Ex parte Dupuy

• Decision Date: 14 June 2016
• Docket Number: NO. 14–15–00678–CR,NO. 14–15–00677–CR,14–15–00677–CR
• Citation: 498 S.W.3d 220
• Parties: Ex Parte Christopher Michael Dupuy
• Court: Texas Court of Appeals

498 S.W.3d 220

Ex Parte Christopher Michael Dupuy

NO. 14–15–00677–CR

NO. 14–15–00678–CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed June 14, 2016

Rehearing Overruled August 4, 2016

Marcus J. Fleming, League City, TX, Matthew Fox Curl, Galveston, TX, for Appellant.

Rebecca Klaren, Galveston, TX, for State.

Panel consists of Justices Christopher, McCally, and Busby.

OPINION

J. Brett Busby, Justice

Appellant was charged in two cases with third-degree felony online impersonation. See Tex. Penal Code Ann. § 33.07(a) (West Supp.2015). The magistrate originally set bail in each case at $300,000. Appellant filed motions and pretrial applications for writ of habeas corpus requesting a reduction in bail to $10,000 in each case. After conducting an evidentiary hearing, the trial court reduced appellant's bail to $200,000 in each case. Appellant appealed. Because appellant has not established that the trial court abused its discretion in declining to reduce his bail further, we affirm the trial court's orders.

BACKGROUND

A. Complaints and investigation

On December 17, 2014, complainant A.E. reported to the Harris County Sheriff's Office that she had been receiving numerous calls and text messages from unknown telephone numbers. She told Deputy J. Lewis the calls began around 10:20 pm on December 16. Within an hour, she received seven calls and 26 texts. A.E. said she finally answered her phone and, through the discussion with the caller, determined the calls and texts resulted from an advertisement in the escort section of an adult website.

The ad displayed multiple photographs of A.E., provided her phone number, and said she charged $70 for a half hour. A law enforcement officer later said the ad “gave the clear impression that the poster was offering sexual services in exchange for money.” A.E. told Deputy Lewis she did not post the advertisement and did not give anyone permission to post the advertisement or to use her persona for such purpose. She said she believed the advertisement was created by appellant.

On January 25, 2015, Deputy Scott Hardcastle of the Harris County Sheriff's Office interviewed A.E. She explained she had known appellant for approximately 20 years and they had dated about six years previously, before she married someone else. She recently employed appellant as her lawyer in divorce proceedings, which were finalized in late November 2014. During his representation of her, appellant told A.E. he wanted to be in a relationship with her. A.E. declined his advances. She told Deputy Hardcastle that her saying no angered appellant. He reportedly began monitoring her personal Facebook page and made comments to her about other men with whom she communicated on Facebook. A.E. also said appellant copied photos from her Facebook page and sent them to her with derogatory remarks about them. A.E. described appellant's behavior and advances toward her as aggressive. She said she communicated with appellant only to the extent necessary to finalize her divorce. After that, she said, she ceased all contact with him and ignored all his communications.

Deputy Hardcastle learned the ad was created by someone with the user name Don Tequila. Don Tequila's account was created on December 16, 2014.

The same user had posted another advertisement for escort services, this one in the name of the second complainant in this case, C.N. That ad displayed three photos of C.N., two of her face and one of her breasts only. Deputy Hardcastle interviewed C.N., who confirmed she did not post the ad and did not give anyone permission to post the ad or use her persona for that purpose. C.N. said she and appellant had dated in the past. While they were dating, she sent him the photo of her breasts displayed in the ad. The relationship ended in August 2014. She said appellant had been harassing her since that time. C.N. said she believed the ad was created by appellant. At that time, Deputy Hardcastle had not told C.N. that appellant was a suspect in the case regarding A.E.

The person who created the Don Tequila account provided a physical address on East Parkwood. That address is the business address of Greg Hughes, a lawyer who represented C.N. in her divorce.

Over the next four months, Deputy Hardcastle investigated the creator of the two advertisements. Eventually he determined the ads were created from an IP address that resolved to appellant's apartment.

B. Execution of search warrant

On June 25, 2015, Deputy Hardcastle and other law enforcement officers executed a search warrant for appellant's apartment. The officers repeatedly knocked and announced themselves as police. Deputy Hardcastle said he was not sure how long they knocked and announced themselves, but it was “quite some time” and “longer than normal.”

