Peyton, Ex Parte Jeffrey ( 2016 )

ELECTRONIC RECORD
COA # 02-16-00029-CR OFFENSE: 10.02
STYLE: Ex parte Jeffrey Peyton v. COUNTY: Wichita
COA DISPOSITION: REVREM TRIAL COURT: 30th District Court
DATE: 05/05/16 Publish: NO TC CASE #: 56208-A
IN THE COURT OF CRIMINAL APPEALS
STYLE: Ex parte Jeffrey Peyton v. CCA #:
__________________________ Petition CCA Disposition: ___________________
FOR DISCRETIONARY REVIEW IN CCA IS: DATE: ____________________________
______________________________________ JUDGE: ___________________________
DATE: _________________________________ SIGNED: ___________ PC: ________
JUDGE: ________________________________ PUBLISH: __________ DNP: _______
---------------------------
______________________________ MOTION FOR
REHEARING IN CCA IS: ______________________
JUDGE: __________________________________
ELECTRONIC RECORD
2nd Court of Appeals Docket Sheet
Case Number: 02-16-00029-CR
Date Filed: 01/28/2016 1:57PM
Style: Criminal - Appellant Ex parte Jeffrey Peyton
Criminal - State of Texas
Case Priority: Priority
Original Proceeding: No
Case Description: Habeas Corpus - Bail
Trial Court Information
County Court Name Case # Judge Court Reporter
Wichita 30th District Court 56208-A Hon. Robert P. 30th District Court, Court
Brotherton Reporter,
Events and Opinions
Event Date Stage Event Event Disposition Grouping Order Submis
Description Type sion
06/08/2016 FILING CASE
FORWARDED
06/08/2016 FILING MT STAY STA GRANT 02
MAND DISP
05/20/2016 FILING MT STAY STA 02
3:42PM MAND FLD
05/05/2016 FILING MEM OPINION REVREM
ISSD
Opinion Type Author
Original Justice Sue
Memorandum Walker
05/03/2016 FILING SUBMITTED Brief
04/12/2016 FILING EBRIEF FLD STA
3:24PM NO
04/12/2016 FILING SUBMISSION/ Brief
BRIEFS
04/12/2016 FILING AT ISSUE
03/23/2016 FILING EBRIEF FLD APP
4:34PM NO
03/10/2016 FILING MT EXT BRIEF APP GRANT 01
DISP
03/09/2016 FILING MT EXT BRIEF APP 01
4:31PM FLD
02/17/2016 FILING ECLK DT CLK
1:28PM RECORD FLD
02/08/2016 FILING RPT RECORD RPT
3:45PM FLD
01/28/2016 FILING NOA FLD/COA APP
4:20PM
Report Prepared By: KBrown, on 6/8/2016 2:32:55 PM 1 of 1
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00029-CR
Ex parte Jeffrey Peyton § From 30th District Court
§ of Wichita County (56208-A)
§ May 5, 2016
§ Opinion by Justice Walker
§ (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was error in the trial court’s judgment. It is ordered that the judgment of the
trial court is reversed, and this case is remanded to the trial court to set a
reasonable bail; to determine what additional conditions, if any, should be
imposed; and to allow the State and Peyton to present any additional evidence or
argument that the trial court deems relevant to each of the factors discussed in
the opinion.
SECOND DISTRICT COURT OF APPEALS
By _/s/ Sue Walker____________________
Justice Sue Walker
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00029-CR
EX PARTE JEFFREY PEYTON
----------
FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 56208-A
----------
MEMORANDUM OPINION1
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I. INTRODUCTION
Applicant Jeffrey Peyton appeals from the trial court’s denial of his pretrial
application for writ of habeas corpus seeking a bail reduction. 2 Because we
1
See Tex. R. App. P. 47.4.
2
Because this is an appeal from the denial of an application for habeas
corpus relief and not an appeal from an order setting bail or from the denial of a
pretrial motion for bail reduction, we have jurisdiction over this appeal. See
Ragston v. State, 424 S.W.3d 49, 50 (Tex. Crim. App. 2014); Ex parte Briscoe,
No. 02-15-00223-CR, 2015 WL 5893470, at *4 (Tex. App.—Fort Worth Oct. 8,
2015, no pet.) (mem. op., not designated for publication); Vasquez v. State, Nos.
conclude that the trial court abused its discretion by failing to reduce the bail
amount based on the proffered evidence, we reverse the trial court’s order and
remand to that court to set a reasonable bail.
II. FACTUAL AND PROCEDURAL BACKGROUND
On July 2, 2015, a magistrate determined that there was probable cause to
issue an arrest warrant for Peyton based on an affidavit sworn to by John E.
Laughlin, a peace officer of the City of Wichita Falls Police Department. See
Tex. Code Crim. Proc. Ann. art. 15.03(a) (West 2015). In the affidavit, Officer
Laughlin stated that he had probable cause to believe that on June 30, 2015,
Peyton committed the offense of “Criminal Solicitation – Capital Murder.” See
Tex. Penal Code Ann. § 15.03 (West 2011). Officer Laughlin further attested to
the following sequence of events:
 On June 26, 2015, a cooperating witness contacted the Wichita Falls
Police Department about a possible murder for hire. Officer Laughlin met
with the cooperating witness who explained that Peyton and his wife had
asked him to find a person willing to “take out” their daughter’s boyfriend,
Vincent Cole, for $300. The cooperating witness provided Officer Laughlin
with recordings he had made of his conversations with Peyton and his
wife. Officer Laughlin contacted Officer Karen Wade from the Organized
Crime Unit to assist with the investigation.
 On June 29, 2015, the cooperating witness introduced Officer Wade to
Peyton and his wife. Officer Wade recorded her conversation with Peyton
and his wife, who stated that they were willing to pay to have their
daughter’s boyfriend gone “permanently.” They arranged to meet with
Officer Wade again the following day.
03-13-00717-CR, 03-13-00718-CR, 2014 WL 3732962, at *1 n.2 (Tex. App.—
Austin July 25, 2014, no pet.) (mem. op., not designated for publication)
(collecting cases).
2
 Around 11:00 a.m. on June 30, 2015, the cooperating witness took
Peyton’s wife to a bank at her request and direction and recorded the
conversation that took place. Peyton’s wife intimated that she was getting
money from the bank to complete a transaction with Officer Wade. While
talking about Cole, Peyton’s wife stated, “I want him gone. Not out of town
gone. I want him dead gone.” Peyton’s wife further stated that she and
Peyton planned to take their daughter to a movie so that she would not be
around “the day this happens.”
 Around 12:30 p.m. on June 30, 2015, Officer Wade contacted Peyton by
phone and explained that it would cost more than $300 to have someone
kill Cole. Peyton then offered to pay $500 to have Cole killed.
 Around 1:45 p.m. on June 30, 2015, Officer Wade met Peyton in a parking
lot. During the recorded meeting, Peyton gave Officer Wade three $100
bills and promised to pay an additional $200 after Cole was killed. Peyton
also provided Officer Wade with a photograph of Cole. Officer Wade
offered Peyton an opportunity to back out of the transaction, but Peyton
refused and indicated that he and his wife wanted to go through with the
plan.
 On July 2, 2015, Officer Laughlin contacted Cole and explained the
preceding events. Cole agreed to cooperate with the investigation, and a
photograph was created that made it look like he had been shot to death.
 Later on July 2, 2015, Officer Wade contacted Peyton by phone and
arranged to meet him. When they met a short time later, Officer Wade
showed Peyton the staged photograph of Cole. Peyton then gave Officer
Wade $200.
After Peyton’s arrest, bail was set at $1,000,000.3 Peyton filed an
application for writ of habeas corpus and argued that his bail was unlawfully
excessive. Peyton requested that the trial court “grant him a personal
recognizance bond or, in the alternative, set bail in a reasonable amount.”
3
As part of the conditions of bail, the magistrate ordered that Peyton “not
make contact with the alleged victim, or any member of his family, nor cause any
other person to make said contact.”
3
At the hearing on Peyton’s application for writ of habeas corpus, Peyton
testified that he is fifty-eight years old and has lived in Wichita Falls for the
majority of his life, including the past twenty-five years. Peyton does not have
family members who are still alive, other than his wife. Peyton served in the
United States Navy from 1974 to 1978 and received an honorable discharge. He
testified that he had never been convicted of a felony but admitted that he had
been arrested several times for public intoxication and one time on a warrant for
an unpaid ticket for no automobile insurance.
Peyton testified that he is unable to make bail while it is set at $1,000,000.
He explained that he is unable to work due to a disability and that he receives
veterans’ benefits and Social Security disability benefits totaling approximately
$1,240 each month. At the time he requested court-appointed counsel, he had
approximately $1,500 in the bank, owned a nonoperational vehicle worth
approximately $500, and owned furniture or jewelry worth approximately $500.
He does not own a house. Peyton testified that he has the ability to make bail if it
is set at $10,000 because he can sell his firearms. Peyton said that if he were
released, he would live with a friend at the French Quarter Apartments and that
he could obtain rides from friends to appear for any court dates. Peyton testified
that he is willing to comply with conditions of bail such as curfew, home
confinement, electronic monitoring, and drug testing and that he is willing to seek
court approval before leaving the state for any trips to the VA hospital in
4
Oklahoma City. Peyton said that he has every intention of fighting the charges
alleged.
In opposing any reduction in the bail amount, the State admitted into
evidence Officer Laughlin’s probable-cause affidavit, the relevant portions of
which are set forth above, and asked the trial court to take judicial notice of the
indictment. The State then rested.
The trial court denied Peyton’s application and continued bail in the
amount of $1,000,000.4 Peyton then filed this appeal, and we requested briefing.
See Tex. R. App. P. 31.1.
III. STANDARD OF REVIEW AND LAW ON BAIL
We review a trial court’s ruling on the setting of bail for an abuse of
discretion. See Tex. Code Crim. Proc. Ann. art. 17.15 (West 2015); Ex parte
Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981). To determine
whether a trial court abused its discretion, we must decide whether the trial court
acted without reference to any guiding rules or principles; in other words, we
must decide whether the trial court’s action was arbitrary or unreasonable.
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Merely
because a trial court may decide a matter within its discretion in a different
4
After the trial court announced its decision on the record, Peyton argued
that his situation raised the same constitutional concerns addressed in Judge
Cochran’s concurring opinion to the refusal of the petition for discretionary review
in Ex parte Benefield. 403 S.W.3d 240 (Tex. Crim. App. 2013) (Cochran, J.,
concurring). The trial court stated that it was familiar with that case but did not
change its ruling.
5
manner than an appellate court would in a similar circumstance does not
demonstrate that an abuse of discretion has occurred. Id.
The primary purpose of an appearance bond is to secure the presence of
the defendant at trial on the offense charged. Ex parte Vasquez, 558 S.W.2d
477, 479 (Tex. Crim. App. 1977). Federal and state law both prohibit the
imposition of excessive bail, which is bail that is “set in an amount greater than is
reasonably necessary to satisfy the government’s legitimate interests.” Ex parte
Beard, 92 S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref’d); see U.S. Const.
amend. VIII; Tex. Const. art. I, § 13. The defendant bears the burden of proving
that bail, as set, is excessive. Rubac, 611 S.W.2d at 849. Bail may be deemed
oppressive when the trial court sets it at an amount “for the express purpose of
forcing [a defendant] to remain incarcerated.” Ex parte Harris, 733 S.W.2d 712,
714 (Tex. App.—Austin 1987, no pet.).
Statutory and common-law factors guide a trial court’s determination of
appropriate bail. The code of criminal procedure provides,
The amount of bail to be required in any case is to be regulated by
the court, judge, magistrate[,] or officer taking the bail; they are to be
governed in the exercise of this discretion by the Constitution and by
the following rules:
1. The bail shall be sufficiently high to give reasonable
assurance that the undertaking will be complied with.
2. The power to require bail is not to be so used as to make it
an instrument of oppression.
3. The nature of the offense and the circumstances under
which it was committed are to be considered.
6
4. The ability to make bail is to be regarded, and proof may
be taken upon this point.
5. The future safety of a victim of the alleged offense and the
community shall be considered.
Tex. Code Crim. Proc. Ann. art. 17.15. In addition to these statutory factors, the
court of criminal appeals has instructed courts to also consider the accused’s
work record, the accused’s family ties, the accused’s length of residency, the
accused’s prior criminal record, the accused’s conformity with the conditions of
any previous bond, the existence of any outstanding bonds, and aggravating
circumstances alleged to have been involved in the charged offense. Rubac,
611 S.W.2d at 849–50.
IV. TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO REDUCE BAIL
We recognize that any review of a bail determination is, by nature,
imprecise, but we are guided by article 17.15. See Ex parte Pemberton, 577
S.W.2d 266, 267 (Tex. Crim. App. [Panel Op.] 1979).
A. Statutory Factors
1. Assure Appearance Without Oppression
(First, Second, and Fourth Factors)
The primary purpose in setting a bail amount and the first listed factor in
article 17.15 is the reasonable assurance that the applicant will appear for court.
See Tex. Code Crim. Proc. Ann. art. 17.15(1); Vasquez, 558 S.W.2d at 479.
Peyton testified that he has lived in Wichita Falls for the majority of his life,
7
including the past twenty-five years. Peyton said that if he were released, he
would live with a friend at an apartment complex in Wichita Falls and would be
able to obtain transportation to any court appearances. Peyton testified that he
would comply with any conditions of bail that might be imposed and that he
would seek court approval before leaving the state for any trips to the VA hospital
in Oklahoma City. The State presented no evidence that Peyton is a flight risk or
that he has outstanding bonds or warrants. Based on these facts, the trial court
had reasonable assurance that Peyton would appear for court; thus, this factor
indicates that a reduction in bail is appropriate. Cf. In re Durst, 148 S.W.3d 496,
501 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (op. on reh’g) (considering
conditions imposed by trial court to ensure defendant’s appearance and reducing
bail to $150,000 for each of three third-degree felonies charged).
With regard to the second factor—that bail not be oppressive, the record
demonstrates that Peyton is disabled, has minimal assets and income, and does
not have the ability to satisfy a $1,000,000 bail bond. See Tex. Code Crim. Proc.
Ann. art. 17.15(2). This factor demonstrates that bail in the amount set is
oppressive. See Ex parte Bogia, 56 S.W.3d 835, 840 (Tex. App.—Houston [1st
Dist.] 2001, no pet.) (holding that $360,000 bail for second-degree felony of theft
was oppressive because it was not justified by any unusual circumstances).
Similar to the second factor, the fourth factor mandates consideration of an
applicant’s ability to make bail, which is relevant but not controlling. See Tex.
Code Crim. Proc. Ann. art. 17.15(4); Ex parte Sabur-Smith, 73 S.W.3d 436, 440
8
(Tex. App.—Houston [1st Dist.] 2002, no pet.). Bail set in an amount that cannot
be satisfied has the potential to displace the presumption of innocence. See
Bogia, 56 S.W.3d at 840. The record is clear that Peyton cannot satisfy a
$1,000,000 bail bond and that he does not have any family to assist him in
making bond. Peyton does not own a house or an operational vehicle and is
disabled and therefore unable to work; his monthly income consists of $367 in
veterans’ benefits and an unspecified amount in Social Security disability
benefits. Peyton testified that he could satisfy a bail of $10,000 by selling some
guns that he owns. This factor weighs in favor of reduced bail. See 41 George
E. Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice &
Procedure § 21:27 (3d ed. 2011) (stating that “the less resources he has, the
more likely it will be that a lower amount will create a sufficient incentive to
appear”).
2. Nature of the Offense (Third Factor)
With regard to the third factor—the nature of the offense and the
circumstances under which it was committed, the record includes the probable-
cause affidavit, which was admitted into evidence by the State at the hearing.
See Tex. Code Crim. Proc. Ann. art. 17.15(3). The facts in the probable-cause
affidavit are disturbing and allege that Peyton was involved in soliciting someone
to murder his daughter’s boyfriend. If convicted of criminal solicitation to commit
capital murder, which is a first-degree felony, Peyton faces a punishment range
of five to ninety-nine years’ confinement and a possible fine not to exceed
9
$10,000. See Tex. Penal Code Ann. § 12.32 (West 2011), § 15.03(d)(1). The
severity of the offense justifies a high bail amount.
In other cases involving solicitation of capital murder, courts have
approved bail in amounts ranging from $20,000 to $750,000—with the higher end
of the range used for multiple charges of solicitation of capital murder. See, e.g.,
Ex parte Parish, 598 S.W.2d 872, 873 (Tex. Crim. App. [Panel Op.] 1980)
(reducing bail from $100,000 to $20,000 on solicitation of capital murder charge);
Cooley v. State, 232 S.W.3d 228, 238 (Tex. App.—Houston [1st Dist.] 2007, no
pet.) (upholding total bail of $750,000 on three solicitation of capital murder
charges); Ex parte Chachere, No. 03-01-00404-CR, 2002 WL 99642, at *4 (Tex.
App.—Austin Jan. 25, 2002, no pet.) (not designated for publication) (reducing
bail from $700,000 to $250,000 on solicitation of capital murder charge); Perry v.
State, No. 14-99-01161-CR, 1999 WL 1267196, at *3 (Tex. App.—Houston [14th
Dist.] Dec. 30, 1999, no pet.) (not designated for publication) (upholding
$100,000 bail on solicitation of capital murder charge); Ex parte Welch, 729
S.W.2d 306, 310 (Tex. App.—Dallas 1987, no pet.) (upholding total bail of
$300,000 on two pending solicitation of capital murder charges). But see Ex
parte Pulte, No. 02-03-00202-CR, 2003 WL 22674734, at *2 (Tex. App.—Fort
Worth Nov. 13, 2003, no pet.) (not designated for publication) (holding
$1,000,000 bail not excessive for solicitation of murder when record showed that
defendant possessed assets, defendant had failed to offer evidence of bond he
could make, and defendant had committed offense for which bail was sought
10
while on bond for related offense). However, “‘[c]ase law is of relatively little
value in addressing the ultimate question of the appropriate amount of bail in a
particular case’ because . . . the ‘cases are so individualized that generalization
from results reached in others is difficult.’” Beard, 92 S.W.3d at 571 (citing 41
George E. Dix. & Robert O. Dawson, Texas Practice: Criminal Practice and
Procedure § 16.51 (2d ed. 2001)). In any event, while the nature-of-the-offense
factor justifies setting a significant bail amount, $1,000,000 exceeds the upper
end of the range of approved amounts for bail in cases involving solicitation of
capital murder.
3. Safety (Fifth Factor)
The fifth factor we consider is the future safety of the community. See Tex.
Code Crim. Proc. Ann. art. 17.15(5). Peyton has no prior felony convictions.
Peyton’s bail contains the condition that Peyton “not make contact with the
alleged victim, or any member of his family, nor cause any other person to make
said contact.” This factor, while difficult to analyze, reflects that the high amount
of Peyton’s bail is not sufficiently related to community safety. See Briscoe, 2015
WL 5893470, at *4 (citing 41 Dix & Schmolesky, supra, § 21:29).
B. Other Considerations
Finally, we look to other relevant considerations. Peyton, who is fifty-eight
years old, has lived in Wichita County the majority of his life, including the last
twenty-five years. Although most of his family is now deceased, he still has his
wife and friends in Wichita Falls. Peyton is not able to work due to a disability.
11
Peyton’s only prior arrests were for public intoxication and a warrant for failing to
pay a ticket for no automobile insurance. The record does not contain evidence
regarding any aggravating circumstances alleged to have been involved in the
charged offense. These considerations demonstrate that although Peyton was
arrested for a first-degree felony, he has “an incentive to remain despite the
possibility of conviction and sentence,” and he testified that he has every
intention of fighting the charges alleged. See id. (citing 41 Dix & Schmolesky,
supra, § 21:30).
C. Outcome
Although the nature of the offense and the circumstances surrounding it
are severe, the other factors to be considered in setting reasonable bail establish
that the $1,000,000 bail set here is excessive because it is set in an amount
greater than necessary to ensure Peyton’s appearance. Because Peyton has
carried his burden of proving that bail in the amount of $1,000,000 is excessive,
we hold that the trial court abused its discretion by failing to reduce the bail
amount based on the evidence before it. See Tex. Code Crim. Proc. Ann. art.
11.24 (West 2015) (“If the proof sustains the petition, it will entitle the party to . . .
have the bail reduced.”); Parish, 598 S.W.2d at 873 (reducing bail from $100,000
to $20,000 for solicitation of capital murder); see also Briscoe, 2015 WL
5893470, at *4 (holding that $1,000,000 bail in injury-to-a-child case was
excessive and that trial court abused its discretion by failing to reduce that
amount).
12
V. CONCLUSION
We therefore reverse the trial court’s order denying habeas relief and
remand this case to the trial court to set a reasonable bail; to determine what
additional conditions, if any, should be imposed; and to allow the State and
Peyton to present any additional evidence or argument that the trial court deems
relevant to each of the factors discussed above. See Tex. R. App. P. 31.3; Ex
parte Brooks, 376 S.W.3d 222, 224 (Tex. App.—Fort Worth 2012, pet. ref’d.).
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 5, 2016
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1
1 R E P O R T E R'S R E C O R D
2 VOLUME 1 OF 3
FILED IN
3 COURT OF APPEALS NO. 02-16-00029-CR
2nd COURT OF APPEALS
FORT WORTH, TEXAS
4 CAUSE NO. 56,208-A 2/8/2016 3:45:44 PM
DEBRA SPISAK
5 THE STATE OF TEXAS * IN THE 30TH DISTRICT
Clerk COURT
*
6 VS. *
*
7 JEFFREY BRYAN PEYTON * OF WICHITA COUNTY, TEXAS
8
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10 _______________________________________
11 MASTER INDEX
_______________________________________
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18 On the 22nd day of January, 2016, the
19 above-entitled cause came on for trial in the
20 above-entitled and numbered Court before the
21 Honorable Robert P. Brotherton, judge presiding, held
22 in Wichita Falls, Wichita County, Texas.
23 Proceedings reported by computerized
24 Stenotype machine; record produced by
25 computer-assisted transcription.
LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
2
1 A P P E A R A N C E S:
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3 Mr. John Gillespie (SBOT #24010053)
Wichita County District Attorney's Office
4 Wichita County Courthouse
900 7th Street
5 Wichita Falls, Texas 76301
(940) 766-8113
6 Attorney for the State
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8 Mr. Brennon Brady (SBOT #24038120)
Wichita County Public Defender's Office
9 600 Scott Street, Suite 204
Wichita Falls, Texas 76301
10 (940) 766-8199
Attorney for the Defendant
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LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
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1 M A S T E R I N D E X
2 PAGE VOL
3 Proceedings................................ 6 2
4 Defendant announces ready.................. 6 2
5 State announces ready...................... 6 2
6 DEFENDANT'S WITNESS DIRECT CROSS VOL
7 Jeffrey Peyton 7 2
8 Defendant rests............................ 12 2
9 State rests................................ 12 2
10 Court's Ruling............................. 13 2
11 Hearing concluded.......................... 14 2
12 Reporter's Certificate..................... 15 2
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LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
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1 ALPHABETICAL INDEX OF WITNESSES
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3 WITNESSES DIRECT CROSS VOL
4 Peyton, Jeffrey 7 2
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LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
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1 M A S T E R E X H I B I T S
2 STATE'S EXHIBITS
3 NO. DESCRIPTION OFFER ADMIT VOL
4 1 Warrant of Arrest and Detention 12 12 2
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LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
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1 THE STATE OF TEXAS )
2 COUNTY OF WICHITA )
3 I, Leslie C. Ryan-Hash, Official Court
4 Reporter in and for the 30th District Court of
5 Wichita County, State of Texas, do hereby certify
6 that the above and foregoing contains a true and
7 correct transcription of all portions of evidence and
8 other proceedings requested in writing by counsel for
9 the parties to be included in this volume of the
10 Reporter's Record, in the above-styled and numbered
11 cause, all of which occurred in open court or in
12 chambers and were reported by me.
13 I further certify that this Reporter's
14 Record of the proceedings truly and correctly
15 reflects the exhibits, if any, admitted by the
16 respective parties.
17 I further certify that the total cost
18 for the preparation of this Reporter's Record is
19 $297.50 and will be paid by Wichita County.
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LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
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1 WITNESS MY OFFICIAL HAND this the 9th
2 day of February, 2016.
