                                                                         ACCEPTED
                                                                      03-17-00302-cr
                                                                           21406744
                                                         THIRD COURT OF APPEALS
                                                                    AUSTIN, TEXAS
                                                                12/20/2017 12:39 PM
                                                                  JEFFREY D. KYLE
                                                                             CLERK
            No. 03-17-00302-CR

In the Court of Appeals for the Third District FILED IN
                                          3rd COURT OF APPEALS
                Austin, Texas                 AUSTIN, TEXAS
                                          12/20/2017 12:39:29 PM
              Andre Jackson,                 JEFFREY D. KYLE
                                                   Clerk
                Appellant

                      v.

            The State of Texas,
                 Appellee

Appeal from the 331st Judicial District Court
           Travis County, Texas
    Cause Number D-1-DC-16-302285
  Honorable Judge David Crain, Presiding

          STATE’S REPLY BRIEF


                  Margaret Moore
                  District Attorney
                  Travis County, Texas

                  Nancy L. Nicolas
                  Assistant District Attorney
                  State Bar No. 24057883
                  P.O. Box 1748
                  Austin, Texas 78767
                  512-854-9400 (phone)
                  512-854-4206 (fax)
                  Nancy.Nicolas@traviscountytx.gov
                  AppellateTCDA@traviscountytx.gov
                             TABLE OF CONTENTS

INDEX OF AUTHORITIES...................................................... iii
STATE’S REPLY TO APPELLANT’S SOLE POINT OF ERROR .. 1
   The trial court did not err in denying Appellant’s petition for
   habeas corpus seeking bond reduction or personal bond. .......... 1
      Factual Background ............................................................. 2
      The Standard of Review is Abuse of Discretion....................... 3
      The Trial Court Did Not Abuse its Discretion. ........................ 4
PRAYER ................................................................................. 9
CERTIFICATE OF COMPLIANCE AND SERVICE.................. 10




                                              ii
                             INDEX OF AUTHORITIES

    Cases

Ex parte Gill, 413 S.W.3d 425 (Tex. Crim. App. 2013)..................... 3
Ex parte McNeil v. Rains, 772 S.W.2d 488 (Tex. App. -- Houston [1st
  dist.] 1989) ................................................................................ 4
Ex parte Smith, 486 S.W.3d 62 (Tex. App. -- Texarkana [6th dist.]
  2016)...................................................................................... 3,4
Jones v. State, 803 S.W.2d 712 (Tex. Crim. App. 1991) ......... 4,5,6,7
Pate v. State, 592 S.W.2d 620 (Tex. Crim. App. 1980) .................... 5
Philen v. State, 683 S.W.2d 440 (Tex. Crim. App. 1984).................. 7




    Statutes
Tex. Code Crim. P. Art. 17.151...................................................... 4




                                                 iii
                        No. 03-17-00302-CR

            In the Court of Appeals for the Third District
                            Austin, Texas

                           Andre Jackson,
                             Appellant

                                  v.

                         The State of Texas,
                              Appellee

            Appeal from the 331st Judicial District Court
                       Travis County, Texas
                Cause Number D-1-DC-16-302285
              Honorable Judge David Crain, Presiding

                      STATE’S REPLY BRIEF


To the Honorable Third Court of Appeals:

     Now comes the State of Texas and files this answer in

response to the brief filed by Appellant.


   STATE’S REPLY TO APPELLANT’S SOLE POINT OF ERROR

     The trial court did not err in denying Appellant’s
     petition for habeas corpus seeking bond reduction or
     personal bond.
     Appellant argues that the trial court erred when it found that

the State had been ready for trial with ninety days from the

commencement of his detention, as required by Article 17.151 of



                                       1
the Texas Code of Criminal Procedure.                                          The State contends

Appellant has failed to prove this claim has merit.


                                       Factual Background

         On November 6, 2006, police responded to a call of an

unconscious man lying in the roadway.                                          CR 5.           An autopsy

determined that that Kenneth Johnson, the decedent, died as a

result of gunshot wounds. CR 5. Following an investigation by the

Austin Police Department, a probable cause affidavit and warrant

for Appellant’s arrest were issued, alleging Murder. CR 5-9. Bond

was set at $250,000. CR 10. Appellant was arrested on November

28, 2016, the same day the arrest warrant was issued.                                                    CR 4.

