Affirmed as Reformed and Opinion filed February 6, 2014.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00584-CR

                 EX PARTE JOSHUA DEWAYNE RAGSTON


                    On Appeal from the 506th District Court
                            Grimes County, Texas
                         Trial Court Cause No. 17187

                                    OPINION

      This is an appeal from the denial of a pretrial writ of habeas corpus. We
consider the following three issues: (1) whether the prosecution established that it
was ready for trial within the time allotted by the Code of Criminal Procedure;
(2) whether the trial court abused its discretion by refusing to set bail on two of
appellant’s three charged offenses; and (3) whether the trial court set an excessive
amount of bail on appellant’s third remaining charge. We reform the trial court’s
order and set bail for all three charges at $250,000. As reformed, we affirm the trial
court’s order denying habeas relief.
                                  BACKGROUND

       On June 22, 2012, appellant was arrested for the homicide of a liquor store
owner in Navasota, Texas. A grand jury returned an indictment on August 16,
2012, charging appellant with capital murder, murder in the first degree, and
aggravated robbery. All three offenses are alleged to have arisen out of the same
set of facts.

       Initially, the trial court ordered that appellant be held without bond on the
capital murder charge, and that bond be set at $500,000 for each of the two
remaining charges. Appellant filed a motion for bond reduction, claiming that his
bail was excessive and punitive. Appellant also filed a separate application for writ
of habeas corpus, claiming that his status as a juvenile precluded the State from
prosecuting him. Appellant’s habeas petition relied specifically on Miller v.
Alabama, a recent decision in which the United States Supreme Court held that
juveniles could not be sentenced to a mandatory punishment of life without parole.
132 S. Ct. 2455, 2469 (2012). Appellant contended that Texas’s capital sentencing
statute ran afoul of Miller as applied to him because, if convicted, he similarly
faced an automatic sentence of life without parole. Appellant accordingly argued
that he could not be tried, and that he should therefore be released.

       The trial court denied appellant’s habeas petition but granted partial relief on
the bond motion. The court reduced appellant’s bail to $250,000 on the charge of
aggravated robbery. As for the charges of capital murder and murder in the first
degree, the court ordered that appellant be held without bond.

       Appellant challenged all aspects of the trial court’s judgment in a previous
appeal before a different panel of this court. In that previous appeal, we construed
appellant’s habeas complaint as an “as-applied” challenge to the constitutionality
of the capital sentencing statute. See Ex parte Ragston, 402 S.W.3d 472, 475–76
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(Tex. App.—Houston [14th Dist.] 2013), aff’d, No. PD-0824-13, 2014 WL
440964, — S.W.3d —, slip op. at 5 (Tex. Crim. App. Feb. 5, 2014). Because “as-
applied” challenges are not cognizable for purposes of pretrial habeas, we affirmed
the trial court’s order denying habeas relief. Id. at 477. Appellant’s remaining
complaints challenged the trial court’s ruling on his separate motion for bond
reduction. We dismissed these complaints on jurisdictional grounds, concluding
that “no interlocutory appeal lies from the trial court’s order on a pretrial motion
for bond reduction.” Id. at 478.

      During the pendency of this previous appeal, appellant filed a second
application for writ of habeas corpus. In the application, appellant reasserted the
same arguments that had previously been raised in his separate motion for bond
reduction—i.e., that his bail was excessive and punitive. Appellant also asserted a
modified argument with regards to his juvenile status. Claiming again that he could
not be sentenced if convicted of capital murder, appellant argued that there was no
possible way for the State to announce ready for trial within ninety days of the
commencement of his detention. Appellant accordingly contended that, under
article 17.151 of the Code of Criminal Procedure, he was entitled to release on his
own recognizance.

      The trial court conducted a hearing on June 10, 2013, exactly one day before
our opinion issued in appellant’s first appeal. After considering all of the evidence
presented at the hearing, the court denied the application, found that the State had
been ready for trial, and left its previous bond order intact. Appellant brings this,
his second appeal, challenging the trial court’s most recent ruling on his
application for writ of habeas corpus.




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                             READINESS FOR TRIAL

       In his first issue, appellant argues that the trial court erred by failing to grant
him a personal recognizance bond on the capital murder charge. Appellant bases
his complaint on Article 17.151, which provides as follows:

       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.

Tex. Code Crim. Proc. art. 17.151, § 1(1).

       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. See Ex parte
Jones, 803 S.W.2d 712, 717 (Tex. Crim. App. 1991). “The State may accomplish
this 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. The State
satisfied this burden at the hearing on June 10, 2013, when the prosecutor
represented as follows: “For the record, the State is ready for trial; has been ready
since the date of indictment, which was done within 90 days from the date of Mr.
Ragston’s incarceration on these charges. We have continued to be ready subject to
a trial setting.”

       Appellant contends that the State’s announcement was ineffective because
there was no constitutional punishment scheme for capital murder at the time of the
trial court’s decision. Although we recognize that the scope of punishment should
be known before trial in order to voir dire prospective jurors, appellant has not
cited any authority demonstrating that an uncertainty in sentencing may prevent the
State from announcing ready. Traditionally, the concept of “ready” refers to the
prosecution’s preparedness, not the trial court, its docket, or “whatever problems

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[that] may have then judicially existed.” See Santibanez v. State, 717 S.W.2d 326,
329 (Tex. Crim. App. 1986); see also Barfield v. State, 586 S.W.2d 538, 541 (Tex.
Crim. App. [Panel Op.] 1979).

