Ex Parte Daniel Curran v. the State of Texas

Reversed and Remanded and Memorandum Opinion filed December 5, 2023

In The

Fourteenth Court of Appeals

NO. 14-23-00252-CR

EX PARTE DANIEL CURRAN

On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Cause No. 96482-CR

MEMORANDUM OPINION

In this appeal of the denial of an application for writ of habeas corpus, we
consider whether the trial court abused its discretion in setting appellant’s pretrial
bail at $25 million for capital murder. Because we hold this amount to be
unprecedented, we reverse and remand.

Background

A grand jury indicted appellant Daniel Curran for the offense of capital
murder during the course of the offense of aggravated robbery and/or burglary of a
habitation. See Tex. Penal Code Ann. § 19.03(a)(2). The indictment specifies that
appellant caused the death of Cory Bayless by shooting him with a firearm.
Appellant’s bond was set at $25 million. Appellant filed a writ of habeas corpus to
reduce the bond. After a hearing, the trial court denied the motion.

During the hearing, appellant presented one witness: his older brother Jorge
Benitez. The State did not present any witnesses. Neither side made closing
arguments. When the trial court made its oral ruling in court, the judge stated that
he had reviewed the public safety report along with appellant’s criminal history.
Neither of those documents are in our recordi.

Appellant’s Brother – Jorge Benitez

Benitez testified that his brother, appellant, was born in Galveston and grew
up in Brazoria County. Benitez explained that Benitez and his mother moved from
Mexico to Texas in 1994 and the family has been living here ever since. Appellant
has only left Texas for one trip to Mexico when he was two years old. According
to Benitez, appellant does not have a passport.

Benitez has been employed for the last 13 years in sales for Pepsi and prior
to that, he was in merchandising with Coca-Cola for 8 years. In his job at Pepsi,
Benitez makes $65,000 a year. His wife works at Kroger making $22 an hour.
They have three young children. The couple has car notes of $1,300 a month and
mortgage payments of $2,200 a month. Benitez has already borrowed much of his
401k account to support his family during Covid lay-offs. Appellant’s mother lives
in Angleton working as a house-cleaner. Benitez testified that their mother has no
investments accounts nor property she could sell for cash.

Benitez testified that appellant had a job at Sonic when he was in high
school. Since then, he has heard that appellant had a job working on garage doors,
but was unsure of how long appellant was employed. Benitez was unsure of

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whether appellant had this job at the time of his arrest. Upon questioning, Benitez
confirmed that appellant has “serious” felony arrests. According to Benitez,
appellant has nothing he could sell for cash nor any investment accounts.

Benitez testified that his mother contacted bail bonding companies who
informed her that they would need $2.5 million down for a $25 million bond. He
confirmed that the family was unable to pull together $2.5 million to pay the
bonding company.

Benitez said he was unsure if appellant could live with their mother if he
was released on bond. He did not know where appellant was living at the time of
his arrest. Benitez testified he would report appellant if he attempted to flee while
he was out on bail.

The trial court denied appellant’s application for writ of habeas for a
reduction in the bond amount of $25 million. This appeal followed.

Analysis

The right to 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. We
review a challenge to the excessiveness of bail for an abuse of discretion. See Ex
parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981). Under this
standard, we may not disturb the trial court’s decision if it falls within the zone of
reasonable disagreement. See Ex parte Castillo–Lorente, 420 S.W.3d 884, 887
(Tex. App.—Houston [14th Dist.] 2014, no pet.).

The amount of bail required in any case is within the discretion of the trial
court subject to the following rules:

1. The bail and any conditions of bail shall be sufficient to give
reasonable assurance of compliance with the undertaking.

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2. The power to require bail is not to be so used as an instrument
of oppression.
3. The nature of the offense and the circumstances under which it
was committed are to be considered, including whether the
offense:
(A) is an offense involving violence as defined by Article
17.03(b-3)(2); or
(B) involves violence directed against a peace officer.
4. The ability to make bail shall be considered, and proof may be
taken on this point.
5. The future safety of a victim of the alleged offense, law
enforcement, and the community shall be considered.

6. The criminal history record information for the defendant,
including information obtained through the statewide
telecommunications system maintained by the Department of
Public Safety and through the public safety report system
developed under Article 17.021, shall be considered, including
any acts of family violence, other pending criminal charges, and
any instances in which the defendant failed to appear in court
following released on bail.
7. The citizenship status of the defendant shall be considered.

Tex. Code Crim. Proc. Ann. art. 17.15.

