In the Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-25-00082-CR
EX PARTE GEORGE OSBORN MERRILL, III
On Appeal from the 115th District Court Upshur County, Texas Trial Court No. 25-230-DCCV-0001
Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Chief Justice Stevens MEMORANDUM OPINION
George Osborn Merrill, III, appeals the trial court’s denial of his pretrial application for a
writ of habeas corpus. Because we find no abuse of discretion in the trial court’s ruling, we
uphold its decision.
I. Standard of Review
“An applicant for a writ of habeas corpus bears the burden of proving facts entitling him
to relief.” Ex parte Highsmith, 652 S.W.3d 850, 854 (Tex. App.—Austin 2022, pet. ref’d)
(citing Ex parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993) (orig. proceeding)). A trial
court’s determination “at a habeas proceeding regarding the imposition or reduction of bail ‘will
not be disturbed by this Court in the absence of an abuse of discretion.’” Ex parte Newson, 656
S.W.3d 655, 658 (Tex. App.—Texarkana 2022, no pet.) (quoting Ex parte Gill, 413 S.W.3d 425,
428 (Tex. Crim. App. 2013)). “A trial court abuses its discretion when it applies ‘an erroneous
legal standard, or when no reasonable view of the record could support the trial court’s
conclusion under the correct law and facts viewed in the light most favorable to its legal
conclusion.’” Id. (quoting DuBose v. State, 915 S.W.2d 493, 497–98 (Tex. Crim. App. 1996),
overruled on other grounds by Guzman v. State, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997)).
Article 17.151, Section 1, of the Texas Code of Criminal Procedure states,
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.
2 TEX. CODE CRIM. PROC. ANN. art. 17.151, § 1(1). “This Article preserves the presumption of
innocence by ensuring that ‘an accused as yet untried and unreleased on bond will not suffer “the
incidental punitive effect” of incarceration during any further delay attendant to prosecutorial
exigency.’” Ex parte Newson, 656 S.W.3d at 658 (quoting Ex parte Smith, 486 S.W.3d 62, 65
(Tex. App.—Texarkana 2016, no pet.) (quoting Jones v. State, 803 S.W.2d 712, 716 (Tex. Crim.
App. 1991))).
“Under Article 17.151, the State has the initial burden to make a prima facie showing that
it was ready for trial within the applicable time period.” Id. (quoting Ex parte Smith, 486 S.W.3d
at 65). “The question of the State’s ‘readiness’ within the statutory limits refers to the
preparedness of the prosecution for trial.” Id. (quoting Ex parte Smith, 486 S.W.3d at 65). “The
State may show readiness ‘either by announcing within the allotted time that it is ready, or by
announcing retrospectively that it had been ready within the allotted time.’” Id. (quoting
Ex parte Smith, 486 S.W.3d at 65).
“Evidence to rebut the prima facie showing can be from any source, including cross-
examination of those responsible for preparing the State’s case . . . .” Applewhite v. State, 872
S.W.2d 32, 34 (Tex. App.—Houston [1st Dist.] 1994, no pet.) (citing Barfield v. State, 586
S.W.2d 538, 542 (Tex. Crim. App. [Panel Op.] 1979)). Such evidence “may consist of, among
other things, a demonstration that the state did not have a key witness or piece of evidence
available by the last day of the applicable time limit so that the state was not ready for trial
within that time limit.” Jones v. State, 803 S.W.2d 712, 718 (Tex. Crim. App. 1991) (quoting
Barfield, 586 S.W.2d at 542).
3 II. Factual Background
After allegedly causing damage to a public school, Merrill was arrested on January 25,
2025, and remains incarcerated for criminal mischief causing pecuniary loss of $150,000.00 or
more but less than $300,000.00, a second-degree felony. See TEX. PENAL CODE ANN.
§ 28.03(b)(6) (Supp.). The trial court set his bail at $300,000.00. On April 4, an Upshur County
grand jury returned an indictment for the offense against Merrill.
Even so, after the trial court found Merrill indigent, Merrill filed a pretrial writ of habeas
corpus on April 25 requesting either a personal bond or bail he could afford. The trial court set a
hearing on the matter, but the State requested that it be “carr[ied] . . . to the 5/27 pretrial docket.”
Merrill did not object. As a result, the trial court reset the hearing for May 6.
At the hearing, the State noted that the indictment was filed well within ninety days from
Merrill’s incarceration, the offense occurred on camera, and Merrill had been provided with the
footage on April 10, along with the “indictment, offense report, [and] prosecution reports.” The
State also announced that it was ready for trial, had been ready within the ninety-day period, and
that the named complainant was present at the hearing. It also provided the trial court and
Merrill with a “transcription of a phone call the defendant made to his sister the second day he
was in the Upshur County jail . . . indicat[ing] he did this and destroyed the public school simply
because he was bored and wanted something to do.” To emphasize its readiness, the State also
said, “[I]f we really want to show how ready we are, we’ve got a jury panel coming in Monday.
