ACCEPTED 03-17-00302-cr 21406744 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/20/2017 12:39 PM JEFFREY D. KYLE CLERK No. 03-17-00302-CR
In the Court of Appeals for the Third District FILED IN 3rd COURT OF APPEALS Austin, Texas AUSTIN, TEXAS 12/20/2017 12:39:29 PM Andre Jackson, JEFFREY D. KYLE Clerk Appellant
v.
The State of Texas, Appellee
Appeal from the 331st Judicial District Court Travis County, Texas Cause Number D-1-DC-16-302285 Honorable Judge David Crain, Presiding
STATE’S REPLY BRIEF
Margaret Moore District Attorney Travis County, Texas
Nancy L. Nicolas Assistant District Attorney State Bar No. 24057883 P.O. Box 1748 Austin, Texas 78767 512-854-9400 (phone) 512-854-4206 (fax) Nancy.Nicolas@traviscountytx.gov AppellateTCDA@traviscountytx.gov TABLE OF CONTENTS
INDEX OF AUTHORITIES...................................................... iii STATE’S REPLY TO APPELLANT’S SOLE POINT OF ERROR .. 1 The trial court did not err in denying Appellant’s petition for habeas corpus seeking bond reduction or personal bond. .......... 1 Factual Background ............................................................. 2 The Standard of Review is Abuse of Discretion....................... 3 The Trial Court Did Not Abuse its Discretion. ........................ 4 PRAYER ................................................................................. 9 CERTIFICATE OF COMPLIANCE AND SERVICE.................. 10
ii INDEX OF AUTHORITIES
Cases
Ex parte Gill, 413 S.W.3d 425 (Tex. Crim. App. 2013)..................... 3 Ex parte McNeil v. Rains, 772 S.W.2d 488 (Tex. App. -- Houston [1st dist.] 1989) ................................................................................ 4 Ex parte Smith, 486 S.W.3d 62 (Tex. App. -- Texarkana [6th dist.] 2016)...................................................................................... 3,4 Jones v. State, 803 S.W.2d 712 (Tex. Crim. App. 1991) ......... 4,5,6,7 Pate v. State, 592 S.W.2d 620 (Tex. Crim. App. 1980) .................... 5 Philen v. State, 683 S.W.2d 440 (Tex. Crim. App. 1984).................. 7
Statutes Tex. Code Crim. P. Art. 17.151...................................................... 4
iii No. 03-17-00302-CR
In the Court of Appeals for the Third District Austin, Texas
Andre Jackson, Appellant
Appeal from the 331st Judicial District Court Travis County, Texas Cause Number D-1-DC-16-302285 Honorable Judge David Crain, Presiding
To the Honorable Third Court of Appeals:
Now comes the State of Texas and files this answer in
response to the brief filed by Appellant.
STATE’S REPLY TO APPELLANT’S SOLE POINT OF ERROR
The trial court did not err in denying Appellant’s petition for habeas corpus seeking bond reduction or personal bond. Appellant argues that the trial court erred when it found that
the State had been ready for trial with ninety days from the
commencement of his detention, as required by Article 17.151 of
1 the Texas Code of Criminal Procedure. The State contends
Appellant has failed to prove this claim has merit.
Factual Background
On November 6, 2006, police responded to a call of an
unconscious man lying in the roadway. CR 5. An autopsy
determined that that Kenneth Johnson, the decedent, died as a
result of gunshot wounds. CR 5. Following an investigation by the
Austin Police Department, a probable cause affidavit and warrant
for Appellant’s arrest were issued, alleging Murder. CR 5-9. Bond
was set at $250,000. CR 10. Appellant was arrested on November
28, 2016, the same day the arrest warrant was issued. CR 4.
Appellant’s personal bond on a different case, for which he had
previously been released, was also revoked and set at $25,000 on
November 30, 2016.1 A grand jury indicted Appellant for the
offense on January 18, 2017. CR 21-23.
Through his attorney, Appellant filed a Motion for Writ of
Habeas Corpus seeking bail reduction on January 18, 2017. CR
1 The other case, an allegation of felony Evading Arrest or Detention, is proceeding in trial court under Cause number D-1-DC-16-301434, and is the subject of Appellant’s other appeal, which is before this Court under Number 03-17-00301-CR. The facts and procedural history of that case are discussed more thoroughly in the State’s corresponding answer.
2 15-20. A hearing on this motion took place January 24, 2017, in
which the trial court denied Appellant’s request to reduce the bond.
