Ex parte Bo Dresner

1

Ex parte Bo Dresner

No. 03-22-00018-CR

Court of Appeals of Texas, Third District, Austin

December 1, 2023

Do Not Publish

FROM THE 22ND DISTRICT COURT OF HAYS COUNTY NO. CR-19-0800-B-HC THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING.

Before Chief Justice Byrne, Justices Kelly and Smith.

MEMORANDUM OPINION

Edward Smith, Justice

Appellant Bo Dresner was indicted in May 2020 on 65 counts, including two counts of aggravated sexual assault of a child, two counts of continuous sexual abuse of a child, two counts of indecency with a child by sexual contact, and 59 counts of possession with intent to promote child pornography.^[1] On December 21, 2021, appellant filed a pretrial application for writ of habeas corpus requesting that he be released because of the State's unreadiness for trial or, alternatively, that the total amount of his bonds be reduced. See Tex. Code Crim. Proc. art 11.08. The trial court denied the application, and appellant appeals the ruling. In two issues, he contends that the trial court abused its discretion by denying relief under article 17.151 of the Texas Code of Criminal Procedure and by failing to reduce the total amount of his bonds to an amount that he could afford. See id. art. 17.151. We will affirm the trial court's order denying habeas relief.

BACKGROUND

Law enforcement began investigating appellant in March 2019 after his 14-year-old daughter, K.D.,^[2] contacted a family member and reported that appellant was "doing it again and [was] using drugs and manipulation to do it." The family member understood "doing it again" to refer to sexual abuse and was aware of "previous reports" of appellant abusing K.D. "dating back to 2012." K.D and her sister L.D. made additional outcries to CPS and a detective with the Hays County Sheriff's Office (HCSO).

Officers obtained an arrest warrant for appellant on April 2nd and surveilled his home overnight. They arrested him the next morning after observing him attempting to leave in a vehicle driven by a friend, who told them that he was taking appellant to the airport. Appellant's bags contained the citation from his CPS case, three half-used bottles of sexual lubricant, clothing, a laptop, a box of condoms, a black mask, mesh underwear, and a "red rose [that] opens up into a pair of thong underwear." In a band on his ankle were his birth certificate, immunization history, and passport-which was expedited and had been issued the day before. He also had approximately $5,000 in cash and a flight itinerary, dated April 2, 2019, with a final destination of Armenia, a non-extradition country. A search of his electronic devices uncovered 7,500 images of child pornography, including images of his nude children. Thousands more images were discovered on devices in his home. He later admitted in a police interview that he was looking at child pornography and uploading pornography featuring his own children to the Internet for others to view.

He was initially charged on June 19, 2019, in a 20-count indictment for which his cash and surety bonds totaled $650,000. The trial court denied his first habeas application requesting a bond reduction on September 26, 2019, after a hearing at which it found that he was a flight risk. During the hearing he testified that he had previously been convicted in Minnesota of a misdemeanor for impregnating a child under 16. The victim of that offense, committed when appellant was 26, is K.D.'s mother.

Following further outcries, two superseding indictments increased the number of counts to 65, and, at a second hearing on June 15, 2020, the trial court considered appellant's motion to reduce the total amount of his bonds, which had been increased to $2.4 million by the new charges. Appellant testified that were he to be released, he would live with the mother of Dane Minter, another inmate in the Hays County jail for child sexual offenses. Minter had attempted to draw child pornography while in the jail and was found to have photographs of appellant's children, which appellant had given to him. HCSO Detective Jennifer Baker testified that appellant's mother likely knew K.D. and L.D.'s whereabouts and that appellant "knows the general vicinity of where [K.D.] would be living." At the hearing's conclusion, the trial judge stated that the new outcries "mean[t] that there's maybe a greater danger to the public" and that appellant was "probably more dangerous, more of a flight risk now, than he was at the last hearing." The trial court also found that appellant had violated the conditions of his bond by attempting to send a birthday card to K.D. through his mother. Nevertheless, the court ruled that the "amounts of the cash or surety bonds, including for the new counts, should be changed to total $1 million."

