Date: 11-23-2022

Case Style:

Ex parte Jorge Mazuera

Possession of child pornography

Case Number: NO. 01-21-00612-CR NO. 01-21-00613-CR NO. 01-21-00614-CR NO. 01-21-00615-CR NO. 01-21-00616-CR NO. 01-21-00617-CR NO. 01-21-00618-CR NO. 01-21-00619-CR NO. 01-21-00620-CR NO. 01-21-00621-CR

Judge: The Honorable Kim K Ogg Jessica A. Caird Melissa H. Stryker

Court:

First Court of Appeals Houston, Texas

On appeal from the 338th District Court of Harris County

Plaintiff's Attorney: The Honorable Kim K Ogg
Jessica A. Caird
Melissa H. Stryker

Defendant's Attorney: Houston, TX - Best Criminal Defense Lawyer Directory

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Houston, Texas – Criminal Defense lawyer represented defendant with challenging the trial court’s orders denying in part his pretrial applications for writ of habeas corpus.

Appellant is charged with ten separate felony offenses of possession of child
pornography.2

Pretrial Applications for Writ of Habeas Corpus
Appellant filed pretrial applications for writ of habeas corpus in his ten trial
court cases, arguing that his confinement and restraint were illegal because he was
“entitled to bail that he c[ould] make.”3

