Ex Parte Tiffany Peteet ( 2023 )

Affirmed and Memorandum Opinion filed January 24, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00316-CR
NO. 14-22-00317-CR
EX PARTE TIFFANY PETEET
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause Nos. 1761896, 1763901
MEMORANDUM OPINION
Appellant, Tiffany Peteet, brings this appeal from the trial court’s order on
her application for writ of habeas corpus. Appellant was charged with a first-
degree felony offense of murder and a third-degree felony offense of tampering
with physical evidence. See Tex. Penal Code Ann. §§ 19.02(b)(1)-(2); 37.09(a)(1).
A Harris County Magistrate set bail in the amount of $250,000 for the
murder charge and $100,000 for the tampering charge. At the request of defense
counsel, the trial court reduced the amounts to $200,000 for the murder charge and
$75,000 for the tampering charge.
Appellant filed a pretrial application for a writ of habeas corpus in both
cases, alleging the bail amounts are excessive and thus render her unlawfully
restrained. After a hearing on appellant’s application, the trial court denied
appellant’s request to further reduce her bail amounts. This appeal followed.
Background
On September 1, 2021, police arrested appellant for the offenses of murder
and tampering with physical evidence. At that time, appellant was out on bond for
four pending charges consisting of one misdemeanor and three felonies. There was
also an additional felony charge pending at the time. Appellant’s stepfather posted
the bond for four of the charges. A timeline of appellant’s criminal history is as
follows:
• January 20, 2012: federal conviction for the felony offense of
conspiracy to make, possess, and utter forged securities; sentenced
to 60 months in prison followed by 3 years of supervised release.
• September 24, 2019: arrested for the misdemeanor offense of theft
of services. Appellant was alleged to have received Botox
treatments in the amount of $2,000 for which she did not pay.
Appellant’s stepfather posted appellant’s bond.
• January 29, 2020: arrested for felony criminal mischief. Appellant
was alleged to have caused $3,000 worth of damages to her
neighbor’s vehicle after an altercation. Appellant’s stepfather
posted appellant’s bond.
• May 24, 2020: arrested for the felony offense of theft of a firearm.
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Appellant was alleged to have stolen a firearm from her previous
attorney, William Underwood. Appellant’s stepfather posted
appellant’s bond.
• June 26, 2020: arrested for felony offense of theft. Appellant was
alleged to have refused to return a rental vehicle. Appellant’s
stepfather posted appellant’s bond.
• April 12, 2021: arrested for felony offense of theft. Appellant was
alleged to have refused to return a rental vehicle.
The underlying charges
Appellant is alleged to have murdered Donna Abshire, the longtime
girlfriend of appellant’s previous attorney, William Underwood. The probable
cause affidavit, admitted as an exhibit at the habeas hearing, explains that police
officers found an iPad in Abshire’s home which contained recordings of
conversations between Abshire and appellant from June 19, 2020 to July 9, 2020.
The iPad recordings reveal appellant’s scheme to acquire access to Abshire’s bank
accounts, credit cards, vehicle, and cell phone. Appellant allegedly told Abshire
that Abshire’s boyfriend, William Underwood, was being investigated by the
“DEA” and “Feds.” Appellant said she was assisting in the investigation, but was
trying to keep Underwood out of trouble. Appellant told Abshire that she needed
access to Abshire’s accounts for the investigation, but Abshire would be
reimbursed upon its completion.
The probable cause affidavit further revealed that on July 9, 2020, Abshire
sent several text messages to appellant demanding that appellant return Abshire’s
credit cards, vehicle, cell phone; restore Abshire’s bank account log-in
information; and reimburse Abshire’s money. In these text messages, Abshire
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stated that she believed appellant had scammed her to get back at Underwood for
the firearm theft charge.
Around 11 am on July 10, 2020, police discovered Abshire dead in her home
from a gunshot wound. The probable cause affidavit reflects that there is an iPad
recording, a home security system log, and video footage from a neighbor’s
doorbell camera evidencing that appellant and Abshire were alone together inside
Abshire’s home on July 9, 2020 for several hours prior to leaving together at 11:51
pm. Appellant corroborated this information on July 10, 2020 when she called
Abshire’s cell phone at 9 pm. Police answered the phone and questioned appellant
about Abshire’s death. Appellant stated that she and Abshire had been drinking
together on July 9, then they went out driving, and eventually returned to Abshire’s
home.