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5
/s/ Leslie C. Ryan-Hash
6 Leslie C. Ryan-Hash, CSR
Official Court Reporter
7 Cert. No. 5164/Expires 12/31/17
900 7th Street, Room 360
8 Wichita County Courthouse
Wichita Falls, TX 76301
9 (940)766-8180/(940)766-8253
Leslie.Ryan-Hash@co.wichita.tx.us
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LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
1
1 R E P O R T E R'S R E C O R D
2 VOLUME 2 OF 3
FILED IN
3 COURT OF APPEALS NO. 02-16-00029-CR
2nd COURT OF APPEALS
FORT WORTH, TEXAS
4 CAUSE NO. 56,208-A 2/8/2016 3:45:44 PM
DEBRA SPISAK
5 THE STATE OF TEXAS * IN THE 30TH DISTRICT
Clerk COURT
*
6 VS. *
*
7 JEFFREY BRYAN PEYTON * OF WICHITA COUNTY, TEXAS
8
9
10 _______________________________________
11 HABEAS CORPUS
_______________________________________
12
13
14
15
16
17
18 On the 22nd day of January, 2016, the
19 above-entitled cause came on for trial in the
20 above-entitled and numbered Court before the
21 Honorable Robert P. Brotherton, judge presiding, held
22 in Wichita Falls, Wichita County, Texas.
23 Proceedings reported by computerized
24 Stenotype machine; record produced by
25 computer-assisted transcription.
LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
2
1 A P P E A R A N C E S:
2
3 Mr. John Gillespie (SBOT #24010053)
Wichita County District Attorney's Office
4 Wichita County Courthouse
900 7th Street
5 Wichita Falls, Texas 76301
(940) 766-8113
6 Attorney for the State
7
8 Mr. Brennon Brady (SBOT #24038120)
Wichita County Public Defender's Office
9 600 Scott Street, Suite 204
Wichita Falls, Texas 76301
10 (940) 766-8199
Attorney for the Defendant
11
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LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
3
1 I N D E X
2 PAGE VOL
3 Proceedings................................ 6 2
4 Defendant announces ready.................. 6 2
5 State announces ready...................... 6 2
6 DEFENDANT'S WITNESS DIRECT CROSS VOL
7 Jeffrey Peyton 7 7 2
8 Defendant rests............................ 12 2
9 State rests................................ 12 2
10 Court's Ruling............................. 13 2
11 Hearing concluded.......................... 14 2
12 Reporter's Certificate..................... 15 2
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LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
4
1 ALPHABETICAL INDEX OF WITNESSES
2
3 WITNESSES DIRECT CROSS VOL
4 Peyton, Jeffrey 7 7 2
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LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
5
1 E X H I B I T S
2 STATE'S EXHIBITS
3 NO. DESCRIPTION OFFER ADMIT VOL
4 1 Warrant of Arrest and Detention 12 12 2
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LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
6
1 P R O C E E D I N G S
2 (Open court, Defendant present.)
3 (State's Exhibit No. 1 marked.)
4 THE COURT: This is Cause No. 56,208-A,
5 The State of Texas vs. Jeff Peyton. The matter set
6 for hearing is the Defendant's Application for Writ
7 of Habeas Corpus seeking bail reduction.
8 Is the defense ready?
9 MR. BRADY: Ready, Your Honor.
10 THE COURT: Is the State ready?
11 MR. GILLESPIE: State's ready, Your
12 Honor.
13 THE COURT: Are you Jeff Peyton?
14 THE WITNESS: Yes, sir.
15 THE COURT: All right. Mr. Brady, you
16 may proceed.
17 MR. BRADY: Thank you, Your Honor. I'd
18 just like for the record to reflect that the
19 application misstates the bail amount. I believe
20 it's just a typo. The bail in this case, I believe,
21 is set at $1 million. I'd point that out for the
22 Court and the record.
23 THE COURT: That's correct.
24 MR. BRADY: Judge, we'll call Jeff
25 Peyton as our witness.
LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
7
1 THE COURT: All right.
2 (The witness was sworn by the Court.)
3 THE WITNESS: Yes, Your Honor.
4 THE COURT: Okay. Go ahead.
5 JEFF PEYTON,
6 having been first duly sworn, testified as follows:
7 DIRECT EXAMINATION
8 BY MR. BRADY:
9 Q. If you could speak up for the court
10 reporter, she's taking down everything and so the
11 Judge can hear you.
12 A. Okay.
13 Q. Will you introduce yourself to the Judge.
14 A. Yes, sir. I'm Jeff Peyton, Your Honor.
15 Q. And how old are you, Jeff?
16 A. I'm 58 years old.
17 Q. And where have you lived the majority of
18 your life?
19 A. Wichita Falls, Texas.
20 Q. And it's my understanding that you're a
21 veteran; is that correct?
22 A. Yes, sir.
23 Q. And what branch of the service did you
24 serve?
25 A. Navy.
LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
8
1 Q. And how many years were you in the Navy and
2 what years were those?
3 A. Four years from 1974 to 1978.
4 Q. And were you honorably discharged?
5 A. Yes, sir.
6 Q. Have you ever been convicted of a felony in
7 your life?
8 A. No, sir.
9 Q. Aside from traffic tickets, have you ever
10 been arrested?
11 A. Yes, sir.
12 Q. Okay. What were you arrested for?
13 A. Several times for public intox and one time
14 for warrant for no insurance ticket. I think it was
15 1995.
16 Q. So those were Class C tickets type
17 situations, no misdemeanor Class Bs and above?
18 A. No, sir.
19 Q. Okay. And how long have you actually lived
20 in Wichita Falls, Texas?
21 A. I've lived here from 1978 to 1984; moved to
22 California for two and a half years. From there I
23 moved to Hawaii for five years and then I came back
24 here. I've been back here twenty-five years.
25 Q. And have you lived in the City of Wichita
LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
9
1 Falls?
2 A. Yes.
3 Q. And Wichita County?
4 A. Yes, sir.
5 Q. Your current bail is set at $1 million. Do
6 you currently have the means to make that bail?
7 A. No, sir.
8 Q. What bail amount do you have the ability to
9 make at this time?
10 A. $10,000.
11 Q. Is that based on the assets that you have
12 and you believe you can sell?
13 A. Yes, sir.
14 Q. Okay. And what are those assets?
15 A. I have some guns I could sell to make bond.
16 Q. And do you have a vehicle that's operational
17 at this time?
18 A. No, sir.
19 Q. Okay. How are you planning on getting to
20 court?
21 A. Rides from friends.
22 Q. And where would you live if you were
23 released?
24 A. French Quarter Apartments with a friend of
25 mine.
LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
10
1 Q. And has he told you that he was willing to
2 let you stay with him?
3 A. Yes, sir.
4 Q. And what do you do for income when you're
5 out?
6 A. I get a small check from the VA, 367 a
7 month, and I've got Social Security disability.
8 Q. And so you're unable to work?
9 A. Yes, sir.
10 Q. Have you been able to support yourself over
11 the past twenty-five years or so, or however long
12 you've been on the disability, with that?
13 A. Yes, sir.
14 Q. You're -- are you willing to comply with
15 conditions of bail such as curfew, home confinement,
16 electronic monitoring, and drug testing if you were
17 released?
18 A. Yes, sir.
19 Q. Do you have any intentions of leaving the
20 jurisdiction, flee on these charges?
21 A. No, sir. The only time I might have to
22 leave would be go to the VA hospital in Oklahoma
23 City.
24 Q. And you would be willing to get Court
25 approval prior to doing that?
LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
11
1 A. Yes, sir.
2 Q. Now, as far as family ties go, it's my
3 understanding that you don't have very many family
4 members around left, do you?
5 A. I don't have any family members left except
6 my wife.
7 Q. That's because they've passed away?
8 A. Yes, sir.
9 Q. Now, you understand you're looking at up to
10 life in prison. Does that -- does that fact make you
11 want to run and not face these charges?
12 A. No, sir.
13 Q. Do you have every intention of fighting
14 these charges?
15 A. Yes, sir.
16 Q. Would you like to be given an opportunity to
17 be free and prove to the Court that you're able to
18 comply with conditions of bond and show up for
19 pretrial hearings and that sort of thing?
20 A. Yes, sir.
21 Q. Now, do you have any kind of mental health
22 issues that you need to work on or get addressed out
23 there?
24 A. Not at the present time.
25 Q. Okay.
LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
12
1 MR. BRADY: Judge, I'll pass the
2 witness at this time.
3 THE COURT: Mr. Gillespie.
4 MR. GILLESPIE: I have no questions,
5 Your Honor.
6 THE COURT: Okay. Next witness?
7 MR. BRADY: This is the only witness I
8 have, Your Honor. Defense will rest.
9 THE COURT: All right. Mr. Gillespie?
10 MR. GILLESPIE: I'd offer State's 1,
11 the probable cause affidavit in this case.
12 MR. BRADY: No objection to State's 1,
13 Your Honor.
14 THE COURT: It's admitted.
15 (State's Exhibit No. 1 admitted.)
16 MR. GILLESPIE: And I also ask the
17 Court to take notice of the indictment in this case,
18 judicial notice of it.
19 THE COURT: Any objection?
20 MR. BRADY: No objection, Judge.
21 THE COURT: Court will take judicial
22 notice of the indictment.
23 MR. GILLESPIE: And the State would
24 rest.
25 THE COURT: All right. Let's go off
LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
13
1 the record.
2 (Off the record.)
3 (On the record.)
4 THE COURT: All right. We'll go back
5 on the record. Mr. Peyton, Mr. Brady, the motion is
6 denied.
7 MR. BRADY: Thank you, Your Honor.
8 Judge, I might just put on the record
9 that I have a case here that I'd like to point out.
10 It's a concurring opinion. But the Court of Criminal
11 Appeals kinda gave me a hard time about not raising
12 it, and it's Ex Parte Benefield, 403 S.W.3d.
13 THE COURT: I'm familiar with that
14 case.
15 MR. BRADY: Huh?
16 THE COURT: I said I'm familiar with
17 that case.
18 MR. BRADY: I know, Judge. Well, the
19 Court said that I didn't raise some issues at the --
20 because the petition does not clearly raise these
21 difficult issues, I'd just say the current situation
22 of Mr. Peyton raises the constitutional concerns that
23 are pointed out by the concurring opinion in that
24 case.
25 THE COURT: All right. So noted, Mr.
LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
14
1 Brady. Thank you.
2 MR. BRADY: Thank you, Your Honor.
3 I'll prepare you an order, Judge.
4 THE COURT: Okay.
5 (Hearing concluded.)
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LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
15
1 THE STATE OF TEXAS )
2 COUNTY OF WICHITA )
3 I, Leslie C. Ryan-Hash, Official Court
4 Reporter in and for the 30th District Court of
5 Wichita County, State of Texas, do hereby certify
6 that the above and foregoing contains a true and
7 correct transcription of all portions of evidence and
8 other proceedings requested in writing by counsel for
9 the parties to be included in this volume of the
10 Reporter's Record, in the above-styled and numbered
11 cause, all of which occurred in open court or in
12 chambers and were reported by me.
13 I further certify that this Reporter's
14 Record of the proceedings truly and correctly
15 reflects the exhibits, if any, admitted by the
16 respective parties.
17 I further certify that the total cost
18 for the preparation of this Reporter's Record is
19 $297.50 and will be paid by Wichita County.
20
21
22
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24
25
LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
16
1 WITNESS MY OFFICIAL HAND this the 9th
2 day of February, 2016.
3
4
5
/s/ Leslie C. Ryan-Hash
6 Leslie C. Ryan-Hash, CSR
Official Court Reporter
7 Cert. No. 5164/Expires 12/31/17
900 7th Street, Room 360
8 Wichita County Courthouse
Wichita Falls, TX 76301
9 (940)766-8180/(940)766-8253
Leslie.Ryan-Hash@co.wichita.tx.us
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LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
1
1 R E P O R T E R'S R E C O R D
2 VOLUME 3 OF 3
FILED IN
3 COURT OF APPEALS NO. 02-16-00029-CR
2nd COURT OF APPEALS
FORT WORTH, TEXAS
4 CAUSE NO. 56,208-A 2/8/2016 3:45:44 PM
DEBRA SPISAK
5 THE STATE OF TEXAS * IN THE 30TH DISTRICT
Clerk COURT
*
6 VS. *
*
7 JEFFREY BRYAN PEYTON * OF WICHITA COUNTY, TEXAS
8
9
10 _______________________________________
11 EXHIBIT INDEX
_______________________________________
12
13
14
15
16
17
18 On the 22nd day of January, 2016, the
19 above-entitled cause came on for trial in the
20 above-entitled and numbered Court before the
21 Honorable Robert P. Brotherton, judge presiding, held
22 in Wichita Falls, Wichita County, Texas.
23 Proceedings reported by computerized
24 Stenotype machine; record produced by
25 computer-assisted transcription.
LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
2
1 A P P E A R A N C E S:
2
3 Mr. John Gillespie (SBOT #24010053)
Wichita County District Attorney's Office
4 Wichita County Courthouse
900 7th Street
5 Wichita Falls, Texas 76301
(940) 766-8113
6 Attorney for the State
7
8 Mr. Brennon Brady (SBOT #24038120)
Wichita County Public Defender's Office
9 600 Scott Street, Suite 204
Wichita Falls, Texas 76301
10 (940) 766-8199
Attorney for the Defendant
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
3
1 M A S T E R E X H I B I T S
2 STATE'S EXHIBITS
3 NO. DESCRIPTION OFFER ADMIT VOL
4 1 Warrant of Arrest and Detention 7 7 2
5
6
7
8
9
10
11
12
13
14
15
16
17
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25
LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
4
1 THE STATE OF TEXAS )
2 COUNTY OF WICHITA )
3 I, Leslie C. Ryan-Hash, Official Court
4 Reporter in and for the 30th District Court of
5 Wichita County, State of Texas, do hereby certify
6 that the foregoing exhibits constitute true and
7 complete duplicates of the original exhibits,
8 excluding physical evidence admitted, tendered in an
9 offer of proof or offered into evidence during the
10 trial in the above entitled and numbered cause as set
11 out herein before the Honorable Robert P. Brotherton,
12 Judge of the 30th District Court of Wichita County,
13 January 22, 2016.
14 I FURTHER CERTIFY that the total cost
15 for the preparation of this Reporter's Record is
16 $297.50 and will be paid by Wichita County.
17 WITNESS MY OFFICIAL HAND this the 9th
18 day of February, 2016.
19
20
\S\ LESLIE C. RYAN-HASH
21 Leslie C. Ryan-Hash, CSR
Official Court Reporter
22 Cert. No. 5164/Expires 12/31/17
900 7th Street, Room 360
23 Wichita Falls, TX 76301
(940)766-8180/(940)766-8253
24 Leslie.ryan-hash@co.wichita.tx.us
25
LESLIE C. RYAN-HASH, CSR
OFFICIAL COURT REPORTER
(940) 766-8180
STATE'S EXHIBIT NO. 1
copy
WARRANT OF ARREST AND DETENTION WFPD CASE # 15-061632
WARRANT NUMBER 01-135098
WICHITA COUNTY, TEXAS BOND AMOUNT $ ( ^o^ODO,
o
In the Name of the State of Texas,
To any Sheriff, Constable or Peace Officer of the State of Texas, Greetings:
YOU ARE HEREBY COMMANDED TO TAKE INSTANTER THE BODY OF:
Jeffrey Bryan Peyton
Hereinafter referred to as the suspect, and bring the said suspect before a Magistrate in and for Wichita County,
Texas, instanter, then and there to answer the State of Texas for an offense against the laws of said State, to-wit:
Criminal Solicitation - Capital Murder
of which FELONY offense the said suspect is accused by the written affidavit, under oath of
John E. Laughlin / WFPD #571
filed before me anterior to the issuance of this warrant.
Herein fail not and due return make hereof at the place hereinafter named.
Witness my official signature this the
2nd Day of July,2015.
justicj^5f^epeace7toS^ati
o WICHITA COUNTY, TEXAS
*************************************^Q|Vjj^j5TRAj{Vg data*************************************
State of Texas vs. Jeffrey Bryan Peyton
Race: W Sex: M DOB: 05/21/1957 Ht: 508 Wt: 170
Hair: Brn Eyes: Blu DL: TX/15508343
Address: 207 Carolina Apt. B, Wichita Falls, TX 76306
Complainant: Vincent Wade Cole
Date of Offense: 06/30/2015
Arrest Warrant issued To: WCSO/WFPD/DA/JP Arrest Status: At Large
Employer: None
Employer Address: N/A
============================ =====RETURN===============================
Came to hand day of 2015, at o'clock, and executed on the day
of 2015, at o'clock M., by arresting and detaining the within named at
in Wichita County, Texas *taking his/her bond *placing
him/her in jail at.
I actually and necessarily traveled miles in the service of this writ and in addition to any other mileage I
may have traveled in the service of other process during the same trip
FEES Making Arrest. $ WFPD
Mileage J_
Taking Bond $
Commitment 1
Release L
TOTAL L BY
STATE'S
EXHIBIT
1
I^M"
COPY
WFPD CASE # 15-061632 WARRANT (DA) 01-135098
THE STATE OF TEXAS AFFIDAVIT FOR ARREST WARRANT COUNTY OF WICHITA
BEFORE ME, the undersigned authority, on this day personally appeared the undersigned affiant, who after
being duly sworn by me, on oath stated: My name is John E. Laughlin / WFPD #571, and I have good reason
to believe that on or about the 30th day of June, 2015r in Wichita County, Texas, one
NAME OF SUSPECT: Jeffrey Bryan Peyton
Did then and there commit the offense of
OFFENSE: Criminal Solicitation - Capital Murder
Aviolation of Section 15.03 of the Texas Penal Code, a Felony of the 1st degree
Affiant's belief is based upon the following facts and information:
^ Affiant's personal investigation of this alleged offense.
S Karen Wade, a fellow peace officer of the City of Wichita Falls Police Department, Wichita County,
Texas, who personally participated in the investigation of this alleged offense, providing this information to affiant,
and whose information affiant believes to be credible.
On the basis of facts developed during the investigation of this offense, it is believed that the suspect, on or about
the date of June 30. 2015. committed the offense of Criminal Solicitation - Capital Murder, at the following
location: 513 North Martin Luther King Jr. Blvd, Wichita Falls, Wichita County, Texas.
The facts also involve a:
^ accomplice: Christina June Peyton
The facts of the offense are as follows:
On 06/26/2015, a cooperating witness contacted the Wichita Falls Police Department about a possible murder
for hire. Your affiant met with the cooperating witness and he explained that subjects known to him, Jeffrey and
Christina Peyton, asked him to help them find a person willing to "take out" their daughter's boyfriend, Vincent
Cole, for three hundred dollars. The cooperating witness also provided your affiant with recordings he made of the
conversations he had with Jeffrey and Christina Peyton. Your affiant reviewed the recordings from the cooperating
witness and coroborated the information he had provided. Officer Karen Wade from the W.F.P.D. Organized Crime
Unit then assisted your affiant with a follow up investigation.
On 6/29/2015, the cooperating witness facilitated an introduction of Officer Wade to Jeffrey and Christina
Peyton. Officer Wade, posing as an intermediary for the subject to be hired, then recorded her undercover
contacts with Jeffrey and Christina Peyton. Jeffrey and Christina Peyton told Officer Wade they were willing to pay
to have their daughter's boyfriend, Vincent Cole, gone "permantly" and then arranged a meeting with Officer Wade
on 06/30/2015.
At approximately 1112 hours on 06/30/2015, the cooperating witness took Christina Peyton to a bank at her
request and direction. The cooperating witness recorded his interaction with Christina Peyton and your affiant later
reviewed the recording. Christina Peyton intimated that she was getting money from the bank to complete a
transaction with the subject the cooperating witness introduced (Officer Wade). While talking about Vincent Cole;
Christina Peyton told the cooperating witness, "I want him gone. Not out of town gone. I want him dead gone."
She also told the cooperating witness that they (Jeffrey and Christina) planned to take their daughter to a movie so
she will not be around, "the day this happens."
At approximately 1236 hours on 06/30/2015, Officer Wade contacted Jeffrey Peyton by phone and explained
that it would cost more than three hundred dollars to have someone kill Vincent Cole. Jeffrey Peyton then offered
to pay five hundred dollars to have Vincent Cole killed.
At approximately 1343 hours on 06/30/2015, Officer Wade met with Jeffrey Peyton in the parking lot of 513
North Martin Luther King Jr. Blvd.; which is located within the corporate city limits of Wichita Falls Texas. During
UUHY
ttfe recorded meeting, Jeffrey Peyton gave Officer Wade three one hundred dollar bills and promised to pay an
additional two hunderd dollars after Vincent Cole was killed. Jeffrey Peyton also provided a photograph of Vincent
Cole. Officer Wade then offered Jeffery Peyton an opportunity to back out of the transaction but he refused and
indicated that he and his wife (Christina Peyton) wanted to go through with the plan.
At approximately 1215 hours on 07/02/2015, your affiant contacted Vincent Cole and explained the before
listed. Vincent Cole then agreed to cooperate with this investigation and a photograph was created that made it
look like he had been shot to death.
At approximately 1541 hours on 07/02/2015, Officer Wade contacted Jeffrey Peyton by phone and arranged to
meet him across the street from 513 North Martin Luther King Jr. Blvd. Officer Wade met Jeffrey Peyton a short
time later and showed him the photograph of the staged dead body of Vincent Cole. Jeffrey Peyton then gave
Officer Wade two hundred dollars after viewing the photo and he was taken into custody by an arrest team.
Your affiant believes probable cause exists to show that, on or about 06/30/2015, Christina Peyton and Jeffrey
Peyton intentionally and knowingly gave remuneration and the promise of remuneration to another (undercover
Texas Peace Officer Karen Wade) to murder Vincent Cole.
WHEREFORE, Affiant requests that an arrest warrant be issued for the above accused individual in accordance with
the law.
RATE / NOTARY / CLERK OF THE COURT
SUBSCRIBED AND SWORN TO BEFORE ME on the
2nd Day of July, 2015
MAGISTRATE'S DETERMINATION OF PROBABLE CAUSE
On this the ff^- day of , 2015, I hereby acknowledge that I have examined the
mm foregoing affidavit and have/ ;rmined/hat probable cause exists for jHfve issuance_c£an_arrest warrant for the
individual accused therein.
MAGISTRATE
CENTRAL MAGISTRATE OFFICE
WICHITA COUNTY, TEXAS
CLERK'S RECORD
1 OF 1
TRIAL COURT CAUSE NO. 56208-A FILED IN
2nd COURT OF APPEALS
IN THE 30TH DISTRICT COURT FORT WORTH, TEXAS
OF WICHITA COUNTY
2/17/2016 1:28:20 PM
HONORABLE ROBERT P. BROTHERTON, JUDGE PRESIDING
DEBRA SPISAK
Clerk
THE STATE OF TEXAS
VS.
JEFFREY BRYAN PEYTON
ATTORNEY FOR APPELLANT:
BRENNON BRADY
OFFICE OF THE PUBLIC DEFENDER
600 SCOTT AVE., STE. 204
WICHITA FALLS, TX 76301
(940) 766-8199
DELIVERED TO THE COURT OF APPEALS FOR THE
2ND DISTRICT COURT
TIM CURRY CRIMINAL JUSTICE CENTER
401 W. BELKNAP
FT. WORTH, TX 76196
ON THE 17th DAY OF FEBRUARY, 2016
PATTI FLORES, DISTRICT CLERK
ÿ
/LJÿ .J -V
DIANE JENSEN /
y +U. ./
DEPUTY DISTRICT CLERK
APPELLATE COURT CAUSE NO.
FILED IN THE COURT OF APPEALS FOR THE
2n» DISTR1CT COURT
AT FT. WORTH, TEXAS
THIS _ DAY OF _
BY ,DEPUTY
1
CAUSE NUMBER 56208-A
INDEX
VOLUME PAGE
COVER PAGE I
INDEX 2-3
CAPTION 4
INDICTMENT (FILED 08-05-15) 5
AFFIDAVIT (FILED 08-06-15) 6
STATE'S READY (FILED 08-06-15) 7
ORDER SETTING PRETRIAL CONFERENCE (FILED 08-06-156) 8
J. P. PAPERS (FILED 08-06-15) 9-15
PRECEPT (FILED 08-07-15) 16
PRELIMINARY PRETRIAL MOTIONS (FILED 08-07- 15) 17-19
REQUEST FOR COMPLIANCE WITH 39. 14 (FILED 08-07- 1 5) 20-22
PRETRIAL WAIVER OF ARRAIGNMENT (FILED 08-07-15) 23-25
STATE'S INITIAL 39.14 DISCLOSURE (FILED 08-17-15) 26-30
RECEIPT OF VIDEO (FILED 08-20- 15) 31
ORDER SETTING PRETRIAL CONFERENCE (FILED 10-23-15) 32
APPLICATION FOR WRIT OF HABEAS CORPUS SEEKING BAIL
REDUCTION (FILED 12-07-15) 33-36
ORDER OF SETTING (FILED 12-09-15) 37
2
ORDER DENYING WRIT OF HABEAS CORPUS (FILED 01-22-16) 38
LETTER FROM DEFENDANT TO JUDGE (FILED 01-27-16) 39
NOTICE OF APPEAL (FILED 01-28-16) 40
TRIAL COURT'S CERTIFICATION (FILED 01-28-16) 41
ORDER SETTING PRETRIAL CONFERENCE (FILED 01-29-16) 42
DESIGNATION OF CLERK'S RECORD AND REQUEST FOR REPORTER'S
RECORD (FILED 02-02-16) 43-44
DOCKET SHEET 45
CLERK'S CERTIFICATE 46
BACK PAGE 47
3
THE STATE OF TEXAS ]
COUNTY OF WICHITA ]
In the 30th District Court of Wichita County, Texas, the Honorable ROBERT P. BROTHERTON,
Judge Presiding, the following proceedings were held and the following instruments and other
papers were filed in this cause, to wit:
Trial Court Cause No. 56208-A
The State of Texas ] In the 30th District Court
vs.
