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Date: 01-08-2021
Case Style:
Ex parte Trevor Rowe
Case Number: 07-20-00151-CR
Judge: Brian Quinn
Court: Court of Appeals
Seventh District of Texas at Amarillo
Plaintiff's Attorney: Jeffrey S. Ford
Defendant's Attorney:
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Description:
Amarillo, TX - Criminal defense attorney represented Trevor Rowe with an appeal from an order denying his petition for writ of habeas corpus.
Rowe was arrested for capital murder on January 8, 2020. His bond was set at
$2,000,000. As of April 7, 2020, he had been in detention for 90 days, and the State had
yet to indict him. Rowe filed his Pretrial Application for Writ of Habeas Corpus ten days
later. He argued therein that he had been “held in this case in excess of ninety (90) days
prior to presentment of Indictment, which means the State was not legally ready for trial.”
Consequently, the circumstances entitled him to release on a “personal bond pursuant to
Article 17.151 C.C.P.” The State responded that he was not eligible for bond given that
1) he had been accused of capital murder and 2) various orders from the Governor, the
Texas Supreme Court, and Court of Criminal Appeals prevented the grand jury from
meeting.
The trial court convened a hearing on the writ. No one disputed that Rowe was
arrested for capital murder and had not been indicted for same within 90 days from his
original arrest. Nor was he indicted at the time of the hearing. Several days later, the
trial court issued a letter ruling. In it, the court wrote: “[b]ased upon the authority granted
to courts by the March 13th First Emergency Order of our State’s highest courts, I am
granting the State’s request that I modify the time frame set out in Section 17.151 of the
Texas Code of Criminal Procedure and I am extending the 90 day deadline until May 12,
2020.” With respect to the State’s argument regarding “the power to completely deny a
bond based upon both constitutional and statutory considerations as applied generally to
capital murder cases and specifically to this case,” the court agreed “that it is within the
Court’s discretion to do so.” Yet, it opted to “deny[] the State’s request for no bond and
instead . . . keep it at its current amount.” This letter was followed by a written order,
dated May 4, 2020, denying the petition.
3
Disposition
Rowe’s arguments before us are limited to addressing whether article 17.151
applied to his situation, whether the 90-day period alluded to in it could be extended by
the trial court, and the effect of the emergency orders issued by the Governor and highest
appellate court’s in Texas regarding the COVID-19 pandemic. We address only the first
topic for its disposition relieves us from having to consider the others.
An order denying a petition for writ of habeas corpus is reviewed under the
standard of abused discretion. Ex parte Gill, 413 S.W.3d 425, 428 (Tex. Crim. App. 2013).
Discretion is abused when the decision “falls outside the zone of reasonable
disagreement,” Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016), or the
trial judge acts “‘without reference to any guiding rules and principles.’” State v. Hill, 499
S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State, 810 S.W.2d 372,
380 (Tex. Crim. App. 1990)).
Next, article 17.151, § 1(1) of the Texas Code of Criminal Procedure states, among
other things, that 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
. . . 90 days from the commencement of his detention if he is accused of a felony.” TEX.
CODE CRIM. PROC. ANN. art. 17.151, § 1(1) (West Supp. 2020). Should the accusation
levied be a felony and the State be not ready for trial within the expressed time period,
then the trial court has but two options. It must either release the accused upon personal
bond or reduce bail to an amount that the record reflects an accused can make. Ex parte
Gill, 413 S.W.3d at 429. Furthermore, the burden lies with the State to prove readiness.
4
Ex parte Landrum, No. 07-18-00301-CR, 2018 Tex. App. LEXIS 8571, at *2 (Tex. App.—
Amarillo Oct. 19, 2018, no pet.) (mem. op., not designated for publication). That is, it
must prove it was prepared to try the case within the specified period. See Ex parte
Smith, 486 S.W.3d 62, 65 (Tex. App.—Texarkana 2016, no pet.); accord Ex parte
Jackson, No. 03-18-00494-CR, 2019 Tex. App. LEXIS 3243, at *6 (Tex. App.—Austin
Apr. 24, 2019, no pet.) (mem. op., not designated for publication) (stating the same).
