                                  NO. 12-18-00110-CR

                         IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

MCCLENDON HARRISON, II,                         §      APPEAL FROM THE 217TH
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      ANGELINA COUNTY, TEXAS

                                 MEMORANDUM OPINION
       McClendon Harrison, II, appeals from the trial court’s denial of his pretrial application
for a writ of habeas corpus. Appellant raises two issues. We affirm.


                                          BACKGROUND
       Jermaine Gray, Clifford Gray, and Appellant were involved in a violent assault against an
individual. Initially, Jermaine and the victim engaged in an altercation. During that altercation,
Appellant provided Jermaine with a firearm. Jermaine then shot the victim several times causing
the victim’s death.
       The State issued an arrest warrant for Appellant, and Appellant turned himself into
authorities in Shelby County on December 28, 2017. Appellant was detained immediately by
Shelby County and was transferred to Angelina County the following day, December 29, 2017.
Appellant has been confined in the Angelina County Jail since that time. The State charged
Appellant with murder, aggravated assault with a deadly weapon, and unlawful possession of a
firearm by a felon in an indictment returned on March 27, 2018. The State filed the indictment
with the trial court on March 28, 2018.
       The trial court set Appellant’s bond at $500,000. Appellant has been unable to make his
bond. Appellant’s only assets are a 2007 Chrysler Sebring and a little over one hundred dollars
in his jail commissary account. Appellant has a previous felony conviction for aggravated
assault, serious bodily injury. Appellant also has a few prior misdemeanor convictions.
       Appellant filed an application for writ of habeas corpus on March 27, 2018. The trial
court conducted an evidentiary hearing on the application on April 16, 2018. The trial court took
judicial notice of the indictment and heard testimony from two witnesses, Appellant and Ron
Stubblefield, a police officer with the City of Lufkin and the lead investigator on the case.
       At the conclusion of the hearing, the trial court denied Appellant’s application for writ of
habeas corpus. This appeal followed.


                                    WRIT OF HABEAS CORPUS
       In his first issue, Appellant contends that the trial court erred by denying his application
for writ of habeas corpus because the State was not ready for trial within ninety days. In his
second issue, Appellant argues that his bail is unconstitutionally excessive.
Standard of Review and Applicable Law
       We review a trial court’s decision regarding an application for a writ of habeas corpus for
an abuse of discretion. In re Shaw, 204 S.W.3d 9, 14 (Tex. App.—Texarkana 2006, pet. ref’d).
A trial court abuses its discretion when it acts without reference to guiding rules or principles.
Id. We review the evidence in the light most favorable to the ruling. Id.
       A pretrial application for writ of habeas corpus should be denied when there is an
adequate remedy by appeal after final judgment. Id. However, a defendant may raise a pretrial
habeas corpus claim regarding bail because that protection would be undermined if review was
not permitted until after conviction. Id.
       A defendant who is detained in jail pending trial of a felony 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 within ninety days from the commencement of his detention. TEX. CODE CRIM.
PROC. ANN. art. 17.151, § 1(1) (West 2015). The statute is clear; if the State is not ready for trial
in ninety days, the trial court has two options, release upon personal bond or reduce the bail
amount. Ex parte Castellano, 321 S.W.3d 760, 762 (Tex. App.—Fort Worth 2010, no pet.).
       “In computing a period of days, the first day is excluded and the last day is included.”
TEX. GOV’T CODE ANN. § 311.014(a) (West 2013). Thus, if a party must perform some act
before the expiration of a time period, we compute the time period by excluding the first day and