Appellant’s personal bond on a different case, for which he had

previously been released, was also revoked and set at $25,000 on

November 30, 2016.1                        A grand jury indicted Appellant for the

offense on January 18, 2017. CR 21-23.

         Through his attorney, Appellant filed a Motion for Writ of

Habeas Corpus seeking bail reduction on January 18, 2017.                                                      CR



     1
       The other case, an allegation of felony Evading Arrest or Detention, is proceeding in trial court under Cause
number D-1-DC-16-301434, and is the subject of Appellant’s other appeal, which is before this Court under Number
03-17-00301-CR. The facts and procedural history of that case are discussed more thoroughly in the State’s
corresponding answer.



                                                           2
15-20. A hearing on this motion took place January 24, 2017, in

which the trial court denied Appellant’s request to reduce the bond.

2 RR 10.

     Appellant filed, pro se, a “Petition for Habeas Corpus Because

of Delay” on March 13, 2017. CR 52. The petition was discussed in

a bench conference on March 15, 2017, but no formal hearing took

place at that time because the State had not been provided prior

notice of the petition. 3 RR 12. On April 10, 2017, the trial court

held a hearing on Appellant’s motion, at the conclusion of which the

motion was denied. 4 RR 8. Appellant challenges that ruling by the

trial court in the instant appeal.


           The Standard of Review is Abuse of Discretion.

     Claims that the trial court erred concerning the imposition or

reduction of bail are reviewed for an abuse of discretion. Ex parte

Smith, 486 S.W.3d 62, at 64 (Tex. App. – Texarkana [6th dist.] 2016),

citing Ex parte Gill, 413 S.W.3d 425 (Tex. Crim. App. 2013). The

reviewing court will not disturb a trial court’s ruling unless “no

reasonable view of the record” supports the legal conclusion,




                                     3
viewing the facts in the light most favorable to the ruling. Ex parte

Smith, 486 S.W.3d 64.


          The Trial Court Did Not Abuse its Discretion.

     Where an accused invokes Article 17.151 and challenges the

State’s timely readiness for trial, the State must make a prima facie

showing that the State is or was ready before the applicable

deadline. Jones v. State, 803 S.W.2d 712, at 719 (Tex. Crim. App.

1991).   If the State has made its prima facie showing, then the

burden shifts to the accused to rebut it, absent which a trial court

has discretion to find the State was timely in its readiness for trial.

Id. at 718, 719. Here, the State was required to be ready for trial

within ninety days of Appellant’s arrest for Murder, which would

have made the State’s deadline for readiness February 27, 2017.

Tex. Crim. Pro. Art. 17.151(1).

     The State made its prima facie case when the trial court noted

at the beginning of the proceeding on Appellant’s petition that

Appellant had been indicted for the offense on January 18, 2017. 4

RR 4. See Ex parte McNeil v. Rains, 772 S.W.2d 488, at 489 (Tex.

App. – Houston [1st dist. 1989] (“The existence of a charging



                                    4
instrument is an element of preparedness.        Where there is no

indictment, the State cannot announce ready for trial.”), citing Pate

v. State, 592 S.W.2d 620 at 621 (Tex. Crim. App. 1980). Here, the

Prosecutor affirmatively stated, “We’ve been ready since this case

got indicted.” 4 RR 8. The Prosecutor further informed the trial

court:

     Ms Meredith: You Honor, the State was ready. The Defendant
     was – the offense committed in this case was on November 6th
     of 2016. The State presented a case to grand jury on January
     18th of 2017 where the grand jury returned an indictment.
     That was well within the 90 days. The State was ready to
     calendar this for trial.


     4 RR 7.

     The only evidence offered by Appellant to rebut this showing

was his argument in which he pointed out the State had made no

formal announcement of ready within the statutory time period. 4

RR 6. However, the State is not required to file a written notice or

even announce ready prior to the ninetieth day; a retrospective

announcement of readiness can sufficiently demonstrate the State’s

compliance with Article 17.151. Jones v. State, 803 S.W.2d at 717

(Tex. Crim. App. 1991).