JEFFREY BRYAN PEYTON ] Wichita County, Texas
4
56208 -A : -iucp «l«/rÿ
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O'clock
CAUSE NUMBER: 01-135098-F15
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DEFENDANT: JEFFREY BRYAN PEYTON RACE: WHITE c ,, , rj.
ADDRESS: 207B CAROLINA WICHITA FALLS, TX 76306 SEX: Male Cunrf,
Uf*'\
CHARGE: CRIMINAL SOLICITATION OF CAPITAL MURDER
COMPLAINTANT: COLE,VINCENT
DOB: 05/21/ÿ957
ARREST DATE: 07/02/2015
****** • "
FILING AGENCY: WFPD AMOUNT OF BAIL: $1,000,000.00
COURT: 30TH DISTRICT COURT DATE: 07/29/2015
PRIOR CAUSE NUMBER: TRN: 9098877656
INDICTMENT
IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS:
The Grand Jury of Wichita County, State of Texas, duly organized at the JULY term, A.D. 2015, of the 30th
District Court of said county, in said court at said term, does present that JEFFREY BRYAN PEYTON,
hereinafter called defendant, on or about the 30th day of June, A.D. 2015, in said county and state did
then and there, with intent that capital murder, a capital felony be committed, request, command, or
attempt to induce Karen Wade and/or Ty Davis to engage in specific conduct, to-wit: killing Vincent Cole
in exchange for money, that under the circumstances surrounding the conduct, as the defendant
believed them to be, would have constituted capital murder.
AGAINST THE PEACE AND DIGNITY OF THE STATE. ,
MAUREEN SHELTON
Criminal District Attorney Foreman of the Granfl'jury
of Wichita County, Texas
Bond Amount $ // O gc?/
Witness(es)
5
CAUSE NUMBER: 01-135098-F15
F15 :\!j! , Off /<]!%
_MVniR.ORea, Cfark Dist
-ourts a-. County Courts at Law
DEFENDANT: JEFFREY BRYAN PEYTON RACEÿ,WHITE
SEX: Male
.Dooi-t.
ADDRESS: 207B CAROLINA WICHITA FALLS, TX 76306
CHARGE: CRIMINAL SOLICITATION OF CAPITAL MURDER DOB: 05/21/1957
COMPLAINTANT: COLE,VINCENT ARREST DATE: 07/02/2015
FILING AGENCY: WFPD AMOUNT OF BAIL: $1,000,000.00
COURT: 30TH DISTRICT COURT DATE: 07/29/2015
PRIOR CAUSE NUMBER: TRN: 9098877656
AFFIDAVIT
IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS:
Before me, the undersigned Assistant Criminal District Attorney of Wichita County, Texas, this day
personally appeared the undersigned affiant, who under oath says that he has good reason to believe
and does believe that in Wichita County, Texas, JEFFREY BRYAN PEYTON, hereinafter called defendant,
on or about the 30th day of June, A.D. 2015, in said county and state did then and there, with intent that
capital murder, a capital felony be committed, request, command, or attempt to induce Karen Wade
and/or Ty Davis to engage in specific conduct, to-wit: killing Vincent Cole in exchange for money, that
under the circumstances surrounding the conduct, as the defendant believed them to be, would have
constituted capital murder.
AGAINST THE PEACE AND DIGNITY OF THE STATE.
Sworn tcxand subscribed before me on this 29th day
Assistant Criminal District Attorney
of Wichita County, Texas
6
f
CAUSE NO. 56208-A
THE STATE OF TEXAS § IN THE 30TFF DISTRICT COURT
V. §
JEFFREY BRYAN PEYTON § \\ 1(1
STATE'S ANNOUNCEMENT OF "READY"
*
TO THE PRESIDING JUDGE OF SAID COURT:
The State of Texas, by and through the Wichita County Criminal District Attorney, makes and files this
formal announcement of "ready" in the above entitled and numbered ease and shows the Court the following:
For offense dates January I. 2014, and following, the Criminal District Attorney's policy regarding
criminal discovery is on File in the District Clerk's office. Additionally, this discovery policy is available upon
request at the Criminal District Attorney 's office.
l or offense dates before January 1. 2014, the State maintains an open file policy with the file available for
inspection during business hours; however, the State closes its file Friday at 5:00 p.m. the week preceding the trial
setting. The State's open file only extends to the evidence offered in the case-in-chief and does not apply to
rebuttal evidence or testimony.
The Wichita County Criminal District Attorney's Office has fully examined all available relevant
information concerning this case and is therefore ready to proceed to trial in this matter.
Accordingly, the Wichita County Criminal District Attorney's Office requests that this ease be placed
on the next available docket and thereafter be set for trial in the appropriate manner.
Respect fu 1 ly subm itted.
MAURFEN SHI I ION
Criminal District Attorney
Wichita County
Assistant Criminal District Attorney
Wichita County, Texas
7
No. 56208-A
THE STATE OF TEXAS * IN THE 30th DISTRICT COURT
* HLfcb littoUHL
vs * 0F
AT: ÿ O'Clockr M
___
*
JEFFREY BRYAN PEYTON * WICHITA COUNTY, TEXAS „
AUG 6 2 ill5
PATTl f-LvJritts, oierK List.
ORDER SETTING PRETRIAL CONFERENCE 0001 Uw
°y _ .. aT/.--' Doput;
1. The Pretrial Conference is scheduled for October 23, 2015 at 09:00am. The sole purpose of
the Pretrial Conference is to announce to the Court whether the case will be disposed of by the entry of a
plea of guilty or will remain on the trial docket. Counsel for the State is ORDERED to make its
settlement offer, if any, to counsel for the Defendant at least seventy-two (72) hours in advance of the
Pretrial Conference, and counsel for the Defendant is ORDERED to communicate the settlement offer,
if any, to the Defendant at least twenty-four (24) hours prior to the Pretrial Conference.
2. Leave of Court is hereby granted for the Filing of pretrial motions after the date of this order,
subject to the deadline set out below.
3. Pretrial motions must be filed no later than fifteen (15) days prior to the date of the Pretrial
Conference. Any party needing a hearing on any pretrial motion must make a request for hearing,
in writing, to the Court Administrator no later than fifteen (15) days prior to the date of the
Pretrial Conference. All such hearings will be set at least seven (7) days prior to the Pretrial
Conference.
4. Agreed Pretrial Orders, such as the order prepared by the Wichita Public Defender's Office, must
be signed by counsel for the State and defense and will be entered by the Court without the necessity of
a hearing.
SIGNED the 5th day of August, 2015.
/ , I
» '. >
L t
JUDGE PRESIDING
cc: Criminal District Attorney's Office: JOHN GILLESPIE
PUBLIC DEFENDER ~ RfXO-cLÿ
JEFFREY BRYAN PEYTON - JAILED
8
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""" X; 4 .. ;
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WFPD CASE # 15-061632 «
WARRANT (DA) 01-135098
THE STATE OF TEXAS AFFIDAVIT FOR ARREST WARRANT COUNTY OF WICHITA
BEFORE ME, the undersigned authority, on this day personally appeared the undersigned affiant, who after
being duly sworn by me, on oath stated: My name is John E. Laughlin / WFPD #571, and Ihave good reason
to believe that on or about the 30th day of June. 2015, in Wichita County, Texas, one
NAME OF SUSPECT: Jeffrey Bryan Peyton
Did then and there commit the offense of
-
OFFENSE: Criminal Solicitation Capital Murder
A violation of Section 15.03 of the Texas Penal Code, a Felony of the 1st degree
Affiant's belief is based upon the following facts and information:
03 Affiant's personal investigation of this alleged offense.
£3 Karen Wade, a fellow peace officer of the City of Wichita Falls Police Department, Wichita County,
Texas, who personally participated in the investigation of this alleged offense, providing this information to affiant,
and whose information affiant believes to be credible.
On the basis of facts developed during the investigation of this offense, it is believed that the suspect, on or about
the date of June 30. 2015. committed the offense of Criminal Solicitation - Capital Murder, at the following
location: 513 North Martin Luther King Jr. Blvd, Wichita Falls, Wichita County, Texas.
The facts also involve a:
£x] accomplice: Christina June Peyton
The facts of the offense are as follows:
On 06/26/2015, a cooperating witness contacted the Wichita Falls Police Department about a possible murder
for hire. Your affiant met with the cooperating witness and he explained that subjects known to him, Jeffrey and
Christina Peyton, asked him to help them find a person willing to "take out" their daughter's boyfriend, Vincent
Cole, for three hundred dollars. The cooperating witness also provided your affiant with recordings he made of the
conversations he had with Jeffrey and Christina Peyton. Your affiant reviewed the recordings from the cooperating
witness and coroborated the information he had provided. Officer Karen Wade from the W.F.P.D. Organized Crime
Unit then assisted your affiant with a follow up investigation.
On 6/29/2015, the cooperating witness facilitated an introduction of Officer Wade to Jeffrey and Christina
Peyton. Officer Wade, posing as an intermediary for the subject to be hired, then recorded her undercover
contacts with Jeffrey and Christina Peyton. Jeffrey and Christina Peyton told Officer Wade they were willing to pay
to have their daughter's boyfriend, Vincent Cole, gone "permantly" and then arranged a meeting with Officer Wade
on 06/30/2015.
At approximately 1112 hours on 06/30/2015, the cooperating witness took Christina Peyton to a bank at her
request and direction. The cooperating witness recorded his interaction with Christina Peyton and your affiant later
reviewed the recording. Christina Peyton intimated that she was getting money from the bank to complete a
transaction with the subject the cooperating witness introduced (Officer Wade). While talking about Vincent Cole;
Christina Peyton told the cooperating witness, "I want him gone. Not out of town gone. Iwant him dead gone."
She also told the cooperating witness that they (Jeffrey and Christina) planned to take their daughter to a movie so
she will not be around, "the day this happens."
At approximately 1236 hours on 06/30/2015, Officer Wade contacted Jeffrey Peyton by phone and explained
that it would cost more than three hundred dollars to have someone kill Vincent Cole. Jeffrey Peyton then offered
to pay five hundred dollars to have Vincent Cole killed.
At approximately 1343 hours on 06/30/2015, Officer Wade met with Jeffrey Peyton in the parking lot of 513
North Martin Luther King Jr. Blvd.; which is located within the corporate city limits of Wichita Falls Texas. During
9
the recorded meeting, Jeffrey Pt 1 gave Officer Wade three one hundret liar bills and promised to pay an
additional two hunderd dollars after Vincent Cole was killed. Jeffrey Peyton also provided a photograph of Vincent
Cole. Officer Wade then offered Jeffery Peyton an opportunity to back out of the transaction but he refused and
indicated that he and his wife (Christina Peyton) wanted to go through with the plan.
At approximately 1215 hours on 07/02/2015, your affiant contacted Vincent Cole and explained the before
listed. Vincent Cole then agreed to cooperate with this investigation and a photograph was created that made it
look like he had been shot to death.
At approximately 1541 hours on 07/02/2015, Officer Wade contacted Jeffrey Peyton by phone and arranged to
meet him across the street from 513 North Martin Luther King Jr. Blvd. Officer Wade met Jeffrey Peyton a short
time later and showed him the photograph of the staged dead body of Vincent Cole. Jeffrey Peyton then gave
Officer Wade two hundred dollars after viewing the photo and he was taken into custody by an arrest team.
Your affiant believes probable cause exists to show that, on or about 06/30/2015, Christina Peyton and Jeffrey
Peyton intentionally and knowingly gave remuneration and the promise of remuneration to another (undercover
Texas Peace Officer Karen Wade) to murder Vincent Cole.
WHEREFORE, Affiant requests that an arrest warrant be issued for the above accused individual in accordance with
the law.
C
AFFIANT MAGISTRATE / NOTARY / CLERK OF THE COURT
SUBSCRIBED AND SWORN TO BEFORE ME on the
2nd Day of July, 2015
MAGISTRATE'S DETERMINATION OF PROBABLE CAUSE
On this the / . day of .. /_ , 2015, I hereby acknowledge that I have examined the
foregoing affidavit and have
individual accused therein.
detained thar probable cause exists for the issubnCe of an arrest warrant for the
X MAGISTRATE
CENTRAL MAGISTRATE OFFICE
WICHITA COUNTY, TEXAS
10
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At>
WARRANT OF ARREST AND DETENTION WFPD CASE # 15-061632
WARRANT NUMBER 01-135098
WICHITA COUNTY, TEXAS BOND AMOUNT $ ,, .T-
In the Name of the State of Texas,
To any Sheriff, Constable or Peace Officer of the State of Texas, Greetings:
YOU ARE HEREBY COMMANDED TO TAKE INSTANTER THE BODY OF:
Jeffrey Bryan Peyton
Hereinafter referred to as the suspect, and bring the said suspect before a Magistrate in and for Wichita County,
Texas, instanter, then and there to answer the State of Texas for an offense against the laws of said State, to-wit:
Criminal Solicitation - Capital Murder
of which FELONY offense the said suspect is accused by the written affidavit, under oath of
John E. Laughlin / WFPD #571
filed before me anterior to the issuance of this warrant.
Herein fail not and due return make hereof at the place hereinafter named.
Witness my official signature this the
2nd Day of July, 2015.
justice Of the peacÿ/magistrAte"
WICHITA COUNTY, TEXAS
*************************** ********** administrative data*************************************
State of Texas vs. Jeffrey Bryan Peyton
Race: W Sex: M DOB: 05/21/1957 Ht: 508 Wt: 170
Hair: Brn Eyes: Blu DL: TX / 15508343
Address: 207 Carolina Apt. B, Wichita Falls, TX 76306
Complainant: Vincent Wade Cole
Date of Offense: 06/30/2015
Arrest Warrant issued To: WCSO/WFPD/DA/JP Arrest Status: At Large
Employer: None
Employer Address: N/A
= = ============ == ========= = == =====RETURN= =================== ===========
Came to hand _ day of _ 2015, at _ o'clock, and executed on the day
of JWy _ 2015, at _ o'clock _ M., by arresting and detaining the within named at
_ ___ in Wichita County, Texas *taking his/her bond ÿplacing
.......
him/her in jail at _ .
...........
Iactually and necessarily traveled _l_ miles in the service of this writ and in addition to any other mileage I
.......
may have traveled in the service of other process during the same trip.
FEES- Making Arrest X _ WFPD
Mileage J
Taking Bond J
Commitment $ \ \_
~$ V )
Release
TOTAL $_ _BY_ A.
V? ÿ7 /
11
THE STATE OF TEXAS
v. ,,
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A6, 6-59.)
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__ Magistrate No.
ÿ Misdemeanor- CI;Class.
ÿ state jail Felony
[fi1ÿFelony - Degree: _ i
________ _ _
CERTIFICATION OF MAGISTRATE'S WARNING, PROBABLE
CAUSE DETERMINATION, AND ORDER SETTING BOND
This is to certify that at the time and date entered below, the above-named accused appeared
before me in Wichita County, Texas, at which time and place 1 administered the following warnings
as required by the Texas Code of Criminal Procedure: A, gl->
"M}u are accused of the offense of tCrAv/.ÿÿ - i Murder
ly An affidavit signed by L
AMtk /»>1 _has been filed in this cause.
ÿ A teletype from __ ___ _ County, Texas, has been received.
You have the following rights:
--pf You have the right to retain counsel or hire an attorney. You have the right to request
appointment of counsel if you arc indigent and cannot afford to hire counsel.
You shall be allowed reasonable time and opportunity It) consult with counsel if you desire."
You have the right to have your attorney present during any interviews with peace officers
or attorneys representing the state;
You have the right to remain silent.
)/( You arc not required to make a statement and any statement made by you may be used
against you.
A You have the right to terminate or stop any interview at any time.
If you arc charged with a felony offense, you have the right to have an examining trial.
___
Are you indigent and do vou want to request that an attorney be appointed to represent you?
ÿ No CCÿcs; the forms for requesting a court-appointed attorney were furnished and the
procedures foi requesting a court-appointed attorney were explained.
[J The accused requested and was provided assistance in filling out the forms.
Are, you able to speak and understand the English language','
Yes ÿ No; _ interpreted in the
language.
_ ___
An/you deaf?
J£.j No ÿ Yes: _ interpreted.
Sufficient facts have been presented to me under oath by affidavit, sworn testimony, or otherwise to
show that probable cause exists for the continued detention of the accused. Bond is hereby:
set at $ I.bfiO OOP ÿ Denied ÿ P. R. Bond
Place: _ L__. - ÿ
. ,/ '
ÿJustice of the Pcaccg Prcl , Place
Time: /DiOCJ y A.M. P.M..
Date: A'7T , 20
/S 0 Magistrate, Wichita County, Texas
12
l/4-
STATE OF TEXAS * IN THE MUNICIPAL COURT
:
* ÿ; ÿÿ
VS * OF
IÿmAk) fav(JcW * WICHITA FALLS, TEXAS
~D (Sitting as Magistrate)
CONDITIONS OF BOND
Ihereby acknowledge that Ihave reviewed and considered the probable cause affidavit
relative to the offense(s) of AftVl . 'JaUh
, @Ap. d the above mentioned
Defendant, and have determined that conditions of bond should be imposed.
Therefore, the Court ORDERS that as a condition of bond, the Defendant shall:
A)OT MAjCL CfrOTAOT ti/TH Th ? AJ/fjtcl V/tAt'w . dft
/rifSnbr/Z c>4 Lh /tf /op /I OA-oil ft-joÿcrhzti fieAsa
._
;
-ft> mafti_ -54- /A
This ORDER is effective at '-f / 3& fXjyfr / P.M. on the ? day of _'
20 Jf), and shall remain in effect until such time as the Defendant is no longer released on bail/bond
for the offense specified above, unless otherwise specified herein.
VIOLATION OF CONDITIONS OF BOND SHALL RESULT IN THE REVOCATION OF
BOND AND THE RETURN OF THE DEFENDANT TO CUSTODY.
Icertify that on this date and in open court, the above named Defendant has been advised and
instructed as to this Order and the Conditions of Bond contained herein.
Signed at V,' 30 {k.yi. / P.M. on the 3 day of kj s L j ,20 1$
Jb< t- 'k
J. Mbnael Whalen
Magistrate
Copy provided to Defendant.
13
CAUSE no.OH"560 ÿ-
i(\vAVDWtat 6c)iaÿCdAtA-A fcy
lWfderÿU>3o
Opritfl l5-
THE STATE OF TEXAS IN THE _ :'
vs. OF
,etf BuvjH ) WICHITA COUNTY, TEXAS
ORDER APPOINTING ATTORNEY
Pursuant to application for court appointed counsel for indigent defendant heretofore presented to the
Court, and after having given the same due consideration, the Court is of the opinion that an attorney should be
appointed to represent the defendant in the above entitled and numbered cause.
It is ordered that (the Public Defender or _ , a practicing and
qualified attorney) be, and said attorney is hereby appointed as attorney for the defendant in the above entitled
and numbered cause. This appointment is effective the date of this order, or such earlier date as actual notice of
such appointment may have been given to said attorney, if the same appears anywhere in the record of this cause.
If the Public Defender is not appointed, said attorney is among the next five names on the applicable
appointment list for the offense charged.
Said attorney is not among the next five names on the applicable appointment list for
the offense charge and the good cause for this attorney to be appointed is:
Denied - not indigent.
Signed this _ _ day of 11 lv|_ , 2Ol0>.
JUDGE PRESIDING
COPIES MAILED TO:
" " ÿ
' IV' riVK ;• U;
Attorney: _ __
Attorney s Phone ff H4p) ~7t£ Lf "??! °l H
"
Court Administrator
Defendant: _ HI
14
USE INK PENS ONLY - NO PENCILS
BOOK-IN # .-4 CJ J _
R6llo59l
j
DECLARATION1 OF INABILITY TO HIRE COUNSEL
CASE NO(S):
CHARGE(S): Misd.
__ p-p-..
FelonyÿÿM?ffiirV
JUL 0 6 2015
AND REQUEST FOR COURT-APPOINTED COUNSEL UMU
"I STATE. UNDER OATH AND SUBJECT TO BEING CHARGED WITH PERJURY. THAT THE FOLLOWING
ANSWERS TO THE FOLLOWING QUESTIONS ARE TRUE. 1 AM ASKING FOR COURT -APPOINTED COUNSEL."
1. W hat is vour full legal name? Bi~ YA rJ i _
°'/ C
*2 2 C'xJjch tfe. F$[L5~[fc. "Poicb
/ 1/f 7_
What is the street address, town, state, and zip code where you live? f T S> fyp
What is vour date of birth? !
Q ÿ 2 \ { H5 1 0b 21 S
2. Are you a U. S. citizen? if you answered "No" to this last question, what is your country of citizenship?
3. What is the telephone number where you live? 7C'/- 2(ÿ1_ What is your cell phong.nutnber?
4. Who pays for the house or apartment where you live? fA C hhiSy i/\it t/Lgi&J* how- js this person related to
vou? UJ /T.J2-_ How much do they pay each month?S ST How many people live in the bouse or apartment where you
live? 2 About how much money do all the adults that you live with make together each month?S
5. Do you have any children? N <2 How many? & Do your children live with you? C> Do you get child support? -1A1 How
much each month?S 0*
If your children do not live with yÿou, do you pay child support? £ How much each month? 5 0
0. Do you have a job?_AA3_ Where do you work? I* ljifA At S iT? / __ How much do you get paid?
S IZVO0 ( mo./wk.) If you don't work right now, when is the last time you had job? \)/ft Where did you work?
_
AJ //) When is the last time you got paid? f0' f 3 How much?S p/ttV /? _
yb* iJp Do you get any welfare, disability, pension or unemployment benefits? 7-ÿs. What kind? A btUti/ SÿPÿ/ j/A . Pp.'J ÿItfJ
How much total each month? S / 2ÿ _
ÿ
7. Do you own a car or a truck or a motorcycle? /f ÿ Which ? C J- £ ____ Is it (are they) paid for? Y'L ÿ
How much is it (are they) worth? S f? dOe~
8. Do you own a house or any land? X c' Which? .AJ Is it paid for? AJ M What is it worth? S A' /ÿ
0. Do you own any furniture, appliances, televisions, stereo, or jewelry? S How much is it all w orth? S__5j2£4_
10. Do you have any cash anywhere? /ÿ* ÿ How much? S 0 Do you have any bank accounts? 6
How much money do you have in the bank? S 'ÿ 1 ÿ °L _
11. Are you in jail? XL'S How much is your bond? S /j , O GO _ Can you make your bond? AJ
_ AJ / _
_ A' /A_____ How much are you pay ing your bondsman? S_ __ ea. mo./w k.
Can anyone else make your bond? AJ Who? ft IIyou have already made bond, who
12.
is your bondsman?
Can you borrow any money from anyone to hire a lawyer? A/ 3 W ho can you borrow the money from?_ AjJP _
13. Was anybody else charged with this offense with vou? Who? Xi F%- A /i£ > £f o iaaJc. pz/T-'j
I HEREBY AUTHORIZE THE COURT ADMINISTRATOR TO VERIFY THIS INFORMATION FROM ANY SOURCE.
f$
|*l
\"J. .....
i
N.TorxvV
r\
/v" /*J
M WALKER
Notary Public, Stale ol Texas
My Commission Expires 07-09-2018
\JL $.*}** &i<ÿ
Defendant'sSJ.K»»x«.v
lyK,c„u«„x Signature
SWORN TO AND SUBSCRIBED BEFORE ME, the undersigned authority, on _ _, /_}_
20
ANSWER ALL QUESTIONS
Notary Public/Magistrate
Commission Expires: _
Revised: 03.06.08
15
PRECEPT TO SERVE COPY OF INDICTMENT -
CAUSE : 56208-A
THE STATE OF TEXAS
vs.
S County Courts
et)!W Cot$fy f Ax
PEYTON.JEFFREY BRYAN
To the Sheriff of Wichita County, said State. Greeting:
You are Hereby Commanded to forthwith deliver to PEYTON.JEFFREY BRYAN, a prisoner in
your custody, the accompanying certified Copy of Indictment.
Herein Fail Not, and due return make hereof, without delay.