The log of Abshire’s home security system reflects that the home was
entered at 4:18 am on July 10, 2020. The alarm was successfully deactivated and
set to “stay” mode. Minutes later, at 4:24 am, the alarm was activated by the front
door opening and closing multiple times. The log reflects several unsuccessful
attempts to deactivate the alarm. The home security system’s operator called the
phone number on file, which was registered to Abshire. It is alleged that appellant
answered the phone identifying herself as Donna Abshire, but was unable to
provide the security code. Appellant then allegedly told the operator that she was
Abshire’s daughter. The operator informed appellant that the police would be
called to the residence. At 4:50 am, police visited the home and saw no evidence of
a forced entrance or other suspicious activity.
Minutes after the phone call with the security system operator, the home
security system account was accessed via a cell phone. The cell phone user
removed the doorbell camera and rear patio camera from the account. All videos
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captured from the cameras were deleted. The deletion of these videos is the basis
for the tampering charge against appellant underlying this appeal.
During the July 10 phone call with police, appellant said she returned to
Abshire’s home again around 8:55 am on that morning, but said she did not see
Abshire. The home security system was set off again at this time. Police returned,
but found nothing amiss from the outside. Police contacted Abshire’s daughter and
requested she bring a key to the home for a welfare check. Police found Abshire
dead in the front room of her home.
William Underwood informed police that appellant had stolen two firearms
from his home in March and that police should consider her as a potential suspect
in Abshire’s murder. During the investigation, police discovered appellant’s
fingerprints at the crime scene. Additionally, police found a vehicle registered to
appellant’s ex-husband in Abshire’s garage. The vehicle contained miscellaneous
paperwork bearing appellant’s name. Given the above chain of events and
evidence found at the crime scene, police concluded appellant was financially
motivated to kill Abshire and did so on the morning of July 10, 2020. Police
arrested appellant on September 1, 2021.
Habeas Hearing
Appellant called her stepfather, Michael Price, as her sole witness at the
hearing. Price testified that he raised appellant like his own daughter since she was
an infant. Appellant has been living with Price and her mother on and off since she
was released from federal prison—for the last seven or eight years. Appellant has
two children, one ten-year-old son and an infant daughter who was born while
appellant was incarcerated for the underlying charges. Price and his wife have been
caring for the children while appellant is in jail. Price explained that he posted
bond on four of appellant’s previous charges so that appellant could be at home
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with her son. Price, however, eventually surrendered the bonds because of conflict
between appellant and the rest of the family. An email written by Price to the
bonding company was entered into evidence. In the email, Price writes he wanted
to surrender bond for the following reasons, “[m]e and her mother have been
threatened with bodily harm, if not by her, by her friends. She is very destructive to
our home and disrespectful to everyone. We also believe she is on some type of
drug by the way she acts. The police have been called on multiple occasions.” He
went on to explain that he believes appellant is a “flight risk.” The bonds were
surrendered, and appellant was taken into custody. According to Price, appellant
was released the following day on a personal recognizance bond.
Price stated that he and his wife cannot afford to post bond at the current
amounts. However, Price has negotiated with a bonding company to put his new
home up for collateral on a $100,000 bond. Price assured the court that appellant
would live with the family upon release and that they would “definitely make sure”
she attended all required hearings. Price testified he believes it is important for
appellant to be at home to spend time with her children—especially her infant
daughter who she hasn’t seen since the infant was three days old.
When asked about appellant’s work history, Price was aware of appellant
having only one job for a few months before she was arrested on the current
offenses. According to Price, appellant worked full-time at a Holiday Inn shortly
before police arrested her.
After both sides presented closing arguments, the court declined to reduce
appellant’s bond amounts. The trial court commented on appellant’s continued
pattern of committing crimes while on bond. Additionally, the trial court noted
Price’s hesitation when he testified he thought it was important for appellant to be
home with her children.
