Ex Parte German Sebastian Nunez v. the State of Texas

Affirmed and Memorandum Opinion filed March 19, 2024.

In The

Fourteenth Court of Appeals
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NO. 14-23-00308-CR
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EX PARTE GERMAN SEBASTIAN NUNEZ

On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1806206

MEMORANDUM OPINION

Appellant German Sebastian Nunez brings this habeas appeal from from the
trial court’s habeas-corpus judgment maintaining bail at $600,000 in association
with a felony murder charge. We affirm.

BACKGROUND

According to appellant’s August 15, 2022 indictment for felony murder, he
committed the offense of driving while intoxicated on or about June 30, 2022 by
operating a motor vehicle and striking a vehicle occupied by Eric Krueger, thus
causing Krueger’s death. The indictment also alleges he committed that offense
after having been convicted on two prior occasions of driving while intoxicated.
On August 16, 2022, the court set appellant’s bond at $600,000. Appellant has not
provided bail in that amount to the trial court at any time.

On February 7, 2023, appellant filed an application for a writ of habeas
corpus, requesting that the trial court reduce his bond to $50,000 on the basis that
his $600,000 bond was excessive and thus unreasonable.1 The writ was granted on
February 7, 2023, and the trial court held a hearing on appellant’s requested relief
on the 12th and 27th of April, 2023. The trial court signed a habeas-corpus
judgment on April 27th, denying the requested relief. This appeal followed.

ANALYSIS

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 Dupuy, 498 S.W.3d
220, 230 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

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

1. Bail and any conditions of bail shall be sufficient to give
reasonable assurance that the undertaking will be complied with.
2. The power to require bail is not to be used to make bail an
instrument of oppression.

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Although the petition is styled as appellant’s “second petition for writ of habeas
corpus,” the record does not contain a copy of the first such document appellant filed with the
trial court.

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3. The nature of the offense and the circumstances under which
the offense was committed are to be considered, including whether the
offense:
(A) is an offense involving violence as defined by Article
17.03; 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 release on bail.
7. The citizenship status of the defendant shall be considered.

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

In addition to those rules, case law provides that courts may consider the
following factors: (1) 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; and (7) the aggravating
circumstances alleged to have been involved in the charged offense. Rubac, 611
S.W.2d at 849–50. The defendant bears the burden to prove the bail set is
excessive. Id. at 849.

In his sole issue on appeal, appellant asserts the trial court abused its
discretion by declining to reduce his bail. The statutory factors, particularly the
second, fourth, and fifth factors, involve the most significant disputes the parties
have on appeal. There is no disagreement between the parties that the $600,000
bond is ensuring appellant’s appearance at trial as he has not satisfied it, and it is

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indisputable that appellant’s charge is very serious, involving the death of another
person, and which could subject him to a very lengthy prison sentence and
significant fine if he is convicted. See Tex. Penal Code Ann. §§ 19.02 (punishment
for first-degree felony), 12.32 (individual adjudged guilty of first-degree felony
shall be punished by imprisonment of not more than 99 years or less than 5 years,
and in addition to imprisonment, may be punished by a fine not to exceed
$10,000), 12.42(c)(1) (on trial of first-degree felony when defendant has
previously been finally convicted of felony other than a state jail felony, on
conviction defendant shall be punished by imprisonment for life or for any term of
not more than 99 years or less than 15, and in addition to imprisonment, may be
punished by a fine of up to $10,000). Moreover, the parties do not dispute that
appellant’s criminal history favors a larger bail amount, and no party has
contended appellant’s citizenship impacts the bail analysis here.

However, appellant contends the bail amount is being used as an instrument
of oppression for reasons connected with the other two substantially disputed
factors. First, appellant claims the evidence presented to the trial court sufficiently
demonstrates it is impossible for him and his family to provide bail in the amount
of $600,000, but rather that they can satisfy a $50,000 bond. Second, appellant
contends the evidence provided about his health and physical condition
demonstrates that regardless of whether appellant caused Krueger’s death by
operating a vehicle while intoxicated, he cannot do so now, thus meaning he
cannot be a threat to the community.

Turning first to the issue of what bond appellant and his family can afford,
testimony from appellant’s sister at the trial court’s hearing indicated that appellant
and his family had neither the cash nor the assets to satisfy a $600,000 bond, but
that they did have funds available to satisfy a $50,000 bond. As for whatever

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additional assets are available, appellant’s sister answered “No” as to whether
appellant’s family had any assets at all, and the family did not have the financial
ability to satisfy a bond over $50,000.

