Affirmed as Reformed and Opinion filed February 6, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00584-CR

EX PARTE JOSHUA DEWAYNE RAGSTON

On Appeal from the 506th District Court

Grimes County, Texas

Trial Court Cause No. 17187

O P I N I O N

This is an appeal from the denial of a pretrial writ of habeas corpus. We 

consider the following three issues: (1) whether the prosecution established that it 

was ready for trial within the time allotted by the Code of Criminal Procedure; 

(2) whether the trial court abused its discretion by refusing to set bail on two of 

appellant’s three charged offenses; and (3) whether the trial court set an excessive 

amount of bail on appellant’s third remaining charge. We reform the trial court’s 

order and set bail for all three charges at $250,000. As reformed, we affirm the trial 

court’s order denying habeas relief.
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BACKGROUND

On June 22, 2012, appellant was arrested for the homicide of a liquor store 

owner in Navasota, Texas. A grand jury returned an indictment on August 16, 

2012, charging appellant with capital murder, murder in the first degree, and 

aggravated robbery. All three offenses are alleged to have arisen out of the same 

set of facts.

Initially, the trial court ordered that appellant be held without bond on the 

capital murder charge, and that bond be set at $500,000 for each of the two 

remaining charges. Appellant filed a motion for bond reduction, claiming that his 

bail was excessive and punitive. Appellant also filed a separate application for writ 

of habeas corpus, claiming that his status as a juvenile precluded the State from 

prosecuting him. Appellant’s habeas petition relied specifically on Miller v. 

Alabama, a recent decision in which the United States Supreme Court held that 

juveniles could not be sentenced to a mandatory punishment of life without parole. 

132 S. Ct. 2455, 2469 (2012). Appellant contended that Texas’s capital sentencing 

statute ran afoul of Miller as applied to him because, if convicted, he similarly

faced an automatic sentence of life without parole. Appellant accordingly argued 

that he could not be tried, and that he should therefore be released.

The trial court denied appellant’s habeas petition but granted partial relief on 

the bond motion. The court reduced appellant’s bail to $250,000 on the charge of 

aggravated robbery. As for the charges of capital murder and murder in the first 

degree, the court ordered that appellant be held without bond.

Appellant challenged all aspects of the trial court’s judgment in a previous

appeal before a different panel of this court. In that previous appeal, we construed 

appellant’s habeas complaint as an “as-applied” challenge to the constitutionality 

of the capital sentencing statute. See Ex parte Ragston, 402 S.W.3d 472, 475–76 
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(Tex. App.—Houston [14th Dist.] 2013), aff’d, No. PD-0824-13, 2014 WL 

440964, — S.W.3d —, slip op. at 5 (Tex. Crim. App. Feb. 5, 2014). Because “asapplied” challenges are not cognizable for purposes of pretrial habeas, we affirmed 

the trial court’s order denying habeas relief. Id. at 477. Appellant’s remaining 

complaints challenged the trial court’s ruling on his separate motion for bond 

reduction. We dismissed these complaints on jurisdictional grounds, concluding 

that “no interlocutory appeal lies from the trial court’s order on a pretrial motion 

for bond reduction.” Id. at 478.

During the pendency of this previous appeal, appellant filed a second 

application for writ of habeas corpus. In the application, appellant reasserted the 

same arguments that had previously been raised in his separate motion for bond 

reduction—i.e., that his bail was excessive and punitive. Appellant also asserted a 

modified argument with regards to his juvenile status. Claiming again that he could 

not be sentenced if convicted of capital murder, appellant argued that there was no 

possible way for the State to announce ready for trial within ninety days of the 

commencement of his detention. Appellant accordingly contended that, under 

article 17.151 of the Code of Criminal Procedure, he was entitled to release on his 

own recognizance.

