CONCURRING AND DISSENTING OPINION
Affirmed in Part, Reversed and Remanded in Part, and Plurality and Concurring and Dissenting Opinions filed September 20, 2022.
Although I agree with the pluralitys opinion concerning the facts, standard of review, timeliness of Appellants objection to his pre-trial release conditions, and overbreadth of Condition C3 (albeit for an additional reason), I disagree with the plurality concerning Conditions 6, C1, C6, C9, and C10. Therefore, I respectfully concur and dissent.
I. Pre-trial release conditions must be reasonable.
Pre-trial release can be premised upon certain conditions, those conditions constitute a restraint upon liberty, and those restraints must be reasonable. Ex parte Martinez, No. 02-15-00353-CR, 2015 WL 9598924, at *2 (Tex. App.—Fort Worth, Dec. 31, 2015, no pet.) (mem. op., not designated for publication) (citations omitted); Tex. Code Crim. Proc. Ann. art. 17.40(a) (“a magistrate may impose any reasonable condition of bond ․”); see also Ex parte Cole, No. 01-20-00423-CR, 2020 WL 5823290, at *1 (Tex. App.—Houston [1st Dist.] Oct. 1, 2020, pet. refd) (mem. op., not designated for publication) (“The trial courts discretion to set the conditions of bail is not ․ unlimited. A condition of pretrial bail is judged by three criteria: it must be reasonable; it must be to secure the defendants presence at trial; and it must be related to the safety of the alleged victim or the community.”) (citing Ex parte Anunobi, 278 S.W.3d 425, 427 (Tex. App.—San Antonio 2008, no pet.) (citing Ex parte Anderer, 61 S.W.3d 398, 401-02 (Tex. Crim. App. 2001) (en banc))).
A trial courts ability to set conditions of bond beyond bail amounts is governed by Article 17.40 of the Texas Code of Criminal Procedure, which authorizes magistrates to, in order “[t]o secure a defendants attendance at trial ․ impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community.” Tex. Code Crim. Proc. Ann. art. 17.40(a). “The primary purpose of pretrial bail is to secure the defendants attendance at trial, and the power to require bail, including the power to set conditions to bail, should not be used as an instrument of oppression.” Ex parte Cole, 2020 WL 5823290, at *1 (citing Ex parte Anunobi, 278 S.W.3d at 427 (citing Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. [Panel Op.] 1980))); see also Stack v. Boyle, 342 U.S. 1, 5 (1951) (bail conditions “must be based upon standards relevant to the purpose of assuring the presence of th[e] defendant”); Ex parte Layne, No. 12-20-00148-CR, 2020 WL 6788141, at *1 (Tex. App.—Tyler Nov. 18, 2020, no pet.) (mem. op., not designated for publication) (same).
II. Conditions 6, C1, C3, C6, C9, and C10 are unreasonable as currently written.
1. Condition 6
Condition 6 (as modified by the trial court) states that Appellant “shall remain at least 100 yards away from any premises where children commonly gather[.]” Although I acknowledge the States interest in protecting the community by preventing Appellant from going near places where children may gather and remaining there for an unreasonable period of time, Condition 6 is unreasonably overbroad because it prohibits Appellant from traveling along any route that takes him within 100 yards of places where children commonly gather, regardless of his purpose, his means of transportation, or the amount of time he is within such proximity to children. Such a prohibition is impermissibly overbroad because it is not reasonably tailored to the safety of a victim or the community. See Tex. Code Crim. Proc. Ann. art. 17.40(a).
