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116 S.W.3d 160 116 S.W.3d 160

Page I

(Cite as:

II6

S.W-3d 160)

SBtute providing for release of prisoners in case of Ex parte Venegas Tex.App.-San Antonio,2003.
Court of Appeals of Texas,San Antonio.

EX PARTE Miguel Angel VENEGAS.

Nos. 04-03-00071 -CR, M-0$002 l3-CR.

mandatory terms; if the State is not ready for trial within 90 days after commencement of detention for a felony, the accused must be released either on a personal bond or by reducing ths amount of bail required. Vemon's Ann.Texas C.C,P. art. 17.151. [2] Infants
211 Infants

delay

in

bringing them

to trial is

couched in

July 16,2003.
Rehearing Ovemrled Aug. 4, 2003.

211

6E.7(9

Defendant was accused

of committing murder

and

theft at a time when he was a juvenile. Following affirmance of the juvenile courl's cerrification oider transferring the charges to the criminal district court, 88 S,W.3d 327, defendant filed motions tci be released on personal bond or for reduction of the amount of bond. The 341st Judicial District Court, Webb County, Fred Shannon, J. (Assigrred), dedied the motions. Defendant appealed. The Court o{ Appeals, Karen Angelini, J., held that: (1) 90-day statutory period for determining if defendant was
entitled to be released as a result of delay was lnot tolled during pndency of appeal of certificaiion order, and (2) State could not establish that it ias ready for trial within the 90-day period because no indictrnent wm returned within the period.
Reversed and remandedWest Headnotes 40
i

21lYI Crimes 2l lk68 Rights

Prosecutions

and Privileges uN

to

2l

lk6E.7 Waiver of Juvenile

Court

Jurisdiction; Transfer to Adult Court

2i 1k68.7(5)
Transfer- Most Cited Cases

k.

Proceedings After

Infants

211

6E.8

211 Infants

21lVI Crimes
Prosecutions

211k68 Rights

and

Privileges

as

to

lll Bail49 49 Bail

49U

State was not required to await outcome of defendant's inrcrlocutory appeal of transfer of murder and theft charges against him from juvenile court to criminal district court before proceeding to trial in district court, and thus 90-day poriod for
determining

211k68.8 k. Review. Most Cited Cases

result

49k40 k. Right to Release Without Bail' Most Cited Cases

Criminal Prosecutions

if defendant was entitled to release as a delay was not tolled during pendency of defendant's appeal. Vemon's Ann.Texas C.C.P. art.

of

17.151.

Beil49
49 Bail

[3] Criminal Law

53
110 Criminal Law

ll0

577.8(1)

49II In Criminal Prosecutions 49k50 Amount of Bail 49k53 k. lncrease or Reduction. Most
Cited Cases

l10XVm Time of Trial l l0XV[I(B) Decisions Subsequent to

I10k577.8 ComPutarion

1966

110k577,8(i)
Cited Cases

k. In

General' Most

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116 S.W.3d 160

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Page 2 116 S.W3d 160

(Cite as: 116 S.W.3d 160)

Where there
[4] Infants
211 Infants

is no indicftrent, the
68.2

announce ready for trial.

State cannot

V.T.C.A., Family Code g 56.01(g).

[6] Bail
49 BaiI

211

a9

40

2l IVI Crimes

211k6E tuehls
hosecutions

and

Privileges zui

to

Cited Cases

49II In Criminal Prosecutions 49k40 k. R.ight ro Release Without Bail. Most

211k68.2

k.

Stafurory provisions

Rules. Most Cited Cases

and

Bait

49

53

Legislative changes preventing juveniles from fppealing transfers of criminal charges tom juvenile court to district court until after ionviction did not apply to conduct occurring before eff&tive date of changes, and thus defendant whose allesed conduct took place several years before legisl[five changes took effect could file interlocutoqf aJpeal challenging tnansfer of murder and theft "harge, against him. Vemon's Ann.Texas C.C.p- u.t. 44.47(b, c); V.T.C.A., Famity Code $$ 54.02, 56.01GXIXA) (199a); AcB t991, 72nd LegJ, p. 2!66, gh.680, $ 1; Acrs 1995, 74th Leg., p.1,5g'1, ch.262,$ I06(a). [5llnfants