      In what appears to have been a good faith effort to proceed to trial, the
prosecutor urged the trial court to sever those portions from the capital sentencing
statute that were rendered invalid by the Supreme Court’s decision in Miller. The
prosecutor invoked the Code Construction Act, which provides that “if any
provision of the statute or its application to any person or circumstance is held
invalid, the invalidity does not affect other provisions or applications of the statute
that can be given effect without the invalid provision or application.” See Tex.
Gov’t Code § 311.032(c). Thus, in the absence of a legislative fix, the prosecutor
argued that the trial court could sever the “without parole” language from the
sentencing statute, and instruct the jury that appellant, if convicted of the capital
murder charge, faced an automatic sentence of life imprisonment. We agree that
this would have been an acceptable approach as applied, especially considering the
legislative developments that shortly followed the trial court’s decision to deny
habeas relief.

      In July of 2013, the legislature responded to Miller by passing a bill that
amended the capital sentencing statute. See Act approved July 22, 2013, 83d Leg.,
2d C.S., ch. 2, § 1, 2013 Tex. Gen. Laws 5020, 5020–21. As amended, the
sentencing statute now provides that a person convicted of a capital felony shall be
sentenced to a term of life imprisonment with the possibility of parole if the person
was younger than eighteen years of age at the time of the offense. See Tex. Penal
Code § 12.31(a)(1). Appellant did not contend at oral argument that the statute, as
currently written, would operate unconstitutionally if he were to proceed to trial
today and be convicted of capital murder. The record reveals nothing that would

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prevent this case from being tried expeditiously, and we anticipate that the trial
court will do so. Based on the foregoing, we conclude that the State was ready for
trial and that the trial court correctly denied appellant’s request for release on his
own recognizance.

                                       BAIL

      We now consider appellant’s final two complaints, which focus on the
denial and excessiveness of bail. We have jurisdiction to address these complaints
because they are presented to us by way of habeas corpus. See Ex parte Gray, 564
S.W.2d 713, 714 (Tex. Crim. App. [Panel Op.] 1978) (“The proper method for
challenging the denial or excessiveness of bail, whether prior to trial or after
conviction, is by habeas corpus.”); see also Ragston, 402 S.W.2d at 477–79
(concluding that reviewing court lacks jurisdiction to consider these issues when
raised in a separate motion for bond reduction).

      Appellant contends that the trial court erred by denying bond on his charges
for capital murder and murder in the first degree. The State agrees with appellant
that bail should have been set on both charges. See Beck v. State, 648 S.W.2d 7, 9
(Tex. Crim. App. 1983) (concluding that a juvenile charged with a capital felony is
“per se bailable”). The State has requested that we reform the trial court’s order
and set bail for all three charges at $250,000. Appellant opposed this amount at
oral argument, contending that it would still be excessive. Based on the record as a
whole, we conclude that the amount is not excessive.

      The amount of bail in any case must adhere to these 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.

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      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. art. 17.15.

      Courts may also consider the following set of factors when assessing
whether the amount of bail is reasonable: (1) the defendant’s work record; (2) the
defendant’s family and community ties; (3) the defendant’s length of residency;
(4) the defendant’s prior criminal record; (5) the defendant’s conformity with
previous bond conditions; (6) the existence of other outstanding bonds, if any; and
(7) the aggravating circumstances alleged to have been involved in the charged
offense. See Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim. App. [Panel
Op.] 1981); Ex parte Castellanos, Nos. 14-13-00538-CR, 14-13-00539-CR, & 14-
13-00540-CR, — S.W.3d —, 2014 WL 258559, at *2 (Tex. App.—Houston [14th
Dist.] Jan. 23, 2014, no pet. h.).

      Appellant contends that $250,000 is excessive because he is indigent and
unable to post any bond. While the ability to make bail is to be regarded, a
defendant’s financial situation is not a determinative factor. See Ex parte
Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. [Panel Op.] 1980). The
nature and circumstances of the alleged offense must also be considered. See Tex.
Code Crim. Proc. art. 17.15. The record reflects that appellant robbed the liquor
store with a co-defendant, and together, they allegedly killed the complainant in a
violent and callous manner. Appellant and his co-defendant allegedly targeted the
liquor store on a day when the complainant was known to have extra cash on hand.
They allegedly shot the complainant multiple times with a shotgun at point blank

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range, then made off with several thousand dollars. The incident occurred in July
of 2009, and they remained on the run for several years.

      The violent nature of the offense demonstrates a potential risk to the
community if appellant were released on bond. Indeed, at the time of his arrest,
appellant was already facing robbery charges in another county. Based on all of
these factors, we conclude that a bail of $250,000 is not excessive. Cf. Ex parte
Guerra, 383 S.W.3d 229, 234 (Tex. App.—San Antonio 2012, no pet.) (bail of
$950,000 was not excessive for indigent defendant charged with capital murder,
aggravated robbery, and unauthorized use of a vehicle). Accordingly, we reform
the trial court’s order and fix appellant’s bail at $250,000 for all three charged
offenses. See Ludwig v. State, 812 S.W.2d 323, 324–25 (Tex. Crim. App. 1991)
(per curiam) (reviewing court may reduce an excessive amount of bail without
remanding to the trial court); Ex parte Ivey, 594 S.W.2d 98, 100 (Tex. Crim. App.
[Panel Op.] 1980) (same).

                                 CONCLUSION

      The trial court did not err by denying habeas relief on the asserted basis that
the State was not ready for trial. The trial court did err, however, by holding
appellant without bond on his charges of capital murder and murder in the first
degree. We reform the trial court’s order and fix bail at $250,000 for all three of
appellant’s charged offenses. As reformed, we affirm the trial court’s order
denying habeas relief.


                                      /s/       Tracy Christopher
                                                Justice

Panel consists of Justices Boyce, Christopher, and Brown.
Publish — Tex. R. App. P. 47.2(b).

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