REVERSED AND REMANDED; Opinion Filed December 28, 2016.

In The 

## Court of Appeals Fifth District of Texas at Dallas

No. 05
- 16
- 00892
- CR No. 05
- 16
- 00893
- CR No. 05
- 16
- 00894
- CR
EX PARTE JOSEPH BEAT Y On Appeal from the 283rd Judicial District Court

Dallas County, Texas Trial Court Cause Nos. F15
- 76000
- T, F15
- 76098
- T, F15
- 76103
- T



### MEMORANDUM OPINION Before Justices Francis , Stoddart , and Schenck Opinion by Justice Stoddart Joseph Beaty appeals the trial court’s order denying his pretrial application s for writ of habeas corpus in which he asserted his right to either release on a personal recognizance bond or a b ail reduction . We conclude the trial court abused its discretion in de nying relief and thus reverse and remand th ese case s . We ORDER the Clerk of the Court to issue the mandates immediately in order to expedite this decision. See T EX
. R. A PP
. P. 2 , 18.6 ; Ex parte Carson , 215 S.W.3d 921, 924 (Tex. App.

— Texarkana 2007 , no p et.).

BACKGROUND In cause no. 05

- 16

- 00892

- CR, appellant was arrested on July 20, 2015 for aggravated sexual assault

. On July 21, 2015, appellant executed a n “ e lection of c ounsel” request ing appointed counsel and certifying he was without means to employ a lawyer but leaving blank the– 2

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portions of the form asking about his month ly income and the total value of his assets. On July 22, 2015, the trial court found appellant to be indigent and appointed c ounsel for hi m. On July 29 , 2015, appellant posted a bond in the amount of $100,000 and was subsequently released from jail

. On August 5, 2015, appellant ’s bond was held to be insufficient after he was arrested for additional offenses of aggravated se xual assault and sexual assault (cause nos. 05

- 16

- 00893

- CR and 05

- 16

- 00894

- CR). B ail was set at $100,000 for each aggravated sexual assault and $50,000
for the sexual assault. Appellant did not post the $250,000 in bond s and he has remained in jail continuously since Au gust 5, 2015. On August 7, 2015 , appellant executed new “election of counsel” form s requesting appointed counsel in cause no s . 05

- 16

- 00893

- CR and 05

- 16

- 00894

. 1 In th ese new election form s , appellant represented that his “total monthly income, including spouse’s income. . . .” was zero and t h e “total value of [his] assets, including house, cars, cash. . . .” was zero. On September 29, 2015, appellant was indicted in all three cases. Trial was set for April 18, 2016. Before trial, the State filed a moti on for continuance representing that it was not ready to proceed to trial due to the unavailability of a necessary witness. The trial court granted the State a continuance. Appellant filed a motion seek ing release under article 17.151 of the code of crimi nal procedure. On May 19, 2016, the trial court conducted a hearing on appellant’s motion

. Neither

a ppellant nor his wife , Brandy, testif ied at the hearing

. No financial information was admitted into evidence. Instead, the defense called a ppellant’s sister

- in

- law, Jessica Campbell , to provide

1 The election of counsel form for cause no. 05

- 16

- 00894

- CR is contained in the clerk’s record for cause no. 05

- 16

- 00893

- CR

.– 3

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information about appellant and Brandy’s financ ial circumstances

. Campbell testified that Brandy has five children, three of whom appellant fathered. Counting the children appellant has fathered with other wome n, there are nine children. There was no testimony about what support, if any, appellant provides for the children , but Campbell did testify that Brandy was “having a really hard time” caring for the children without appellant and that Campbell helps out by buying groceries for the family

. Campbell did not testify about appellant’s employment or income but she did testify that Brandy works for a pharmaceutical company full time for “[a] majority of the time

. ” Campbell could not remember what job duties B randy has with the pharmaceutical
company, but she confirmed Brandy held “a professional job.” Campbell related that d uring appellant’s incarceration, Brandy gave birth and had to take six weeks off f rom work. Campbell did not know if a ppellant and Brand y own the house they live in , but they do own a vehicle. A second vehicle was “lost” when appellant was incarcerated. Campbell admitted that appellant’s home was recently burglarized and one of the items taken was a television with a seventy