2 RR 10.
Appellant filed, pro se, a “Petition for Habeas Corpus Because
of Delay” on March 13, 2017. CR 52. The petition was discussed in
a bench conference on March 15, 2017, but no formal hearing took
place at that time because the State had not been provided prior
notice of the petition. 3 RR 12. On April 10, 2017, the trial court
held a hearing on Appellant’s motion, at the conclusion of which the
motion was denied. 4 RR 8. Appellant challenges that ruling by the
trial court in the instant appeal.
The Standard of Review is Abuse of Discretion.
Claims that the trial court erred concerning the imposition or
reduction of bail are reviewed for an abuse of discretion. Ex parte
Smith, 486 S.W.3d 62, at 64 (Tex. App. – Texarkana [6th dist.] 2016),
citing Ex parte Gill, 413 S.W.3d 425 (Tex. Crim. App. 2013). The
reviewing court will not disturb a trial court’s ruling unless “no
reasonable view of the record” supports the legal conclusion,
3 viewing the facts in the light most favorable to the ruling. Ex parte
Smith, 486 S.W.3d 64.
The Trial Court Did Not Abuse its Discretion.
Where an accused invokes Article 17.151 and challenges the
State’s timely readiness for trial, the State must make a prima facie
showing that the State is or was ready before the applicable
deadline. Jones v. State, 803 S.W.2d 712, at 719 (Tex. Crim. App.
1991). If the State has made its prima facie showing, then the
burden shifts to the accused to rebut it, absent which a trial court
has discretion to find the State was timely in its readiness for trial.
Id. at 718, 719. Here, the State was required to be ready for trial
within ninety days of Appellant’s arrest for Murder, which would
have made the State’s deadline for readiness February 27, 2017.
Tex. Crim. Pro. Art. 17.151(1).
The State made its prima facie case when the trial court noted
at the beginning of the proceeding on Appellant’s petition that
Appellant had been indicted for the offense on January 18, 2017. 4
RR 4. See Ex parte McNeil v. Rains, 772 S.W.2d 488, at 489 (Tex.
App. – Houston [1st dist. 1989] (“The existence of a charging
4 instrument is an element of preparedness. Where there is no
indictment, the State cannot announce ready for trial.”), citing Pate
v.
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ACCEPTED 03-17-00302-cr 21406744 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/20/2017 12:39 PM JEFFREY D. KYLE CLERK No. 03-17-00302-CR
In the Court of Appeals for the Third District FILED IN 3rd COURT OF APPEALS Austin, Texas AUSTIN, TEXAS 12/20/2017 12:39:29 PM Andre Jackson, JEFFREY D. KYLE Clerk Appellant
v.
The State of Texas, Appellee
Appeal from the 331st Judicial District Court Travis County, Texas Cause Number D-1-DC-16-302285 Honorable Judge David Crain, Presiding
STATE’S REPLY BRIEF
Margaret Moore District Attorney Travis County, Texas
Nancy L. Nicolas Assistant District Attorney State Bar No. 24057883 P.O. Box 1748 Austin, Texas 78767 512-854-9400 (phone) 512-854-4206 (fax) Nancy.Nicolas@traviscountytx.gov AppellateTCDA@traviscountytx.gov TABLE OF CONTENTS
INDEX OF AUTHORITIES...................................................... iii STATE’S REPLY TO APPELLANT’S SOLE POINT OF ERROR .. 1 The trial court did not err in denying Appellant’s petition for habeas corpus seeking bond reduction or personal bond. .......... 1 Factual Background ............................................................. 2 The Standard of Review is Abuse of Discretion....................... 3 The Trial Court Did Not Abuse its Discretion. ........................ 4 PRAYER ................................................................................. 9 CERTIFICATE OF COMPLIANCE AND SERVICE.................. 10
ii INDEX OF AUTHORITIES
Cases
Ex parte Gill, 413 S.W.3d 425 (Tex. Crim. App. 2013)..................... 3 Ex parte McNeil v. Rains, 772 S.W.2d 488 (Tex. App. -- Houston [1st dist.] 1989) ................................................................................ 4 Ex parte Smith, 486 S.W.3d 62 (Tex. App. -- Texarkana [6th dist.] 2016)...................................................................................... 3,4 Jones v. State, 803 S.W.2d 712 (Tex. Crim. App. 1991) ......... 4,5,6,7 Pate v. State, 592 S.W.2d 620 (Tex. Crim. App. 1980) .................... 5 Philen v. State, 683 S.W.2d 440 (Tex. Crim. App. 1984).................. 7
Statutes Tex. Code Crim. P. Art. 17.151...................................................... 4
iii No. 03-17-00302-CR
In the Court of Appeals for the Third District Austin, Texas
Andre Jackson, Appellant
Appeal from the 331st Judicial District Court Travis County, Texas Cause Number D-1-DC-16-302285 Honorable Judge David Crain, Presiding
To the Honorable Third Court of Appeals:
Now comes the State of Texas and files this answer in
response to the brief filed by Appellant.
