Ex Parte William Soloman Lewis

Opinion issued January 20, 2022.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-21-00509-CR
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EX PARTE WILLIAM SOLOMON LEWIS, Appellant
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Case No. 1733113
MEMORANDUM OPINION
William Solomon Lewis contends that the trial court abused its discretion by
reducing his bail insufficiently. We affirm the trial court’s order.
I. Background
Lewis was arrested and charged with tampering with a witness. See TEX.
PENAL CODE § 36.05(d). The trial court set Lewis’s bail at $45,000. Lewis applied
for a writ of habeas corpus to reduce his bail from $45,000 to $5,000. The trial court
granted partial relief by reducing Lewis’s bail to $35,000. Lewis appeals, contending
that the lowered amount violates the constitutional prohibitions against excessive
bail. See U.S. CONST. amends. VIII, XIV; TEX. CONST. art. I, §§ 11, 13.
II. Standard of Review
We review a claim of excessive bail by the trial court for an abuse of
discretion. See Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. 1981). To
determine whether a trial court abused its discretion, we decide whether the trial
court acted “without reference to any guiding rules or principles.” Montgomery v.
State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). Under this standard, we will
not reverse the trial court’s decision if it is “within the zone of reasonable
disagreement.” See Ex parte Dupuy, 498 S.W.3d 220, 230 (Tex. App.—Houston
[14th Dist.] 2016, no pet.).
III. Applicable Law
“The primary purpose or object of an appearance bond is to secure the
presence of a defendant in court for the trial of the offense charged.” Ex parte
Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. 1980). Courts should set bail high
enough to give reasonable assurance that the defendant will appear at trial but not so
high that it becomes an instrument of oppression. TEX. CODE CRIM. PROC. art. 17.15;
Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. 1980). The defendant’s right to
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be free from excessive bail is protected by the United States and Texas Constitutions.
See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 11.
The defendant bears the burden of showing that the bail set is excessive. Ex
parte Rubac, 611 S.W.2d at 849. The determination of the proper bail amount is
within the trial court’s discretion. Brown v. State, 11 S.W.3d 501, 502 (Tex. App.—
Houston [14th Dist.] 2000, no pet). But that determination is subject to these 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. Courts may also consider (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) other outstanding bonds; and (7)
aggravating factors involved in the charged offense. Ex parte Rubac, 611 S.W.2d at849–50.
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IV. Analysis
Lewis argues that the bail amount of $35,000 is unconstitutionally excessive.
Lewis did not offer evidence on bail. Nor is there any record of what was said at the
hearing about Lewis’s application. We must review the trial court’s ruling against
the relevant criteria used to rule. See Montalvo v. State, 315 S.W.3d 588, 593 (Tex.
App.—Houston [1st Dist.] 2010, no pet.). We review the factors listed above to
determine whether the bail amount set is excessive.
1. Sufficient Bail to Assure Appearance
First, the trial court must set a sufficient bond to secure the defendant’s
appearance at trial of the offense charged. TEX. CODE CRIM. PROC. art. 17.15; Ex
parte Rodriguez, 595 S.W.2d at 550. Lewis’s work history and ties to the community
bear on the amount of bail that will suffice to ensure that Lewis will appear for trial.
See Richardson v. State, 181 S.W.3d 756, 759 (Tex. App.—Waco 2005, no pet.). A
defendant’s compliance with past bonds also is relevant in determining the bail
required to assure appearance at trial. Id.Here, the evidence is thin and the Rubac factors provide Lewis little support.
There is no evidence of his work history. The record’s only mention of any sort of
ties to the community is the address listed for Lewis in his indictment. But there is
no evidence to show Lewis’s length of residency. As for compliance with other
bonds, the only mention of bond conditions is in his application for writ of habeas
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corpus. Lewis contends that the State misled the trial court when it stated he had
failed to appear in a prior felony case. With no more than an address on an indictment
and a denial of a prior bond violation, this factor weighs against finding that the trial
court abused its discretion in setting a sufficient bond.
2. Using Bail as an Instrument of Oppression
Second, courts are required to ensure that bail is not being used oppressively.
TEX. CODE CRIM. PROC. art. 17.15; Ex parte Durst, 148 S.W.3d 496, 499 (Tex.
App.—Houston [14th Dist.] 2004, no pet.). When bail is solely set to prevent a
defendant from getting out of jail it is being used as an instrument of oppression. See
Ex parte Durst, 148 S.W.3d at 499. We consider whether Lewis has shown that the
trial court’s decision was made solely to prevent him from getting out of jail. See
Milner v. State, 263 S.W.3d 146, 149 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Here, there is no evidence in the record that the trial court set Lewis’s bail
amount solely to prevent Lewis’s release pending trial. See Ex parte Dupuy, 498
S.W.3d at 233. In fact, the trial court reduced Lewis’s bond amount. See id. Thus,
the lack of evidence on the motivation for setting bail weighs against a determination
that the amount was excessive. See Montalvo, 315 S.W.3d at 596.
