Ex parte Tata

• Decision Date: 08 December 2011
• Docket Number: No. 01–11–00601–CR.,01–11–00601–CR.
• Citation: 358 S.W.3d 392
• Parties: Ex parte Jessica TATA, Applicant.
• Court: Texas Court of Appeals

358 S.W.3d 392

Ex parte Jessica TATA, Applicant.

No. 01–11–00601–CR.

Court of Appeals of Texas, Houston (1st Dist.).

Dec. 8, 2011.

Mike DeGeurin, Houston, TX, for Appellant.

Alan Curry, Chief Prosecutor, Appellate Division, Patricia R. Lykos, Harris County District Attorney's Office, Houston, TX, for State.

Panel consists of Justices KEYES, HIGLEY, and MASSENGALE.

OPINION

EVELYN V. KEYES, Justice.

Applicant, Jessica Tata, is charged with nine offenses: four counts of felony murder, two counts of reckless injury to a child, and three counts of abandoning a child.¹ The trial court set bail at $50,000 for each of the abandoning a child charges, $75,000 for each of the reckless injury charges, and $200,000 for each of the felony murder charges, for a cumulative bail amount of $1,100,000. Applicant filed an application for a writ of habeas corpus and bond reduction, which the trial court denied. In three issues on appeal, applicant contends that the bond amounts set by the trial court are excessive pursuant to the Eighth Amendment of the United States Constitution, Article I, Sections 10, 11, and 13 of the Texas Constitution, and articles 1.07 and 1.09 of the Texas Code of Criminal Procedure.

We affirm.

Background

At applicant's bail reduction hearing, Houston Fire Department Investigator D. Green testified that he investigated a fire that occurred on February 24, 2011, at a home day-care center operated by applicant. For the purposes of this hearing, the parties stipulated that, as a result of this fire, four young children died and three other children were injured, two of them seriously. Investigator Green testified that the fire started on the stovetop and that the cause of the fire was “cooking oil in a pan on the stovetop.” He further testified that, although applicant had made a statement that she was in the restroom at the time the fire started, he observed applicant at the scene and did not notice any physical evidence, such as soot on her clothing or any injuries, that indicated she had been inside the house. He stated that he later viewed a surveillance video from a Target store, located approximately three minutes from the day care, that depicted applicant shopping at the Target at the time the fire started.

Applicant was taken to the hospital and Investigator Green attempted to speak with her and obtain a statement. He characterized her family's attitude as “uncooperative,” and testified that her brother “felt like [Green] was harassing [applicant] just to get a statement.” When Green spoke to applicant, “she stated that she was in shock and ... she didn't know why she was in the hospital and she didn't know what [Green] was talking about.” Based on his experience as an E.M.T., Green did not believe that applicant was in shock, and he testified that he believed she “was being deceptive.” The trial court admitted an audio recording of Investigator Green's conversation with applicant at the hospital, which included Green's statement that he would “be contacting [applicant] at a later date.” Green returned early the next morning to speak with applicant before she was discharged from the hospital, but he could only speak with applicant's sister and applicant's friend, who informed Green that they were taking applicant to the friend's house.

Later the next day, two fellow officers attempted to obtain a statement from applicant, but she informed the officers that she wished to speak with her attorney before she gave a statement. The officers did not have a chance to obtain a statement because they “[wound] up getting a tip that [applicant] was leaving the country.” Investigator Green went to applicant's family's house to speak with her family members, but he “was never able to talk to anyone when [he] went there.”

On cross-examination, the trial court admitted the audio recording of applicant's 9–1–1 call, and Investigator Green acknowledged that a witness to the fire had said that he observed applicant bringing two children out of the burning house.² Green stated that when he spoke to applicant, he was not trying to “pin the blame” on her but was merely “trying to get some answers” about the fire and the surrounding circumstances.

Houston Police Department Officer C. Helton, who is assigned to the Gulf Coast Violent Offenders Task Force division of the U.S. Marshals, also testified at the hearing regarding his role in the search for applicant after she left the country. Officer Helton testified that applicant flew to Lagos, Nigeria, on February 26, 2011, two days after the fire. He also testified that applicant had booked a return flight to Dallas for March 18, 2011. He stated that applicant left the country on an “international passport.”

