Ex Parte Heather Michele Bond ( 2017 )

IN THE
TENTH COURT OF APPEALS
No. 10-17-00192-CR
EX PARTE HEATHER MICHELE BOND
From the 19th District Court
McLennan County, Texas
Trial Court No. 2017-800-C1
MEMORANDUM OPINION
Appellant Heather Michele Bond (Heather) appeals the trial court’s denial of her
petition for writ of habeas corpus challenging the imposition of a bond condition
requiring supervised visitation with her children. Heather presents two issues: (1)
whether the elements of article 17.40 of the Code of Criminal Procedure should be read
conjunctively; and (2) if the answer to issue number one is “yes,” whether the elements
required to impose the bond condition exist—specifically, that the condition acts to
secure Heather’s attendance at trial, that the condition protects the safety of the victim
and/or the community, and that the condition is reasonable. We affirm.
Heather has been charged by indictment with child endangerment. The
indictment alleges that she allowed her husband, Preston Bond, stepfather to her two
children, to continue to live in her home and have access to her youngest child, R.L., after
Heather knew that her oldest child, F.L., had made an outcry of sexual abuse against
Preston. After a bond hearing, the trial court imposed a $3,000 bond and set the following
conditions of release:
The Defendant shall not directly or indirectly communicate with or attempt
to communicate with the alleged victim of the offense, or go within visual
sight of the residence, school, church, or place of employment of the alleged
victim EXCEPT UNDER THE DIRECT SUPERVISION OF CHILD
PROTECTIVE SERVICES OR A PERSON APPROVED BY CHILD
PROTECTIVE SERVICES.
The Defendant shall not directly or indirectly communicate with or attempt
to communicate with the individual or individuals who may be witnesses
or potential witnesses in the trial of this case, or go within sight of their
residences, schools, churches, or places of employment; EXCEPT UNDER
THE DIRECT SUPERVISION OF CHILD PROTECTIVE SERVICES OR A
PERSON APPROVED BY CHILD PROTECTIVE SERVICES.
The children were removed from Heather’s custody and placed with their father in
Dallas, but Child Protective Services took no further action.
Heather filed a motion to modify the bond conditions so that the children could
reside with her rather than with their father. Heather had been appointed sole managing
conservator of the children in their divorce decree. After an evidentiary hearing, the trial
court modified the bond conditions to allow Heather to have supervised contact with the
children with a chaperone approved by the State rather than by CPS.
Ex parte Bond Page 2
Heather’s habeas application followed, which the trial court denied after an
evidentiary hearing. The sole witness at the hearing was Detective Derek Thiele, who
investigated the case against Preston. He testified that Preston was arrested for molesting
his stepdaughters and that Heather’s charges stem from allowing Preston to have access
to R.L. after she knew that he had molested F.L. Thiele also testified that text messages
between Heather and F.L. reflected Heather’s attempts to manipulate F.L.’s testimony
about the abuse and about Preston’s attempts to contact her. Thiele further testified that
victims of abuse, such as F.L. and R.L., are in danger of being manipulated to recant their
testimony. Thiele admitted on cross-examination that, other than failing to protect her
children from Preston’s abuse, he knew of no other danger presented to the children by
Heather. Thiele also testified that both children said that they loved their mother and
that they thought she was innocent.
We review a trial court’s imposition of bond conditions for an abuse of discretion.
Ex parte Anunobi, 278 S.W.3d 425, 428 (Tex. App.—San Antonio 2008, no pet.) (citing Ex
parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981)). The appellant bears
the burden of showing that the trial court abused its discretion in imposing the specific
condition. Id. (citing Rubac, 611 S.W.2d at 849). “In reviewing a trial court’s bond
decision, the appellate court measures the trial court’s ruling against the same factors it
used in ruling on bail in the first instance.” Id.
Ex parte Bond Page 3
Article 17.40(a) provides: “To secure a defendant’s attendance at trial, 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. ANN. art.
17.40(a) (West 2015). Although some authority suggests that this statute requires that
conditions of pretrial bail relate to all three criteria—reasonableness, securing the
defendant’s appearance at trial, and protecting the safety of others, article 17.40(a)
authorizes the imposition of bond conditions “that are reasonably related to securing the
accused's presence at trial, the safety of the victim, or the safety of the community.”
Burson v. State, 202 S.W.3d 423, 426 (Tex. App.—Tyler 2006, no pet.) (quoting 41 GEORGE
E. DIX & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE §
16.76 (2d ed. 2001)). In Pharris v. State, the court of criminal appeals noted that several
statutory provisions allowed the trial court to impose reasonable conditions of bail, “both
to insure a defendant’s appearance for trial and to protect the community.” 165 S.W.3d
681, 689 n.19 (Tex. Crim. App. 2005) (emphasis added). The Pharris court specifically
noted that article 17.40 allowed the magistrate to impose any reasonable condition of
bond related “to the safety of the community.” Id.; see also Ex parte Hunt, No. 05-15-01312-
CR, 2016 WL 379638, at *2-3 (Tex. App.—Dallas Feb. 1, 2016, no pet.) (mem. op., not
designated for publication) (“The trial court may . . . consider the safety of the community
in setting reasonable conditions of pretrial release.”). Child witnesses constitute
members of the community. See Burson, 202 S.W.3d at 427; see also Hunt, 2016 WL 379638,
Ex parte Bond Page 4
at *3. Because supervised visitation works to protect F.L. and R.L., who are members of
the community, the trial court did not abuse its discretion in making it a condition of
Heather’s bond.
The Anderer case relied upon by Heather is distinguishable as it involves an
application for bond pending appeal, not an application for bond pending trial. See Ex
parte Anderer, 61 S.W.3d 398, 398 (Tex. Crim. App. 2001). Anderer also does not specifically
address whether a bond condition might be required under article 17.40(a) that relates
solely to the safety of the victim or the community. Burson, 202 S.W.3d at 426; see Anderer,
61 S.W.3d at 399. A previous case from this Court also does not conflict with the Burson
court’s analysis because a different issue is involved. See Ex parte Allen-Pieroni, 524
S.W.3d 252, 256 (Tex. App.—Waco 2016, no pet.) (holding that trial court abused its
discretion by denying habeas relief on “the most extreme bond condition of home
confinement.”).
Even if all the criteria of article 17.40 are considered, Heather still has not
established that the trial court’s requirement of supervised visitation with her children is
an abuse of discretion. The evidence, when viewed in the light most favorable to the trial
court’s ruling, establishes that Heather failed to keep her children safe from Preston and
attempted to manipulate F.L.’s testimony. The condition protects both R.L. and F.L., who
are victims, witnesses, and members of the community, and will also help insure
Heather’s appearance at trial. See Burson, 202 S.W.3d at 427 (“[T]he condition helps insure
Ex parte Bond Page 5
Appellant’s continued presence in the community and her appearance at trial.”); see also
Hunt, 2016 WL 379638, at *3 (“Protecting the children from the possibility of additional
criminal acts not only protects the community, but it also helps secure appellant’s
attendance at trial.”).
Under the circumstances presented, we cannot conclude that the trial court abused
its discretion in setting as a condition of bond that Heather have only supervised contact
with her children.
We affirm the trial court’s order denying relief on Heather’s application for pretrial
writ of habeas corpus.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Chief Justice Gray dissents. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed December 20, 2017
Do not publish
[OT06]
Ex parte Bond Page 6