No. 04-06-00595-CR
Delivered and Filed February 21, 2007. DO NOT PUBLISH.
Appeal from 341st Judicial District Court, Webb County, Texas, Trial Court No. 2006-CV-60001348-D3, Honorable Elma T. Salinas-Ender, Judge Presiding.
Sitting: SANDEE BRYAN. MARION, Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.
REBECCA SIMMONS, Justice.
Appellant Alfonso Melendez appeals from the trial court's denial of his writ of habeas corpus asserting that the trial court abused its discretion in: (1) failing to reduce his bond to an amount within his ability to pay; and (2) reducing the bonds to $50,000.00 each. Melendez asserts that he should be released on personal recognizance or the bonds should be reduced pursuant to article 17.151 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 17.151 (Vernon Supp. 2006). We reverse the trial court's order with regard to the amount of the reduction on Melendez's writ, and remand the matter to the trial court for further proceedings consistent with this opinion.
Tex. Code Crim. Proc. art. 17.151, Release Because of Delay, provides in 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. . . .
Factual Background
Melendez was arrested on April 25, 2006 and charged with robbery and engaging in organized criminal activity in Webb County, Texas. His bail was set in the amount of $100,000.00 on each count. On August 14, 2006, one hundred and eleven days after his arrest, Melendez petitioned for a writ of habeas corpus, complaining of excessive bail based on his detention for more than ninety days without presentment of an indictment. The writ issued, and after a hearing on August 24, 2006, the trial court granted the writ and reduced the aggregate bond to $100,000.00 ($50,000.00 on each count). Melendez asserts that his bail is still unduly excessive and requests that this court reverse the trial court's order, but does not specify an amount to which the bond should be reduced. Standard of Review
We review a trial court's decision on the reduction of bail for abuse of discretion. Ex parte Dueitt, 529 S.W.2d 531, 532 (Tex.Crim.App. 1975). To determine whether a trial court abused its discretion, we look to whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary and unreasonable. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990) (en banc). Analysis
Article 17.151 provides that a defendant who is detained pending trial "must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial . . . 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. The statute is mandatory. See Rowe v. State, 853 S.W.2d 581, 583 (Tex.Crim.App. 1993) (en banc); Buford v. State, 657 S.W.2d 107, 108-09 (Tex.Crim.App. 1983) (holding that the State cannot be "ready" for trial until indictment or felony information is filed). Additionally, the statute requires the trial court reduce the defendant's bail to "an amount that the record reflects an accused can make in order to effectuate release." Rowe, 853 S.W.2d at 582 n. 1; accord Ex parte Venegas, 116 S.W.3d 160, 162 (Tex.App.-San Antonio 2003, no pet.). Here, where there is no indictment, the State cannot be ready for trial. Venegas, 116 S.W.3d at 162. The State, therefore, was not ready for trial within ninety days of Melendez's detention. Because the State failed to file an appellate brief, we are limited to the record as supplied by Melendez. A review of the writ hearing record reveals the State referred to a separate cause number of a case pending against Melendez. Accordingly, the State argued that article 17.151 does not apply to Melendez. See art. 17.151 § 2(2) (art. 17.151 does not apply to individuals being detained pending trial of another accusation against the defendant as to which the applicable period has not yet elapsed). Yet, the appellate record lacks any evidence of another pending trial. The trial court reduced Melendez's bond at the hearing. The testimony by the defense witnesses at the writ hearing indicates that Melendez could not make two $50,000.00 bonds and the State did not present any evidence to the contrary. Rita Maldonado, Melendez's common law wife, testified that she and Melendez were living together at the time of the arrest. She was earning $9.50 per hour as a legal secretary and worked approximately eight hours a day. As a result of Melendez's incarceration, Maldonado moved back into her parent's home. Maldonado also testified that she had less than $100.00 in her bank account, no money in her purse on the day of the hearing, her credit card was "maxed out," and that she had poor credit as a result of filing bankruptcy. Finally, Maldonado testified that her car payment is $320.00 per month and she has an additional $250.00 in monthly loan payments. Melendez also testified that he did not have any bank accounts, credit cards, or savings accounts, and that he did not own a vehicle or have any money with which to post bond. Accordingly, we must reverse the trial court's order on the writ reducing the bonds to $50,000.00 each and denying Melendez's motion for personal recognizance release pursuant to article 17.151. See Kernahan v. State, 657 S.W.2d 433, 434 (Tex.Crim.App. 1983) (en banc) (holding that when a defendant has no funds available and the State does not indict within 90 days, defendant must be released on a personal recognizance bond). Because the record before us does not reflect what amount of bail, if any, Melendez is able to pay, we remand the matter to the trial court for further proceedings and entry of an order either releasing Melendez on personal bond or reducing his bail to an amount that the trial court determines he is able to pay to effectuate his release. REVERSED AND REMANDED