Being prepared for trial encompasses just that and not whether trial actually could
have begun. Ex parte Jackson, 2019 Tex. App. LEXIS 3243, at *6. Indeed, delay arising
from the conduct of the trial court, the tenor of its docket, or like impediments are
immaterial to article 17.151. See Santibanez v. State, 717 S.W.2d 326, 329 (Tex. Crim.
App. 1986). The focus lies simply upon the State’s readiness within the specified time.
And the requirements of that article normally may be satisfied by the State announcing
either that it is or had been ready within the allotted time. Ex parte Ragston, 422 S.W.3d
904, 906–07 (Tex. App.—Houston [14th] 2014, no pet.).
Yet, it is rather clear that the State cannot be ready prior to indicting the detainee.
See Ex parte Baldwin, No. 09-18-00396-CR, 2018 Tex. App. LEXIS 10776, at *5 (Tex.
App.—Beaumont Dec. 21, 2018, no pet.) (mem. op., not designated for publication)
(stating that the State cannot announce ready when there is no indictment); Ex parte
Castellano, 321 S.W.3d 760, 763 (Tex. App.—Fort Worth 2010, no pet.) (stating the
same). So, the absence of an indictment stands as a rather dispositive impediment to
the State claiming it was or is prepared to try the case. At first blush, this would seem
dispositive here since Rowe had sat in jail for more than 90 days without the State
indicting him. Thus, it could not have announced ready. Nevertheless, a circumstance
5
prevents us from so holding, and it encompasses the very application of article 17.151 to
the crime for which Rowe was accused. There is an exception to the statute which
appears in a clause within the Texas Constitution.
Per article I, section 11, “[a]ll prisoners shall be bailable by sufficient sureties,
unless for capital offenses, when the proof is evident.” TEX. CONST. art. 1, § 11
(emphasis added). In other words, one charged with a capital offense when “proof is
evident” cannot invoke article 17.151, § 1(1). Ex parte McKane, No. 04-19-00352-CR,
2019 Tex. App. LEXIS 11160, at *5 (Tex. App.—San Antonio Dec. 27, 2019, no pet.)
(mem. op., not designated for publication) (conceding that, though under some
circumstances the legislature may provide that an accused be released pending the
outcome of trial, “[t]hose circumstances do not exist under article I, section 11 of the Texas
Constitution for prisoners awaiting trial for capital offenses ‘when the proof is evident’”);
Ex parte Jackson, 807 S.W.2d 384, 386 (Tex. App.—Houston [1st Dist.] 1991, no pet.)
(rejecting Jackson’s reliance on article 17.151 because the terms of article I, § 11 of the
Constitution were satisfied and precedent of the Court of Criminal Appeals recognized
the latter created an exception to the former); accord Ex parte Ross, 94 Tex. Crim. 313,
314–15, 251 S.W. 233 (Tex. Crim. App. 1923) (holding that the trial court did not err in
rejecting bail given the capital nature of the crime and despite a conflict in the evidence
or the presence of a defensive issue); see Jones v. State, 803 S.W.2d 712, 717 (Tex.
Crim. App. 1991) (recognizing that the legislature’s “sometimes legitimate concern that
an accused released on pretrial bond may pose a danger” and stating that “however, all
pretrial detainees ‘shall be bailable . . ., unless for capital offenses, when proof is
evident’”); see also Ex parte Stearnes, 752 S.W.2d 621, 622 (Tex. App.—Amarillo 1988,
6
pet. ref’d) (wherein Stearnes was charged with capital murder and stating that article I, §
11 of the Constitution provided that all prisoners shall be bailable except in capital
offenses where the proof is evident).
