Opinion
No. 02-18-00513-CR
02-28-2019
JORDAN AWADALLA, Appellant v. THE STATE OF TEXAS
On Appeal from the 89th District Court Wichita County, Texas
Trial Court No. 59,400-C Before Sudderth, C.J.; Kerr and Pittman, JJ.
MEMORANDUM OPINION
Appellant Jordan Awadalla appeals the trial court's denial of his application for writ of habeas corpus seeking a bail reduction. Because Awadalla did not meet his burden to show that the required bail is oppressive and we do not view the trial court's denial of Awadalla's request as an abuse of discretion, we affirm the trial court's order.
Background
In September 2017, Awadalla was charged with sexual assault of a child, Angelica. See Tex. Penal Code Ann. § 22.011(a)(2). The trial court ordered Awadalla confined to the Wichita County Jail and set a bail amount of $100,000. In June 2018, Awadalla applied for a writ of habeas corpus in which he argued that the bail amount was "excessive, oppressive and beyond his financial means" in violation of the United States and Texas constitutions and the code of criminal procedure. Awadalla asked the court to release him on his own recognizance or to reduce the amount of bail required.
We refer to the complainant by an alias to protect her privacy. See McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
The trial court considered Awadalla's request at a pretrial hearing. The following is a summary of the evidence presented at the hearing.
Awadalla lived in Oklahoma "[o]ff and on" for about ten years prior to his arrest. He testified that he was a self-employed entrepreneur and worked as a media consultant and at a barbecue restaurant. At the time that he was arrested, Awadalla was making arrangements to move from Oklahoma to Los Angeles, California.
In an October 2016 arrest warrant, Detective Jonathan Zellner with the Burkburnett Police Department alleged that Angelica's mother (Mother) contacted the police when she learned that Angelica, who lived in Wichita Falls during the summer but in Oklahoma during the schoolyear with her grandmother, had snuck out of the house in August or September 2016, had met up with Awadalla, and had engaged in sexual intercourse in his vehicle while it was parked down the street. According to Detective Zellner's affidavit, Mother knew the two had been seeing each other but Angelica believed Awadalla was 18 years old. Mother became suspicious and eventually learned that Awadalla was 31 years old, was married, and had a child. She contacted Awadalla and told him to leave Angelica alone; shortly after that, Angelica admitted to Mother that she had engaged in sex with Awadalla on multiple occasions. According to the arrest warrant, Angelica did not know that Awadalla was 31 until Mother told her shortly before Mother reported Awadalla to the police.
The record before us does not specify Angelica's age, but the indictment alleges that she was under the age of 17.
Afraid that Awadalla would retaliate against her for reporting him to the police, Mother approached Oklahoma authorities and successfully obtained an emergency protective order against Awadalla. The December 2016 order of protection required Awadalla to wear a GPS-monitoring device for five years and prohibited him from contacting Angelica or her family.
In March 2017, Awadalla was convicted in an Oklahoma court of
• attempting to elude an officer and endangering another, a felony offense, see Okla. Stat. Ann. tit. 21, § 540A(B);Awadalla was sentenced to six months in jail to be followed by five years of probation.
• two counts of running a roadblock, a felony offense, see id. § 540B;
• unlawful possession of a controlled dangerous substance, marijuana, a misdemeanor, see id. tit. 47 § 6-303(B); and
• failure to stop, a misdemeanor, see id. § 11-204(A)(1).
While incarcerated in Wichita County, Awadalla wrote several letters to Angelica. Six letters, all multiple pages in length, were admitted into evidence. In them, Awadalla professed his love to Angelica and referred to her using various pet names, including "little girl," and "Ms. Awadalla." He likened their relationship to those of Bonnie and Clyde and Romeo and Juliet. Awadalla also made several sexually-explicit comments in some of the letters—some of which specifically described what he was going to do to her sexually when he was released from jail.
