                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NOS. 2-09-244-CR
                                     2-09-245-CR


EX PARTE JEREMIAH CRAFT


                                      ------------

            FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY

                                      ------------

               MEMORANDUM OPINION ON REHEARING 1

                                      ------------

      After reviewing appellant’s “Motion for Rehearing and Motion for En Banc

Reconsideration,” we grant the motion for rehearing, withdraw our September

3, 2009 opinion and judgment, and substitute the following.

      Appellant Jeremiah Craft appeals the trial court’s denial of his request for

relief on habeas corpus. 2    We reverse and remand for further proceedings

consistent with this opinion.

      1
           See Tex. R. App. P. 47.4.
      2
           See Tex. R. App. P. 31.
        On June 15, 2009, appellant applied to the trial court for a writ of habeas

corpus, seeking pretrial release on the grounds that the State was not ready for

trial within ninety days from “the commencement of his detention,” as required

by article 17.151 of the Texas Code of Criminal Procedure. 3 The trial court

granted the writ and ordered a hearing. At the hearing, evidence was admitted

that showed appellant had been arrested on January 15, 2009, on a

misdemeanor drug charge. On February 5, 2009, while appellant was in jail

pending trial on the misdemeanor charge, the district attorney filed two felony

informations alleging appellant had committed murder and sexual assault of a

child without obtaining a waiver from appellant of his right to be charged by

grand jury indictment. 4


        3
             Article 17.151, “Release Because of Delay,” provides, in pertinent
part:

                Sec. 1. 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:

                (1) 90 days from the commencement of his detention
                if he is accused of a felony. . . .

Tex. Code Crim. Proc. Ann. art. 17.151 (Vernon Supp. 2009).
        4
       See Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.141
(Vernon 2005); Teal v. State, 230 S.W.3d 172, 174–75 (Tex. Crim. App.
2007).

                                           2
      On May 15, 2009, the grand jury indictments for the felony charges were

returned.   Thirty-three days later, on June 17, 2009, the State filed its

announcement of ready asserting that it had been ready, “at least since the

indictment[s were] returned.” Witnesses for the State, however, testified that

the district attorney’s office had been ready for trial since the date of

appellant’s arrest on the murder and sexual assault charges.

      Based on these facts, appellant argued that because he had not waived

his right to be charged by a grand jury indictment when the informations were

filed, the trial court’s jurisdiction was not invoked and the State could not be

ready for trial.   The State argued that the filing of the information with or

without waiver of indictment was sufficient to invoke the trial court’s

jurisdiction for the purpose of proceeding to trial when the State announced it

was ready. The trial court denied relief.

      We review a trial court’s decision to deny relief on a claim that the State

violated article 17.151 for an abuse of discretion. 5 In reviewing the trial court’s

decision, we view the evidence in the light most favorable to the ruling. 6

      5
       Ex parte Karlson, 282 S.W.3d 118, 127–28 (Tex. App.—Fort Worth
2009, pet. ref’d); see Jones v. State, 803 S.W.2d 712, 719 (Tex. Crim. App.
1991).
      6
       Karlson, 282 S.W.3d at 127–28; Ex parte Bruce, 112 S.W.3d 635,
639 (Tex. App.—Fort Worth 2003, pet. dism’d); see Ex parte Amezquita, 223
S.W.3d 363, 367 (Tex. Crim. App. 2006); Ex parte Okere, 56 S.W.3d 846,
854 (Tex. App.—Fort Worth 2001, pet. ref’d).

                                         3
      The Texas Constitution requires that, unless waived by the defendant, the

State must obtain a grand jury indictment in a felony case. 7         Absent an

indictment or valid waiver, a district court does not have jurisdiction over that

case. 8

      The State presented some evidence at the hearing to show its readiness

within the ninety days of the filing of the informations on February 5, 2009.

However, without an indictment or waiver the trial court never acquired

jurisdiction to try the case, and, therefore, the State could not have been ready

to try a case within the ninety days required by article 17.151. 9 We sustain

appellant’s point.

      The grand jury returned indictments against appellant on May 15, 2009.

Because the State did not satisfy the requirements of article 17.151 by

announcing ready ninety days “from the commencement of [appellant’s]

detention” on February 5, 2009, however, its announcement of ready on June



      7
        Tex. Const. art. I, § 10; Teal, 230 S.W.3d at 174; Duron v. State,
956 S.W.2d 547, 550 (Tex. Crim. App. 1997); see also Tex. Code Crim. Proc.
Ann. art. 1.05 (Vernon 2005) (“No person shall be held to answer for a felony
unless on indictment of a grand jury.”).
      8
      Teal, 230 S.W.3d at 174–75; Cook v. State, 902 S.W.2d 471,
475–76 (Tex. Crim. App. 1995).
      9
        See Ward v. State, 659 S.W.2d 643, 646 (Tex. Crim. App. 1983);
Kernahan v. State, 657 S.W.2d 433, 434 (Tex. Crim. App. 1983); Pate v.
State, 592 S.W.2d 620, 621 (Tex. Crim. App. 1980).

                                       4
17, 2009, does not comply with the statute. The trial court, therefore, has two

options: release appellant on personal bond, or release him by reducing the

amount of bail required to an amount that he can afford to pay. 10 Accordingly,

we reverse the trial court’s order denying habeas relief and remand this case to

the trial court for further proceedings, including releasing appellant on personal

bond or by reducing the amount of bail required.




                                                  PER CURIAM

PANEL: CAYCE, C.J.; MCCOY and MEIER, JJ.

PUBLISH

DELIVERED: November 24, 2009




      10
         Tex. Code Crim. Proc. Ann. art. 17.151; see Rowe v. State, 853
S.W.2d 581, 582 (Tex. Crim. App. 1993); Kernahan, 657 S.W.2d at 434; Ex
parte McNeil, 772 S.W.2d 488, 489 (Tex. App.—Houston [1st Dist.] 1989, no
pet.). Bond was set at one million dollars for each of the two offenses.

                                        5