According to appellant, he had “significant ties to the community and [had] been a resident of Harris County, Texas for
[thirty-three] years.” Before his arrest in August 2021, appellant was living with his
mother in Spring, Texas. Appellant had “no ties outside of the [United States] and
[had] only been overseas while he was enlisted in the United States Marine Corps.”
Appellant was honorably discharged from the United States Marine Corps in 2014
and then “served an additional [four] years in the Army National Guard” before
receiving an honorable discharge in 2018. Since that time, appellant had “attended
college and . . . started a job working as a ramp attendant for FedEx.” Appellant
asserted that he had “no prior criminal history and all charges [against him arose]
out of the same transaction.” Because appellant had “no criminal history and ha[d]
strong ties to the community,” he argued that he was “not a danger to the community
or a flight risk.” According to appellant, the trial court could “set conditions of [his
release on] bond . . . such as [a] curfew, electronic monitoring, and restriction on
3 See TEX. CODE CRIM. PROC. ANN. art. 17.15; see also id. art. 1.08 (“The writ of
habeas corpus is a writ of right and shall never be suspended.”); Ex parte Weise, 55
S.W.3d 617, 619 (Tex. Crim. App. 2001) (when faced with excessive bail, defendant
has right to assert his constitutional right to reasonable bail through use of
application for pretrial writ of habeas corpus).
4
access to the internet.” Appellant requested that the trial court set bail at $10,000
for each of the ten felony offenses with which he is charged for a total bail amount
of $100,000. Appellant attached a declaration to his pretrial applications for writ of
habeas corpus “declar[ing] under penalty of perjury” that the statements made in his
applications were “true and correct.”
Hearing
The trial court held a hearing on appellant’s pretrial applications for writ of
habeas corpus. At the hearing, Corina Camarillo, appellant’s former girlfriend and
friend, testified that she had known appellant for “at least[] three years.” Appellant
was from Houston, Texas and was thirty-four years old. Appellant graduated from
high school in Spring and had attended “some college” in the area. Appellant did
not have any significant ties to foreign countries.
According to Camarillo, appellant served in the United States Marine Corps
for four years before being honorably discharged. He then served in the Army
National Guard for four years before being honorably discharged.4
Appellant did
not have a criminal history. Before being taken into custody, appellant worked at
FedEx “for a good amount of time.” Camarillo stated that appellant was “a
4 The trial court admitted into evidence at the hearing on appellant’s pretrial
applications for writ of habeas corpus documents reflecting appellant’s honorable
discharges from the United States Marine Corps and the Army National Guard.
5
law-abiding citizen.” Appellant was employed when Camarillo initially met him
three years ago.
In Camarillo’s opinion, appellant was not a “flight risk,” and she believed that
he would “abide by” any bond conditions that the trial court imposed. Camarillo
stated that she had talked to appellant’s family and the family could not afford the
current bail amount that was set. Camarillo stated that appellant’s family was a “blue
collar family” and “income is kind of a set issue.” Camarillo believed that bail set
in the amount of $10,000 in each of appellant’s ten cases would be more affordable
for appellant’s family.
In his closing argument at the hearing, appellant’s trial counsel noted that he
and the State had agreed for bail to be set at $15,000 for each of the ten felony
offenses with which appellant is charged, and counsel requested that the trial court
set bail in accord with the agreement. The State, in its closing argument, stated that
it had agreed with appellant’s trial counsel for bail to be set at $15,000 for each of
the ten felony offenses with which appellant is charged and also requested that the
trial court set bail in accord with the agreement. The State explained that it based
its request on appellant’s lack of criminal history, his employment with FedEx, “his
community ties with this family being in Spring,” his military history, and the fact
that appellant had been in custody since August 2021. At the conclusion of the
hearing, the State “ask[ed] for $15,000 for each bond – for each case.”
6
Trial Court’s Ruling
After the hearing on appellant’s pretrial applications for writ of habeas corpus,
the trial court granted appellant’s applications in part and denied appellant’s
applications in part. The trial court set appellant’s bail at $75,000 for each of the ten
felony offenses of possession of child pornography with which appellant is charged
for a total bail amount of $750,000.
Standard of Review
In a habeas proceeding for a claim of excessive bail, we review a trial court’s
decision about the amount of bail for an abuse of discretion. See Ex parte Rubac,
611 S.W.2d 848, 850 (Tex. Crim. App. 1981); Montalvo v. State, 315 S.W.3d 588,
592 (Tex. App.—Houston [1st Dist.] 2010, no pet.). A trial court abuses its
discretion if it acts without reference to any guiding rules or principles. Ex parte
Hunt, 138 S.W.3d 503, 505 (Tex. App.—Fort Worth 2004, pet. ref’d). A reviewing
court will not disturb a decision of the trial court if that decision is within the zone
of reasonable disagreement. Ex parte Tata, 358 S.W.3d 392, 397 (Tex. App.—
Houston [1st Dist.] 2011, pet. dism’d). We acknowledge that an abuse-of-discretion
review requires more of the appellate court than simply deciding that the trial court
did not rule arbitrarily or capriciously. Montalvo, 315 S.W.3d at 593. An appellate
court must instead measure the trial court’s ruling against the relevant criteria by
which the ruling was made. Id. It is not an abuse of discretion for the trial court
7
merely to decide a matter within its discretion in a different manner than the
appellate court would under similar circumstances. Ex parte Miller, 442 S.W.3d
478, 481 (Tex. App.—Dallas 2013, no pet.).
Excessive Bail
In his sole issue, appellant argues that the trial court erred in partially denying
him habeas relief because the trial court should have reduced and set a reasonable
bail amount in each of appellant’s ten cases. Appellant asserts that “[s]ufficient
evidence was presented to the [trial] court to show that [he was] not a flight risk,
[was] not a danger to the community, and [had] sufficient ties to the community.”
The $75,000 bail amount set by the trial court for each of appellant’s ten felony
offenses combines for a total bail amount of $750,000 and “acts as an instrument of
oppression.” And appellant notes that the State, at the hearing on his pretrial
applications for writ of habeas corpus, requested that the trial court set appellant’s
bail at $15,000 for each of appellant’s ten cases.5
Before conviction, every citizen accused of a criminal offense has a “strong
interest in liberty.” United States v. Salerno, 481 U.S. 739, 750 (1987). Thus, the
Eighth Amendment to the United States Constitution provides that “[e]xcessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual
5 We note that the State has taken a different position in its appellee’s brief filed in
this Court.
8
punishments inflicted.” U.S. CONST. amend. VIII; see also Schilb v. Kuebel, 404