In addition to these rules, case law provides that courts may consider the
following set of factors: (l) 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) the existence of other outstanding bonds, if any; (7) the aggravating
circumstances alleged to have been involved in the charged offense; and (8)
whether the defendant is a citizen of the United States. See Ex parte Rubac, 611
S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981); Ex parte Rodriguez, 595
S.W.2d 549, 550 n. 2 (Tex. Crim. App. [Panel Op.] 1980); Ex parte Melartin, 464
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S.W.3d 789, 792 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

1. Nature and circumstances of alleged offense

When determining reasonable bail, a trial court shall give the most weight to
the nature of the offense and the length of possible sentence. See Rubac, 611
S.W.2d at 849; Ex parte Nimnicht, 467 S.W.3d 64, 67 (Tex. App.—San Antonio
2015, no pet.). It is appropriate to consider whether the offense alleged to have
been committed involved violence in setting the amount of bail. Nimnicht, 467
S.W.3d at 67.

Appellant is alleged to have shot and killed someone while in the course of
an armed robbery and/or the burglary of a home. Both murder and aggravated
robbery are considered violent offenses. See Tex. Code Crim. Proc. Ann. art.
17.03(b-3)(2)(A), (P) (defining murder and aggravated robbery as an offense
involving violence). Capital murder is a capital felony for which the sentence is
either death or life without parole. See Tex. Penal Code Ann. §§ 19.03, 12.31(a).
Appellant faces a minimum sentence of life without the possibility of parole and, at
maximum, the death penalty. This potential sentence favors a high bail to avoid the
potential of appellant fleeing. See Ex parte Temple, 595 S.W.3d 825, 829–30 (Tex.
App.—Houston [14th Dist.] 2019, pet. ref’d) (affirming a $1 million bond where
defendant’s murder charge and conviction provided a strong incentive to flee).

2. Sufficiently high to assure appearance but not oppress

Bail needs to be in an amount sufficient to give reasonable assurance that the
defendant will appear. When bail is set so high that a person cannot realistically
pay it, however, the trial court essentially “displaces the presumption of innocence
and replaces it with a guaranteed trial appearance.” Ex parte Bogia, 56 S.W.3d
835, 840 (Tex. App.—Houston [1st Dist.] 2001, no pet.). Bail may not be used as

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an instrument of oppression. See Ex parte Guerra, 383 S.W.3d 229, 233–34 (Tex.
App.—San Antonio 2021, no pet.). Bail set in a particular amount becomes
oppressive when it assumes the defendant cannot afford bail in that amount and
when it is set for the express purpose of forcing the defendant to remain
incarcerated. See Ex parte Durst, 148 S.W.3d 496, 499 (Tex. App.—Houston [14th
Dist.] 2004, no pet.) (where bail amount set “solely to prevent [defendant] from
getting out of jail,” “bail [was] being used as an instrument of oppression”).

It is with this factor that the court takes issue with the high amount of bond
set in this case. This court recently affirmed a $5 million bond on a capital murder
charge; however, in that case, there was evidence appellant had the financial
resources to afford the bond. See Ex parte Lu, No. 14-23-00023-CR, 2023 WL
5217789 at *3 (Tex. App.—Houston [14th Dist.] Aug. 15, 2023, no pet. h.) (mem.
op.) (not designated for publication). Even in affirming that amount, we noted the
high amount (which is five times less than the bond set in this case), but held that
appellant’s financial resources and the heinous facts of the alleged offense
warranted the “very high” amount. Id. Here, there was no evidence presented that
appellant had the resources to afford a $25 million bond amount.

The Waco Court of Appeals overturned a $5 million bond amount on two
counts of capital murder, stating “[t]he State has not provided the court with any
precedent upholding bail in the amount of $5 million or anywhere near that
amount.” Ex parte Brossett, 524 S.W.3d 273, 277 (Tex. App.—Waco 2016, pet.
ref’d). Again, the bond was five times less than here and the appellant in that case
was charged with two counts of capital murder.

The Court of Criminal Appeals reversed the Amarillo Court of Appeals’
affirmance of a $10 million bond on two counts of capital murder. Ex parte Dixon,
No. PD-0398-15, 2015 WL 5453313 at *2-3 (Tex. Crim. App. 2015) (not

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designated for publication). In that case, the judge making the habeas ruling
presided over appellant’s trial, which resulted in a mistrial. The Court of Criminal
Appeals held that the Amarillo Court of Appeals erred by according “special
deference to the ruling of the habeas court because that judge was also the trial
judge who presided over appellant’s trial, and therefore, has already seen the
evidence.” Id. at *2. The Court of Criminal Appeals ordered appellant’s bail
reduced to $2 million. Id. at *3.

