified that, if released, Mohamed would attend trial settings, would rejuvenate the business, and would comply with any bond conditions, including wearing an ankle bracelet.

Based on this record, we find that Mohamed has not carried his burden to establish that the bail amount was excessive. Further, while the bail amount is high, we cannot say that the trial court did not consider the relevant statutory and common-law factors and set the bail amount accordingly. As a result, we cannot find on this record that the trial court abused its discretion based on the precedent of the Houston First Court of Appeals. We overrule Mohamed's sole issue.

For the reasons stated, we affirm the trial court's order.


Summaries of

Ex parte Mohamed

Court of Appeals of Texas, Sixth District, Texarkana
Aug 25, 2021
No. 06-21-00040-CR (Tex. App. Aug. 25, 2021)
Case details for

Ex parte Mohamed

Case Details

Full title:EX PARTE MOHAMMED S. MOHAMED

Court:Court of Appeals of Texas, Sixth District, Texarkana

Date published: Aug 25, 2021

Citations

No. 06-21-00040-CR (Tex. App. Aug. 25, 2021)