Ex Parte Keith Buford ( 2022 )

Affirmed and Memorandum Opinion filed December 29, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00573-CR
NO. 14-22-00574-CR
EX PARTE KEITH BUFORD
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause Nos. 1770082, 1770083
MEMORANDUM OPINION
Appellant, Keith Buford, brings this appeal from the trial court’s order on
his application for writ of habeas corpus. Appellant was charged with two third
degree felonies: (1) repeated violation of a protective order (RVPO) and (2) failure
to comply with sex offender registration requirements (FTC). See Tex. Penal Code
Ann. §§ 25.072(a); 25.07(a); Tex. Code Crim. Proc. Ann. art. 62.102(a). A Harris
County Magistrate set bail in the amount of $150,000 for the RVPO and $75,000
for the FTC. Appellant filed a pretrial application for a writ of habeas corpus in
both cases, alleging the bail amounts render him unlawfully restrained. After a
hearing on appellant’s application, the trial court denied appellant’s request to
reduce his bond. This appeal followed.
BACKGROUND
On September 10, 2021, a Washington State judge issued a protective order
against appellant for the protection of appellant’s wife. The Washington court
entered the order based upon a finding that appellant had been “charged with,
arrested for, or convicted of a domestic violence offense.” On October 19, 2021,
appellant was arrested for violating the protective order, a misdemeanor offense.
Two days later, appellant posted a $25,000 bond and was released from jail.
On December 26, 2021, appellant allegedly violated the protective order for
a second time. Appellant was arrested in Harris County and charged with repeated
violation of a protective order, a third-degree felony. See Tex. Penal Code Ann. §
25.072(e). Upon this arrest, appellant was also charged with failure to comply with
sex-offender registration requirements, another third-degree felony offense.1 See
Tex. Code Crim. Proc. Ann. art. 62.102(a)(2). These two third-degree felony
offenses are the charges underlying appellant’s application for writ of habeas
corpus.
According to the trial court’s findings of fact, the magistrate initially denied
appellant’s request for bond, noting appellant’s “stalking behavior.” The magistrate
further noted that appellant had a charge for assault of a family member pending in
Travis County and a robbery charge pending in Washington State. Additionally,
the magistrate took notice of outstanding warrants in Washington State for failing
to appear. The magistrate ultimately decided to allow for bond in the amount of
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Appellant is required to register as a sex-offender resulting from a California State
felony offense of sexual battery.
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$150,000 for RVPO and $75,000 for the FTC.
On April 4, 2022, appellant filed his application for writ of habeas in both
matters. On June 21, 2022, the trial court held a hearing on the application.
Appellant presented three witnesses at the habeas hearing: his brother-in-law, his
father, and a friend.
Brother-in-Law – Richard Glover
Appellant’s brother-in-law, Richard Glover, testified that he did not believe
appellant could afford to the bond amounts because appellant was unemployed.
Moreover, Glover explained he would be unable to financially assist due to his
own financial hardship. Glover stated that he believed appellant would
“absolutely” appear for his court date and that appellant is not a danger to the
community. Glover lives out of state and has not seen appellant in two or three
years.
Father – Keith Buford, Sr.
Buford Sr. testified that he could not help appellant in paying his bonds
because he was financially struggling. He explained that the payment plans offered
by the bonding companies were “ridiculous.” Burford Sr. stated that appellant
could “absolutely not” afford the current bond amounts. According to Buford Sr.,
appellant was employed in the construction and roofing trade before he was
arrested. Buford Sr. testified that appellant would be able to return to that job upon
release. Buford Sr. explained that he lives in Washington and most of the family is
either in California or Texas. Buford Sr. believes that his church will financially
assist him in traveling to Texas if appellant is released so that he can make sure his
son attends all hearings. Buford stated that his son is not violent. When asked
whether he knew how appellant afforded the first $25,000 bond, Buford Sr. replied
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he was not aware appellant had previously posted a bond.
Friend – Casey Jenkins
Casey Jenkins, a friend of 30 years, described appellant as funny, goofy,
caring, fun-loving, and hardworking. Jenkins was only aware that there was one
bond that needed to be posted. Jenkins testified that she could not help in paying
either of the bond amounts. Jenkins believes that appellant will appear for all his
court hearings and that appellant is not a danger to the community. Jenkins was
unaware appellant had a previous felony conviction for aggravated assault in 2018,
nor that he had a 2014 conviction of assault on a family member. Jenkins lives in
California, but said she would support appellant however she could, including
driving to Texas.
The State entered the Washington State protective order and an October 20,
2021 affidavit of financial condition into evidence. That affidavit of financial
condition was submitted in connection with the October 19, 2021 charge. The
October 2021 affidavit listed appellant as supporting two minor children. His job
was listed as a full-time mechanic earning $3,500 a month. In the affidavit,
appellant averred that he had been renting a home for two months and that he had
been at his previous address for three years.
The court took judicial notice of the underlying records in each matter. In
doing so, the court noted that a December 27, 2021 affidavit of financial assistance
listed appellant living at a hotel for a month and working as a Door Dash delivery
driver earning $800 a month. The court further noted that it was taking into
consideration appellant’s public safety report. That report reflected: (1) a June
2021 pending charge of assault on a family member with a previous conviction out
of Travis County; (2) an October 2018 conviction of aggravated assault with a
deadly weapon; (3) an October 2014 conviction of assault of a family member
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twice within 12 months; and (4) an August 2014 arrest for assault of a family
member and a conviction for failure to identify. The court also noted that there is
“apparently” an open robbery charge in the State of Washington for which there
are warrants outstanding because of his failure to appear.