The trial court conducted a hearing on June 10, 2013, exactly one day before 

our opinion issued in appellant’s first appeal. After considering all of the evidence

presented at the hearing, the court denied the application, found that the State had 

been ready for trial, and left its previous bond order intact. Appellant brings this, 

his second appeal, challenging the trial court’s most recent ruling on his 

application for writ of habeas corpus.
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READINESS FOR TRIAL

In his first issue, appellant argues that the trial court erred by failing to grant 

him a personal recognizance bond on the capital murder charge. Appellant bases 

his complaint on Article 17.151, which provides as follows: 

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. 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 applicable time period. See Ex parte 

Jones, 803 S.W.2d 712, 717 (Tex. Crim. App. 1991). “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. The State 

satisfied this burden at the hearing on June 10, 2013, when the prosecutor 

represented as follows: “For the record, the State is ready for trial; has been ready 

since the date of indictment, which was done within 90 days from the date of Mr. 

Ragston’s incarceration on these charges. We have continued to be ready subject to 

a trial setting.”

Appellant contends that the State’s announcement was ineffective because 

there was no constitutional punishment scheme for capital murder at the time of the 

trial court’s decision. Although we recognize that the scope of punishment should

be known before trial in order to voir dire prospective jurors, appellant has not 

cited any authority demonstrating that an uncertainty in sentencing may prevent the 

State from announcing ready. Traditionally, the concept of “ready” refers to the 

prosecution’s preparedness, not the trial court, its docket, or “whatever problems 
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[that] may have then judicially existed.” See Santibanez v. State, 717 S.W.2d 326, 

329 (Tex. Crim. App. 1986); see also Barfield v. State, 586 S.W.2d 538, 541 (Tex. 

Crim. App. [Panel Op.] 1979).

In what appears to have been a good faith effort to proceed to trial, the 

prosecutor urged the trial court to sever those portions from the capital sentencing 

statute that were rendered invalid by the Supreme Court’s decision in Miller. The 

prosecutor invoked the Code Construction Act, which provides that “if any 

provision of the statute or its application to any person or circumstance is held 

invalid, the invalidity does not affect other provisions or applications of the statute 

that can be given effect without the invalid provision or application.” See Tex. 

Gov’t Code § 311.032(c). Thus, in the absence of a legislative fix, the prosecutor 

argued that the trial court could sever the “without parole” language from the 

sentencing statute, and instruct the jury that appellant, if convicted of the capital 

murder charge, faced an automatic sentence of life imprisonment. We agree that 

this would have been an acceptable approach as applied, especially considering the 

legislative developments that shortly followed the trial court’s decision to deny 

habeas relief.

In July of 2013, the legislature responded to Miller by passing a bill that 

amended the capital sentencing statute. See Act approved July 22, 2013, 83d Leg., 

2d C.S., ch. 2, § 1, 2013 Tex. Gen. Laws 5020, 5020–21. As amended, the 

sentencing statute now provides that a person convicted of a capital felony shall be 

sentenced to a term of life imprisonment with the possibility of parole if the person 

was younger than eighteen years of age at the time of the offense. See Tex. Penal 

Code § 12.31(a)(1). Appellant did not contend at oral argument that the statute, as 

currently written, would operate unconstitutionally if he were to proceed to trial 

today and be convicted of capital murder. The record reveals nothing that would 
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prevent this case from being tried expeditiously, and we anticipate that the trial 

court will do so. Based on the foregoing, we conclude that the State was ready for 

trial and that the trial court correctly denied appellant’s request for release on his 

own recognizance.

BAIL

We now consider appellant’s final two complaints, which focus on the 

denial and excessiveness of bail. We have jurisdiction to address these complaints 

because they are presented to us by way of habeas corpus. See Ex parte Gray, 564 

S.W.2d 713, 714 (Tex. Crim. App. [Panel Op.] 1978) (“The proper method for 

challenging the denial or excessiveness of bail, whether prior to trial or after 

conviction, is by habeas corpus.”); see also Ragston, 402 S.W.2d at 477–79 

(concluding that reviewing court lacks jurisdiction to consider these issues when 

raised in a separate motion for bond reduction).

