Opinion
NO. 01-17-00586-CR
07-12-2018
EX PARTE JESSE ANDREW LOPEZ, Appellant
On Appeal from the 268th District Court Fort Bend County, Texas
Trial Court Case No. 17-DCR-077033
MEMORANDUM OPINION
Appellant, Jesse Andrew Lopez, challenges the trial court's order denying his pretrial application for a writ of habeas corpus. In two issues, appellant contends that the trial court erred in denying his requested relief.
We reverse the order of the trial court.
Background
After appellant's arrest on March 4, 2017, a Fort Bend County Grand Jury issued a true bill of indictment, accusing appellant of committing the felony offenses of aggravated sexual assault and burglary of a habitation. The trial court set appellant's bond at $50,000.00. On June 20, 2017, appellant filed an application for a writ of habeas corpus, asserting that his confinement and restraint were "illegal because bond is excessive, oppressive and beyond [his] financial means."
See TEX. PENAL CODE ANN. § 22.021(a) (Vernon Supp. 2017).
See id. § 30.02(a)(1) (Vernon 2011).
See U.S. CONST. amend VIII, XIV; TEX. CONST. art. I, §§ 11, 13, 19; TEX. CODE CRIM. PROC. ANN. arts. 1.09 (Vernon 2005), 17.15 (Vernon 2015).
The trial court held a hearing on appellant's application. Appellant testified that he was twenty-nine years old, did not have any money to pay a "bail bondsman to make bond," and was unable "to make" the $50,000.00 bond set by the trial court. He did not "have anybody that [he] could go to borrow money to help [him] pay a bail bondsman to make a bond" or any assets that he could sell "to try to make a bail bond." His "only asset" was a car that he was "in the process of buying" from his brother, but the car was "impounded" when he was arrested for possession of marijuana in November 2016 and he "lost possession of that car." Appellant had previously owned a landscape business, but he had closed the business and "sold off" the equipment used in the business before the underlying case was filed, and "the money [was] all gone." After closing the business, he was "working for people that [he knew]" doing "[l]andscaping and odd jobs."
Appellant explained that he closed his landscape business because he "wasn't able to keep up with the work mentally" as "something [had] happened with [his] son" and he and his son's mother, the complainant in the underlying case, had "broke up." His family "broke up," and he "just couldn't keep up." In February 2016, his son told him that "his grandpa, which is the father of [the complainant] forced him to get undressed and get in the bed naked with him and sexually assaulted him." Appellant then asked the complainant "to report it" to law enforcement authorities, but "[s]he said she wasn't reporting it because her dad would go to prison for 25 years." When asked why he did not report the incident, appellant answered that at the time, he "was on steroids"; he "was smoking pot sometimes and stuff like that"; and the complainant had told him that if he "call[ed] the cops," she would "tell them that [he was] crazy," was "on steroids," and had "drugs in [his] system." He and the complainant then separated "for the last time," except for "[getting] together briefly in August."
During "the last year, year and a half," appellant had lived "at [his] mother's residence." In March 2016, he was "committed to Texana" and then transferred to "Behavioral Health Hospital," which he left without permission. After that, appellant "lived with [his] mother for awhile," "lived in a truck for awhile," and "stayed with a woman for a few days." He noted that his mother was the only family member in Fort Bend County with whom he could live if he posted a bond and, if she consented, he would live with her. Appellant did not know if she would consent "because of the mental health issues." If not, he "would go to a homeless shelter." Appellant's father was deceased, and he did not have "any outside family that [he] could go to . . . if [he] wanted to run off to another state." Appellant's mother had not made any effort to post bond for him, none of his family members had made an effort to post his bond, and his mother was "the only one that [had] any credit or money in the whole family." When asked whether he had "contacted any bonding companies in an effort to post bond," appellant answered, "No. I don't have 5,000 bucks in my books."
Appellant further testified that he was willing to submit to any court-ordered mental health evaluation and would follow a doctor's orders for any recommended medication. At the time of the hearing, he was "not under the mental case load at the Fort Bend County Jail" and was "not being medicated." Appellant had not had "any fights or mental breakdowns since [he had] been locked up in jail."