After both sides presented closing arguments, the court declined to reduce
appellant’s bond amounts and found the current amounts to be appropriate.
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 shall be sufficiently high to give reasonable assurance
of compliance with the undertaking.
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.
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.
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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
S.W.3d 789, 792 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
A. Nature and circumstances of alleged offense
When assessing the reasonableness of bail, the Court of Criminal Appeals
has instructed that the “primary factors” are the punishments that can be imposed
and the nature of the offenses. See Rubac, 611 S.W.2d at 849. When the offenses
charged are serious and involved potentially lengthy sentences, a defendant may
have a strong incentive to flee the jurisdiction and bail must be set sufficiently high
enough to secure the defendant’s presence at trial. Ex parte Castillo-Lorente, 420
S.W.3d 884, 888 (Tex. App.—Houston [14th Dist.] 2014, no pet.). But, a
defendant is entitled to a presumption of innocence on all charges. Ex parte
Melartin, 464 S.W.3d 789, 793 (Tex. App.—Houston [14th Dist.] 2015, no pet.) A
trial court must balance that presumption with the State’s interest in assuring the
defendant’s appearance for trial. Ex parte Robles, 612 S.W.3d 142, 147 (Tex.
App.—Houston [14th Dist.] 2020, no pet.).
Appellant is charged with two third-degree felonies. Each third-degree
felony charge carries a range of two to ten years in prison. See Tex. Penal Code
Ann. § 12.34. However, because of appellant’s criminal history, the punishments
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may be enhanced to 25 to 99 years or life in prison. See Tex. Penal Code Ann. §
12.42(d). These lengthy sentences combined with appellant’s out-of-state support
network provide incentive to flee. Because the charges and their consequences in
the event of conviction are so serious, the trial court could have reasonably
determined that the bail amounts set by the magistrate were reasonable.
Moreover, appellant is a repeat offender. He allegedly violated the same
protective order twice within 2 months. He has a history of both family violence
and failing to appear. The trial court could have reasonably concluded that the
bond amounts would prevent appellant from falling into his old patterns.
B. Sufficiently high to assure appearance but not oppress
Bail needs to be sufficiently high 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.).
Appellant did not provide evidence of any ties to Harris County. As of his
most recent affidavit of financial conditions, appellant was living in a hotel and
working as an independent contractor with Door Dash. Appellant’s parents live in
Washington, and he has other friends and family in California. Buford Sr. testified
that appellant has sisters in Arlington, Texas, but no other evidence was presented
tying appellant to Harris County or even the State of Texas. The trial court could
have reasonably considered appellant’s lack of local ties in denying appellant’s
request to decrease the bond amount. See Milner v. State, 263 S.W.3d 146, 150
(Tex. App.—Houston [1st Dist.] 2006, no pet.) (acknowledging a higher bail
amount could be warranted by the fact that the accused did not “have a reason to
remain” in the county he was being tried in).
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C. 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). A defendant’s criminal history must be
evaluated to determine whether he presents a danger to the community. Ex parte
Ramirez-Hernandez, 642 S.W.3d 907, 918 (Tex. App.—San Antonio 2022, no
pet.). The protective order was based on a finding of domestic violence. Appellant
is alleged to have violated the protective order twice in a short period of time.
Additionally, appellant has a criminal history of domestic assault. The trial court
was within its reasonable discretion in concluding the bond amounts were
necessary to protect the complainant. Robles, 612 S.W.3d at 148-49 (explaining
that repeated commission of similar offenses “evidenced sufficient danger to the
community to deny appellant’s request to lower bail”).
D. 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 220,
234–35 (Tex. App.—Houston [14th Dist.] 2016, no pet.). 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)).
Buford Sr. and Glover both testified that appellant could not afford his bond,
nor could they financially assist him. Appellant’s most recent affidavit of financial
conditions also presented a bleak picture. There was evidence, however, that
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appellant had recently posted a $25,000 bond. None of appellant’s witnesses were
aware of how appellant afforded to post that bond. While this could be evidence of
a hidden source of income, it could also be viewed as a large expense serving to
render appellant financially bereft. In sum, this factor weighs in favor of a reduced
bond amount, but is only one factor in the balance.
E. Rubac Factors
Appellant’s work record. Appellant worked as an independent contractor for
Door Dash for the two months preceding his incarceration. Buford Sr. testified
appellant worked in the construction field and would have employment upon his
release. This testimony, however, was contradicted by appellant’s own affidavit of
financial condition.
Appellant’s family and community ties. As discussed above, appellant has
little to no familial or community ties with Harris County.
Length of appellant’s residency. The record does not reflect how long
appellant has resided in Harris County.
Appellant’s prior criminal record. Appellant has a significant criminal
record, some charges for which he is still wanted.
Appellant’s other bonds. Appellant allegedly committed the current offenses
just two months after posting bond in October 2021. Appellant is also wanted in
Washington State and Travis County.
Aggravating circumstances in the charged offense. Appellant is a habitual
domestic offender and the charged offense is for violation of protection order
protecting appellant’s wife.
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CONCLUSION
Having considered all of the pertinent factors, we conclude appellant has not
shown the trial court abused its discretion in denying appellant’s application for
writ of habeas.
PER CURIAM
Panel consists of Chief Justice Christopher and Justices Bourliot and Wilson.
Do Not Publish — Tex. R. App. P. 47.2(b)
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