Ex Parte Kelly Bryse Castlino ( 2010 )

Reversed and Remanded and Memorandum Opinion filed June 3, 2010

In The

Fourteenth Court of Appeals

NO. 14-10-00110-CR

EX PARTE KELLY BRYSE CASTLINO, Appellant

On Appeal from the 12th District Court

Grimes County, Texas

Trial Court Cause No. 31580

MEMORANDUM  OPINION

Appellant, Kelly Bryse Castlino, appeals the trial court’s denial of his application for writ of habeas corpus.  In a single issue, appellant contends the trial court erred when it denied habeas corpus relief and failed to release appellant on a personal recognizance bond because the State was not ready for trial within 90 days from the commencement of his detention.  We reverse the judgment of the trial court and remand for proceedings consistent with this opinion.

On July 6, 2009, appellant was arrested for aggravated sexual assault and two counts of robbery.  The trial court set his bail at a total of $275,000.  Appellant was not indicted until October 14, 2009, 100 days after his arrest.  On October 6, 2009, 92 days after his arrest, appellant filed an application for writ of habeas corpus in the trial court requesting that he be permitted immediate bail in a reasonable amount.

On October 26, 2009, the trial court held a hearing at which appellant presented evidence that he was indigent and could not afford bail.  He also established that although he had previously been convicted of a felony offense, he was not currently serving any sentence on a previous conviction.  Appellant requested to be released on a personal recognizance bond.  The trial court signed an order in which it found that appellant was arrested for aggravated sexual assault and two counts of robbery, and is indigent and unable to make bond.  The court further found that no indictment was returned and that the State was not ready for trial within 90 days of the arrest.  The court denied appellant’s request for a personal recognizance bond, but reduced his bond to $50,000 for each offense. 

Appellant appeals, asserting that the trial court erred in failing to release him under a personal recognizance bond.  We review a trial court’s pretrial bail determination under an abuse-of-discretion standard.  Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. 1981).  A habeas applicant bears the burden of proving that his bail is excessive.  Rubac, 611 S.W.2d at 849.

Article 17.151 provides in pertinent part:

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;....

Tex.Code Crim. Proc. Ann. art. 17.151, § 1(1) (Vernon Supp. 2009).

Article 17.151 is mandatory.  Rowe v. State, 853 S.W.2d 581, 583 (Tex. Crim. App. 1993).  If the State is not ready for trial within 90 days after commencement of detention for a felony, the trial court has two options: to release the defendant upon personal bond or to reduce the amount of bail.  Id. at 583.  Moreover, the trial court must reduce bail to an amount that the record reflects the accused can make in order to effectuate release.  Id. at 582 n. 1; Pharris v. State, 196 S.W.3d 369, 373–74 (Tex. App.—Houston [1st Dist.] 2006, no pet.).  When there is no indictment, the State cannot announce ready for trial.  Ex parte McNeil, 772 S.W.2d 488, 489 (Tex. App.—Houston [1st Dist.] 1989, no pet.).

At the hearing on the application for writ of habeas corpus, appellant presented evidence that he is indigent and cannot afford any bond.  Further, the State admitted that it was not ready for trial within 90 days of the commencement of appellant’s detention.  The State argued at the hearing that appellant should remain in custody because he had previously been convicted of a felony and several misdemeanors.  The provisions of article 17.151 are not triggered if a defendant has not finished serving a sentence for a prior conviction.  See Smith v. State, 161 S.W.3d 191, 194 (Tex. App.—Texarkana 2005, no pet.).  In this case, however, there is no evidence that appellant has failed to serve his sentences for prior convictions.  In fact, at the hearing, appellant averred that he was not currently serving a sentence for any of his prior convictions.  Further, the fact that appellant was subsequently indicted does not affect the applicability of article 17.151. See Pharris, 196 S.W.3d at 373.

Because appellant was in custody for more than 90 days without an indictment, the trial court is obligated under article 17.151 to release appellant either on personal bond or by reducing the amount of bail required.  The record reflects, and the trial court found, that appellant is indigent and cannot make any bond.  The trial court, however, reduced appellant’s bond to $150,000, an amount in excess of what the record reflects appellant can afford.  Such action is inconsistent with article 17.151 and its interpretation by the court of criminal appeals.  See Rowe, 853 S.W.2d at 582.  Accordingly, we sustain appellant’s issue on appeal.

We reverse the judgment of the trial court and remand this case to the trial court to reduce appellant’s bail to an amount shown by the record to be within his means.

                                                                                    PER CURIAM

Panel consists of Justices Anderson, Frost, and Seymore.

Do Not Publish — Tex. R. App. P. 47.2(b).