Ex Parte Eric Cano v. the State of Texas ( 2023 )

Opinion issued April 13, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00692-CR
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EX PARTE ERIC RAY CANO, Appellant
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1783278
MEMORANDUM OPINION
Appellant Eric Ray Cano appeals from the trial court’s denial of his
application for writ of habeas corpus. Cano contends on appeal that the trial court
erred by setting an unreasonable bond.
We affirm.
Background
The State alleged that Cano committed a murder on October 1, 2020.1 At the
time, Cano had two prior felony convictions. The probable cause affidavit stated
that after Cano initially fought the decedent at a birthday party, he went to the
decedent’s residence, shot the decedent, and then fled the scene in a pick-up truck.
Officers later went to Cano’s house and found a pick-up truck with “apparent blood
and brain matter on the front passenger seat.” The officers learned that Cano had
then fled in a different pick-up truck. A few days later, Cano was arrested.
The trial court initially set bond at $250,000. It also found that Cano was
indigent and appointed counsel to represent him. Cano posted bail on November 18,
2020.
On February 25, 2021, a grand jury indicted Cano for murder. Between June
2021 and July 9, 2022, the trial court set various bond conditions. It allowed Cano
to work Monday through Saturday and permitted him to attend a sleep study.
Then, on July 27, 2022, following a second bond hearing, the trial court set
bond at $1,000,000. The trial court stated that it considered the factors in article
17.15(a) of the Texas Code of Criminal Procedure and that a higher bond was
necessary “to reasonably ensure the defendant’s appearance in court as required and
1
See TEX. PENAL CODE § 22.01(a).
2
the safety of the community, law enforcement, and the victim of the alleged offense.”
The trial court also set bond conditions that include continuous house arrest.
On August 8, 2022, Cano filed an application for writ of habeas corpus. Cano
argued that his bond was improper because it was quadrupled, without any bond
violations, and that the original bond should be reinstated.
The State responded by pointing out that at the July 2022 bond hearing, the
trial court was made aware of facts involving Cano that were unknown when bail
was originally set. Specifically, that in addition to being indicted for murder, Cano
is “a double-enhanced habitualized felon” with earlier cases for aggravated assault
with serious bodily injury and a drug-related offense.
With respect to Cano’s indictment for murder, the State recounted that after
Cano went to the decedent’s residence and shot him in front of his brother and
teenage son, Cano fled the scene. Cano then left town in a different pick-up truck.
An officer later attempted to stop Cano in Kimble County, but Cano evaded
authorities until spikes were used to disable his vehicle. Cano then refused to exit
the vehicle as officers surrounded it with their weapons drawn. After Cano finally
exited, police found a loaded firearm in the truck. The State also told the trial court
that it believed Kimble County had charged Cano with evading arrest and felon in
possession of a firearm.
3
The State further recounted the aggravating circumstances of this alleged
crime, including that Cano knew the decedent and his family and that Cano later
spoke with the person who hosted the birthday party and admitted “I really fucked
up.”
Additionally, the State indicated that the potential punishment was 25 years
to life, that Cano had escalated his crimes since 1997, and that the trial court had
previously heard in July 2022 that Cano was a “dire severe risk” to the Harris County
community. Based on all the circumstances, the State asked the trial court to keep
the existing bond of $1,000,000 in place “based upon the rules of fixing a bail under
[article] 17.15.” See TEX. CODE CRIM. PROC. art. 17.15.
Cano’s sole witness at the habeas hearing was his wife, Gina Gaitan. Gaitan
testified that she had been married to Cano for eight years and that she worked as an
accountant earning $65,000 a year. Gaitan further testified that she had no savings,
no ability to raise money, and no assets to sell. Gaitan stated that she learned from
a bondsman that she would need 10% of the bond, which would equal an additional
$75,000 from what had already been paid on the original bond. Gaitan additionally
testified that neither she nor Cano, nor his family and friends could raise the
additional $75,000 for the current bond.
On cross-examination, Gaitan testified that Cano’s 2020 bond was paid for by
his mother, Gaitan’s mother, and her savings. And that she hired a habeas attorney
4
for Cano for $60,000 to $70,000, but that she had only paid between $25,000 and
$26,000 so far. Gaitan stated that money also came from family and the rest of her
savings.
Gaitan admitted that she knew of Cano’s past offenses, including, resisting
arrest, DWI, possession of a controlled substance, and felon in possession of a
firearm. When asked about the felon in possession of a firearm and evading arrest
offenses in Kimble County, Gaitan acknowledged the offenses, knew that the police
had to deploy spikes to stop Cano’s truck, and stated that Cano was afraid to stop
because of the murder accusation. Gaitan further admitted that the decedent was a
family friend and that she knew his widow.
