                                NO. 12-10-00183-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

                                                 §           APPEAL FROM THE THIRD
EX PARTE:
                                                 §           JUDICIAL DISTRICT COURT
JAMES WESLEY SHERRILL
                                                 §           ANDERSON COUNTY, TEXAS


                                  MEMORANDUM OPINION
       James Wesley Sherrill appeals from the trial court’s denial of his request to be released on
bail or personal bond. In one issue, Appellant argues that the State was not ready for trial and the
trial court should have released him from jail. We affirm.


                                          BACKGROUND
       In December 2009, an Anderson County grand jury indicted Appellant for the felony
offenses of aggravated sexual assault, engaging in organized criminal activity, and aggravated
kidnapping. Appellant filed an application for writ of habeas corpus in December 2009 and filed
a subsequent application in February 2010.        Relief was denied on the application filed in
December. A hearing was held on the February application on March 1, 2010. Following a
hearing, the trial court judge denied relief but indicated that she would reconsider her ruling on
April 9, 2010.
       On April 9, 2010, the sitting judge was not the judge who heard the original application,
and he declined to rule. On April 13, 2010, the original judge considered the application, denied
relief, and set trial for May 17, 2010. On May 17, 2010, the trial court heard further argument on
the issue of whether Appellant should be released from jail. The State announced that it was
ready for trial, and the court denied relief. This appeal followed.

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                                       RELEASE BECAUSE OF DELAY
         In one issue, Appellant argues that the trial court erred in failing to release him from jail
because he had been detained for more than ninety days and the State was not ready for trial.
Applicable Law
         A defendant who is detained in jail for more than ninety 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. ANN.
art. 17.151, § 1(1) (Vernon Supp. 2010); Rowe v. State, 853 S.W.2d 581, 582 (Tex. Crim. App.
1993).
         The initial burden of showing readiness is on the state, and that burden can be discharged
by a statement that the state is ready for trial. See Jones v. State, 803 S.W.2d 712, 717 (Tex.
Crim. App. 1991). The state may satisfy this burden either by announcing that it is ready for trial
within the allotted time or by announcing retrospectively that it had been ready within the allotted
time. Id. at 717–18. Once the state has made a prima facie showing of readiness, the burden shifts
to the defendant to show that the state is not or was not ready for trial. See id.; Barfield v. State,
586 S.W.2d 538, 542 (Tex. Crim. App. 1979).
         We review a trial court’s ruling on a motion to release the defendant pursuant to Article
17.151 for an abuse of discretion. Jones, 803 S.W.2d at 717.
Analysis
         The State met its initial burden to show that it was ready for trial, and had been ready for
trial, when the assistant district attorney announced in court on May 17, 2010, that “we have been,
and are ready for trial.” Appellant argues that the State was not and had not been ready for trial.
Specifically, he points out that the results from a DNA test had not been returned by the May 17
hearing and argues that the State was not ready for trial without those test results. He analogizes
this case with the Jones opinion 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 illustrative. In that case, Eric Brager
was a “key witness.” Id. at 718. The court was able to determine that he was a key witness based
on the particulars of that case and because the “State did not controvert that Eric Brager was a key

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witness in its case.” Id. Brager was in jail during the relevant period of time in California, and
the State had not issued a “subpoena nor bench warrant nor any other lawful mechanism to secure
Brager’s presence” at trial. Id. Therefore, the court concluded that the trial court abused its
discretion by finding that the State was “timely ready for trial.” Id. at 719.
         In this case, by contrast, the State said that it had an eyewitness to the offense who could
testify and asserted that the missing DNA was not key or crucial to its case. The court pointedly
asked the assistant district attorney if the eyewitness was ready to testify. He responded that she
was ready to testify and the “law enforcement [officers]” were ready to testify. He went on to say
that the State did not need the DNA evidence and “had no expectation of necessarily finding this
defendant’s DNA.”           Finally, he represented to the court that “its mere absence or presence does
not make or break the case.”
         The State met its initial burden by announcing that it was ready for trial and that it had been
ready for trial. See Jones, 803 S.W.2d at 717-18. On the record before us, we cannot conclude
that Appellant rebutted this assertion. According to the State, the DNA test results were not
necessary for its case, and there is no showing that the evidence was so vital that the State was not
ready for trial without it.1 It is not uncommon for litigants to have to go to trial without every
witness or every piece of evidence that they would like to present. There may be some cases–for
example, an aggravated sexual assault where the assailant is unknown to the complaining witness
and was not apprehended immediately following the offense–where a DNA test result would be
the crucial piece of evidence, and the state could not proceed without it. In other cases, the
evidence would be less necessary or even irrelevant. The State asserted that this is one of the
latter kinds of cases, and Appellant failed to show otherwise. After reviewing the record, we hold
that the trial court did not abuse its discretion by denying relief on Appellant’s application for writ
of habeas corpus, and we overrule Appellant’s sole issue.


                                                          DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.
         1
           Appellant also argues that the State continued to “pass and reset the case every month.” There was no
evidence offered at the hearing that this was occurring. Appellant cites to the second page of the docket sheet in
support of this assertion. The docket sheet shows that the trial court indicated on April 13, 2010, that if trial did not
occur on May 18, 2010, it would “hear evidence on a request for bond reduction due to State not being ready for trial.”
The docket shows that on May 17, 2010, the trial court set trial for June 22 and that the writ was denied that day. On
June 21, after the trial court had ruled on this application, it appears that trial court set the matter for trial in October
2010. This does not show that the State was avoiding trial.

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                                                                 BRIAN HOYLE
                                                                    Justice

Opinion delivered June 30, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)



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