in Re Erik Ramos II

NUMBER 13-22-00497-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE ERIK RAMOS II
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Tijerina
Memorandum Opinion by Chief Justice Contreras1
Relator Erik Ramos II filed a petition for writ of mandamus asserting that the trial
court “violated the Relator’s Due Process rights secured under the United States
Constitution and Due Course of Law under the Texas Constitution” by revoking relator’s
bond: (1) without proper notice; (2) without the benefit of a hearing; and (3) without
allowing relator’s counsel to put on evidence or make an offer of proof before revoking
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R.
47.4 (distinguishing opinions and memorandum opinions).
relator’s bond. 2 We conditionally grant the petition for writ of mandamus in part and deny
it in part as stated herein.
I. BACKGROUND
On August 9, 2022, relator was indicted on two counts of aggravated assault with
a deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a)(2). Relator was released on a
$25,000 surety bond. On or about September 27, 2022, the State filed a motion to revoke
relator’s bond on grounds that relator had violated a special condition of his bond requiring
him to “have no direct or indirect communication or contact” with the complainant in the
case. The State’s motion alleged that relator sent the complainant a text message
threatening to kill him. A copy of the alleged offending text message was attached as an
exhibit to the motion, but the motion was not verified and the exhibit was not otherwise
authenticated.
The trial court held a pre-trial hearing on September 29, 2022. 3 At the hearing, the
State’s attorney referenced its motion to revoke as follows:
The State recently filed a motion to revoke the defendant’s bond. At the
docket call defendant was not present but was given an attorney, and at
that time State moved to impose new bond conditions. I wanted to make
sure the defendant, you know, had been admonished and that he knew
about those bonds, because we have a motion to revoke bond conditions
that I’m going to need it set pretty soon, so I want to make sure all of that
was on the record.
2 This original proceeding arises from trial court cause number B-22-2101-0-CR-B in the 156th
District Court of Bee County, Texas, and the respondent is the Honorable Janna Whatley, sitting as
presiding judge of that court. See id. R. 52.2.
3 The reporter’s record for the pre-trial hearing is dated both September 29, 2022 and October 29,
2022; however, this hearing clearly took place on September 29, 2022. The reporter’s record also
incorrectly identifies the presiding judge as the Honorable Patrick Flanigan. These discrepancies are not
material to our analysis in this original proceeding.
2
The trial court queried whether the “additional terms of bond” were put on the record, and
relator’s counsel offered to “stipulate that they served [relator] with notice at the docket
call” and stated that he had “spoken with [relator] that he is not to have any contact with
the victim.” In response, the trial court stated, “I’m revoking his bond today. He will go to
jail.” Relator’s counsel asked the trial court to “hold on,” and relator interjected that he
“[had] not done anything wrong,” and he “[had] evidence to prove that.” Relator’s counsel
then addressed the judge, stating that, “[B]efore you revoke his bond[,] I believe I’m
allowed an opportunity to present evidence.” The trial court responded that, “No, you’re
not. It’s a felony bond, and I can revoke the bond any time I feel comfortable with it. If I
feel the victim is being threatened, I am revoking his bond.” After a further interjection
from relator, the trial court reiterated that it “[had] ruled. Sorry. Nothing further. I’ll not put
up with anything like that.” The relator was then escorted from the courtroom. Relator’s
counsel then informed the judge that, “I believe I need to have an opportunity to proffer
some evidence.” The trial court refused.
This original proceeding ensued. Relator contends that the trial court’s actions
constituted error. By order issued on October 21, 2022, this Court requested the State of
Texas, acting by and through Jose Aliseda, the District Attorney of Bee County, Texas,
to file a response to the petition for writ of mandamus. See TEX. R. APP. P. 52.4, 52.8(a),
(b). Nevertheless, the State did not file a response to the petition for writ of mandamus.