U.S. 357, 365 (1971) (Eighth Amendment’s prohibition of excessive bail applies to
states). The Texas Constitution also guarantees that “[a]ll prisoners shall be bailable
by sufficient sureties, unless for capital offenses, when the proof is evident.” TEX.
CONST. art. I, § 11; see also TEX. CONST. art. I, § 13 (“Excessive bail shall not be
required . . . .”); TEX. CODE CRIM. PROC. ANN. art. 1.07 (“Any person shall be
eligible for bail unless denial of bail is expressly permitted by the Texas Constitution
or by other law.”).
A defendant’s right to pretrial bail, however, may be subordinated to the
greater needs of society. Salerno, 481 U.S. at 750–51; see also Ex parte Beard, 92
S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref’d) (noting “a balance must be
struck between the defendant’s presumption of innocence and the State’s interest”).
In balancing the liberty interest of a defendant and the safety interest of society, the
Texas Legislature has adopted rules and guidelines for determining when a
defendant should obtain pretrial release through the posting of adequate bail. See
TEX. CODE CRIM. PROC. ANN. art. 17.01 (“‘Bail’ is the security given by the accused
that he will appear and answer before the proper court the accusation brought against
him . . . .”); Ex parte Jefferson, No. 07-20-00123-CR, 2020 WL 4249743, at *2
(Tex. App.—Amarillo July 23, 2020, no pet.) (mem. op., not designated for
publication). The primary purpose of pretrial bail is to secure a defendant’s
9
appearance at trial on the offenses with which he is charged. See TEX. CODE CRIM.
PROC. ANN. art. 17.01; Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App.
[Panel Op.] 1980); Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977).
In exercising its discretion in setting the dollar amount of bail and any
conditions of bail, a trial court must consider the following statutory factors:
1. Bail shall be sufficiently high to give reasonable assurance that a
criminal defendant will appear at trial and comply with other court
orders and conditions of the bond;
2. The power to require bail is not to be used as an instrument of
oppression;
3. The nature of the offenses and the circumstances of their commission;
4. The ability to make bail is to be regarded, and proof may be taken on
this point; and
5. The future safety of a victim of the alleged offenses and the community.
See TEX. CODE CRIM. PROC. ANN. art. 17.15; see also Ludwig v. State, 812 S.W.2d
323, 324 (Tex. Crim. App. 1991); Golden v. State, 288 S.W.3d 516, 518 (Tex.
App.—Houston [1st Dist.] 2009, pet. ref’d). In determining an appropriate amount
of bail, the trial court may also consider a defendant’s work record, his family and
community ties, his residence, his prior criminal record, his conformity with
previous bond conditions, and the aggravating factors alleged to have been involved
in the charged offenses. See Ex parte Rubac, 611 S.W.2d at 849–50; Montalvo, 315
10
S.W.3d at 593. The burden of proof is on the defendant who claims that his bail is
excessive. See Ex parte Rubac, 611 S.W.2d at 849; Montalvo, 315 S.W.3d at 592.
The trial court has set appellant’s bail at $75,000 for each of the ten felony
offenses of possession of child pornography with which appellant is charged for a
total bail amount of $750,000. We review the factors used by the trial court to set
the amounts of appellant’s bail to determine whether bail is excessive.
A. Sufficiency of Bail
The primary purpose of pretrial bail is to secure a defendant’s appearance at
trial on the offenses with which he is charged. See TEX. CODE CRIM. PROC. ANN.
art. 17.01; Ex parte Rodriguez, 595 S.W.2d at 550; Ex parte Vasquez, 558 S.W.2d
at 479. Appellant’s work history and ties to the community bear on the amount of
bail that will suffice to ensure that appellant will appear at trial. See Ex parte Tata,
358 S.W.3d at 400; Richardson v. State, 181 S.W.3d 756, 759 (Tex. App.—Waco
2005, no pet.). Here, there is nothing in the record that would suggest that appellant
would fail to appear for trial. See, e.g., Ex parte Williams, No. 12-21-00032-CR,
2021 WL 2816404, at *2 (Tex. App.—Tyler June 30, 2021, no pet.) (mem. op., not
designated for publication); Ex parte Hernandez, Nos. 14-18-00955-CR,
14-18-00957-CR, 14-18-00958-CR, 14-18-00959-CR, 14-18-00960-CR,
14-18-00961-CR, 14-18-00962-CR, 2019 WL 1388640, at *5–7 (Tex. App.—
Houston [14th Dist.] Mar. 28, 2019, no pet.) (mem. op., not designated for
11
publication) (reducing bail amount where “[t]here [was] no evidence that [defendant
had] ever failed to appear in court, or that he [had] a history of fleeing the
jurisdiction”); Ex parte Smith, Nos. 09-06-104-CR, 09-06-105-CR, 2006 WL
1511480, at *5, *7 (Tex. App.—Beaumont May 31, 2006, no pet.) (mem. op., not
designated for publication) (noting there was “no evidence . . . that, if released,
[defendant] would not appear as required by the trial court”); see also Ex parte
Ramirez-Hernandez, No. 04-21-00340-CR, --- S.W.3d ---, 2022 WL 218770, at *4–
11 (Tex. App.—San Antonio Jan. 26, 2022, no pet.) (concluding trial court erred in
denying defendant’s application for writ of habeas corpus to reduce his cumulative
bail where State presented no evidence showing defendant ever failed to appear for
court appearance and “there [was] no evidence that, if released, [defendant] would
not appear as required by the trial court”).
Camarillo, appellant’s former girlfriend and friend, testified, at the hearing on
appellant’s pretrial applications for writ of habeas corpus, that appellant was
thirty-four years old and from Houston. Appellant graduated from high school in
Spring and attended “some college” in the area. Appellant did not have any
significant ties to foreign countries. Before being taken into custody in August 2021,
appellant worked at FedEx “for a good amount of time.” Appellant was employed
when Camarillo initially met him three years ago. In Camarillo’s opinion, appellant
was not a “flight risk.” See Ex parte Nimnicht, 467 S.W.3d 64, 68 (Tex. App.—San
12
Antonio 2015, no pet.) (“A defendant’s ties to the community in which he lives can
be an assurance he will appear in court for trial. A court’s review of this factor
includes an assessment of the defendant’s residence history, family’s ties to the
community, and work history.” (internal citations omitted)); see, e.g., Ex parte
Flores, Nos. 12-21-00079-CR, 12-21-00080-CR, 2021 WL 3922919, at *1, *5–6
(Tex. App.—Tyler Sept. 1, 2021, no pet.) (mem. op., not designated for publication)
(holding total bail amount of $825,000 excessive where defendant charged with
offenses of aggravated sexual assault of child, “sexual performance by a child,” and
“indecency with a child” because “there [was] no specific evidence that [defendant]
intend[ed] to flee”).
In his pretrial applications for writ of habeas corpus, appellant stated that he
had “significant ties to the community and [had] been a resident of Harris
County . . . for [thirty-three] years.” Before his arrest in August 2021, appellant was
living with his mother in Spring. Appellant had “no ties outside of the [United
States] and [had] only been overseas while he was enlisted in the United States
Marine Corps.” Appellant was honorably discharged from the United States Marine
Corps in 2014 and then “served an additional [four] years in the Army National
Guard” before receiving an honorable discharge in 2018. Since that time, appellant
13
had “attended college and . . . started a job working as a ramp attendant for FedEx.”6

