Ex Parte K.G.

NUMBERS 13-20-00287-CR & 13-20-00288-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

EX PARTE K.G.

On appeal from the 19th District Court
of McLennan County, Texas.

MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Benavides

Appellant Krisean Gibson was arrested on the same day for the separate offenses

of murder, a first-degree felony, and aggravated assault with a deadly weapon, a second-

degree felony. See TEX. PENAL CODE ANN. §§ 19.02, 22.02(a)(2). Appellant subsequently

filed two applications for habeas relief, arguing he was entitled to be released on personal

recognizance bonds because the State had failed to indict him within ninety days from

the date of his detention. See TEX. CODE CRIM. PRO. ANN. art. 17.151, § 1(1). Moreover,

appellant argued that various emergency orders issued by the Governor of Texas, the
Supreme Court of Texas, and the McLennan County District Courts that either suspended

(Governor) or extended (District Courts) the ninety-day deadline or modified the

procedures for grand jury deliberations (Supreme Court) due to the COVID-19 pandemic

were unconstitutional. The trial court denied both applications. In this consolidated

appeal, appellant maintains that these emergency orders were unconstitutional, and

therefore, the trial court abused its discretion when it failed to order his release on

personal bonds.1 We affirm.

I. BACKGROUND

On February 21, 2020, three arrest warrants were executed on appellant: the first

was for an alleged murder that occurred on November 1, 2019, the second was for an

alleged aggravated assault with a deadly weapon that occurred on November 19, 2019,

and the third was on a motion to revoke appellant’s community supervision on a prior

aggravated robbery charge. His bonds were set at $300k for the murder allegation and

$150k for the aggravated assault allegation. No bond was set on the motion to revoke.

On May 22, 2020, appellant filed his applications for habeas relief, alleging that

more than ninety days had passed since the date of his detention and that he had not

been lawfully indicted on either new offense.2 Anticipating the State’s reliance on the

1 This case is before the Court on transfer from the Tenth Court of Appeals in Waco pursuant to a

docket-equalization order by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
2 In particular, appellant alleged that he had not been indicted on the aggravated assault offense,
and although he had been indicted within ninety days on the murder offense, the indictment was void
because only six members of the grand jury, less than the nine members necessary for a quorum, met in
person while the other six attended by videoconference. See TEX. CONST. art. 13, § 13 (providing that grand
juries “in the District Courts shall be composed of twelve persons . . . but nine members of a grand jury
shall be a quorum to transact business and present bills”). According to appellant, the plain meaning of
“quorum” requires a physical, not virtual, presence, and therefore, the Texas Supreme Court’s Twelfth
Emergency Order was unconstitutional. See Twelfth Emergency Order Regarding COVID-19 State of
Disaster, __ S.W.3d __, __, 2020 WL 63906519, at *1 (Tex. 2020) (allowing “grand juror[s] . . . to participate
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emergency orders, appellant set forth various constitutional arguments against each

order. Both applications requested that the trial court “grant this Application and order the

Sheriff of McLennan County to release [appellant on] the personal bond to which he is

entitled under TEX. CODE CRIM. PROC. 17.151.” Appellant did not alternatively request a

bond reduction under Article 17.151. See TEX. CODE CRIM. PRO. ANN. art. 17.151, § 1.

The trial court held a consolidated hearing on June 12, 2020. In addition to

defending the constitutionality of the emergency orders, the State argued an exception to

Article 17.151 applied because appellant was also being lawfully detained on the motion

to revoke his community supervision. See id. art. 17.151, § 2(2). It was undisputed at the

hearing that the motion to revoke was pending, and that appellant had not filed a motion

requesting a hearing on the matter. See id. art. 42A.751(d). The trial court denied the

applications and issued findings of fact and conclusions of law. In addition to concluding

that the emergency orders were constitutional—and therefore, the State had not violated

Article 17.151—the trial court also determined that Article 17.151 did not apply because

appellant was being lawfully detained on the motion to revoke. These consolidated

appeals ensued.

II. STANDARD OF REVIEW

We review a trial court’s order denying a pretrial habeas corpus application for an

abuse of discretion. Ex parte Gill, 413 S.W.3d 425, 428 (Tex. Crim. App. 2013). A trial

court abuses its discretion when it acts without reference to guiding rules and principles.

State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016).

remotely, such as by teleconferencing, videoconferencing, or other means”).
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 Additionally, the operation of Article 17.151 is a question of statutory construction.

