Opinion
05-21-00218-CR
10-26-2021
EX PARTE DEMOND WAYLON JONES
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-83350-2020
Before Justices Osborne, Pedersen, III, and Reichek
MEMORANDUM OPINION
LESLIE OSBORNE JUSTICE
Demond Waylon Jones appeals the trial court's order denying relief on his pretrial application for writ of habeas corpus seeking his release on a reduced bond pursuant to article 17.151 of the code of criminal procedure. We affirm the trial court's order.
On August 12, 2020, appellant was arrested in Fort Bend County for a murder he allegedly committed in Collin County. After spending some time in jail in Fort Bend County and Dallas County, appellant was eventually transferred to Collin County on October 7, 2020. Appellant was indicted for murder on November 10, 2020, and a few days later, a Collin County magistrate set bond at $500,000.
After his indictment, appellant filed an application for writ of habeas corpus contending his confinement was illegal under article 17.151 because he had been detained for more than ninety days without an indictment being returned. See Tex. Code Crim. Proc. Ann. art. 17.151, §1(1) ("A defendant who is detained in jail pending trial of an accusation against him must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial of the criminal action for which he is being detained within ninety days of the commencement of his detention if he is accused of a felony.").
Subsequently, appellant filed a "Request for Immediate Relief Pursuant to C.C.P. 17.151" in which he explained his position that he was arrested on August 12, 2020 and charged on November 10, 2020, a ninety-one day time period. Appellant stated he was entitled to release from confinement because the State's delay in indicting him showed the State was not ready for trial. The State did not respond to appellant's pleadings. The trial court denied relief without holding a hearing and this appeal ensued
Standard of Review
We review for an abuse of discretion a trial court's habeas determinations regarding alleged violations of article 17.151. Ex parte Vanorman, 460 S.W.3d 700, 702 (Tex. App.-Beaumont 2015, no pet.); Ex parte Craft, 301 S.W.3d 447, 448 (Tex. App.-Fort Worth 2009, no pet.) (mem. op. on reh'g). A trial court abuses its discretion if it acts without reference to any guiding rules or principles or if its actions are arbitrary or unreasonable. Ex parte Miller, 442 S.W.3d 478, 481 (Tex. App.-Dallas 2013, no pet.). We review the evidence in the light most favorable to the trial court's ruling. Vanorman, 460 S.W.3d at 702; Craft, 301 S.W.3d at 448-49.
Analysis
In a single issue on appeal, appellant contends the trial court abused its discretion in denying relief on his claim that the State violated article 17.151. Appellant contends the State made no effort to show it was ready for trial by the ninetieth day of his detention as supported by the fact he was not indicted within ninety days of detention. Thus, appellant concludes, the State was not ready for trial within ninety days and his release is mandatory under article 17.151.
The State responds that, properly calculated, it indicted appellant on the ninetieth day of his detention, and the filing of the indictment sufficed to shift the burden of proof back to appellant to show the State was not ready for trial. Because appellant offered nothing other than the alleged failure to indict him within ninety days, the State contends the trial court did not abuse its discretion in denying habeas relief.
Article 17.151 is mandatory; if the State is not ready for trial within 90 days of the date of detention, the defendant must be released on his personal bond or by reducing the amount of bail to an amount the defendant can afford. Ex parte Lanclos, 624 S.W.3d 923, 927 (Tex. Crim. App. 2021). If the State has not indicted the defendant within the ninety-day period covered by the statute, then the State cannot be "ready for trial" within the meaning of article 17.151. Id. Under those circumstances, the trial court must either release the defendant on his personal bond or set affordable bail. Id. By executive order, the Governor has suspended the requirements of article 17.151 to the extent that a defendant need not be automatically released on a personal bond, but the executive order does not suspend the requirement that a defendant be released on a bond he can afford. Id. (citing The Governor of the State of Tex., Exec. Order No. GA-13, March 29, 2020, 45 Tex. Reg. 2368, 2369 (2020)).
Appellant's habeas application argued only that his "confinement and restraint is illegal because he has been confined more than 90 days without an indictment being returned." On appeal, citing an online internet date calculator, he continues to insist that he was indicted ninety-one days after he was detained with the period to measure being the date of arrest, August 12, 2020, to the date of indictment, November 10, 2020. Appellant's calculation is incorrect.
In calculating the length of the ninety-day period, "the first day is excluded and the last day is included." Tex. Gov't Code Ann. § 311.014(a). Because we do not include the date of appellant's detention, August 12, 2020, we measure the time interval starting with August 13, 2020 and including the date of his indictment on November 10, 2020. Id. Properly measured, appellant was indicted exactly ninety days from the date of his arrest. See id.; see also Nesbitt v. State, 227 S.W.3d 64, 68 (Tex. Crim. App. 2007) (noting in dicta that government code states first date is excluded and last date is included when particular act must be performed within certain period of time such as making announcement of ready for trial).
In his brief, appellant states nothing in the record shows the State was ready for trial. Ordinarily, when article 17.151 is raised on habeas, the State bears the burden to make a prima facie showing that it is ready for trial. See Ex parte Ragston, 422 S.W.3d 904, 906-07 (Tex. App.-Houston [14th Dist.] 2014, no pet.). The State carries its burden by announcing it is ready within the ninety days, or announcing retrospectively that it had been ready within the allotted time. Ex parte Jones, 803 S.W.2d 712, 717 (Tex. Crim. App. 1991). The prosecutor may make the retrospective representation that the State was ready for trial during the hearing on the defendant's article 17.151 habeas application. See, e.g., id.; Ragston, 422 S.W.3d at 907.
In this case, appellant's habeas application did not raise generally the issue of whether the State was ready for trial, but only the issue of whether appellant was indicted within ninety days. Given the limited scope of appellant's complaint, and the obvious error in appellant's calculation of the relevant time period, the trial court chose to deny relief without conducting an evidentiary hearing where it could have obtained a statement from the State about its readiness for trial. Under the circumstances presented, we conclude the trial court did not abuse its discretion. See Ex parte Perez, 536 S.W.3d 877, 880 (Tex. App.-Houston [1st Dist.] 2017, no pet.) (appellate court reviewing order denying habeas relief only considers issues properly raised in habeas petition and addressed by trial court); Ex parte Tucker, 977 S.W.2d 713, 715 (Tex. App.-Fort Worth 1998), pet. dism'd, 3 S.W.3d 576 (Tex. Crim. App. 1999) (same). We overrule appellant's sole issue.
We affirm the trial court's order denying pretrial habeas relief.
JUDGMENT
Based on the Court's opinion of this date, the trial court's order denying pretrial habeas relief is AFFIRMED.