Ex Parte Trevor Royce Sells ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00143-CR
___________________________
Ex parte Trevor Royce Sells
On Appeal from the 78th District Court
Wichita County, Texas
Trial Court No. DC78-CV2020-1864
Before Sudderth, C.J.; Bassel and Womack, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
Appellant Trevor Royce Sells stands charged with six counts of the aggravated
sexual assault of his nephew and one count of indecency with a child by exposure. See
Tex. Penal Code Ann. §§ 21.11(a)(2)(A), 22.021. Initially, a magistrate set bail at
$250,000 for each aggravated-sexual-assault charge and $50,000 for the indecency
charge: $1,550,000 total. Sells applied for habeas relief seeking a bail reduction; his
request was granted and bail was lowered to $930,000. Sells now appeals, arguing that
the reduction was not enough and remains oppressive. Because we cannot conclude
that the trial court acted outside the zone of reasonable disagreement when we view
the evidence in the light most favorable to its ruling, we affirm the trial court’s order.
Background
According to arrest warrant affidavits entered into evidence at the habeas
hearing, Sells’s seven-year-old nephew made an outcry in August 2019 that Sells had,
in the course of one day, sexually abused him multiple times. The affidavits aver that
the child described in graphic detail Sells’s masturbating in front of the child, rubbing
his genitals on the child’s genitals, twice performing oral sex on the child and forcing
the child to reciprocate, and penetrating the child’s anus with his penis. In addition to
relying on the disturbing and serious nature of these charged offenses to support a
high bail amount, the State also pointed to Sells’s lengthy criminal history, beginning
with his 2003 juvenile conviction for aggravated sexual assault and reckless serious
bodily injury to a child, for which he received probation. When he violated probation,
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he was sent to Grayson County Boot Camp, which he failed to complete. He was
later transferred to adult probation with a ten-year sex-offender-registration
requirement. He then failed to comply with the registration requirement twice: in
2008, he was sentenced to ten months in state jail, and in 2011, he was sentenced to
one year in state jail. Also in 2011, he was convicted of three counts of misdemeanor
criminal trespass. In 2013, he failed to appear for a court date. In 2014, he was
convicted of misdemeanor theft. And in 2017, he was again booked for failing to
appear for a misdemeanor court date.
For his part, Sells’s evidence at the habeas hearing centered upon his limited
financial resources and his 22 years of residence in Wichita Falls. Sells reported that
when he had inquired about a bond, a bondsman had quoted him $100,000—an
amount he could not raise, because he, his spouse, and his mother (with whom they
lived) existed paycheck-to-paycheck. And those paychecks were sparse. Sells lost his
fast-food job in February for reasons related to the COVID-19 pandemic, and he
claimed that he had been prevented from applying for unemployment benefits
because of his incarceration. His spouse had just obtained a job at Little Caesar’s the
week before trial. And his mother was unemployed due to a disability. He and his
spouse had no assets—only his mother owned a vehicle, a 2014 Kia Rio—and no
bank accounts. He knew of no family members or friends from whom he could raise
money for the bond.
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Sells testified that, if released, he would file for unemployment compensation—
he expected to obtain $5,000 to $6,000—and would apply for work at restaurants. He
agreed to comply with bond conditions, including those prohibiting his contact with
any person under the age of 18, imposing reporting requirements, and requiring an
ankle monitor.
At the conclusion of the hearing, Sells requested that the trial court lower the
bail amount to $100,000 total. The trial court agreed to lower the bail but only to
$930,000—$150,000 on each aggravated-sexual-assault count and $30,000 on the
indecency count—explaining that it was considering Sells’s “extensive criminal
history,” including a similar aggravated-sexual-assault charge and multiple failures to
appear.
Discussion
Setting bail is a fact-driven determination that must be judged on a case’s own
unique facts. Ex parte Cook, No. 02-18-00537-CR, 2019 WL 2323643, at *3 (Tex.
App.—Fort Worth 2019, no pet.) (per curiam) (mem. op., not designated for
publication). We review the trial court’s decision in setting a bail amount for an abuse
of discretion, viewing the evidence in the light most favorable to the trial court’s
ruling. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled on
other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007); Ex parte
Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981). We will not disturb
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the decision if it was within the zone of reasonable disagreement. Ex parte Wood, 308
S.W.3d 550, 552 (Tex. App.—Beaumont 2010, no pet.).
Bail is primarily intended to assure the defendant’s presence for trial. See Tex.
Code Crim. Proc. Ann. art. 17.01; Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim.
App. 1977). In setting bail, the trial court must strike a balance between the
defendant’s presumption of innocence and the State’s interest in assuring the
defendant’s presence at trial. See Ex parte Simpson, 77 S.W.3d 894, 896 (Tex. App.—
Tyler 2002, no pet.) (per curiam); Ex parte Brown, 959 S.W.2d 369, 371 (Tex. App.—
Fort Worth 1998, no pet.). The accused has the burden to show that the bail amount
is excessive. See Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. [Panel Op.]
1980).
The court’s discretion in setting a bail amount is statutorily governed by the
following 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 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.
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Tex. Code Crim. Proc. Ann. art. 17.15. Other circumstances to be considered include
the accused’s work record, family and community ties, length of residency, prior
criminal record, and conformity with the conditions of any previous bond, as well as
the existence of any outstanding bonds and aggravating circumstances involved in the
charged offense. See Rubac, 611 S.W.2d at 849–50.
The uncontroverted evidence conveys that Sells is unable to post a $930,000
bail. He is indigent and represented by a public defender, has been unemployed since
February, and has no familial financial resources from which to pull. This factor
weighs in favor of a reduced bail amount, but it is not dispositive. See Ex parte Jones,
803 S.W.2d 712, 716 (Tex. Crim. App. 1991). Indeed, this is the only factor weighing
in favor of a lower bail amount.