Witness my signature and seal of office on this 5th day of August, 201 5
PATTI FLORES. Clerk
,ÿ
'
30th DISTRICT COURT
Wichita County
-'V*.. -*V-
'ÿ<«
DIANE JENSEN. DEPUTY
ÿ<
- A
_ _ ..
t./ ,>r <
SHERIFF'S RETURN
Come to hand on the 0U_ day ofQjJfr A.D. 20 lS. & '-3D_o'clock /Km, and executed on the same day.
at
by delivering to the within named PEYTON.JEFFREY BRYAN, a prisoner in my custody, in person, a certified
Copy of Indictment mentioned within and delivered to me with this writ.
Clerk this day of A.D. 20
.Sheriff
Wiehitaj£?t5linty, Texas
(/
72 uty
c, •
16
ÿ
°'Clock\_M
CAUSE NO. 56208-A
THE STATE OF TEXAS IN THE
tliy at
ÿy.
puntv T0;jps
VS. OF
JEFFREY BRYAN PEYTON WICHITA COUNTY, TEXAS
PRELIMINARY PRE-TRIAL MOTIONS
MAY IT PLEASE THE COURT:
I.
Open File Policy
The defendant and the undersigned understand that the prosecuting attorney has an
"open file" policy in this case and that counsel and the accused may view the contents of the
prosecuting attorney's file during regular business hours or upon other agreement at a mutually
convenient time as designated by the prosecuting attorney.
II.
Motion to List Names of Witnesses
The above defendant moves the Court to order that in the event that this matter is placed
on the trial docket or specially set for trial that the prosecuting attorney be required to file a list
the names of those fact or lay-opinion witnesses that the state expects to call at the trial of this
cause and that the state provide said list of witnesses to the undersigned at least seven (7) days
before the commencement of trial voir dire.
III.
Motion for Prior Witness Statements for Cross-Examination
The above defendant moves the Court to direct the prosecuting attorney to produce for
inspection by defendant and counsel any written statement, notes or reports, including expert
reports made by any witness, lay or expert, called by the state prior to the time that counsel
conducts his cross examination of the witness as required by law and the Texas Rules of
Evidence.
IV.
Motion for Exculpatory Evidence
The above defendant by his or her attorney moves the Court to direct the State of Texas
to disclose to the defendant and his or her attorney all exculpatory and mitigating evidence
and/or facts within the possession, custody or control of the State's Attorney, or any of his or
her agents and others the existence of which is known, or by the exercise of due diligence may
be known to said State's Attorney.
17
Further, defendant requests that the State be ordered, pursuant to Brady v. Maryland,
373 U.S. 83 (1963) and Kyles v. Whitley, 115 S. Ct. 1555 (1995) and Rule" 3.09(d) Texas
Disciplinary Rules of Professional Conduct, to exercise its affirmative duty to seek out and
learn of any evidence favorable to the defendant and to provide defendant with any evidence or
information in the possession, in control of, or known to agents of the State of Texas (directly or
constructively) which is inconsistent with the alleged guilt of the defendant or relevant
punishment which should be assessed against the defendant.
V.
Motion to Reveal the Deal
The above defendant herein in the above entitled and numbered cause, by and through
counsel, moves the Court to issue an order requiring the State to reveal any agreement entered
into between the prosecuting attorney or any other law enforcement agency and any prosecution
witness that could conceivably influence said witness' testimony.
The credibility of said witnesses will he an important issue in the principal case, and the
evidence of any understanding or agreement as to future prosecution would be relevant to such
witness' credibility and the trial jury is entitled to know of it.
A refusal to reveal any such agreement constitutes a violation of the due process
protections provided by the Fifth and Fourteenth Amendments to the United States Constitution,
Article I, Sections 10, 13, and 19 of the Texas Constitution, and Articles 1.04 and 1.05 of the
Texas Code of Criminal Procedure.
VI.
Motion for Disclosure of Expert Witnesses
The above defendant requests that the State provide the names and addresses of all
witnesses that qualify under Tex. R. Evid. Rules 702, 703, and 705 and may be called as a
witness in this case. See Tex. Code Crim. Pro. art. 39.14(b). The defendant requests the Court
order disclosure to be made not later than the 20th day before the date of trial of the instant
cause.
VII.
Motion for Discovery of Statements made by the Defendant
The defendant moves the Court to direct the prosecuting attorney to produce and/or copy
for the defendant and counsel any written statement, recorded statements, videos and/or audios
recorded statements of the defendant in the possession of the State or any agents of the State,
including all audio recordings of the defendant made by the jail telephone-recording system.
18
VIII.
Motion for Leave to Make Additional Motions
The above-named defendant, after reviewing the prosecuting attorney's file and
evidence, moves the Court to be allowed to make further and additional pre-trial motions under
Tex. Code Crim. Pro. art. 28.01 et. secj. any time up to and including seven (7) days before the
trial of this cause. The defendant further requests that any additional such motions be heard and
ruled upon before the commencement of opening statements in the case.
IX.
No Waiver of Rights
Nothing in this document should be construed by the Court as a waiver of the
defendant's rights under Tex. Code Crim. Pro. art. 1.14, the United States Constitution or the
Texas Constitution. Defendant DOES NOT WAIVE any rights afforded to him or her as
provided by law.
Respectfully submitted,
OFFICE OF THE PUBLIC DEFENDER
600 Scott Street, Suite 204
Wichita Falls, Texas 76301
Telephone: (940)766-8199
Facsimile: (940)716-8561
Bfenrion D. Brady
State Bar No. 24038120
Attorney for the Defendant
CERTIFICATE OF SERVICE
Ihereby certify that a copy of the above document was served upon all opposing counsel
according to the applicable rules of procedure on the date of the filing of this Motion.
Brennon D. Brady
19
NO. 56,208-A
ÿ
T.j >
THE STATE OF TEXAS § IN THE ,>(>'" OiS ERIC IVCOI R I
VS.
JEFF PEYTON § WICHITA COUNTY, TEXAS
REQUEST FOR COMPLIANCE WITH ARTICLE 39.14
OF THE TEXAS CODE OF CRIMINAL PROCEDURE
MAY IT PLEASE THE COURT:
Comes now the attorney of record for the defendant in this cause, and submits this
formal request to the attorney representing the State to comply with article 39.14 of the
Texas Code of Criminal Procedure to producing and permitting the inspection and the
electronic duplication, copying, and photographing, by and on behalf of the defendant of
the following:
1 . Any offense reports of any law enforcement officer or officers or investigators
involved in the investigation, arrest, and/or detention of the defendant;
2. Any documents, papers, written or recorded statements of the defendant;
3. Any documents, papers, written or recorded statements of any witness;
4. Any photographs, audio or video recordings of the defendant, witnesses,
victims, or alleged crime scenes;
5. Any books, accounts, ledgers, letters, photographs, or other tangible objects
involved in the investigation and/or prosecution of this offense;
6. Any tangible property of any type seized during any arrest, search, and/or
detention of the defendant;
7. Any evidence which is exculpatory, impeaching, or mitigating including, but
not limited to documents, items or information in the possession, custody, or
control of the State, any law enforcement agency, or any State agency;
8. The names, current addresses, and current telephone numbers, of any
witnesses which may be called by the prosecution in this cause pursuant to
Rules 702, 703, and 705 of the Texas Rules of Evidence; and
9. The criminal history of each and every person the prosecution may call as a
witness in this cause.
TCCP 39.14 request
20
This request does not include the work produet of the State's attorney in this
cause or investigators employed by the State's attorney, or their notes, or written
communications between the State's attorney and an agent, representative, or employee
of the State. However, it does extend to all items requested herein that are in the
possession, custody, or control of the State's attorney or any person under contract with
the State. The State's attorney may provide electronic duplicates of any documents or
other information.
This request extends to any time before, during or after trial that the State, its
agents, servants, and/or employees discover any additional document, item, or
information required to be disclosed pursuant to article 39.14(h) of the Texas Code of
Criminal Procedure requiring the State's attorney to promptly disclose the existence of
documents, items or information to the defendant, his/her attorney of record, and the
Court.
Additionally, defense counsel hereby requests that the State electronically record
or otherwise document any documents, items, or other information provided pursuant to
this request, setting forth each document, item or other information and the date and time
same was provided to defense counsel.
Defense counsel requests that the State's attorney comply with these requests as
soon as practicable.
Respectfully submitted,
OFFICE OF THE PUBLIC DEFENDER
WICHITA COUNTY, TEXAS
600 Scott Street, Suite 204
Wichita Falls, Texas 76301
Telephone: (940) 766-8 1 99
Facsimile: (940) 766-8198
By:
BrenrjoliÿB'radyÿ
State Bar No. 24038120
Attorney for the Defendant
i
TCCP 39.14 request
21
CERTIFICATE OF SERV ICE
This is to certify that on the date of filing, a true and correct copy of the above
and foregoing document was served on the District Attorney's Office, Wichita County,
900 7lh Street, Wichita Falls, Texas 76301, by hand delivery.
BrennotfFh-ady
Attorney for Defendant
TCCP 39.14 request 3
22
CAUSE NO. 56208-A
THE STATE OF TEXAS IN THE 30 DISTRICT COUR
ÿOuris 4
Ooufty Qrÿ,
VS. OF i„ Wichita CoV/rihi t
JEFFREY BRYAN PEYTON WICHITA COUNTY, TEXAS
Pretrial Waiver of Arraignment, Request for Notice
of Extraneous Offenses and Defendant's Objection to Evidence
1. Appearance and Waiver of Arraignment
The undersigned counsel appears as lawyer on behalf of the defendant in this case and
waives the formal arraignment of the defendant. The defendant enters a plea of "not guilty''' to
all charges and a plea of "not true" to all enhancement allegations.
2. Request for Notice
The defendant timely requests that the prosecuting attorney for the State of Texas give
counsel reasonable notice in advance of trial of the State's intent to introduce any evidence of
extraneous offenses, crimes, wrongs, convictions and/or "bad acts" in the trial of this case and
under the following particular circumstances:
1. In the State's case-in-chief such evidence other than that arising in the
same transaction. See Tex. R. Evid. 404(b).
2. In the State's effort to impeach a witness during the trial of this cause.
See Tex. R. Evid. Rule 609 (0. See e.g. Cream v. State, 768 S.W.2d 323, 326
(Tex. App. — Houston 1 14lh Dist.] 1989, no pet.).
3. In the State's casc-in-chief such evidence as is described in Tex. Code
Crim. Pro. art. 38.37 § 2. See Tex. Code Crim. Pro. art. 38.37 § 3; see e.g.
Howland v. State, 990 S.W.2d 274, 277 (Tex. Crim. App. 1999); Hitt v. State, 53
S.W.3d 697, 705 (Tex. App. — Austin 2001, pet. refd.).
23
4. During the punishment phase of trial or of issues associated with the
punishment or sentencing of the defendant. See Tex. Code Crim. Pro. art. 37.07 §
3(g).
5. If any extraneous crime or bad act that the State seeks to introduce has
not resulted in a final conviction in a court of record or a probated or suspended
sentence, then the date on which and the county in which the alleged crime or
bad act occurred and the name of the alleged victim of the crime or bad act shall
also be set forth in the State's notice pursuant to the above article. See Tex. Code
Crim. Pro. art. 37.07 § 3(g).
3. Defendant's Objection to Evidence
In addition to the foregoing request the defendant hereby objects to the State's attempt to
offer evidence without a sponsoring witness pursuant to the procedure outlined in Tex. Code
Crim. Pro. art. 38.41. In lieu of live courtroom testimony Article 38.41 permits evidence
through the filing of a certificate of analysis according to Art. 38.41 § 4. This right is
unavailable if the defendant objects. The defendant objects and demands the opportunity to
confront and cross-examine all of the witness-analysts who conducted any laboratory analysis
of the physical evidence in this case or any of the physical evidence the State intends to
introduce relevant to any extraneous offenses, bad acts or wrongs. See U.S. CONST. Amend. VI;
Tex. Const. Art. 1 § 10; Tex. Code Crim. Pro. art. 1.05.
24
Respectfully submitted,
OFFICE OF THE PUBLIC DEFENDER
600 Scott Street, Suite 204
Wichita Falls, Texas 76301
Telephone: (940)766-8199
Facsimile: (940)716-8561
Brefmon D. Brady
State Bar No. 24038120
Attorney for the Defendant
CERTIFICATE OF SERVICE
Ihereby certify that a copy of the above document was served upon all opposing
counsel according to the applicable rules of procedure on the date of the filing of this
Motion.
25
Criminal Case No. 56208-A
THE STATE OF TEXAS Cifv IfcOHtcj <'.Vk
U0Uf*fl#™* &»#*'* l-
V.
JEFFREY BRYAN PEYTON
THE STATE'S INITIAL 39.14 DISCLOSURE
The State of Texas files this INITIAL DISCLOSURE pursuant to Article 39.14 of the
Texas Code of Criminal Procedure. In addition to the items electronically disclosed (and listed
below), there may be items such as video, audio, and tangible evidence that are available at the
District Attorney's Office for inspection and electronic copying.
It is the duty of the defense attorney to make an appointment with the District Attorney's
Office to review any of these items of tangible evidence ( such as videos, audios, or physical
evidence). Additionally, while the State will produce any audio or videotapes available for
electronic reproduction after the defense attorney sets up an appointment, the State will not make
the copies or furnish the equipment to make the copies. It is the duty of the defense attorney to
bring the equipment to make the electronic copies.
The District Attorney's Office maintains a log of potential impeachment information on
past and present local law enforcement officers. A defense attorney may view this log by
contacting the DA Investigator assigned to this case.
Jail phone calls can be listened to and copies can be obtained at the Wichita County
Sheriff's Office by appointment. These calls are being produced by the District Attorney's
Office at the Wichita County Sheriff's Office on an ongoing basis. Therefore, it is the duty of
the defense attorney to check as often as they deem necessary to obtain additional calls made
after this date.
The items listed in Exhibit A have been disclosed to the defense counsel.
26
Respectfully submitted,
Maureen Shelton
Criminal District Attorney
ity; Texas
JOljlN GILLESPIE
Assistant Criminal District Attorney-
Texas Bar No. 24010053
3rd Floor, Wichita County Courthouse
Wichita Falls, Texas 76301
Telephone: (940) 766-81 13
Telefax: (940) 7 16-8530
Certificate of Service
1 certify that a true and correct copy of the State's INITIAL 39.14 DISCLOSURE was
sent via hand delivery on the 17th day of August. 2015 to Brennon Brady by Margie Boone
putting it in the Public Defender's drop box in the District Clerk's Office.
JOHN GILLESPIE
ÿj
27
EXHIBIT A
Delivery Document Detail No. of Delivery
Date Pages Method
08/14/2015 Reports Supp by dilbeck
Reports Supp by davis
Reports Supp bv wade
Reports Incident
Evidence Evidence on hand
Reports Arrest warrant/affidavit
Reports Supp by laughlin
Reports Case packet checklist
Reports Prosecution
Notice of items not Cds
uploadable
Evidence Bank records/first convenience 14
hank (destinee vvilcox bv
Christina vvilcox)
Evidence Bank records/first convience 18
bank (Christina vvilcox or
Jeffrey pcyton)
Evidence Bank records/first convenience
hank < Jeffrey peyton or
Christina vvilcox)
Reports Supp by laughlin
Evidence Bank records/first convenience
bank (jeffrey pcy ton or
Christina vvilcox)
Reports Supp by sanche/
Reports Supp by lerguson
Reports Supp by sacn/
Reports Supp by vvyrick
Reports Supp by lerguson
Reports Supp by sheehan
Reports Supp by o/.una
Reports Supp by li
Reports Supp by keith
Reports Supp by miller
Reports Consent to search (signed by
jeffrey pcyton)
Reports Supp by scluilte
Reports Arrest (christina June peyton)
Central magistrate Order setting bond (christina
filings June peyton)
Reports Caw enforcement report
Criminal history Neie, tcic
Criminal history Wfpd rap sheet
Reports Txdps driver license image
28
retrieval - search results
Reports Transcriptions of recordings 170
Reports Miranda warning I
Reports Txdps driver license image I
retrieval - search results
Notice of items not Cds 13
uploadable
29
Gillespie, John
From: Gillespie, John
Sent: Friday, August 14, 2015 3:46 PM
To: Brady, Brennon
Subject: Jeffrey Peyton Initial Discovery 56,208-A
Attachments: 01-135098_14AUG2015_0344pm.zip
Your message is ready to be sent with the following file or link attachments:
01-135098_14AUG2015_0344pm
Note: To protect against computer viruses, e-mail programs may prevent sending or receiving certain types of file
attachments. Check your e-mail security settings to determine how attachments are handled.
t
30
-
-
- - ;
CAUSE NO. $"6, - A_ Al'G' >
THE STATE OF TEXAS § IN THE 30ÿ iXy
:
§ ?>sr
V. § OF
_ l>ÿ(e O
ÿ
Jt f-fr< ÿ Ytÿ Vx § WICHITA COUNTY, TEXAS
RECEIPT OF VIDEO
This document serves to certify that the item(s) listed below was transmitted
via hand delivery to 1)» ~X?&
t- ÿ"(lie attorney retained to represent the
defendant in this matter.
The undersigned acknowledges that he has received _ DVD(s) containing
the electronically recorded statements of the defendant. The D.A.'s office certifies
that the DVD(s) delivered contain true and accurate copies of the:
ÿ Patrol Car Video ÿ Intoxilyzer Room Video
Other: 6> C J DÿTXs_
Received: /'V\ /V\qr l~ T\ÿlgls Date: IT / \
_L v . -r
r'A'n f r'Lsyrÿ zx vioU\ lJySI,
Courts & County Gburts at Law ÿ
THE STATE OF TEXAS § IN THEÿÿEÿSfg QQtlHiT
V. § OF
§
JEFF PEYTON § WICHITA COUNTY, TEXAS
APPLICATION FOR WRIT OF HABEAS CORPUS
SEEKING BAIL REDUCTION
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes JEFF PEYTON, Defendant, by and through his attorney of record,
and makes this Application for Writ of Habeas Corpus Seeking Bail Reduction, and for
good cause shows the following:
1. JEFF PEYTON was arrested on July 2, 2015 and is presently confined in
the Wichita County Jail charged with Criminal Solicitation of Capital Murder , a first
degree felony.
2. Bail has been set in this case in the amount of $100,000.00. JEFF
PEYTON has been held under bail of $100,000.00 since the date of his arrest.
3. JEFF PEYTON's confinement and restraint is illegal because his bond is
excessive, oppressive and beyond his financial means, in violation of the Eighth and
Fourteenth Amendments to the United States Constitution, Article I, §§ 11, 13 and 19 of
the Texas Constitution, and Articles 1 .09 and 17. 1 5 of the Texas Code of Criminal
Procedure.
4. JEFF PEYTON respectfully requests this Court to grant him a personal
recognizance bond because he cannot afford to make bail in any amount. Unless a
personal recognizance bond is granted, he will be forced to remain in jail pending
33
disposition of this case.
5. In the alternative, JEFF PEYTON respectfully requests the Court to conduct an
evidentiary hearing and, after receiving evidence, reduce bail to a reasonable amount in
order that JEFF PEYTON may be able to obtain release from incarceration pending trial.
WHEREFORE, JEFF PEYTON prays that Court direct the Sheriff of Wichita
County, Texas to produce JEFF PEYTON before this Court at such time and place to be
designated by the Court, for an evidentiary hearing. JEFF PEYTON further asks the
Court to grant him a personal recognizance bond or, in the alternative, set bail in a
reasonable amount.
Respectfully submitted,
OFFICE OF THE PUBLIC DEFENDER
600 Scott Street, Ste. 204
Wichita Falls, Texas 76301
(940) 766-8199
(940) 716-8561
Brennon Brady
Attorney for Defendant
State Bar No. 24038120
34
CERTIFICATE OF SERVICE
This is to certify that on the date of tiling, a true and correct copy of the above
and foregoing document was delivered to the District Attorney's Office, Wichita County,
Wichita County Courthouse, 900 7lh Street, Wichita Falls, Texas 76301, by hand
delivery.
Brennon Brddy.
Attorney for Defendant
35
AFFIDAVIT
THE STATE OF TEXAS §
§
COUNTY OF WICHITA §
BEFORE ME, the undersigned authority, on this day personally appeared Brennon Brady,
Assistant Public Defender, who being by me duly sworn, upon oath deposes and says,
"I am Brennon Brady, attorney for the defendant in this cause; I have read the above and it is true
and correct to the best of my knowledge."
Affiant
SUBSCRIBED AND SWORN TO BEFORE ME on , 2015, to certify
which witness by hand and seal of office.
!
ÿÿ ÿ:< rX L /
JANET CANNEDY
Notary ID# 12879255-5
My Commission Expires
November#, 2019
36
PILED FOR OL-COPD
AT: O'clock.J ivt
CAUSE NO. 56208-A
IP."
* L.
«v e l'JIJ
?om
THE STATE OF TEXAS IN THE 30th DISTRICT COURT
n
Courts
oieiK 0«St.
& woOnty Courts at Law
V. OF r;. WtetÿtaCounfy, Texas
JEFF PEYTON WICHITA COUNTY, TEXAS
ORDER OF SETTING
On ;2 , 201 5, cainc to be heard JEFF PEYTON's Application
for Writ of Plabeas Corpus Seeking Bail Reduction. It is ORDERED that the motion is set
for hearing before me on c\iAt\U(Xyv/l rP- 20 R\ at ÿ\sQ{J o'clock L\ .m.
.r
Signed on n,'% / \
L L i Ik.-l ?v . /
JUDGE PRESIDING
37
Pm
M
NO. 56208-A
MM 2 2 20 IS
THE STATE OF TEXAS § INTHE 30U i/te,IOTRI£ÿ£Q\JRT
VS. OF
__Depu*>
JEFFREY PEYTON WICHITA COUNTY, TEXAS
ORDER DENYING WRIT OF HABEAS CORPUS
On this the 22nd day of January 2015, came for consideration Defendant's
Application For Writ of Habeas Corpus Seeking Bail Reduction. The Court after
hearing the evidence and considering the law applicable to the case hereby DENIES
the bail reduction. Bail is continued in the amount of $1,000,000.00.
Signed on this the 22nd day of January 2015.
> , ' ) )
L
L (. lLUlO '
Presiding Judge 30th District Court
38
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f-nfÿ
4j 5 C Z£g~ /I M
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jl(rnÿ'uM(jL ÿxc/ÿe QqA- P/lÿAUaAÿ
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Aaiÿ2Suÿÿi.JSjÿ
'Ml&Jc (XfAjSÿksiK oJAix-Ajniÿ &xcLu.(4ji_ ÿ /$xÿ (IjÿaALxsl.
oÿMUL .Hal Aÿ2ÿAA\,tjjj ~fctr fvAJÿ CÿXjl, yÿLixA- ci-v-J >
ÿAuy v-\ (AJ.lLL $JL CjAJurfAÿ Aÿÿyi£XUAAÿJ L
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(p--gAyÿ-ggÿz 'ÿmAg
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ZdpAk4%AZLp47
NO. 56208-A JAM 2 8 2tfiS
THE STATE OF TEXAS § IN THE 30™
§
VS. § OF
/
§
JEFF PEYTON § WICHITA COUNTY, TEXAS
NOTICE OF APPEAL
NOW COMES, JEFF PEYTON, Defendant in the above entitled and numbered cause,
and hereby gives NOTICE OF APPEAL from the order denying the defendant's application for
writ of habeas corpus.
Respectfully submitted,
OFFICE OF THE PUBLIC DEFENDER
405 Wichita County Courthouse
Wichita Falls, Texas 76301
(940) 766-8199
Brennon D. Brady
Attorney for Defendant
State Bar No. 24038120
40
CAUSE NO. 56208-A
AT: ...... .
MLED hfcjfi RfcCOtÿc
ÿ O'Cloqk - M
JAN 2 8 2 (MS
THE STATE OF TEXAS § IN THE 30 1 H DIST fkUfcf Catfils at Law
Wichita Counjfttfex&s
/ Hp*
/
'
V. § OF
JEFF PEYTON § WICHITA COUNTY, TEXAS
TRIAL COURT'S CERTIFICATION OF DEFENDANT'S RIGHT OF APPEAL
I, judge of the trial court, certify this criminal case:
_ is not a plea-bargain case, and the defendant has the right of appeal.
_ is a plea-bargain case, but matters were raised by written motion filed and ruled on before
trial and not withdrawn or waived, and the defendant has the right of appeal.
_ is a plea-bargain case, but the trial court has given permission to appeal, and the defendant
has the right of appeal.
X involves another appealable order: Application for Writ of Habeas Corpus.
_ is a plea-bargain case, and the defendant has NO right of appeal.
_ the defendant has waived the right of appeal.