Statutory construction presents a question of law that we review de novo. Stahmann v.

State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020). When interpreting a statute’s

language, we read words and phrases in context and construe them according to normal

rules of grammar and usage. Id. We give effect to each word, phrase, clause, and

sentence if reasonably possible. Id. If a statute’s language is plain, we effectuate that

plain language so long as doing so does not lead to absurd results. Id.

III. ANALYSIS

In what we construe as a single issue, appellant argues that he was entitled to be

released on personal bonds under Article 17.151 because the emergency orders relied

on by the State to alter the nature of grand jury proceedings and the requirements of

Article 17.151 were unconstitutional.

A. Waiver

As a threshold matter, the State contends that appellant waived his right to

appellate review because he failed to address each basis for the trial court’s ruling in his

briefs, namely, the trial court’s conclusion that an exception to Article 17.151 applied.

Instead, the State points out that appellant only addressed the constitutionality of the

emergency orders in his briefs, even though the trial court’s findings of fact and

conclusions of law expressly included this additional ground for its ruling. In a post-

submission brief, appellant characterizes the statutory-exception ground as the State’s

“counter-issue” for affirming the trial court’s orders and says that he “addressed the newly

framed and raised counter-issue by the [State].” We note, however, that the only time

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appellant “addressed” the merits of this additional ground for the trial court’s ruling was

by responding to a question during oral argument. Nevertheless, even if we assume that

no waiver occurred, we conclude that the trial court did not abuse its discretion by denying

appellant’s applications for writ of habeas corpus.

B. Judicial Restraint

As another preliminary matter, the State urges us to address the statutory-

exception ground first because it does not require us to resolve any constitutional

questions. Judicial restraint requires us to avoid deciding constitutional questions when

an issue can be resolved on non-constitutional grounds. See, e.g., In re B.L.D., 113

S.W.3d 340, 349 (Tex. 2003) (“As a rule, we only decide constitutional questions when

we cannot resolve issues on nonconstitutional grounds.”); Jimenez v. State, 32 S.W.3d

233, 239 n.23 (Tex. Crim. App. 2000) (“[C]onstitutional issues should not be addressed if

the case can be resolved on nonconstitutional grounds.”). Because the statutory-

exception ground is dispositive, we address it first and do not reach the constitutionality

of the various emergency orders.

C. Appellant was Lawfully Restrained on the Pending Motion to Revoke

Texas law provides that at any time during a period of community supervision, the

judge may issue a warrant for an alleged violation of any condition of community

supervision and cause the defendant to be arrested. TEX. CODE CRIM. PRO. ANN. art.

42A.751(b). When a defendant is arrested for an alleged violation of a condition of

community supervision, only the judge who ordered the arrest may authorize the

defendant’s release on bail. Id. art. 42A.751(c).

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 If the defendant has not been released on bail as permitted under
Subsection (c), on motion by the defendant, the judge who ordered the
arrest for the alleged violation of a condition of community supervision shall
cause the defendant to be brought before the judge for a hearing on the
alleged violation within 20 days of the date the motion is filed. After a hearing
without a jury, the judge may continue, extend, modify, or revoke the
community supervision.

TEX. CODE CRIM. PRO. ANN. art. 42A.751(d). As the Texas Court of Criminal Appeals has

explained, this twenty-day deadline runs from the date the defendant files his motion for

a hearing, not from the date the State files its motion to revoke. Aguilar v. State, 621

S.W.2d 781, 783–84 (Tex. Crim. App. 1981) (interpreting identical language under a

former statute); see also In re Allen, No. 03-21-00138-CV, 2021 WL 1244671, at *1 (Tex.

App.—Austin Apr. 2, 2021, no pet.) (mem. op., not designated for publication) (“Article

42A.751 only requires a trial court to hold a hearing on the alleged violation of a condition

of community supervision within 20 days of the defendant filing a motion requesting the

hearing.”). Thus, the right to a speedy revocation hearing is only “triggered” by the

defendant’s request. Aguilar, 621 S.W.2d at 784 (“When such a request is made the trial

court shall cause the probationer to be brought before it within twenty days, provided that

the probationer has not been released.”).

Under Article 17.151, a defendant being detained on an accusation of a felony

“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.” TEX. CODE CRIM. PRO. ANN. art.

17.151, § 1(1). “The State cannot announce ready for trial when there is no indictment.”

Ex parte Castellano, 321 S.W.3d 760, 763 (Tex. App.—Fort Worth 2010, no pet.).

