Opinion
NO. 03-17-00301-CRNO. 03-17-00302-CR
04-03-2018
Ex parte Andre Jackson
ON MOTION FOR REHEARING
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NOS. D-1-DC-16-301434 & D-1-DC-16-302285, THE HONORABLE DAVID CRAIN, JUDGE PRESIDINGMEMORANDUM OPINION
Although the parties submitted separate briefs in these appeals, we dispose of both appeals in one memorandum opinion because both appeals involve the same parties, address the same issue, concern interrelated facts, and apply the same well-settled law.
We withdraw the memorandum opinion and judgment dated February 15, 2018, substitute the following memorandum opinion and judgment in their place, and deny appellant's motion for rehearing.
Appellant Andre Jackson appeals the trial court's denial of his pretrial application for writ of habeas corpus seeking release on a personal bond due to delay. See Tex. Code Crim. Proc. arts. 11.08, 17.151. We affirm the trial court's order denying habeas relief.
BACKGROUND
The facts recited are taken from documents contained in the clerk's record, which reflect events that the parties discussed at the writ hearing.
Appellant was arrested for evading arrest or detention with a vehicle on July 30, 2016, and his bail was set at $10,000. He was released on a personal bond on July 31, 2016. On August 11, 2016, the Travis County grand jury returned an indictment against appellant for evading arrest or detention with a vehicle. Three months later, on November 29, 2016, appellant was arrested for murder, and his bail was set at $250,000. The following day, on November 30, 2016, appellant was rearrested on the evading charge pursuant to an alias capias issued by the trial court upon the revocation of appellant's personal bond, and appellant's bail was set at $25,000. On January 18, 2017, the Travis County grand jury returned an indictment against appellant for murder.
On March 13, 2017, appellant filed, pro se, an application for writ of habeas corpus seeking release from jail under article 17.151 of the Texas Code of Criminal Procedure.See Tex. Code Crim. Proc. art. 17.151. He asserted that he was entitled to be released on a personal bond because he had been detained on felony charges more than 90 days and the State was not ready for trial. See id. art. 17.151, § 1(1).
Although appellant is represented by appointed counsel in these cases, appellant filed his application for writ of habeas corpus pro se, and the trial court entertained it, exercising its discretion to allow hybrid representation on this matter. See Scarbrough v. State, 777 S.W.2d 83, 92 (Tex. Crim. App. 1989) ("It is well established that an accused has no absolute right to hybrid representation. Nevertheless, a trial court may certainly permit hybrid representation in its discretion.") (internal citations omitted).
The trial court conducted a hearing on appellant's application on April 10, 2017. No evidence was presented; the parties simply presented argument to the court. Appellant argued on his own behalf in a pro se capacity. At the conclusion of the hearing, the trial court orally denied appellant's application for writ of habeas corpus. Appellant filed a pro se notice of appeal. However, this Court abated the appeal in order for the trial court to enter a written order. See Ex parte Jackson, No. 03-17-00301-CR, 2017 WL 3897351, at *1 (Tex. App.—Austin Aug. 30, 2017, no pet.) (order & mem. op., not designated for publication) (per curiam). In compliance with the abatement order, the trial court entered a written order denying appellant's application for writ of habeas corpus on September 11, 2017.
DISCUSSION
In his sole point of error, appellant challenges the trial court's denial of his application for writ of habeas corpus. He argues that the trial court erred in refusing to release him from jail on a personal bond because the State was not ready for trial within 90 days from the commencement of his detention.