We’ll be more than happy to pick a jury.”
4 Merrill testified at the hearing that he was seventeen years old, had no car or bank
account, and had no financial resources to post his bail. As a result, Merrill asked the trial court
for a personal bond. Merrill also argued that discovery was “still trickling in,” including the
results of a DNA test on the baseball bat used in the commission of the offense. The State
argued that, while the DNA test would be beneficial, it was not needed “in order to get a
conviction in this case.”
After the hearing, the trial court found that Merrill “was indicted 69 days following the
date of his arrest” and that the State was ready for trial. Accordingly, it denied Merrill’s pretrial
application for writ of habeas corpus.
III. Denial of Merrill’s Application Was Not an Abuse of Discretion
On appeal, Merrill concedes that the State made its initial prima facie showing that it was
ready for trial within the ninety-day period. Because “compliance with . . . discovery obligations
under the [Michael Morton] Act is not a component of the State’s readiness under article
17.151,” Merrill acknowledges that the State could have been prepared for trial even though
discovery was not completed. Ex parte Highsmith, 652 S.W.3d at 858. However, Merrill argued
that he rebutted the State’s prima facie case of readiness for trial because evidence of pecuniary
Free access — add to your briefcase to read the full text and ask questions with AI
In the Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-25-00082-CR
EX PARTE GEORGE OSBORN MERRILL, III
On Appeal from the 115th District Court Upshur County, Texas Trial Court No. 25-230-DCCV-0001
Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Chief Justice Stevens MEMORANDUM OPINION
George Osborn Merrill, III, appeals the trial court’s denial of his pretrial application for a
writ of habeas corpus. Because we find no abuse of discretion in the trial court’s ruling, we
uphold its decision.
I. Standard of Review
“An applicant for a writ of habeas corpus bears the burden of proving facts entitling him
to relief.” Ex parte Highsmith, 652 S.W.3d 850, 854 (Tex. App.—Austin 2022, pet. ref’d)
(citing Ex parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993) (orig. proceeding)). A trial
court’s determination “at a habeas proceeding regarding the imposition or reduction of bail ‘will
not be disturbed by this Court in the absence of an abuse of discretion.’” Ex parte Newson, 656
S.W.3d 655, 658 (Tex. App.—Texarkana 2022, no pet.) (quoting Ex parte Gill, 413 S.W.3d 425,
428 (Tex. Crim. App. 2013)). “A trial court abuses its discretion when it applies ‘an erroneous
legal standard, or when no reasonable view of the record could support the trial court’s
conclusion under the correct law and facts viewed in the light most favorable to its legal
conclusion.’” Id. (quoting DuBose v. State, 915 S.W.2d 493, 497–98 (Tex. Crim. App. 1996),
overruled on other grounds by Guzman v. State, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997)).
Article 17.151, Section 1, of the Texas Code of Criminal Procedure states,
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.
2 TEX. CODE CRIM. PROC. ANN. art. 17.151, § 1(1). “This Article preserves the presumption of
innocence by ensuring that ‘an accused as yet untried and unreleased on bond will not suffer “the
incidental punitive effect” of incarceration during any further delay attendant to prosecutorial
exigency.’” Ex parte Newson, 656 S.W.3d at 658 (quoting Ex parte Smith, 486 S.W.3d 62, 65
(Tex. App.—Texarkana 2016, no pet.) (quoting Jones v. State, 803 S.W.2d 712, 716 (Tex. Crim.
App. 1991))).
“Under Article 17.151, the State has the initial burden to make a prima facie showing that
it was ready for trial within the applicable time period.” Id. (quoting Ex parte Smith, 486 S.W.3d
at 65). “The question of the State’s ‘readiness’ within the statutory limits refers to the
preparedness of the prosecution for trial.” Id. (quoting Ex parte Smith, 486 S.W.3d at 65). “The
State may show readiness ‘either by announcing within the allotted time that it is ready, or by
announcing retrospectively that it had been ready within the allotted time.’” Id. (quoting
Ex parte Smith, 486 S.W.3d at 65).
