                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00012-CR

                      EX PARTE JOE CURTIS TENNELL




                          From the 85th District Court
                              Brazos County, Texas
                        Trial Court No. 08-002866-CV-85


                         MEMORANDUM OPINION


      Joe Curtis Tennell contends that the trial court erred by refusing to set bail for

two pending felony charges and six pending misdemeanor charges. The State agrees

that the court erred. We will reverse and remand.

                                     Background

      Tennell was arrested in May 2007 for aggravated assault, assault, and failure to

identify. He was released in July after posting bond on each charge. He was arrested in

August for driving with an invalid license and was released on bond a few days later.

In November, his bondsman filed affidavits requesting revocation of Tennell’s bonds

because Tennell had failed to comply with several bond conditions. A magistrate
granted the request and revoked Tennell’s bonds. When he failed to appear for a status

hearing in December, a capias was issued for his arrest.

        Tennell was arrested for felony theft in January 2008 and also arrested for the

capiases issued the previous month. He was released on bond on all charges in March.

The next month he was arrested for evading arrest in a vehicle, possession of

marihuana, driving with an invalid license, and resisting arrest. He was released on

bond one week later.

        Tennell failed to appear at hearings on the pending charges in August 2008. He

was arrested one month later and has been held without bond since then on all but the

evading arrest charge.1

        Tennell filed a habeas application in November 2008 asking the trial court to set

bail in all pending charges for which bail had not been set. The court heard the matter

in December and signed an order denying the application.

                                      TEX. CONST. art. I, § 11a

        Article I, section 11a of the Texas Constitution provides the following four

scenarios under which an accused charged with a non-capital felony may be denied

pretrial bail:

                 the accused has been previously convicted of two felonies, the
                 second conviction being subsequent to the first;

                 the accused has committed a felony while on bail for a prior felony
                 for which he has been indicted;



1
        Bail is currently set at $10,000 on the evading arrest charge by a judgment nisi issued on August
13, 2008.


Ex parte Tennell                                                                                  Page 2
                the accused is charged with a felony involving the use of a deadly
                weapon after being convicted of a prior felony;

                the accused is charged with a violent or sexual offense committed
                while incarcerated for a prior felony.

TEX. CONST. art. I, § 11a(a).

        The State contends that the second alternative applies in Tennell’s case because

he was charged with felony theft after being released on bond for aggravated assault

and he was later charged with evading arrest with a vehicle after being released on

bond for the prior felony charges.

        However, for this provision to apply, “A district judge must hold a hearing

wherein the state must show substantial evidence of the defendant’s guilt for the [latest

felony charge] and the district judge must enter an order denying bond, all within seven

days of the defendant’s arrest [for the latest felony charge].” Pharris v. State, 165 S.W.3d

681, 690 (Tex. Crim. App. 2005) (quoting Neuenschwander v. State, 784 S.W.2d 418, 420

(Tex. Crim. App. 1990)); see TEX. CONST. art. I, § 11a(a).2 The burden is on the State to

affirmatively show compliance with the requirements of article I, section 11a. Pharris,

165 S.W.3d at 690.

        Here, the State presented no evidence of Tennell’s guilt for any of the pending

charges. Nor did the trial court sign the order denying Tennell’s habeas application

within seven days after his arrest. Id. at 690-91.




2
       Article I, section 11a(a) provides similar evidentiary requirements for each of the four scenarios
under which an accused may be held without bail. See TEX. CONST. art. I, § 11a(a).


Ex parte Tennell                                                                                  Page 3
       Therefore, we reverse the order denying Tennell’s habeas application and

remand this cause to the trial court for further proceedings consistent with this opinion.

Id. at 691.



                                                       FELIPE REYNA
                                                       Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Reversed and remanded
Opinion delivered and filed July 15, 2009
Do not publish
[CR25]




Ex parte Tennell                                                                    Page 4
