Ex Parte: Cheryl Layne ( 2020 )

NOS. 12-20-00148-CR
12-20-00149-CR
12-20-00150-CR
12-20-00151-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEALS FROM THE 114TH
EX PARTE:
§ JUDICIAL DISTRICT COURT
CHERYL LAYNE
§ SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Cheryl Layne brings an interlocutory appeal from the trial court’s denial of her
application for a pre-trial writ of habeas corpus. In her application, Appellant argues that two of
the pretrial bond conditions should be amended or deleted. We affirm.
BACKGROUND
On September 13, 2019, the school resource officer at Whitehouse Junior High contacted
the Smith County Sheriff’s Office about an outcry of abuse from C.L.1 and C.L.2. 1 The boys
had been adopted, along with their two siblings, by Appellant and her husband. The couple also
has two biological children. Forensic interviews were conducted with all six of Appellant’s
children. C.L.1 and C.L.2 recounted instances of abuse occurring on September 8 and 12. The
instances included slamming heads into hard objects, hitting on the body with an aluminum-shaft
arrow, forced eating of food from a trash can, strikes to the face that caused bleeding, and
beatings with a belt. These outcries were corroborated in part by other children in the home.
Appellant was arrested, and all six children were removed from the home. The Department of
1
Because the victims are minor children, we refer to them by their initials to protect their identities. See
TEX. R. APP. P. 9.8.
Family and Protective Services (the Department) also moved to terminate Appellant’s parental
rights in the 321st Judicial District Court of Smith County (the family court).
On September 17, the trial court signed special conditions of bond, which included the
following conditions:
8. Have NO contact with minor children unless at least two other adults are present.
…
10. Do not reside in a household where any minor children live without written permission of the
Court.
In January 2020, Appellant was indicted for four cases of injury to a child. It is alleged
that C.L.1 was struck with a hard object and an arrow, struck against a hard object, and kicked
with a foot. It is also alleged that C.L.2 was struck with a belt, a hard object, and an arrow.
On February 5, the family court orally pronounced an order returning Appellant’s
biological children because the Department failed to meet the burden of evidence required for
removal of those children. The family court further found that there is no danger to the
biological children in returning them to their parents. On February 10 and 12, the trial court
reissued bond condition orders that included the same conditions imposed in September.
On April 7, Appellant filed a writ of habeas corpus objecting to bond conditions eight and
ten. She sought to have her biological children exempted from the bond conditions under the
family court’s order. Following a hearing, the trial court denied the motion. This appeal
followed.
BOND CONDITIONS
In both of her issues, Appellant contends the trial court abused its discretion in refusing to
amend or delete the bond conditions precluding contact with minor children and preventing her
from residing in a household with minor children.
Standard of Review and Applicable Law
The primary purpose of pretrial bail is to secure the defendant’s attendance at trial, and
the power to require bail, including the power to set conditions to bail, should not be used as an
instrument of oppression. Ex parte Anunobi, 278 S.W.3d 425, 427 (Tex. App.—San Antonio
2008, no pet.) (citing Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. [Panel Op.] 1980)). To
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secure a defendant’s attendance at trial, a magistrate may impose any reasonable bond condition
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). Bond conditions, however, must not
unreasonably impinge on an individual’s constitutional rights. Ex parte Anderer, 61 S.W.3d
398, 402 (Tex. Crim. App. 2001). Therefore, courts must be mindful that one of the purposes of
release on bail pending trial is to prevent the infliction of punishment before conviction. Id. at
405. “The trial court’s discretion to set the conditions of bail is not ... unlimited. A condition of
pretrial bail is judged by three criteria: it must be reasonable; it must be to secure the defendant’s
presence at trial; and it must be related to the safety of the alleged victim or the community.”
Anunobi, 278 S.W.3d at 427 (citing Anderer, 61 S.W.3d at 401–02).
We review a trial court’s imposition of bond conditions for an abuse of discretion. Id. at
428 (citing Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. 1981)). 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.
Analysis
Appellant seeks habeas relief on the basis that the trial court entered unconstitutional
bond conditions. Specifically, Appellant argues that the trial court’s bond conditions that
preclude her from having contact with minor children and from residing in a household with
minor children are “onerous and have no rational basis in law or fact.” She further argues that
these two bond conditions are unconstitutional and in violation of her right to parent her
children.