Sells is, of course, entitled to the presumption of innocence until proven
otherwise. But bail is not set in a vacuum, and we must consider the nature and
surrounding circumstances of the charges against him. See Tex. Code Crim. Proc.
Ann. art. 17.15(3); Rubac, 611 S.W.2d at 849; Ex parte Davila, 623 S.W.2d 408, 409 n.2
(Tex. Crim. App. [Panel Op.] 1981). Sells’s seven-year-old nephew has accused Sells
of perpetrating multiple sexual assaults in a single day, providing a detailed account of
the various acts in a forensic interview. The charges are serious and disturbing. If
convicted of any one of the aggravated-sexual-assault charges enhanced by his
juvenile conviction, Sells faces a mandatory life sentence. See Tex. Penal Code Ann.
§§ 12.42(c)(2)(A), 22.021(e). If convicted of the indecency charge, he faces up to 10
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years’ incarceration. Id. §§ 12.34(a), 21.11(d). Both the gravity of the allegations
against him and the potential sentences he faces weigh in favor of affirming the trial
court’s decision. See Ex parte Nimnicht, 467 S.W.3d 64, 67 (Tex. App.—San Antonio
2015, no pet.) (“A court may also consider the possibility an accused’s reaction to a
potential lengthy imprisonment might be to not appear for trial . . . .”).
Sells argues that, despite the seriousness of the accusations against him, the bail
amount is oppressive in light of Wichita County’s recommended bail schedule, which
recommends a bail amount of $35,000 for a first-degree-felony charge enhanced by a
prior conviction. Contrary to the State’s rebuttal that we cannot consider Wichita
County’s recommended bail schedule because it was not entered as an exhibit at trial,
appellate courts routinely consider such recommendations as part of their review of
the nature and circumstances of the charged offense even where it does not appear
that the recommendations were admitted as an exhibit at the application hearing. Ex
parte Taylor, No. 02-20-00010-CR, 2020 WL 1963788, at *4 (Tex. App.—Fort Worth
Apr. 23, 2020, no pet.) (per curiam) (mem. op., not designated for publication)
(collecting cases and rejecting the State’s evidentiary-admissibility argument in an
attempt to exclude the recommendations from our consideration). Nevertheless, the
recommendations are only a guide, are nonbinding, and “are not conclusive as each
case is extremely fact specific.” Id. at *5.
We also may consider case law upholding similar amounts for first-degree-
felony offenses. See Ex parte Murray, Nos. 02-13-00151-CR, 02-13-00152-CR, 02-13-
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00153-CR, 2013 WL 5425312, at *1, 7–8 (Tex. App.—Fort Worth Sept. 26, 2013, no
pet.) (per curiam) (mem. op., not designated for publication) (upholding $750,000 bail
for charge of aggravated assault with a deadly weapon where defendant had an
extensive criminal history and trial court concluded he was “very much a danger to
society”); Brown v. State, 11 S.W.3d 501, 504 (Tex. App.—Houston [14th Dist.] 2000,
no pet.) (upholding $500,000 bail for nonviolent first-degree-felony charge of drug
trafficking despite defendant’s strong community ties, inability to post bond, and
record of appearing for past court dates); Wright v. State, 976 S.W.2d 815, 820–21 (Tex.
App.—Houston [1st Dist.] 1998, no pet.) (upholding $500,000 bail for first-degree-
felony aggravated assault where defendant had threatened people at gunpoint and
posed a flight risk). Given the facts before us and the case law, we do not consider
the recommended bail schedule as a particularly persuasive factor here.
Despite Sells’s arguments in his brief that he “has long standing ties to the
community,” the record does not support this assertion. Though he testified to living
in Wichita Falls most of his life and to living in his mother’s apartment there with his
spouse, that is the extent of his community ties. He was unemployed at the time he
was arrested, and his spouse had only recently obtained employment at a Little
Caesar’s. He owns no property in Wichita Falls. And the record is silent as to any
sort of community involvement. His overall lack of community ties weighs against
reversing the trial court’s conclusion. See Nimnicht, 467 S.W.3d at 68.
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Similarly working against him is his criminal history. Not only has he been
previously convicted of aggravated sexual assault, but he has also failed to comply
with court orders that are analogous to those which would go into effect upon his
posting bail. He served ten months in state jail for failing to register as a sex offender.
Seemingly undeterred, he served another year when he failed to register yet again. He
has twice been convicted of failing to appear for a court date, and the trial court was
free to disbelieve his explanations that he had not been notified of the court dates.
These failure-to-appear convictions are no doubt concerning when considering that
the intent of bail is to secure his appearance at trial. This factor further weighs in
favor of affirming the trial court’s decision.
And finally, we must consider the safety of Sells’s accuser—his seven-year-old
nephew—and the community. Sells testified that if released he would comply with
prohibitions against any contact with children, but as the factfinder and from the best
position to judge witness credibility, the trial court was free to doubt Sells’s testimony,
especially in light of Sells’s history of disobeying court orders. See Miles v. State, 343
S.W.3d 908, 914 (Tex. App.—Fort Worth 2011, no pet.).
Conclusion
Although $930,000 is a high bail amount that might be excessive under other
circumstances, viewing all of the relevant factors here in the light most favorable to
the trial court’s ruling, we cannot conclude that the trial court erred by reducing Sells’s
bail to $150,000 on each of the six counts of aggravated sexual assault and $30,000 on
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the indecency count. We therefore affirm the trial court’s order on Sells’s application
for writ of habeas corpus.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: December 23, 2020
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