On cross-examination, the State asked appellant about his prior convictions. He acknowledged 2006 convictions for the misdemeanor offenses of theft of property and burglary of a motor vehicle, a 2007 conviction for the misdemeanor offense of theft of property, 2008 convictions for the misdemeanor offenses of theft and possession of a controlled substance, two 2009 convictions for the state-jail-felony offenses of theft, two 2012 convictions for the state-jail-felony offenses of theft, and a 2016 conviction for the misdemeanor offense of possession of marijuana. Appellant pointed out that his "last conviction was in 2012" and "[w]e're now in 2017."
The complainant testified that she had previously testified at the protective order hearing on April 10, 2017, noting that she had "said in an affidavit that [she had] signed in support of the application for the protective order that [she] and [appellant had] never lived together." When asked "is that the truth," she answered, "We were never on the same lease, so we never formally lived together." When asked if she, during the protective order hearing, had said "that [she] had heard [her son] say his grandfather had done something to him," the complainant answered, "I must have been nervous and misunderstood. What I meant was [appellant] has indicated to me . . . he believes my father had done something to [her son]." When asked if she had restricted her son's contact with his grandfather, she explained that "[she] wanted to be around just to be observant and see if there was anything abnormal." The complainant explained that she had spoken to her son, her father, and her mother about appellant's beliefs, but her son had "never made any outcries to [her] ever or to anybody." According to the complainant, appellant had "made outlandish, um, accusations against many people; and they're false."
As to the events of March 4, 2017, the complainant testified that appellant "slapped [her] multiple times" and "hit [her] so hard one time that he knocked [her] to the ground." When asked "was the door locked or unlocked," she answered, "He had me in that room for hours. It's a blur right now. I'm not sure if he locked it or not, but he shut it." The complainant tried "to escape" but, in the end, appellant "let [her] walk out the door." She did not know if appellant was mentally ill because she was "not a medical professional," but she opined that he was "a paranoid schizophrenic," noting that, on March 4, 2017, he was "acting really bizarre . . . talking crazy." The complainant was concerned that appellant would kill her and the children if he posted a bond, and she did not "feel safe" for herself or her children with anything less than "leaving him in." She acknowledged that the protective order that the trial court had entered did not restrict appellant from seeing their children, but explained that she "did not want him to see my children, our children."
At the end of the hearing, the trial court denied appellant's application, stating:
Considering all of the testimony and the evidence that has been presented to the Court, I take in consideration the fact that [appellant] cannot provide the Court with a definite place that he will be living in order to assure the Court that he will be at that location. I understand that he is without funds at this time, but I take in consideration very strongly the fact that his own family will not support him in these proceedings as far as bail is concerned and the testimony of those concerning their safety.
Appellant then filed his "Motion for Court to Reconsider Denial of Relief of Writ of Habeas Corpus Seeking Bail Reduction," arguing that he was entitled to be released because he "was detained in jail on March 4, 2017 and accused of a felony"; "the 90th day ran out on June 3, 2017; and at the July 17, 2017 hearing "the State announced that we are still in the preliminary stages of the case, and are waiting for DNA test results."
See TEX. CODE CRIM. PROC. ANN. art. 17.151 (Vernon 2015).
On August 14, 2017, the trial court held a hearing on appellant's motion to reconsider. Appellant again argued that he was entitled to be released because he was arrested on March 4, 2017, was indicted on April 10, 2017, and "[t]he 90th day ran out on June the 3rd, 2017." Appellant offered, and the trial court admitted with no objection, a portion of the transcript of the July 17, 2017 hearing. The portion includes the State's representations that it did not "have a definitive date as to when the results [of the DNA analysis would] be available" and "we are still in the preliminary phases of this case." At the August 14, 2017 hearing, the State further represented:
See id.
[W]e were never previously set for a trial. We appeared before you on many occasions with regards to the [appellant's] bond and the [appellant's] pro se motions. I can be ready for trial next week, Judge. What we are presently waiting for is [appellant's] competency evaluation. There are issues with regard to the DNA analysis, all of that. All I need is one witness. I have my one witness. I'm ready for trial next week if you elect that date. I've never announced "not ready."[](Emphasis added.) At the end of the hearing, the trial court concluded:
It's been proceeding at a normal course. In fact, there have been a number of hearings that we have had concerning moving this case along. There's been a change of defense counsel in this case, so there's been no inordinate delay, in addition to which by the nature of the charges and the evidence the Court has before it regarding the actions of [appellant] I find it would not be in the interest of this community and the safety of this community to have [appellant] released; therefore, I'm denying your motion to reconsider.On August 14, 2017, the trial court signed orders denying appellant's application for a writ of habeas corpus seeking bail reduction and his motion to reconsider the denial of relief on his application for a writ of habeas corpus.