Aside from a 2004 opinion from this court (in which we reversed a $3
billion bond), there are no cases discussing a bond as high as that set in this case.
See Durst, 148 S.W.3d 496. From our record, we can see no reason for setting the
bond at $25 million, other than for the express purpose of forcing appellant to
remain incarcerated.

This factor weighs strongly against finding the amount of bond to be
reasonable.

3. Ability to make bail

To demonstrate inability to make bail, a defendant generally must establish
his and his family’s funds have been exhausted. Ex parte Dupuy, 498 S.W.3d at
234–35. The accused’s ability to make bail is only one factor to be considered in
determining the appropriate amount of bail. Id. “If the ability to make bond in a
specified amount controlled, then the role of the trial court in setting bond would
be completely eliminated, and the accused would be in the unique posture of
determining what his bond should be.” Id. (quoting Ex parte Miller, 631 S.W.2d
825, 827 (Tex. App.—Fort Worth 1982, pet. ref’d)).

During the hearing, the defense presented an account statement from an
account belonging to appellant. That statement showed appellant had $5.35 in his

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account. Appellant’s application for a court-appointed attorney reflected that he
was unemployed, but had previously worked on garage doors for $15 an hour.
Appellant’s brother testified that he and his mother would be unable to arrange for
a $2.5 million security on the $25 million bond. His testimony regarding his and
his mother’s employment supported this conclusion. This factor weighs against the
$25 million dollar bond.

4. Future safety of the victims and the community

The trial court must also consider the future safety of the victim of the
alleged offenses and the community in setting appellant’s bail amounts. See Tex.
Code Crim. Proc. Ann. art. 17.15(5).

Appellant is alleged to have shot and killed Cory Bayless while attempting
or committing the armed robbery of Toby Bayless and while attempting or
committing to burglarize the home of Jamie Bayless. The remaining members of
the Bayless family, who may be called as witnesses against appellant, face a safety
risk if appellant is released. This factor supports a high bond amount.

5. Criminal history record

Our record does not contain the criminal history report that the trial court
reviewed. Nor did the State put his criminal history into the record. However, there
is some evidence that appellant has a substantial criminal history. In his application
for a court-appointed attorney, appellant indicates he has been struggling to find
employment “with 9 felonies.” Additionally, during the hearing appellant’s brother
confirmed that appellant has serious felony arrests. This factor weighs in favor of a
high bond amount.

6. Rubac factors

Appellant’s work record. According to appellant’s brother, appellant held a

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job at some point while he was in high school. There was some evidence appellant
worked for a garage door servicing business; however, it is unclear how long he
had this job. This insubstantial work record supports a high bond.

Appellant’s family and community ties. Appellant’s mother and brother
both live in the area; however, the testimony provided is unclear as to whether
either would be willing to allow him to live at their homes while he is out on bond.
Additionally, on his application for a court-appointed attorney appellant indicated
that his wife lives in Mexico. This supports a high bond.

Length of appellant’s residency. Appellant has lived in the area for his
entire life. This factor supports a lowered-bond amount.

Appellant’s prior criminal record. The record provides some evidence that
appellant has a substantial criminal record. This factor supports a high bond.

Appellant’s other bonds. The record did not reflect whether appellant had
ever been released on any bonds. This factor is neutral.

Aggravating circumstances in the charged offense. Appellant is alleged to
have used a firearm to murder Cory Bayless while in the course of committing an
aggravated robbery and/or the burglary of a habitation. This factor supports a high
bond.

On balance, the Rubac factors support a high bond. However, the bond set in
this case is unprecedented. The trial court could and should have set a bond high
enough to be protective of these factors without wading into unprecedented
territory. See Durst, 148 S.W.3d at 499 (“Even though we are lowering the amount
of bail, this record still supports a high bail.”).

CONCLUSION

Although the charge against appellant for capital murder is a violent offense
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with either a life-long sentence or death, a $25 million bond in these circumstances
constitutes a de facto setting of no bond. See DePena v. State, 56 S.W.3d 926, 929
(Tex. App.—Corpus Christi–Edinburg 2001, no pet.) (concluding that by setting
the bond four times higher than what appellant could afford, the court set a de facto
no bond). Because the amount set in this case is wholly unprecedented and without
specific supporting evidence, we hold the trial court abused its discretion. We
reverse and remand for the setting of a bond amount consistent with this court’s
opinion.

/s/ Tracy Christopher
Chief Justice

Panel consists of Chief Justice Christopher and Justices Wise and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b)

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The new statute requiring judges to review the public safety report does not provide a mechanism for the appellate
courts to see what the trial judge reviewed. See Tex. Code Crim. Proc. art. Ann. 17.022(d)(1). Even if our court
reviewed the report now, we could not be sure that it is the same report that the trial judge reviewed.

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