No. 04-04-00897-CR
Delivered and Filed: June 1, 2005. DO NOT PUBLISH.
Appeal from the 341st Judicial District Court, Webb County, Texas, Trial Court No. 2004-Crn-00834-D3, Honorable Elma Teresa Salinas-Ender, Judge Presiding. Reversed and Remanded.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice.
Opinion by: PHYLIS J. SPEEDLIN, Justice.
Genaro Tellez appeals from the trial court's denial of his motion for release on personal recognizance or reduction of bond pursuant to article 17.151 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 17.151 (Vernon 2005). We reverse the trial court's order denying Tellez's motion, and remand the matter to the trial court for further proceedings consistent with this opinion.
Background
On July 30, 2004, Tellez was arrested and charged with murder and engaging in organized crime. Tellez filed a motion for release on personal recognizance or reduction of bond on October 29, 2004-91 days after his arrest and detention. Tellez argued that he was entitled to relief pursuant to article 17.151 because he had been detained for more than ninety days and had not been indicted. The State obtained an indictment against Tellez for murder and organized crime activities on November 9, 2004-103 days after Tellez's detention. After conducting a hearing on Tellez's motion for release or reduction of bond on November 23, 2004, the trial court denied the motion. This appeal followed. Analysis
Article 17.151 states that a defendant who is detained pending trial "must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial . . . within: (1) 90 days from the commencement of his detention if he is accused of a felony." Tex. Code Crim. Proc. Ann. art. 17.151. The statute's terms are mandatory. Ex parte Kernahan, 657 S.W.2d 433, 434 (Tex.Crim.App. 1983); Ex parte Venegas, 116 S.W.3d 160, 162 (Tex.App.-San Antonio 2003, no pet.). Where there is no indictment, the State can not be ready for trial. Venegas, 116 S.W.3d at 162. Here, the State stipulates that the indictment against Tellez was not returned until after ninety days from the commencement of his detention. Therefore, the State could not have been ready for trial within the ninety-day period following Tellez's detention. Id. The trial court thus had two options: release Tellez on personal bond; or reduce the amount of bail required. Rowe v. State, 853 S.W.2d 581, 582 (Tex.Crim.App. 1993); Venegas, 116 S.W.3d at 164-65. "If the court chooses to reduce the amount of bail required, it must reduce bail required to an amount that the record reflects an accused can make in order to effectuate release." Rowe, 853 S.W.2d at 582 n. 1; see also Kernahan, 657 S.W.2d at 434. The trial judge wholly denied Tellez's request to be released on personal bond or to reduce his bond, in contravention of the mandatory language of article 17.151. See Venegas, 116 S.W.3d at 162; but see Moreno v. State, 845 S.W.2d 467, 469 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd) (bail may be denied in capital offenses when the proof is evident or when the requirements of Texas Constitution article I, § 11a, are met) (citing Jones v. State, 803 S.W.2d 712, 717 (Tex.Crim.App. 1991)). Accordingly, we must reverse the trial court's order denying Tellez's motion for release or reduction of bond pursuant to article 17.151. Because the record before us does not reflect what amount of bail, if any, Tellez is able to pay, we remand the matter to the trial court for further proceedings and entry of an order either releasing Tellez on personal bond or reducing his bail to an amount that the trial court determines he is able to pay to effectuate his release.