In one letter, Awadalla wrote, "Don't let me get you Alone BOOM I am gonna tear ya *** up, like a Lion an A rabbit babe for real workout, lift weight's, run, stretch, cause I'm not playing when I come home. I'm f****** up lipstick, makeup. I'm leaving Hickies, hand prints, soreness, cramps, c[ur]led toes, shaking legs, shaking hands, twitching eyes, f***** up hair you gone sleep good I am gonna make you snore lol." [sic]
Awadalla also used the letters to coach the complainant in how she could help him, as he put it at one point, "[b]eat this sh**." Awadalla directed her to google "sex with underage girl, case dismissed," to "see what got the cases dismissed," and told her to watch legal movies and TV shows such as A Few Good Men, Law & Order, The First 48, and a movie about "Teflon Don" so she could learn about police interrogations and the legal process. And he also directed her to destroy the paper trail: "Destroy all the letter's [sic] like this, Don't want them to come back and bite us."
According to evidence submitted by the State, Grandmother found some of the letters and reported them to Oklahoma authorities, who pursued charges that Awadalla had violated the terms of the protective order and of probation. Awadalla pleaded to a lesser charge of "seduction under a promise of marriage," a felony offense, in Oklahoma. See id. tit. 21, § 1120. He was convicted and sentenced to five years' imprisonment suspended for a two-year term of probation. Under the terms of probation, Awadalla was again prohibited from having any contact with Angelica or her family.
Awadalla offered and the trial court admitted an undated letter from Angelica. In it, Angelica claimed that she and Mother had lied to police about the allegations. Angelica stated that Mother had lied because she did not like Awadalla. Angelica claimed that she "wanted to tell the police the truth but [she] was intimidated by them [and] froze," and that once she lied she felt compelled to continue lying.
Awadalla testified there was no amount of bond that he could pay and requested that the trial court release him on his own recognizance. He testified that his first priority upon release would be to request that his Oklahoma probation term be transferred to Wichita County, that he would stay in an extended-stay hotel "for the first week or two" while he looked for an apartment with his grandmother (who did not attend the hearing), and that he would try to get a job with the local Iron Worker's Union based on his "prior labor experience working in the oil field." Awadalla testified that his only tie to Wichita Falls was the Jehovah's Witnesses but did not describe the nature or extent of any such tie. He also felt that being released on a personal-recognizance bond would better enable him to assist his attorney in preparing for trial.
The trial court denied the application by written order dated December 3, 2018.
Discussion
We review the trial court's ruling on a pretrial writ of habeas corpus for an abuse of discretion. Ex parte Gill, 413 S.W.3d 425, 428 (Tex. Crim. App. 2013). The habeas applicant bears the burden of proving that the required bail is excessive. Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981). The primary purpose of an appearance bond is to secure the accused's presence at trial on the offense charged. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977). A trial court should set bail high enough to reasonably assure that the defendant will appear at trial, but not so high that it operates as an instrument of oppression. Tex. Code Crim. Proc. Ann. art. 17.15. The trial court must consider the nature of the charged offense, the circumstances under which it was allegedly committed, the defendant's ability to make bail, and the future safety of any victim of the alleged offense and the community at large. Id. Other pertinent factors include family and community ties, work history, length of residence in the county, prior criminal record, and any aggravating factors of the offense. Rubac, 611 S.W.2d at 849-50.
Appellant stands charged with sexually assaulting a child, a second-degree felony, and faces a possible sentence of two to twenty years in prison and a possible fine of up to $10,000. See Tex. Penal Code Ann. §§ 12.33(a), 22.011(f). Sexual assault of a child is a serious offense. Ex parte Hulin, 31 S.W.3d 754, 760 (Tex. App.—Houston [1st Dist.] 2000, orig. proceeding). As Awadalla was no doubt aware, his letters from jail to Angelica, sexually explicit and highly instructive on how Angelica should help him avoid conviction—even going so far as to encourage Angelica to destroy evidence—provided significant circumstantial evidence of his culpability and increased the likelihood that ultimately he could face a twenty-year prison sentence.