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ANALYSIS
The right to be free from excessive bail is protected by the United States and
Texas Constitutions. See U.S. Const. amend. VIII; Tex. Const. art. I, § 11. We
review a challenge to the excessiveness of bail for an abuse of discretion. See Ex
parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981). Under this
standard, we may not disturb the trial court’s decision if it falls within the zone of
reasonable disagreement. See Ex parte Castillo–Lorente, 420 S.W.3d 884, 887
(Tex. App.—Houston [14th Dist.] 2014, no pet.).
The amount of bail required in any case is within the discretion of the trial
court subject to the following rules:
1. The bail shall be sufficiently high to give reasonable assurance
of compliance with the undertaking.
2. The power to require bail is not to be so used as an instrument
of oppression.
3. The nature of the offense and the circumstances under which it
was committed are to be considered, including whether the
offense involves violence.
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.
6. The criminal history record information for the defendant,
including acts of family violence, other pending criminal
charges, and any instances in which the defendant failed to
appear in court following release on bail.
Tex. Code Crim. Proc. art. 17.15.1
In addition to these rules, case law provides that courts may consider the
1
The 2021 amendments to article 17.15(a) do not apply to this appeal.
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following set of factors: (l) the defendant’s work record; (2) the defendant’s family
and community ties; (3) the defendant’s length of residency; (4) the defendant’s
prior criminal record; (5) the defendant’s conformity with previous bond
conditions; (6) the existence of other outstanding bonds, if any; (7) the aggravating
circumstances alleged to have been involved in the charged offense; and (8)
whether the defendant is a citizen of the United States. See Ex parte Rubac, 611
S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981); Ex parte Rodriguez, 595
S.W.2d 549, 550 n. 2 (Tex. Crim. App. [Panel Op.] 1980); Ex parte Melartin, 464
S.W.3d 789, 792 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
1. Sufficiently high to assure appearance but not oppress
Bail needs to be in an amount sufficient to give reasonable assurance that the
defendant will appear. When bail is set so high that a person cannot realistically
pay it, however, the trial court essentially “displaces the presumption of innocence
and replaces it with a guaranteed trial appearance.” Ex parte Bogia, 56 S.W.3d
835, 840 (Tex. App.—Houston [1st Dist.] 2001, no pet.). Bail may not be used as
an instrument of oppression. See Ex parte Guerra, 383 S.W.3d 229, 233–34 (Tex.
App.—San Antonio 2021, no pet.). Bail set in a particular amount becomes
oppressive when it assumes that the defendant cannot afford bail in that amount
and when it is set for the express purpose of forcing the defendant to remain
incarcerated. See Ex parte Durst, 148 S.W.3d 496, 499 (Tex. App.—Houston [14th
Dist.] 2004, no pet.) (where bail amount set “solely to prevent [defendant] from
getting out of jail,” “bail [was] being used as an instrument of oppression”).
Appellant is alleged to have committed at least 4 crimes while out on
multiple bonds posted by her stepfather. Appellant has demonstrated a lack of
concern for her stepfather’s financial risk in posting her bonds. A trial court could
have reasonably concluded that the bond would need to be high in order to assure
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compliance. See Bartolo, 2022 WL 17254957, at *4 (“Appellant’s non-compliance
with previously imposed bond conditions weighs against a determination that the
bail amount set by the trial court was excessive.”); Ex parte Owens, Nos. 05-96-
01540-CR, 05-96-01541-CR, 1997 WL 145170, at *4 (Tex. App.—Dallas Apr. 1,
1997, no pet.) (not designated for publication) (“In light of the evidence that
[defendant] did not comply with the conditions of his bonds and was charged with
a new felony offense while out on bond, we cannot conclude that the [bail amounts
set by the trial court were] excessive.”).
Here, there is no evidence that the trial court set appellant’s bail amount at
$275,000 in order to keep appellant incarcerated. See Bartolo, 2022 WL 17254957,
at *8 (noting there was no evidence that the trial court set appellant’s bail amount
at $500,000 for murder to keep appellant incarcerated).