Officer Helton testified that he spoke with applicant's mother and sister and that they did not provide any information that assisted officials in locating applicant in Nigeria. He stated that he learned, from speaking to the family, that they have friends and family in Nigeria and that they make annual trips to Nigeria. Officer Helton testified that applicant was ultimately found in Port Harcourt, Nigeria, and that she did not turn herself in to the authorities. He stated that Interpol and Nigerian officials had spoken with applicant's father, who lives and works in Nigeria, and he informed the officials that he had not spoken to applicant. When the officials discovered an airline ticket with applicant's name on it at her father's house, he informed them of where she was staying. The officials found applicant on March 19, 2011, the day after her scheduled return flight to the United States.

On cross-examination, Officer Helton acknowledged that the Harris County District Attorney's Office did not file charges against applicant until after she had left for Nigeria. He further stated that the charges that had been filed were dropped after applicant returned to the country.

The State called Lieutenant K. Herring, with the Harris County Fire Marshal's Office, who testified that she investigated an incident at a Katy high school in 2002 involving two fires set in two different restrooms. Lieutenant Herring testified that video recordings demonstrated applicant leaving the restroom at the time of the fires and that, after she was confronted, applicant eventually admitted that she had started the fires. Applicant pleaded nolo contendere to the second degree felony offense of arson, was placed on probation, and ultimately completed the “Juvenile Fire Stoppers Program.” Lieutenant Herring also testified that applicant had five additional disciplinary incidents while she was a student in the Katy Independent School District: applicant had been reprimanded twice for theft and once each for trespassing, disruptive activity, and assault.

The State also called Kristi Smith, who works in the child care licensing division of the Department of Family and Protective Services. She testified that she visited the scene of the fire while the fire department and applicant were still present. Smith testified that she spoke to applicant, who seemed “pretty calm” and “not nervous.” She also testified that applicant told her that she had been cooking oil on the stove and was in the restroom when the fire started. Smith tried to speak to applicant's family members, and she testified that applicant's mother stated that she “didn't have any comments” and that applicant's brother questioned whether it was necessary for Smith to speak to applicant about the incident.

Smith also spoke with applicant after she returned to the United States. Applicant told her that “it was not a big deal” if the parents of the children at her day care did not pay their fees on time because “[applicant] had inheritance.” Smith asked applicant how often she visited Nigeria, and applicant responded that she “would go approximately two to three times a year or whenever there was a family occasion.” She also informed Smith that she paid for her ticket to Nigeria herself.

Applicant did not testify on her own behalf at the bail reduction hearing. Applicant's brother, Ronald Tata, testified regarding applicant's decision to go to Nigeria, her financial circumstances, and their family's financial circumstances and relative incomes. According to Ron, applicant went to Nigeria against the advice of their mother, who told applicant that leaving the United States would “look really, really bad.” He stated that he drove applicant to Dallas and lent her approximately $800 for a plane ticket to Nigeria. He stated that no charges were pending against her at that time. He further testified that he never believed that she would go to Nigeria and not eventually come back to Houston. According to Ron, he and his family members frequently visit Nigeria, and he agreed that he has “a lot of family members in Nigeria” and that most of his extended family lives in Nigeria. Ron also testified that he spoke with applicant after she was in custody in Nigeria, and she told him that she had turned herself in and that she would be returning to the United States “in a couple of days.” ³ He stated that she waived extradition proceedings back to the United States.

Ron testified that applicant, who is twenty-three, had been involved in babysitting and child care in their community and through her church since she was approximately eight or nine years old. Ron stated that applicant leased the building in which the day care was located. He also testified that he had been given power of attorney over applicant's finances, and he stated that she does not own any stocks, bonds, or real estate, and she also does not have any inheritance money. He testified that applicant currently has $46 in her checking account, she has no source of income beyond the day-care center, and she does not have a savings account. He stated that applicant could not make a $1.1 million bond.

Ron testified that everyone in his family, except for his father, who...