See Ex parte Nimnicht, 467 S.W.3d at 68; Ex parte Sabur-Smith, 73 S.W.3d 436,
441 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (where defendant charged with
second-degree felony offense of sexual assault, appellate court held $150,000 bail
amount to be excessive and reduced bail to $30,000, while noting defendant “had
lived in the community for three years, had extensive family ties to the area,” and
had good work record); see also Ex parte Smith, 2006 WL 1511480, at *1–7 (where
defendant charged with offenses of aggravated sexual assault of child and indecency
with child, appellate court held $250,000 bail amount for aggravated sexual assault
offense and $200,000 bail amount for indecency with child offense to be excessive
and reduced bail to $50,000 and $25,000, respectively, while noting defendant had
excellent work record, no criminal history, and significant ties to prosecuting
county).
The Certificate of Release or Discharge from Active Duty from the United
States Marine Corps, a copy of which the trial court admitted into evidence at the
hearing on appellant’s pretrial applications for writ of habeas corpus, states that
appellant entered active duty in 2010 and was released from active duty in 2014. As
to appellant’s “Place of Entry into Active Duty,” the certificate lists Houston, and as
6 Appellant attached a declaration to his pretrial applications for writ of habeas corpus
“declar[ing] under penalty of perjury” that the statements made in his applications
were “true and correct.”
14
to appellant’s “Home of Record at Time of Entry,” the certificate lists Spring. As to
appellant’s nearest relative at the time of appellant’s release from active duty, the
certificate lists appellant’s mother and her address in Spring.
At the hearing on appellant’s pretrial applications for writ of habeas corpus,
the State presented no witnesses and failed to submit any evidence to the trial court
in an attempt to controvert appellant’s evidence presented to the trial court. See Ex
parte Smith, 2006 WL 1511480, at *5 (holding bail amounts set by trial court were
excessive when State failed to produce evidence to controvert or rebut defendant’s
evidence). And the State and appellant’s counsel told the trial court at the hearing
on appellant’s pretrial applications for writ of habeas corpus that they had agreed
that appellant’s bail should be set at $15,000 for each of the ten felony offenses with
which appellant is charged. The State, in its closing argument at the hearing,
“ask[ed] for $15,000 for each bond – for each case” based on appellant’s
employment with FedEx, “his community ties with his family being in Spring,” his
military history, and the fact that appellant had been in custody since August 2021.
See Ex parte Nimnicht, 467 S.W.3d at 68. It is safe to assume that the State, in
agreeing to a $15,000 bail amount in each of appellant’s ten cases, believed that
amount to be sufficient to give reasonable assurance that appellant would comply
with the trial court’s orders and appear at trial. See Ex parte Williams, 2021 WL
2816404, at *2 (“It is safe to assume that the State, in agreeing to a total bail of
15
$100,000, believed this amount sufficient to give reasonable assurance that
[defendant] would comply with court orders and appear for trial.”); see also Ex parte
Cravens, 220 S.W.2d 467, 468 (Tex. Crim. App. 1949) (State agreed with defendant
“that bail in sum of $1[,]500 would be reasonable and sufficient” and trial court “by
virtue of the stipulation . . . set the amount of [defendant’s] bail at $1[,]500”).
This evidence weighs in favor of a determination that the bail amounts set by
the trial court were excessive and in favor of a reduction of the bail amount set in
each of appellant’s ten cases. See Ex parte Tata, 358 S.W.3d at 400 (evidence of
family and community ties to area weighed in favor of reduction of bail amount).
B. Nature and Circumstances of the Offenses
The trial court must consider the nature and surrounding circumstances of the
charges against appellant in setting his bail amounts. See TEX. CODE CRIM. PROC.
ANN. art. 17.15(3); Golden, 288 S.W.3d at 518; see also Ex parte Sells, No.
02-20-00143-CR, 2020 WL 7639574, at *3 (Tex. App.—Fort Worth Dec. 23, 2020,
no pet.) (mem. op., not designated for publication) (noting “bail is not set in a
vacuum” and courts “must consider the nature and surrounding circumstances of the
charges against” defendant); Ex parte Nimnicht, 467 S.W.3d at 67 (“When
determining reasonable bail, a trial court shall give the most weight to the nature of
the offense and the length of the possible sentence.”). When the offenses charged
are serious and involve potentially lengthy sentences, a defendant may have a strong
16
incentive to flee the jurisdiction and bail must be set sufficiently high enough to
secure the defendant’s presence at trial. See Ex parte Castillo-Lorente, 420 S.W.3d
884, 888 (Tex. App.—Houston [14th Dist.] 2014, no pet.); see also Compian v.
State, 7 S.W.3d 199, 200–01 (Tex. App.—Houston [14th Dist.] 1999, no pet.)
(nature of offense plays role in fixing amount of pretrial bail because “where the
nature of the offense is serious and involves aggravating factors, the likelihood of a
lengthy prison sentence following trial is great”; thus, pretrial bail in such cases
“should be set sufficiently high to secure the presence of the [defendant] at trial”).
Appellant is charged with the ten separate felony offenses of possession of
child pornography. See TEX. PENAL CODE ANN. § 43.26(a). Each offense constitutes
a third-degree felony offense. See id. § 43.26(d); see also Assousa v. State, No.
05-08-00007-CR, 2009 WL 1416759, at *4 (Tex. App.—Dallas May 21, 2009, pet.
ref’d). Generally, the felony offense of possession of child pornography is
considered to be serious in nature. See Ex parte Bentley, No. 10-15-00301-CR, 2015
WL 9592456, at *3 (Tex. App.—Waco Dec. 31, 2015, no pet.) (mem. op., not
designated for publication) (“[P]ossession of child pornography is a serious
offense.”); Savery v. State, 767 S.W.2d 242, 245 (Tex. App.—Beaumont 1989, no
pet.) (“The Texas Legislature has obviously determined that it was necessary to
prohibit possession of child pornography in order to halt sexual exploitation and
abuse of children. . . . [C]hild pornography is . . . damaging to the child
17
victim . . . inasmuch as the helpless child’s actions are reduced and memorialized on
a recording or film and that type of pornography may haunt and damage the child
for many long years in the future . . . .”).
Yet, we note that there was no evidence presented at the hearing on appellant’s