II. MANDAMUS
To be entitled to mandamus relief, the relator must establish both that the act
sought to be compelled is a ministerial act not involving a discretionary or judicial decision
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and that there is no adequate remedy at law to redress the alleged harm. See In re Meza,
611 S.W.3d 383, 388 (Tex. Crim. App. 2020) (orig. proceeding); In re Harris, 491 S.W.3d
332, 334 (Tex. Crim. App. 2016) (orig. proceeding) (per curiam); In re McCann, 422
S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). If the relator fails to meet both
requirements, then the petition for writ of mandamus should be denied. State ex rel.
Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.
App. 2007) (orig. proceeding).
“An act is purely ministerial if the relator has a clear and indisputable right to the
relief sought, i.e., when the facts and circumstances of the case dictate but one rational
decision under unequivocal, well-settled, and clearly controlling legal principles.” In re
Yeager, 601 S.W.3d 356, 358 (Tex. Crim. App. 2020) (orig. proceeding); see In re State
ex rel. Ogg, 618 S.W.3d 361, 363 (Tex. Crim. App. 2021) (orig. proceeding). “In some
cases, a remedy at law may technically exist; however, it may nevertheless be so
uncertain, tedious, burdensome, slow, inconvenient, inappropriate or ineffective as to be
deemed inadequate.” Smith v. Flack, 728 S.W.2d 784, 792 (Tex. Crim. App. 1987) (orig.
proceeding) (en banc); see In re Medina, 475 S.W.3d 291, 297 (Tex. Crim. App. 2015)
(orig. proceeding).
III. BAIL
The Texas Constitution provides, in part, that, “[a]ll prisoners shall be bailable by
sufficient sureties, unless for capital offen[s]es, when the proof is evident; but this
provision shall not be so construed as to prevent bail after indictment found upon
examination of the evidence, in such manner as may be prescribed by law.” TEX. CONST.
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art. I, § 11; see also TEX. CODE CRIM. PROC. ANN. art. 1.07 (“Any person shall be eligible
for bail unless denial of bail is expressly permitted by the Texas Constitution or by other
law.”). “The power to deny bail cannot and ‘will not be used as an instrument of
oppression.’” Pharris v. State, 165 S.W.3d 681, 689 (Tex. Crim. App. 2005) (quoting
Taylor v. State, 667 S.W.2d 149, 151 (Tex. Crim. App. 1984)). “The primary purpose of
bail is to secure the defendant’s appearance at trial.” Ex parte Carter, 621 S.W.3d 355,
358 (Tex. App.—San Antonio 2021, no pet.). The Texas Constitution also provides,
however, that bail may be denied in certain circumstances. See TEX. CONST. art. I, §§ 11a,
11b, 11c. The Texas Constitution authorizes denial of bail is when an accused has
violated a condition of his pretrial release related to the safety of the community. Id. art.
I, § 11b. Article I, § 11b provides,
Any person who is accused in this state of a felony or an offense involving
family violence, who is released on bail pending trial, and whose bail is
subsequently revoked or forfeited for a violation of a condition of release
may be denied bail pending trial if a judge or magistrate in this state
determines by a preponderance of the evidence at a subsequent hearing
that the person violated a condition of release related to the safety of a
victim of the alleged offense or to the safety of the community.
Id.; see Ex parte McIntyre, 558 S.W.3d 295, 299–300 (Tex. App.—Fort Worth 2018, pet.
ref’d).
IV. ANALYSIS
As stated previously, relator contends that the trial court erred by revoking his bond
without notice or a hearing and by refusing to allow relator’s counsel to put on evidence
or make an offer of proof before revoking the bond.
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First, as a preliminary matter, it is clearly apparent from the record that the State’s
motion to revoke bond was not set to be heard at the pre-trial hearing held on October
29, 2022. At the inception of the hearing, counsel for the State ensured that the relator
was aware of the bond conditions and expressly stated that the State was “going to need
[the motion to revoke] set pretty soon.” In this regard, Article 28.01 of the code of criminal
procedure, governing pre-trial hearings, requires the trial court to provide notice to the
parties regarding the pre-trial hearing, including what matters will be addressed at the
hearing. See TEX. CODE CRIM. PROC. ANN. art. 28.01. In relevant part, Article 28.01
provides:
Sec. 1. The court may set any criminal case for a pre-trial hearing before it
is set for trial upon its merits, and direct the defendant and his attorney, if
any of record, and the State’s attorney, to appear before the court at the
time and place stated in the court’s order for a conference and hearing. The
defendant must be present at the arraignment, and his presence is required
during any pre-trial proceeding. The pre-trial hearing shall be to determine
any of the following matters . . . .