CC T i'ÿ l*~ '
i i II-
ÿ
Judge Date Signed
I have received a copy of this certification. I have also been informed of my rights concerning any
appeal of this criminal case, including any right to file a pro se petition for discretionary review
pursuant to rule 68 of the Texas Rules of Appellate Procedure. I have been admonished that my
attorney must mail a copy of the court of appeals' judgment and opinion to my last known address
and that I have only 30 days in which to file a pro se petition for discretionary review in the court of
appeals. Tex. R. App. P. 68.2. I acknowledge that, if I wish to appeal this case and if I am entitled to
do so, it is my duty to inform my appellate attorney, by written communication, of any change in the
address at which I am currently living or any change in my current prison unit. I understand that,
because of appellate deadlines, if I fail to timely inform my appellate attorney of any change in my
address, I may lose the opportunity to file a pro se petition for discretionary review.
Defendant / Defedafrt's'Counsel
Mailing address: State BarofTX ID #24038120
Telephone number: Mailing address: 600 Scott St. Ste. 204, WF, TX
Fax# (if any) 76310
Telephone number: 940-766-8199
Fax# 940-716-8561
41
No. 56208-A
THE STATE OF TEXAS * IN THE
30pi
VS. * OF AT: _C4-±-~ // I O'CioOk M
*
JEFFREY BRYAN PEYTON * WICHITA COUNTÿH'lM-A§1f )
PATTI FLGRE5, Cterk Disk
Courts & County Courts at Lav/
Wichita County, Tjjxas
ORDER SETTING PRETRIAL CON KfcREXCE.
1. The Pretrial Conference is scheduled for April 29, 2016 at 09:00am. The sole purpose of the
Pretrial Conference is to announce to the Court whether the case will be disposed of by the entry of a
plea of guilty or will remain on the trial docket. Counsel for the State is ORDERED to make its
settlement offer, if any, to counsel for the Defendant at least seven (7) days in advance of the Pretrial
Conference, and counsel for the Defendant is ORDERED to communicate the settlement offer, if any, to
the Defendant at least twenty-four (24) hours prior to the Pretrial Conference.
2. Leave of Court is hereby granted for the filing of pretrial motions after the date of this order.
subject to the deadline set out below.
3. Pretrial motions must be filed no later than fifteen (15) days prior to the date of the Pretrial
Conference. Any party needing a hearing on any pretrial motion must make a request for hearing,
in writing, to the Court Administrator no later than fifteen (15) days prior to the date of the
Pretrial Conference. All such hearings will be set at least seven (7) days prior to the Pretrial
Conference.
4. Agreed Pretrial Orders, such as the order prepared by the Wichita Public Defender's Office, must
be signed by counsel for the State and defense and will be entered by the Court without the necessity of
a hearing.
SIGNED the 29th day of January, 2016.
( L c Ln UV 1
JUDGE PRESIDING
Criminal District Attorney's Office: JOIFN GILLESPIE
BRENNON BRADY
JEFFREY BRYAN PEYTON - JAILED
42
AT '
4EED FOR RECORD
NO. 56208-A
1* EB 0 2 ZJ16
---
r.PAJrLFi?,;iFS' Clerk Dist.
Goÿ® & c%pty Courts at Law
THE STATE OF TXAS § IN THE 30|h DlSlÿr
—-- \
— — l_Deputy
vs. § OF
JEFFREY BRYAN PEYTON § WICHITA COUNTY, TEXAS
DESIGNATION OF CLERK'S RECORD
AND REQUEST FOR REPORTER'S RECORD
TO THE DISTRICT CLERK:
1. Index;
2. The Defendant's Application for Writ of Habeas Corpus;
3. The Order Defendant's Application for Writ of Habeas Corpus;
4. The written Notice of Appeal;
5. The notes of the reporter (reporter's record) a separate request
has been made to the reporter.
6. All other written papers maintained by you in the file of this cause;
7. This designation of record and request for reporter's record.
TO THE OFFICIAL COURT REPORTER:
The above-named defendant having previously been determined indigent
hereby requests that you prepare a reporter's record in this case for submission on
appeal. Defendant requests that you prepare this reporter's record in accordance
with the Texas Rules of Appellate Procedure and file this record in the appropriate
time (including any extensions). Defendant request that this record include all
Designation of Record Page 3
43
proceedings taken by you in the hearing on Defendant's Application for Writ of
Habeas Corpus held on January 22, 2016.
A COPY OF THE DOCUMENT HAS BEEN HAND-DELIVERED TO
THE OFFICIAL COURT REPORTER.
Respectfully submitted,
WICHITA COUNTY
PUBLIC DEFENDER'S OFFICE
600 Scott Ave., Suite 204
Wichita Falls, Texas 76301
(940) 766-8199 (Tel.)
(940) 716-8561 (Fax)
By: _ ._ ÿ
: _
Brennon D. Brady
State Bar No. 24038120
CERTIFICATE OF SERVICE
*!
On the J_ day of February, 2016, a copy of the foregoing document was
served upon the Wichita County District Attorney, Wichita County Courthouse,
Wichita Falls, Texas, by hand-delivery..
Brennhn D. Brady
Designation of Record Page J
44
STATE OF TEXAS Vs.
CJ forÿOOA PcMÿTN
56208-AOffense £jr ImrU>\«J2
No. 9-5-
ÿol lC.HijdnJY\ Dr Cup UVU. f <7te K
DISPOSITION OF CASE:
DETAINER _
1
(CRIMINAL) DISTRICT COURT . CRIMINAL DOCKET 2
TRANSFERRED TO _ Right 3
Thumb Print
COMPLAINT FILED. BOND SET AT S 4
(Q-25-K M±L State's Attorney _
/ÿ ZZ- t& "fn iy A-ol H C — kyvfll - On Probation Revocation
/cL?<£ - UR. /C- Defendant's Attorney _
'•3H \L PTC oAeflLUJ - 2ÿu5arlÿran5pcr4 On Probation Revocation
_
Surety
Appeals Attorney
45
THESE ARE CRIMINAL DISTRICT COURT PAPERS AND MUST NOT BE REMOVED •e Spriuell Business Ft tuns • (92 S.W.3d 566 (Tex. App.—Austin 2002, pet. ref d)..................................... 5
Clemons v. State,
220 S.W.3d 176 (Tex. App.—Eastland 2007, no pet.) ................................... 4
Ex parte Hunt,
138 S.W.3d 503 (Tex.App.—Fort Worth 2004, pet. ref’d) ............................ 4
Montgomery v. State,
810 S.W.2d 372, 380 (Tex. Crim. App. 1990). .............................................. 4
Ex parte Rubac,
611 S.W.2d 848 (Tex. Crim. App. [Panel Op.] 1981) ................................ 4, 6
Texas Statutes and Constitution
TEX. CODE CRIM. PROC. art. 17.15 ....................................................................passim
TEX. CODE CRIM. PROC. art. 42.12 § 4(d)(1) ......................................................6, 7, 8
TEX. CONST. art. I § 11 ............................................................................................. 4
TEX. CONST. art. I § 13 ............................................................................................. 4
TEX. PEN. CODE § 15.03(d)(1) .............................................................................. 8, 1
iv
STATEMENT OF THE CASE
This is an appeal from the denial of an application of writ of habeas corpus
seeking bail reduction.1 Police officers arrested Applicant (hereinafter-called
Peyton) on July 2, 2015, for a single count of solicitation to commit capital
murder.2 A magistrate set bail at $1,000,000.00.3 Peyton’s attorney filed an
application for writ of habeas corpus seeking bail reduction on December 7, 2015.4
The trial court held a hearing on the writ application on January 22, 2016.5 After
hearing evidence on the application, the trial court denied the application and bail
remained at $1,000,000.00.6 The trial court certified Peyton’s right to appeal and
Peyton timely filed his notice of appeal.7
STATEMENT REGARDING ORAL ARGUMENT
Peyton does not request oral argument due to the settled law governing the
issue presented in this case.
ISSUE PRESENTED
The trial court abused its discretion when it refused to reduce Peyton’s bail
to an amount he could actually make.
1
C.R. pg. 33.
2
C.R. pgs. 9-10.
3
C.R. pg. 12.
4
C.R. pg. 33.
5
C.R. pg. 37.
6
C.R. pg. 38.
7
C.R. pgs. 40, 41.
1
STATEMENT OF FACTS
Peyton is a disabled 58-year-old navy veteran who served his country from
1974 to 1978.8 Peyton is indigent and is represented by the Public Defender’s
Office.9 Peyton’s criminal history includes nothing over a class C misdemeanor.10
Peyton does not have any violence in his criminal history.11 Other than this
allegation no evidence was presented that Peyton has ever evaded law
enforcement, failed to appear for court, or that he is an actual danger to the
community.
Peyton and his wife Christina stand accused of attempting to hire a hit man
to murder their daughter’s boyfriend Vincent Cole.12 Police officers posed as
intermediaries between Peyton and the nonexistent hit man. Peyton paid the
undercover officer a $300.00 down payment and a final payment of $200.00 after
being shown a staged photo of the death of the intended victim. Police officers
arrested Peyton at the time he made the final payment. Bail was set at
$1,000,000.00 by the magistrate.13
8
R.R. pgs. 7-8.
9
C.R. pg. 14.
10
R.R. pg. 8.
11
R.R. pg. 8.
12
C.R. pgs. 9, 10.
13
C.R. pg. 12.
2
Peyton has lived in Wichita Falls for the past 25 years with his wife.14
Peyton testified that he is willing to comply with conditions of bail such as curfew,
home confinement, electronic monitoring, and drug testing if released.15 Peyton
testified he is able to make a reasonable bond of $10,000.00 by selling his
firearms.16 Peyton has limited income from the VA and his disability benefits,
which total $1240.00 per month.17 Peyton has approximately $1,500.00 in his bank
account.18
SUMMARY OF THE ARGUMENT
The trial court erred in refusing to reduce Peyton’s bail to an amount he
could actually make. When a presumed innocent citizen is detained pretrial, there
should be a strong presumption in favor of setting bail in an amount the citizen can
actually make absent a strong showing that the citizen is a substantial flight risk or
a danger to the community or victim.
ARGUMENT
Standard of Review
This Court reviews the trial court’s ruling on a motion to reduce bail under
an abuse of discretion standard.19 To determine whether abuse occurred, this Court
14
R.R. pg. 8.
15
R.R. pg. 10.
16
R.R. pg. 9.
17
C.R. pg. 15.
18
C.R. pg. 15.
19
Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981).
3
must decide whether the trial court acted without reference to any guiding rules or
principles, whether the act was arbitrary or unreasonable.20 The court must not
disturb the trial court’s ruling if it was within the zone of reasonable
disagreement.21
Applicable law
The Texas Constitution ensures that "all prisoners shall be bailable by
sufficient sureties, unless for capital offenses, when the proof is evident."22 A
defendant who is not facing a capital offense is entitled to reasonable bail, more
precisely, bail that is not excessive or oppressive.23 The guiding principles found in
article 17.15 of the Texas Code of Criminal Procedure are the legislative effort to
implement the constitutional right to bail.24 Article 17.15 leaves the setting of bail
to the discretion of the court or magistrate, but it sets forth five rules that, together
with the constitution, govern the exercise of that discretion.25 The statutory factors
that guide the courts are as follows:
1. The bail shall be sufficiently high to give reasonable assurance that the
undertaking will be complied with.
20
Ex Parte Hunt, 138 S.W.3d 503, 505 (Tex. App—Fort Worth 2004, pet. ref’d) citing
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
21
Clemons v. State, 220 S.W.3d 176, 178 (Tex. App.—Eastland 2007, no pet.).
22
Tex. Const. art. I, § 11.
23
Tex. Const. art. I, § 13; Tex. Code Crim. Proc. Ann. art. 1.09 (West 2015). Tex. Code Crim.
Proc. Ann. art. 17.15 (West 2015).
24
Tex. Code Crim. Proc. Ann. art. 17.15 (West 2015); Ex parte Beard, 92 S.W.3d 566, 568 (Tex.
App.—Austin 2002, pet. ref'd).
25
Beard, 92 S.W.3d at 568.
4
2. The power to require bail is not to be so used as to make it an instrument
of oppression.
3. The nature of the offense and the circumstances under which it was
committed are to be considered.
4. The ability to make bail is to be regarded, and proof may be taken upon
this point.
5. The future safety of a victim of the alleged offense and the community
shall be considered.26
The primary purpose of pretrial bail is to secure presence of defendant.27
Courts may also consider other factors when assessing whether the amount of bail
is reasonable such as work record, community ties, length of residency, prior
criminal record, and aggravating circumstances alleged to have been involved in
the charged offense.28
Discussion and Analysis
Bail Sufficient to Assure Appearance but not Oppress
The first, second, and fourth factors of article 17.15 go to assuring the
defendant’s presence in court without oppression.29 Peyton will appear and face
these charges. Peyton testified that upon release he would live at the French
Quarter Apartments with a friend.30 He also has friends willing to take him to his
26
Tex. Code Crim. Proc. Ann. Art. 17.15 (West 2015).
27
Beard, 92 S.W.3d at 568.
28
Rubac, 611 S.W.2d at 849-50.
29
Tex. Code Crim. Proc. Ann. art. 17.15 (West 2015).
30
R.R. pg. 9.
5
court appearances.31 Peyton testified he is willing to submit to conditions of bond
such as curfew, home confinement, and electronic monitoring.32 Peyton offered
uncontroverted testimony that he is not a flight risk.33 Peyton testified that he
would only leave the jurisdiction to visit the VA hospital and would get permission
from the court prior to leaving.34 The State offered no evidence that Peyton is a
flight risk or that he is unlikely to appear for his court appearances. 35
Bail should not be used as an instrument of oppression, and the court should
consider Peyton’s ability to make bail.36 It is uncontroverted that Peyton cannot
post a $1,000,000.00 bond. Peyton was determined to be indigent by the court and
is represented by the Public Defender’s Office.37 Peyton’s limited monthly income
of $1240.00 comes from his VA and disability benefits.38 Peyton testified that he
would be able to make bond if his bail were reduced to $10,000.00.39 Peyton
testified he has a number of firearms that he is willing to sell in order to raise
31
R.R. pg 9
32
R.R. pg. 10.
33
R.R. pg. 10.
34
R.R. pgs. 10-11.
35
The State only offered the probable cause affidavit and asked the court to take judicial notice
of the indictment. R.R. pg 12.
36
Tex. Code Crim. Proc. Ann. art. 17.15 (West 2015).
37
C.R. pgs. 14-15.
38
C.R. pg. 15; R.R. pg. 10.
39
R.R. pg. 9.
6
funds.40 Setting bail at $1,000.000.00 for an indigent defendant is the equivalent of
denying bail.
Nature and Circumstances of the Charged Offense
The nature of the offense and the circumstances under which it was
committed is the third factor in article 17.15.41 Peyton is accused of trying to hire a
hit man to kill his stepdaughter’s boyfriend.42 Solicitation of capital murder is a
non-capital first degree felony offense with a range of punishment of life or any
term of not more than 99 nor less than 5 years.43 Peyton is eligible for community
supervision should the jury choose to sentence him to 10 years or less.44
Solicitation of capital murder is a serious offense; however, the intended victim
was never harmed. A parent’s instinct is to protect their children from perceived
harm and the only reasonable explanation as to why a law abiding citizen would
engage in such behavior is to protect their child from a credible threat.
Future Safety of the Victim and the Community
Reasonable conditions of bail will ensure the safety of the intended victim.
Home confinement and electronic monitoring would assure Peyton not leave his
home except for court approved activities. The magistrate has already ordered
40
R.R. pg. 9 line 15.
41
Tex. Code Crim. Proc. Ann. art. 17.15 (West 2015).
42
C.R. pg. 6.
43
Tex. Penal Code § 15.03(d)(1)(West 2015).
44
Tex. Code Crim. Proc. Ann. art. 42.12 § 4(d)(1)(West 2015).
7
Peyton refrain from any contact with the victim.45 The safety of the community is
assured because Peyton has no prior felony convictions and aside from class C
misdemeanors, he has been a law-abiding citizen for his entire life.
Other Factors
Other factors to consider are that Peyton is a disabled 58-year-old honorably
discharged United States Navy veteran.46 The fact that he is a veteran who has
served his country honorably should carry great weight in favor of his pretrial
release. Peyton is a resident of Wichita Falls for the past 25 years.47 Peyton’s past
legal troubles consist of a few unpaid tickets and public intoxications, which is
nothing that could justify an oppressive bail of $1,000,000.00.
CONCLUSION AND PRAYER FOR RELIEF
1. When a presumed innocent citizen is detained pretrial, there should be a
strong presumption in favor of setting bail in an amount the citizen can
actually make absent a strong showing that the citizen is a substantial
flight risk or a danger to the community or victim.
2. Except in extremely rare circumstances, setting bail at $1,000,000.00 is
the equivalent of a denial of bail for an indigent defendant and we ask
that this Court make that finding.
45
C.R. pg. 13.
46
R.R. pg. 7-8.
47
R.R. pg. 8.
8
3. Given the relevant factors considered above, Peyton should have his bail
reduced to an amount he can actually make.
4. Peyton asks this Court to reverse the trial court and render bail set at
$10,000.00.
Respectfully submitted,
OFFICE OF THE PUBLIC DEFENDER
WICHITA COUNTY, TEXAS
600 Scott Street, Ste. 204
Wichita Falls, Texas 76301
Phone: (940) 766-8199
Fax: (940) 716 8651
brennon.brady@co.wichita.tx.us
/s/ Brennon d. Brady
Brennon D. Brady
State Bar No. 24038120
ATTORNEY FOR APPLICANT
9
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. P. 9 .4, the undersigned certifies that this brief complies
with the type-volume limitations.
1. This entire appeal including footnotes has 2323 words as indicated by the word
count function of the word processor.
2. This brief has been prepared in proportionately spaced typeface in Times New
Roman, 14 pt. font except for footnotes which are in 12 pt. font.
3. If the Court requests, the undersigned will provide a print version of the brief
and/ or copy of the word or line printout.
4. The undersigned understands a material misrepresentation in completing this
certificate; or circumvention, of the type-volume limits, may result in the Court's
striking the brief and imposing sanctions against the person signing the brief.
Respectfully submitted,
/s/ Brennon D. Brady
Brennon D. Brady
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing brief was duly
delivered to Jennifer Ponder, Assistant Criminal District Attorney, Wichita County
Courthouse, Wichita Falls, Texas, 76301, on this the 23 day of March, 2016. By
email delivery to jennifer.ponder@co.wichita.tx.us.
BY: /s/ Brennon D. Brady
Brennon D. Brady
TX Bar No. 24038120
ATTORNEY FOR APPLICANT
10
ACCEPTED
02-16-00029-CR
SECOND COURT OF APPEALS
FORT WORTH, TEXAS
4/12/2016 3:24:02 PM
DEBRA SPISAK
CLERK
Cause No. 02–16–00029–CR
In the Court of Appeals, Second District FILED IN
2nd COURT OF APPEALS
Fort Worth, Texas FORT WORTH, TEXAS
4/12/2016 3:24:02 PM
DEBRA SPISAK
Clerk
Ex Parte Jeffrey Peyton
Appeal from the 30th District Court of Wichita County, Texas
Cause No. 56,208-A, The Honorable Robert Brotherton Presiding
The State’s Brief
Maureen Shelton
Wichita County Criminal District Attorney
John Gillespie John Brasher
Asst. Criminal District Attorney Asst. Criminal District Attorney
Wichita County, Texas Wichita County, Texas
State Bar No. 24010053 State Bar No. 02907800
John.Gillespie@co.wichita.tx.us John.Brasher@co.wichita.tx.us
900 Seventh Street Jennifer Ponder
Wichita Falls, Texas 76301 Asst. Criminal District Attorney
(940) 766-8113 phone Wichita County, Texas
(940) 766-8530 fax State Bar No. 24083676
Jennifer.Ponder@co.wichita.tx.us
Attorneys for the State
The State of Texas
Oral Argument Waived
IDENTITY OF THE PARTIES & COUNSEL
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), the State
adopts the Identities of Parties and Counsel set out in the APPELLANT’S BRIEF, with
the following supplements:
John Brasher
Assistant Criminal District Attorney, Wichita County
Attorney for the State on appeal
900 Seventh Street
Wichita Falls, Texas 76301
2
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL……………………………………………... 2
TABLE OF CONTENTS……………………………………………………………... 3
INDEX OF AUTHORITIES……………………………………………………….….. 5
STATEMENT OF THE CASE……………………………………………………........ 7
STATEMENT REGARDING ORAL ARGUMENT ……………………………………... 7
ISSUE PRESENTED………………………………………………………………… 7
I. Whether the trial court abused discretion in refusing to lower Applicant’s
bail of one million dollars incurred for solicitation of capital murder.
STATEMENT OF FACTS…………………………………………………………….8
SUMMARY OF THE ARGUMENT…………………………………………………… 11
ARGUMENT……………………………………………………………………….. 12
I. Applicant is not entitled to a bond reduction because he did not meet his
burden to prove the trial court abused discretion by acting outside the zone
of reasonable disagreement, nor did the trial court abuse its discretion
when examining its decision in light of Article 17.15 and other factors……...12
A. Applicant has not provided sufficient information for this Court to rule
in his favor…………………………………………………………………14
1. Applicant has not adequately briefed this issue because he included
no authority to support his interpretation of the facts…………………. 14
2. Even if Applicant has adequately briefed this issue, he has not
met his burden of proof to show the trial court abused discretion... 16
B. Application of Article 17.15 and other factors show that the trial court
did not act outside of the zone of reasonable disagreement………………. 17
3
1. The bail set in this case is sufficiently high to ensure that Applicant
will return for court settings without being oppressive………………...17
2. The violent nature and circumstances surrounding solicitation to
commit capital murder merits a high bail……………………………... 18
3. The ability to afford bail is only one factor among many, and not
dispositive of excessive bail…………………………………………… 20
4. The intended and victim and the community would be subject to risk
if Applicant’s bond was lowered significantly………………………... 20
5. The remaining Rubac factors do not merit a bond reduction…………. 21
PRAYER…………………………………………………………………………... 22
CERTIFICATE OF COMPLIANCE……………………………………………………. 23
CERTIFICATE OF SERVICE………………………………………………………… 23
4
INDEX OF AUTHORITIES
Cases
Balboa v. State, 612 S.W.2d 553 (Tex. Crim. App. 1981) ......................................12
Bowers v. State, No. 202250CR, 2003 WL 22026428, at * 8 (Tex. App.Fort
Worth Aug. 29, 2003, pet. ref’d) (not designated for publication). .....................13
Ex Parte Charlesworth, 600 S.W.2d 316 (Tex. Crim. App. [Panel Op.] 1980).... 12,
13, 20
Ex Parte Davis, 147 S.W.3d 546 (Tex. App.—Waco 2004, no pet.) ......................18
Ex Parte Harris, 733 S.W.2d 712 (Tex. App.—Austin 1987, no pet.) ...................18
Ex Parte Hunt, 138 S.W.3d 503 (Tex. App.—Fort Worth 2004, pet. ref’d) ...........19
Ex Parte Miller, 631 S.W.2d 825 (Tex. App.—Fort Worth 1982, pet. ref’d).........20
Ex Parte Presswood, Nos. 14–07–000949–50–CR, 2008 WL 2030904 (Tex.
App.—Houston [14th Dist.] May 13, 2008, no pet.) (not designated for
publication) ...........................................................................................................17
Ex Parte Rodriguez, 595 S.W.2d 549 (Tex. Crim. App. [Panel Op.] 1980) ...........12
Ex Parte Rubac, 611 S.W.2d 848 (Tex. Crim. App. 1981) ........................ 12, 13, 14
Gonzales v. State, 477 S.W.3d 475 (Tex. App.Fort Worth 2015, pet. ref’d) ......13
Jobe v. State, No. 11–15–00220–CR, -- S.W.3d ---, 2016 WL 269221 (Tex.
App.—Eastland Jan. 21, 2016, pet. ref’d) ............................................................21
Johnson v. State, 263 S.W.3d 405 (Tex. App.—Waco 2008, pet. ref’d) ................14
Maldonado v. State, 999 S.W.2d 91 (Tex. App.—Houston [14th Dist.] 1999, pet.
ref’d) .....................................................................................................................17
Saldano v. State, 232 S.W.3d 77 (Tex. Crim. App. 2007) ......................................14
United States v. Salerno, 481 U.S. 739 (1987) ........................................................12
Walder v. State, 85 S.W.3d 824 (Tex. App.—Waco 2002, no pet.) ........................15
5
Wood v. State, 18 S.W.3d 642 (Tex. Crim. App. 2000) ..........................................15
Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000) ............................................14
Statutes
TEX. CODE CRIM. P. art 17.15............................................................................ 12, 13
TEX. PENAL CODE § 12.32 ........................................................................................19
TEX. PENAL CODE § 15.03. .......................................................................................18
TEX. PENAL CODE § 19.01 ........................................................................................22
TEX. PENAL CODE § 19.03........................................................................................22
Other
TEX. CONST. art. §§ 11, 13 .......................................................................................12
TEX. R. APP. P. art 38.1 ............................................................................................14
U.S. CONST. amend. VIII .........................................................................................12
6
STATEMENT OF THE CASE
Applicant appeals trial court’s denial of his application for writ of habeas
corpus to reduce bail.1 Applicant was arrested for Solicitation to commit Capital
Murder on July 2, 2015.2 A magistrate set Applicant’s bail at one million dollars.3
On December 7, 2015, Applicant filed a Writ of Habeas Corpus seeking reduction
of his bail.4 The trial court denied Applicant’s Writ on January 22, 2016. 5 This
appeal followed.