2. Nature and circumstances of alleged offense
A defendant is entitled to a presumption of innocence on all charges. Ex
parte Melartin, 464 S.W.3d 789, 793 (Tex. App.—Houston [14th Dist.] 2015, no
pet.) When assessing the reasonableness of bail, the Court of Criminal Appeals has
instructed that the “primary factors” are the punishments that can be imposed and
the nature of the offenses. See Rubac, 611 S.W.2d at 849. When the offenses
charged are serious and involved potentially lengthy sentences, a defendant may
have a strong incentive to flee the jurisdiction; thus, bail must be set in an amount
sufficient to secure the defendant’s presence at trial. Ex parte Castillo-Lorente, 420
S.W.3d 884, 888 (Tex. App.—Houston [14th Dist.] 2014, no pet.). A trial court
must balance the presumption of innocence with the State’s interest in assuring the
defendant’s appearance for trial. Ex parte Robles, 612 S.W.3d 142, 147 (Tex.
App.—Houston [14th Dist.] 2020, no pet.).
Appellant is charged with murder, an offense violent and serious in nature.
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See Tex. Code Crim. Proc. art. 17.03(b-3)(2)(A); Ex parte Bartolo, No. 01-22-
00544-CR, 2022 WL 17254957, at *4 (Tex. App.—Houston [1st Dist.] Nov. 29,
2022, no pet. h.) (mem. op., not designated for publication) (affirming a $500,000
bond for the “serious and violent” offense of murder); Ex parte Chavfull, 945
S.W.2d 183, 186–7 (Tex. App.—San Antonio 1997, no pet.) (holding a $750,000
bail was not excessive for defendant charged with murdering individual with
firearm). The murder charge, a first-degree felony, carries a punishment range of 5
to 99 years or life in prison. See Tex. Penal Code Ann. § 12.32(a).
Appellant is also charged with tampering with evidence arising out of the
same incident. The tampering charge, a third-degree felony, carries a punishment
range of 2 to 10 years in prison.
However, because of appellant’s criminal history, the punishments may be
enhanced from 15 to 99 years or life in prison for the murder charge and 2 to 20
years in prison for the tampering charge. See Tex. Penal Code Ann. §
12.42(a),(c)(1). Additionally, because the murder and tampering charges are
alleged to be a part of the same criminal episode, the State could try the charges
together, thereby allowing the trial court to order that appellant’s sentences run
consecutively. See Tex. Penal Code Ann. §§ 3.02(a), 3.03(a).
These lengthy sentences potentially provide incentive to flee. Because the
charges and their consequences in the event of conviction are grave, the trial court
could have reasonably determined that the current bail amounts were reasonable.
See Ex parte Temple, 595 S.W.3d 825, 829–30 (Tex. App.—Houston [14th Dist.]
2019, pet. ref’d) (affirming a $1,000,000 bond where defendant’s murder charge
and conviction provided a strong incentive to flee).
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3. Ability to make bail
To demonstrate inability to make bail, a defendant generally must establish
his and his family’s funds have been exhausted. Ex parte Dupuy, 498 S.W.3d 220,
234–35 (Tex. App.—Houston [14th Dist.] 2016, no pet.). The accused’s ability to
make bail is only one factor to be considered in determining the appropriate
amount of bail. Id. “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.” Id. (quoting Ex parte Miller, 631 S.W.2d 825, 827 (Tex. App.—Fort Worth
1982, pet. ref’d)).
There was no evidence presented as to appellant’s own ability to post bond.
Her stepfather testified that he only knew her to have one job for a few months
during the last 8 years. He explained that at one point she was living with a
boyfriend whom he believed was providing for appellant. Given the lack of
evidence of appellant’s financial history and some evidence of financial support
from outside parties, the trial court did not have sufficient evidence to conclude
that appellant could not make bond. See Bartolo, 2022 WL 17254957 at *7
(affirming $500,000 bond for murder where there was scant evidence of
appellant’s own ability to make bond). Moreover, there was no evidence presented
that appellant herself had unsuccessfully attempted to secure her own bond. See Ex
parte Tata, 358 S.W.3d 392, 399 (Tex. App.—Houston [1st Dist.] 2011, pet.
dsm’d) (“Unless she has shown that her funds and those of her family have been
exhausted, a defendant must usually show that she made an unsuccessful effort to
furnish bail before bail can be determined to be excessive.”).
