Abundio Vazquez v. State

AFFIRM; Opinion Filed April 24, 2013.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00165-CR
No. 05-13-00166-CR
EX PARTE ABUNDIO VAZQUEZ
On Appeal from the 397th Judicial District Court
Grayson County, Texas
Trial Court Cause Nos. 061906, 061907
MEMORANDUM OPINION
Before Justices Moseley, O'Neill, and Lewis
Opinion by Justice Moseley
Abundio Rivera is charged–in each of two indictments involving separate complainants–
with two counts of improper photography or visual recording. See TEX. PEN. CODE. ANN. §
21.15(b)(1), (2) (West 2011). After appellant’s pretrial bond was revoked following a hearing on
the State’s motion, appellant filed an application for writ of habeas corpus seeking reinstatement
of the bond. Following a hearing, the trial judge denied appellant the relief he sought. In his
sole issue on appeal, appellant asserts the United States and Texas Constitutions protect him
from being held without bond pending trial for two “non-violent state jail felonies” based solely
on a finding of substantial evidence that he committed a Class C misdemeanor offense in
violation of the condition of bond that he commit no offense against any state or the United
States. We affirm the trial court’s order denying appellant habeas corpus relief.
Background
On June 6, 2012, appellant was named in two indictments, each of which alleged two
counts of improper photography or visual recording. The charges in trial court number 061906
arose from events alleged to have occurred on May 8, 2011. The charges in trial court number
061907 arose from events alleged to have occurred on March 30, 2011. The trial court set
appellant’s bond at $10,000 in the first case and $20,000 bond in the second case. Condition (4)
of each bond was that appellant “commit no offense against any State or the United States.” On
November 12, 2012, the State filed motions to revoke appellant’s bonds, alleging he failed to
comply with condition (4) in that he committed the offense of disorderly conduct on October 25,
2012 in Collin County.
At the December 12, 2012 hearing on the State’s motion, evidence was presented that on
October 25, 2012, appellant had been observed and videotaped crawling underneath a clothing
rack and looking up the dress of a female shopper. As a result he was charged with disorderly
conduct.
Evidence was also presented regarding the results of a search warrant that was executed
at appellant’s house. Officers seized digital media cards, a digital camera, and appellant’s
computer. They sent the digital media to a computer lab for analysis. The analysis revealed
almost 2000 short videos showing appellant following women around retail establishments and
in a mall. There were also videos of children wearing short skirts at a bus stop near appellant’s
house. One video showed appellant underneath a truck videoing women as they got into their
vehicles. All of the women were wearing short skirts. During one or two of the videos,
appellant videotaped his own face.
There was also evidence presented that, during the course of the investigation, it was
determined that appellant had an outstanding warrant for indecent exposure.
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At the conclusion of the hearing, the trial court revoked appellant’s bond in each case.
On December 26, 2012, appellant filed applications for writ of habeas corpus seeking
reinstatement of the bonds. Appellant asserted he was entitled to bail as a matter of law and the
limited exceptions which allow for denying bail do not apply to his cases. On January 16, 2013,
the trial court conducted a hearing on appellant’s application. No new testimony was presented
at this hearing. Appellant’s attorney argued the revocation of appellant’s bond violated the
Texas Constitution because the condition that he not commit an offense against any State or the
United States did not give appellant fair notice of what conduct was prohibited.
At a January 29, 2013 hearing on appellant’s “motion for new trial” as to the habeas
application, appellant’s wife testified she learned of appellant’s pending charges from a news
reporter who had come to her home. She testified the family relied on appellant’s income for
support, she wanted to go to counseling, and she would not have a problem with a bond
condition that required appellant to wear an ankle monitor and to stay out of retail
establishments.
The trial court denied the relief sought by his application for writ of habeas corpus by
written order.
Applicable Law
In reviewing the trial court’s decision to grant or deny habeas corpus relief, we view the
facts in the light most favorable to the trial judge’s ruling. Ex parte Peterson, 117 S.W.3d 804,
819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219
S.W.3d 335 (Tex. Crim. App. 2007). We will uphold the trial court’s ruling absent an abuse of
discretion. Id. In conducting our review, we afford almost total deference to the judge’s
determination of the historical facts that are supported by the record, especially when the fact
findings are based on an evaluation of credibility and demeanor. Id. We afford the same amount
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of deference to the trial judge’s application of the law to the facts, if the resolution of the
ultimate question turns on an evaluation of credibility and demeanor. Id. If the resolution of the
ultimate question turns on an application of legal standards, we review the determination de
novo. Id.
Analysis
1. Article 1, Section 11b
Appellant first contends that article 1, sections 11a and 11b of the Texas Constitution
must be read together so that, upon revocation of bail under section 11b, new bail may only be
denied under circumstances that comport with section 11a. The State responds that appellant’s
contention is not supported by the plain language of sections 11a and 11b, statute, or case law.
In interpreting the Texas Constitution, our duty is “to ascertain and give effect to the
plain language and intent of the framers and of the people who adopted it.” Wilson v. Galveston
Cnty. Cent. Appraisal Dist., 713 S.W.2d 98, 101 (Tex. 1986) (quoting Gragg v. Cayuga Indep.