- inch

screen. Campbell re ndered her opinion that appellant lacked the means to post his bond. The State did not provide any evidence about appellant’s income or assets but instead called police witnesses to paint appellant as a dangerous serial sexual predator

. After hearing evidence, t he trial court asked numerous questions of the prosecutor about the status of the cases, whether the State would be ready for a September 2016 trial date, and about the possibility that other charges would be filed against appellan t. The trial court asked no questions about appellant’s financial condition or whether he had the means to post $250,000 in bond s . In announcing its decision, the trial court delivered some insight into its decision: “At this time the defendant’s motion is denied but I want to make something clear. Given that the difficulty that I anticipate the State is going to have with these complaining witnesses in announcing ready that you need to be ready or this Court will release him in September.”– 4

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Appellant the n filed application s for writ o f habeas corpus in each case . The trial court set the writ application s for hearing

. A ppellant admitted the record of the bond hearing into evidence and did not offer any additional evidence. In a single order, t he trial c ourt denied relief

on all three writ application s . The trial court did not make findings of fact. S TANDARD OF R EVIEW An applicant for habeas corpus relief must prove the applicant’s claims by a preponderance of the evidence. Kniatt v. State , 206 S.W.3d 6 57, 664 (Tex. Crim. App. 2006). In reviewing the trial court’s order, we view the facts in the light most favorable to the trial court’s ruling , and we uphold the ruling absent an abuse of discretion. Id

. This deferential review applies even if the tri al court’s findings are implied rather than explicit and based on affidavits rather than live testimony. Ex parte Wheeler , 203 S.W.3d 317, 325

– 26 (Tex. Crim. App. 2006). If the resolution of the ultimate question turns on an application of legal standard s, we review the determination de novo. Ex parte Peterson , 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis , 219 S.W .3d 335 (Tex. Crim. App. 2007). A NALYSIS Subject to a few exceptions not relevant in this case, a rticle 17.151 , § (1) (1) of the code of criminal procedure provides: 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.
T EX
. C ODE C RIM
. P ROC
. A NN
. art. 17.151, § 1(1) (West 2015). The terms of article 17.151 are mandatory. Ex parte Kernahan , 657 S.W.2d 433, 434 (Tex. Crim. App. 1983). When article– 5

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17.151 is triggered, “the accused must be released either on personal bond or by reducing the amount of bail required. If the court ch ooses to reduce the amount of bail required, it must reduce bail required to an amount that the record reflects an accused can make in order to effectuate release.” Rowe v. State , 853 S.W.2d 581, 582 n.1 (Tex. Crim. App. 1993) (emphasis in original). The trial court may not deny relief based upon outside factors and deficiencies in the record that are irrelevant to an article 17.151 evaluation such as the nature of the offense, the accused’s criminal record, an evaluation of whether the accused presents a continuing danger to the community, deficiencies of proof regarding what bond premium the accused could afford, or a lack of detail about the accused’s sources or amount of income

. See Ex parte Gill , 413 S.W.3d 425, 431 (Tex. Crim. App. 2013). In his so le issue on appeal, appellant contends the trial court erred in not granting him relief b ecause the State failed to meet its burden under article 17.151 to show that it was ready for trial within ninety days of his incarceration. The State concedes appell ant was in custody for over ninety days and it was not ready for trial within the ninety

- day period. Nevertheless, the State contends the trial court properly denied relief because appellant failed to prove he c ould not post b ail in the amount of $250,000

. Although appellant represented in two “election of counsel” form s that he had no income or assets, Campbell’s testimony shows otherwise , and appellant did, in fact, post a $100,000 bond in July 2015. Without evidence of a material change in appellant’s financial circumstances, we cannot conclude the trial court abused its discretion in refusing to release appellant on a personal recognizance bond. See Rowe , 853 S.W.2d at 582 ( holding accused must be released on personal recognizance bond if record shows he could not make any bond). Thus, we turn to the second prong of article 17.151 and review the trial court’s determination not to reduce appellant’s b ail to effectuate his release

. Citing three appellate cas es– 6

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that predate Gill , t he State urges us to hold appellant to a high burden of proof regarding his ability to pay the existing b ail in these cases. T he State argues that appellant’s proof was inadequate because neither he nor Brandy testified, he offered no exhibits to show he could not afford the current b ail and what b ail he could afford, and Campbell’s assessment of appellant’s finances lacked credibility because she did not explain how she knew about appellant’s finances, did not expressly state she kn ew the amount of appellant’s b ail , and admitted she did not even know if appellant owned a house. We conclude the State’s position is at odds with both the language of article 17.151 and the interpretation of article 17.151 in Gill and Rowe

