Opinion
No. 05-15-01312-CR No. 05-15-01313-CR
02-01-2016
EX PARTE ROBERT ANTHONY HUNT
On Appeal from the Criminal District Court No. 4 Dallas County, Texas
Trial Court Cause Nos. WX15-90038-K , WX15-90039-K
MEMORANDUM OPINION
Before Justices Francis, Evans, and Stoddart
Opinion by Justice Francis
Robert Anthony Hunt appeals the trial court's orders denying relief on his applications for writ of habeas corpus. In his sole issue on appeal, appellant contends the trial court's bail condition prohibiting him from contact with his children is unreasonable. We affirm.
Appellant was charged with sexual assault and indecency with a child allegedly committed against his stepdaughter. In addition to his stepdaughter, appellant and his wife have other children together. After appellant was charged, the trial court admitted him to bail with the condition that he have no contact with the victim's family or any minors. Subsequently, the trial court amended the conditions of bond to allow appellant to have contact with his children at a supervised visitation facility, with a facilitator, or in some form of unspecified indirect contact that did not include telephone or email.
During the writ hearing, trial counsel stated appellant had two children, ages six and eight. However, a motion filed by appellant in the trial court and the State's brief before this Court represent that there are four children.
Appellant filed applications for writ of habeas corpus to challenge the bond condition that he have no contact with his children. The writ applications ignored the trial court's intervening modification of the bond conditions. The trial court conducted a hearing on appellant's writ applications.
During the hearing, appellant presented no evidence. Instead, trial counsel and appellant informed the trial court that appellant could not afford the $60 fee for a session at the visitation center and that to qualify a willing family friend to serve as a chaperone would require attendance at a course costing $1,000, which neither appellant nor the friend could afford. Appellant asked the trial court to modify the conditions of bond to allow him to live at home with his wife and children. Appellant pointed out that the complainant no longer lived at the residence and appellant's wife, who was present at the hearing, wanted appellant to move back into the family home. Alternatively, appellant asked that he be allowed supervised visitation with the children in his home with his wife as the supervisor.
The trial court refused appellant's requests. The trial court stated on the record that it did not view the wife as "a particularly protective parent" and declared it was "out of the question" for her to serve as a supervisor. The trial court also said that if appellant moved back into the family home, Child Protective Services would remove the children. Finally, appellant suggested allowing a third party to serve as supervisor without undergoing the training. The trial court denied that request, explaining:
I think when a person takes that class and pays that money, they're going to take it real seriously. They're going to understand exactly what supervision means. You know, if I asked my grandma to supervise something, she thinks that means one thing, but like, what it really means—that's why the training, to me, is very important. You know, if something happens to those little kids or something happens to her, you know, I'm on the hook for that. I am responsible, and I don't want to take chances like that. It kind of frightens me.
After a discussion of appellant's other problem—finding a place to live—the trial court returned to the issue of visitation with the children:
And at this point, until you can find someone who is willing to take that thousand dollar class, I'm going to have to say, you're going to have to keep using the $65 option that you have. I'm sorry that I'm unable to say anything different at this point, but I just don't feel comfortable due to the nature of the allegations and due to the risks and the protective options available. They're not many, you know.The trial court denied appellant relief but indicated that it would be willing to entertain additional requests for relief if appellant could "get some supervision that is approved." The trial court entered an order issuing the writ of habeas corpus but denying appellant the relief he sought in his writ application. Appellant now appeals that order.
An applicant for habeas corpus relief must prove the applicant's claims by a preponderance of the evidence. See Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). In reviewing the trial court's order, we view the facts in the light most favorable to the trial court's ruling, and we uphold the ruling absent an abuse of discretion. Id. This deferential review applies even if the trial court's findings are implied rather than explicit and based on affidavits rather than live testimony. Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex. Crim. App. 2006). If the resolution of the ultimate question turns on an application of legal standards, we review the determination de novo. 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).
In his sole issue on appeal, appellant contends the trial court's bond condition that he have no contact with his own children is unreasonable. Appellant contends there is no express statutory authority for the trial court to impose that condition. And because the condition is not designed to assure his appearance at trial or to protect the safety of the alleged victim or the community, the condition does not fall within the trial court's general authority to impose reasonable conditions of bond. As authority for his argument, appellant relies upon Ex parte Tucker, 977 S.W.2d 713 (Tex. App.—Fort Worth 1998), pet. dism'd, 3 S.W.3d 576 (Tex. Crim. App. 1999).