49 Bail

Cited Cases State could not establish that it was ready for trial within 90-day statutory period providing for release

49II In Criminal Prosecutions 49k50 Amount of Bail 49k53 k. Increase or Reduction. Most

returned within the 90 days. Vemon's Ann.Texas C.C.P. art. 11.151.

bond in case of delay, even though it retrospectively announced ready for kial, where no indicfinent was

of prisoners on personal recopizance or

reduced

2lt

68.7(5)

[7lBail49
49 Bail

40

2l I Infants 21 I Vl Crimes

211k68 fughB
Prosecutions

and privileges as

49II In Criminal Prosecutions 49k40 k. Right to Release Without Bail. Most

to

Cited Cases

211k68.7 Waiver
Transfer. Most Cited Cases

Jurisdiction; Transfer to Adult Court

of

Juvenile Court

Bail49
49 Bail

53

211k68.7(5)

k.

proceedings Alter

Prohibition

314

5(4)

49II In Criminal Prosecutions 49k50 Amount of Bail 49k53 k. Increase or Reduction. Most
Cited Cases

314 Prohibition

314I Nature and Grounds

Judges, and Judicial Offrcers

3l4k1 Acts an-d proceedings

314k5(4)

k.

Proceedings

of Coults, in Crimiirat

Prosecutions. Most Cited Cases

petitioner challenging

tansferring criminal charges from juvenile court to district court is not entitled to a writ of prohibitipn preventing the district court frorn proceeding ultil the appeal of tle certification order is final.

certification order

ready within the allotted time or by announcing retrospectively that it had been ready within the

bond or for reduction of bond in case of delay in b.ingtng them to trial, the State has &e burden to make a prima facie showing that it was ready; the State may satisry its burden either by announcing

When a defendant complains the State was not ready within the 90-day period provided for by statute requiring release of prisoners on personal

alloffed time. Vernon's Ann.Texas C.C.p.

17.151.

art.

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I 16

S.W.3d 160

Page 3

116 S.W.3d 160

(Cite as: 116 S.W.3d 160)

*161 Appeal ftom 34ist Judicial District Court, Webb County, Texas; Fred Shannon, Judge
Presiding.Nl

transfer order, Venegas had been serving a sentence for escape.N2 As such, he was transferred from the Webb County Jail back to the Texm Departrnent

FNl. Sitting by assigrrment

Juan Ramon Flores, Law Office of Juan Rauoon Flores, Jose L. Arce, Laredo, for appellant.

Criminal Justice-Institutional Division to complete his sentence for escape. On November 15, 2002, Venegas completed his sentence, was released from prison, and returned to the Webb
total

of

Jose

M. Rubio, Jr., Webb Counry Dist. Atty',

County Jail. On December 13, 2002, the trial court set bond at $300,000 for each murder charge, for a In January of 2003, *162

of

$900,000.

Roberto Balli, Asst. Dist. Atty., for appellee.

Venegas filed

a motion to

reduce the bond. On

Sitting: ALMA L. LOPEZ, Chief Justice, KAREN ANGELIM, Justice, SANDEE BRYAN MARION,
Justice.

January l'7,2003, the trial court held an evidentiary hearing. At the conclusion of the hearing, the trial

court denied Venegas's request

03-0007I-CR cotrtests

to

reduce the
his

Opinion by: KAREN ANGELINI, Justice. Ir4iguel Angel Venegas complains that the trial court abused its discretion in denying his motion for bond punuant to article 17.151 of the Texas Code

amotmt of the bond and ordered that the amount of the bond remain at $900,000. Venegas's appeal in

this order denying

request to reduce the amount of the bond'

of Criminal Procedure and in denying his motion to reduce his bond pursuant to article 17.15. Because Venegas has the right to be released on personal recogrizance or reduced bond pursuant to ar(icle
17.151, we reverse and remand.