....
Sec. 2. When a criminal case is set for such pre-trial hearing, any such
preliminary matters not raised or filed seven days before the hearing will not
thereafter be allowed to be raised or filed, except by permission of the court
for good cause shown; provided that the defendant shall have sufficient
notice of such hearing to allow him not less than 10 days in which to raise
or file such preliminary matters. The record made at such pre-trial hearing,
the rulings of the court and the exceptions and objections thereto shall
become a part of the trial record of the case upon its merits.
Id. art. 28.01, §§ 1, 2; see State v. Velasquez, 539 S.W.3d 289, 292–93 (Tex. Crim. App.
2018). In Velasquez, the court of criminal appeals concluded that the notice requirements
in Article 28.01 apply when the trial court decides to conduct a hearing on a specific pre-
trial setting date. See 539 S.W.3d at 292–93. Thus, for a specific pre-trial hearing, the
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statute requires the trial court to issue an order for a hearing directing the parties to appear
and indicating what matters will be litigated or addressed at the hearing. Id. at 293–94.
“This order should ordinarily ensure that the parties will have sufficient time to subpoena
any witnesses, conduct legal research as necessary, and otherwise prepare for
impending litigation.” Id. at 294. In contrast, when the judge simply wishes the parties to
litigate a matter prior to trial, or, for example, on the setting designated for “trial on the
merits,” the parties will have already undertaken these preparatory steps in the course of
getting ready for trial, and thus the hearing is “wholly within the judge’s purview,” and the
trial court is not required to give “advance notice” to the parties of the matters to be heard.
Id. Here, the matter was not set for trial, and the trial court did not provide notice that the
State’s motion to revoke would be heard at the pre-trial hearing.
Second, the trial court has discretion to revoke the bond if the court finds the bail
bond to be “defective, excessive or insufficient in amount, or that the sureties, if any, are
not acceptable, or for any other good and sufficient cause.” TEX. CODE CRIM. PROC. ANN.
art. 17.09, § 3; see Ex parte Gomez, 624 S.W.3d 573, 578 (Tex. Crim. App. 2021); Op.
Tex. Att’y Gen. No. KP-0270 (2019) (“Although no court has addressed the issue,
probable cause that a bond condition violation occurred likely would constitute “good and
sufficient cause” authorizing the court’s issuance of capias to secure the defendant’s
attendance at a revocation or bond-increase hearing.”). However, the trial court is not free
to “arbitrarily” revoke bond but must instead consider the “relevant circumstances.” Ex
parte Gomez, 624 S.W.3d at 579; see Ex parte King, 613 S.W.2d 503, 504–05 (Tex. Crim.
App. 1981) (“There is no evidence in this record to explain the action of the trial judge
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revoking the posted bail bond and increasing bail, other than his apparent displeasure
with counsel’s filing the motion for continuance and he having to grant same under law.
That does not constitute good and sufficient cause to revoke the bail posted by petitioner
or to increase the amount of bail.”); Meador v. State, 780 S.W.2d 836, 837 (Tex. App.—
Houston [14th Dist.] 1989, no pet.) (concluding that the failure to comply with a court order
requiring appellant to hire counsel and tardiness for hearing did not constitute good cause
to revoke bond).
Here, the State’s motion to revoke was based on its allegation that relator had
threatened the complainant and “is a danger to the victim and the community at large.”
Texas Code of Criminal Procedure Article 17.40 governs bond conditions related to victim
or community safety, and provides:
(a) 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.
(b) At a hearing limited to determining whether the defendant violated a
condition of bond imposed under Subsection (a), the magistrate may
revoke the defendant’s bond only if the magistrate finds by a
preponderance of the evidence that the violation occurred. If the
magistrate finds that the violation occurred, the magistrate shall
revoke the defendant’s bond and order that the defendant be
immediately returned to custody. Once the defendant is placed in
custody, the revocation of the defendant’s bond discharges the
sureties on the bond, if any, from any future liability on the bond. A
discharge under this subsection from any future liability on the bond
does not discharge any surety from liability for previous forfeitures
on the bond.