STATEMENT REGARDING ORAL ARGUMENT
The State waives oral argument.
ISSUE PRESENTED
I. Whether the trial court abused discretion in refusing to lower Applicant’s
bail of one million dollars incurred for solicitation of capital murder.
1
C.R. 1:38.
2
C.R. 1:11.
3
C.R. 1:12.
4
C.R. 1:33.
5
C.R. 1:38.
7
STATEMENT OF FACTS
On June 26, 2015, a cooperating witness with Wichita Falls Police
Department contacted the department about a possible murder for hire.6 The
cooperating witness met with John Laughlin with the Wichita Falls Police
Department, and provided recording of conversations with Applicant and his wife,
in which they asked the cooperating witness to help locate a person to kill their
daughter’s boyfriend.7
Officer Karen Wade of the Organized Crime Unit posed as an intermediary
between Applicant and his wife, and the hit man.8 Applicant and his wife told Wade
they were willing to pay to have their daughter’s boyfriend, Vincent Cole,
permanently gone, and arranged a meeting with Wade.9 Wade recorded all
conversations with Applicant and his wife.10 The cooperating witness drove
Applicant’s wife to the bank to get money, and Applicant’s wife clearly stated, “I
want him gone. Not out of town gone. I want him dead gone.”11
Wade contacted Applicant by phone, stating that it would cost more than $300
for the murder.12 Applicant then offered $500.13 On July 2, 2015, Applicant and his
6
R.R. 3:7, State’s Exhibit 1.
7
Id.
8
Id.
9
Id.
10
Id.
11
Id.
12
Id.
13
Id.
8
wife met with Wade, and gave her $300 up front for the murder, and promised
another $200 after the intended victim was killed.14 Wade offered them the
opportunity to back out of the plan, but they refused.15 Wade and the intended victim
then staged a photograph where the intended victim appeared dead.16 Wade then
met with Applicant and showed him the photo.17 Believing the intended victim to
be murdered, Applicant then paid Wade another $200, and was promptly arrested.18
At Applicant’s habeas hearing, the State presented no witnesses, but requested
and was granted judicial notice of the indictment.19 The State admitted State’s
Exhibit 1, the affidavit for Applicant’s arrest warrant.20
Applicant testified as to the following: (1) he is a veteran; 21 (2) his criminal
history consists only of Class C misdemeanors;22 (3) he has lived in Wichita Falls
for the past twenty-five years;23 (4) he cannot make one million dollar bail;24 (5) he
would be able to make a ten thousand dollar bail by selling his firearms; 25 (6) he is
unable to work and receives monthly income from Veteran’s Affairs and Social
14
R.R. at 3:8.
15
Id.
16
Id.
17
Id.
18
Id.
19
R.R. 2:13.
20
Id.
21
R.R. 2:7–8.
22
R.R. 2:8.
23
R.R. 2:8–9.
24
R.R. 2:9.
25
Id.
9
Security disability;26 (7) he does not own an operational vehicle, and would get to
court by obtaining rides with friends;27 (8) he would be willing to comply with bail
conditions of curfew, home confinement, electronic monitoring, and drug testing;28
(9) he has no intention to flee the jurisdiction29 and intends to fight the charges;30
and, (10) he has no other connections in Wichita Falls other than his wife.31
26
R.R. 2:10.
27
R.R. 2:9.
28
R.R. 2:10.
29
Id.
30
R.R. 2:11.
31
Id.
10
SUMMARY OF THE ARGUMENT
Applicant is responsible for proving that the trial court abused its discretion
in refusing to lower Applicant’s one million dollar bond for solicitation to commit
capital murder. Applicant was required to demonstrate that the trial court’s decision
fell outside the zone of reasonable disagreement. However, due to Applicant’s lack
of authority, this issue was inadequately briefed and Applicant cannot prove abuse
of discretion.
Even if Applicant’s issue was adequately briefed, when applying the
guidelines found in Article 17.15 of the Texas Code of Criminal Procedure and the
factors set forth by the Court of Criminal Appeals in Ex Parte Rubac, the trial court’s
decision is not outside the zone of reasonable disagreement.
11
ARGUMENT
I. Applicant is not entitled to a bond reduction because he did not meet his
burden to prove the trial court abused discretion by acting outside the zone
of reasonable disagreement, nor did the trial court abuse its discretion when
examining its decision in light of Article 17.15 and other factors.
Trial courts have the discretion to set bail, but that discretion is dictated by the
constitution and code of criminal procedure.32 The purpose of bail is to ensure a
defendant’s presence at his trial.33 When determining bail, courts must balance this
interest against the defendant’s presumption of innocence.34 At trial, the burden is
on the person seeking to lower the bail to prove that bail is excessive.35 Bail may be
considered excessive if it is greater than reasonably necessary to satisfy the
government’s legitimate interests.36
When determining whether the amount of bail is excessive, reviewing courts
determine whether the trial court abused its discretion.37 Although he states the
correct standard,38 Applicant does not apply it in his brief.39 Further, the standard is
not what is framed in Applicant’s Issue Presented—the standard is not abuse of
discretion by failing to lower the bail to an amount Applicant could afford.40 Rather,
32
U.S. CONST. amend. VIII; TEX. CONST. art. §§11, 13; TEX. CODE CRIM. P. art 17.15.
33
Ex Parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. [Panel Op.] 1980).
34
Balboa v. State, 612 S.W.2d 553, 557 (Tex. Crim. App. 1981).
35
Ex Parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. [Panel Op.] 1980).
36
United States v. Salerno, 481 U.S. 739, 753–54 (1987).
37
Ex Parte Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim. App. 1981).
38
Applicant’s Brief at 3–4.
39
See generally, Applicant’s Brief.
40
Applicant’s Brief at 1.
12
an appellate court will find abuse of discretion if its decision falls outside the zone
of reasonable disagreement.41 Reviewing courts determine whether “the court acted
without reference to any guiding rules or principles,” or “whether the act was
arbitrary and unreasonable” against the criteria used to reach a decision.42
Ultimately, at the appellate level, the person challenging the trial court ruling has the
burden to prove that the trial court abused its discretion.43
Texas Code of Criminal Procedure Article 17.15 sets for the statutory factors
courts consider when determining bail:
1. The bail shall be sufficiently high to give reasonable assurance that
the undertaking will be complied with.
2. The power to require bail is not to be so used as to make it an
instrument of oppression.
3. The nature of the offense and the circumstances under which it was
committed are to be considered.
4. The ability to make bail is regarded, and proof may be taken upon
this point.
5. The future safety of a victim of the alleged offense and the
community shall be considered.44
In Ex Parte Rubac, the Court of Criminal Appeals held that the primary factors in
determining whether bail is excessive are the length of the sentence and the nature
of the offense.45 Additional factors to be considered are the Applicant’s work record,
family ties, length of residency, ability to make bond, prior criminal record,
41
Gonzales v. State, 477 S.W.3d 475, 479 (Tex. App.Fort Worth 2015, pet. ref’d)
42
Montgomery v. State, 810 S.W. 372, 380 (Tex. Crim. App. 1990).
43
Charlesworth, 600 S.W.2d at 317.
44
TEX. CODE CRIM. P. art. 17.15.
45
Rubac, 611 S.W.2d at 849.
13
conformity with previous bond conditions, other outstanding bonds, and any
aggravating factors of the offense.46 In addition, courts may consider the punishment
permitted for the alleged offenses when determining bail.47
A. Applicant has not provided sufficient information for this Court to rule
in his favor.
1. Applicant has not adequately briefed this issue because he included no
authority to support his interpretation of the facts.
Article 38.1(i) of the Texas Rules of Appellate Procedure requires that the
Argument section of an appellant’s brief, “contain a clear and concise argument for
the contentions made, with appropriate citations to authorities and to the record.”48
An issue that is inadequately briefed “present[s] nothing for review.”49 Courts
routinely hold an issue is inadequately briefed where a party “points [] to nothing on
the record, makes no argument, and cites no authority to support []his proposition.”50
However, failure to cite authority is sufficient to find an issue to be inadequately
briefed.
In Wood v. State, the Court of Criminal Appeals held an appellant’s issue to
be inadequately briefed because he cited zero authority to support his position, nor
46
Id. at 849–50.
47
Ex Parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. 1980).
48
TEX. R. APP. P. art 38.1(i).
49
Saldano v. State, 232 S.W.3d 77, 107 (Tex. Crim. App. 2007).
50
Wyatt v. State, 23 S.W.3d 18, 23 n. 5 (Tex. Crim. App. 2000); Johnson v. State, 263 S.W.3d
405, 416–17 (Tex. App.—Waco 2008, pet. ref’d); Saldano, 232 S.W.3d at 107.
14
did he develop his argument.51 The Court reached this conclusion even though
Appellant made an argument and cited to the record.52
In Walder v. State, the Waco Court of Appeals found three separate issues
inadequately briefed.53 The first issue was inadequately briefed because it did not
identify the appropriate standard for appellate review and only cited two authorities,
even though the appellant identified corresponding evidence and the legal principle
at issue.54 The second issue was also inadequately briefed due to the appellant’s
failure to identify the appellate standard of review or cite to any authorities.55 In the
third issue, the appellant did not fully set out the appropriate standard of review. 56
In addition, although the appellant cited three cases, he only relied on one to make
his argument.57
In the case at hand, Applicant’s issue or argument is either, “The trial court
erred in refusing to reduce Peyton’s bail to an amount he could actually make,” 58 or
the trial court abused discretion when it refused to lower Applicant’s bond. 59
51
Wood v. State, 18 S.W.3d 642, 650–51 (Tex. Crim. App. 2000) (finding that the appellant
insufficiently briefed the issue of equal protection due to lack of authority and no allegations
tracking the requirements required to receive equal protection).
52
Id.
53
Walder v. State, 85 S.W.3d 824, 828–29 (Tex. App.—Waco 2002, no pet.).
54
Id. at 828.
55
Id.
56
Id.
57
Id. at 829.
58
Applicant’s Brief at 3 (appearing in the Issue Presented Section).
59
See Applicant’s Brief at 3–4 (stating the standard of review is abuse of discretion—whether
the trial court’s ruling was outside the zone of reasonable disagreement).
15
Applicant then follows with a section of applicable law, citing Article 17.15 and the
Rubac factors.60 However, once he reaches his Discussion and Analysis section,
Applicant does not cite to a single case61 to demonstrate what the zone of reasonable
disagreement is on any of the Article 17.15 or Rubac factors; he simply categorizes
facts under different factors.62
2. Even if Applicant has adequately briefed this issue, he has not met his
burden of proof to show the trial court abused discretion.
Applicant cannot prove that the trial court acted outside of the zone of
reasonable agreement, if he does not illustrate the boundaries of that zone. Even
though Applicant’s Discussion and Analysis is rife with citations to the record,63 he
failed to include any citations to case law that demonstrate what the reasonable zone
of disagreement is. Therefore, he cannot prove whether the trial court acted outside
of the zone of reasonable disagreement. In addition, Applicant failed to provide case
law to demonstrate that the trial court acted in an arbitrary or capricious manner.
At the trial level, the record reflects that the trial court heard the testimony of
Applicant, received an exhibit from the State, took judicial notice of the indictment,
and then went off the record before making its decision.64 Nothing about the hearing
60
Applicant’s Brief at 4–5.
61
Applicant includes numerous cites to the Clerk’s and Reporter’s Records.
62
See Applicant’s Brief at 5–8.
63
Applicant’s Brief at 5–8.
64
R.R. 2:6–13.
16
suggests the trial court’s decision to be arbitrary or capricious. Therefore, Applicant
has failed to reach his burden of showing Applicant’s bond was excessive.
B. Application of Article 17.15 and other factors show that the trial court
did not act outside of the zone of reasonable disagreement.
At the hearing, Applicant failed to prove that the bail amount was excessive.
In fact, both the Article 17.15 factors and the Rubac factors demonstrate that the trial
court acted within the zone of reasonable disagreement, and not arbitrary or
capricious.
1. The bail set in this case is sufficiently high to ensure that Applicant will
return for court settings without being oppressive.
Although he has lived in the city for the last twenty-five years, Applicant has
few remaining family ties in the area, does not have an established job, and does not
own or lease property in the county.65 Given the fact that Applicant’s was his
accomplice,66 and he failed to even mention his daughter at the habeas hearing,67 it
is unlikely that family ties would keep him in the area.
Courts have also considered whether the individual seeking a lower bail
owned any real property when exploring an individual’s ties to the area.68 Applicant
presented zero testimony that he had any property interest in Wichita County—even
65
See R.R. 2:8–11.
66
See R.R. 3:7–8.
67
See R.R. 2:7–12.
68
Maldonado v. State, 999 S.W.2d 91, 95 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d); Ex
Parte Presswood, Nos. 14–07–000949–50–CR, 2008 WL 2030904, at *1 (Tex. App.—Houston
[14th Dist.] May 13, 2008, no pet.) (not designated for publication).
17
demonstrating a lack of residence of his own, since he would have to live with a
friend in an apartment, potentially without knowledge of the management agency.69
Therefore, there is little incentive for Applicant to remain in the area.
Further, even if Applicant remained in the area, the court received little
assurance that Applicant would be able to attend hearings. Applicant testified that
he does not own a working vehicle, and would be dependent upon the goodwill of
friends to provide rides so that he could attend court settings.70 Although Applicant
testified that he was willing attend court hearings,71 even he has no way to guarantee
his appearance.
Bail becomes “oppressive” when it is “based on the ‘assumption that [the
accused cannot] afford bail in that amount and for the express purpose of forcing
[the accused] to remain incarcerated pending [trial].’”72 However, nothing on the
record indicates that the trial court reached its decision on this basis.73
2. The violent nature and circumstances surrounding solicitation to
commit capital murder merits a high bail.
Solicitation to commit capital murder is a first degree felony. 74 This Court
has held that commission of murder for hire and conspiracy to commit murder were
69
See R.R. 3:9–10.
70
R.R. 2:9.
71
R.R. 2:11.
72
Ex Parte Davis, 147 S.W.3d 546, 549 (Tex. App.—Waco 2004, no pet.) (quoting Ex Parte
Harris, 733 S.W.2d 712, 714 (Tex. App.—Austin 1987, no pet.).
73
Cf. Harris, 733 S.W.2d at 714.
74
TEX. PENAL CODE § 15.03(a).
18
violent crimes, and because those punishments could merit lengthy sentences, the
trial court could have properly concluded the bond amounts were reasonable.75
Here, Applicant and his wife were actively trying to find someone to murder
their daughter’s boyfriend.76 But for the fact that Applicant and his wife were
connected to peace officers instead of a murderer, this would have resulted in at least
one death. Due to the violent nature of the crime, and the fact Applicant is eligible
for imprisonment for life or five to ninety-nine years in the Texas Department of
Criminal Justice and a ten thousand dollar fine,77 upholding the bail amount was
within the zone of reasonable disagreement.
The circumstances surrounding the attempted murder also demonstrate that
the bail amount is within the zone of reasonable agreement. Applicant and his wife
had been planning the intended victim’s murder for at least a week prior to
Applicant’s arrest.78 Applicant even had the opportunity to back out of the plot, but
he insisted he and his wife wanted to go through with the plan.79
75
Ex Parte Hunt, 138 S.W.3d 503, 506 (Tex. App.—Fort Worth 2004, pet. ref’d).
76
See R.R. 3:7–8.
77
TEX. PENAL CODE § 12.32.
78
See R.R. 3:7–8.
79
R.R. 3:7.
19
3. The ability to afford bail is only one factor among many, and not
dispositive of excessive bail.
Applicant relies almost exclusively on the premise that because Applicant
cannot afford his current bond, or anything greater than a $10,000, any bond greater
than $10,000 is excessive and oppressive.80
Just because a defendant cannot afford to pay the bond set, even if the
individual is indigent, does not automatically mean that the bail is excessive. 81 “If
the ability to make bond in a specified amount controlled, then the role of the trial
court in setting bond would be completely eliminated, and the accused would be in
the unique posture of determining what his bond should be.”82
4. The intended and victim and the community would be subject to risk
if Applicant’s bond was lowered significantly.
Applicant claims that the intended victim and community would be safe if he
was confined to his home with electronic monitoring.83 However, in doing so,
Applicant ignores the facts of the crime he is alleged to have committed. From the
comforts of his own home, or the apartment of the unnamed friend he intends to stay
with,84 Applicant could once again attempt to solicit capital murder.
80
Applicant’s Brief at 1, 3, 6, 8.
81
Charlesworth, 600 S.W.2d at 317.
82
Ex Parte Miller, 631 S.W.2d 825, 827 (Tex. App.—Fort Worth 1982, pet. ref’d).
83
Applicant’s Brief at 7–8.
84
See R.R. 3:9–10.
20
Applicant’s willingness to submit to drug monitoring, electronic monitoring,
a curfew, and home confinement should be given little weight, since these limitations
would provide virtually no protection to the intended victim and community.
Applicant has even provided an ongoing motive to try to solicit the murder of his
daughter’s boyfriend again, “A parent’s instinct is to protect their children from
perceived harm…”85 Although it is still possible for Applicant to solicit capital
murder from the jail, it is far less likely given the level of supervision and scrutiny
provided he would receive.
5. The remaining Rubac factors do not merit a bond reduction.
Applicant’s work record and lack of remaining family ties are not in favor of
a bond reduction. However, his lack of prior criminal history and outstanding bonds
are in favor of a bond reduction.
In addition, “appellate courts often compare bail amounts in other cases
involved offenses of the same degree.”86 The Eastland Court of Appeals recently
examined a number of cases involving capital murder or murder which upheld an
amount around one million dollars.87 Although not capital, this case is a first degree
85
Applicant’s Brief at 7.
86
Jobe v. State, No. 11–15–00220–CR, -- S.W.3d ---, 2016 WL 269221, at *3 (Tex. App.—
Eastland Jan. 21, 2016, pet. ref’d).
87
Id. (citing Ex Parte Lewis, No. 10–13–00448–CR, 2014 WL 2810629, at *1 (Tex. App.—Waco
June 19, 2014, pet. ref’d) (not designated for publication) (approving a one million dollar bond for
capital murder); Ex Parte Green, No. 02–13–00474–CR, 2014 WL 584960, at *1 (Tex. App.—
Fort Worth Feb, 13, 2014, no pet.) (not designated for publication) (approving a bail of one million
dollars for murder); Ex Parte Guerra, 383 S.W. 229, 234 (Tex. App.—San Antonio 2012, no pet.)
21
felony that, but for the fact that Applicant contacted the police instead of a hit man,
would have resulted in a murder. Applicant had the required intent to carry out a
capital murder,88 and paid money believing capital murder had been carried out.89
Therefore, a one million dollar bond for solicitation to commit capital murder is not
outside the zone of reasonable disagreement.
PRAYER
The State prays that the Court of Appeals, Second District, find the trial
court did not abuse discretion and affirm the decision of the 30th District Court of
Wichita County, Texas.
Respectfully Submitted,
Maureen Shelton
Criminal District Attorney
Wichita County, Texas
/s/ Jennifer Ponder
Jennifer Ponder
Assistant Criminal District Attorney
Wichita County
State Bar No. 24083676
900 7th Street
Wichita Falls, Texas 76301
(accepting a nine hundred and fifty thousand dollar bail for capital murder, aggravated robbery,
and unauthorized use of a vehicle); Ex Parte Gonzalez, 383 S.W.3d 160, 161 (Tex. App.—San
Antonio 2012, pet ref’d) (setting a one million five hundred thousand dollar bond for capital
murder); Ex Parte Jackson, 257 S.W.3d 520, 522–23 (Tex. App.—Texarkana 2008, no pet.)
(authorizing a bail of three-quarters of a million dollars for capital murder); Ex Parte Garcia, No.
09–06–543–CR, 2007 WL 846571, at *1 (Tex. App.—Beaumont Mar. 21, 2007, no pet.) (not
designated for publication) (approving a nine hundred and fifty thousand dollar bond for murder)).
88
Compare TEX. PENAL CODE §§ 19.01(b)(1), 19.03(a)(3) with R.R. 3:7–8.
89
R.R. 3:8.
22
CERTIFICATE OF COMPLIANCE
I, the undersigned, certify that this document was produced on a computer
using Microsoft Word and contains 2,859 words, as determined by the computer
software’s word-count function, excluding the sections of the document listed in
Texas Rule of Appellate Procedure 9.4(i)(1).
/s/ Jennifer Ponder
Jennifer Ponder
CERTIFICATE OF SERVICE
I, the undersigned, certify that on Tuesday, April 12, 2016, I served a copy of
the State’s Brief on the parties listed below by electronic service and that the
electronic transmission was reported as complete. My e-mail address is
Jennifer.Ponder@co.wichita.tx.us.
Brennon Brady
Attorney for Applicant
Assistant Public Defender
600 Scott Street, 2nd Floor, Rm 204
Wichita Falls, Tx 76301
Brennon.Brady@co.wichita.tx.us
/s/ Jennifer Ponder
Jennifer Ponder
23
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00029-CR
EX PARTE JEFFREY PEYTON
------------
FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 56208-A
------------
ORDER STAYING ISSUANCE OF MANDATE
------------
Applicant Jeffrey Peyton appealed from the trial court’s denial of his pretrial
application for writ of habeas corpus seeking a reduction of his $1 million bail.
We reversed the trial court’s judgment and remanded this case to the trial court
to set a reasonable bail; to determine what additional conditions, if any, should be
imposed; and to allow the State and Peyton to present any additional evidence or
argument that the trial court deemed relevant to each of the article 17.15 and
Rubac factors. See Tex. Code Crim. Proc. Ann. art. 17.15 (West 2015); Ex parte
Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim. App. [Panel Op.] 1981).
The State has now filed a motion for stay of mandate. See Tex. R. App. P.
31.4(a)(2). The motion’s certificate of conference states that Peyton is opposed
to the motion, but he did not file a response.
After considering the motion, as well as the State’s petition for
discretionary review appended to the motion, we grant the motion and stay our
mandate. See Tex. R. App. P. 31.4(b)(1). The mandate will issue in due course
after disposition of the State’s petition for discretionary review in the Texas Court
of Criminal Appeals. See Tex. R. App. P. 18.1(a)(2), 18.6.
The clerk of this court is directed to transmit a copy of this order to the
attorneys of record and to forward the petition for discretionary review to the clerk
of the Texas Court of Criminal Appeals.
DATED June 8, 2016.
PER CURIAM
2
ACCEPTED
02-16-00029-CR
SECOND COURT OF APPEALS
FORT WORTH, TEXAS
5/20/2016 3:42:41 PM
DEBRA SPISAK
CLERK
No. 02–16–00029–CR
Court of Appeals, FILED IN
2nd COURT OF APPEALS
Second District of Texas, FORT WORTH, TEXAS
Fort Worth 5/20/2016 3:42:41 PM
DEBRA SPISAK
Clerk
Ex Parte § On Appeal in No. 56,208-A
§
§ From the 30th District Court
§
Jeffrey Peyton § Of Wichita County, Texas
§
§ The Hon. Robert F. Brotherton,
Presiding
STATE’S MOTION FOR STAY OF MANDATE
TO THE COURT OF APPEALS, SECOND DISTRICT:
Pursuant to Rule 31.4 of the Texas Rules of Appellate Procedure, the State of
Texas moves that this Court stay the issuance of its mandate to allow time for the
Court of Criminal Appeals to act on the State’s Petition for Discretionary Review,
which is appended to this Motion. The State’s Motion is being timely made within
15 days of the Court’s May 5, 2016 opinion.
Rule 31.4 requires a showing of good faith. The State files its Petition for
Discretionary Review based upon case law research, arguing that the gravity of the
offense was minimized, and that this Court deviated from the proper standard of
review by rejecting the trial court’s implicit finding that Appellant lacked credibility.
1
The State respectfully requests this Court grant the State’s Motion for Stay of
Mandate.
Respectfully Submitted,
Maureen Shelton
Criminal District Attorney
Wichita County, Texas
/s/ Jennifer Ponder
Jennifer Ponder
Assistant Criminal District Attorney
Wichita County
State Bar No. 24083676
900 7th Street
Wichita Falls, Texas 76301
Tel.: (940)766-8113
Fax: (940)766-8177
2
CERTIFICATE OF CONFERENCE
I certify that on or about May 19, 2016, Brennon Brady, counsel for Appellant,
indicated he opposed the State’s Motion for Stay of Mandate.
