Ex Parte Jonathan Lopez v. the State of Texas

Reversed and Remanded, and Memorandum Opinion filed June 27, 2024.

In The

Fourteenth Court of Appeals
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NO. 14-24-00053-CR
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EX PARTE JONATHAN LOPEZ

On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1844859

MEMORANDUM OPINION

Appellant Jonathan Lopez appeals the denial of his petition for writ of
habeas corpus in an order signed January 8, 2024. Appellant was indicted for
capital murder. He filed his habeas petition based on Code of Criminal Procedure
article 17.151, seeking either release on a personal recognizance bond or reduction
of his $300,000 bond to an amount he can afford. See Tex. Code. Crim. Proc. Ann.
art. 17.151, § 1(1). Appellant contends that the trial court abused its discretion in
denying the petition because the State was not ready for trial within ninety days of
his felony arrest. See id. We reverse and remand.
Background

Appellant was arrested for capital murder on April 27, 2023. He has been
incarcerated continuously since his arrest. A grand jury indicted appellant for
capital murder on June 28, 2023, sixty-two days after his arrest. The court set
bond at $300,000.

Appellant filed his first petition for writ of habeas corpus under article
17.15, in which he argued that his bond amount was excessive. During a
November 2, 2023 hearing on the petition, appellant’s counsel presented evidence
from appellant’s mother to the effect that it was possible for appellant’s family to
afford a $50,000 bond. During a discussion after the testimony concluded, the
following exchange occurred:

[Appellant’s Counsel]: . . . I would ask the Court to inquire of
the State whether in good faith right now they can say that they are
ready for trial.

[Prosecutor]: I mean, pending the firearms testing, Judge,
I don’t think that it would be -- I don’t think it would be beneficial to
this defendant in terms of if the DNA testing, especially if the swabs
on the firearm come back to [the co-defendant], then I believe that
that would be inculpatory -- or exculpatory evidence that the defense
would want. But should it come back to DNA testing and if that
testing confirms that the DNA found on the firearm is that of this
defendant’s, then that would also be inculpatory and something that
we would want. So, just in terms of due diligence for both parties, I
respectfully would state that the firearms testing is going to be
determinant as to what our offer would be on this case and how we
would dispose of the case.

THE COURT: How old is the case anyways?

[Prosecutor]: It’s six months, Judge, since the date of file.

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THE COURT: So, just in terms of, like, capital murders and
murders, it’s not like an older case.

[Appellant’s counsel]: I’m not suggesting that, Judge; but I --
and with respect to the State, I would like them to make an answer to
are they ready. Can they say in good faith that they are ready for trial
right now?

[Prosecutor]: I mean, at this time, no, Judge, because the
outstanding evidence I think is both -- could be either exculpatory or
inculpatory. And, I mean, for purposes of determining whether or not
this is a righteous case and how -- what our offer would be on the
case, how we would dispose of the case, whether it would include a
lesser included or an offer on the capital, that firearms evidence and
then as well as the DNA testing of the firearm I believe is extremely
important.

Based on these statements, appellant’s counsel sought to advance an argument for
habeas relief under article 17.151, in addition to article 17.15. Because appellant’s
petition was limited to a request for relief under article 17.15, the court confined its
ruling to that article and refused to reduce the bond. The court, however, indicated
that it would entertain another habeas petition based on article 17.151 if appellant
desired to file one.

