Ex Parte Moses Gonzalez ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00128-CR
___________________________
Ex parte Moses Gonzalez
On Appeal from Criminal District Court No. 1
Tarrant County, Texas
Trial Court No. 1630377D
Before Sudderth, C.J.; Kerr and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
Appellant Moses Gonzalez stands charged with family-violence assault by
choking his ex-girlfriend, Amanda. 1 The trial court twice increased his bail after he
violated the conditions of his release on bond, but after Appellant’s third violation,
the trial court revoked his bail and ordered him held without bond. It then denied
Appellant’s application for habeas relief, from which order he now appeals. Because
we do not find that the trial court abused its discretion by ordering Appellant held
without bond after he violated his bond conditions by endangering Amanda, we
affirm the trial court’s order denying habeas relief.
We review a ruling on a pretrial writ of habeas corpus for an abuse of
discretion, viewing the facts in the light most favorable to the ruling. Ex parte Wheeler,
203 S.W.3d 317, 324 (Tex. Crim. App. 2006). If there are no disputed facts and the
resolution of the ultimate issue turns on an application of purely legal standards, our
review is de novo. Ex parte Martin, 6 S.W.3d 524, 526 (Tex. Crim. App. 1999). We will
uphold the trial court’s judgment if it is correct under any theory of law. Ex parte
McIntyre, 558 S.W.3d 295, 299 (Tex. App.—Fort Worth 2018, pet. ref’d).
While there is no precise standard for reviewing bond settings, the setting of
bail is placed by statute within the sound discretion of the trial court. Tex. Code Crim.
Proc. Ann. art. 17.15; Ex parte Miller, 631 S.W.2d 825, 827 (Tex. App.—Fort Worth
1
According to the State’s pleadings below, Appellant was also charged with
interfering with an emergency call and, in a separate incident, criminal trespass of a
habitation.
2
1982, pet. ref’d) (citing Ex parte Pemberton, 577 S.W.2d 266, 267 (Tex. Crim. App.
[Panel Op.] 1979)). One factor to be considered by the court is the “future safety of a
victim of the alleged offense and the community.” Tex. Code Crim. Proc. Ann. art.
17.15(5). In fact, the Texas Constitution and the Code of Criminal Procedure
authorize a trial court to deny bail pending trial when an accused violates a condition
of release related to the safety of the victim. Tex. Const. art. I, § 11b; Tex. Code Crim.
Proc. Ann. Art. 17.152(b)(1).
In this case, the State presented evidence at the bond-revocation hearing of
Appellant’s three bond-condition violations. Appellant’s community-supervision
supervisor, Danielle Mack, testified that Appellant violated the terms of his initial
$5,000 bond by entering the 1,000-foot exclusion zone surrounding Amanda’s
apartment. After that violation, the trial court raised his bond to $10,000.
Appellant’s bond was raised another $5,000 when Amanda filed a police report
accusing him of contacting her by phone—a violation of his bond conditions and of a
family-violence protective order issued in a separate proceeding.
Seemingly undeterred, Appellant violated his bond conditions a third time,
again by entering the exclusionary zone surrounding Amanda’s apartment. Officer
Michael Nguyen testified that he was dispatched to Amanda’s neighborhood shortly
after midnight on June 4, 2020 on a report of a suspicious vehicle parked in front of
the 911 caller’s home. As Officer Nguyen approached the neighborhood, he saw a car
matching the caller’s description, followed it, and pulled it over for a traffic infraction.
3
Officer Nguyen identified Appellant as the driver and quickly determined that
Appellant was driving with a suspended license and without proof of insurance. He
also found Appellant’s behavior evasive and suspicious; Appellant claimed to be
coming from “his friend’s house” but refused to identify the friend or provide any
additional information.
Officer Nguyen’s suspicions were further raised when he learned of the
protective order in place and confirmed that the place Appellant had reportedly been
parked was 290 yards 2 from Amanda’s apartment. Finally, when Officer Nguyen
frisked Appellant, he discovered “on his right leg from pretty much underneath his
knee all the way down to his ankle, there was—it looked like packaging at first. It
was . . . clear Saran wrap with multiple, I guess, layers of bands of black electrical
tape.” Beneath the Saran wrap and electrical tape, Officer Nguyen discovered
“multiple layers of metallic-looking fabric that’s gold in color” and then the ankle
monitor. Appellant averred that he had injured his ankle at work and had used the
Saran wrap as a sort of homemade brace. According to Mack, however, the wrap
successfully blocked the ankle monitor’s signal, causing her significant concern for
Amanda’s safety. Finally, in a search of Appellant’s vehicle, officers found a prepaid
phone with Google Maps open—a violation of bond conditions requiring monitoring
2
Mack confirmed that this was less than 1,000 feet.
4
software on any internet-accessible device—and a baseball bat “with no other baseball
equipment.”
The trial court found that Appellant had three times violated bond conditions
that had been put in place to ensure Amanda’s safety and that no sufficient bond
conditions could be put in place to ensure her safety. It granted the State’s motion to
hold Appellant without bond.
In applying for habeas relief, Appellant did not attack the sufficiency of the
evidence supporting the trial court’s findings of his three bond-condition violations
and their threats to Amanda’s safety. In fact, in his assertion that the trial court failed
to fully consider the relevant factors to determining an appropriate bail amount, he
admitted that his “conformity with previous bond conditions” (or lack thereof, as is
the case) weighed against him in this evaluation. Appellant’s argument, rather, was
that the trial court erred by not considering other factors “or all of the statutory
scheme regulating the constitutional right to bail.” His assertion not only
misrepresents the state of the record but also neglects the trial court’s constitutionally-
and statutorily-granted authority to deny bail in a family-violence proceeding if it
found that Appellant violated a bond condition related to the victim’s safety. Tex.
Const. art. I, § 11b; Tex. Code Crim. Proc. Ann. art. 17.152(b)(1). Not only did the
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trial court make such a finding, but it made three such findings, the factual bases for
which remain unchallenged.3
We therefore cannot conclude that the trial court abused its discretion by
denying Appellant’s application for habeas corpus relief, and we affirm the trial
court’s order.
/s/ Mike Wallach
Mike Wallach
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: October 29, 2020
3
Nor does Appellant contest any implied finding that he intended to commit or
threatened to commit family violence. See Tex. Code Crim. Proc. Ann. art. 17.152(d);
Ex parte Shires, 508 S.W.3d 856, 860 (Tex. App.—Fort Worth 2016, no pet.) (holding
that the trial court is not required to make oral or written findings when denying
pretrial bail).
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