In closing, Cano argued that the purpose of the initial bond was being met and
that he had not violated any of the conditions of that bond. He referred to the State’s
action as oppression and requested that the original bond be reinstated.
In response, the State urged the trial court to consider the aggravating
circumstances, the potential punishment, the criminal history, and all the facts
surrounding the forced stop in Kimble County.
At the conclusion of the habeas hearing, the trial court denied Cano’s
application and ruled that the bond of $1,000,000 was proper and sufficient. Cano
now appeals the trial court’s order.
5
Standard of Review
A trial court has discretion to set the amount of bail. T EX. CODE CRIM. PROC.
art. 17.15; see Ex parte Gomez, 624 S.W.3d 573, 578 (Tex. Crim. App. 2021). We
review a trial court’s decision to grant or deny habeas corpus relief under an abuse
of discretion standard. Gomez, 624 S.W.3d at 578; see Ex parte Rubac, 611 S.W.2d
848, 849–50 (Tex. Crim. App. 1981) (reviewing bail pending appeal for abuse of
discretion).
Under that standard, we may not disturb the trial court’s decision when it falls
within the zone of reasonable disagreement. Montalvo v. State, 315 S.W.3d 588, 592
(Tex. App.—Houston [1st Dist.] 2010, no pet.). When, as here, a habeas appeal
concerns pretrial bail, we may not simply conclude that the trial court did not “rule
arbitrarily or capriciously.” Id. at 593. Rather, we must “measure the trial court’s
ruling against the relevant criteria by which the ruling was made.” See id.In addition, we view the record in the light most favorable to the trial court’s
ruling. See Gomez, 624 S.W.3d at 576. The trial court is the exclusive judge of
witness credibility, and we afford it “considerable discretion in making those
challenging determinations.”2 Ex parte Everage, No. 03-17-00879-CR, 2018 WL
2See also Esquivel v. State, 922 S.W.2d 601, 604 (Tex. App.—San Antonio 1996, no
pet.) (stating “[t]he trial court, as the trier of fact, has the job of judging the
credibility of the witnesses and the weight to be given their testimony” at bond
hearing).
6
1788795, at *9 (Tex. App.—Austin Apr. 13, 2018, no pet.) (mem. op., not
designated for publication) (observing that bail cases involve “the difficult task of
weighing the specific facts of a case against many, often contravening factors, and
often in the face of scant evidence”).
Bail in Texas
“‘Bail’ is the security given by the accused [to ensure] that he will appear and
answer before the proper court the accusation brought against him and includes a
bail bond or a personal bond.” TEX. CODE CRIM. PROC. art. 17.01; Ex parte Vasquez,
558 S.W.2d 477, 479 (Tex. Crim. App. 1977). The amount of bail should be
sufficiently high to give reasonable assurance that the accused will appear, but
should not be set so high as to be an instrument of oppression. Montalvo, 315 S.W.3d
at 593.
A. Challenging the amount of bail.
The right to be free from excessive bail is protected by the United States and
Texas Constitutions, as well as the Texas Code of Criminal Procedure. See U.S.
CONST. amend. VIII; TEX. CONST. art. I, §§ 11, 13; TEX. CODE CRIM. PROC. art. 1.09,
17.15. An accused may challenge the excessiveness of bail by filing an application
for a pretrial writ of habeas corpus. See TEX. CODE CRIM. PROC. art. 11.24. An
applicant for habeas corpus relief must prove his factual allegations by a
preponderance of the evidence. See Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim.
7
App. 1995). The habeas applicant has the burden to prove that the amount of bail
set by the court is excessive. See Rubac, 611 S.W.2d at 849.
B. Factors relevant to setting bail.
The amount of bail required in any case is within the discretion of the trial
court, subject to the following rules:
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. art. 17.15.
Additionally, courts should also consider the following factors: (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. Rubac, 611 S.W.2d at 849–50.
8
Reasonable assurance that appellant will appear but not oppress.
Bail must be set sufficiently high to provide reasonable assurance that the
defendant will appear at trial, without being so high that it amounts to an instrument
of oppression. TEX. CODE CRIM. PROC. art. 17.15; see Gomez, 624 S.W.3d at 579.
The amount of bail becomes oppressive when it is based upon the assumption that
the defendant cannot afford to pay and when it is set for the express purpose of
forcing the defendant to remain incarcerated. See Ex parte Nimnicht, 467 S.W.3d
64, 70 (Tex. App.—San Antonio 2015, no pet.).
Here, Cano argued below that his bail was set at $1,000,000 because he
refused to plead guilty and that it is oppressive because he cannot afford to pay it.
