




                            COURT OF APPEALS

                        SECOND DISTRICT OF TEXAS

                               FORT WORTH

                           NO. 02-12-00116-CR

|Ex parte D’Anate Lee Shaw       |    |                               |
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             FROM THE 89th District Court OF Wichita COUNTY
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                                OPINION
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                              Introduction
      In a single point, Appellant D’anate Lee Shaw appeals  the  trial
court’s denial of his application for relief  on  habeas  corpus.   See
Tex. R. App. P. 31.  The issue is whether the trial  court  abused  its
discretion by not reducing Appellant’s bond amount or releasing him  on
a personal bond when the evidence showed that the State was  not  ready
for trial within ninety days of  Appellant’s  arrest.  We  reverse  and
remand for further proceedings consistent with this opinion.
                Background Facts and Procedural History
      In February 2012, Appellant applied for a writ of habeas corpus,
seeking pretrial release because the State was not ready for trial
within ninety days of the commencement of his detention as required by
article 17.151 of the code of criminal procedure.  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 (West Supp. 2012).
      The trial court granted the writ and ordered a hearing.   At  the
hearing, the evidence  showed  that  Appellant  had  been  arrested  in
November 2011 on three felony charges:  manufacture or  delivery  of  a
controlled substance, which is a second-degree felony,  Tex.  Health  &
Safety Code Ann. § 481.112(c) (West 2010); theft of  a  firearm,  which
is a state-jail felony, Tex. Penal  Code  Ann.  § 31.03(e)(4)(C)  (West
Supp. 2012); and felon in  possession  of  a  firearm,  a  third-degree
felony, id. § 46.04(e) (West 2011).   The  evidence  also  showed  that
Appellant had been held in  jail  continuously  for  more  than  ninety
days.  Finally, the evidence showed that the grand  jury  had  returned
an indictment on  the  felon-in-possession-of-a-firearm  charge  within
the  statutory  ninety-day  window,  but  the  State  stipulated   that
indictments had not been returned on the drug or theft charges.
      Based on these facts, Appellant argued  that  because  the  State
was not ready for trial on the unindicted charges, he was  entitled  to
release on personal bond or by a bond reduction on those  charges.   He
did not contend that he was entitled to release on the indicted  charge
of felon in possession of a firearm and consequently that issue is  not
before us.
                           Standard of Review
      We review a trial court’s decision to  deny  relief  on  a  claim
that  the  trial  court  violated  article  17.151  for  an  abuse   of
discretion.  Ex parte Craft,  301  S.W.3d  447,  448  (Tex.  App.––Fort
Worth 2009, no pet.); 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).   In  reviewing  the  trial  court’s
ruling, we view the  evidence  in  the  light  most  favorable  to  the
ruling.  Craft, 301 S.W.3d at 449; 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).
                                Analysis
      Although the grand jury returned an indictment on one charge,  it
did  not  on  those  charges  for  which  Appellant  claimed   in   his
application for writ  that  article  17.151  required  his  release  on
either a personal or reduced bond.  Because the State  stipulated  that
indictments were not filed on those  cases,  it  could  not  have  been
ready to try them. See 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); Craft, 301 S.W.3d at 449.
      As for the unindicted charges on which Appellant  was  held  past
the statutory ninety-day window,  the  trial  court  had  two  options:
release Appellant on personal bond or release him by reducing the  bond
to an amount he could afford to pay.  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
$25,000 for the drug case and $20,000 for the theft.
      The State argued to the trial court as it does now in  its  brief
that article 17.151 does not apply because  Appellant  was  also  being
held on the indicted felon-in-possession-of-a-firearm case.  It  points
to section 2 of the statute, which provides that “[t]he  provisions  of
this article do not apply to a defendant who is . . . detained  pending
trial of another accusation . . .  as to which  the  applicable  period
has not yet elapsed[.]” Tex. Code Crim. Proc. Ann. art. 17.151  § 2(2).
 While the State’s position is reasonable, we  have  found  no  binding
precedent holding that the exception is triggered by a  pending  charge
for which the State is  ready  for  trial  after  the  applicable  time
period has elapsed.  Absent such authority, prudence dictates  that  we
read the statute as literally as we can.  Here, although the  felon-in-
possession-of-a-firearm case was indicted within the  statutory  ninety
days, the writ  hearing  was  held  after  the  ninety-day  window  had
closed.   At  that  time,  Appellant  was  still  being  held  on   the
unindicted charges.  In other words, he was not being detained  pending
trial of another accusation as to which the applicable period  had  not
yet elapsed.  Rather, he was being detained pending  trial  of  another
accusation as to which the applicable period had  elapsed.   Under  the
plain language of section 2, the exception does not apply.
      We find nothing in the statute or the case law  to  suggest  that
once  the  statutory  window  is  no  longer  open,   the   legislature
nonetheless intended to allow the  State  to  maintain  a  hold  on  an
accused for an unindicted charge simply because it had gotten ready  on
another case before the shutters came down.  Given the  plain  language
of the statute it passed, we conclude  that  the  legislature  intended
that persons detained without formal  charges  should  be  released  on
those unindicted charges when the State is not ready for  trial  within
the time the legislature set.[1]  See Jones, 803 S.W.2d at 715  (noting
“the obvious legislative intent to provide assurance  that  an  accused
will not be held in custody indefinitely while  the  State  is  not  at
least prepared to bring him to trial”).
      The trial court, however, rather than issuing an  order  reducing
the bond amount or releasing  Appellant  on  personal  bond,  expressly
denied the application for writ on the grounds that article 17.151  did
not entitle Appellant to relief.[2]  Because the terms of  the  statute
are mandatory, we hold that the trial court abused  its  discretion  to
so rule.
                               Conclusion
      Having held that  the  trial  court  abused  its  discretion,  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 reducing the amount of bail  required  in
the two cases that formed the basis for the writ.



                                             LEE GABRIEL
                                             JUSTICE

PANEL:  LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
PUBLISH
DELIVERED:  December 21, 2012
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      [1]We do not hold nor does Appellant assert that he  is  entitled
to be released on the charge for which the State secured an  indictment
while the window was still open.
      [2]From the record it appears that the trial court was willing to
lower the bond amount by $5000 in each of these cases  by  granting  an
oral motion to reduce bond and directed Appellant to prepare  an  order
to that effect.  However, on the record the  trial  court  specifically
“found in the State’s favor,” and the only written order in the  record
before us is the trial court’s order  denying  Appellant’s  application
for writ of habeas corpus.  Thus,  that  ruling  is  the  only  one  we
consider in this appeal.  See Ex parte Wiley, 949  S.W.2d  3,  4  (Tex.
App.––Fort Worth 1996, no pet.).

