Aaron L. Johnson v. The State of Texas--Appeal from 361st District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-92-007-CR

AARON L. JOHNSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 361st District Court

Brazos County, Texas

Trial Court # 20,803-361

O P I N I O N

On July 20, 1991, a magistrate informed Aaron Johnson that he was charged with six counts of aggravated assault with a deadly weapon and set his bail at $60,000 i.e., $10,000 per count. Johnson filed an oath of indigency and an attorney was appointed to represent him. On October 29, Johnson filed a Motion for Release Because of Delay since he had been detained for over 90 days and the State was not ready for trial. See Tex. Code Crim. Proc. Ann. art. 17.151, 1(1) (Vernon Supp. 1992). // A district judge set Johnson's bail at $7500 on November 15. A surety executed a bond and Johnson was released from jail.

Subsequently, the case was transferred to another district court. On December 3, the court held a "status of bond" hearing. Apparently concluding that the other district judge only intended to reduce bail on the first count, the court set bail on the remaining five counts at $50,000 i.e., $10,000 per count. Johnson, who was unable to make the additional $50,000 bail, was remanded back to custody.

Johnson filed an Application for Writ of Habeas Corpus on December 6. An unsigned Order Denying Relief appears in the transcript with the notation "order already signed. 12-20-91." On December 20, the court reduced Johnson's bail to $30,000 i.e., $5000 per count. Johnson appeals from the denial of his application for a writ of habeas corpus. We reverse the judgment and render a judgment that bail be set at $7500.

Article 17.151 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 . . . 90 days from the commencement of his detention if he is accused of a felony.

Id. (emphasis added). When Johnson filed his application for a writ of habeas corpus, he was entitled to be released on a personal bond or a surety bond he could make. See Jones v. State, 803 S.W.2d 712, 716-17 (Tex. Crim. App. 1991).

Although on December 20 the court "reduc[ed] the amount of bail required" from $60,000 to $30,000, it did not set bail in an amount Johnson could make. Thus, it effectively denied Johnson's requested relief. Because Johnson was entitled to be released on a personal bond or a surety bond he could make, we reverse the judgment. See id. The record indicates that Johnson can make a $7500 bond. Accordingly, we render the judgment the trial court should have entered that Johnson be released on a $7500 surety bond. See Tex. R. App. P. 80(b)(3); Ex parte Latham, 73 Tex. Crim. 144, 164 S.W. 377, 378 (1914).

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Reversed and rendered

Opinion delivered and filed April 15, 1992

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