Opinion
No. 07-20-00151-CR
10-02-2020
EX PARTE TREVOR ROWE
On Appeal from the 137th District Court of Lubbock County, Texas
Trial Court No. 2020-001,037, Honorable John J. "Trey" McClendon III, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
Trevor Rowe appeals from an order denying his petition for writ of habeas corpus. Through it, he sought release from jail on a "personal bond pursuant to Article 17.151" of the Code of Criminal Procedure. Allegedly, the trial court abused its discretion in denying his motion because it "followed [the State's] lead that it side-step Article 17.151 based on the inapplicable and unsubstantiated Governor's declarations and certain Texas Government Code provisions." We affirm.
Background
Rowe was arrested for capital murder on January 8, 2020. His bond was set at $2,000,000. As of April 7, 2020, he had been in detention for 90 days, and the State had yet to indict him. Rowe filed his Pretrial Application for Writ of Habeas Corpus ten days later. He argued therein that he had been "held in this case in excess of ninety (90) days prior to presentment of Indictment, which means the State was not legally ready for trial." Consequently, the circumstances entitled him to release on a "personal bond pursuant to Article 17.151 C.C.P." The State responded that he was not eligible for bond given that 1) he had been accused of capital murder and 2) various orders from the Governor, the Texas Supreme Court, and Court of Criminal Appeals prevented the grand jury from meeting.
The trial court convened a hearing on the writ. No one disputed that Rowe was arrested for capital murder and had not been indicted for same within 90 days from his original arrest. Nor was he indicted at the time of the hearing. Several days later, the trial court issued a letter ruling. In it, the court wrote: "[b]ased upon the authority granted to courts by the March 13th First Emergency Order of our State's highest courts, I am granting the State's request that I modify the time frame set out in Section 17.151 of the Texas Code of Criminal Procedure and I am extending the 90 day deadline until May 12, 2020." With respect to the State's argument regarding "the power to completely deny a bond based upon both constitutional and statutory considerations as applied generally to capital murder cases and specifically to this case," the court agreed "that it is within the Court's discretion to do so." Yet, it opted to "deny[] the State's request for no bond and instead . . . keep it at its current amount." This letter was followed by a written order, dated May 4, 2020, denying the petition.
Disposition
Rowe's arguments before us are limited to addressing whether article 17.151 applied to his situation, whether the 90-day period alluded to in it could be extended by the trial court, and the effect of the emergency orders issued by the Governor and highest appellate court's in Texas regarding the COVID-19 pandemic. We address only the first topic for its disposition relieves us from having to consider the others.
An order denying a petition for writ of habeas corpus is reviewed under the standard of abused discretion. Ex parte Gill, 413 S.W.3d 425, 428 (Tex. Crim. App. 2013). Discretion is abused when the decision "falls outside the zone of reasonable disagreement," Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016), or the trial judge acts "'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)).
Next, article 17.151, § 1(1) of the Texas Code of Criminal Procedure states, among other things, that 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 . . . 90 days from the commencement of his detention if he is accused of a felony." TEX. CODE CRIM. PROC. ANN. art. 17.151, § 1(1) (West Supp. 2020). Should the accusation levied be a felony and the State be not ready for trial within the expressed time period, then the trial court has but two options. It must either release the accused upon personal bond or reduce bail to an amount that the record reflects an accused can make. Ex parte Gill, 413 S.W.3d at 429. Furthermore, the burden lies with the State to prove readiness. Ex parte Landrum, No. 07-18-00301-CR, 2018 Tex. App. LEXIS 8571, at *2 (Tex. App.—Amarillo Oct. 19, 2018, no pet.) (mem. op., not designated for publication). That is, it must prove it was prepared to try the case within the specified period. See Ex parte Smith, 486 S.W.3d 62, 65 (Tex. App.—Texarkana 2016, no pet.); accord Ex parte Jackson, No. 03-18-00494-CR, 2019 Tex. App. LEXIS 3243, at *6 (Tex. App.—Austin Apr. 24, 2019, no pet.) (mem. op., not designated for publication) (stating the same).
Being prepared for trial encompasses just that and not whether trial actually could have begun. Ex parte Jackson, 2019 Tex. App. LEXIS 3243, at *6. Indeed, delay arising from the conduct of the trial court, the tenor of its docket, or like impediments are immaterial to article 17.151. See Santibanez v. State, 717 S.W.2d 326, 329 (Tex. Crim. App. 1986). The focus lies simply upon the State's readiness within the specified time. And the requirements of that article normally may be satisfied by the State announcing either that it is or had been ready within the allotted time. Ex parte Ragston, 422 S.W.3d 904, 906-07 (Tex. App.—Houston [14th] 2014, no pet.).
Yet, it is rather clear that the State cannot be ready prior to indicting the detainee. See Ex parte Baldwin, No. 09-18-00396-CR, 2018 Tex. App. LEXIS 10776, at *5 (Tex. App.—Beaumont Dec. 21, 2018, no pet.) (mem. op., not designated for publication) (stating that the State cannot announce ready when there is no indictment); Ex parte Castellano, 321 S.W.3d 760, 763 (Tex. App.—Fort Worth 2010, no pet.) (stating the same). So, the absence of an indictment stands as a rather dispositive impediment to the State claiming it was or is prepared to try the case. At first blush, this would seem dispositive here since Rowe had sat in jail for more than 90 days without the State indicting him. Thus, it could not have announced ready. Nevertheless, a circumstance prevents us from so holding, and it encompasses the very application of article 17.151 to the crime for which Rowe was accused. There is an exception to the statute which appears in a clause within the Texas Constitution.
