                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00127-CR




          EX PARTE TERRY LYNN HEATH




        On Appeal from the 276th District Court
                Titus County, Texas
               Trial Court No. 40031




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                            MEMORANDUM OPINION
           On August 31, 2017, Terry Lynn Heath was arrested for aggravated assault with a deadly

weapon and unlawful possession of a firearm by a felon. On these charges, his bail was set at

$500,000.00 and $45,000.00, respectively.1 The trial court found that Heath was indigent and

appointed counsel for him. On December 14, 2017 (past ninety days since the date of his arrest),

Heath filed an application for a writ of habeas corpus, wherein he alleged that under the

circumstances set out in Article 17.151 of the Texas Code of Criminal Procedure, he was entitled

to be released on a personal bond, or, in the alternative, was entitled to a reasonable bond that he

could satisfy for release. The trial court denied Heath’s application at a June 22, 2018, hearing.

           On appeal, Heath argues that the trial court erred in denying his application for a writ of

habeas corpus. We agree because (1) the State related that it was not ready for trial within ninety

days of Heath’s detention and (2) Heath is entitled to have either a personal bond or bail set at an

amount low enough that he is able to make bond and, thus, secure his release from incarceration

until trial.

I.         Standard of Review and Applicable Law

           Article 17.151 of the Texas Code of Criminal Procedure prescribes,

           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.




1
    Indictments were formally filed on these charges in September and October 2017.

                                                          2
TEX. CODE CRIM. PROC. ANN. art. 17.151, § 1(1) (West 2015). “This Article preserves the

presumption of innocence by ensuring that ‘an accused as yet untried and unreleased on bond will

not suffer “the incidental punitive effect” of incarceration during any further delay attendant to

prosecutorial exigency.’” Ex parte Smith, 486 S.W.3d 62, 65 (Tex. App.—Texarkana 2016, no

pet.) (quoting Ex parte Jones, 803 S.W.2d 712, 716 (Tex. Crim. App. 1991) (quoting Ex parte

Green, 688 S.W.2d 555, 557 (Tex. Crim. App. 1985)).

          “A ‘decision of a trial judge at a habeas proceeding regarding the imposition or reduction

of bail “will not be disturbed by this Court in the absence of an abuse of discretion.”’” Id. at 64

(quoting Ex parte Gill, 413 S.W.3d 425, 428 (Tex. Crim. App. 2013) (quoting Ex parte Spaulding,

612 S.W.2d 509, 511 (Tex. Crim. App. 1981)). “A trial court abuses its discretion when it applies

‘an erroneous legal standard, or when no reasonable view of the record could support the trial

court’s conclusion under the correct law and facts viewed in the light most favorable to its legal

conclusion.’” Id. at 64–65 (quoting DuBose v. State, 915 S.W.2d 493, 497–98 (Tex. Crim. App.

1996), overruled on other grounds by Guzman v. State, 955 S.W.2d 85, 90 (Tex. Crim. App.

1997)).

II.       The State Was Not Ready for Trial Within Ninety Days

          “Under Article 17.151, the State has the initial burden to make a prima facie showing that

it was ready for trial within the applicable time period.” Smith, 486 S.W.3d at 65 (quoting Ex parte

Ragston, 422 S.W.3d 904, 906–07 (Tex. App.—Houston [14th Dist.] 2014, no pet.)). “The

question of the State’s ‘readiness, within the statutory limits refers to the preparedness of the



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prosecution for trial.” Id. (quoting Ex parte Brosky, 863 S.W.2d 775, 778 (Tex. App.—Fort Worth

1993, no pet.)). “The State may show readiness ‘either by announcing within the allotted time that

it is ready, or by announcing retrospectively that it had been ready within the allotted time.’” Id.

(quoting Ragston, 422 S.W.3d at 907).

         Here, Heath was detained on the charges on August 31, 2017. The reporter’s record from

the June 22, 2018, habeas corpus hearing shows that although Heath’s case had appeared on docket

calls, neither of Heath’s cases had yet been docketed for trial. At the hearing, the State informed

the trial court that although it had received test results pertinent to the cases in April, it was still

completing discovery. Despite this admission, the State said that each time the cases appeared on

the docket call, the State had announced “ready” and that no motion for speedy trial had been filed

by Heath. However, the State introduced no evidence of its announcements that it was ready at

those times and failed to indicate when those docket calls had taken place. Our appellate record

fails to demonstrate when the State made any announcement that it was ready for trial at any time

and in statements before the trial court, the statements by the representative of the State that some

discovery had not been completed seemed to contradict that representation. In any event, the first

docket call in both cases was not even scheduled until ninety days had already expired from the

first date of Heath’s detention.2



2
 In its brief, the State writes, “January 4, 2018—Both cases were scheduled for criminal docket call. . . . Docket calls
since that time were held on March 26, 2018 and July 2, 2018.” Each of these dates was more than ninety days past
the date of Heath’s arrest. We caution counsel to be mindful of an attorney’s duty of candor to the court under the
Texas Disciplinary Rules of Professional Conduct. TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 3.03, reprinted in
TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A (West 2013).