                                   5
     Further, Appellant claimed the State could not be ready

without cell phone records that the State represented had just been

received in March. 4 RR 6. The State’s response to this concern

was that the records were “just in addition to all the other evidence

that we have in this particular case. And we were ready to go to

trial within the 90 days.” 4 RR 7. The record in this instance is

distinguishable from the circumstances in Jones v. State, where the

significance of certain testimony from a person who was not

available to the State within the statutory time period was

uncontroverted. Here, unlike in Jones, the State refuted that the

cell phone records obtained after the ninety days had expired were

“a key…piece of evidence,” and instead articulated to the court that

the records were merely part of the totality of the case. 803 S.W.2d

712 (Tex. Crim. App. 1991). It is apparent from the Probable Cause

affidavit that records relied upon by the Austin Police Department

in their investigation were already in the possession of law

enforcement, and therefore available to the State, on November 23,

2016, prior even to the commencement of Appellant’s confinement.

CR 8.   Absent a credible showing of the significance the records

obtained by the State in March, the trial court was not bound to


                                   6
conclude that the cell phone records were a key piece of evidence

obtained untimely, and Appellant failed to meet his burden of proof

to rebut the State’s prima facie claim of readiness. Id.

     Additionally, even if the records were a key component in the

case, their arrival into the State’s possession in March does not

preclude the State’s readiness prior to that occurrence. The failure

to subpoena witnesses is insufficient grounds to rebut the State’s

announcement of ready, if the trial court finds that the State could

have been ready for trial absent the subpoenas, and the State

contends that same reasoning applies to evidence contained in

records expected in response to a subpoena. Philen v. State, 683

S.W.2d 440, at 444 (Tex. Crim. App. 1984).         Here, there is no

demonstration that had the case been set for trial sooner, the State

would have been unable to secure the records and requisite

witnesses on which to base a predicate for admissibility.      Again,

this is distinguishable from Jones, where the witness necessary to

the State’s case was proven to be in custody in a different state, and

no legal mechanism that could have secured his appearance was

commenced within the ninety day period for readiness. 803 S.W.2d

712 (Tex. Crim. App. 1991).


                                    7
     The trial court’s succinct ruling demonstrates its application of

the correct legal standard when it held, “The State has announced

that they were ready at that time before the 90 days had elapsed

and that creates on the face of it a readiness for trial. And I haven’t

heard any credible evidence to negate their showing of readiness, so

I’ll deny your Motion for Writ of Habeas Corpus to be released.” 4

RR 8.     Affording due deference to the trial court’s factual

determinations, and because the court utilized the correct legal

standard, the record does not support a finding of abuse of

discretion.   The State contends that this Court should deny the

relief sought by Appellant.




                                    8
                              PRAYER

     The State requests that the Court overrule Appellant’s point of

error and affirm the trial court’s judgment.



                                Respectfully submitted,

                                Margaret Moore
                                District Attorney
                                Travis County

                                /s/ Nancy L. Nicolas
                                Nancy L. Nicolas
                                Assistant District Attorney
                                State Bar No. 24057883
                                P.O. Box 1748
                                Austin, Texas 78767
                                512-854-9400 (phone)
                                512-854-4206 (fax)
                                Nancy.Nicolas@traviscountytx.gov
                                AppellateTCDA@traviscountytx.gov




                                    9
         CERTIFICATE OF COMPLIANCE AND SERVICE



  I certify that this brief contains 1,462 words, based upon the

computer program used to generate this brief and excluding words

contained in those parts of the brief that Texas Rule of Appellate

Procedure 9.4(i) exempts from inclusion in the word count, and that

this brief is printed in a conventional, 14-point typeface.

  I further certify that, on the 20th day of December, 2017, a true

and correct copy of this brief was served, by U.S. mail, electronic

mail, telephonic document transmission, or electronically through

the electronic filing manager,      to Appellant,    Andre Jackson,

#1642983, Travis County Jail, 3614 Bill Price Road, Del Valle, TX

78617.



                           /s/ Nancy L. Nicolas
                           Nancy L. Nicolas
                           Assistant District Attorney




                                    10