TEX. CODE CRIM. PROC. ANN. art. 17.40. Thus, an evidentiary hearing must be held to
determine if there has been a violation of a bond condition under this section. Id.; see
George E. Dix & John M. Schmolesky, TEXAS PRACTICE: CRIMINAL PRACTICE AND
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PROCEDURE § 21:69 (3d ed. 2011) (stating that article 17.40(b) “requires—or recognizes
requirements—that a hearing be held and that at the hearing the violation be proved by
a preponderance of the evidence.”). And, in evaluating the “preponderance of the
evidence” to determine if bond conditions should be revoked, the rules of evidence apply.
See TEX. R. EVID. 101(e)(3)(C); Ex parte Trevino, 648 S.W.3d 435, 440 (Tex. App.—San
Antonio 2021, no pet.). In the absence of probative evidence sufficient to meet the
preponderance of evidence standard, the trial court abuses its discretion in denying bond.
Ex parte Trevino, 648 S.W.3d at 440.
The State’s motion to revoke was not verified or supported by competent evidence.
In this regard, the copy of the text message attached to the motion to revoke was neither
verified nor authenticated. The trial court did not hold a hearing or consider evidence in
support of its decision to revoke bond, and thus could not have found that relator violated
the conditions of bond by a preponderance of the evidence. Further, the trial court refused
to allow relator to present argument or evidence regarding the alleged violation of bond.
Cf. Ex parte Sellers, 516 S.W.2d 665, 666 (Tex. Crim. App. 1974) (concluding that the
trial court committed error by refusing “to hear the evidence proffered by the appellant”
regarding the excessiveness of the bail ordered); see In re Christensen, 39 S.W.3d 250,
251 (Tex. App.—Amarillo 2000, orig. proceeding) (“Fundamental requirements of due
process mandate an opportunity to be heard.”). We conclude that the trial court failed in
its ministerial duty to follow the mandatory language of the code of criminal procedure.
See, e.g., In re Leger, 598 S.W.3d 469, 471 (Tex. App.—Houston [14th Dist.] 2020, orig.
proceeding) (“Under the mandatory language of this provision, a trial court has a
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ministerial duty to dismiss the underlying criminal charges against a defendant upon
completion of his term of deferred adjudication community supervision.”). Further, the
order at issue is not subject to interlocutory review, and accordingly, relator lacks an
adequate remedy by appeal. See Ex parte Carter, 621 S.W.3d 355, 357 (Tex. App.—San
Antonio 2021, no pet.).
V. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus
and the applicable law, is of the opinion that relator has met his burden to obtain relief, in
part, as stated here. Specifically, relator has asked that we order the trial court to release
him from custody and to hold a hearing regarding the alleged violation of his bond. In the
absence of a more complete record regarding the alleged underlying offense, the
allegations in the motion to revoke, and other conditions of bond, we decline to order
relator to be released, but we do order the trial court to immediately provide notice and
hold an evidentiary hearing regarding the revocation of bond. See, e.g., United States v.
Bowdach, 561 F.2d 1160, 1166 (5th Cir. 1977) (“Due process is satisfied by the granting
of a hearing immediately after the person is brought into custody in order to determine
whether the bond should be permanently revoked.”); cf. Ex parte Shockley, 683 S.W.2d
493, 495 (Tex. App.—Dallas 1984, pet. dism’d) (explaining that defendant’s remedy in
response to an ex parte order is to file application for writ of habeas corpus alleging
excessive bail where he will be granted his constitutional rights to notice and a hearing).
Accordingly, we conditionally grant the petition for writ of mandamus, in part, as
stated herein. We are confident that the trial court will act promptly in accordance with
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this opinion, and our writ will issue only if the trial court fails to comply. We deny the
petition for writ of mandamus, in part, as to all other relief requested.
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
13th day of January, 2023.
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