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 at

849–50.

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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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