Affirmed and Memorandum Opinion filed September 20, 2016.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-16-00533-CR

                     EX PARTE QUENSHAW NEWSOME

                    On Appeal from the 180th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1510946

                 MEMORANDUM                      OPINION
      Appellant Quenshaw Newsome filed an application for writ of habeas
corpus regarding bail, alleging he was entitled to release on a personal bond or a
reduction in bail under article 17.151 of the Code of Criminal Procedure. The trial
court granted the application and reduced bail from $75,000 to $50,000. Appellant
appeals that order, contending the trial court abused its discretion in not releasing
him on a personal bond or further reducing bail to an amount he could afford. We
affirm.

                                   BACKGROUND
      According to appellant’s application, he was arrested and has been detained
continuously for murder and aggravated assault since May 5, 2015. Bail was set at
$75,000 for the murder case and $30,000 for the aggravated assault case.

      On May 20, 2016, appellant applied for a writ of habeas corpus regarding
bail in the murder case under article 17.151 of the Code of Criminal Procedure.1
That section provides that if a defendant accused of a felony has been detained
longer than 90 days and the State is not ready for trial, he must be released on a
personal bond or by reducing the amount of bail required. Tex. Code Crim. Proc.
Ann. art. 17.151 § 1(1). Appellant alleged in his application that the State was not
ready for the murder trial within 90 days of his detention. To support that
allegation, he asserted that the State filed a motion for continuance on the most
recent trial date for the murder case, which was May 9, 2016, reportedly because it
lacked a medical examiner witness to testify at trial.

      In an affidavit attached to his application, appellant stated he was indigent
and without funds of his own. He believed his friends and family could arrange to
post a bond for the $30,000 bail in the aggravated assault case. By contrast, he
said, they could not afford to post any bond on the $75,000 bail set in the murder
case, and the only bond he was “personally able to afford is a personal
recognizance bond.”

      The record does not include a response by the State to the habeas
application.

      According to the trial court’s docket sheet, contained in the clerk’s record,
the court heard argument on the habeas application on June 20, 2016. The docket
sheet entry includes this sentence:

      DEFENSE REQUEST THAT COURT RECORD THE FACT THAT
      2 STATE MOTIONS FOR CONTINUANCE HAVE BEEN FILED
      AND GRANTED IN [THE MURDER] CAUSE.

      1
          Appellant does not challenge bail in the aggravated assault case.

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Appellant and the State agree there is no reporter’s record of that hearing.

      The trial court granted appellant’s application and set bail at $50,000 in the
murder case.

                                     ANALYSIS
      We review a trial court’s decision on an application for writ of habeas
corpus based on article 17.151 of the Code of Criminal Procedure for an abuse of
discretion. See Ex parte Gill, 413 S.W.3d 425, 431 (Tex. Crim. App. 2013).

      Article 17.151 provides in relevant part:

      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. Ann. art. 17.151 § 1(1).

      Under Article 17.151, the State bears 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); Ex parte Ragston, 422
S.W.3d 904, 906–07 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The State
may satisfy this burden either by announcing within the allotted time that it is
ready, or by announcing after the fact that it had been ready within the allotted
time. See Jones, 803 S.W.2d at 717; Ragston, 422 S.W.3d at 907. Traditionally, the
concept of “ready” refers to the prosecution’s preparedness, not whether trial could
have actually begun at that time. Ragston, 422 S.W.3d at 907; 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).

      Although the State bore the burden in the trial court to establish it was ready


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for trial within 90 days, appellant has the burden on appeal to provide a record
establishing he is entitled to relief. Ex parte Chandler, 182 S.W.3d 350, 353 n.2
(2005) (“It is the applicant’s obligation to provide a sufficient record that supports
his factual allegations with proof by a preponderance of the evidence.”);
Washington v. State, 326 S.W.3d 701, 706 (Tex. App.—Houston [1st Dist.] 2010,
no pet.) (citing Chandler).2 In the absence of a reporter’s record, a court reviewing
the denial of a habeas application will presume there was evidence to support the
trial court’s judgment. Ex parte McKeand, 454 S.W.3d 52, 54 (Tex. App.—
Houston [1st Dist.] 2014, no pet.). Because there is no reporter’s record, we
presume the State satisfied its burden to make a prima facie showing that it was
ready for trial within 90 days of appellant’s detention, either by announcing its
readiness within the 90-day period or by announcing later that it had been ready
within that period. See id.; Ragston, 422 S.W.3d at 907.

       No material from either of the two underlying cases is included in the habeas
record on appeal. As a result, we do not have the alleged motion for continuance
the State filed in the murder case and do not know its basis. Assuming the State did
seek a continuance, however, that request does not establish that the State was not
ready for trial within 90 days. The medical examiner witness for whose testimony
the continuance allegedly was needed may have been available earlier in the case,
or the State may have elected to proceed without that testimony. “[A]ll a
prosecutor has to do to prevent release of an accused who has been unable to make
bail is to announce ready in a timely fashion, even if trial is thereafter delayed for
other reasons.” Ex parte Jones, 803 S.W.2d 712, 716 (Tex. Crim. App. 1991).

       Because we presume the State was ready for trial within 90 days of

       2
         Though styled Washington v. State, rather than Ex parte Washington, the case arises
from the denial of a pretrial application for writ of habeas corpus. 326 S.W.3d at 701.

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appellant’s detention, appellant was not entitled to relief under article 17.151.
Accordingly, we do not consider whether the trial court abused its discretion in not
further reducing bail to below $50,000. We overrule appellant’s sole issue.

                                   CONCLUSION
      The judgment of the trial court is affirmed.



                                  PER CURIAM



Panel consists of Chief Justice Frost and Justices Boyce and Christopher.
Do Not Publish — Tex. R. App. P. 47.2(b).




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