pretrial applications for writ of habeas corpus about the nature and circumstances of
the ten offenses with which appellant is charged. See, e.g., Ex parte Williams, 2021
WL 2816404, at *2–4 (where “[n]o . . . evidence was presented regarding the nature
or details of the” sexual assault of child offenses and indecency of child offenses
that defendant allegedly committed, appellate court concluded that trial court erred
in setting appellant’s bail at $75,000 for each offense for total bail amount of
$600,000). And the trial court did not take judicial notice of the district clerk’s
record in any of appellant’s ten cases, which would have, at the time, contained the
complaints and the probable cause affidavits related to appellant’s cases and could
have provided details as to the nature and circumstances of the offenses with which
appellant is charged.
7
Cf. Ex parte Jackson, 257 S.W.3d 520, 522–23 (Tex. App.—
7 The State, in closing argument at the hearing on appellant’s pretrial applications for
writ of habeas corpus, attempted to explain to the trial court the nature and
circumstances of the offenses with which appellant is charged, but counsel’s
statements during closing argument are not evidence. See Mata v. State, 1 S.W.3d
226, 228 (Tex. App.—Corpus Christi–Edinburg 1999, no pet.). The State did not
present any witnesses nor submit any evidence to the trial court as to the nature and
circumstances of the felony offenses with which appellant is charged. Further, even
if we were to consider the statements made by the State during its closing argument
that briefly discussed the offenses with which appellant is charged, as the State urges
us to do in its appellee’s brief, we note that the State, with full knowledge of the
18
Texarkana 2008, no pet.) (noting although little testimony was given at hearing on
defendant’s habeas application, trial court took judicial notice of complaint, arrest
warrant, and attachments and thus “had information before it setting out the nature
of the offense”).
As to the potential punishment appellant faces for the third-degree felony
offenses with which he is charged,8
each third-degree felony offense has a range of
punishment of confinement for two to ten years and a fine not to exceed $10,000.
See TEX. PENAL CODE ANN. § 12.34 (“Third Degree Felony Punishment”). If
appellant is found guilty of more than one felony offense of possession of child
pornography, the trial court has the discretion to order appellant’s sentences to run
consecutively. See TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (trial court vested
with discretion to order two or more sentences to run either concurrently or
consecutively); Beedy v. State, 250 S.W.3d 107, 110 (Tex. Crim. App. 2008); see
details of the alleged offenses, still asked the trial court to set appellant’s bail at
$15,000 for each of the ten felony offenses. See Ex parte Williams, No.
12-21-00032-CR, 2021 WL 2816404, at *2 (Tex. App.—Tyler June 30, 2021, no
pet.) (mem. op., not designated for publication) (“It is safe to assume that the State,
in agreeing to a total bail of $100,000, believed this amount sufficient to give
reasonable assurance that [defendant] would comply with court orders and appear
for trial.”).
8
“[W]hen considering the nature of the offense[s] [charged] in setting [a defendant’s]
bail” amounts, the trial court may consider “the punishment permitted by law” for
the offenses with which the defendant is charged. See Ex parte Vasquez, 558
S.W.2d 477, 480 (Tex. Crim. App. 1977); see also Ex parte Ivey, 594 S.W.2d 98,
99 (Tex. Crim. App. [Panel Op.] 1980).
19
also DeLeon v. State, 294 S.W.3d 742, 745 (Tex. App.—Amarillo 2009, pet. ref’d)
(“Generally, a defendant has no right to serve sentences imposed for different
offenses concurrently . . . .”). Thus, if appellant is found guilty of all ten felony
offenses of possession of child pornography and his punishment is assessed at
confinement for ten years for each offense, then he could ultimately face
confinement for one hundred years if the trial court orders his sentences to run
consecutively. See, e.g., Ex parte Bentley, 2015 WL 9592456, at *3 (noting
possession of child pornography “is a third[-]degree felony [offense] and carries a
maximum punishment of [ten] years” and defendant’s sentences could be
“stacked”). And if convicted of the third-degree felony offense of possession of
child pornography, appellant will be required to register as a sex-offender. See TEX.
CODE CRIM. PROC. ch. 62; Ex parte Castille, No. 01-20-00639-CR, 2021 WL
126272, at *4 (Tex. App.—Houston [1st Dist.] Jan. 14, 2021, no pet.) (mem. op.,
not designated for publication). Nevertheless, it is possible that if appellant is found
guilty of any of the felony offenses of possession of child pornography, his
punishment may not include confinement and instead he may be placed on
community supervision. See, e.g., Ex parte Jones, 473 S.W.3d 850, 853 (Tex.
App.—Houston [14th Dist.] 2015, pet. ref’d) (defendant convicted of three
third-degree felony offenses of possession of child pornography and placed on
community supervision); Brackens v. State, 312 S.W.3d 831, 833 (Tex. App.—
20
Houston [1st Dist.] 2009, pet. ref’d) (defendant convicted of third-degree felony
offense of possession of child pornography and placed on community supervision).
Although the seriousness of the ten third-degree felony offenses with which
appellant is charged and the potential sentences appellant faces weigh against a
determination that the bail amounts set by the trial court in appellant’s ten cases were
excessive,9 we must remember that courts consider the nature and surrounding
circumstances of the charges against a defendant in setting his bail because when the
offenses charged are serious and involve potentially lengthy sentences, a defendant
may have a strong incentive to flee the jurisdiction and bail must be set sufficiently
high to secure the defendant’s presence at trial. See Ex parte Castillo-Lorente, 420
S.W.3d at 888; see also Ex parte Nimnicht, 467 S.W.3d at 67 (“A court may also
consider the possibility a[] [defendant’s] reaction to a potential lengthy
imprisonment might be to not appear for trial . . . .”); Compian, 7 S.W.3d at 200–01.
Here, however, the State told the trial court at the hearing on appellant’s pretrial
applications for writ of habeas corpus that it believed that a $15,000 bail amount in
9 See Ex parte Williams, Nos. 12-18-00174-CR, 12-18-00175-CR, 2018 WL
5961309, at *2 (Tex. App.—Tyler Nov. 14, 2018, no pet.) (mem. op., not designated
for publication) (“The . . . severe punishment ranges to which [defendant] may be