On December 21, 2021, a hearing was held on appellant's second habeas application, at which he testified about his finances. He receives approximately $5,000 a month in disability and social security income and has regular monthly expenses of over $2,100, including for commissary and jail calls. He also spent more than $2,000 on classes, retained an attorney to represent him in his divorce proceeding, and gave an inmate at least $1,800 for her legal fees and GPS monitor and $10,000 to purchase a travel trailer for appellant. The $200,000 proceeds from the sale of his home as part of the divorce have been placed into a trust account, and he considers half to be his. He has no other assets, and no one is able to help him post bond. He has not saved any money to put toward his bond amounts but has instead "been spending it on other things." Moreover, although he has no objection to wearing an ankle monitor as a condition of release, he disagrees with the trial court's requiring him to pay for it because "the payment of it is contrary to federal law." He requested that the court set the total amount of his bonds at $500,000 or "at least the original $650[,000]."

He further testified that he remembered the State asserting during an earlier hearing on April 15, 2021, that it was not ready to proceed to trial, and "for that reason [he was] asking the Court for a reduction in bond that [he] can make, based on Article 17.151." On cross-examination, he testified that the State's assertion was in response to defense counsel stating that she was not ready for trial. The trial court denied the application, and this appeal followed.

DISCUSSION

I. Entitlement to Release Under Article 17.151

In his first issue, appellant contends that the trial court erred by denying his request for release under article 17.151. See Tex. Code Crim. Proc. art. 17.151. Specifically, he argues that the State failed to make a prima facie showing that it was ready for trial by the ninetieth day of his confinement. In support of his argument, he asserts that during the hearing on his second habeas application, the State presented "[n]o evidence whatsoever" that it had been ready for trial within the 90 days following his arrest and that it never responded to defense counsel's accusation that it had violated article 17.151.

"We review a trial court's decision to deny relief on a claim that the State violated article 17.151 for an abuse of discretion." Ex parte Craft, 301 S.W.3d 447, 448 (Tex. App.- Fort Worth 2009, no pet.) (per curiam) (citing Jones v. State, 803 S.W.2d 712, 719 (Tex. Crim. App. 1991)). A trial court abuses its discretion when its action is "arbitrary," "unreasonable," or outside the "zone of reasonable disagreement." State v. Mechler, 153 S.W.3d 435, 439-40 (Tex. Crim. App. 2005) (citing Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1990)). In reviewing the trial court's decision, we "view the evidence in the light most favorable to the ruling." Ex parte Craft, 301 S.W.3d at 448-49. "A habeas applicant has the burden to plead facts which, if true, entitle him to relief and ultimately to establish those facts by a preponderance of the evidence." Ex parte Sandoval, 508 S.W.3d 284, 286 (Tex. Crim. App. 2016).

Article 17.151 provides in relevant part:

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.

Tex. Code Crim. Proc. art. 17.151, § 1(1).

The article is "mandatory," and, where the State is not ready for trial within 90 days of the beginning of a defendant's detention, a trial court has only two options: either release the accused on personal bond or reduce the required bail amount "to an amount that the record reflects the accused can make." Ex parte Lanclos, 624 S.W.3d 923, 927 (Tex. Crim. App. 2021); see Hernandez v. State, 465 S.W.3d 324, 326 (Tex. App.-Austin 2015, pet. ref'd) (explaining that trial court cannot consider factors outside of those in article 17.151). However, even though "readiness" refers to "the State's preparedness for trial," "it does not require that the 'trial could have actually begun at that time,' and 'there is no bright line rule on how much or what type of evidence the State must have available to be prepared for trial.'" Ex parte Highsmith, 652 S.W.3d 850, 858 (Tex. App.-Austin 2022, pet. ref'd) (quoting Ex parte Anderson, Nos. 01-20-00572, 01-20-00573, 01-20-00574, 2021 WL 499080, at *19 (Tex. App.-Houston [1st Dist.] Feb. 11, 2021, no pet.) (mem. op., not designated for publication)).

Under article 17.151, the State has the initial burden to make a prima facie showing that it was ready for trial within the 90-day period. Id. (citing Ex parte Smith 486 S.W.3d 62, 65 (Tex. App.-Texarkana ...