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including the last day. Nesbit v. State, 227 S.W.3d 64, 68 (Tex. Crim. App. 2007). This rule
applies to the State’s making an announcement of ready for trial. See id. (citing Scott v. State,
634 S.W.2d 853, 854–55 (Tex. Crim. App. 1982)).
       Upon a defendant’s assertion that the State was not ready for trial within the applicable
time period, the State has the burden to make a prima facie showing that it was ready for trial
timely. Jones v. State, 803 S.W.2d 712, 717 (Tex. Crim. App. 1991) (en banc). The State can
carry its burden by announcing ready for trial before the time period has run or by announcing
retrospectively that it had been ready within the time allowed. Castellano, 321 S.W.3d at 762-
63. But, the State cannot announce ready for trial when there is no indictment. Id. at 763. “The
filing of an indictment is essential to vest the trial court with jurisdiction over a felony offense.”
Cook v. State, 902 S.W.2d 471, 474 (Tex. Crim. App. 1995) (en banc).
       Additionally, excessive bail shall not be required of a defendant. U.S. CONST. amend
VIII. When a trial court sets the amount of bail to be required in a case, the trial court should be
governed by the Constitution and the following principles: (1) bail should be sufficient to give
reasonable assurance that the undertaking will be complied with; (2) bail should not be used as
an instrument of oppression; (3) the nature of the offense and the circumstances under which it
was committed should be considered; (4) the ability to make bail should be considered; and (5)
the safety of the victim and the community should be considered. TEX. CODE CRIM. PROC. ANN.
art. 17.15. The defendant has the burden of proof to establish that bail is excessive. Montalvo v.
State, 315 S.W.3d 588, 593 (Tex. App.—Houston [1st Dist.] 2010, no pet.).
Analysis
       Because Appellant was confined on December 28, 2017, the State needed to be ready for
trial on or before March 28, 2018. See TEX. GOV’T CODE ANN. § 311.014(a); Nesbit, 227
S.W.3d at 68. We do not count December 28, 2017, and thus, the ninetieth day of Appellant’s
detainment was March 28, 2018.
       The State’s attorney represented to the trial court that the indictment of Appellant was
returned and signed by the grand jury on March 27, 2018, and that the State was ready for trial at
that point. The trial court took judicial notice of the indictment, and the indictment was file
marked March 28, 2018. The State further presented testimony from Stubblefield that the State
could present evidence from two eye witnesses that Appellant (1) was at the scene of the
aggravated assault and murder, (2) was in possession of a firearm, and (3) provided the firearm



                                                  3
to Jermaine. Therefore, the trial court did not abuse its discretion by finding that the State was
ready for trial on or before March 28, 2018. We overrule Appellant’s first issue.
       The trial court set Appellant’s bail at $500,000, an amount that Appellant clearly was
unable to make. However, Appellant’s ability to make bail is not the only consideration for the
trial court in determining the amount of bail. TEX. CODE CRIM. PROC. ANN. art. 17.15. And
from our review of the record, there is no indication that the trial court used bail as an instrument
of oppression. Id. The primary purpose of bail is to secure the defendant’s presence in court at
trial. Montalvo, 315 S.W.3d at 593. The trial court heard evidence that Appellant had only
loose ties to Angelina County, had stronger ties to other communities, and had an unstable work
history. Appellant also had a prior felony conviction. The trial court set bail sufficiently high to
accomplish the goal of having Appellant present at trial.
       The trial court also should consider the nature of the offense and the circumstances under
which it was committed. TEX. CODE CRIM. PROC. ANN. art. 17.15. Appellant is charged with
three felony offenses, murder, aggravated assault with a deadly weapon, and unlawful possession
of a firearm by a felon. Appellant faces a possible sentence of life or up to ninety-nine years in
prison. TEX. PENAL CODE ANN. § 12.32(a) (West 2011). And, while the trial court heard
evidence that Appellant was not the individual who shot the victim, Appellant played a major
role in the murder and the aggravated assault with a deadly weapon. Appellant possessed the
firearm at the scene of the crime and gave it to Jermaine after Jermaine had been involved in a
scuffle with the victim.
       Finally, the trial court should consider the safety of the victim and the community. TEX.
CODE CRIM. PROC. ANN. art. 17.15. While the victim is deceased, the trial court still had a duty
to consider the safety of the victim’s friends and family and the rest of the community.
       Under this record, we cannot say that the trial court abused its discretion in setting
Appellant’s bail at $500,000. We overrule Appellant’s second issue.


                                           DISPOSITION
       Having overruled Appellant’s first and second issues, we affirm the trial court’s denial of
Appellant’s pretrial application for writ of habeas corpus.




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                                                                BRIAN HOYLE
                                                                   Justice




Opinion delivered August 15, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



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                                      COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                              JUDGMENT

                                              AUGUST 15, 2018


                                            NO. 12-18-00110-CR


                                     MCCLENDON HARRISON, II,
                                             Appellant
                                                V.
                                       THE STATE OF TEXAS,
                                             Appellee


                                   Appeal from the 217th District Court
                           of Angelina County, Texas (Tr.Ct.No. 2018-0157)

                          THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
trial court’s order.
                          It is therefore ORDERED, ADJUDGED and DECREED that the order of
the court below denying Appellant’s pretrial application for writ of habeas corpus be in all
things affirmed, and that this decision be certified to the court below for observance.
                       Brian Hoyle, Justice.
                       Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