“Evidence to rebut the prima facie showing can be from any source, including cross-
examination of those responsible for preparing the State’s case . . . .” Applewhite v. State, 872
S.W.2d 32, 34 (Tex. App.—Houston [1st Dist.] 1994, no pet.) (citing Barfield v. State, 586
S.W.2d 538, 542 (Tex. Crim. App. [Panel Op.] 1979)). Such evidence “may consist of, among
other things, a demonstration that the state did not have a key witness or piece of evidence
available by the last day of the applicable time limit so that the state was not ready for trial
within that time limit.” Jones v. State, 803 S.W.2d 712, 718 (Tex. Crim. App. 1991) (quoting
Barfield, 586 S.W.2d at 542).
3 II. Factual Background
After allegedly causing damage to a public school, Merrill was arrested on January 25,
2025, and remains incarcerated for criminal mischief causing pecuniary loss of $150,000.00 or
more but less than $300,000.00, a second-degree felony. See TEX. PENAL CODE ANN.
§ 28.03(b)(6) (Supp.). The trial court set his bail at $300,000.00. On April 4, an Upshur County
grand jury returned an indictment for the offense against Merrill.
Even so, after the trial court found Merrill indigent, Merrill filed a pretrial writ of habeas
corpus on April 25 requesting either a personal bond or bail he could afford. The trial court set a
hearing on the matter, but the State requested that it be “carr[ied] . . . to the 5/27 pretrial docket.”
Merrill did not object. As a result, the trial court reset the hearing for May 6.
At the hearing, the State noted that the indictment was filed well within ninety days from
Merrill’s incarceration, the offense occurred on camera, and Merrill had been provided with the
footage on April 10, along with the “indictment, offense report, [and] prosecution reports.” The
State also announced that it was ready for trial, had been ready within the ninety-day period, and
that the named complainant was present at the hearing. It also provided the trial court and
Merrill with a “transcription of a phone call the defendant made to his sister the second day he
was in the Upshur County jail . . . indicat[ing] he did this and destroyed the public school simply
because he was bored and wanted something to do.” To emphasize its readiness, the State also
said, “[I]f we really want to show how ready we are, we’ve got a jury panel coming in Monday.
We’ll be more than happy to pick a jury.”
4 Merrill testified at the hearing that he was seventeen years old, had no car or bank
account, and had no financial resources to post his bail. As a result, Merrill asked the trial court
for a personal bond. Merrill also argued that discovery was “still trickling in,” including the
results of a DNA test on the baseball bat used in the commission of the offense. The State
argued that, while the DNA test would be beneficial, it was not needed “in order to get a
conviction in this case.”
After the hearing, the trial court found that Merrill “was indicted 69 days following the
date of his arrest” and that the State was ready for trial. Accordingly, it denied Merrill’s pretrial
application for writ of habeas corpus.
III. Denial of Merrill’s Application Was Not an Abuse of Discretion
On appeal, Merrill concedes that the State made its initial prima facie showing that it was
ready for trial within the ninety-day period. Because “compliance with . . . discovery obligations
under the [Michael Morton] Act is not a component of the State’s readiness under article
17.151,” Merrill acknowledges that the State could have been prepared for trial even though
discovery was not completed. Ex parte Highsmith, 652 S.W.3d at 858. However, Merrill argued
that he rebutted the State’s prima facie case of readiness for trial because evidence of pecuniary
loss had not been provided by the State. Yet, the complainant was present at the hearing and
could have testified about the pecuniary loss. See Holz v. State, 320 S.W.3d 344, 351–52 (Tex.
Crim. App. 2010). Since Merrill “failed to show that the complainant[] w[as] not present or
readily available to testify during the 90 days following [his] arrest, he failed to carry his burden
of rebutting the State’s prima facie showing of readiness.” Applewhite, 872 S.W.2d at 34.
5 The State obtained a grand jury indictment and provided copies of the indictment, the
offense report, prosecution reports, and a video of the offense captured on camera to Merrill
before the expiration of the ninety-day period. Viewing the evidence in the light most favorable
to the trial court’s decision, we conclude that the trial court did not abuse its discretion by finding
either that Merrill had been indicted within ninety days from the commencement of his detention
or that the State was ready for trial within that time. As a result, we cannot say that the trial
court abused its discretion by finding that Merrill was not entitled to a personal bond or bail
reduction under Article 17.151. See TEX. CODE CRIM. PROC. ANN. art. 17.151, § 1(1).
We overrule Merrill’s point of error.1
IV. Conclusion
We affirm the trial court’s denial of Merrill’s pretrial writ for habeas corpus.
Scott E. Stevens Chief Justice
Date Submitted: June 18, 2025 Date Decided: July 7, 2025
Do Not Publish
1 Merrill also argues that the trial court abused its discretion by not allowing him to cross-examine the State to testify about the “status of discovery.” Yet, nothing shows that Merrill was harmed since the status of discovery would not have altered the outcome in this case. See Ex parte Highsmith, 652 S.W.3d at 858. 6