We review a trial court's decision to deny relief on a claim that the trial court violated article 17.151 of the Code of Criminal Procedure for an abuse of discretion. Ex parte Castellano, 321 S.W.3d 760, 762 (Tex. App.—Fort Worth 2010, no pet.); Ex parte Jagneaux, 315 S.W.3d 155, 157 (Tex. App.—Beaumont 2010, no pet.); see Ex parte Gill, 413 S.W.3d 425, 431 (Tex. Crim. App. 2013); Jones v. State, 803 S.W.2d 712, 719 (Tex. Crim. App. 1991). In reviewing a trial court's decision on a pretrial application for writ of habeas corpus, we review the facts in the light most favorable to the trial court's ruling and, absent an abuse of discretion, uphold the ruling. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006); Ex parte McVade, No. 03-17-00207-CR, 2017 WL 4348151, at *2 (Tex. App.—Austin Sept. 28, 2017, no pet.) (mem. op., not designated for publication); see Ex parte Ali, 368 S.W.3d 827, 830 (Tex. App.—Austin 2012, pet. ref'd). An abuse of discretion does not occur unless the trial court acts "arbitrarily or unreasonably" or "without reference to any guiding rules and principles," State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)), or unless the trial court's decision "falls outside the zone of reasonable disagreement," Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); see Castellano, 321 S.W.3d at 762 (appellate court will not disturb trial court's decision to deny relief on claim of article 17.151 violation if ruling was within zone of reasonable disagreement).
Under article 17.151 of the Texas Code of Criminal Procedure, a defendant who is detained in jail for more than 90 days pending trial on a felony accusation must be released either on personal bond or a reduced amount of bail if the State is not ready for trial of the criminal action for which he is being detained. Tex. Code Crim. Proc. art. 17.151, § 1(1); Rowe v. State, 853 S.W.2d 581, 582 (Tex. Crim. App. 1993). Under the statute, the State bears the initial burden to make a prima facie showing that it was ready for trial within the applicable time period. Ex parte Smith, 486 S.W.3d 62, 65 (Tex. App.—Texarkana 2016, no pet.); Ex parte Ragston, 422 S.W.3d 904, 906-07 (Tex. App.—Houston [14th Dist.] 2014, no pet.); see Jones, 803 S.W.2d at 717. The State may satisfy this burden either by announcing within the allotted time that it is ready, or by announcing after the fact that it had been ready within the allotted time. Smith, 486 S.W.3d at 65; Ragston, 422 S.W.3d at 907; see Jones, 803 S.W.2d at 717. The concept of the State's readiness for trial refers to the prosecution's preparedness for trial, not whether trial could have actually begun at that time. Ragston, 422 S.W.3d at 907; see Smith, 486 S.W.3d at 65; see also Behrend v. State, 729 S.W.2d 717, 720 (Tex. Crim. App. 1987); Santibanez v. State, 717 S.W.2d 326, 329 (Tex. Crim. App. 1986).
"The State cannot announce ready for trial when there is no indictment." Castellano, 321 S.W.3d at 763. Therefore, "the existence of a charging instrument is an element of State preparedness." Kernahan v. State, 657 S.W.2d 433, 434 (Tex. Crim. App. 1983); see McClellan v. State, 701 S.W.2d 671, 675 (Tex. App.—Austin 1985), aff'd, 742 S.W.2d 655 (Tex. Crim. App. 1987). The record in the evading case reflects that the indictment for evading arrest or detention with a vehicle was returned on August 11, 2016, which was 12 days from the date of appellant's original arrest in that case. Thus, the indictment was already on file when appellant's subsequent detention on that charge began upon the revocation of his bond. The record in the murder case reflects that the indictment for murder was returned on January 18, 2017, which was 50 days from the date of appellant's arrest and detention for the murder charge and, thus, within the applicable 90-day period. These indictments reflect "an element of [the State's] preparedness" in these cases during the relevant statutory time period—90 days from the commencement of appellant's detentions that began with his arrest for the murder charge and his rearrest for the evading charge.See Kernahan, 657 S.W.2d at 434.
Technically, since the arrest and rearrest for these offenses occurred one day apart, the 90-day statutory time period for appellant's detention on the murder charge began one day before the 90-day statutory time period for appellant's detention on the evading charge. This one-day difference does not impact our analysis.