/s/ Jennifer Ponder
Jennifer Ponder
CERTIFICATE OF SERVICE
I, the undersigned, certify that on Friday, May 20, 2016, I served a copy of the
State’s Motion for Stay of Mandate, and attached Petition for Discretionary Review
on the parties listed below by electronic service and that the electronic transmission
was reported as complete. My e-mail address is Jennifer.Ponder@co.wichita.tx.us.
Brennon Brady
600 Scott Street, Rm 204
Wichita Falls, TX 76301
(940)766-7119
Brennon.Brady@co.wichita.tx.us
State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711
information@spa.texas.gov
/s/ Jennifer Ponder
Jennifer Ponder
3
Cause No. ____________
In the Court of Criminal Appeals FILED IN
2nd COURT OF APPEALS
Of Texas FORT WORTH, TEXAS
5/20/2016 3:42:41 PM
DEBRA SPISAK
Ex parte Jeffrey Peyton, Clerk
Appellant
From the Court of Appeals, Second District
Fort Worth, Texas No. 02–16–00029–CR
Appeal from Wichita County
The State’s Petition for Discretionary Review
Maureen Shelton
Wichita County Criminal District Attorney
John Gillespie John Brasher
First Asst. Criminal District Attorney Asst. Criminal District Attorney
Wichita County, Texas Wichita County, Texas
State Bar No. 24010053 State Bar No. 02907800
John.Gillespie@co.wichita.tx.us John.Brasher@co.wichita.tx.us
900 Seventh Street Jennifer Ponder
Wichita Falls, Texas 76301 Asst. Criminal District Attorney
(940) 766-8113 phone Wichita County, Texas
(940) 766-8530 fax State Bar No. 24083676
Jennifer.Ponder@co.wichita.tx.us
Attorneys for the State
The State of Texas
Oral Argument Waived
IDENTITY OF THE JUDGE, PARTIES & COUNSEL
Hon. Robert Brotherton
Presiding Judge, 30th District Court, Wichita County
900 Seventh Street
Wichita Falls, Texas 76301
Jeffrey Peyton
Appellant, represented by
Brennon Brady
Assistant Public Defender, Wichita County
Attorney for Jeffrey Peyton, at Trial and on Appeal
600 Scott Street, 2nd Floor, Room 204
Wichita Falls, Texas 76301
John Gillespie
First Assistant Criminal District Attorney, Wichita County
Attorney for the State at Trial & Appeal
900 Seventh Street
Wichita Falls, Texas 76301
John Brasher
Assistant Criminal District Attorney, Wichita County
Attorney for the State on Appeal
900 Seventh Street
Wichita Falls, Texas 76301
Jennifer Ponder
Assistant Criminal District Attorney, Wichita County
Attorney for the State on Appeal
900 Seventh Street
Wichita Falls, Texas 76301
2
TABLE OF CONTENTS
IDENTITY OF JUDGE, PARTIES AND COUNSEL……………………………………................................. 2
TABLE OF CONTENTS……………………………………………………………....................................... 3
INDEX OF AUTHORITIES……………………………………………………….…………………………………….. 6
STATEMENT OF THE CASE……………………………………………………………………………………………8
STATEMENT REGARDING ORAL ARGUMENT ……………………………………................................. 8
STATEMENT OF PROCEDURAL HISTORY…………………………………………................................... 8
GROUNDS FOR REVIEW……..……………………………………………………………………………………… 9
I. The Second Court of Appeals erred by minimizing the gravity
of this offense. The uncontroverted evidence showed
Appellant’s actus reus and mens rea were identical to a
Capital Murder for Hire, except that he hired the wrong hit
man. Additionally, the Second Court minimized the
community safety threat by ignoring that the person
Appellant wanted murdered is still alive and at risk.
II. Rejecting the trial court’s implicit finding that Appellant
lacked credibility, the Second Court of Appeals deviated from
the proper standard of review in holding that the trial court
abused its discretion.
ARGUMENT……………………………………………………………………………………………………………. 10
3
I. The Second Court of Appeals erred by minimizing the gravity of
this offense. The uncontroverted evidence showed Appellant’s
actus reus and mens rea were identical to a Capital Murder for
Hire, except that he hired the wrong hit man. Additionally, the
Second Court minimized the community safety threat by
ignoring that the person Appellant wanted murdered is still alive
and at risk.………………………………………………………………………………………………… 10
II. Rejecting the trial court’s implicit finding that Appellant lacked
credibility, the Second Court of Appeals deviated from the
proper standard of review in holding that the trial court abused
its
discretion…………………………………………………................................................... 12
A. The Appellate Court grossly undervalued Appellant’s danger
to the victim and community………………………………………………………………. 14
B. The Court of Appeals erred by holding that the trial court
received reasonable assurance of the Appellant’s presence at
trial court appearances……………………………………………………………………….. 15
1. The Court of Appeals disregarded the trial court’s
implicit credibility assessment of the Appellant……...………………… 16
2. The trial court erred by failing to defer to the trial
judge’s determination of the weight to be given the
evidence……………………………………………………………………………………. 17
C. The Court of Appeals conflated factors two and four of Article
17.15 by reasoning that because Appellant was unable to pay
his bond, that his bond was oppressive.………………………………………………. 18
D. The Court of Appeals did not properly consider the nature
and circumstances of the Appellant’s charged offense……………………….. 20
4
E. By relying on Appellant’s testimony, the Court of Appeals
replaced the trial court’s credibility assessment of Appellant
with its own, causing it to find that the Rubac factors weighed
in favor of a lower bond………………………………………………………………………. 21
PRAYER…………………………………………………………………………........................................... 23
CERTIFICATE OF COMPLIANCE………………………………………………………………………………………24
CERTIFICATE OF SERVICE……………………………………………………………………………………………. 24
APPENDIX : Ex parte Peyton, No. 02–16–00029–CR, 2016 WL 2586698 (Tex. App.—
Fort Worth May 5, 2016).
5
INDEX OF AUTHORITIES
Cases
Cooley v. State, 232 S.W.3d 228 (Tex. App.—Houston [1st Dist.] 2007, no pet.) ... 12
Ex parte Bellanger, No. 12–090–00246–CR, 2009 WL 4981457 (Tex. App.—Tyler
2009, no pet. h.)................................................................................................... 21
Ex parte Bogia, 56 S.W.3d 835 (Tex. App.—Houston [1st Dist.] 2001, no pet. h.) . 19,
21
Ex parte Brown, 959 S.W.2d 369 (Tex. App.—Fort Worth 1998, no pet. h.)........... 21
Ex parte Gonzalez, 383 S.W.3d 160 (Tex. App.—San Antonio 2012, pet. ref’d) ..... 12
Ex parte Green, No. 02–13–00474–CR, 2014 WL 584960 (Tex. App.—Fort Worth
Feb. 13, 2014, no pet. h.) (not designated for publication) ................................. 12
Ex parte Guerra, 383 S.W.3d 229 (Tex. App.—San Antonio 2012, no pet. h.) ........ 21
Ex parte Harber, No. 04–10–00643–CR, 2010 WL 5141509 (Tex. App.—San Antonio
Dec. 15, 2010, no pet. h.) (not designated for publication) ...........................16, 21
Ex parte Henson, 131 S.W.3d 645 (Tex. App.—Texarkana 2004, no pet. h.) .......... 21
Ex parte Hunt, 138 S.W.3d 503 (Tex. App.—Fort Worth 2004, pet. ref’d).............. 20
Ex parte Hutchinson, Nos. 05–11–00315–21–CR, 2011 WL 2583050 (Tex. App.—
Dallas Jun. 30, 2011, pet. dismissed) (not designated for publication) ............... 16
Ex parte Jobe, 482 S.W.3d 300 (Tex. App.—Eastland 2016, pet. ref’d)................... 11
Ex parte Lewis, No. 10–13–00448–CR, 2014 WL 2810629 (Tex. App.—Waco Jun.
19, 2014, pet. ref’d) (not designated for publication) ......................................... 12
Ex parte Okun, 342 S.W.3d 184 (Tex. App.—Beaumont 2011, no pet. h.) .............. 16
Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003) (per curiam), overruled
on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007)) ... 15,
16
6
Ex parte Peyton, No. 02–16–00029–CR, 2016 WL 2586698 (Tex. App.—Fort Worth
May 5, 2016) ................................................................................................. passim
Ex parte Reed, 271 S.W.3d 698 (Tex. Crim. App. 2008)......................................16, 22
Ex parte Rubac, 611 S.W.2d 848 (Tex. Crim. App. [Panel Op.] 1981) ...................... 12
Ex parte Scott, 122 S.W.3d 866 (Tex. App.—Fort Worth 2003, no pet. h.) ............. 19
Ex parte Vasquez, 558 S.W.2d 477 (Tex. Crim. App. 1977) ..................................... 19
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (en banc)............... 18
Zheng v. State, No. 01–04–00062–CR, 2005 WL 375446 (Tex. App.—Houston [1st
Dist.] Feb. 17, 2005, pet. ref’d) (not designated for publication) ........................ 17
Statutes
TEX. CODE CRIM. P. art. 17.15 ..................................................................................... 12
TEX. PENAL CODE § 15.03 ............................................................................................ 11
TEX. PENAL CODE § 19.02 ............................................................................................ 11
TEX. PENAL CODE § 19.03 ............................................................................................ 11
Other
Chevrolet Corvette (C3), WIKIPEDIA (2016),
https://en.wikipedia.org/wiki/Chevrolet_Corvette_(C3) (last visited 18 May
2016) .................................................................................................................... 21
Corvette, CHEVROLET (2016), http://www.chevrolet.com/corvette-sports-cars.html
(last visited May 19, 2016) ................................................................................... 21
7
STATEMENT REGARDING ORAL ARGUMENT
The applicable law is unambiguous, and the analysis required to properly
apply the law to the facts is not overly complicated. Thus, the State does not believe
oral argument would substantially aid the court. Therefore, oral argument is waived.
STATEMENT OF THE CASE
Appellant is charged with the first degree offense of Solicitation to Commit
Capital Murder. Appellant appealed from the trial court’s denial to reduce pretrial
bail of one million dollars. The Court of Appeals submitted the case without oral
argument, and held that the trial court abused its discretion in denying the motion
to reduce bond. The Court did not submit a bond amount, but rather remanded the
case for a bond determination.
STATEMENT OF PROCEDURAL HISTORY
The Court of Appeals, Second District, handed down its decision on May 5,
2016.1 The State did not file a motion for rehearing. Pursuant to Rule 31.4(a) of the
Texas Rules of Appellate Procedure, the State’s Petition for Discretionary Review is
due on or before May 20, 2016.
1Ex parte Peyton, No. 02–16–00029–CR, 2016 WL 2586698 (Tex. App.—Fort Worth May 5,
2016).
8
GROUNDS FOR REVIEW
I. The Second Court of Appeals erred by minimizing the gravity of this offense. The
uncontroverted evidence showed Appellant’s actus reus and mens rea were
identical to a Capital Murder for Hire, except that he hired the wrong hit man.
Additionally, the Second Court minimized the community safety threat by ignoring
that the person Appellant wanted murdered is still alive and at risk.
II. Rejecting the trial court’s implicit finding that Appellant lacked credibility, the
Second Court of Appeals deviated from the proper standard of review in holding
that the trial court abused its discretion.
9
ARGUMENT
I. The Second Court of Appeals erred by minimizing the gravity of this offense.
The uncontroverted evidence showed Appellant’s actus reus and mens rea
were identical to a Capital Murder for Hire, except that he hired the wrong hit
man. Additionally, the Second Court minimized the community safety threat
by ignoring that the person Appellant wanted murdered is still alive and at risk.
According to the probable cause affidavit, admitted as State’s Exhibit 1 during
the hearing at the trial court level, Appellant and his wife were seeking to hire a hit
man to murder their daughter’s boyfriend.2 An undercover officer pretended to be
a hit man, and agreed to perform the murder for a fee with some cash up front, and
the balance after the murder took place.3 After Appellant paid the initial cash and
refused the under-cover officer’s offer to back out of the scheme, the officer met
with intended victim and staged a photograph of the “murder scene.”4 Upon
receiving this photographic proof of the target’s death, Appellant paid the officer
the remainder of the fee.5
But for the fact that Appellant unknowingly hired a police officer, rather than
a murderer, Appellant would be facing a Capital Murder charge. In fact, Appellant’s
mens rea and actus reus would have been exactly the same if the officer was a
2 R.R. 3:7, State’s Exhibit 1.
3 R.R. 3:7–8, State’s Exhibit 1.
4 R.R. 3:8, State’s Exhibit 1.
5 Id.
10
murderer.6 Appellant intentionally and knowingly employed the officer to murder
his daughter’s boyfriend.7 Further, Appellant paid the officer a cash down payment
for the murder, and the remainder believing that the murder had occurred.8
The biggest difference between Appellant’s actual charge of Solicitation to
Commit Capital Murder and Capital Murder, is that the intended victim is alive.
However, this difference is not due to any action or intent of Appellant. Simply
because Appellant was unsuccessful in hiring a murderer does not entitle him to a
lower bond. Rather, the Appellant in this case is even more dangerous because the
intended victim is still alive and at extreme risk from Appellant. As the mens rea and
actus reus of this Appellant and of a defendant in a successful Capital Murder are
identical, this case is logically the functional equivalent of a Capital Murder for Hire.
So, when comparing the bond amount in Appellant’s case to others, the Court of
Appeals should have used bonds from Capital Murder cases. Bonds at or above
$1,000,000 are not rare in single-count Capital Murder cases.9
6 Compare TEX. PENAL CODE § 15.03 (with intent that a capital felony or a felony of a firs degree be
committed), with TEX. PENAL CODE § 19.02 (intentionally or knowingly). This offense qualifies as
Capital Murder because Appellant employed another to commit murder for remuneration and
the promise thereof. TEX. PENAL CODE § 19.03(1)(3).
7 See R.R. 3:7–8, State’s Exhibit 1.
8 Id.
9 See Ex parte Jobe, 482 S.W.3d 300 (Tex. App.—Eastland 2016, pet. ref’d) (upholding a bond of
$1,000,000, despite defendant’s indigence); Ex parte Gonzalez, 383 S.W.3d 160 (Tex. App.—San
Antonio 2012, pet. ref’d) (upholding a bond of $1,500,000); Ex parte Lewis, No. 10–13–00448–
CR, 2014 WL 2810629 (Tex. App.—Waco Jun. 19, 2014, pet. ref’d) (not designated for
11
Comparing bond amounts between different types of offenses is not a novel
occurrence. Nor is the idea of applying Capital Murder bond amounts to solicitation
cases.10 The Court of Appeals inappropriately circumscribed its review of bond
amounts approved by its sister courts. Had it properly considered bond amounts
set in single-count Capital Murder cases, the Court of Appeals would have concluded
that $1,000,000 was not outside of the acceptable bond amount range.
II. Rejecting the trial court’s implicit finding that Appellant lacked credibility, the
Second Court of Appeals deviated from the proper standard of review in
holding that the trial court abused its discretion.
When reviewing the trial court’s refusal to lower the Appellant’s bond, the
Court of Appeals walked through the five factors from Article 17.15 of the Texas
Code of Criminal Procedure and the Rubac factors.11 The Court of Appeals jointly
addressed the first, second, and fourth factors of Article 17.15.12 Noting that the
primary purpose of setting a bail amount is the reasonable assurance that Appellant
will appear for court, the Court of Appeals cited Appellant’s testimony that: (1) he
had lived in Wichita Falls the past twenty-five years; (2) if released, Appellant would
publication) (upholding a bond of $1,000,000); Ex parte Green, No. 02–13–00474–CR, 2014 WL
584960 (Tex. App.—Fort Worth Feb. 13, 2014, no pet. h.) (not designated for publication)
(upholding a $1,000,000 bond, even though defendant was indigent).
10 Cooley v. State, 232 S.W.3d 228, 235 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (reviewing
three Capital Murder bond reduction cases).
11 Peyton, 2016 WL 2586698, at *3–5; TEX. CODE CRIM. P. art. 17.15; Ex parte Rubac, 611 S.W.2d
848, 849–50 (Tex. Crim. App. [Panel Op.] 1981).
12 Peyton, 2016 WL 2586698, at *3–5.
12
live with a friend at the friend’s apartment; (3) Appellant would be able to obtain
transport to court; and, (4) he would comply with any bond conditions.13 After
stating that the State offered no evidence that Appellant was a flight risk, the Court
determined that this was “reasonable assurance that Peyton would appear for
court.”14
When evaluating the second factor—that bail not be oppressive—the Court
of Appeals simply summarized Appellant’s testimony and concluded that bail was
oppressive.15 The Court of Appeals determined Appellant did not have the ability to
pay for a $1,000,000 bond based on his testimony.16
The Court of Appeals evaluated the nature and surrounding circumstances of
the offense, finding the facts in the probable cause affidavit “disturbing,” and
correctly identified Solicitation of Capital Murder as a first degree felony with a five
to ninety-nine year punishment range.17 The Court determined, “[c]ase law is of
relatively little value in addressing the appropriate amount of bail in a particular
13 Id. at *4.
14 Id.
15 Id.
16 Id.
17 Id. at *5.
13
case,” but relied upon a series of habeas bail cases arising from the same offense to
conclude that $1,000,000 is outside the acceptable bond amount range.18
While acknowledging that the future safety of the community is a difficult
factor to analyze, the Court of Appeals found that because Appellant did not have
any prior felonies, and that the bail contains a provision preventing Appellant from
contacting his intended murder victim, the high amount of bail was not related to
community safety. Finally, when looking to the Rubac factors, the Court of Appeals
relied extensively on Appellant’s testimony to conclude Appellant has “an incentive
to remain despite the possibility of conviction and sentence.”19
A. The Appellate Court grossly undervalued Appellant’s danger to the victim
and community.
Appellant calculated and effected a plan to hire a hit man to murder his
daughter’s boyfriend, refused to be deterred from that plan, and believed it to have
been successful.20 Appellant is charged with a crime that does not require him to
be physically present at the time the violence occurs. Even if Appellant complied
with terms of a bond that required him to remain under house arrest and wear an
ankle monitor, Appellant could still easily solicit the Capital Murder of his daughter’s
18 Id. (citing ex parte Beard, 92 S.W.3d 566, 571 (Tex. App.—Austin 2002, pet. ref’d) (internal
quotation omitted)).
19 Id. at *5 (quotation omitted).
20 R.R. 3:7–8, State’s Exhibit 1.
14
boyfriend once again. Alternatively, with the money raised by the sale of his
firearms,21 Appellant could hire an individual to murder the officer, who is the
linchpin of the State’s case against Appellant and his wife.
Unlike a Capital Murder for Hire, here, Appellant’s intended victim is still alive
and still at risk. The trial court recognized that could order few realistic safeguards
to protect the intended victim or the community at large from any future attempts
by Appellant to solicit murder. The Court of Appeals erred by substituting its own
incorrect determination that the Appellant’s word, a restriction of house arrest to
an unknown third party’s apartment, and an electronic ankle monitor would keep
the victim and the community safe.
B. The Court of Appeals erred by substituting the trial court’s implicit credibility
determination of the Appellant by holding that the trial court received
reasonable assurance of the Appellant’s presence at trial court
appearances.
When reviewing a trial court’s decision, appellate courts should view the facts
in the light most favorable to the judge’s ruling, and uphold that ruling absent an
abuse of discretion.22 “Reviewing courts, including this Court, should ‘afford almost
total deference to a trial court’s determination of the historical facts that the record
21R.R. 2:9 (testifying he could sell “some guns” to make bond).
22Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other
grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007)).
15
supports especially when the trial courts fact findings are based on an evaluation of
credibility and demeanor.’”23 Trial judges are uniquely situated to observe witness
demeanors and directly assess credibility.24 However, this deference to implicit
factual findings should be tempered by the reviewing court’s ability to “determine
from the record what the trial court’s implied factual findings are.”25
1. The Court of Appeals disregarded the trial court’s implicit credibility
assessment of the Appellant.
The record supports the conclusion that the trial court found the Appellant’s
testimony not credible. The Court of Appeals erred in ignoring this implicit credibility
determination. Appellant was the only witness at the bond reduction hearing.26 The
State entered the probable cause affidavit into evidence.27 Simply because the State
did not offer evidence contrary to Appellant’s testimony, does not mean the trial
court is required to accept it as truthful and accurate.28
23 Id. (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
24 Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008).
25 Peterson, 117 S.W.3d at 819.
26 See generally R.R. 2.
27 R.R. 2:12.
28 See Ex parte Okun, 342 S.W.3d 184, 185 (Tex. App.—Beaumont 2011, no pet. h.); Ex parte
Hutchinson, Nos. 05–11–00315–21–CR, 2011 WL 2583050, at *3 (Tex. App.—Dallas Jun. 30,
2011, pet. dismissed) (not designated for publication); Ex parte Harber, No. 04–10–00643–CR,
2010 WL 5141509, at *3 n. 2 (Tex. App.—San Antonio Dec. 15, 2010, no pet. h.) (not designated
for publication).
16
However, if the trial court found Appellant’s statements credible, that he
would live with an unnamed friend29 and that unnamed friends would provide
Appellant with rides to court hearings,30 then the trial court would be relying on an
anonymous individual or group of individuals, who did not appear at the bond
reduction hearing, to guarantee Appellant’s appearance. This reality would be
absolutely contrary to the purpose of an appearance bond.
Given the presumption in favor of the trial court’s ruling, the trial court did
not find Appellant’s testimony credible. However, the Court of Appeals improperly
ignored this implicit credibility finding, and treated Appellant’s testimony as
reliable.31
2. The trial court erred by failing to defer to the trial judge’s
determination of the weight to be given the evidence.
Not only is the trial judge the best position to determine the credibility to be
assigned a particular witness, the judge is also in the best position to determine the
weight to be given the evidence.32 Even the Court of Appeals acknowledged that
simply because a trial court may decide a matter within its discretion differently than
29 R.R. 2:9–10.
30 R.R. 2:9.
31 See Peyton, 2016 WL 2586698, at *4–5.
32 Zheng v. State, No. 01–04–00062–CR, 2005 WL 375446, at *2 (Tex. App.—Houston [1st Dist.]
Feb. 17, 2005, pet. ref’d) (not designated for publication).
17
an appellate court would in a similar circumstance, does not prove that an abuse of
discretion has occurred.33
Concluding that Appellant was not a flight risk,34 Court of Appeals glossed over
the reality recognized by the trial court: that, if released on bond, Appellant has few
reasons to remain in Wichita County. Appellant’s wife is a co-conspirator in the
same offense.35 Despite his twenty-five year tenure in Wichita Falls, Appellant owns
no real property, leases no real property, works at no employment,36 and has no
other family in the area.37 In fact, the court has very little guarantee to Appellant’s
appearance in court beyond a strong monetary incentive.
C. The Court of Appeals conflated factors two and four of Article 17.15 by
reasoning that because Appellant was unable to pay his bond, that his bond
was oppressive.
Ignoring the trial court’s implicit finding that Appellant was not credible, the
Court of Appeals then relied upon his testimony that he “is disabled, has minimal
assets and income, and does not have the ability to satisfy a $1,000,000 bond. This
33 Peyton, 2016 WL 2586698, at *3; Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.
1990) (en banc).
34 Peyton, 2016 WL 2586698, at *4.
35 R.R. 3:8–10, State’s Exhibit 1.
36 Appellant receives social security disability, which is not contingent upon his residence within
Wichita County. See R.R. 2:10.
37 R.R. 2:8–11.
18
factor demonstrates that bail in the amount set is oppressive.”38 If this tautological
reasoning was correct, then any bond that a defendant could not afford would be
oppressive.39
Then, Court of Appeals, once again, disregards the trial court’s credibility
assessment, and relies entirely on the Appellant’s testimony as to his assets and
income.40 This complete reliance on the cold record is inapposite of the Court of
Appeals’ own holding in Ex parte Scott,41 a Solicitation of Capital Murder case in
which the Court considered the defendant’s lack of specific evidence as to his and
his family’s assets other than testimony.42 Despite the many factors weighing
heavily in favor of a high bond, the Appellant’s inability to afford bail dominated all
other factors, even though the Court of Appeals acknowledged this factor should
not be controlling.43
38 Id. (internal citation omitted). The Court of Appeals relies on Ex parte Bogia, which holds that
a $360,000 bond for second degree felony theft is per se oppressive, unless justified by special
circumstances. 56 S.W.3d 835, 840 (Tex. App.—Houston [1st Dist.] 2001, no pet. h.).
