Ex Parte Brenika Lott

• Court: Court of Appeals of Texas
• Decided: July 13, 2022
• Docket: 09-21-00256-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00256-CR __________________

EX PARTE BRENIKA LOTT

__________________________________________________________________

On Appeal from the 260th District Court Orange County, Texas Trial Cause No. D200424-R __________________________________________________________________

OPINION

On June 30, 2020, the State arrested Brenika Lott for murder, but

she was not indicted for that crime until October 14, 2020, which was 106

days after police put her in jail. Currently, Lott is in jail and contends

she cannot afford to post the $1,000,000 bond the magistrate established

as a condition of her release. Seeking a reduction in her bond to a sum

she could afford, she applied for a writ of habeas corpus based on the

1 provisions in Texas Code of Criminal Procedure, Article 17.151. 1 After

conducting a hearing, the trial court denied Lott’s writ.

In a single appellate issue, Lott argues the “trial court erred by not

releasing Lott on a personal bond or reducing [her] bond” to an amount

she could afford. Given the record before us in the appeal, we conclude

the trial court violated the requirements of Article 17.151.

Background

The State does not dispute that it was not ready for trial within 90-

days of Lott’s arrest. Instead, it argues that under Article 17.151, its duty

to announce ready was not “activated” until Lott filed an “appropriate

motion.” According to the State, “[i]f it were not so, it would be incumbent

upon the courts to seek out those who are detained longer than detailed

within 17.151 and release them automatically.”

On the other hand, Lott argues that “Article 17.151 is mandatory;

if the State is not ready for trial within 90 days of the beginning of the

1Tex. Code Crim. Proc. Ann. § 17.151 §1(1) (a defendant who is detained in jail and accused of a felony “must be released” on a personal bond or by reducing the required amount of bail if the State is not ready for trial within 90 days). 2 defendant’s detention, the defendant accused of a felony must be released

on personal bond or by reducing the required bail amount.”

Standard of Review

We review habeas determinations under Article 17.151 for abuse of

discretion. 2 The State claims the time the Legislature gave it to prepare

for trial does not begin on the date the State detained Lott, but instead

begins running on the date the defendant’s attorney files a motion

invoking the defendant’s rights under Article 17.151. But that argument

hinges on the State’s unique interpretation of the language the

Legislature used in Article 17.151.

When interpreting statutes, we look to the plain language of the

statute, as the statute was enacted by the Legislature. When “the statute

is clear and unambiguous, the Legislature must be understood to mean

what it has expressed, and it is not for the courts to add or subtract from

such a statute.”3 We need not look beyond the text of the statute when

the statute is not ambiguous and achieves the result the Legislature

required.4

2See Ex parte Gill, 413 S.W.3d 425, 428 (Tex. Crim. App. 2013). 3Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). 4Id.

3 Analysis

Article 17.151 provides:

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[.]

...

Sec. 2. The provisions of this article do not apply to a defendant who is:

(1) serving a sentence of imprisonment for another offense while the defendant is serving that sentence; (2) being detained pending trial of another accusation against the defendant as to which the applicable period has not yet elapsed; (3) incompetent to stand trial, during the period of the defendant's incompetence; or (4) being detained for a violation of the conditions of a previous release related to the safety of a victim of the alleged offense or to the safety of the community under this article.5

When, as is the case here, the State does not dispute it “is not ready

for trial ninety days after an accused arrest, a judge has only two options

under article 17.151: either release the accused upon personal bond or

5Tex. Code Crim. Proc. Ann. art. 17.151. 4 reduce the bail amount.” On this record, in responding to Lott’s petition

the trial court had no other choice but to reduce Lott’s bail to an amount

the evidence in the record demonstrated she could afford. 6

The fact there was a Covid-19 pandemic does not alter the result.

In March 2020, Governor Abbott declared a state of disaster due to the

COVID-19 pandemic. Executive Order GA-13 followed, and the Governor

suspended article 17.151 “to the extent necessary to prevent any person’s

automatic release on personal bond because the State is not ready for

trial.” 7 However, Executive Order GA-13 suspends article 17.151 “only to

the extent that it calls for releasing defendants on personal bond. It does

not suspend Article 17.151’s release of defendants on bonds they can

afford.” 8

Turning to Article 17.151’s exceptions, the State does not claim that

any of the four exceptions apply. After considering the statute and that

the exceptions do not apply, we conclude that the record does not support

the trial court’s ruling denying Lott’s writ. While the State lobbies the

6Id. 7See The Governor of the State of Tex., Exec. Order GA-13, March 29, 2020, 45 Tex. Reg. 2368, 2369 (2020). 8Ex parte Lanclos, 624 S.W.3d at 927.

5 Court for an uncodified exception to article 17.151, we decline its

invitation since

[c]ourts have no power to legislate. It is the court’s duty to observe, not to disregard statutory provisions. Courts can neither ignore nor emasculate the statutes. Further, courts have no power to create an exception to a statute, nor do they have power to add to or take from legislative pains, penalties and remedies. . . It is for the Legislature, not the courts, to remedy defects or [ ] deficiencies in the laws, and to give relief from unjust and unwise legislation. 9

Here, Lott was not indicted within ninety days of her arrest and the

State did not announce it was ready for trial. Under the plain language

of article 17.151, the clock began running on the State’s duty to release

Lott on bail within ninety “days from the commencement of [her]

detention[.]” So while the Legislature could have created a duty that

began on the day the defendant filed a motion to invoke the defendant’s

right to be released, which is what the State wants this Court to hold,

Article 17.151 states in clear and plain language that the ninety-day

clock begins running on the day the defendant was detained. And since

9Statev. Ross, 953 S.W.2d 748, 751 n.4 (Tex. Crim. App. 1997); see Ex parte Hayward, 711 S.W.2d 652, 655-656 (Tex. Crim. App. 652). 6 the State was not ready for trial within that period, Article 17.151

required the trial court to set Lott’s bail at an affordable amount.10

Conclusion

Lott was detained in jail on felony charges without indictment for

more than ninety days. Article 17.151 required her release on a bail she

could afford. Because the trial court refused to set a bail Lott could afford,

we reverse the trial court’s order denying Lott’s petition for habeas relief

and remand the case to the habeas court so the trial court may set a bail

at an amount that Lott can afford. No motions for rehearing will be

entertained.

REVERSED AND REMANDED.

_________________________ HOLLIS HORTON Justice

Submitted on March 23, 2022 Opinion Delivered July 13, 2022 Publish

Before Golemon, C.J., Horton and Johnson, JJ.

10See Tex. Code Crim. Proc. Ann. art. 17.151, § 1(1); Lanclos, 624 S.W.3d at 927. 7