3. Nature of the Offense and the Circumstances of its Commission
Third, the trial court considers the nature and circumstances of the offense.
See TEX. CODE CRIM PROC. art. 17.15. Lewis was charged with tampering with a
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witness, a third-degree felony. TEX. PEN. CODE § 36.05(d). The indictment alleges
he wrote a letter to a complainant in another criminal case stating, “You must not
show up! . . . Do Not contact the District attorney or the court to inform them about
this letter’s content . . . If you insist on showing up I could be well into my mid-to
late 50’s before I ever see the streets again.”
Additionally, when we consider the nature and circumstances of the offense
we must note the punishment range upon conviction. See Ex parte Rodriguez, 595
S.W.2d at 550. The normal range of punishment for a third-degree felony is two to
ten years’ confinement and a maximum fine of $10,000. TEX. PEN. CODE § 12.34.
Lewis’s indictment contains enhancement paragraphs alleging prior felony
convictions for possession of an unregistered firearm and for retaliation. If proven,
these enhancements raise the punishment to a minimum of 25 years to 99 years or
life imprisonment. TEX. PEN. CODE § 12.42(d). When a defendant is facing a
potentially lengthy sentence he might not appear for trial, so bond must be set
sufficiently high to secure his presence. See Ex parte Hulin, 31 S.W.3d 754, 761
(Tex. App.—Houston [1st Dist.] 2000, no pet.).
Considering the nature of the offense and the potential range of punishment,
this factor supports a conclusion that the trial court acted reasonably. See Ex parte
Rubac, 611 S.W.2d at 849.
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4. Ability to Make Bail
Fourth, courts must consider a defendant’s ability to make bail. TEX. CODE
CRIM PROC. art. 17.15. To establish an inability to make bail, a defendant generally
must prove that their personal and family funds have been exhausted. See Milner v.
State, 263 S.W.3d at 149. The defendant’s ability to make bail is only one factor that
must be considered when determining the appropriate bail amount. See Ex parte
Vance, 608 S.W.2d 681, 683 (Tex. Crim. App. 1980) (the defendant’s inability to
make bail does not automatically make it excessive); Ex parte Castillo–Lorente, 420
S.W.3d 884, 889 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (same).
Lewis contends that he “has only minimal financial resources” but that he
could access funds to have a bondsman post a $5,000 bond. But that statement,
standing alone, is not evidence about his financial resources or any efforts he has
made to make bail. See Ex parte Castillo–Lorente, 420 S.W.3d at 889. Besides,
evidence of the largest bond the defendant can make does not establish inability to
make bail. See Ex parte Ruiz, 129 S.W.3d 751, 754 (Tex. App.—Houston [1st Dist.]
2004, no pet.). And so, with no evidence to the contrary, the trial court could have
concluded that the bail set was reasonable.
5. Safety of the Community
Fifth, the trial court had to consider the future safety of the community when
it set Lewis’s bail. TEX. CODE CRIM PROC. art. 17.15. As mentioned above, the
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indictment included Lewis’s statement urging a complainant to not speak to the
District Attorney or the court. It also identified previous felony convictions for
possession of an unregistered firearm and retaliation. With that in mind, the trial
court could have reasonably could found that Lewis was at least a danger to the
person he tried to coerce. See Ex parte Scott, 122 S.W.3d 866, 870 (Tex. App.—Fort
Worth 2003, no pet.) (considering the future safety of the victim).
6. Other Factors
Courts also consider the seven Rubac 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 compliance
with previous bond conditions; (6) other outstanding bonds; and (7) aggravating
factors in the charged offense. See Ex parte Rubac, 611 S.W.2d at 849–50. We have
already considered the first three factors and the fifth factor when we analyzed
whether there was sufficient bail to assure Lewis’s appearance. We now turn to the
remaining three factors, the defendant’s prior criminal record, other outstanding
bonds, and aggravating factors in the charged offense.
As for Lewis’s prior criminal record, there is no evidence about it besides the
prior two felony convictions mentioned in his indictment. There is also no evidence
about any outstanding bonds or aggravating factors involved in this offense. As a
result, based on the evidence before the trial court in this case, the court could have
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reasonably concluded that only reducing Lewis’s bail to $35,000 was appropriate.
Lewis has not shown that the trial court abused its discretion by reducing his bond
to $35,000. Thus, we overrule his sole issue.
V. Conclusion
We affirm the trial court’s order.
Sarah Beth Landau
Justice
Panel consists of Chief Justice Radack and Justices Kelly and Landau.
Do not publish. TEX. R. APP. P. 47.2(b).
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