Further, at the writ hearing, in response to appellant's contention that the State was not ready for trial in the 90-day allotted time period, the attorney for the State informed the trial court:
Your Honor, the State was ready. The Defendant was -- the offense committed in this case was on November 6th of 2016. The State presented a case to grand jury on January 18th of 2017 where the grand jury returned an indictment. That was well within the 90 days. The State was ready to calendar this for trial. As far as the cellphone [sic] records that we talked about at the last setting, Judge, that's just in addition to all the other evidence that we have in this particular case. And we were ready to go to trial within the 90 days.Based on the existence of the indictments in these cases as well as the State's announcement during the writ hearing—which reflected the State's readiness for trial since the date of indictment, the State met its initial burden to show that it was ready for trial during the allotted 90-day time period.
. . .
We've been ready since this case got indicted.
Once the State has made a prima facie showing of readiness, the burden shifts to the defendant to show otherwise. See Jones, 803 S.W.2d at 717-18; Barfield v. State, 586 S.W.2d 538, 542 (Tex. Crim. App. 1979); Ex parte Chachere, No. 03-01-00404-CR, 2002 WL 99642, at *1 (Tex. App.—Austin Jan. 25, 2002, no pet.) (mem. op., not designated for publication). "Evidence that rebuts a prima facie showing of readiness 'may consist of, among other things, a demonstration that the state did not have a key witness or piece of evidence available by the last day of the applicable time limit so that the state was not ready for trial within that time limit.'" Jones, 803 S.W.2d at 718 (quoting Barfield, 586 S.W.2d at 542); see also Behrend, 729 S.W.2d at 720. "'No bright line rule has emerged concerning just how much or what type of evidence the State must have available for trial in order to be prepared for trial.'" Ex parte Jenkins, No. 10-13-00030-CR, 2013 WL 2128314, at *1 (Tex. App.—Waco May 16, 2013, pet. ref'd) (mem. op., not designated for publication) (quoting Behrend, 729 S.W.2d at 720).
In the evading case, appellant initially disputed the State's claim of readiness based on his mistaken belief that no indictment has yet been returned in that case. However, as noted above, the indictment had already been returned—having been returned 12 days after his initial arrest—when his subsequent detention on the evading charge began. Appellant concedes his misunderstanding in his reply brief. Nevertheless, he continues to dispute the readiness of the State, contending that although an indictment has been returned in that case, the State has not made an announcement in that case that they were ready for trial during the allotted time period. However, the record reflects that the hearing was conducted in both cases. Thus, the assistant district attorney's initial statement that "the State was ready" can be construed as an announcement of readiness for both cases. The fact that the prosecutor elaborated on facts relating to the murder case—in order to address an issue that appellant raised regarding evidence in the murder case—but not the evading case does not negate the announcement of readiness.
First, appellant's application included the cause numbers of both the evading case and the murder case. In the body of the application, appellant asserted his "restraint" as confinement in jail on both offenses and referred to the bond amount set in both cases. In the prayer of the application, the relief appellant sought was release on a personal bond "for the above cause #'s." Second, while it is true that, at the beginning of the hearing, the trial judge mentioned only the cause number for the murder case, the judge further stated that "[W]e have [an] Original Petition for Habeas Corpus for release because of delay" and confirmed with defense counsel that appellant's pro se writ application was "what we're here for today." Then, as the judge indicated that the parties should proceed, he stated that "[he was] just reading what's in the petition -- Original Petition for Habeas Corpus for release because of delay" and verified that the petition was "a handwritten motion [sic] that's several pages long." Therefore, the record demonstrates that the court was conducting the hearing on appellant's pro se application that explicitly raised his habeas claim as to both cases. Further, the certified court reporter's record of the writ hearing reflects that the hearing was conducted in both cases: the record lists both cause numbers and states that "the Writ of Habeas Corpus for Release Hearing came on to be heard in the above-entitled and numbered cause." We also note that the trial court's order denying habeas relief listed both cause numbers.