FN2. Shortly after allegedly murder, Venegas fled to

committing MonteneY,

Mexico. Years later, he was apprehended was tried and convicted of the offense of
escape.

and retumed to the United States where he

Background

Venegas is accused of committing murder and theft

November 21, 1974, Venegas was sixteen years old at the time of the offense. Because Venegas allegedly csmmitted the crimes when he was a " chili," see Tex. Fam.Code Ann. $ 51,02Q) (Vernon 2002), the juvenile court had exclusive jurisdiction

on January 18, 1991. Having been bom

on

;i thi "*6. sr, d $ 51.04(a). on Julv 14, 2001, the juvenile court waived its jurisdiction and
u*ansiened Venegas to the criminal district court' the .um" order, the juvenile court See id. $ 54.02. remanded Venegas to the Webb County Shdritr without bond. Venegas filed an interlocumry appeal, contesting the trial court's certification' V/e aifirrred the trial court's certification. In re M'A)V', 8E S.W.3d 327 (Tex.App.-San A-ntonio 2002' pel

Ii

On February 14,2003, Venegas filed a "Motion to be Released on Personal Bond or for Reduction of Bond," arguing that because he had been detained for more than ninety days and because the State was not ready for trial, he was entitled to relief under article iZ.tSt of the Texas Code of Criminal Procedure. To this point, Venegas had not been indicted. On February 25, 2003, the grand jury returned a bill of indictnen! charging Venegas with three counts of murder and one count of theft' On March 5, 2003, the trial court denied Venegas's motion. Venegas's appeal in 03-00213-CR contests this order denying his motion under article 17' 151'

Article 17.151 Section

denied). The supreme court denied VenegPs's p"ti;d for discretionary review, - and the ftnal
mandate was issued on February 6, 2003'

1 of

article 17.151, entitled

"Release
an

because ofdelaY," Provides that a defendant who is detained in jail pending trial of

accusation against him must be released eitler on

On July 14,

2AO1,

the date of the juvenile court's

@ 2007 Thomson/Wes!.

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by reducing the amount of

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116 S.W.3d 160

116 S.W.3d 160

Page 4

(Cite as:

lf6

S.W.3d 160)

if the Strte 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 ...
required,

appeal.

*163 This issue turns on whether the State was

all,owed

Tex.Code Crim. Proc. Ann' art. 17.151, $ I (Vemon Supp.2003). Article 17.15 i, howeYer, does not apply to a defendant who is:(l) serving a
sentence of imprisonment he is serving that sentence;

to proceed in its prosecution of Venegas was pending. Under law, juvenile defendants may no longer current

while

Venegas's appeal

for another offense while

appeal from cerlification proceedings prior to being finally convicted as an adult. See Tex' Fam.Code Ann. $ 56.01(c) (Yernon 2002); Small v' State, 23

accusation against him as to which the applicqble period has not yet elapsed; or (3) incompetent to stand trial, during the period of his incompetence.

being detained pending trial

of

another

Id- rlrt. 17.151, $ 2. Thus, the period of time that

Venegas was serving his sentence for escape did not count against the State for purposes of article 1 7. I 5 I

S.W.3d 549, 550 (Iex.App.-Houston [lst Dist.] 2000, pet. refd); Miller v. State, 981 S.W.2d 447' 449 (tex.App.-Texarkana 1998, pet. refd). Prior to 1995, however, section 56.01(cXlXA) of the Famity Code permitted a juvenile to file an appeal from the juvenile court's order transferring the juvenile to criminal district court. See Act of May 23, 1ggl,72ndLeg., R'S., ch- 680, $ 1, 1991 Tex. Gen. Laws 2466,2466: In re M-A-ll., 88 S.W.3d at 331 n.2. Former section 56.01(cXl )(A) provided:
(c) An appeal may be taken:

(1) by oi-on behalf of a child from an order entered

[] Article l7.l5l is couched in mandatory termsSi" Ex parte Ancira, 942 S.W.2d 46, 47

undefl

(Tex.App.-Houston [l4th Dist.] 1997, no pet-)- If the State is not ready for trial within ninety days after commencement of detention for a felony, the
accused must be released either on a personal bond

(A) Section 54.02 of this code respecting transfer of the child to criminal court for prosecution as an
adult.