In Ex parte Thompson, the appellant, who had been charged with injury to a child and
who likewise had a no-contact bond condition, similarly complained on appeal that the condition
was unreasonable, vague, and constitutionally excessive. No. 14–04–00731–CR, 2005 WL
363971, at *1 (Tex. App.—Houston [14th Dist.] Feb. 17, 2005, no pet.) (op., not designated for
publication) (per curiam). Our sister court noted that appellant had not objected when the
condition was imposed and held that by failing to object at that time, appellant failed to preserve
error. Id. Other Texas Courts have held that “a defendant forfeits an argument that a condition
of a bond is erroneous or unconstitutional by not objecting when the condition is imposed.” Ex
3
parte Martinez, No. 02-15-00353-CR, 2015 WL 9598924, at *3–4 (Tex. App.—Fort Worth Dec.
31, 2015, no pet.) (mem. op., not designated for publication) (holding that appellant forfeited his
objections to no-contact condition when he signed order imposing condition and did not
complain about condition until court enforced condition); see also Ex parte Cole, No. 01-20-
00423-CR, 2020 WL 5823290, at *2 (Tex. App.—Houston [1st Dist.] Oct. 1, 2020, pet. filed)
(mem. op., not designated for publication) (appellant waived objections to no-contact condition
when waited three months to object to it); Ex parte Vazquez, Nos. 05–13–00165–CR & 05–13–
00166–CR, 2013 WL 1760614, at *3 (Tex. App.—Dallas Apr. 24, 2013, no pet.) (mem. op., not
designated for publication) (“Appellant’s failure to object to the condition at the time it was
imposed precludes his collateral attack on the condition now that his bond has been revoked.”);
Smith v. State, 993 S.W.2d 408, 411 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (en banc
op. on reh’g) (“Smith failed to object to the constitutionality of the bond conditions when the
conditions were imposed; therefore, he may not now get a second bite at the apple through a
habeas corpus appeal.”); Ex parte Lambridia, No. 14–96–00256–CR, 1996 WL 413982, at *1–2
(Tex. App.—Houston [14th Dist.] July 25, 1996, no pet.) (op., not designated for publication)
(per curiam) (overruling appellant’s challenge to no-contact condition because he signed order
creating condition and record did not “contain evidence that [he] objected when the condition
was imposed”); Ex parte Sotelo, 878 S.W.2d 179, 181 (Tex. App.—Fort Worth 1993, pet. ref’d)
(“We hold that Sotelo waived any error in the original imposition of the condition by his failure
to object.”).
Here, the trial court imposed Appellant’s bond conditions on September 17, 2019.
Appellant did not object to the bond conditions at that time. The family court orally rendered an
order returning custody of Appellant’s biological children to her on February 5, 2020. See TEX.
FAM. CODE ANN. § 101.026 (West 2019) (defining “render” as either an oral or written
pronouncement); In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 644 (Tex. 2009)
(holding that the trial court rendered a final order when it orally pronounced termination of
parental rights). After this order, the trial court reimposed the bond conditions on February 10,
2020 and February 12, 2020. Appellant signed the February 12 bond conditions, establishing
that she had notice of them. The record reflects that Appellant waited eight weeks before she
complained about the bond conditions. Because nothing in the record shows that Appellant
raised an objection at the time the bond conditions were imposed, we conclude that Appellant
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forfeited her objections to the no-contact conditions. See Smith, 993 S.W.2d at 411; Lambridia,
1996 WL 413982, at *1-2. We therefore conclude that the trial court did not abuse its discretion
by denying Appellant’s application for writ of habeas corpus, and we overrule her first and
second issues.
DISPOSITION
Having overruled Appellant’s first and second issues, we affirm the trial court’s order.
JAMES T. WORTHEN
Chief Justice
Opinion delivered November 18, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
NOVEMBER 18, 2020
NO. 12-20-00148-CR
EX PARTE: CHERYL LAYNE
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0086-20)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
trial court’s order.
It is therefore ORDERED, ADJUDGED and DECREED that the order of the
court below be in all things affirmed, and that this decision be certified to the court below for
observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
6
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
NOVEMBER 18, 2020
NO. 12-20-00149-CR
EX PARTE: CHERYL LAYNE
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0087-20)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
trial court’s order.
It is therefore ORDERED, ADJUDGED and DECREED that the order of the
court below be in all things affirmed, and that this decision be certified to the court below for
observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
NOVEMBER 18, 2020
NO. 12-20-00150-CR
EX PARTE: CHERYL LAYNE
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0088-20)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
trial court’s order.
It is therefore ORDERED, ADJUDGED and DECREED that the order of the
court below be in all things affirmed, and that this decision be certified to the court below for
observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
NOVEMBER 18, 2020
NO. 12-20-00151-CR
EX PARTE: CHERYL LAYNE
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0089-20)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
trial court’s order.
It is therefore ORDERED, ADJUDGED and DECREED that the order of the
court below be in all things affirmed, and that this decision be certified to the court below for
observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.