STATE’S REPLY TO APPELLANT’S SOLE POINT OF ERROR
The trial court did not err in denying Appellant’s petition for habeas corpus seeking bond reduction or personal bond. Appellant argues that the trial court erred when it found that
the State had been ready for trial with ninety days from the
commencement of his detention, as required by Article 17.151 of
1 the Texas Code of Criminal Procedure. The State contends
Appellant has failed to prove this claim has merit.
Factual Background
On November 6, 2006, police responded to a call of an
unconscious man lying in the roadway. CR 5. An autopsy
determined that that Kenneth Johnson, the decedent, died as a
result of gunshot wounds. CR 5. Following an investigation by the
Austin Police Department, a probable cause affidavit and warrant
for Appellant’s arrest were issued, alleging Murder. CR 5-9. Bond
was set at $250,000. CR 10. Appellant was arrested on November
28, 2016, the same day the arrest warrant was issued. CR 4.
Appellant’s personal bond on a different case, for which he had
previously been released, was also revoked and set at $25,000 on
November 30, 2016.1 A grand jury indicted Appellant for the
offense on January 18, 2017. CR 21-23.
Through his attorney, Appellant filed a Motion for Writ of
Habeas Corpus seeking bail reduction on January 18, 2017. CR
1 The other case, an allegation of felony Evading Arrest or Detention, is proceeding in trial court under Cause number D-1-DC-16-301434, and is the subject of Appellant’s other appeal, which is before this Court under Number 03-17-00301-CR. The facts and procedural history of that case are discussed more thoroughly in the State’s corresponding answer.
2 15-20. A hearing on this motion took place January 24, 2017, in
which the trial court denied Appellant’s request to reduce the bond.
2 RR 10.
Appellant filed, pro se, a “Petition for Habeas Corpus Because
of Delay” on March 13, 2017. CR 52. The petition was discussed in
a bench conference on March 15, 2017, but no formal hearing took
place at that time because the State had not been provided prior
notice of the petition. 3 RR 12. On April 10, 2017, the trial court
held a hearing on Appellant’s motion, at the conclusion of which the
motion was denied. 4 RR 8. Appellant challenges that ruling by the
trial court in the instant appeal.
The Standard of Review is Abuse of Discretion.
Claims that the trial court erred concerning the imposition or
reduction of bail are reviewed for an abuse of discretion. Ex parte
Smith, 486 S.W.3d 62, at 64 (Tex. App. – Texarkana [6th dist.] 2016),
citing Ex parte Gill, 413 S.W.3d 425 (Tex. Crim. App. 2013). The
reviewing court will not disturb a trial court’s ruling unless “no
reasonable view of the record” supports the legal conclusion,
3 viewing the facts in the light most favorable to the ruling. Ex parte
Smith, 486 S.W.3d 64.
The Trial Court Did Not Abuse its Discretion.
Where an accused invokes Article 17.151 and challenges the
State’s timely readiness for trial, the State must make a prima facie
showing that the State is or was ready before the applicable
deadline. Jones v. State, 803 S.W.2d 712, at 719 (Tex. Crim. App.
1991). If the State has made its prima facie showing, then the
burden shifts to the accused to rebut it, absent which a trial court
has discretion to find the State was timely in its readiness for trial.
Id. at 718, 719. Here, the State was required to be ready for trial
within ninety days of Appellant’s arrest for Murder, which would
have made the State’s deadline for readiness February 27, 2017.
Tex. Crim. Pro. Art. 17.151(1).
The State made its prima facie case when the trial court noted
at the beginning of the proceeding on Appellant’s petition that
Appellant had been indicted for the offense on January 18, 2017. 4
RR 4. See Ex parte McNeil v. Rains, 772 S.W.2d 488, at 489 (Tex.
App. – Houston [1st dist. 1989] (“The existence of a charging
4 instrument is an element of preparedness. Where there is no
indictment, the State cannot announce ready for trial.”), citing Pate
v. State, 592 S.W.2d 620 at 621 (Tex. Crim. App. 1980). Here, the
Prosecutor affirmatively stated, “We’ve been ready since this case
got indicted.” 4 RR 8. The Prosecutor further informed the trial
court:
Ms Meredith: You Honor, the State was ready. The Defendant was – the offense committed in this case was on November 6th of 2016. The State presented a case to grand jury on January 18th of 2017 where the grand jury returned an indictment. That was well within the 90 days. The State was ready to calendar this for trial.