The purpose of pretrial bail is to ensure a defendant's presence at trial and to ensure the community and victim's safety while the proceedings are pending. Pharris v. State, 165 S.W.3d 681, 691 (Tex. Crim. App. 2005). "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." TEX. CODE CRIM. PROC. art. 17.40(a) (West 2015); Ex parte Anderer, 61 S.W.3d 398, 401-02 (Tex. Crim. App. 2001). The applicant bears the burden to show the trial court abused its discretion in setting the amount and conditions of bond. See Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. [Panel Op.] 1981).
The defendant in Tucker, charged with aggravated sexual assault of a child and indecency with a child, was released on bond with the conditions that he could not have unsupervised contact with minors or live with minors. See Tucker, 977 S.W.2d at 714. After his bond was revoked for violating the contact condition, appellant filed an application for writ of habeas corpus to challenge the trial court's authority to impose the conditions. See id. In siding with the defendant, the appellate court reasoned that chapter 17 of the code of criminal procedure provides an exclusive grant of authority to place conditions on pretrial release. See id. at 717. Because the version of chapter 17 in effect at the time Tucker was decided did not allow the trial court to prohibit a defendant from contacting or living with minors as a condition of bond, the appellate court disallowed the conditions. See id.
As the State points out, Tucker predates the enactment of article 17.40 of the code of criminal procedure. See Act of May 26, 1999, 76th Leg., R.S., ch. 768, § 1, 1999 Tex. Gen. Laws 3387, 3388 (codified at TEX. CODE CRIM. PROC. ANN. art. 17.40). The trial court may now consider the safety of the community in setting reasonable conditions of pretrial release. We conclude Tucker is distinguishable. See Burson v. State, 202 S.W.3d 423, 427-28 (Tex. App.—Tyler 2006, no pet.) (concluding article 17.40(a) authorized condition of bond that defendant charged with endangering child have only supervised visitation with her other children).
The discussion during the writ hearing shows the trial court imposed the condition out of concern for the safety of members of the community—appellant's children. Protecting the children from the possibility of additional criminal acts not only protects the community, but it also helps secure appellant's attendance at trial. See Burson, 202 S.W.3d at 426-28.
Although appellant chooses to portray the trial court's condition as a prohibition, the trial court did not bar appellant from contact with his children. Rather, the trial court agreed to allow such contact provided it was supervised to protect the children from someone accused of committing sex crimes against a child. The record shows the trial court engaged counsel and appellant in a discussion of options and remained open to alternatives that would balance appellant's desire to have contact with his children with assuring their safety. The trial court did not consider appellant's wife to be a proper chaperone. Appellant's counsel represented that the wife wanted appellant to return to the family home even after he was alleged to have sexually assaulted her daughter. Appellant presented no evidence showing the trial court's concern was unfounded or unreasonable nor was there any sworn testimony or evidence presented establishing the reasonableness of an alternative to the supervised visitation the trial court envisioned. Counsel's arguments are not evidence before the trial court. See State v. Guerrero, 400 S.W.3d 576, 584 (Tex. Crim. App. 2013).
Under the circumstances presented, we cannot conclude appellant has shown that the trial court abused its discretion in releasing him upon the condition that he have only supervised contact with his children. See TEX. CODE CRIM. PROC. ART. 17.40(a); Burson, 202 S.W.3d at 427-28. We overrule appellant's issue.
We affirm the trial court's order denying relief on appellant's applications for pretrial writ of habeas corpus.
/Molly Francis/
MOLLY FRANCIS
JUSTICE Do Not Publish
TEX. R. APP. P. 47 151312F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 4, Dallas County, Texas
Trial Court Cause No. WX15-90038-K.
Opinion delivered by Justice Francis. Justices Evans and Stoddart participating.
Based on the Court's opinion of this date, the order of the trial court denying relief on appellant's application for pretrial writ of habeas corpus is AFFIRMED. Judgment entered this 1st day of February, 2016.
JUDGMENT
On Appeal from the Criminal District Court No. 4, Dallas County, Texas
Trial Court Cause No. WX15-90039-K.
Opinion delivered by Justice Francis. Justices Evans and Stoddart participating.
Based on the Court's opinion of this date, the order of the trial court denying relief on appellant's application for pretrial writ of habeas corpus is AFFIRMED. Judgment entered this 1st day of February, 2016.