In the murder case, appellant disputes the State's claim of readiness based on the absence of "key evidence." Appellant argues that the State was not, and could not have been, ready for trial because, according to appellant, cell phone records that were "key evidence" were not available during the allotted 90-day period. He points out that the State had indicated during a prior setting that discovery was ongoing and that the State had cell phone records that had yet to be turned over to the defense. Appellant contends that, given the acquisition of the records outside the 90-day period, the State could not have been ready during the allotted time as the prosecutor claimed. To support his contention, appellant relies on Jones v. State, a case in which the Court of Criminal Appeals held that the State had not been ready for trial because a key witness was unavailable. See Jones, 803 S.W.2d at 719. The contrast between this case and the Jones case is instructive, and demonstrates that appellant's reliance on Jones is misplaced.
It is unclear from the record when the State acquired the cell phone records at issue. At the prior setting that appellant references, the prosecutor indicated,
There's a lot of discovery on this case, Your Honor, including the State also was informed earlier this week that all of the cell records have been returned for the defendant and those are currently being mapped. Once we get all of that information, I will also give that to the Defense.However, the probable cause affidavit supporting the arrest warrant for murder—which was filed five months before the writ hearing—reflects that the investigating detective executed a search warrant and obtained the cell phone records of four individuals, including appellant, before appellant was arrested on the murder charge.
In Jones, a particular witness was identified as a "key witness." Id. at 718. The court was able to determine that the witness was a "key witness" based on the particular facts of that case and because the State did not controvert that he was a key witness in the prosecution's case. Id. Further, the witness at issue was in jail out of state during the relevant period of time, and the State had not taken any measures to secure his presence for trial. Id. Therefore, the Court of Criminal Appeals concluded that the trial court abused its discretion by finding that the State was "timely ready for trial" when the State's "chief witness" was unavailable during the applicable time period. Id. at 719.
In contrast, here, there was no showing at the writ hearing that the cell phone records were crucial to the State's case. The record does not reflect how the cell phone records might be used as evidence by the prosecution or whether they were necessary to the State's case. Moreover, the State's comments at the writ hearing disputed that the cell phone records at issue were "key evidence" in this case. The assistant district attorney explicitly stated that the cell phone records were "just in addition to all the other evidence that we have in this particular case" and reiterated that the State "[was] ready to go to trial within the 90 days."
At the conclusion of the writ hearing the trial judge stated,
The State has announced that they were ready at that time before the 90 days had elapsed and that creates on the face of it a readiness for trial. And I haven't heard any credible evidence to negate their showing of readiness, so I'll deny your Motion for Writ of Habeas Corpus and to be released.The record supports this ruling. The State met its initial burden of a prima facie showing of readiness by demonstrating the existence of indictments in these cases and by announcing that it was ready for trial during the allotted 90-day period. See id. at 717-18. On the record before us, we cannot conclude that appellant rebutted this assertion. As noted previously, there was no showing that the cell phone records were so vital that the State was not ready for trial without them. It is not unusual for litigants to have to go to trial without every witness or every piece of evidence that they would like to present. The State's assertion that the cell phone records were "additional evidence" indicates that the records were not essential to the prosecution's case, and appellant failed to show otherwise. See Ex parte Brosky, 863 S.W.2d 775, 778 (Tex. App.—Fort Worth 1993, no pet.) ("In the absence of a sufficient rebuttal, the trial court has the discretion to find the State was timely ready for trial.").
After reviewing the record, we conclude that the trial court did not abuse its discretion by denying appellant's application for writ of habeas corpus and refusing appellant's release on a personal bond. We overrule appellant's sole point of error on appeal.
CONCLUSION
Because the record supports the trial court's conclusion that the State was ready for trial in the allotted 90-day time period—more particularly, that appellant did not rebut the State's prima facie showing of readiness—the trial court did not abuse its discretion in denying appellant's application for writ of habeas corpus and refusing appellant's release on a personal bond. Accordingly, we affirm the trial court's order denying habeas relief.
/s/_________
Cindy Olson Bourland, Justice Before Justices Puryear, Field, and Bourland Affirmed on Motion for Rehearing Filed: April 3, 2018 Do Not Publish