Opinion filed August 31, 2012

In The

Eleventh Court of Appeals 

__________

No. 11-12-00211-CR

__________

JOSEPH LEE GARNER, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 266th District Court

Erath County, Texas

Trial Court Cause No. CV31736

M E M O R A N D U M O P I N I O N

Joseph Lee Garner filed an application for writ of habeas corpus seeking release because 

of delay. Garner’s application was a pre-indictment application in which he sought to be 

released on personal bond in connection with four felony charges

1

or, alternatively, to have the 

amount of bail reduced to an amount that he could afford. Garner filed the application on 

May 29, 2012, and the trial court heard the matter on June 11, 2012. The trial court entered an 

 

1These charges included one for failing to comply with registration requirements and three for indecency with a child 

by exposure.
2

order granting a portion of the relief requested and reducing the amount of Garner’s bail. Garner 

appeals from that order. We affirm. 

On appeal, Garner complains in a single issue that the trial court abused its discretion in 

failing to release him on a personal recognizance bond in each case because he had been 

incarcerated for more than ninety days without being indicted in any of the four cases and 

because he could not afford bail in any amount. Garner relies upon Article 17.151 of the Code of 

Criminal Procedure to support his contention. TEX. CODE CRIM. PROC. ANN. art. 17.151 (West

Supp. 2012). With respect to release from custody, Article 17.151 provides in relevant part: 

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. art. 17.151, § 1(1). 

The record from the hearing on Garner’s application shows that appellant was arrested 

and jailed on February 15, 2012, and that he remained in jail at the time of the hearing. Garner 

testified regarding his indigence and his inability to post bail. At the end of the hearing, the trial 

court questioned the State about its failure to obtain indictments in these cases. The State 

acknowledged that the ninety-day time frame had elapsed, stated that the delay related to the 

victims being children, stated that it was not opposed to a reduction in the amount of the bonds, 

and informed the trial court that these cases were being presented to the grand jury “on 

Wednesday.”

2

 The trial court ordered that the amount of bail with respect to the indecency 

charges be reduced from $200,000 to $100,000 for each case and that bail be set at $100,000 

with respect to the charge relating to Garner’s failure to comply with the sex offender 

registration requirements. 

Because indictments had not been returned, the State was not ready for trial within the 

ninety-day period provided for in Article 17.151. Article 17.151, thus, seems to mandate that 

Garner be released from jail. See Rowe v. State, 853 S.W.2d 581 (Tex. Crim. App. 1993). 

However, a trial court, in making its determination under Article 17.151, must also consider the

 

2We note that the hearing was held on Monday, June 11, 2012, and that the grand jury returned indictments on June 13, 

2012, for at least three of the four charges for which Garner had been arrested and for which he was in custody. The clerk’s

record contains three separate indictments for the offense of indecency with a child by exposure. 
3

safety of the victims and the community. Ex parte Robinson, No. 13-11-138-CR, 2012 WL 

1255188 (Tex. App.—Corpus Christi April 12, 2012, pet. ref’d) (not designated for publication); 

Ex parte Matthews, 327 S.W.3d 884 (Tex. App.—Beaumont 2010, no pet.). As noted by the 

courts in Robinson and Matthews, Article 17.15 of the Code of Criminal Procedure was amended 

subsequent to the decision in Rowe and, as amended, places a duty upon trial courts setting bail 

to consider not only the ability of the defendant to make bail, but also the “nature of the offense 

and the circumstances under which it was committed” and the “future safety of a victim of the 

alleged offense and the community.” TEX. CODE CRIM. PROC. ANN. art. 17.15 (West 2005); see

Ex parte Robinson, 2012 WL 1255188, at *3–4; Ex parte Matthews, 327 S.W.3d at 887–88. 

At the hearing on Garner’s application for writ of habeas corpus, the State acknowledged 

that a reduction in the amount of the bonds would be appropriate, but the State asked “for the 

protection of the -- the public, particularly . . . the nature of the victims that we have alleged in 

these warrants . . . that a PR bond or personal bond would be inappropriate under the 

circumstances.” The trial court observed, “I do know there’s some danger because Mr. Garner 

was already convicted as a sex offender, which would -- precipitated the registration 

requirements to start with.” The trial court expressed concern because the charges for indecency 

by exposure allegedly occurred with three other children after Garner had already been convicted 

of a sex offense. The trial court’s concern for the safety of the community and the victims was 

reasonable, and we cannot say that the trial court abused its discretion when it set bail at 

$100,000 in light of Article 17.15. We overrule Garner’s sole issue on appeal. 

The order of the trial court is affirmed. 

PER CURIAM

August 31, 2012

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Kalenak, J.