Appellant eventually acknowledged the officers' presence and asked them what they wanted. They repeatedly told him they had a search warrant. Appellant was uncooperative and would not open the door, so Deputy Hardcastle forcibly kicked open the door. Appellant was described as hesitant but cooperative once the officers were in the apartment.

When he first entered the apartment, Deputy Hardcastle could see only appellant's right side. Appellant did not appear to have anything in his right hand. The deputy could not see appellant's left side, so he instructed him to raise his hands so they were both visible. When he raised his hands, appellant dropped a bullet from his right hand onto the countertop to his right. Deputy Hardcastle directed appellant to step out of the kitchen and asked him where his weapon was. Appellant said it was in the kitchen. The deputy stepped into the area of appellant's left side and saw a 9–millimeter handgun equipped with a laser sight within appellant's reach.

In addition to the 9–millimeter handgun on the countertop, the officers found or seized several other pieces of evidence from appellant's apartment. The officers retrieved appellant's current passport, a laptop, several cell phones, and a GPS tracking device. They also found a laptop-style bag in the bathroom containing many items, including:

• appellant's driver's license;

• a checkbook;

• an LG cell phone;

• a 9–millimeter semiautomatic handgun with a laser sight and a silencer;

• four heavy-grade plastic restraints;

• a 950,000–volt stun gun;

• a KA–BAR military-style large knife;

• campfire starters;

• a multipurpose lighter;

• two handgun magazines;

• duct tape;

• electrical tape;

• a knit cap;

• black gloves;

• a hoodie; and

• two boxes of ammunition.

Appellant was arrested six days later. At the time of his arrest, appellant was on deferred adjudication community supervision for abuse of official capacity, a class A misdemeanor to which he pleaded guilty on September 19, 2013.

C. Bail hearing

The trial court held a hearing on appellant's pretrial applications for writ of habeas corpus to reduce his bail.¹ Appellant did not testify, but his mother, Janice Dupuy–Green, did.

Dupuy–Green said appellant had lived in the Houston and Galveston area his entire life except during college at Southern Methodist University. Appellant has two children, but Dupuy–Green did not know where they live; she believed their mother, appellant's ex-wife, moved them. She said appellant has never been charged with a violent crime nor charged with a felony. If appellant were released, he would live with her in Houston. She did not believe appellant was a flight risk. When he was charged with abuse of official capacity, Dupuy–Green said, appellant attended every court-ordered appearance and did not attempt to flee the jurisdiction. She said he did not attempt to leave the jurisdiction in this case, either, in the six days between the execution of the search warrant and his arrest.

According to Dupuy–Green, appellant does not own a home. Sometime after he was arrested, his apartment had to be vacated and the keys returned to the landlord. He owns a Volvo that carries a lien. She did not know the value of the car. She did not know whether appellant had any bank accounts, annuities, investment accounts, gold, silver, jewelry, or other significant assets. She said he had been “struggling” financially since his last court appearance in 2013. She believed he was indigent at that time and had not had “time to rebuild.” In her opinion, appellant was still indigent.

Dupuy–Green testified she spoke with two bonding agencies regarding appellant's bail. They reportedly told her the cost of a bond would be between five to ten percent of the amount of bail, depending on her credit and the conditions of the bond. She said she could make a bond if bail were set at $20,000 in each case.² For an amount greater than that, she said, she would have to seek other assistance. She did not say from whom she would or could seek assistance or if she had asked for assistance at that point. Appellant did not offer any other evidence.

The State presented three witnesses: Deputy Hardcastle; Texas Ranger Joe Haralson, who participated in the investigation and the execution of the search warrant; and Detective Garrett Groce, a digital forensic analyst with the Galveston Police Department.

Deputy Hardcastle testified about executing the search warrant. He also described photos of the items seized during the execution. The photos were admitted into evidence without objection. Additional testimony from Deputy Hardcastle is summarized above.

Ranger Haralson testified about his investigation of allegations (not charged in these cases) that appellant was harassing James Hernandez and David Dowdy. Hernandez was part of the legal team who represented appellant's ex-wife in her divorce from appellant, and Dowdy was the attorney ad litem for appellant's children in the divorce proceedings.

On January 15, 2015, Hernandez reported he discovered a GPS tracking device placed on his car without his permission.

The GPS device was the same make and model as the one seized from appellant's apartment during execution of the search...