Julie Loraine Bradley v. State ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00119-CR

Julie Loraine Bradley,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 413th District Court

Johnson County, Texas

Trial Court No. F41042

ABATEMENT ORDER

            Julie Loraine Bradley was convicted of intoxication manslaughter and sentenced to 20 years in prison.  Appointed counsel for Bradley on appeal filed a motion to withdraw and an Anders brief in support of that motion.  However, additional counsel has now made an appearance in this Court and has requested an extension of time to file a brief on the merits in this appeal.

            This appeal is abated to the trial court to have a hearing within 30 days from the date of this Order to determine whether the services of appointed counsel are still necessary.  If Bradley has actually retained counsel and wants retained counsel to represent her in this appeal, the trial court may allow appointed counsel to withdraw.  If appointed counsel is allowed to withdraw, retained counsel’s brief on the merits in this appeal is due within 30 days from the date of the trial court’s hearing. 

            Supplemental clerk’s and reporter’s records are due in this Court within 45 days from the date of this Order.

                                                                        PER CURIAM

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Appeal abated

Order issued and filed February 13, 2008

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O P I N I O N

      Roger Daugherty was arrested on May 9, 1998, for indecency with a child. See Tex. Pen. Code Ann. § 21.11 (Vernon 1994). He was indicted on June 25, 1998. He remains incarcerated because he has been unable to post the bond set by the magistrate before whom he first appeared. On August 21, Daugherty filed a petition and application for writ of habeas corpus requesting relief under article 17.151 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 17.151 (Vernon Supp. 1998). After a hearing, the court denied the relief. Daugherty now appeals.

      Article 17.151 provides in part 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 . . . (1) 90 days from the commencement of his detention if he is accused of a felony; . . . .” Id. Relying on this provision, Daugherty filed his application. A hearing was held, at which the State announced “ready” and stated “that it has been ready at all times since the indictment.” Testimony elicited by Daugherty suggests that the State was not ready to proceed to trial within 90 days from the date of his arrest.

      At the hearing, B.J. Shephard, the District Attorney of Hamilton County, was called as an adverse witness. He stated that the first announcement of ready was made at the habeas corpus hearing and that, to the best of his knowledge, he had no list of witnesses. He could not say whether anyone in his office had ever spoken with any of the witnesses, nor did he know where to reach the witnesses. Finding a prima facie showing of readiness, the court denied the application for writ of habeas corpus.

      Although the State’s announcement that it “has been ready” for trial establishes a prima facie showing that it was ready within the applicable time period, that showing of readiness may be rebutted by, “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, 717-18 (Tex. Crim. App. 1991) (citing Barfield v. State, 586 S.W.2d 538, 542 (Tex. Crim. App. 1979)). Although it is true that the issuance of subpoenas is not essential to the State’s readiness for trial, the evidence here shows more than the mere fact that witnesses had not yet been subpoenaed; it also shows that the State did not know where to reach a single witness. Id. at 719; Philen v. State, 683 S.W.2d 440, 444 (Tex. Crim. App. 1984); Dixon v. State, 866 S.W.2d 115, 117 (Tex. App.—Waco, no pet.).

      It was not within the court’s discretion to find that the State was timely ready for trial. Jones, 803 S.W.2d at 719; Barfield, 586 S.W.2d at 542. Under article 17.151, Daugherty is entitled to either be released on personal bond or to have his bail amount reduced. Rowe v. State, 853 S.W.2d 581, 582 (Tex. Crim. App. 1993). In Rowe, the Court of Criminal Appeals stated that the accused must be able to effectuate release. Id. at 582 n.1. The record indicates that Daugherty has no money and no property with which to make bail. Accordingly, we reverse the order below and remand this cause to the trial court with instructions to release Daugherty forthwith on his personal bond. Tex. Code Crim. Proc. Ann. art. 17.151.   

                                                                       BILL VANCE

                                                                       Justice

Before Chief Justice Davis,

          Justice Cummings, and

          Justice Vance

Reversed and remanded with instructions

Opinion delivered and filed October 8, 1998

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