Appellant filed a second petition for habeas corpus, seeking relief under
article 17.151. Appellant argued that, based on the prosecutor’s statements at the
November 2, 2023 hearing, the State was not ready for trial within ninety days of
appellant’s arrest. Therefore, appellant was entitled to be released on a personal
recognizance bond or otherwise his bond must be reduced from $300,000 to
$50,000, the amount appellant’s mother testified the family could afford. See Tex.
Code Crim. Pro. art. 17.151, § 1(1). The trial court held a hearing on the second
petition on January 8, 2024. During that hearing, the court admitted into evidence
all the exhibits admitted during the November 2, 2023 hearing as well as the

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reporter’s record from that hearing. In response to appellant’s argument, the
prosecutor offered the following clarification of his statements made during the
November 2, 2023 hearing:

[Prosecutor]: So, just in response to defense’s filing of the
[petition requesting a] Writ of Habeas Corpus based on 17.151, the
State of Texas had asserted that under the circumstances that we’re
still pending analysis for both firearms and DNA in this case. And for
clarification and purposes of the record, when I responded to
Counsel’s question as to whether or not the State was ready for trial, it
is my belief that it wouldn’t have been ideal to proceed with that
testing or analysis still pending, especially because we don’t know the
value of the evidence and it would prove difficult to dispose of the
case pretrial under those circumstances, but if the Court so chooses to
set the case for trial, the State will be ready when the Court would like
for the State -- for the trial date to be selected by the Court. The State
is ready to proceed under these circumstances at this time.
...

THE COURT: And just to put on the record, it’s not that
the State isn’t ready for trial; it’s that the evidence that they’ve asked
to be tested, there is some kind of backlog. It that correct?

[Prosecutor]: That’s correct, your Honor. So, I mean, at
this time the State believes that it can proceed with the evidence that
we have. There is additional testing by the Houston Forensic Science
Center. We’ve asked to be put on the priority list. The State is also
exploring alternative avenues of different labs that could potentially
have that analysis completed sooner. However, at this time -- I mean,
given the facts of the case, the State is ready to proceed to trial
whenever the Court sees fit to set it on the trial docket.

The trial court denied appellant’s second habeas petition. Appellant timely
filed a notice of appeal.

Analysis

Appellant argues that the trial court abused its discretion in denying his

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second habeas petition because the State affirmatively announced that it was not
ready for trial on November 2, 2023, which was 188 days after appellant’s arrest.

We review a trial court’s decision on a habeas proceeding under article
17.151 for an abuse of discretion. See Ex parte Gill, 413 S.W.3d 425, 428 (Tex.
Crim. App. 2013). Under this standard, a trial court abuses its discretion when no
reasonable view of the record could support its ruling. State v. Lerma, 639 S.W.3d
63, 68 (Tex. Crim. App. 2021).

Article 17.151 provides in relevant 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).

Under article 17.151, the State has the initial burden to make a prima facie
showing that it was ready for trial within the statute’s 90-day time period. See Ex
parte Jones, 803 S.W.2d 712, 717 (Tex. Crim. App. 1991); Ex parte Ragston, 422
S.W.3d 904, 906 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The State’s
“readiness” refers to the prosecution’s preparedness for trial. Ragston, 422 S.W.3d
at 907. “The State may accomplish this 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 Jones, 803 S.W.2d at 717).

If the State makes the required showing, then the defendant has the burden
to rebut the showing. Ex parte Brosky, 863 S.W.2d 775, 778 (Tex. App.—Fort
Worth 1993, no pet.). If the defendant fails to make a sufficient rebuttal, the trial
court may conclude in its discretion that the State was ready for trial timely. Id.
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The State argues first that a timely indictment alone is sufficient to meet its
prima facie burden to show trial readiness. The State contends that the trial court
did not err because appellant was indicted for capital murder within ninety days of
appellant’s arrest. Further, the State continues, appellant cannot rely on the
prosecutor’s statements at the November 2, 2023 and January 8, 2024 hearings to
rebut the State’s showing of trial readiness because a “non-superficial” and
complete reading of those statements shows that the prosecutor meant merely that
some evidence remained outstanding, not that the State was not ready for trial.

