Full Opinion (html_with_citations)

             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-22-00259-CR
     ___________________________

NATHANIEL MACK BRADLEY, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 16th District Court
         Denton County, Texas
      Trial Court No. F19-2488-16


   Before Kerr, Womack, and Wallach, JJ.
   Memorandum Opinion by Justice Kerr
                           MEMORANDUM OPINION

      Nathaniel Mack Bradley—having been adjudicated guilty of second-degree-

felony burglary and sentenced to eight years’ incarceration—appeals the trial court’s

order denying his request for an appeal bond. Because the trial court did not abuse its

discretion by denying Bradley’s request, we will affirm the trial court’s order.

                                    I. Background

      A grand jury indicted Bradley for burglary of a habitation by two alternative

means: (1) entering a habitation with the intent to commit assault and (2) entering a

habitation and committing or attempting to commit assault. See
Tex. Penal Code Ann. § 30.02
(a)(1), (3). As part of his negotiated plea bargain with the State, Bradley pleaded

guilty and judicially confessed to burglary of a habitation as alleged in the indictment.

The trial court accepted Bradley’s plea, deferred adjudicating Bradley guilty, placed

him on eight years’ deferred-adjudication community supervision, and assessed a

$500 fine.

      Just over seven months later, in June 2022, the State moved to proceed to

adjudication, alleging that Bradley had violated 17 of his community-supervision

terms and conditions in as many paragraphs. At the September 22, 2022 revocation

hearing, Bradley pleaded true to the violations as alleged in 14 of the motion’s

17 paragraphs. 1 The trial court found the violations as alleged in the 14 paragraphs to


      1
       The State abandoned the remaining three.


                                            2
be true, and after hearing evidence, adjudicated Bradley guilty of burglary of a

habitation and sentenced him to eight years’ incarceration.

      Bradley directly appealed the trial court’s judgment adjudicating him guilty.2 He

then filed an application for writ of habeas corpus asking the trial court to set a

reasonable appeal bond. See Tex. Code Crim. Proc. Ann. art. 44.04.

      At the hearing on his appeal-bond application, Bradley was the sole witness. He

testified that he had lived in the Dallas-Fort Worth (DFW) area for almost four of the

nearly five years he had lived in Texas. During his time in the DFW area, Bradley had

maintained continuous employment either working in warehouses or working for his

uncle. According to Bradley, if he were released on bond, he would start working for

his uncle immediately at the same car shop where he had worked for a couple of

months before he was arrested in June 2022.

      In addition to his uncle, Bradley had other family members in the DFW area: at

least one cousin, as well as Bradley’s fiancée and their two children. If Bradley were

released on bond, he would live with his fiancĂŠe in Aubrey and could work to support

her and their two children. Bradley stated that his family and friends could help him

make bail and that he, his family, and his fiancĂŠe could come up with about $2,000 to

$3,000.



      2
       Bradley’s direct appeal is currently pending before this court in Bradley v. State,
No. 02-22-00232-CR (Tex. App.—Fort Worth filed Oct. 4, 2022).


                                            3
      Bradley admitted that he was arrested for criminal trespass while he was on

deferred-adjudication community supervision, but he strongly denied that he had

actually committed the offense. He also admitted that he had a prior criminal history:

      • a conviction in Dallas County in 2022 for failure to identify;

      • a conviction in Denton County in 2021 for failure to identify;

      • a conviction in Tarrant County in 2019 for failure to identify; and

      • a conviction in Denton County in 2017 for violating a protective order.3

      When the State asked Bradley if he had been convicted of any criminal offenses

while he lived in Louisiana, Bradley responded, “No, I don’t think so.” At that point,

the State asked the trial court to take judicial notice of the testimony and evidence

admitted during the adjudication hearing. The evidence at that hearing revealed three

Louisiana convictions: (1) simple battery in 2016, (2) resisting an officer in 2016, and

(3) criminal trespass in 2017.

      In addition to his prior criminal history, Bradley admitted to missing a court

date in this case but explained that neither he nor his bail bondsman knew about the

court date. He also testified regarding two alleged pretrial bond-condition violations.

The first was for failing to keep his GPS monitor’s battery charged, and the second

was for entering the “exclusion zone”—within 1,000 feet of an address in

      3
       The State also presented the trial court with a document listing Bradley’s
criminal history. The trial court and Bradley’s attorney reviewed the document, but it
was not offered into evidence.


                                           4
Lewisville—listed in his bond conditions. According to Bradley, the GPS monitor had

a “charging issue or something like that,” and he agreed that once he got a new

monitor, “the charging issue went away.” Regarding the second bond-condition

violation, when Bradley was asked whether he had any violations for “going

someplace [he wasn’t] supposed to go,” Bradley responded, “No, sir. Except -- not

really. I was working for Republican. I would pass by a place in Lewisville. That is

about it. I didn’t actually go anywhere I wasn’t supposed to go.”

      Just before closing arguments, the trial court took judicial notice of the court’s

file. Bradley’s attorney argued in closing that Bradley was entitled to an appeal bond

under Texas Code of Criminal Procedure Article 44.04 and asked the court to set

Bradley’s appeal bond at $25,000, “with the understanding that he will abide by

whatever conditions, in addition to that amount, that you want to place on him.” See

generally
id.
 In its closing argument, the State pointed out that the court’s file showed

that Bradley had failed to appear for a routine case setting on November 21, 2019,

and for a show-cause hearing on August 26, 2021, related to the exclusion-zone bond-

condition violation. Both failures resulted in Bradley’s pretrial bonds being forfeited.