The letters also provided to the trial court further insight into the nature of the pair's relationship, sexual and otherwise. Awadalla used the letters to attempt to directly influence Angelica's statements to investigators and her future testimony in court—evidence of a coercive influence Awadalla may hold over Angelica. And Awadalla made it clear in his letters that he had no intent of leaving Angelica alone and that he intended to continue to pursue a relationship with her, regardless of court orders. The trial court could have reasonably seen these statements as presenting a risk to Angelica's safety if Awadalla were to be released. See id. at 762 (upholding $150,000 bail set in case of a 31-year-old woman accused of criminal solicitation (a third-degree felony) and sexual assault of a 15-year-old boy (a second-degree felony) and considering importance of defendant having no contact with victim). The seriousness of the charge against Awadalla and these aggravating factors—his continued contact with Angelica, his expressed desire to be with her once released, and his attempts to influence her testimony—support the high amount of bail in this case. See id.; see also Ex parte Dupuy, 498 S.W.3d 220, 230-31 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding) (upholding $200,000 bail set for charges of third-degree-felony online impersonation due in part to aggravating factors of offense); Ex parte Bennett, No. 2-07-00175-CR, 2007 WL 3037908, at *3 (Tex. App.—Fort Worth Oct. 18, 2007, orig. proceeding) (mem. op., not designated for publication) (emphasizing the consideration of the victim's safety as a factor in determining bail in a sexual-assault-of-a-child case).
Awadalla's criminal history and lack of ties to Wichita County further support the high amount of bail in this case. Awadalla's convictions in Oklahoma for eluding officers, failing to stop, and failing to stop for a roadblock, evidence additional disregard for legal authority. According to the record, Awadalla had no ties to Wichita County, except for an unsubstantiated and questionable claim that he had ties to a Jehovah's Witnesses congregation there. He also testified that before he was arrested he was making arrangements to move to California. Thus, sufficient evidence was presented such that the trial court could have reasonably determined that Awadalla posed a potential flight risk. Hulin, 31 S.W.3d at 761-62 (considering that defendant's primary residence was out of state and she did not have ties to Houston). Nor was the trial court required to accept Awadalla's argument that any flight risk was minimized by the Oklahoma protective order's requirement that he be subject to GPS monitoring. Awadalla offered no authority, nor are we aware of any, that Texas authorities would have any access to monitoring governed by an Oklahoma order and presumably facilitated through Oklahoma authorities.
Not only did Awadalla fail to describe any ties he might have with the Jehovah's Witnesses, Awadalla also introduced into evidence a letter from Angelica that alleged that Awadalla was Muslim.
Awadalla admitted that he could not pay anything for bail, though he did not testify to any efforts to pay bail. See Ex parte Balawajder, 759 S.W.2d 504, 506 (Tex. App.—Fort Worth 1988, pet. ref'd) (holding that appellant's "vague references" to his inability to make bail did not meet burden to show bail was oppressive). Although worth considering, inability to make bail does not control over the other factors. Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. [Panel Op.] 1980); Ex parte Brown, 959 S.W.2d 369, 372 (Tex. App.—Fort Worth 1998, no pet.) ("Simply because a defendant cannot meet the bond set by the trial court does not automatically render the bail excessive."). Even if we were to disregard the lack of evidence that Awadalla attempted to make bail, any extent to which his inability to pay weighs in favor of a reduction of the bail amount does not outweigh the other factors we have discussed and which weigh against such a reduction.
Based on our review of the record before us, Awadalla did not meet his burden to show the required bail is oppressive, and we do not view the trial court's denial of his request for a bail reduction or release on personal recognizance as an abuse of discretion.
Conclusion
We affirm the trial court's order denying the requested bail reduction.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice Do Not Publish
Tex. R. App. P. 47.2(b) Delivered: February 28, 2019