But Cano does not point us to any evidence in the record that supports his contention
that bail was set at $1,000,000 simply to keep him incarcerated.3
Next, in determining whether bail is excessive or will reasonably assure the
defendant’s presence at trial, the defendant’s ties to the community and work history
3
See Montalvo v. State, 315 S.W.3d 588, 596 (Tex. App.—Houston [1st Dist.] 2010,
no pet.) (“Our independent review of the habeas corpus record likewise does not
suggest that the trial court deliberately set bail at an excessively high level solely to
prevent [appellant] from posting bail.”); Ex parte Davis, 147 S.W.3d 546, 549 (Tex.
App.—Waco 2004, no pet.) (“The record contains nothing to indicate that the trial
court rendered its decision on this basis [forcing appellant to remain incarcerated
pending trial].”); Ex parte Anderson, No. 01-20-00572-CR, 2021 WL 499080, at
*16–17 (Tex. App.—Houston [1st Dist.] Feb. 11, 2021, no pet.) (mem. op., not
designated for publication) (noting that bail becomes oppressive when “it is set for
the express purpose of forcing the defendant to remain incarcerated,” but that no
evidence showed that trial court set bail amounts to keep appellant incarcerated).
9
are relevant. Ex parte Tata, 358 S.W.3d 392, 400 (Tex. App.—Houston [1st Dist.]
2011, pet. dism’d). Here, Cano presented no evidence to the trial court about his ties
to the community. And aside from a letter by a single employer where Cano worked
in 2021, there is no evidence in the record of Cano’s overall work history.
Accordingly, these factors weigh against the current bail being excessive.
Nature and circumstances of the offense.
When considering the reasonableness of bail, the nature of the offense and the
punishment that may be imposed are significant. See Rubac, 611 S.W.2d at 849.
Here, Cano is charged with murder—a first-degree felony offense. See TEX.
PENAL CODE § 19.02(b), (c). The indictment alleges that Cano “unlawfully,
intentionally and knowingly cause[d] the death of” the complainant “by shooting the
Complainant with a deadly weapon, namely, a firearm.” And that Cano “unlawfully
intend[ed] to cause serious bodily injury to” the complainant, and “did cause the
death of [the complainant] by intentionally and knowingly committing an act clearly
dangerous to human life, namely by shooting the Complainant with a deadly
weapon, namely a firearm.”
The felony offense of murder is serious and necessarily violent in nature.4 As
a result, the punishment range is confinement for life or for any term not less than
4
See Ex parte Walker, No. 07-22-00048-CR, 2022 WL 2176306, at *3 (Tex. App.—
Amarillo June 16, 2022, no pet.) (mem. op., not designated for publication)
(“Murder is unquestionably a serious offense.”); Ex parte Harber, No. 04-10-
10
five years, but no more than 99 years and a fine not to exceed $10,000. See id.§ 12.32 (“First Degree Felony Punishment”).5 Because Cano’s criminal history
includes multiple prior felony convictions, any conviction for murder may be
punishable by imprisonment for a life term, or alternatively imprisonment for 25 to
99 years. See TEX. PENAL CODE § 12.42(d).
The serious and violent nature of Cano’s first-degree felony murder charge,
the potential significant sentence that he faces for that offense, the circumstances of
the murder itself, and Cano evading arrest, thus also weigh against the current bail
being excessive.6
00643-CR, 2010 WL 5141509, at *2 (Tex. App.—San Antonio Dec. 15, 2010, no
pet.) (mem. op., not designated for publication) (“high bond amount . . . was
reasonable” given defendant charged with “serious offense” of murder for “causing
death of [individual] by shooting him with a firearm”); Ex parte Chavfull, 945
S.W.2d 183, 186–87 (Tex. App.—San Antonio 1997, no pet.) (holding $750,000
bail not excessive for defendant charged with murdering individual with firearm
given violent nature of crime); Ex parte Barrera, No. 11-21-00131-CR, 2021 WL
5934626, at *3 (Tex. App.—Eastland Dec. 16, 2021, pet. ref’d) (mem. op., not
designated for publication) (upholding $1,000,000 bond for murder).
5
See also Anderson, 2021 WL 499080, at *13–14 (considering defendant “could
ultimately face confinement for thirty years” in concluding “potential sentences
[defendant] face[d] . . . weigh[ed] against a determination that the bail amounts set
by the trial court . . . were excessive”); O’Brien v. State, No. 01-12-00176-CR, 2012
WL 2922545, at *5 (Tex. App.—Houston [1st Dist.] July 5, 2012, no pet.) (mem.
op., not designated for publication) (possibility of substantial sentence supported
setting of high bail amount).
6
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 pretrial
habeas application and] not . . . reduce the amount of his bonds.”).
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The ability to make bail.
A defendant’s ability to make bail is only one factor to be considered in
determining the appropriate amount of bail. See TEX. CODE CRIM. PROC. 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.”). A defendant’s inability to make bail
does not render bail excessive. See Wright v. State, 976 S.W.2d 815, 820 (Tex.
App.—Houston [1st Dist.] 1998, no pet.).