subjected weigh[] in favor of the trial court’s decision [to deny defendant’s habeas
application and] not to reduce the amount of his bonds.”); see, e.g., Ex parte
Nimnicht, 467 S.W.3d 64, 67–68 (Tex. App.—San Antonio 2015, no pet.)
(considering defendant’s potential sentence of confinement between two and ten
years and fine of up to $10,000 to be “a significant potential sentence” weighing
against bail reduction).
21
each of appellant’s ten cases was all that was necessary to give reasonable assurance
that appellant would comply with the trial court’s orders and appear at trial.10
See
Ex parte Williams, 2021 WL 2816404, at *2 (“It is safe to assume that the State, in
agreeing to a total bail of $100,000, believed this amount sufficient to give
reasonable assurance that [defendant] would comply with court orders and appear
for trial.”). Thus, we cannot conclude that the nature and circumstances of the ten
felony offenses with which appellant is charged necessarily weigh against a
determination that the bail amounts set by the trial court in appellant’s ten cases were
excessive or that reduction of the bail amounts set in each of appellant’s ten cases is
not warranted.
C. Future Safety of the Victim and Community
The trial court must also consider the future safety of the victim of the alleged
offenses and the community in setting appellant’s bail amounts. See TEX. CODE
CRIM. PROC. ANN. art. 17.15(5); Golden, 288 S.W.3d at 518. We note the
seriousness of the third-degree felony offenses with which appellant has been
charged. See Ex parte Bentley, 2015 WL 9592456, at *3; Savery, 767 S.W.2d at
245; but see Ex parte Williams, 2021 WL 2816404, at *4 (“The repellent nature of
10 At the hearing on appellant’s pretrial applications for writ of habeas corpus,
Camarillo, appellant’s former girlfriend and friend, testified that appellant was not
a “flight risk,” and she believed that he would “abide by” any bond conditions that
the trial court imposed.
22
the accusation does not diminish the presumption of the [defendant’s] innocence.”).
But there is no evidence in the record as to the future safety of any victim of the
alleged offenses or that appellant, with no prior criminal history, is a danger to the
community. See, e.g., Ex parte Williams, 2021 WL 2816404, at *2–4 (where
defendant charged with felony offenses of sexual assault of child and indecency with
child, noting defendant had no criminal record and “[n]o evidence was presented
that [defendant’s] release pose[d] a danger to the alleged victim”); see also Ex parte
Ramirez-Hernandez, 2022 WL 218770, at *5 (explaining “[a] defendant’s criminal
history must be evaluated to determine whether he presents a danger to the
community,” but where defendant had “never been charged with a previous crime,”
it weighed against setting high bail amount).
At the hearing on appellant’s pretrial applications for writ of habeas corpus,
Camarillo, appellant’s former girlfriend and friend, testified that appellant is
thirty-four years old. Appellant served in the United States Marine Corps for four
years before being honorably discharged. He then served in the Army National
Guard for four years before being honorably discharged. Appellant did not have a
criminal history. And before being taken into custody, he worked at FedEx “for a
good amount of time.” Camarillo stated that appellant was “a law-abiding citizen.”
In Camarillo’s opinion, appellant was not a “flight risk,” and she believed that he
would “abide by” any bond conditions that the trial court imposed.
23
1. In his pretrial applications for writ of habeas corpus,11 appellant stated
that before his arrest in August 2021, he was living with his mother in
Spring.12
Cf. Ex parte Castille, 2021 WL 126272, at *1, *6–7 (where
defendant charged with five felony offenses of possession of child
pornography, one felony offense of compelling prostitution of child,
and one felony offense of “trafficking of a child” and he “averred that
he resided with his two minor sons and [had] a minor daughter, who he
indicated [was] the complainant,” appellate court upheld bail amounts
set at $25,000 for each offense of possession of child pornography,
$100,000 for offense of compelling prostitution of minor, and $100,000
for offense of trafficking of a child). Appellant also explained that he
was honorably discharged from the United States Marine Corps in 2014
and then “served an additional [four] years in the Army National
Guard” before receiving an honorable discharge in 2018. Since that
time, appellant had “attended college and . . . started a job working as
a ramp attendant for FedEx.” Appellant asserted that he had “no prior
criminal history and all charges [against him arose] out of the same
11 Appellant attached a declaration to his pretrial applications for writ of habeas corpus
“declar[ing] under penalty of perjury” that the statements made in his applications
were “true and correct.”
12 There is no evidence that appellant lives with minor children.
24
transaction.” Because appellant had “no criminal history and ha[d]
strong ties to the community,” appellant stated that he was “not a
danger to the community or a flight risk.” According to appellant, the
trial court could “set conditions of [his release on] bond . . . such as [a]
curfew, electronic monitoring, and restriction on access to the internet.”
See Ex parte Williams, 619 S.W.2d 180, 183 (Tex. Crim. App. 1981)
(ordering bail amount reduced from $100,000 to $15,000 where
defendant “expressed a willingness to comply with whatever
reasonable conditions attending his release on bail the [trial] court
might impose in light of the nature of the offenses with which he” was
charged); Ex parte Bentley, 2015 WL 9592456, at *1–3 (where
defendant was “indicted on six counts of possession of child
pornography,” holding bail amount of $250,000 was excessive when
defendant had no criminal history, had significant ties to community,
had family living in area, and had stable work history).
At the hearing on appellant’s pretrial applications for writ of habeas corpus,
the State presented no witnesses nor submitted any evidence to the trial court in an
attempt to controvert appellant’s evidence presented to the trial court. See Ex parte
Smith, 2006 WL 1511480, at *5 (holding bail amounts set by trial court were
excessive when State failed to produce evidence to controvert or rebut defendant’s
25
evidence). The State, in its closing argument at the hearing on appellant’s pretrial
applications for writ of habeas corpus, requested that the trial court set bail at
$15,000 for each of the ten felony offenses with which appellant is charged. The