After the hearing on appellant's application for a bond reduction, the trial court signed an order for the examination of appellant to determine his competency. See TEX. CODE CRIM. PROC. ANN. art. 46B.004(a) (Vernon 2018). The trial court later decided "to go forward with the trial on the merits."
See Ex parte Rodriguez, 366 S.W.3d 291, 295 n.3 (Tex. App.—Amarillo 2012, pet. ref'd) (considering appeal of order denying motion to reconsider order denying appellant's pretrial application for writ of habeas corpus as appeal from denial of subsequent application for writ of habeas corpus).
Standard of Review
We review a trial court's decision to deny relief on a claim that the trial court violated article 17.151 or the Texas Code of Criminal Procedure for an abuse of discretion. See Ex parte Gill, 413 S.W.3d 425, 428 (Tex. Crim. App. 2013); Ex parte Castellano, 321 S.W.3d 760, 762 (Tex. App.—Fort Worth 2010, no pet.). 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).
Article 17.151
In his first issue, appellant argues that the trial court erred in denying his requested relief because the amount of his bond was excessive and he was entitled to release on a personal bond or by a reduction in the amount of his bond as the State was not ready for trial within ninety days of his detention. See TEX. CODE CRIM. PROC. ANN. art. 17.151, § 1(1) (Vernon 2015).
Article 17.151:
Sec. 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:
Id. "Section 17.151 is mandatory." Pharris v. State, 196 S.W.3d 369, 373 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (citing Rowe v. State, 853 S.W.2d 581, 583 (Tex. Crim. App. 1993)). If the State is not ready for trial within ninety days after the beginning of detention for a felony, the trial court must release the defendant upon personal bond or reduce the amount of bail. See id. at 373-74. And, "the trial court may not consider any factors outside of those in article 17.151, such as the factors enumerated in article 17.15, which explains how a trial court should generally exercise its discretion in setting bail." Hernandez v. State, 465 S.W.3d 324, 326 (Tex. App.—Austin 2015, pet. ref'd); see TEX. CODE CRIM. PROC. ANN. art. 17.15 (Vernon 2015) (setting out rules for fixing amount of bail). "Conditioning release under article 17.151 on matters such as victim- or community-safety concerns deprives the statute of any meaning apart from article 17.15 and potentially frustrates article 17.151's clear intent." Ex parte Gill, 413 S.W.3d at 430.(1) 90 days from the commencement of his detention if he is accused of a felony.
Under article 17.151, the State has the initial burden to make a prima facie showing that it was ready for trial within ninety days after the start of a defendant's detention. See Ex parte Jones, 803 S.W.2d 712, 717 (Tex. Crim. App. 1991); Ex parte Ragston, 422 S.W.3d 904, 906-07 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The State may satisfy its burden "by announcing within the allotted time that it is ready, or by announcing retrospectively that it had been ready within the allotted time." Ex parte Jones, 803 S.W.2d at 717. The concept of "ready" refers to the State's preparedness, not to whether trial could have actually begun at that time. See Ex parte Ragston, 422 S.W.3d at 907; see also Santibanez v. State, 717 S.W.2d 326, 329 (Tex. Crim. App. 1986). If the State meets its initial burden to show readiness, the burden shifts to the defendant to show that the State is not or was not ready for trial. Ex parte Jones, 803 S.W.2d at 717.
Here, the record reveals that it is undisputed that appellant was still in custody on June 3, 2017, the ninetieth day from the start of his detention on March 4, 2017. In the trial court, appellant argued that he was entitled to be released under article 17.151 because the State "had indicated on July 17th [it was] not ready" and stated that it "did not even have the DNA results." At the July 17, 2017 hearing, the State represented that "the [DNA] kit was submitted," but the State did not "have a definitive date as to when the results would be available" and it was "still in the preliminary phases of this case." In response at the August 14, 2017 hearing, the State represented:
[W]e were never previously set for a trial. We appeared before you on many occasions with regards to the [appellant's] bond and the [appellant's] pro se motions. I can be ready for trial next week, Judge. What we are presently waiting for is [appellant's] competency evaluation. There are issues with regard to the DNA analysis, all of that. All I need is one witness. I have my one witness. I'm ready for trial next week if you elect that date. I've never announced "not ready."(Emphasis added.) The State did not identify its "one witness."