“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.” Milner v. State, 263 S.W.3d
146, 149 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Vague references to
inability to make bond, in the absence of evidence detailing the accused’s specific
assets and financial resources, do not support bail reduction. Cooley v. State, 232
S.W.3d 228, 236 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see Wright, 976
S.W.2d at 820 (“It 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.”).
Here, the record contains no evidence of Cano’s financial condition or the
amount of bail that he could afford. Gaitan testified that she earned $65,000 a year,
has no savings, and no ability to raise money to pay the additional $75,000 for the
current bond. But Gaitan also admitted that she and Cano’s family were able to post
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the initial bond of $250,000 and raise additional funds to pay $60,000-$70,000 to an
attorney to prosecute Cano’s habeas application. Furthermore, despite Gaitan
testifying that she has no assets of value to pay for the current bond and that she
previously had to use equity from her house, no testimony explained why the two
pick-up trucks that Cano had been driving could not be used to pay bail or whether
she had any equity left in her house.
Based on the conflicting evidence from Gaitan and the lack of evidence
regarding Cano’s financial condition, the trial court could have reasonably
determined that these factors weigh against the current bail being excessive. See Ex
parte Chavfull, 945 S.W.2d 183, 186–87 (Tex. App.—San Antonio 1997, no pet.)
(holding that bail reduction unwarranted when, among other facts, defendant
provided no evidence of his own individual resources).7
The future safety of the victim and the community.
A defendant’s criminal history must also be evaluated in setting bail to
determine whether he presents a danger to the community. Nimnicht, 467 S.W.3d at
69. Cano’s habeas application states that his “release will not pose any threat to any
member of the community” and that he had been out on his previous bond between
November 2020 and July 2022 without incident. Although we agree that Cano’s
7
Even if Cano had established that he could not make bail, which he did not do, that
factor would not control over all other considerations. See Ex parte Charlesworth,
600 S.W.2d 316, 317 (Tex. Crim. App. 1980).
13
previous release for nearly two years without incident provides evidence that he was
not a danger to the community at that time, the trial court also had to consider Cano’s
overall criminal history in setting the current bail. Id.As detailed above, the indictment alleges that Cano was previously convicted
of aggravated assault with serious bodily injury and possession of a controlled
substance, which Cano did not dispute at the habeas hearing. Gaitan also testified
that Cano’s criminal history included resisting arrest in 2016, DWI in 2018, and
felon in possession of a firearm in 2018. And, according to the State, Cano was
additionally being charged with evading arrest and another felon in possession of a
firearm in Kimble County.
Considering Cano’s long and recurring criminal history, the trial court could
have reasonably determined that Cano posed a continuing danger to the community.
This factor therefore also weighs against the current bail being excessive.
Other factors.
Additional factors to consider in reviewing a bond decision include the
defendant’s work record, family ties, length of residency, past criminal record,
conformity with the conditions of any previous bond, other outstanding bonds, and
aggravating factors involved in the offense. See Rubac, 611 S.W.2d at 849–50.
As previously stated, the trial court originally set Cano’s bond at $250,000,
which he posted in November 2020, and the record does not show that he violated
14
any of the conditions of that bond. Thus, this is some evidence that Cano’s current
bond amount could be excessive.
At the habeas hearing, Gaitan testified that she had been married to Cano for
eight years, but neither Gaitan nor Cano presented any evidence about Cano’s
residence history or family ties to the community. Also, aside from a letter by an
employer where Cano worked in 2021, there is no evidence of Cano’s overall work
history. Moreover, Cano’s significant and recurring criminal history, as detailed
above, is a substantial consideration.
Taken together, these additional factors likewise do not weigh in favor of
Cano’s bond being excessive. Rather, they support the conclusion that the trial court
did not act arbitrarily or unreasonably by denying Cano’s application to reduce his
current bond. See Ex parte Davila, No. 04-19-00276-CR, 2019 WL 4280067, at *2–
3 (Tex. App.—San Antonio Sept. 11, 2019, no pet.) (mem. op., not designated for
publication) (noting that evidence of defendant’s inability to afford bail and his
family ties to community were not enough to establish bail amount set by trial court
was excessive).
In sum, Cano had the burden to demonstrate that his current bail amount falls
outside the zone of reasonable disagreement. See Montalvo, 315 S.W.3d at 592.
Considering the record as a whole under Texas law, and in a light most favorable to
the trial court’s ruling, we conclude that Cano has not satisfied that burden. As a
15
result, we cannot say that the trial court abused its discretion in setting the current
bail amount or in denying Cano’s habeas application.
Conclusion
We therefore affirm the trial court’s order denying Cano’s application for
habeas corpus relief.
Terry Adams
Chief Justice
Panel consists of Chief Justice Adams and Justices Kelly and Goodman.
Do not publish. TEX. R. APP. P. 47.2(b).
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