State made such a request based on appellant’s lack of criminal history, his
employment with FedEx, “his community ties with his family being in Spring,” and
his military history.13
The evidence weighs in favor of a determination that the bail amounts set by
the trial court were excessive and in favor of a reduction of the bail amount set in
each of appellant’s ten cases. See Ex parte Ramirez-Hernandez, 2022 WL 218770,
at *6 (where no evidence presented about lack of safety for alleged victim if
defendant released, it “weigh[ed] in favor of a lower bond”); Ex parte Williams,
2021 WL 2816404, at *2–4 (concluding trial court erred in setting total bail amount
of $600,000 where defendant had “a good work record and no prior criminal history”
and “[t]here [was] nothing in the record indicating that [defendant’s] . . . release put
the safety of the alleged victim at risk”).
13 The State, in its appellee’s brief, does not argue that the future safety of any victim
of the alleged offenses or the future safety of the community necessitate a bail
amount set at $75,000 for each of the ten offenses with which appellant is charged.
It does not assert that appellant is a danger to the community.
26
D. Ability to Make Bail
Although the ability or inability to make bail does not control the amounts of
bail set, it is a factor that the trial court must consider in setting a defendant’s bail
amounts. See TEX. CODE CRIM. PROC. ANN. art. 17.15(4); Ex parte Rodriguez, 595
S.W.2d at 550; Golden, 288 S.W.3d at 518–20. A defendant’s inability to pay the
bail amounts set by the trial court does not automatically render the amounts
excessive. See Ex parte Vance, 608 S.W.2d 681, 683 (Tex. Crim. App. 1980); Ex
parte Scott, 122 S.W.3d 866, 870 (Tex. App.—Fort Worth 2003, no pet.). If the
defendant’s ability to make bail controlled the amount that the defendant paid, then
the trial court’s role in setting the bail amounts would be eliminated and the
defendant would be in the position to determine the amounts of bail. Milner, 263
S.W.3d at 150. But bail set in an amount that cannot be satisfied has the potential to
displace the presumption of innocence. See Ex parte Peyton, No. 02-16-00029-CV,
2016 WL 2586698, at *4 (Tex. App.—Fort Worth May 5, 2016) (mem. op., not
designated for publication), pet. dism’d, No. PD-0677-16, 2017 WL 1089960 (Tex.
Crim. App. Mar. 22, 2017) (not designated for publication); Ex parte Bogia, 56
S.W.3d 835, 840 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
Appellant has been in custody since he was arrested in August 2021.
Appellant’s inability to “make bail” or post a bond since that time is a factor that
must be considered. See Ex parte Rincon, Nos. 04-13-00715-CR to
27
04-13-00718-CR, 2014 WL 2443870, at *3 (Tex. App.—San Antonio May 28, 2014,
no pet.) (mem. op., not designated for publication) (defendant’s “inability to make
bail for . . . months is a factor to be considered”); Ex parte Henson, 131 S.W.3d 645,
650–51 (Tex. App.—Texarkana 2005, no pet.) (noting “[t]here [was] no evidence
[that defendant had] previously been able to post a significant bond,” when
determining amount of bail set by trial court to be excessive); Ex parte Sabur-Smith,
73 S.W.3d at 440–41 (where defendant had “remained in jail [for] more than 110
days without making bail,” holding he “established [that] he did not have access to
$15,000 to pay a bond premium, or possess $150,000 of assets to serve as security
for a bond in that amount” and $150,000 bail amount set by trial court was
excessive); Ex parte Bogia, 56 S.W.3d at 837, 840 (considering defendant was
confined in jail for six months as evidence that he could not make bail and
concluding that $360,000 bail amount was “less justifiable the longer” pretrial
detention continued). At the hearing on appellant’s pretrial applications for writ of
habeas corpus, Camarillo, appellant’s former girlfriend and friend, stated that she
had talked to appellant’s family and the family could not afford the current bail
amount that was set. Appellant’s trial counsel, in his closing argument at the hearing,
told the trial court that appellant and the State had agreed for bail to be set at $15,000
for each of the ten felony offenses with which appellant is charged.
28
While ordinarily a defendant must present evidence of his specific assets or
financial resources and explain what efforts, if any, were made by appellant to
furnish bail in the amounts set by the trial court,
14 given that appellant has been in
custody since August 2021, his inability to make bail is clear. See Ex parte Dueitt,
529 S.W.2d 531, 532 (Tex. Crim. App. 1975) (excusing absence of such evidence
because court should not require defendant to do “a useless thing” (internal
quotations omitted)); Ex parte Bellanger, No. 12-09-00246-CR, 2009 WL 4981457,
at *3 n.3 (Tex. App.—Tyler Dec. 23, 2009, no pet.) (mem. op., not designated for
publication) (not requiring defendant to show “he [had] tried and failed to make
bail”); Ex parte Bogia, 56 S.W.3d at 837. In asking the trial court to set appellant’s
bail at “$15,000 for each bond – for each case,” the State, in its closing argument at
the hearing on appellant’s pretrial applications for writ of habeas corpus, stated that
it based its request in part on the fact that appellant had been in custody since August
2021—apparently recognizing appellant’s inability to make bail at the high dollar
amount set by the trial court.
14 See, e.g., Ex parte Bordelon, No. 04-20-00364-CR, 2021 WL 1988259, at *7 (Tex.
App.—San Antonio May 19, 2021, pet. ref’d) (mem. op., not designated for
publication) (“A defendant should ordinarily offer evidence of his available
resources and his unsuccessful attempts to post bail in the current amount. 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.” (internal citations and quotations
omitted)).
29
The evidence of appellant’s inability to make bail, although not
determinative, weighs in favor of a determination that the bail amounts set by the
trial court were excessive and in favor of a reduction of the bail amount set in each
of appellant’s ten cases.
E. Whether Bail is Being Used as an Instrument of Oppression
Bail needs to be sufficiently high to give reasonable assurance that a defendant
will appear at trial for the offenses charged. See Ex parte Dupuy, 498 S.W.3d 220,
232 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Yet, when bail is set so high
that a person cannot realistically pay for it, the trial court essentially “displaces the
presumption of innocence and replaces it with a guaranteed trial appearance.” Id. at
