VERA ELIZABETH GUTHRIE-NAIL, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed October 21, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-10-01003-CR
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VERA ELIZABETH GUTHRIE-NAIL, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-80455-08
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MEMORANDUM OPINION
Before Justices O'Neill, Richter, and Lang-Miers
Opinion By Justice Richter
        Vera Elizabeth Guthrie-Nail has been in jail awaiting trial on a charge of capital murder since January 2008. On August 3, 2010, she filed a pre-trial application for writ of habeas corpus seeking to be released from custody. Guthrie-Nail based her application on Texas Code of Criminal Procedure article 17.151 which mandates that a defendant who is detained in jail pending trial of a felony be released either on personal bond or by reducing the amount of bail required if the State is not ready for trial within ninety days of detention. See Tex. Code Crim. Proc. Ann. art. 17.151, § 1(1) (West Supp. 2010); Rowe v. State, 853 S.W.2d 581, 582 (Tex. Crim. App. 1993). Three days later, following a hearing in which Guthrie-Nail's mother and a friend testified, the trial court denied relief. On appeal, Guthrie-Nail asserts the court abused its discretion in denying relief because (1) the $1,000,000 bail set is excessive in violation of the Eighth Amendment to the United States Constitution and article one of the Texas Constitution; and (2) the State was not ready for trial within ninety days of her detention. We do not address the merits of Guthrie-Nail's first argument, that the bail is excessive, because she did not make that argument at the hearing.   See Footnote 1  See Tex. R. App. P. 33.1(a). And, because the record shows the State was ready within the prescribed period, we reject her second argument and affirm the trial court's order.
        We review a trial court's ruling on a claim for habeas relief based on article 17.151 under an abuse of discretion standard. Ex parte Craft, 301 S.W.3d 447, 448 (Tex. App.-Fort Worth 2009, no pet.) (mem. op. on reh'g) (per curiam); see also Jones v. State, 803 S.W.2d 712, 719 (Tex. Crim. App. 1991). In conducting our review, we view the evidence in the light most favorable to the ruling and will reverse only if the ruling falls outside the zone of reasonable disagreement. Ex parte Craft, 301 S.W.3d at 448-49; see Ex parte Henson, 131 S.W.3d 645, 647 (Tex. App.-Texarkana 2004, no pet.) (citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). When, as here, a defendant complains the State was not ready for trial within the statutory time period, the State bears the burden of making a prima facie showing that it was. See Jones, 803 S.W.2d at 717; Ex parte Venegas, 116 S.W.3d 160, 164 (Tex. App.-San Antonio 2003, no pet.). The State may satisfy its burden by either announcing ready within the allotted time or by announcing retrospectively that it had been ready as required. Jones, 803 S.W.2d at 717; Ex parte Venegas, 116 S.W.3d at 164. Once the State has made its prima facie showing of readiness, the burden shifts to the defendant to rebut it. Jones, 803 S.W.2d at 718; Ramos v. State, 89 S.W.3d 122, 126 (Tex. App.-Corpus Christi 2002, no pet.).
        The record before us contains a “Speedy Trial Waiver” form signed by both the prosecutor and Guthrie-Nail's counsel that reflects the State announced it was ready as early as March 18, 2008, well within ninety days of Guthrie-Nail's arrest. Guthrie-Nail did not rebut this showing at the hearing. To the contrary, the record reflects she readily admitted she had not yet been tried because she was awaiting the trial of a co-defendant. Based on this record, we conclude the trial court did not abuse its discretion in denying the relief requested, pursuant to article 17.151.
        We affirm the trial court's order.
 
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
101003F.U05
 
Footnote 1 The trial court's order recites it heard Guthrie-Nail's “application for a pre- trial writ of habeas corpus and motion to reduce bond pending trial.” Guthrie-Nail filed a motion for reduction of bond in November 2009. That motion was originally set for hearing on December 4, 2009 and reset twice more, with the last setting on January 29, 2010. The record does not reflect the motion was heard on January 29 as scheduled or that it was reset. The trial judge began the August 2010 hearing on the writ application by stating that “on my docket . . . [is an] application for Pre-trial Writ of Habeas Corpus pursuant to Article 17.151 of the Code of Criminal Procedure.” At the conclusion of the testimony and after asking the prosecutor if the State was ready for trial and its intentions with respect to a co-defendant who had not yet been tried, the trial judge again stated that “this is a request . . . pursuant to 151.” At no point during the hearing did Guthrie-Nail seek to correct the judge with respect to the nature of the hearing or argue the bond was excessive.