39 Ex parte Vasquez, 558 S.W.2d 477, 480 (Tex. Crim. App. 1977) (stating, “Appellant’s indigency
is a circumstance to be considered, but it is not a controlling circumstance nor the sole criterion
in determining the amount of bail.”).
40 Peyton, 2016 WL 2586698, at *4.
41 122 S.W.3d 866 (Tex. App.—Fort Worth 2003, no pet. h.).
42 Id. at 870.
43 See Peyton, 2016 WL 2586698, at *4.
19
D. The Court of Appeals did not properly consider the nature and
circumstances of the Appellant’s charged offense.
When considering bond amounts, the defendant’s alleged offense and
potential punishment are primary factors to be considered.44 Appellant attempted
to secure, and believed himself successful, in procuring the murder of his daughter’s
boyfriend.45 Solicitation of Capital Murder is a first degree felony, punishable by up
to five to ninety-nine years imprisonment or life. Even the Court of Appeals
described Appellant’s offense as “disturbing.”46 As discussed in Section I above, but
for the fact that Appellant inadvertently contacted a police officer instead of a true
hit man, Appellant would have succeeded in the murder of his intended victim.47 AS
the mens rea and actus reus are identical between Appellant and a defendant in a
completed Capital Murder, the criminal culpability here is the factual equivalent of
a Capital Murder for Hire. Therefore, the Court of Appeals should have used Capital
Murder cases when comparing this bond amount to other cases.
In addition, the Court of Appeals erred in relying upon a survey of aged cases
to serve as a basis for justifying its decision that Appellant’s bond should be lowered.
44 Ex parte Hunt, 138 S.W.3d 503, 505 (Tex. App.—Fort Worth 2004, pet. ref’d).
45 R.R. 3:8 (paying the remaining balance upon receiving “proof” showing the murder was carried
out).
46 Peyton, 2016 WL 2586698, at *5 (weighing this factor in favor of a high bond).
47 Supra Section I.
20
When comparing a bond amount to others set by sister courts, courts of appeals
should look to more recent cases, decided at least within the past decade.48 The
Texarkana Court of Appeals has even commented upon a party relying old cases to
compare bond amounts.49
However, in its audit of bond amounts determined by various courts, the
Court of Appeals cited old cases, one as far back as 1980,50 when a new Corvette
cost as little as $15,000.51 The base price of a new 2016 Corvette Stingray is
$55,400.52 The Court’s most recent case was still nine years old.53 The Court of
Appeals applied outdated data to improperly hold that the trial court committed
abuse of discretion.
48 See Ex parte Guerra, 383 S.W.3d 229, 233 (Tex. App.—San Antonio 2012, no pet. h.)
(comparing cases up to ten years old); Harber, 2010 WL 5141509, at *2 (no older than four years
prior to its decision); Ex parte Bellanger, No. 12–090–00246–CR, 2009 WL 4981457, at *3 (Tex.
App.—Tyler 2009, no pet. h.) (not designated for publication) (as old as nine years prior to the
decision); Ex parte Brown, 959 S.W.2d 369, 372 n. 2 (Tex. App.—Fort Worth 1998, no pet. h.) (no
older than seven years). But see Ex parte Bogia, 56 S.W.3d 835 (Tex. App.—Houston [1st Dist.]
2001, no pet. h.) (as far back as twenty-one years older than the case at issue).
49 Ex parte Henson, 131 S.W.3d 645, 648 (Tex. App.—Texarkana 2004, no pet. h.) (noting
Appellant relied on numerous court decisions, “none of which are more recent than 1991. . .”
but the State “cit[ed] more recent decisions,” which occurred within four years of the case).
50 Peyton, 2016 WL 2586698, at *5 (citing Ex parte Parish, 598 S.W.2d 872 (Tex. Crim. App.
[Panel Op.] 1980)).
51 Chevrolet Corvette (C3), WIKIPEDIA (2016),
https://en.wikipedia.org/wiki/Chevrolet_Corvette_(C3) (last visited 19 May 2016).
52 Corvette, CHEVROLET (2016), http://www.chevrolet.com/corvette-sports-cars.html (last visited
May 19, 2016).
53 Peyton, 2016 WL 2586698, at *5 (citing Cooley v. State, 232 S.W.3d 228 (Tex. App.—Houston
[1st Dist.] 2007, no pet.)).
21
E. By relying on Appellant’s testimony, the Court of Appeals replaced the trial
court’s credibility assessment of Appellant with its own, causing it to find
that the Rubac factors weighed in favor of a lower bond.
In the section regarding the Rubac factors, the Court of Appeals repeated
Appellant’s testimony about: his age, the fact that he lived most of his life in Wichita
Falls, his wife and friends are in Wichita Falls, he is unable to work, his prior arrests
were minor, and the record did not contain aggravating circumstances about the
charged offense.54 The Court of Appeals once again, took the Appellant’s words at
face value. Ignoring this Court’s standard of review granting deference to
factfinders, which,
[A]ccounts for the unparalleled position of the habeas judge to directly
assess a witness’s demeanor. While listening to testimony, the habeas
judge is tuned in to how something is being said as much as to what is
being said. The judge is acutely aware of a witness’s tone of voice or
inflection, facial expressions, mannerisms, and body language. There
is no doubt that this type of assessment, the essence of which a cold
record rarely captures, is a determinative factor in a trial judge’s
credibility assessment and factfindings.55
54 Peyton, 2016 WL 2586698, at *5.
55 Reed, 271 S.W.3d at 728 (emphasis added).
22
PRAYER
The State prays that the Court of Criminal Appeals grant discretionary review
of the decision of the Court of Appeals, Second District, and ultimately, reverse its
judgment, affirming the judgment of the 30th District Court of Wichita County, Texas.
Respectfully Submitted,
Maureen Shelton
Criminal District Attorney
Wichita County, Texas
/s/ Jennifer Ponder
Jennifer Ponder
Assistant Criminal District Attorney
Wichita County
State Bar No. 24083676
900 7th Street
Wichita Falls, Texas 76301
Tel.: (940)766-8113
23
CERTIFICATE OF COMPLIANCE
I, the undersigned, certify that this document was produced on a computer
using Microsoft Word and contains 3,387 words, as determined by the computer
software’s word-count function, excluding the sections of the document listed in
Texas Rule of Appellate Procedure 9.4(i)(1).
/s/ Jennifer Ponder
Jennifer Ponder
CERTIFICATE OF SERVICE
I, the undersigned, certify that on Friday, May 20, 2016, I served a copy of the
State’s Petition for Discretionary Review on the parties listed below by electronic
service and that the electronic transmission was reported as complete. My e-mail
address is Jennifer.Ponder@co.wichita.tx.us.
Brennon Brady
600 Scott Street, Rm 204
Wichita Falls, TX 76301
(940)766-7119
Brennon.Brady@co.wichita.tx.us
State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711
information@spa.texas.gov
/s/ Jennifer Ponder
Jennifer Ponder
24
App 001
FILED IN
2nd COURT OF APPEALS
FORT WORTH, TEXAS
5/20/2016 3:42:41 PM
DEBRA SPISAK
Clerk
Appendix
Ex parte Peyton, No. 02–16–00029–CR,
2016 WL 2586698 (Tex. App.—Fort Worth May 5,
2016).
App 002
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00029-CR
EX PARTE JEFFREY PEYTON
----------
FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 56208-A
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
Applicant Jeffrey Peyton appeals from the trial court’s denial of his pretrial
application for writ of habeas corpus seeking a bail reduction. 2 Because we
1
See Tex. R. App. P. 47.4.
2
Because this is an appeal from the denial of an application for habeas
corpus relief and not an appeal from an order setting bail or from the denial of a
pretrial motion for bail reduction, we have jurisdiction over this appeal. See
Ragston v. State, 424 S.W.3d 49, 50 (Tex. Crim. App. 2014); Ex parte Briscoe,
No. 02-15-00223-CR, 2015 WL 5893470, at *4 (Tex. App.—Fort Worth Oct. 8,
2015, no pet.) (mem. op., not designated for publication); Vasquez v. State, Nos.
App 003
conclude that the trial court abused its discretion by failing to reduce the bail
amount based on the proffered evidence, we reverse the trial court’s order and
remand to that court to set a reasonable bail.
II. FACTUAL AND PROCEDURAL BACKGROUND
On July 2, 2015, a magistrate determined that there was probable cause to
issue an arrest warrant for Peyton based on an affidavit sworn to by John E.
Laughlin, a peace officer of the City of Wichita Falls Police Department. See
Tex. Code Crim. Proc. Ann. art. 15.03(a) (West 2015). In the affidavit, Officer
Laughlin stated that he had probable cause to believe that on June 30, 2015,
Peyton committed the offense of “Criminal Solicitation – Capital Murder.” See
Tex. Penal Code Ann. § 15.03 (West 2011). Officer Laughlin further attested to
the following sequence of events:
 On June 26, 2015, a cooperating witness contacted the Wichita Falls
Police Department about a possible murder for hire. Officer Laughlin met
with the cooperating witness who explained that Peyton and his wife had
asked him to find a person willing to “take out” their daughter’s boyfriend,
Vincent Cole, for $300. The cooperating witness provided Officer Laughlin
with recordings he had made of his conversations with Peyton and his
wife. Officer Laughlin contacted Officer Karen Wade from the Organized
Crime Unit to assist with the investigation.
 On June 29, 2015, the cooperating witness introduced Officer Wade to
Peyton and his wife. Officer Wade recorded her conversation with Peyton
and his wife, who stated that they were willing to pay to have their
daughter’s boyfriend gone “permanently.” They arranged to meet with
Officer Wade again the following day.
03-13-00717-CR, 03-13-00718-CR, 2014 WL 3732962, at *1 n.2 (Tex. App.—
Austin July 25, 2014, no pet.) (mem. op., not designated for publication)
(collecting cases).
2
App 004
 Around 11:00 a.m. on June 30, 2015, the cooperating witness took
Peyton’s wife to a bank at her request and direction and recorded the
conversation that took place. Peyton’s wife intimated that she was getting
money from the bank to complete a transaction with Officer Wade. While
talking about Cole, Peyton’s wife stated, “I want him gone. Not out of town
gone. I want him dead gone.” Peyton’s wife further stated that she and
Peyton planned to take their daughter to a movie so that she would not be
around “the day this happens.”
 Around 12:30 p.m. on June 30, 2015, Officer Wade contacted Peyton by
phone and explained that it would cost more than $300 to have someone
kill Cole. Peyton then offered to pay $500 to have Cole killed.
 Around 1:45 p.m. on June 30, 2015, Officer Wade met Peyton in a parking
lot. During the recorded meeting, Peyton gave Officer Wade three $100
bills and promised to pay an additional $200 after Cole was killed. Peyton
also provided Officer Wade with a photograph of Cole. Officer Wade
offered Peyton an opportunity to back out of the transaction, but Peyton
refused and indicated that he and his wife wanted to go through with the
plan.
 On July 2, 2015, Officer Laughlin contacted Cole and explained the
preceding events. Cole agreed to cooperate with the investigation, and a
photograph was created that made it look like he had been shot to death.
 Later on July 2, 2015, Officer Wade contacted Peyton by phone and
arranged to meet him. When they met a short time later, Officer Wade
showed Peyton the staged photograph of Cole. Peyton then gave Officer
Wade $200.
After Peyton’s arrest, bail was set at $1,000,000.3 Peyton filed an
application for writ of habeas corpus and argued that his bail was unlawfully
excessive. Peyton requested that the trial court “grant him a personal
recognizance bond or, in the alternative, set bail in a reasonable amount.”
3
As part of the conditions of bail, the magistrate ordered that Peyton “not
make contact with the alleged victim, or any member of his family, nor cause any
other person to make said contact.”
3
App 005
At the hearing on Peyton’s application for writ of habeas corpus, Peyton
testified that he is fifty-eight years old and has lived in Wichita Falls for the
majority of his life, including the past twenty-five years. Peyton does not have
family members who are still alive, other than his wife. Peyton served in the
United States Navy from 1974 to 1978 and received an honorable discharge. He
testified that he had never been convicted of a felony but admitted that he had
been arrested several times for public intoxication and one time on a warrant for
an unpaid ticket for no automobile insurance.
Peyton testified that he is unable to make bail while it is set at $1,000,000.
He explained that he is unable to work due to a disability and that he receives
veterans’ benefits and Social Security disability benefits totaling approximately
$1,240 each month. At the time he requested court-appointed counsel, he had
approximately $1,500 in the bank, owned a nonoperational vehicle worth
approximately $500, and owned furniture or jewelry worth approximately $500.
He does not own a house. Peyton testified that he has the ability to make bail if it
is set at $10,000 because he can sell his firearms. Peyton said that if he were
released, he would live with a friend at the French Quarter Apartments and that
he could obtain rides from friends to appear for any court dates. Peyton testified
that he is willing to comply with conditions of bail such as curfew, home
confinement, electronic monitoring, and drug testing and that he is willing to seek
court approval before leaving the state for any trips to the VA hospital in
4
App 006
Oklahoma City. Peyton said that he has every intention of fighting the charges
alleged.
In opposing any reduction in the bail amount, the State admitted into
evidence Officer Laughlin’s probable-cause affidavit, the relevant portions of
which are set forth above, and asked the trial court to take judicial notice of the
indictment. The State then rested.
The trial court denied Peyton’s application and continued bail in the
amount of $1,000,000.4 Peyton then filed this appeal, and we requested briefing.
See Tex. R. App. P. 31.1.
III. STANDARD OF REVIEW AND LAW ON BAIL
We review a trial court’s ruling on the setting of bail for an abuse of
discretion. See Tex. Code Crim. Proc. Ann. art. 17.15 (West 2015); Ex parte
Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981). To determine
whether a trial court abused its discretion, we must decide whether the trial court
acted without reference to any guiding rules or principles; in other words, we
must decide whether the trial court’s action was arbitrary or unreasonable.
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Merely
because a trial court may decide a matter within its discretion in a different
4
After the trial court announced its decision on the record, Peyton argued
that his situation raised the same constitutional concerns addressed in Judge
Cochran’s concurring opinion to the refusal of the petition for discretionary review
in Ex parte Benefield. 403 S.W.3d 240 (Tex. Crim. App. 2013) (Cochran, J.,
concurring). The trial court stated that it was familiar with that case but did not
change its ruling.
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App 007
manner than an appellate court would in a similar circumstance does not
demonstrate that an abuse of discretion has occurred. Id.
The primary purpose of an appearance bond is to secure the presence of
the defendant at trial on the offense charged. Ex parte Vasquez, 558 S.W.2d
477, 479 (Tex. Crim. App. 1977). Federal and state law both prohibit the
imposition of excessive bail, which is bail that is “set in an amount greater than is
reasonably necessary to satisfy the government’s legitimate interests.” Ex parte
Beard, 92 S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref’d); see U.S. Const.
amend. VIII; Tex. Const. art. I, § 13. The defendant bears the burden of proving
that bail, as set, is excessive. Rubac, 611 S.W.2d at 849. Bail may be deemed
oppressive when the trial court sets it at an amount “for the express purpose of
forcing [a defendant] to remain incarcerated.” Ex parte Harris, 733 S.W.2d 712,
714 (Tex. App.—Austin 1987, no pet.).
Statutory and common-law factors guide a trial court’s determination of
appropriate bail. The code of criminal procedure provides,
The amount of bail to be required in any case is to be regulated by
the court, judge, magistrate[,] or officer taking the bail; they are to be
governed in the exercise of this discretion by the Constitution and by
the following rules:
1. The bail shall be sufficiently high to give reasonable
assurance that the undertaking will be complied with.
2. The power to require bail is not to be so used as to make it
an instrument of oppression.
3. The nature of the offense and the circumstances under
which it was committed are to be considered.
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App 008
4. The ability to make bail is to be regarded, and proof may
be taken upon this point.
5. The future safety of a victim of the alleged offense and the
community shall be considered.
Tex. Code Crim. Proc. Ann. art. 17.15. In addition to these statutory factors, the
court of criminal appeals has instructed courts to also consider the accused’s
work record, the accused’s family ties, the accused’s length of residency, the
accused’s prior criminal record, the accused’s conformity with the conditions of
any previous bond, the existence of any outstanding bonds, and aggravating
circumstances alleged to have been involved in the charged offense. Rubac,
611 S.W.2d at 849–50.
IV. TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO REDUCE BAIL
We recognize that any review of a bail determination is, by nature,
imprecise, but we are guided by article 17.15. See Ex parte Pemberton, 577
S.W.2d 266, 267 (Tex. Crim. App. [Panel Op.] 1979).
A. Statutory Factors
1. Assure Appearance Without Oppression
(First, Second, and Fourth Factors)
The primary purpose in setting a bail amount and the first listed factor in
article 17.15 is the reasonable assurance that the applicant will appear for court.
See Tex. Code Crim. Proc. Ann. art. 17.15(1); Vasquez, 558 S.W.2d at 479.
Peyton testified that he has lived in Wichita Falls for the majority of his life,
7
App 009
including the past twenty-five years. Peyton said that if he were released, he
would live with a friend at an apartment complex in Wichita Falls and would be
able to obtain transportation to any court appearances. Peyton testified that he
would comply with any conditions of bail that might be imposed and that he
would seek court approval before leaving the state for any trips to the VA hospital
in Oklahoma City. The State presented no evidence that Peyton is a flight risk or
that he has outstanding bonds or warrants. Based on these facts, the trial court
had reasonable assurance that Peyton would appear for court; thus, this factor
indicates that a reduction in bail is appropriate. Cf. In re Durst, 148 S.W.3d 496,
501 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (op. on reh’g) (considering
conditions imposed by trial court to ensure defendant’s appearance and reducing
bail to $150,000 for each of three third-degree felonies charged).
With regard to the second factor—that bail not be oppressive, the record
demonstrates that Peyton is disabled, has minimal assets and income, and does
not have the ability to satisfy a $1,000,000 bail bond. See Tex. Code Crim. Proc.
Ann. art. 17.15(2). This factor demonstrates that bail in the amount set is
oppressive. See Ex parte Bogia, 56 S.W.3d 835, 840 (Tex. App.—Houston [1st
Dist.] 2001, no pet.) (holding that $360,000 bail for second-degree felony of theft
was oppressive because it was not justified by any unusual circumstances).
Similar to the second factor, the fourth factor mandates consideration of an
applicant’s ability to make bail, which is relevant but not controlling. See Tex.
Code Crim. Proc. Ann. art. 17.15(4); Ex parte Sabur-Smith, 73 S.W.3d 436, 440
8
App 010
(Tex. App.—Houston [1st Dist.] 2002, no pet.). Bail set in an amount that cannot
be satisfied has the potential to displace the presumption of innocence. See
Bogia, 56 S.W.3d at 840. The record is clear that Peyton cannot satisfy a
$1,000,000 bail bond and that he does not have any family to assist him in
making bond. Peyton does not own a house or an operational vehicle and is
disabled and therefore unable to work; his monthly income consists of $367 in
veterans’ benefits and an unspecified amount in Social Security disability
benefits. Peyton testified that he could satisfy a bail of $10,000 by selling some
guns that he owns. This factor weighs in favor of reduced bail. See 41 George
E. Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice &
Procedure § 21:27 (3d ed. 2011) (stating that “the less resources he has, the
more likely it will be that a lower amount will create a sufficient incentive to
appear”).
2. Nature of the Offense (Third Factor)
With regard to the third factor—the nature of the offense and the
circumstances under which it was committed, the record includes the probable-
cause affidavit, which was admitted into evidence by the State at the hearing.
See Tex. Code Crim. Proc. Ann. art. 17.15(3). The facts in the probable-cause
affidavit are disturbing and allege that Peyton was involved in soliciting someone
to murder his daughter’s boyfriend. If convicted of criminal solicitation to commit
capital murder, which is a first-degree felony, Peyton faces a punishment range
of five to ninety-nine years’ confinement and a possible fine not to exceed
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App 011
$10,000. See Tex. Penal Code Ann. § 12.32 (West 2011), § 15.03(d)(1). The
severity of the offense justifies a high bail amount.
In other cases involving solicitation of capital murder, courts have
approved bail in amounts ranging from $20,000 to $750,000—with the higher end
of the range used for multiple charges of solicitation of capital murder. See, e.g.,
Ex parte Parish, 598 S.W.2d 872, 873 (Tex. Crim. App. [Panel Op.] 1980)
(reducing bail from $100,000 to $20,000 on solicitation of capital murder charge);
Cooley v. State, 232 S.W.3d 228, 238 (Tex. App.—Houston [1st Dist.] 2007, no
pet.) (upholding total bail of $750,000 on three solicitation of capital murder
charges); Ex parte Chachere, No. 03-01-00404-CR, 2002 WL 99642, at *4 (Tex.
App.—Austin Jan. 25, 2002, no pet.) (not designated for publication) (reducing
bail from $700,000 to $250,000 on solicitation of capital murder charge); Perry v.
State, No. 14-99-01161-CR, 1999 WL 1267196, at *3 (Tex. App.—Houston [14th
Dist.] Dec. 30, 1999, no pet.) (not designated for publication) (upholding
$100,000 bail on solicitation of capital murder charge); Ex parte Welch, 729
S.W.2d 306, 310 (Tex. App.—Dallas 1987, no pet.) (upholding total bail of
$300,000 on two pending solicitation of capital murder charges). But see Ex
parte Pulte, No. 02-03-00202-CR, 2003 WL 22674734, at *2 (Tex. App.—Fort
Worth Nov. 13, 2003, no pet.) (not designated for publication) (holding
$1,000,000 bail not excessive for solicitation of murder when record showed that
defendant possessed assets, defendant had failed to offer evidence of bond he
could make, and defendant had committed offense for which bail was sought
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App 012
while on bond for related offense). However, “‘[c]ase law is of relatively little
value in addressing the ultimate question of the appropriate amount of bail in a
particular case’ because . . . the ‘cases are so individualized that generalization
from results reached in others is difficult.’” Beard, 92 S.W.3d at 571 (citing 41
George E. Dix. & Robert O. Dawson, Texas Practice: Criminal Practice and
Procedure § 16.51 (2d ed. 2001)). In any event, while the nature-of-the-offense
factor justifies setting a significant bail amount, $1,000,000 exceeds the upper
end of the range of approved amounts for bail in cases involving solicitation of
capital murder.
3. Safety (Fifth Factor)
The fifth factor we consider is the future safety of the community. See Tex.
Code Crim. Proc. Ann. art. 17.15(5). Peyton has no prior felony convictions.
Peyton’s bail contains the condition that Peyton “not make contact with the
alleged victim, or any member of his family, nor cause any other person to make
said contact.” This factor, while difficult to analyze, reflects that the high amount
of Peyton’s bail is not sufficiently related to community safety. See Briscoe, 2015
WL 5893470, at *4 (citing 41 Dix & Schmolesky, supra, § 21:29).
B. Other Considerations
Finally, we look to other relevant considerations. Peyton, who is fifty-eight
years old, has lived in Wichita County the majority of his life, including the last
twenty-five years. Although most of his family is now deceased, he still has his
wife and friends in Wichita Falls. Peyton is not able to work due to a disability.
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App 013
Peyton’s only prior arrests were for public intoxication and a warrant for failing to
pay a ticket for no automobile insurance. The record does not contain evidence
regarding any aggravating circumstances alleged to have been involved in the
charged offense. These considerations demonstrate that although Peyton was
arrested for a first-degree felony, he has “an incentive to remain despite the
possibility of conviction and sentence,” and he testified that he has every
intention of fighting the charges alleged. See id. (citing 41 Dix & Schmolesky,
supra, § 21:30).
C. Outcome
Although the nature of the offense and the circumstances surrounding it
are severe, the other factors to be considered in setting reasonable bail establish
that the $1,000,000 bail set here is excessive because it is set in an amount
greater than necessary to ensure Peyton’s appearance. Because Peyton has
carried his burden of proving that bail in the amount of $1,000,000 is excessive,
we hold that the trial court abused its discretion by failing to reduce the bail
amount based on the evidence before it. See Tex. Code Crim. Proc. Ann. art.
11.24 (West 2015) (“If the proof sustains the petition, it will entitle the party to . . .
have the bail reduced.”); Parish, 598 S.W.2d at 873 (reducing bail from $100,000
to $20,000 for solicitation of capital murder); see also Briscoe, 2015 WL
5893470, at *4 (holding that $1,000,000 bail in injury-to-a-child case was
excessive and that trial court abused its discretion by failing to reduce that
amount).
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App 014
V. CONCLUSION
We therefore reverse the trial court’s order denying habeas relief and
remand this case to the trial court to set a reasonable bail; to determine what
additional conditions, if any, should be imposed; and to allow the State and
Peyton to present any additional evidence or argument that the trial court deems
relevant to each of the factors discussed above. See Tex. R. App. P. 31.3; Ex
parte Brooks, 376 S.W.3d 222, 224 (Tex. App.—Fort Worth 2012, pet. ref’d.).
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 5, 2016
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