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       Because the State was not ready for trial within ninety days from the commencement of

Heath’s detention, Heath was “entitled to have bond set at either a personal bond or at an amount

he [could] make.” Id. at 70 (quoting Ex parte Carson, 215 S.W.3d 921, 923 (Tex. App.—

Texarkana 2007, no pet.) (noting that “the bail must be reduced to an amount defendant can pay

and thereby secure his release. . . . A token reduction of one dollar will not comply with this

section’s requirement that defendant ‘be released . . . by reducing the amount of bail required.’”)

(quoting Tex. Att’y Gen. Op. No. H–1130 (1978)).

III.   Heath Is Entitled to Either a Personal Bond or Bail that He Can Make

       Article 17.15, which establishes the rules for setting the amount of bail, states,

               The amount of bail to be required in any case is to be regulated by the court,
       judge, magistrate or officer taking the bail; they are to be governed in the exercise
       of this discretion by the Constitution and by the following rules:

              1.      The bail shall be sufficiently high to give reasonable assurance that
       the undertaking will be complied with.

              2.      The power to require bail is not to be so used as to make it an
       instrument of oppression.

             3.      The nature of the offense and the circumstances under which it was
       committed are to be considered.

              4.      The ability to make bail is to be regarded, and proof may be taken
       upon this point.

            5.      The future safety of a victim of the alleged offense and the
       community shall be considered.

TEX. CODE CRIM. PROC. ANN. art. 17.15 (West 2015). However, “under the plain language of

Article 17.151, a trial court must release a defendant from custody on personal bond or by reducing


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the amount of bail where he has been continuously incarcerated for more than ninety days and the

State is not ready for trial.” Smith, 486 S.W.3d at 63 (citing Gill, 413 S.W.3d at 427–28). Thus,

Gill concluded

         that two of the factors used in setting the amount of bail found in Article 17.15—
         “[t]he nature of the offense and the circumstances under which it was committed”
         and “[t]he future safety of a victim of the alleged offense and the community”—do
         not apply to an Article 17.151 application for release.

Id. (quoting Gill, 413 S.W.3d at 428, 432). Additionally, in Gill, the Texas Court of Criminal

Appeals wrote,

         We are troubled that a judge may order the indefinite detention of an uncharged
         accused on an offense the State is not ready to bring to trial on the basis of his
         criminal history, the nature of the alleged offense, or that he might present a danger
         to the victim or the community. It apparently troubled the Legislature as well.
         Article 17.151 was the remedy.

Ex parte Gill, 413 S.W.3d 425, 432 (Tex. Crim. App. 2013). Thus, Gill “also held that the trial

court cannot consider a defendant’s criminal history under Article 17.151.” Smith, 486 S.W.3d at

63 n.2 (citing Gill, 413 S.W.3d at 432).

         Here, both the appellate record and Heath’s testimony at the hearing established that he

was indigent and did not have the resources to post the bonds set by the trial court.3 In response

to Heath’s plea for either a personal bond or a reduction in the bond amount, the State presented




3
 Heath testified that he had worked for Salsbury Industries as a rigger prior to his arrest. However, no evidence was
taken with respect to his salary and expenses, and nothing established that Heath, who the trial court determined was
indigent, had any resources to post bond in the amount set by the court.



                                                         6
evidence of the nature of the offenses and the circumstances under which they were committed,

the future safety of the community, and Heath’s criminal history.

            Specifically, Ashton Lewis, a sergeant with the Mount Pleasant Police Department,

testified that he had been dispatched to the scene of a block party and that during the festivities of

the block party, a woman was killed by the discharge of a firearm. According to Lewis, witnesses

reported that Heath had brandished a firearm after getting into an argument with Courtney McGill

and that the deceased was accidentally shot by McGill as he attempted to shoot Heath. Lewis

testified that both of Heath’s current charges arose from this incident. Next, the State demonstrated

that, at a minimum, Heath had previously been convicted twice for forgery, twice for burglary of

a building, and once for possession of a controlled substance, in addition to several misdemeanor

offenses.4 On the record, the State specifically urged the trial court to consider these factors in

denying Heath’s application.

            “The first sentence of article 17.151 unequivocally declares that a defendant detained

pending trial ‘must be released’ if the State is not ready for trial within the appropriate amount of

time.” Gill, 413 S.W.3d at 430 (quoting TEX. CODE CRIM. PROC. ANN. art. 17.151, § 1 (West

2012)). Here, the State presented evidence of factors that could not be (but were) considered under

Article 17.15 by the trial court in denying Heath’s “application.” Therefore, we hold that under

the controlling authority of Gill, “[i]n failing to comply with article 17.151 and order Appellant[’s]




4
    The State questioned Heath about several other arrests and convictions, but did not receive responses from Heath.



                                                            7
release on a personal bond or reduce Appellant[’s] bail to an amount [he could] make, the judge

abused his discretion.” Id. at 432–33.

IV.    Conclusion

       We reverse the trial court’s order denying Heath’s Article 17.151 petition for habeas corpus

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

The mandate in this case shall issue immediately. See Smith, 486 S.W.3d at 70 (citing TEX. R.

APP. P. 2) (recognizing authority of appellate court to suspend rules, including time frame for

issuance of mandate, to expedite decision).




                                              Bailey C. Moseley
                                              Justice

Date Submitted:        August 9, 2018
Date Decided:          August 15, 2018

Do Not Publish




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