As for appellant’s family, Price testified that he was ready and willing to put
his new home up for collateral on a $100,000 bond. While this evidence supports
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lowering the bond to an amount that could be afforded by appellant’s family, this
factor does not control over all other considerations. See id. (quoting Milner v.
State, 263 S.W.3d 146, 150 (Tex. App.—Houston [1st Dist.] 2006, no pet.)).
4. Future safety of the victims and the community
The trial court must also consider the future safety of the victim of the
alleged offenses, and the community, in setting appellant’s bail amounts. See Tex.
Code Crim. Proc. Ann. art. 17.15(5). A defendant’s criminal history must be
evaluated to determine whether he presents a danger to the community. Ex parte
Ramirez-Hernandez, 642 S.W.3d 907, 918 (Tex. App.—San Antonio 2022, no
pet.). Appellant has repeatedly engaged in fraudulent behavior. Appellant has
threatened bodily harm toward her own parents while out on bail for other
offenses. There is also some evidence that appellant was attempting to seek
revenge against William Underwood for reporting the theft of his firearms by
engaging in a scheme to defraud Abshire. The trial court may consider the
continuing alleged criminal conduct of the defendant while released on bail on
prior occasions as constituting a continuing danger to the public. Wilson v. State,
No. 01-13-00048-CR. 2013 WL 655263, at *6 (Tex. App.—Houston [1st Dist.]
Feb. 21, 2013, no pet.) (mem. op., not designated for publication). The trial court
could have reasonably concluded that appellant’s bond amount was necessary to
protect the community and the complainants. See Ex parte Burton, Nos. 14-22-
00053-CR, 14-22-00054-CR, 14-22-00056-CR, 2022 WL 203936, at *3 (Tex.
App.—Houston [14th Dist.] June 7, 2022, no pet.) (mem. op., not designated for
publication) (“The trial court could also consider that appellant’s capital murder
charge is alleged to have occurred while he was released on bond for his
unauthorized use of a motor vehicle charge, and he is further alleged to have
committed burglary and aggravated assault while released on bond for the two
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other charges, which implicates the safety of the complainants and the
community.”); Ex parte Webb, Nos. 10-12-00362-CR, 10-12-00363-CR, 2013 WL
1846880, at *2 (Tex. App.—Waco May 2, 2013, pet. struck) (mem. op., not
designated for publication) (noting that appellant committed an offense in
retaliation against previous victim while out on bail in assessing appellant’s danger
to the community).
E. Rubac Factors
We now address the additional factors the court may consider in setting a
bond amount. See Rubac, 611 S.W.2d at 850.
1. Appellant’s work record. Price testified that over the last 8 years he has
only known appellant to have had one job for a few months. This factor
does not weigh in appellant’s favor.
2. Appellant’s family and community ties. Appellant’s parents and two
young children reside locally. However, Price’s email reflects he
believed her to be a flight risk. Specifically, Price stated in this email that
appellant threatened that she was going to leave and would never see the
family again. This factor does not weigh in appellant’s favor.
3. Length of appellant’s residency. Appellant has lived in the Houston area
for the past 8 years. This factor weighs in appellant’s favor.
4. Appellant’s prior criminal record. Appellant has a significant criminal
record, most charges of which have not yet been adjudicated. This factor
does not weigh in appellant’s favor.
5. Appellant’s other bonds. Each time bond was posted for appellant,
appellant was charged with another offense or offenses while on bond,
indicating that appellant will not conform with the conditions of her
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bond. Appellant allegedly committed the current offenses while out on
bond for 4 other offenses, and while another charge was pending. This
factor does not weigh in appellant’s favor.
6. Aggravating circumstances in the charged offense. Appellant is charged
with murder, a violent crime. The circumstances of the offense appear
financially motivated, which is an established course of conduct for
appellant’s other alleged offenses and consistent with her federal fraud
conviction. Additionally, appellant’s sentences may be enhanced by her
other alleged offenses and the trial court may order them to run
consecutively because the charged offenses are alleged to be a part of the
same criminal episode. This factor does not weigh in appellant’s favor.
CONCLUSION
Having considered all of the pertinent factors, we conclude appellant has not
shown the trial court abused its discretion in denying appellant’s application for
writ of habeas.
PER CURIAM
Panel consists of Justices Wise, Jewell, and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b)
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