or by reducing the amount of bail required. Rowe v' State, 853 S.V/.zd 581, 582 (Tex-Crim.App.1993).

t2lt3] We must first decide on what date Venegas's aetention began for purposes of article 17'151' According to Venegas, his detention began 9n Novembei 15, 2002, the date on which lhe completed his sentence for escape and \ilas tranifened to the Webb County Jail. Ninety days from that date is February 13, 2003. Venegas rvas not indicted until February 25, 2003. Where there is no indictnen! the State cannot announce ready for trial. Ex parte McNeil, '172 S.W'2d 488, 489 (Tex.App.-Houston [ist Dist-] 1989, no pet'); PPte ;. stii, s92 s.w.2d 620, 62r (Tex-crim.App' that lPanel Op.] I9E0). The State, however, argues l5th is not the correct date; according to iqovember the State, the ninety days began to run on Februpry 6, 2A03, the date on which, with respect lto Vanagr.'. appeal of the trial court's certification, the frnal ?andate was issued. Thus, the State argrles t[at Ae ninety days was tolled during Venegds's
I

for appeals of section 54.02 transfers from juvenile court to district court. See Tex. Fam.Code Ann. $ 56'01(c) (Vernon 2002). ln 1995, the Legislature amanded th" Family Code and the Code of Criminai Procedure to permit an appeal of a transfer order
Section 56.01(c) no longer provides

only in conjrmition with an appeal of the conviction

of ihe offense for which a juvenile was transferred' See Actof May 21,1995'74thLeg., R.S', ch' 262, $ 48, 1gg5 Tex- Gen. Laws 2517, 2584 (codified at Tex.Code Crim. Proc. Ann. art. 44'47(b) (Vernon Supp.2003)); In re M.A.L, 88 S.W'3d at 331 n' 2'

Under the new amendments, an appeal of a transfer order is a criminal matter, governed by the Code of Criminal Procedure and the Rules of Appellate

Procedure applicable to criminal Gases' See Tex.Code Crlm. proc' Ann. art' M'4'1(c) (Vemon Supp.2003); In re M.A.f4, 88 S'W'3d at 331 n' 2' Thui, because a juvenile can no longer ap-peal the juvenile court's certification until after his tonviction, the issue before us would be moot under the current rules, as there can no Ionger be a
pending apPeal.

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116 S.W.3d 160 116 S.W.3d 160

Page 5

(Cite as: 116 S.W.3d 160)

1995 legislative change, however, does not appfy to conduci occurring before January -1, -lP6: A"t of May 27,lg95,74thlx;g, R.S', ch. 262, $

l4l

fte

i",

106(a), 1995 Tex. Gen. Laws 2517, 2591' Because Venegas is accused of committing murder and theft on lan ary 18, 1991, the former rules apply. Under the former rules, a juvenile,could, biioie his conviction, appeal a certification order.

(Tex.Civ.App.-Dallas 1978, no writ), the petitioner iought a writ of prohibition preventing the district court fro* proceeding until the interlocutory appeal had been decided in the court of civil appeals. The court of civil appeals denied ttre petition on the ground that the tial in the district court would not

tt..f.."

with its jurisdiction. Id. T\e court statd

that although the

In

(Tex.Crim.App.1914), the juvenile court wai{'ed jurisdiction and transferred the appellant to dis*ict tourt for criminal proceedings. According to phe couG the appellant's specific contention is that this Juvenile
I

Moreno

v.

State, 511 S'W-2d 273, 274

[p]etitionei rccognizes that section 56.01(g) of the ttrat an ffexas Family] Code expressly provides juvenile does not suspend the order of the appeal "burtif the criminal trial results in a conviction and that we should later reverse the transfer order of the juvenile courL the conviction would be vacated' "Sh. *goo, however, that one of the principal pu.pot"i of the co'de provisions concerning juvenile "delinquents is to avoid the taint of criminality and that tlis purpose would be defeated by a criminal trial, even tirough the conviction should later be
vacated.