We acknowledge that the evidence of finances provided at the bail hearing
does favor a lower bail amount as it indicates $600,000 bail is unaffordable for
defendant, but that factor is not controlling. See Milner v. State, 263 S.W.3d 146,
150 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“The ability or inability of an
accused to make bail, however, even indigency, does not alone control in
determining the amount of bail.”).

We turn our attention to the safety of the community and law enforcement
(Krueger’s death means victim safety does not influence the fifth statutory factor
here). Looking solely at the circumstances contemporaneous with and preceding
the offense, there can be little doubt that driving while intoxicated, which places
persons on and near roads at significant risk, itself constitutes a threat to the
community and law enforcement. See Ex parte Shires, 508 S.W.3d 856, 861 (Tex.
App.—Fort Worth 2016, no pet.). Furthermore, the fact that appellant’s criminal
history demonstrates he has driven while intoxicated on multiple occasions prior to
his instant alleged offense makes the risk appellant poses in this regard
significantly higher. Cf. Ex parte Elliot, 950 S.W.2d 714, 717 (Tex. App.—Fort
Worth 1997, pet. ref’d) (upholding a pretrial bond condition that was supported by
a defendant’s previous DWI offense).

On appeal, appellant contends his physical condition means he will not be a
danger to the community as his physical condition prevents him from operating a
motor vehicle. The appellate record contains little evidence about appellant’s
physical condition and whether he can operate a motor vehicle. Appellant’s sister
testified at his habeas hearing that he was injured in the accident underlying

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appellant’s charge and was, at the time of the hearing, “badly hurt” and “having a
hard time recovering.” The record also reflects that appellant had been in a
wheelchair since the time of the accident and attended the hearing in a wheelchair.
Overall, it is difficult for this court to precisely determine how much capacity
appellant had or has to operate a motor vehicle.

The trial court was in the best position to weigh the evidence at the time of
the hearing, and it is clear that the trial court felt there was an unacceptably high
risk that appellant would drive a vehicle while intoxicated if released. At the
conclusion of the hearing, after acknowledging that the safety of the community is
one of the factors the trial court considered in setting bail, the trial court noted it
could not guarantee that appellant will not be able to get into a vehicle and drive
while intoxicated. Although appellant’s physical condition intuitively makes it
more difficult to do so, the trial court was the fact-finder who observed appellant
directly while assessing how physically able he was to operate a vehicle. With
little other evidence to analyze the issue on aside from references in the testimony
of appellant’s sister, we are not in a position to find any error by the trial court
here. Cf. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)
(acknowledging that appellate courts “should afford almost total deference to a
trial court’s determination of the historical facts that the record supports especially
when the trial court's fact findings are based on an evaluation of credibility and
demeanor”).

Turning to the Rubac factors in turn, appellant provided testimony from his
sister that prior to being charged with felony murder, he had been employed
regularly since being able to work, though his sister was unsure what his
employment was at the time of the alleged offense. The record also reflects that he
has family in Houston, Killeen, and Honduras (though testimony indicated he had

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not been to Honduras for around twenty years), and that he has lived around his
family generally for almost all of his life. As mentioned above, appellant has
multiple prior convictions for DWI offenses, and at the hearing, the State’s
attorney indicated appellant was charged in New York for larceny and disorderly
conduct around 2010, but aside from the State indicating the New York charges
were for misdemeanors, the quantity of and the specifics of the New York charges
are unclear from the record. There is no indication in the record that appellant has
failed to comply with bond conditions previously given in any case, nor is there
any indication in the record that appellant is currently subject to any bonds. And
as mentioned above, the charged offense involves a serious allegation that
appellant caused the death of another person.

After considering both the statutory and the common-law factors, we
conclude the trial court acted within its discretion in maintaining appellant’s bond
at $600,000. In particular, the trial court’s assessment that appellant posed a
significant risk to the community both significantly favors the bail amount and
depends heavily on the trial court’s assessment of appellant’s physical ability,
which is beyond this court’s ability to second-guess, particularly with the relative
lack of additional evidence shedding light on appellant’s physical ability. In
addition, the nature of appellant’s charged offense and the substantial punishment
he may be faced with if convicted indicate he poses a flight risk. See Dupuy, 498
S.W.3d at 231 (noting, in a multiple-charge case, “[g]iven the seriousness of the
charged offenses and the lengthy potential sentences, the trial court reasonably
could conclude there was a possibility that appellant would not appear for trial”).
We accordingly overrule appellant’s sole issue on appeal.

CONCLUSION

We affirm the trial court’s habeas-corpus judgment.

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PER CURIAM

Panel consists of Justices Jewell, Spain, and Wilson.
Do Not Publish — Tex. R. App. P. 47.2(b).

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