The State cites several cases in support of its first argument, including
Kernahan v. State, which held that the existence of a charging instrument is an
element of State preparedness. 657 S.W.2d 433, 434 (Tex. Crim. App. 1983).
Kernahan does not address our issue, however, because in that case the defendant
was not indicted within ninety days of arrest. The court held that the absence of an
indictment within the statutory period meant that the State was not ready for trial.
Id. None of the cases the State cites, including Kernahan, has held that the filing
of a charging instrument within the ninety-day time period is alone sufficient to
show the State’s trial readiness. The issue was not presented in those cases
because, in all of them, the State had announced ready for trial within ninety days
of the defendants’ arrest. See Ex parte Dresner, No. 03-22-00018-CR, 2023 WL
8285108, at *3 (Tex. App.—Austin Dec. 1, 2023, no pet.) (mem. op., not
designated for publication); Ex parte Highsmith, 652 S.W.3d 850, 859 (Tex.
App.—Austin 2022, pet. ref’d); McClellan v. State, 701 S.W.2d 671, 675 (Tex.
App.—Austin 1985), aff’d, 742 S.W.2d 655 (Tex. Crim. App. 1987)); see also Ex
parte Pace, No. 03-20-00430-CR, 2021 WL 728168, at *9 (Tex. App.—Austin
Feb. 25, 2021, no pet.) (mem. op., not designated for publication).

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Presuming for argument’s sake that an indictment filed within ninety days
of arrest is alone sufficient to meet the State’s prima facie burden of trial
readiness—an issue we do not decide—the State’s purported trial readiness here
was either negated or rebutted by the prosecutor’s affirmative statement at the
November 2, 2023 hearing that, at that time (over six months after appellant’s
arrest), the State was not ready for trial. When the State affirmatively declares that
it is not ready for trial after the ninety-day time period has passed, we cannot say
that an indictment within the ninety-day period, by itself, satisfies the State’s
burden.

According to the State, the prosecutor’s remarks at the November 2, 2023
hearing were not intended to indicate unreadiness for trial but rather merely that
some evidence remained outstanding, namely DNA testing of the firearm allegedly
used by appellant during the offense. Because the DNA evidence was outstanding,
the prosecutor meant to communicate that proceeding to trial at that time would not
be “ideal” because the State could not yet formulate a complete pretrial offer.
Nonetheless, at the January 8, 2024 hearing, the prosecutor confirmed that the
State would be ready for any future trial date and was currently ready.

Crediting the prosecutor’s statements at the January 8, 2024 hearing, they
show at most that the State was ready for trial at that time. A showing of trial
readiness after the ninety-day period has expired is insufficient under article
17.151, section 1(1). See Jones, 803 S.W.2d at 717 (“It is not enough that the State
appear in open court after the running of the applicable period and declare itself at
that time ready for trial.”). The prosecutor made no attempt to show that the State
had been ready for trial within ninety days of appellant’s arrest. Nothing about the
prosecutor’s statements at either hearing reasonably could be construed as
communicating that the State was ready for trial within the ninety-day period. For

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this reason, the State’s reliance on Ex parte Jackson, No. 03-18-00494-CR, 2019
WL 1782037, at *3 (Tex. App.—Austin Apr. 24, 2019, no pet.) (mem. op., not
designated for publication), is misplaced.1

Under the present circumstances, the trial court had only two options: either
release the accused on personal bond or reduce the required bail to an amount he
could afford. Ex parte Lanclos, 624 S.W.3d 923, 927 (Tex. Crim. App. 2021);
Gill, 413 S.W.3d at 429. Because the trial judge exercised neither option, we
conclude he abused his discretion. Lanclos, 624 S.W.3d at 927-28. We sustain
appellant’s sole issue.

Conclusion

We reverse the trial court’s January 8, 2024, order and remand the case to
the habeas court for further proceedings consistent with this opinion.

PER CURIAM

Panel consists of Justices Jewell, Bourliot, and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).

1
In Jackson, the court held that the prosecutor’s references to the clerk’s file, together
with other comments, communicated to the trial court that the State had been ready for trial
within the ninety-day statutory period. Id.

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