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Accordingly, “the existence of a charging instrument is an element of State

preparedness.” Kernahan v. State, 657 S.W.2d 433, 434 (Tex. Crim. App. 1983).

However, Article 17.151 does “not apply to a defendant who is . . . being detained pending

trial of another accusation against the defendant as to which the applicable period has

not yet lapsed.” TEX. CODE CRIM. PRO. ANN. art. 17.151, § 2(1).

Here, the State argued, and the trial court agreed, that the motion to revoke

constituted “another accusation” against appellant for which he was being detained

“pending trial” and that the “applicable period” had not expired because appellant had

failed to invoke his right to a speedy revocation hearing under Article 42A.751(d). See id.

arts. 17.151, § 2(2), 42A.751(d). With respect to this ground for denying appellant’s

applications, the trial court made the following findings and conclusions:

24. [Appellant’s] detention on the Motion to Revoke Probation for
Aggravated Robbery in Cause Number 2017-954-C1 constitutes
“another allegation” pursuant to Article 17.151.

25. [Appellant] has not filed a motion pursuant to Article 42A.751(d) of
the Texas Code of Criminal Procedure requesting a hearing on the
Motion to Revoke.

26. The 20[-]day deadline under Article 42A.751(d) does not begin until
[appellant] files a motion for a hearing.

27. [Appellant] is currently detained on “another allegation” in which the
deadline under 17.151 has not expired under Cause Number 2017-
954-C1. See Ex parte De Paz, [No.] 03-15-00581-CR, 2016 WL
3765751 (Tex. App.—Austin July 7, 2016, no pet.) [(mem. op., not
designated for publication)].

28. [Appellant] is not entitled to a personal bond pursuant to Article
17.151.

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This issue was addressed by our sister court in Ex parte De Paz, No. 03-15-00581-CR,

2016 WL 3765751 (Tex. App.—Austin July 7, 2016, no pet.) (mem. op., not designated

for publication). The defendant was arrested and detained on three felonies, and after

more than ninety days had passed without an indictment, he requested habeas relief

under Article 17.151. Id. at *1. The trial court agreed with the State that the defendant

was not entitled to a personal bond on the unindicted charges because he was also being

held on a pending motion to adjudicate guilt filed in another county, and the defendant

had failed to show that the applicable period had run on that allegation. Id.

On appeal, the defendant in Ex parte De Paz argued that the exception to Article

17.151 did not apply because a person being held on a motion to adjudicate guilt was not

“being detained pending trial” and a motion to adjudicate did not constitute an

“accusation” under the exception. Id. at *3 (quoting TEX. CODE CRIM. PRO. ANN. art.

17.151, § 2(2)). The court of appeals disagreed, noting first the rule of statutory

construction “that requires two statues to be read together, if possible, giving effect to

both.” Id. (quoting Ex parte Gill, 413 S.W.3d at 430). Looking to the exception’s plain

language, the court of appeals determined that a revocation hearing is a “trial” for

purposes of the statute because it is a “formal judicial examination of evidence and

determination of legal claims in an adversary proceeding.” Id. (quoting Trial, BLACK’S LAW

DICTIONARY (9th ed. 2009)). Similarly, the court concluded that the allegations in the

motion to adjudicate (i.e., that the defendant violated the terms of his community

supervision) constituted “another accusation against the defendant.” Id. (citing WEBSTER’S

THIRD NEW INT’L DICTIONARY 14 (defining “accusation” to mean “charge of wrongdoing,

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delinquency, or fault: the declaration containing such a charge”)). We find this reasoning

persuasive, especially because it harmonizes Articles 17.151 and 42A.751, giving full

effect to both. See Ex parte Gill, 413 S.W.3d at 430.

Here, it is undisputed that at the time the trial court denied his applications,

appellant was also being held without bond on the State’s pending motion to revoke, and

appellant had not invoked his right to a speedy revocation hearing. See TEX. CODE CRIM.

PRO. ANN. art. 42A.751(d). Accordingly, the exception to Article 17.151 applied, and the

trial court did not abuse its discretion in denying appellant’s applications. See id. art.

17.151, § 2(2); see also Ex parte De Paz, 2016 WL 3765751, at *4. We overrule

appellant’s sole issue.

IV. CONCLUSION

We affirm the trial court’s orders denying appellant’s applications for writ of habeas

corpus.

GINA M. BENAVIDES
Justice

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

Delivered and filed on the
7th day of October, 2021.

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