      Bradley’s attorney countered that Bradley lives in Aubrey and that the State

could not establish that Bradley had notice of those hearings because of the various

addresses in the court’s file for Bradley in Haslet, Lewisville, and Oak Point. The trial

court responded,



                                            5
      Well, I think it’s incumbent upon the Defendant to make sure the Court
      has the correct address. And I didn’t hear Mr. Bradley say how long he
      has lived in Aubrey. But it remains his responsibility to communicate
      with the Court as to where he lives and what his address is.

      When Bradley’s attorney insisted that there was no order to appear and show

cause for the GPS-monitor bond violation, the trial court pointed out that even

discounting that alleged violation, the affidavit of fact supporting the second bond-

condition violation showed that Bradley had violated the “exclusion zone.” The trial

court continued,

      When I look at Mr. Bradley’s criminal history, I mean, there’s numerous,
      you know, failure to ID to police, family -- or violence type related
      incidents.

             The incident in question in this case involved an assault in the
      commission of a burglary of habitation. Those are concerning issues for
      the Court whenever I look at whether or not he’s the kind of person
      who might later commit another offense. Just the comment that we have
      all of these different addresses for him. The concern is that he’s not a
      stable person.

             So how do we know he’s going to show up to serve his sentence
      if he ends up not prevailing on his appeal, which is the basis for the
      Court’s consideration. He does have criminal history. It’s not just in this
      case. There are numerous instances of criminal history. And I just don’t
      have any confidence that he’s going to comply with bond conditions.

             He’s been a bit of a problem to keep up with and to try to make
      sure that he’s following the bond conditions in the case.

             ....

             . . . So I do believe that I have the basis under [Texas Code of
      Criminal Procedure Article] 44.04(c) to deny bail. And that is what I am
      going to do. That is what I am doing, okay.




                                          6
      The trial court signed an order denying Bradley’s appeal-bond application, and

Bradley timely appealed.

                    II. Standard of Review and Applicable Law

      We review the denial of a request for bail pending appeal for an abuse of

discretion. See Ex parte Spaulding,
612 S.W.2d 509, 511
 (Tex. Crim. App. 1981). When

reviewing matters committed to the trial court’s discretion, we do not substitute our

own judgment for that of the trial court. Gonzalez v. State,
544 S.W.3d 363, 370
 (Tex.

Crim. App. 2018). Instead, we ask whether the trial court’s decision was made without

reference to any guiding rules or principles of law; in other words, whether the trial

court’s decision was arbitrary or unreasonable. Montgomery v. State,
810 S.W.2d 372, 380
 (Tex. Crim. App. 1990). We uphold the trial court’s decision as long as it falls

within the zone of reasonable disagreement. See Gonzalez,
544 S.W.3d at 370
.

      Article 44.04 allows certain defendants convicted of felony offenses to be

released on bond pending appeal. See Tex. Code Crim. Proc. Ann. art. 44.04(b)–(c).

The primary objective of an appeal bond is to secure the appellant’s apprehension if

his conviction is subsequently affirmed. Ex parte Rubac,
611 S.W.2d 848, 849
 (Tex.

Crim. App. [Panel Op.] 1981). In weighing bail pending appeal, the trial court should

consider factors including the length of the sentence; the nature of the offense; the

appellant’s work record, family ties, and length of residency; his ability to make bail;

his prior criminal record and conformity with previous bond conditions; and any

aggravating factors in the offense.
Id.
 at 849–50. But a trial court may deny bail

                                           7
altogether “if there . . . exists good cause to believe that the defendant would not

appear when his conviction became final or is likely to commit another offense while

on bail.” Tex. Code Crim. Proc. Ann. art. 44.04(c).

                                     III. Analysis

      Here, Bradley was eligible to be released on bond pending appeal given the

offense of which he was convicted and the length of his sentence. 4 See
id.
 art.

44.04(b)–(c). This, along with his work record, his family ties to the area, his length of

DFW residency, and his testimony that he, his family, and his fiancĂŠe could come up

with about $2,000 to $3,000 for his release on bond pending appeal are factors that

might have weighed in Bradley’s favor in setting a bond amount. See Rubac,

611 S.W.2d 849–50; Jeanty v. State, No. 02-21-00207-CR,
2022 WL 1259065
, at

*2 (Tex. App.—Fort Worth Apr. 28, 2022, pet. ref’d) (mem. op., not designated for

publication).

      But here, the trial court concluded that good cause existed to believe that

Bradley would not appear when his conviction becomes final and that he is likely to

commit further offenses while on bail. See Tex. Code Crim. Proc. Ann. art. 44.04(c).

The trial court’s concerns about Bradley’s failure to appear are supported by evidence

      4
         In his closing argument, Bradley’s attorney argued that Bradley was entitled to
an appeal bond, implying that bond was mandatory here. Any such implication is
wrong. Bond pending appeal is mandatory in cases in which the defendant has been
convicted of a misdemeanor offense. Tex. Code Crim. Proc. Ann. art. 44.04(a).
Bradley was convicted of a second-degree felony, so bail in this case was discretionary.
See
id.
 art. 44.04(b)–(c).


                                            8
of Bradley’s previous failures to appear that resulted in his pretrial bonds being

forfeited and Bradley’s failing to keep the trial court informed of his current address.

The trial court’s concerns about Bradley’s propensity to commit further offenses

while on bail were based not only on the offense giving rise to this conviction but also

upon the evidence presented of his prior criminal history in both Texas and

Louisiana.

        Based on the record before us, we cannot conclude that the trial court abused

its discretion by finding that such good cause existed and by denying Bradley’s request

for bail. See
id.

                                    IV. Conclusion

        Having concluded that the trial court did not abuse its discretion by denying

Bradley’s request for an appeal bond, we affirm the trial court’s order.




                                                      /s/ Elizabeth Kerr
                                                      Elizabeth Kerr
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: December 15, 2022




                                           9