On appeal, the State asserts that it made the necessary prima facie showing that it was in fact ready for trial. According to the State, the record does not indicate that, before the hearing on the motion for reconsideration, appellant "questioned the State's readiness for trial or that the State announced 'not ready.'" It notes that in May 2017, it filed a "Notice of Business Records Pursuant to Rule 902" regarding medical records from Behavioral Hospital of Bellaire, an "Order for Disclosure of Defendant's Records Maintained by Texana," and an "Order for Disclosure of S.A.N.E. Medical Records" relating to the complainant from Harris County Hospital District. Further, on April 10, 2017, "a protective order hearing was held in which [the complainant] testified and the protective order was granted." The State argues that the "statement of '[h]aving] the one witness' needed for trial should be viewed as relating back to within ninety days of Appellant's detention because [the complainant] had already testified to the allegations in the protective order hearing within that time period."
At the previous hearing on appellant's application, the complainant testified that she had "testified in the protective order hearing on April the 10th, 2017." And her testimony reflects that the trial court had entered a protective order. The complainant's testimony may suggest that she was available as a witness. But when considered with the State's representations at the August 14, 2017 hearing, the testimony does not show that the State was in fact ready for trial on or before June 3, 2017. The record shows only that the State had its "one witness" as of August 14, 2017, "[could] be ready for trial next week," and was "ready for trial next week if the trial court elect[ed] that date." That is, the State would have been ready for trial in August 2017, more than ninety days after the start of appellant's detention on March 4, 2017.
The State asserts that the circumstances here are similar to those presented in Dixon v. State, 866 S.W.2d 115 (Tex. App.—Waco 1993, no pet.). In that case, the State, through the prosecutor's testimony at the application hearing, announced that it "was ready for trial as of the date of the indictment and within ninety days from [the defendant's] arrest." Id. at 116. The court of appeals concluded that the State's announcement established a prima facie showing that the State was ready for trial within ninety days of his arrest. Id.
Here, however, the record does not contain such an announcement. The State announced that it "can be ready for trial next week" and would be "ready for trial next week if you elect that date." "It is not enough that the State appear in open court after the running of the applicable period and declare itself at that time ready for trial." Ex parte Jones, 803 S.W.2d at 717; cf. Ex parte Ragston, 422 S.W.3d at 907 (concluding State satisfied its burden when prosecutor represented "State is ready for trial; has been ready since the date of indictment, which was done within 90 days from the date of [defendant's] incarceration" (internal quotations omitted)); Applewhite v. State, 872 S.W.2d 32, 34 (Tex. App.—Houston [1st Dist.] 1994, no pet.) (State "made prima facie showing of readiness" when it announced "the State is ready now, as it has been at all times" (internal quotations omitted)). The record simply does not demonstrate that the State met its burden to make a prima facie showing that it was ready for trial within ninety days from the start of appellant's detention.
We conclude that, under article 17.151, the trial court was required to release appellant "on personal bond or by reducing the amount of bail required." See TEX. CODE CRIM. PROC. ANN. art. 17.151, § 1(1). And the trial court did not have discretion to deny appellant's request for relief under article 17.151 based on "the interest of this community and the safety of this community." See Ex parte Gill, 413 S.W.3d at 430; Hernandez, 465 S.W.3d at 326. Accordingly, we hold that the trial court erred in denying appellant's "Motion to Reconsider Denial of Relief of Writ of Habeas Corpus Seeking Bail Reduction" and the requested habeas relief.
We sustain appellant's first issue.
Having sustained appellant's first issue, we need not reach his second issue in which he argues that the trial court erred in denying his application because his bail was "excessive and oppressive."
Conclusion
We reverse the trial court's order denying appellant's application for a writ of habeas corpus and remand this cause to the trial court for further proceedings. We dismiss all pending motions as moot.
Terry Jennings
Justice Panel consists of Chief Justice Radack and Justices Jennings and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).