Per article I, section 11, "[a]ll prisoners shall be bailable by sufficient sureties, unless for capital offenses , when the proof is evident." TEX. CONST. art. 1, § 11 (emphasis added). In other words, one charged with a capital offense when "proof is evident" cannot invoke article 17.151, § 1(1). Ex parte McKane, No. 04-19-00352-CR, 2019 Tex. App. LEXIS 11160, at *5 (Tex. App.—San Antonio Dec. 27, 2019, no pet.) (mem. op., not designated for publication) (conceding that, though under some circumstances the legislature may provide that an accused be released pending the outcome of trial, "[t]hose circumstances do not exist under article I, section 11 of the Texas Constitution for prisoners awaiting trial for capital offenses 'when the proof is evident'"); Ex parte Jackson, 807 S.W.2d 384, 386 (Tex. App.—Houston [1st Dist.] 1991, no pet.) (rejecting Jackson's reliance on article 17.151 because the terms of article I, § 11 of the Constitution were satisfied and precedent of the Court of Criminal Appeals recognized the latter created an exception to the former); accord Ex parte Ross, 94 Tex. Crim. 313, 314-15, 251 S.W. 233 (Tex. Crim. App. 1923) (holding that the trial court did not err in rejecting bail given the capital nature of the crime and despite a conflict in the evidence or the presence of a defensive issue); see Jones v. State, 803 S.W.2d 712, 717 (Tex. Crim. App. 1991) (recognizing that the legislature's "sometimes legitimate concern that an accused released on pretrial bond may pose a danger" and stating that "however, all pretrial detainees 'shall be bailable . . ., unless for capital offenses, when proof is evident'"); see also Ex parte Stearnes, 752 S.W.2d 621, 622 (Tex. App.—Amarillo 1988, pet. ref'd) (wherein Stearnes was charged with capital murder and stating that article I, § 11 of the Constitution provided that all prisoners shall be bailable except in capital offenses where the proof is evident).
We are not unmindful of authority cited by Rowe which he believes suggests the contrary. For instance, in Beckcom v. State, 938 S.W.2d 780 (Tex. App.—Corpus Christi 1997, no pet.), the court first stated that a "defendant being held on a charge of capital murder is not entitled to bail 'when the proof is evident.'" Id. at 781. Then it observed that "this rule is subject to the provisions of article 17.151." Id. Yet, for some time now, the law of Texas has been that a statute does not, nor can it, supplant a constitutional provision. See Mears v. State, 520 S.W.2d 380, 381 (Tex. Crim. App. 1975). Simply put, "statutory rules cannot abrogate constitutional requirements." Id. This is so because our Texas Constitution is both the fundamental and supreme law of Texas. Oakley v. State, 830 S.W.2d 107, 109 (Tex. Crim. App. 1992); In re Expunction, 497 S.W.3d 505, 509 (Tex. App.—Houston [1st Dist.] 2016, no pet.). Consequently, statutory words yield to constitutional mandate. In re Expunction, 497 S.W.3d at 509. So, to the extent that the court in Beckcom may have suggested otherwise, it was mistaken.
Reliance upon the opinion in Ex parte McNeil, 772 S.W.2d 488 (Tex. App.—Houston [1st Dist.] 1989, pet. ref'd), would similarly be misplaced for several reasons. First, it did not involve the specific question at issue here; the State did not posit that article I, § 11 of the Constitution barred McNeil's release under article 17.151, § 1(1) of the Code of Criminal Procedure. Second, when the issue at bar eventually was addressed by the First Court of Appeals, the latter actually viewed the constitutional provision as an exception to article 17.151 of the Code of Criminal Procedure. See Ex parte Jackson, 807 S.W.2d at 386.
As for Rowe's allusion to this Court's opinion in Ex parte Stearnes, 761 S.W.2d 388 (Tex. App.—Amarillo 1988, pet. Ref'd) (Stearnes II), the accused was charged with a capital crime and we did address the issue whether the amount of bail set by the court was sufficient. Yet, there, we did not have cause to address whether the criminal code provision somehow displaced the constitutional directive. Why we did not is revealed within the opening paragraph of the opinion. "On a prior appeal, we ordered that reasonable bail be set for appellant Michael Dewayne Stearnes, who had been denied bail after being indicted for capital murder, because the State failed to show that the proof is evident." Id. at 388. From the quoted passage, one can readily see that in an earlier appeal we considered article I, § 11 but found it inapplicable because the State failed to satisfy its requirements, not because some statutory provision trumped it. See Ex parte Stearnes, 752 S.W.2d at 622.
In short, Rowe mistakenly suggests that article 17.151, § 1(1) of the Code of Criminal Procedure overrides or controls article I, § 11. The opposite is true. Moreover, the trial court agreed when first acknowledging the State's argument about "constitutional and statutory considerations as applied generally to capital murder cases and specifically to this case" to deny bond, then saying, "I agree with the State's position that it is within the Court's discretion to do so." Nevertheless, it exercised its discretion to afford Rowe the opportunity to gain release by posting the bond previously set. Thus, at least one ground supports the trial court's decision to reject Rowe's attempt to secure his release through use of article 17.151, § 1(1) of the Code of Criminal Procedure. That relieves us from having to consider any other.
It also left open the question whether all bond should be denied Rowe once formally indicted for capital murder. As it said in its letter ruling: "[s]hould this case ultimately be indicted and assigned to a specific court, upon proper motion from the defense, the judge presiding over the case shall have the further ability [to] decide what, if any , is the appropriate bond amount." (Emphasis added).
We find that the trial court did not abuse its discretion in denying Rowe's petition for writ of habeas corpus. Accordingly, the order of the trial court is affirmed.
Brian Quinn
Chief Justice Do not publish.