4 RR 7.
The only evidence offered by Appellant to rebut this showing
was his argument in which he pointed out the State had made no
formal announcement of ready within the statutory time period. 4
RR 6. However, the State is not required to file a written notice or
even announce ready prior to the ninetieth day; a retrospective
announcement of readiness can sufficiently demonstrate the State’s
compliance with Article 17.151. Jones v. State, 803 S.W.2d at 717
(Tex. Crim. App. 1991).
5 Further, Appellant claimed the State could not be ready
without cell phone records that the State represented had just been
received in March. 4 RR 6. The State’s response to this concern
was that the records were “just in addition to all the other evidence
that we have in this particular case. And we were ready to go to
trial within the 90 days.” 4 RR 7. The record in this instance is
distinguishable from the circumstances in Jones v. State, where the
significance of certain testimony from a person who was not
available to the State within the statutory time period was
uncontroverted. Here, unlike in Jones, the State refuted that the
cell phone records obtained after the ninety days had expired were
“a key…piece of evidence,” and instead articulated to the court that
the records were merely part of the totality of the case. 803 S.W.2d
712 (Tex. Crim. App. 1991). It is apparent from the Probable Cause
affidavit that records relied upon by the Austin Police Department
in their investigation were already in the possession of law
enforcement, and therefore available to the State, on November 23,
2016, prior even to the commencement of Appellant’s confinement.
CR 8. Absent a credible showing of the significance the records
obtained by the State in March, the trial court was not bound to
6 conclude that the cell phone records were a key piece of evidence
obtained untimely, and Appellant failed to meet his burden of proof
to rebut the State’s prima facie claim of readiness. Id.
Additionally, even if the records were a key component in the
case, their arrival into the State’s possession in March does not
preclude the State’s readiness prior to that occurrence. The failure
to subpoena witnesses is insufficient grounds to rebut the State’s
announcement of ready, if the trial court finds that the State could
have been ready for trial absent the subpoenas, and the State
contends that same reasoning applies to evidence contained in
records expected in response to a subpoena. Philen v. State, 683
S.W.2d 440, at 444 (Tex. Crim. App. 1984). Here, there is no
demonstration that had the case been set for trial sooner, the State
would have been unable to secure the records and requisite
witnesses on which to base a predicate for admissibility. Again,
this is distinguishable from Jones, where the witness necessary to
the State’s case was proven to be in custody in a different state, and
no legal mechanism that could have secured his appearance was
commenced within the ninety day period for readiness. 803 S.W.2d
712 (Tex. Crim. App. 1991).
7 The trial court’s succinct ruling demonstrates its application of
the correct legal standard when it held, “The State has announced
that they were ready at that time before the 90 days had elapsed
and that creates on the face of it a readiness for trial. And I haven’t
heard any credible evidence to negate their showing of readiness, so
I’ll deny your Motion for Writ of Habeas Corpus to be released.” 4
RR 8. Affording due deference to the trial court’s factual
determinations, and because the court utilized the correct legal
standard, the record does not support a finding of abuse of
discretion. The State contends that this Court should deny the
relief sought by Appellant.
8 PRAYER
The State requests that the Court overrule Appellant’s point of
error and affirm the trial court’s judgment.
Respectfully submitted,
Margaret Moore District Attorney Travis County
/s/ Nancy L. Nicolas Nancy L. Nicolas Assistant District Attorney State Bar No. 24057883 P.O. Box 1748 Austin, Texas 78767 512-854-9400 (phone) 512-854-4206 (fax) Nancy.Nicolas@traviscountytx.gov AppellateTCDA@traviscountytx.gov
9 CERTIFICATE OF COMPLIANCE AND SERVICE
I certify that this brief contains 1,462 words, based upon the
computer program used to generate this brief and excluding words
contained in those parts of the brief that Texas Rule of Appellate
Procedure 9.4(i) exempts from inclusion in the word count, and that
this brief is printed in a conventional, 14-point typeface.
I further certify that, on the 20th day of December, 2017, a true
and correct copy of this brief was served, by U.S. mail, electronic
mail, telephonic document transmission, or electronically through
the electronic filing manager, to Appellant, Andre Jackson,
#1642983, Travis County Jail, 3614 Bill Price Road, Del Valle, TX
78617.
/s/ Nancy L. Nicolas Nancy L. Nicolas Assistant District Attorney