*l*.,

that court so onders, and she concedes

iortt C..tinlation
'not

Order was appealed to the Cdurt of Civil Appeals; that appellant's trial in the District

Court was-Conducted prior to the fural disposition of said app"at; and that therefore, the Certifrcation

Order

being final, the District Court lacked

jurisdiction.

Id. The court of

courts

rejected that-an appeal of.the appellanfs contention, holding

criminal appeals

certification order does not deprive the criminal

suspend criminal proceedings pending appeal' Id'

of jurisdiction and does not,

therefore

a1'274-75. The iourt noted that section 21 of article 2338-l provides that an appeal by any
person aggieved to the Court

Id. The court concluded that "this possible taint of criminality does not authorize issuance of a writ of prohibition." Id. The court explained that the writ -of pmhibition may be used to prvent interference Uy a triat court wi$ an appellate court.in deciding a plnding appeal or to PreYent a trial court from

rrt"rtuilin!^ suits which would

of Civil Appeals shall not tutpinO the order of the Juvenile Court' This article ieferred to by the court of criminal app(als has since *164 been repealed. However, section 56.01(9) N3 similarly provides that "[a]n apqeal does n-ot suspend the order of the juvenile court, nor does it release the child from the custody of frat court or of &e person, institution, or agency to whose care the child is committed, unless the Tex' Fam'Code Apn' iuvenile court so orders." See
$ 56.01(g) (Vernon 2002)'

relitigate already settled by the appeilate court controversies

regardless of the result of the criminal trial, issuance

Id. The court noted that "since [its] order on the interlocutory appeal would be givgn effect

of the writ is not necessary to

jurisdiction."
1d.

enforce [its]

Therefore, the State could have proceeded

orosecution of

with its Venegas while Venegas was appealing the certification' Because the State cfuH nive proceeded with its prosecution' the oinity Auy period began to run on Novtmber 15' ioOZ. Uri"g that date, Venegas was indicted more
than ninetY daYs later-

FN3. The 1995 amendments did

change the language in subsection (g)'

not

to a rlnit [5] Additionally, a petitioner is not entitled

of prohibition- preventing th-e - district coSt from ;;J;;di"c untiithe uppe;l of the certification order S'W'2d 251,251
is-finuf.

t,

f-f.S. v-'Wade,565

we determine t6]t7l The State contends that even if 75,2A02 was the triggering date for tt ui Nol "*Uer potpot"t of arriole 17.151, it retrospectively 'unr'ounceO ready for trial on March 6' 2003' Wn"r, as here, a clefendant complains the State was

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l r6 s.w.3d 160
I

Page 6

l6 S.W.3d

160

(Cite as: 1f6 S.W.3d 1@) not ready within the statutory time period, the State has the burden to rnake a prima facie showing that it was ready. See Jones v. State, 803 S.W.2d 712' 717 (Tex.Crim.App.1991). The State may satisf,t its burden either by announcing ready within rthe allotted time or by announcing retrospectively that it had been ready within the allotted ame. Id' Ho*.ntr, where tlere is no indicmrenq the State cannot announce ready for trial. See Ax pLrte McNeil, 772 S.W.2d 488, 489 (Tex.App.-Houston

[1st Dist.] 1989, no pet.); Pate v. Stat? !:?. i.w.za sio, azt (fex.Crim.App. [Panel op.] 1q80) . H"r", no' indictrnent was ieturned within the

ninety days. Therefore, the State was not ready for

trial'within ninety days of Venegas's detendon' Pursuant to article tZ.tSt, the triil court has [wo
S.W.2d at 582. This issue is sustained'

options: release Venegas on personal-*165 bond or ."do." the amount ofUait required. See Rowe, 853 Having sustained Venegas's first issue, we need not
reach his second issue.

Conclusion
Because the State was not ready for trial wiitrin ninety aays of Venegas's detention, we reverse the order delying Venegas's article 17lt51

riJ t"r#.

mofion, and remand to the trial court for fudher p.o".dingt, including entry of-an order to release ?.o"g"" Jith", o, p"ior.lio.,d or by reducin! the
amount of bail required.

Ex parte Venegas
r

t6 s.w.3d

160

END OFDOCUMENT

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