Sch. Dist., 539 S.W.2d 861, 866 (Tex. 1976)). In construing a constitutional amendment, we
look both to the evil sought to be cured and the remedy sought to be applied. Markowsky v.
Newman, 134 Tex. 440, 449, 136 S.W.2d 808, 813 (1940). We presume the language used in the
amendment was carefully selected and the words used are to be interpreted as the people
generally understood them. See id.
Article 1, section 11b of the Texas Constitution, which governs violation of conditions of
release pending trial and the denial of bail, states:
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 the safety of the community.
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TEX. CONST. art. I, § 11b.
Article 1, section 11a provides for the denial of bail at the outset for individuals charged
with a felony offense and who meet one of the criteria set forth in section 11a. See TEX. CONST.
art. I, § 11a. Section 11b, on the other hand, governs situations in which bail, although initially
granted, has been revoked because the defendant violated a condition of his release. It allows for
the subsequent denial of bail, limited by two conditions: (1) the defendant is charged with a
felony; or (2) the defendant is charged with an offense involving family violence. Nothing in the
plain language of section 11b limits the denial of bail following revocation to those conditions
set forth in section 11a, nor has the Court found any Texas case that has held section 11b is
limited by section 11a. 1
Based on a plain reading of section 11b, we conclude that nothing in it restricts its
application to bond revocations based on the commission of a new serious felony offense.
Rather, the plain language of the provision is for the revocation and subsequent denial of bond to
an individual who has been shown by a preponderance of the evidence to have violated a
condition of his bond. See TEX. CONST. art. I, § 11b. We also conclude this is consistent with
the evil that article 1, section 11b sought to be cured––that is individuals committing new crimes
after they have been released on bond for a felony offense. See Markowsky, 134 Tex. at 449, 136
S.W.2d at 813.
2. Vagueness and Due Process
Appellant next contends the condition that he commit no offense against the law of any
state or the United States was unconstitutionally vague so as to deprive him of Due Process
because it did not put him on notice his bond could be revoked and he could be denied further
1
Cf. Heath Coffman, A Look at the New Texas Constitution Article 1, Section 11B, 59 Baylor L. Rev. 241, 254–57 (2007) (discussing
distinctions between sections 11a and 11b).
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bail on the basis of a Class C misdemeanor. The State responds that appellant did not challenge
this condition of bond at the time it was imposed, and he may not use this habeas corpus
proceeding to collaterally attack his bond conditions.
Appellant did not object to the bond conditions at the time they were imposed. He made
no objection to the condition of bond until after he violated it. 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. See Smith v. State, 993 S.W.2d 408, 411 (Tex. App.––Houston [14th
Dist.] 1999, pet. ref’d) (citing Ex parte Crispen, 777 S.W.2d, 103, 105 (Tex. Crim. App. 1989);
Ex parte Russell, 738 S.W.2d 644, 647 (Tex. Crim. App. 1986)).
Moreover, contrary to appellant’s assertion, we conclude the condition of bond that he
“commit no offense against any State or the United States” was neither vague nor ambiguous.
The condition clearly identified what conduct was required of appellant while he was on bond
for the two state jail felony offenses with which he is charged. It also put appellant on notice that
he was subject to having his bond revoked if he did commit an offense against any state or the
United States.
Finally, the record shows that while appellant was on bail for two state jail felony
offenses in Grayson County, he was charged with committing a new offense in Collin County
that involved similar conduct to that involved in the Grayson County charges. The trial court
heard testimony regarding both the Grayson County offenses and the Collin County offense. We
conclude the evidence supports the trial court’s finding that appellant violated a condition of his
bond that was necessary for the safety of the community. See TEX. CONST. art. I, § 11b. Thus,
the trial court did not abuse its discretion in revoking appellant’s bond and denying him a new
bond.
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We overrule all of appellant’s issues. We affirm the trial court’s orders denying appellant
the relief sought by his application for writ of habeas corpus.
/Jim Moseley/
JIM MOSELEY
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
130165F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EX PARTE ABUNDIO VAZQUEZ On Appeal from the 397th Judicial District
Court, Grayson County, Texas
No. 05-13-00165-CR Trial Court Cause No. 061906.
Opinion delivered by Justice Moseley,
Justices O’Neill and Lewis participating.
Based on the Court’s opinion of this date, we AFFIRM the trial court’s order denying
appellant the relief sought by his application for writ of habeas corpus.
Judgment entered this 24th day of April, 2013.
/Jim Moseley/
JIM MOSELEY
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EX PARTE ABUNDIO VAZQUEZ On Appeal from the 397th Judicial District
Court, Grayson County, Texas
No. 05-13-00166-CR Trial Court Cause No. 061907.
Opinion delivered by Justice Moseley,
Justices O’Neill and Lewis participating.
Based on the Court’s opinion of this date, we AFFIRM the trial court’s order denying
appellant the relief sought by his application for writ of habeas corpus.
Judgment entered this 24th day of April, 2013.
/Jim Moseley/
JIM MOSELEY
JUSTICE
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