2. Condition C1
Condition C1 states Appellant “shall not use, own, operate, or access any computer or hardware or software or any device, which allows internet access.” Without details, limitations, or descriptions that are not present, it is unclear whether this condition is intended to prohibit Appellant from using, owning, operating, or accessing devices that (1) traditionally access the internet (e.g., computers and phones); (2) have one or more items that when properly combined could allow internet access (e.g., a keyboard, a screen, a pointing device, a modem, a LAN port, a satellite dish, an antenna, etc.); (3) have software, hardware, or firmware capable of allowing internet access; or (4) have software, hardware, or firmware that is primarily engineered to receive information from the internet (as opposed to send communications from a user to another user). Condition C1s use of the phrase “allows internet access” encompasses (at least) all four of these possibilities, thereby prohibiting Appellant from using, owning, operating, or accessing an overbroad and ever-growing list of items that are not reasonably related (by any fact or by any argument in this record) to the safety of a victim or to the safety of the community, including cars, homes, Fitbits, refrigerators, microwaves, stoves, washers, dryers, toilets, printers, door-bell cameras, security cameras, door locks, speakers, coffee makers, vacuums, baby monitors, exercise bikes, treadmills, and even gardening kits. See generally Datamation, The Big List of IoT Devices & IoT Products, https://www.datamation.com/mobile/85-top-iot-devices/ (last accessed September 15, 2022). Therefore, condition C1 is impermissibly overbroad because it contains prohibitions that are not reasonable conditions of bond related the safety of a victim or of the community. Tex. Code Crim. Proc. Ann. art. 17.40(a).
Without a sufficient connection, signal, device, or interface, a particularized set of facts that is not in the record, or a particularized argument that the State did not make concerning a perceived danger to a victim or the community, each of the foregoing items only allows for the implausible possibility of internet access that is reasonably “related to the safety of a victim of the alleged offense or to the safety of the community.” Tex. Code Crim. Proc. Ann. art. 17.40(a). This implausible possibility renders condition C1 unreasonable and this unreasonableness justifies relief. See id.; see also Ex parte Martinez, 2015 WL 9598924, at *2 (citing Ex parte Anunobi, 278 S.W.3d at 427; Ex parte Robinson, 641 S.W.2d 552, 553 (Tex. Crim. App. [Panel Op.] 1982)). If the State has reasonable suspicion to believe Appellant has accessed the internet through a device that “allows internet access” in a way that threatens the safety of a victim or the community, condition C10 already contemplates search warrants and states Appellant will allow the State to conduct a search.
1
Therefore, the trial court abused its discretion when it imposed condition C1 without limitation.
3. Condition C3
Condition C3 states that:
[Appellant] shall permit the Pre-Trial Officer or his/her representative to install on [Appellants] computer(s)/device(s), at [Appellants] expense, any hardware or software systems to monitor the computer(s)/device(s) use or prevent access to particular materials; and shall abide by all monitoring rules and shall not tamper with or attempt to disable, circumvent or change any aspect of the monitoring program.
As written, this condition enables the State to monitor Appellants communications with his attorney. There is no showing in this record as to how such communications implicate the safety of a victim or the community; therefore, the trial court abused its discretion when it imposed this overbroad condition. See Tex. Code Crim. Proc. Ann. art 17.40.
4. Condition C6
Condition C6 prohibits Appellant from having “another individual access the Internet on his/her behalf.” Not “behest”, “direction”, “instruction”, or “request”; but “behalf”. The State has not argued (and no one can seriously contend) that based on these facts in this record, the trial court had the discretion to conclude Appellant represents any danger to anyone if:
• his lawyer accesses the internet to file or retrieve court records in his case;
• his lawyer conducts internet-based research;
• his expert conducts internet-based research;
• his expert communicates with his lawyer via the internet;
• his doctors access his offsite medical records via the internet;
• a driver identifies the best route to a particular location via the internet;
• vendors use his debit or credit cards to make purchases via the internet; or
• librarians use devices to locate books for him via the internet.
As written, however, condition C6 prohibits each of these things (and many more) despite the absence of any fact or argument in the record that would have allowed the trial court to conclude any of them represented a danger to anyone anywhere at any time. As a result, condition C6 is unreasonably overbroad. See Tex. Code Crim. Proc. Ann. art 17.40.
5. Condition C9
Condition C9 states:
[Appellant] shall not access any chat room, email accounts, instant messaging services or other online environments that allows interaction with other users, unless pre-approved in writing and authorized by the Probation Department and the Pre-Trial Officer.
The record before us is devoid of any evidence that tends to reveal how Appellants online communications with his attorney via (e.g.) email or instant messaging service implicate the safety of a victim or the community. Therefore, it is unreasonably overbroad despite the States interest in preventing Appellant from accessing chat rooms, messaging services, and other online environments in which he may intentionally or unknowingly communicate with minors. See Tex. Code Crim. Proc. Ann. art 17.40.