. Article 17.15 1 makes clear that appellant’s release, either on reduced b ail or his own recognizance, is mandatory. See article 17.151, §1 (providing accused “must be released” when statute’s conditions are met); Gill , 413 S.W.3d at 430 (article 17.151 mandates release when State unready for trial and accused has been held on felony charge over ninety days). If the trial court decides to reduce the b ail , t he statute requires the trial court to reduce the b ail to an amount that the record shows the accused can make. See Rowe , 853 S.W.2d at 582 n.1

. In appellant’s case, there is no evidence in the record showing appellant has the ability to post $250,000 in bail or showing that the amount of the bail set ever bore any relationship to appellant’s financial circumstanc es. The record in this case contains Campbell’s testimony that appellant has meager resources, substantial family obligations, and no ability to post $250,000 in bond s . As in Gill , nothing in the record before us suggests the trial court made any adverse credibility determination against Campbell’s testimony. See Gill , 413 S.W.3d at 431. Moreover, the trial court found appellant to be indigent and appointed counsel for him. The record shows the trial court made no attempt to reduce bail to an amount tha t would effectuate appellant’s release as mandated by article 17.151. Neither party has notified the Court of a disposition in the case. To the extent the trial court is concerned about releasing appellant– 7

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back into the community, the trial court may pla ce conditions upon appellant’s release that will

ensure the safety of victims and the community

. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 17.40(a) (West 2015); Gill , 413 S.W.3d at 430

– 31. In light of the mandatory nature of article 17.151, we conclude the trial court abused its discretion in failing to reduce appellant’s bail to an amount he could post and obtain his release from custody. See Gill , 413 S.W.3d at 431

– 33; Rowe , 853 S.W.2d at 582 n.1. We grant appellant’s sole issue on appeal.
We reverse the trial court’s order denying relief on appellant’s application s for writ of habeas corpus. We remand this case to the trial court with instructions to reduce the amount of bail required to an amount that the record reflects appellant can make in order to effectuate his release from custody pending trial. As we have ordered above, the mandate shall issue immediately.

Do Not Publish T EX
. R. A PP
. P. 47 160892F.U05 /Craig Stoddart/ CRAIG STODDART JUSTICE– 8

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## Court of Appeals Fifth District of Texas at Dallas

JUDGMENT

EX PARTE JOSEPH BEAT Y No. 05

- 16

- 00892

- CR On Appeal from the 283rd Judicial District Court, Dallas County, Texas Trial Court Cause No. F15

- 76000

- T. Opinion delivered by Justice Stoddart. Justices Francis and Schenck participating. Based on the Court’s opinion of this date, the trial court’s order denying relief on appellant’s application for writ of habeas corpus is REVERSED and the cause REMANDED for further proceedings consistent with this opinion. Judgment entered this 28th day of December, 2016.– 9

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## Court of Appeals Fifth District of Texas at Dallas

JUDGMENT

EX PARTE JOSEPH BEAT Y No. 05

- 16

- 00893

- CR On Appeal from the 283rd Judicial District Court, Dallas County, Texas Trial Court Cause No. F15

- 76098

- T. Opinion delivered by Justice Stoddart. Justices Francis and Schenck participating. Based on the Court’s opinion of this date, the trial court’s order denying relief on appellant’s application for writ of habeas corpus is REVERSED and the cause REMANDED for further proceedings consistent with this opinion. Judgment entered this 28th day of December, 2016.– 10

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## Court of Appeals Fifth District of Texas at Dallas

JUDGMENT

EX PARTE JOSEPH BEAT Y No. 05

- 16

- 00894

- CR On Appeal from the 283rd Judicial District Court, Dallas County, Texas Trial Court Cause No. F15

- 76103

- T. Opinion delivered by Justice Stoddart. Justices Francis and Schenck participating. Based on the Court’s opinion of this date, the trial court’s order denying relief on appellant’s a pplication for writ of habeas corpus is REVERSED and the cause REMANDED for further proceedings consistent with this opinion. Judgment entered this 28th day of December, 2016.