Appellant contends that the trial court erred by denying bond on his charges 

for capital murder and murder in the first degree. The State agrees with appellant 

that bail should have been set on both charges. See Beck v. State, 648 S.W.2d 7, 9 

(Tex. Crim. App. 1983) (concluding that a juvenile charged with a capital felony is 

“per se bailable”). The State has requested that we reform the trial court’s order 

and set bail for all three charges at $250,000. Appellant opposed this amount at 

oral argument, contending that it would still be excessive. Based on the record as a 

whole, we conclude that the amount is not excessive.

The amount of bail in any case must adhere to these rules:

1. The bail shall be sufficiently high to give reasonable assurance that 

the undertaking will be complied with.

2. The power to require bail is not to be so used as to make it an 

instrument of oppression.
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3. The nature of the offense and the circumstances under which it was 

committed are to be considered.

4. The ability to make bail is to be regarded, and proof may be taken 

upon this point.

5. The future safety of a victim of the alleged offense and the 

community shall be considered.

Tex. Code Crim. Proc. art. 17.15.

Courts may also consider the following set of factors when assessing 

whether the amount of bail is reasonable: (1) the defendant’s work record; (2) the 

defendant’s family and community ties; (3) the defendant’s length of residency; 

(4) the defendant’s prior criminal record; (5) the defendant’s conformity with 

previous bond conditions; (6) the existence of other outstanding bonds, if any; and 

(7) the aggravating circumstances alleged to have been involved in the charged 

offense. See Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim. App. [Panel 

Op.] 1981); Ex parte Castellanos, Nos. 14-13-00538-CR, 14-13-00539-CR, & 14-

13-00540-CR, — S.W.3d —, 2014 WL 258559, at *2 (Tex. App.—Houston [14th 

Dist.] Jan. 23, 2014, no pet. h.).

Appellant contends that $250,000 is excessive because he is indigent and 

unable to post any bond. While the ability to make bail is to be regarded, a 

defendant’s financial situation is not a determinative factor. See Ex parte 

Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. [Panel Op.] 1980). The 

nature and circumstances of the alleged offense must also be considered. See Tex. 

Code Crim. Proc. art. 17.15. The record reflects that appellant robbed the liquor 

store with a co-defendant, and together, they allegedly killed the complainant in a 

violent and callous manner. Appellant and his co-defendant allegedly targeted the 

liquor store on a day when the complainant was known to have extra cash on hand. 

They allegedly shot the complainant multiple times with a shotgun at point blank 
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range, then made off with several thousand dollars. The incident occurred in July 

of 2009, and they remained on the run for several years.

The violent nature of the offense demonstrates a potential risk to the 

community if appellant were released on bond. Indeed, at the time of his arrest, 

appellant was already facing robbery charges in another county. Based on all of 

these factors, we conclude that a bail of $250,000 is not excessive. Cf. Ex parte 

Guerra, 383 S.W.3d 229, 234 (Tex. App.—San Antonio 2012, no pet.) (bail of 

$950,000 was not excessive for indigent defendant charged with capital murder, 

aggravated robbery, and unauthorized use of a vehicle). Accordingly, we reform 

the trial court’s order and fix appellant’s bail at $250,000 for all three charged

offenses. See Ludwig v. State, 812 S.W.2d 323, 324–25 (Tex. Crim. App. 1991) 

(per curiam) (reviewing court may reduce an excessive amount of bail without 

remanding to the trial court); Ex parte Ivey, 594 S.W.2d 98, 100 (Tex. Crim. App. 

[Panel Op.] 1980) (same).

CONCLUSION

The trial court did not err by denying habeas relief on the asserted basis that 

the State was not ready for trial. The trial court did err, however, by holding 

appellant without bond on his charges of capital murder and murder in the first 

degree. We reform the trial court’s order and fix bail at $250,000 for all three of 

appellant’s charged offenses. As reformed, we affirm the trial court’s order 

denying habeas relief.

/s/ Tracy Christopher

Justice

Panel consists of Justices Boyce, Christopher, and Brown.

Publish — Tex. R. App. P. 47.2(b).