We are not unmindful of authority cited by Rowe which he believes suggests the
contrary. For instance, in Beckcom v. State, 938 S.W.2d 780 (Tex. App.—Corpus Christi
1997, no pet.), the court first stated that a “defendant being held on a charge of capital
murder is not entitled to bail ‘when the proof is evident.’” Id. at 781. Then it observed
that “this rule is subject to the provisions of article 17.151.” Id. Yet, for some time now,
the law of Texas has been that a statute does not, nor can it, supplant a constitutional
provision. See Mears v. State, 520 S.W.2d 380, 381 (Tex. Crim. App. 1975). Simply put,
“statutory rules cannot abrogate constitutional requirements.” Id. This is so because our
Texas Constitution is both the fundamental and supreme law of Texas. Oakley v. State,
830 S.W.2d 107, 109 (Tex. Crim. App. 1992); In re Expunction, 497 S.W.3d 505, 509
(Tex. App.—Houston [1st Dist.] 2016, no pet.). Consequently, statutory words yield to
constitutional mandate. In re Expunction, 497 S.W.3d at 509. So, to the extent that the
court in Beckcom may have suggested otherwise, it was mistaken.
Reliance upon the opinion in Ex parte McNeil, 772 S.W.2d 488 (Tex. App.—
Houston [1st Dist.] 1989, pet. ref’d), would similarly be misplaced for several reasons.
First, it did not involve the specific question at issue here; the State did not posit that
article I, § 11 of the Constitution barred McNeil’s release under article 17.151, § 1(1) of
the Code of Criminal Procedure. Second, when the issue at bar eventually was
addressed by the First Court of Appeals, the latter actually viewed the constitutional
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provision as an exception to article 17.151 of the Code of Criminal Procedure. See Ex
parte Jackson, 807 S.W.2d at 386.
As for Rowe’s allusion to this Court’s opinion in Ex parte Stearnes, 761 S.W.2d
388 (Tex. App.—Amarillo 1988, pet. Ref’d) (Stearnes II), the accused was charged with
a capital crime and we did address the issue whether the amount of bail set by the court
was sufficient. Yet, there, we did not have cause to address whether the criminal code
provision somehow displaced the constitutional directive. Why we did not is revealed
within the opening paragraph of the opinion. “On a prior appeal, we ordered that
reasonable bail be set for appellant Michael Dewayne Stearnes, who had been denied
bail after being indicted for capital murder, because the State failed to show that the proof
is evident.” Id. at 388. From the quoted passage, one can readily see that in an earlier
appeal we considered article I, § 11 but found it inapplicable because the State failed to
satisfy its requirements, not because some statutory provision trumped it. See Ex parte
Stearnes, 752 S.W.2d at 622.
In short, Rowe mistakenly suggests that article 17.151, § 1(1) of the Code of
Criminal Procedure overrides or controls article I, § 11. The opposite is true. Moreover,
the trial court agreed when first acknowledging the State’s argument about “constitutional
and statutory considerations as applied generally to capital murder cases and specifically
to this case” to deny bond, then saying, “I agree with the State’s position that it is within
the Court’s discretion to do so.” Nevertheless, it exercised its discretion to afford Rowe
the opportunity to gain release by posting the bond previously set.1
Thus, at least one
1
It also left open the question whether all bond should be denied Rowe once formally indicted for
capital murder. As it said in its letter ruling: “[s]hould this case ultimately be indicted and assigned to a
specific court, upon proper motion from the defense, the judge presiding over the case shall have the further
ability [to] decide what, if any, is the appropriate bond amount.” (Emphasis added).
8
ground supports the trial court’s decision to reject Rowe’s attempt to secure his release
through use of article 17.151, § 1(1) of the Code of Criminal Procedure. That relieves us
from having to consider any other.
Outcome: We find that the trial court did not abuse its discretion in denying Rowe’s petition
for writ of habeas corpus. Accordingly, the order of the trial court is affirmed.
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