6. Condition C10
Condition C10 states:
[Appellant] shall permit and allow the Pre-Trial Officer or his/her representative or any law enforcement officer to conduct periodic, (unannounced), examinations of [Appellants] home or other designated premises that [Appellant] regularly accesses, to search for and verify whether [Appellant] possesses, or has access to, any unauthorized computer or device that is capable of Internet connection, email, or instant messaging services, predicated upon reasonable suspicion articulated in an affidavit upon which the Court thereafter issues an order to search said premises for said devices. Such examinations may include retrieval and copying of all memory from hardware/software and may also include removal of such device(s) and/or equipment for the purpose of a more thorough inspection by probation staff or by a forensic analyst to ensure compliance with these conditions.
Again, the phrase “that is capable of Internet connection” is overbroad and vague for the same reasons as outlined above. I would therefore modify that part of the sentence to read: “that can communicate with other users via the internet without modification (e.g., computers and “smart” phones).” Contrary to Appellants contention, this modified condition under these facts would be reasonably related to the States legitimate interest in protecting the community. See Tex. Code Crim. Proc. Ann. art 17.40.
CONCLUSION
The compelling governmental interests at issue concern the protection of society from the alleged danger foreseeably imposed by someone able and willing to use the internet to communicate with minors for the purpose of arranging to commit one or more allegedly illegal acts. Compare Tex. Code Crim. Proc. Ann. art. 17.40 with Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017) (“The sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people.”) (quoting Ashcroft v. Free Speech Coal., 535 U.S. 234, 244 (2002)); id. at 1740 (Alito, J., concurring) (“Because protecting children from abuse is a compelling state interest and sex offenders can (and do) use the internet to engage in such abuse, it is legitimate and entirely reasonable for States to try to stop abuse from occurring before it happens.”); cf. Ex parte Odom, 570 S.W.3d 900, 916 (Tex. App.—Houston [1st Dist.] 2018, pet. refd) (“the state may legitimately regulate the use of the internet by sex offenders because it is a powerful tool that can be used to commit sex crimes”) (citing Packingham, 137 S. Ct. at 1739-40 (Alito, J., concurring)). While there are doubtlessly individuals among us who by training, interests, or natural skill have the ability to deconstruct select electronic devices and create an amalgamation that allows remote communications via the internet with children (or people impersonating children), there is no evidence in this record that would have permitted the trial court to conclude Appellant is one of those people, that he presents a particularized danger to anyone by owning, accessing, operating, or using devices that allow a vague and unqualified quantum or type of “internet access”, or that Appellant must prohibit everyone from accessing the internet on his behalf lest he create an unacceptable danger to a victim or the community, violate the conditions of his release, and be returned to confinement without an adjudication of guilt in the underlying case. Based on this record, I conclude the trial court abused its discretion when it concluded conditions 6, C1, C3, C6, C9, and C10 were sufficiently tailored to strike the balance between protecting the rights of the unadjudicated accused and protecting a victim or the community from reasonably foreseeable harms under these facts.
I would therefore (1) reverse the trial courts imposition of conditions 6, C1, C3, C6, C9, and C10, (2) modify condition 6 to prevent Appellant from going to any place that is 100 yards from any premises where children commonly gather and remaining there for an unreasonable period of time, (3) modify condition C3 to exclude communications with Appellants attorney, and (4) remand for further proceedings consistent with this opinion.
FOOTNOTES
1
. The plurality opinion characterizes this concern as being “with the proliferation of Internet-connected devices in most individuals homes” and concludes Appellant failed to challenge the overbreadth of the condition. Plurality Op. at 14 n.2. I disagree with this characterization of my concern; instead of being concerned with the proliferation of such devices, I am concerned that the pluralitys opinion ignores the plain overbreadth of the trial courts order because it imprecisely covers an increasing array of items that (at least under the facts of this case) are wholly disconnected from the safety of the alleged victim or the community.
Meagan Hassan Justice