233 (internal quotations omitted). Bail may not be used as an instrument of
oppression. See Ex parte Guerra, 383 S.W.3d 229, 233–34 (Tex. App.—San
Antonio 2012, no pet.); see also TEX. CODE CRIM. PROC. ANN. art. 17.15(2). Bail
set in a particular amount becomes oppressive when it assumes that the defendant
cannot afford bail in that amount and when it is set for the express purpose of forcing
the defendant to remain incarcerated. See Ex parte Nimnicht, 467 S.W.3d at 70; Ex
parte Durst, 148 S.W.3d 496, 499 (Tex. App.—Houston [14th Dist.] 2004, no pet.)
(where bail amount set “solely to prevent [defendant] from getting out of jail,” “bail
[was] being used as an instrument of oppression”).
30
Here, there is no direct evidence that the trial court set appellant’s bail
amounts at $75,000 for each of the ten felony offense of possession of child
pornography, for a total bail amount of $750,000, to keep appellant incarcerated.
See Ex parte Dupuy, 498 S.W.3d at 233; Ex parte Nimnicht, 467 S.W.3d at 70; cf.
Ex parte Harris, 733 S.W.2d 712, 714 (Tex. App.—Austin 1987, no pet.) (trial court
stated, “I’d rather see him in jail than to see someone’s life taken”). But the Texas
Code of Criminal Procedure only requires bail to be set in an amount that is
“sufficiently high to give reasonable assurance” a defendant will appear at trial. See
TEX. CODE CRIM. PROC. ANN. art. 17.15(1); see also Ex parte Dupuy, 498 S.W.3d at
232 (bail needs to be sufficiently high to give reasonable assurance that defendant
will appear at trial for the offenses charged). “It is not the purpose of bail . . . to
‘guarantee’ a defendant’s appearance at trial.” Ex parte Bogia, 56 S.W.3d 840.
At the hearing on appellant’s pretrial applications for writ of habeas corpus,
the State asked the trial court to set bail at $15,000 for each felony offense with
which appellant is charged, for a total bail amount of $150,000. Instead, the trial
court set bail at $75,000 for each of the felony offenses with which appellant is
charged, for a total bail amount of $750,000—five times higher than what the State
at the hearing believed to be an amount sufficient to give reasonable assurance that
appellant would comply with the trial court’s orders and appear at trial. See Ex parte
Williams, 2021 WL 2816404, at *2 (“It is safe to assume that the State, in agreeing
31
to a total bail of $100,000, believed this amount sufficient to give reasonable
assurance that [defendant] would comply with court orders and appear for trial.”).
This evidence weighs in favor of a determination that the bail amounts set by the
trial court were excessive and in favor of a reduction of the bail amount set in each
of appellant’s ten cases. See Ludwig, 812 S.W.2d at 325 (bail amount approaching
seven figures is almost never required even in capital cases).
F. Guidance from Other Caselaw
Although the appropriate amount of bail is an individualized determination, a
review of other cases can be instructive. Ex parte Dupuy, 498 S.W.3d at 233.
“Courts traditionally set somewhat higher bail in cases involving offenses against
children.” Ex parte Flores, 2021 WL 3922919, at *5. But “the right to reasonable
bail is a complement to and based on the presumption of innocence” and “[t]he
repellent nature of the accusation[s] [against a defendant] does not diminish the
presumption of [his] innocence.” Id.; see also Nguyen v. State, 881 S.W.2d 141, 143
(Tex. App.—Houston [1st Dist.] 1994, no pet.).
Here, the trial court set appellant’s bail amount at $75,000 for each of the ten
felony offenses with which appellant is charged, making the total bail amount
$750,000. Cf. Ludwig, 812 S.W.2d at 325 (bail amount approaching seven figures
is almost never required even in capital cases); Ex parte Dupuy, 498 S.W.3d at 233
(noting “amounts between $500,000 and $750,000 have been upheld in murder
32
cases”). The bail amounts set by the trial court are not necessarily akin to other cases
involving a defendant charged with the third-degree felony offense of possession of
child pornography. See, e.g., Ex parte Castille, 2021 WL 126272, at *4, *7 (holding
trial court did not err in denying defendant’s request for lower bail amount, where
bail was set at $25,000 for each possession of child pornography felony offense); Ex
parte Bentley, 2015 WL 9592456, at *1–3 (holding trial court erred in setting bail at
$250,000 where defendant “indicted on six counts of possession of child
pornography”; appellate court set bail at $50,000 for all “six counts of possession of
child pornography”); Ex parte Cosby, Nos. 07-02-0482-CR, 07-02-483-CR, 2003
WL 21994760, at *2 (Tex. App.—Amarillo Aug. 21, 2003, no pet.) (mem. op., not
designated for publication) (holding trial court did not err in declining to reduce bond
amount, which was set at “$100,000 for [seventeen] counts of possession of child
pornography,” which amounted to “less than $6,000 per count”); see also Ex parte
Flores, 2021 WL 3922919, at *1–6 (holding total bail amount of $825,000 to be
excessive, even though defendant charged with offenses of aggravated sexual assault
of child, “sexual performance by a child,” and “indecency with a child”).
An examination of other cases involving the same offenses with which
appellant is charged weighs in favor of a determination that the bail amounts set by
the trial court were excessive and in favor of a reduction of the bail amount set in
each of appellant’s ten cases.
33
“We acknowledge that setting reasonable bail presents trial courts with the
difficult task of weighing the specific facts of a case against many, often
contravening factors, and often in the face of scant evidence.” Ex parte
Ramirez-Hernandez, 2022 WL 218770, at *11 (internal quotations omitted). We
note that there is no indication that the combined $750,000 bail amount set by the
trial court was used as an instrument of oppression and that the possible sentences
that appellant faces if convicted are not insignificant. But, given the balance of all
the relevant factors discussed above,15 we conclude that the trial court erred by
setting appellant’s bail at $75,000 for each of the ten felony offenses of possession
of child pornography for a total bail amount of $750,000 because the bail amounts
were excessive. And we hold that the trial court erred in denying in part appellant’s
pretrial applications for writ of habeas corpus.
We sustain appellant’s sole issue.

Outcome: We reverse the orders of the trial court and remand the cases to the trial court
for further proceedings consistent with this opinion.

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Defendant's Experts:

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